RULE 114

G.R. No. 153675 April 19, 2007

On November 12, 1999, the DOJ filed with this Court a petition for review on certiorari, docketed as G.R. No. 140520, praying that the Decision of the Court of Appeals be reversed. On December 18, 2000, this Court rendered a Decision granting the petition of the DOJ and sustaining the validity of the Order of Arrest against private respondent. The Decision became final and executory on April 10, 2001. Meanwhile, as early as November 22, 1999, petitioner Hong Kong Special Administrative Region filed with the RTC of Manila a petition for the extradition of private respondent, docketed as Civil Case No. 99-95733, raffled off to Branch 10, presided by Judge Ricardo Bernardo, Jr. For his part, private respondent filed, in the same case,- a petition for bail which was opposed by petitioner. After hearing, or on October 8, 2001, Judge Bernardo, Jr. issued an Order denying the petition for bail, holding that there is no Philippine law granting bail in extradition cases and that private respondent is a high "flight risk." On October 22, 2001, Judge Bernardo, Jr. inhibited himself from further hearing Civil Case No. 99-95733. It was then raffled off to Branch 8 presided by respondent judge. On October 30, 2001, private respondent filed a motion for reconsideration of the Order denying his application for bail. This was granted by respondent judge in an Order dated December 20, 2001 allowing private respondent to post bail, thus: In conclusion, this Court will not contribute to accuseds further erosion of civil liberties. The petition for bail is granted subject to the following conditions: 1. Bail is set at Php750,000.00 in cash with the condition that accused hereby undertakes that he will appear and answer the issues raised in these proceedings and will at all times hold himself amenable to orders and processes of this Court, will further appear for judgment. If accused fails in this undertaking, the cash bond will be forfeited in favor of the government; 2. Accused must surrender his valid passport to this Court; 3. The Department of Justice is given immediate notice and discretion of filing its own motion for hold departure order before this Court even in extradition proceeding; and 4. Accused is required to report to the government prosecutors handling this case or if they so desire to the nearest office, at any time and day of the week; and if they further desire, manifest before this Court to require that all the assets of accused, real and personal, be filed with this Court soonest, with the condition that if the accused flees from his undertaking, said assets be forfeited in favor of the government and that the corresponding lien/annotation be noted therein accordingly. SO ORDERED. On December 21, 2001, petitioner filed an urgent motion to vacate the above Order, but it was denied by respondent judge in his Order dated April 10, 2002. Hence, the instant petition. Petitioner alleged that the trial court committed grave abuse of discretion amounting to lack or excess of jurisdiction in admitting private respondent to bail; that there is nothing in the Constitution or statutory law providing that a potential extraditee has a right to bail, the right being limited solely to criminal proceedings.

GOVERNMENT OF HONG KONG SPECIAL ADMINISTRATIVE REGION, represented by the Philippine Department of Justice, Petitioner, vs. HON. FELIXBERTO T. OLALIA, JR. and JUAN ANTONIO MUOZ, Respondents. DECISION SANDOVAL-GUTIERREZ, J.: For our resolution is the instant Petition for Certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended, seeking to nullify the two Orders of the Regional Trial Court (RTC), Branch 8, Manila (presided by respondent Judge Felixberto T. Olalia, Jr.) issued in Civil Case No. 99-95773. These are: (1) the Order dated December 20, 2001 allowing Juan Antonio Muoz, private respondent, to post bail; and (2) the Order dated April 10, 2002 denying the motion to vacate the said Order of December 20, 2001 filed by the Government of Hong Kong Special Administrative Region, represented by the Philippine Department of Justice (DOJ), petitioner. The petition alleges that both Orders were issued by respondent judge with grave abuse of discretion amounting to lack or excess of jurisdiction as there is no provision in the Constitution granting bail to a potential extraditee. The facts are: On January 30, 1995, the Republic of the Philippines and the then British Crown Colony of Hong Kong signed an "Agreement for the Surrender of Accused and Convicted Persons." It took effect on June 20, 1997. On July 1, 1997, Hong Kong reverted back to the Peoples Republic of China and became the Hong Kong Special Administrative Region. Private respondent Muoz was charged before the Hong Kong Court with three (3) counts of the offense of "accepting an advantage as agent," in violation of Section 9 (1) (a) of the Prevention of Bribery Ordinance, Cap. 201 of Hong Kong. He also faces seven (7) counts of the offense of conspiracy to defraud, penalized by the common law of Hong Kong. On August 23, 1997 and October 25, 1999, warrants of arrest were issued against him. If convicted, he faces a jail term of seven (7) to fourteen (14) years for each charge. On September 13, 1999, the DOJ received from the Hong Kong Department of Justice a request for the provisional arrest of private respondent. The DOJ then forwarded the request to the National Bureau of Investigation (NBI) which, in turn, filed with the RTC of Manila, Branch 19 an application for the provisional arrest of private respondent. On September 23, 1999, the RTC, Branch 19, Manila issued an Order of Arrest against private respondent. That same day, the NBI agents arrested and detained him. On October 14, 1999, private respondent filed with the Court of Appeals a petition for certiorari, prohibition and mandamus with application for preliminary mandatory injunction and/or writ of habeas corpus questioning the validity of the Order of Arrest. On November 9, 1999, the Court of Appeals rendered its Decision declaring the Order of Arrest void.

In his comment on the petition, private respondent maintained that the right to bail guaranteed under the Bill of Rights extends to a prospective extraditee; and that extradition is a harsh process resulting in a prolonged deprivation of ones liberty. Section 13, Article III of the Constitution provides that the right to bail shall not be impaired, thus: Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required. Jurisprudence on extradition is but in its infancy in this jurisdiction. Nonetheless, this is not the first time that this Court has an occasion to resolve the question of whether a prospective extraditee may be granted bail. In Government of United States of America v. Hon. Guillermo G. Purganan, Presiding Judge, RTC of Manila, Branch 42, and Mark B. Jimenez, a.k.a. Mario Batacan Crespo,1 this Court, speaking through then Associate Justice Artemio V. Panganiban, later Chief Justice, held that the constitutional provision on bail does not apply to extradition proceedings. It is "available only in criminal proceedings," thus: x x x. As suggested by the use of the word "conviction," the constitutional provision on bail quoted above, as well as Section 4, Rule 114 of the Rules of Court, applies only when a person has been arrested and detained for violation of Philippine criminal laws. It does not apply to extradition proceedings because extradition courts do not render judgments of conviction or acquittal. Moreover, the constitutional right to bail "flows from the presumption of innocence in favor of every accused who should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt" (De la Camara v. Enage, 41 SCRA 1, 6, September 17, 1971, per Fernando, J., later CJ). It follows that the constitutional provision on bail will not apply to a case like extradition, where the presumption of innocence is not at issue. The provision in the Constitution stating that the "right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended" does not detract from the rule that the constitutional right to bail is available only in criminal proceedings. It must be noted that the suspension of the privilege of the writ of habeas corpusfinds application "only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion" (Sec. 18, Art. VIII, Constitution). Hence, the second sentence in the constitutional provision on bail merely emphasizes the right to bail in criminal proceedings for the aforementioned offenses. It cannot be taken to mean that the right is available even in extradition proceedings that are not criminal in nature. At first glance, the above ruling applies squarely to private respondents case. However, this Court cannot ignore the following trends in international law: (1) the growing importance of the individual person in public international law who, in the 20th century, has gradually attained global recognition; (2) the higher value now being given to human rights in the international sphere; (3) the corresponding duty of countries to observe these universal human rights in fulfilling their treaty obligations; and (4) the duty of this Court to balance the rights of the individual under our fundamental law, on one hand, and the law on extradition, on the other. The modern trend in public international law is the primacy placed on the worth of the individual person and the sanctity of human rights. Slowly, the recognition that the individual person may properly be a subject of international law is now

taking root. The vulnerable doctrine that the subjects of international law are limited only to states was dramatically eroded towards the second half of the past century. For one, the Nuremberg and Tokyo trials after World War II resulted in the unprecedented spectacle of individual defendants for acts characterized as violations of the laws of war, crimes against peace, and crimes against humanity. Recently, under the Nuremberg principle, Serbian leaders have been persecuted for war crimes and crimes against humanity committed in the former Yugoslavia. These significant events show that the individual person is now a valid subject of international law. On a more positive note, also after World War II, both international organizations and states gave recognition and importance to human rights. Thus, on December 10, 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights in which the right to life, liberty and all the other fundamental rights of every person were proclaimed. While not a treaty, the principles contained in the said Declaration are now recognized as customarily binding upon the members of the international community. Thus, in Mejoff v. Director of Prisons,2 this Court, in granting bail to a prospective deportee, held that under the Constitution,3 the principles set forth in that Declaration are part of the law of the land. In 1966, the UN General Assembly also adopted the International Covenant on Civil and Political Rights which the Philippines signed and ratified. Fundamental among the rights enshrined therein are the rights of every person to life, liberty, and due process. The Philippines, along with the other members of the family of nations, committed to uphold the fundamental human rights as well as value the worth and dignity of every person. This commitment is enshrined in Section II, Article II of our Constitution which provides: "The State values the dignity of every human person and guarantees full respect for human rights." The Philippines, therefore, has the responsibility of protecting and promoting the right of every person to liberty and due process, ensuring that those detained or arrested can participate in the proceedings before a court, to enable it to decide without delay on the legality of the detention and order their release if justified. In other words, the Philippine authorities are under obligation to make available to every person under detention such remedies which safeguard their fundamental right to liberty. These remedies include the right to be admitted to bail. While this Court in Purganan limited the exercise of the right to bail to criminal proceedings, however, in light of the various international treaties giving recognition and protection to human rights, particularly the right to life and liberty, a reexamination of this Courts ruling in Purganan is in order. First, we note that the exercise of the States power to deprive an individual of his liberty is not necessarily limited to criminal proceedings. Respondents in administrative proceedings, such as deportation and quarantine,4 have likewise been detained. Second, to limit bail to criminal proceedings would be to close our eyes to our jurisprudential history. Philippine jurisprudence has not limited the exercise of the right to bail to criminal proceedings only. This Court has admitted to bail persons who are not involved in criminal proceedings. In fact, bail has been allowed in this jurisdiction to persons in detention during the pendency of administrative proceedings, taking into cognizance the obligation of the Philippines under international conventions to uphold human rights. The 1909 case of US v. Go-Sioco5 is illustrative. In this case, a Chinese facing deportation for failure to secure the necessary certificate of registration was granted bail pending his appeal. After noting that the prospective deportee had committed no crime, the Court opined that "To refuse him bail is to treat him as a person who has committed the most serious crime known to law;" and that while deportation is not a criminal proceeding, some of the machinery used "is the machinery of criminal law."

Thus, the provisions relating to bail was applied to deportation proceedings. In Mejoff v. Director of Prisons6 and Chirskoff v. Commission of Immigration,7 this Court ruled that foreign nationals against whom no formal criminal charges have been filed may be released on bail pending the finality of an order of deportation. As previously stated, the Court in Mejoff relied upon the Universal declaration of Human Rights in sustaining the detainees right to bail. If bail can be granted in deportation cases, we see no justification why it should not also be allowed in extradition cases. Likewise, considering that the Universal Declaration of Human Rights applies to deportation cases, there is no reason why it cannot be invoked in extradition cases. After all, both are administrative proceedings where the innocence or guilt of the person detained is not in issue. Clearly, the right of a prospective extraditee to apply for bail in this jurisdiction must be viewed in the light of the various treaty obligations of the Philippines concerning respect for the promotion and protection of human rights. Under these treaties, the presumption lies in favor of human liberty. Thus, the Philippines should see to it that the right to liberty of every individual is not impaired. Section 2(a) of Presidential Decree (P.D.) No. 1069 (The Philippine Extradition Law) defines "extradition" as "the removal of an accused from the Philippines with the object of placing him at the disposal of foreign authorities to enable the requesting state or government to hold him in connection with any criminal investigation directed against him or the execution of a penalty imposed on him under the penal or criminal law of the requesting state or government." Extradition has thus been characterized as the right of a foreign power, created by treaty, to demand the surrender of one accused or convicted of a crime within its territorial jurisdiction, and the correlative duty of the other state to surrender him to the demanding state.8 It is not a criminal proceeding.9 Even if the potential extraditee is a criminal, an extradition proceeding is not by its nature criminal, for it is not punishment for a crime, even though such punishment may follow extradition.10 It is sui generis, tracing its existence wholly to treaty obligations between different nations.11 It is not a trial to determine the guilt or innocence of the potential extraditee.12 Nor is it a full-blown civil action, but one that is merely administrative in character.13 Its object is to prevent the escape of a person accused or convicted of a crime and to secure his return to the state from which he fled, for the purpose of trial or punishment. 14 But while extradition is not a criminal proceeding, it is characterized by the following: (a) it entails a deprivation of liberty on the part of the potential extraditee and (b) the means employed to attain the purpose of extradition is also "the machinery of criminal law." This is shown by Section 6 of P.D. No. 1069 (The Philippine Extradition Law) which mandates the "immediate arrest and temporary detention of the accused " if such "will best serve the interest of justice." We further note that Section 20 allows the requesting state "in case of urgency" to ask for the "provisional arrest of the accused, pending receipt of the request for extradition;" and that release from provisional arrest "shall not prejudice re-arrest and extradition of the accused if a request for extradition is received subsequently." Obviously, an extradition proceeding, while ostensibly administrative, bears all earmarks of a criminal process. A potential extraditee may be subjected to arrest, to a prolonged restraint of liberty, and forced to transfer to the demanding state following the proceedings. "Temporary detention" may be a necessary step in the process of extradition, but the length of time of the detention should be reasonable.

Records show that private respondent was arrested on September 23, 1999, and remained incarcerated until December 20, 2001, when the trial court ordered his admission to bail. In other words, he had been detained for over two (2) years without having been convicted of any crime. By any standard, such an extended period of detention is a serious deprivation of his fundamental right to liberty. In fact, it was this prolonged deprivation of liberty which prompted the extradition court to grant him bail. While our extradition law does not provide for the grant of bail to an extraditee, however, there is no provision prohibiting him or her from filing a motion for bail, a right to due process under the Constitution. The applicable standard of due process, however, should not be the same as that in criminal proceedings. In the latter, the standard of due process is premised on the presumption of innocence of the accused. As Purganancorrectly points out, it is from this major premise that the ancillary presumption in favor of admitting to bail arises. Bearing in mind the purpose of extradition proceedings, the premise behind the issuance of the arrest warrant and the "temporary detention" is the possibility of flight of the potential extraditee. This is based on the assumption that such extraditee is a fugitive from justice.15 Given the foregoing, the prospective extraditee thus bears the onus probandi of showing that he or she is not a flight risk and should be granted bail. The time-honored principle of pacta sunt servanda demands that the Philippines honor its obligations under the Extradition Treaty it entered into with the Hong Kong Special Administrative Region. Failure to comply with these obligations is a setback in our foreign relations and defeats the purpose of extradition. However, it does not necessarily mean that in keeping with its treaty obligations, the Philippines should diminish a potential extraditees rights to life, liberty, and due process. More so, where these rights are guaranteed, not only by our Constitution, but also by international conventions, to which the Philippines is a party. We should not, therefore, deprive an extraditee of his right to apply for bail, provided that a certain standard for the grant is satisfactorily met. An extradition proceeding being sui generis, the standard of proof required in granting or denying bail can neither be the proof beyond reasonable doubt in criminal cases nor the standard of proof of preponderance of evidence in civil cases. While administrative in character, the standard of substantial evidence used in administrative cases cannot likewise apply given the object of extradition law which is to prevent the prospective extraditee from fleeing our jurisdiction. In his Separate Opinion in Purganan, then Associate Justice, now Chief Justice Reynato S. Puno, proposed that a new standard which he termed "clear and convincing evidence" should be used in granting bail in extradition cases. According to him, this standard should be lower than proof beyond reasonable doubt but higher than preponderance of evidence. The potential extraditee must prove by "clear and convincing evidence" that he is not a flight risk and will abide with all the orders and processes of the extradition court. In this case, there is no showing that private respondent presented evidence to show that he is not a flight risk. Consequently, this case should be remanded to the trial court to determine whether private respondent may be granted bail on the basis of "clear and convincing evidence." WHEREFORE, we DISMISS the petition. This case is REMANDED to the trial court to determine whether private respondent is entitled to bail on the basis of "clear and convincing evidence." If not, the trial court should order the cancellation of his bail bond and his immediate detention; and thereafter, conduct the extradition proceedings with dispatch. SO ORDERED.

A.M. No. P-09-2685 September 3, 2009 [OCA-IPI No. 08-2839-P] P/SUPT. RENE MACALING ORBE, Complainant, vs. MARCOS U. DIGANDANG, Process Server, Regional Trial Court, Branch 14, Cotabato City, Respondent. DECISION PER CURIAM: The issue for resolution is whether respondent Marcos U. Digandang, Process Server of the Regional Trial Court, Branch 14 of Cotabato City, is guilty of Grave Misconduct and Conduct Prejudicial to the Best Interest of the Service for illegally releasing the accused in the case of People of the Philippines v. Ombudsman Indag.1 On February 14, 2008, the operatives of the Philippine Drug Enforcement Agency-Autonomous Region of Muslim Mindanao (PDEA-ARMM) arrested Abdulsalam Indag and Baida Manabilang for alleged violation of Sections 5, 11 and 15 of Republic Act (R.A.) No. 9165 or The Dangerous Drugs Act of 2002, and were thus committed to the provincial jail. On February 15, 2008, the accused were released from the custody of the Officer-in-Charge (OIC) Provincial Warden, Laman P. Malikol, on the basis of the Custody Receipt signed by the respondent. In his complaint, Police Superintendent Rene Macaling Orbe, Acting Regional Director of PDEA-ARMM, alleges that the release was illegal because the accused were charged with a non-bailable offense.1avvphi1 Respondent admits in his Comment that the accused were his relatives and that he interceded for their release because they allegedly needed medical attention. After their medical check up, they were immediately brought back to their detention cell. He also claims that he did not file a motion for temporary release, since he could not secure the services of a lawyer, it being a Friday and it was already past 3:00 p.m. Laman P. Malikol, the OIC-Provincial Warden, likewise admitted that he temporarily relinquished custody over the accused to herein respondent for humanitarian reasons. In its Report dated September 19, 2008, the Office of the Court Administrator (OCA) found respondent guilty as charged and recommended his dismissal from service effective immediately with forfeiture of all benefits, except accrued leave credits, with prejudice to his re-employment in any branch or instrumentality of the government, including government- owned or controlled corporation. The case against the OIC Provincial Warden was recommended to be forwarded to the Department of Justice for appropriate action. We adopt the findings and recommendation of the OCA. It is undisputed that accused were charged with a non-bailable offense; that they were released from detention on the basis merely of the Custody Receipt signed by the respondent, which was a clear violation of Section 3, Rule 114 of the Rules of Court which explicitly provides that "no person under detention by legal process shall be released or transferred except upon order of the court or when he is admitted to bail." As a court employee, respondent is cognizant of this requirement as in fact he admitted in his Comment that a motion for temporary release should have been filed in court. We cannot lend credence to respondents allegation that he was unable to file the motion because he could not immediately avail of the services of a lawyer as it was a Friday and already past 3:00 p.m. Assuming that he could not immediately hire the

services of a private lawyer, he could always go to the Public Attorneys Office (PAO) for legal assistance. At 3:00 p.m., it is inconceivable that no PAO lawyer would be available. The contention that respondent interceded for the release of his accused-relatives for humanitarian reasons is self-serving and deserves no consideration. As correctly noted by the OCA, no medical certificate was presented to substantiate the claim that the accused needed immediate medical attention. Moreover, the fact that the accused were returned to their detention cell soon after the medical check up does not justify respondents culpability or mitigate his liability. Neither could it be considered a badge of good faith. An infraction had been committed and the accuseds return to incarceration does not extinguish the violation. As a court employee, respondent is expected to follow the law and the rules and procedures prescribed by the Court. The facts in this case clearly indicate that respondent deliberately circumvented the law to favor his accused-relatives. This is a grave misconduct which merits the penalty of dismissal. WHEREFORE, the Court finds respondent Marcos U. Digandang, Process Server, Regional Trial Court, Branch 14, Cotabato City, GUILTY of GRAVE MISCONDUCT and is hereby sentenced to suffer the penalty of DISMISSAL from service, with forfeiture of all benefits, except accrued leave credits, and with prejudice to reemployment in any branch or instrumentality of the government, including government-owned or controlled corporations. The case against Laman P. Malikol, OIC-Provincial Warden, Maguindanao Provincial Jail, is FORWARDED to the Department of Justice for appropriate action. SO ORDERED.

G.R. No. 175457

July 6, 2011

benefits and advantage to detainee Mayor Francisco Adalim to the prejudice of the government. CONTRARY TO LAW. BAIL BOND RECOMMENDED: P30,000.00 each.13 On arraignment, petitioners pleaded not guilty and posted bail. At the pre-trial, petitioners admitted the allegations in the Information. They reason, however, that Adalims transfer was justified considering the imminent threats upon his person and the dangers posed by his detention at the provincial jail. According to petitioners, Adalims sister, Atty. Juliana A. AdalimWhite, had sent numerous prisoners to the same jail where Mayor Adalim was to be held. Consequently, the prosecution no longer offered testimonial evidence and rested its case after the admission of its documentary exhibits. Petitioners filed a Motion for Leave to File Demurrer to Evidence with Reservation to Present Evidence in Case of Denial14 but the same was denied. At the trial, petitioners presented three witnesses: petitioner Ambil, Jr., Atty. Juliana A. Adalim-White and Mayor Francisco C. Adalim. Petitioner Ambil, Jr. testified that he was the Governor of Eastern Samar from 1998 to 2001. According to him, it was upon the advice of Adalims lawyers that he directed the transfer of Adalims detention to his home. He cites poor security in the provincial jail as the primary reason for taking personal custody of Adalim considering that the latter would be in the company of inmates who were put away by his sister and guards identified with his political opponents.15 For her part, Atty. White stated that she is the District Public Attorney of Eastern Samar and the sister of Mayor Adalim. She recounted how Mayor Adalim was arrested while they were attending a wedding in Sulat, Eastern Samar, on September 6, 1998. According to Atty. White, she sought the alternative custody of Gov. Ambil, Jr. after Provincial Warden and herein petitioner Apelado, Sr. failed to guarantee the mayors safety.16 Meanwhile, Francisco Adalim introduced himself as the Mayor of Taft, Eastern Samar. He confirmed his arrest on September 6, 1998 in connection with a murder case filed against him in the Regional Trial Court (RTC) of Borongan, Eastern Samar. Adalim confirmed Atty. Whites account that he spotted inmates who served as bodyguards for, or who are associated with, his political rivals at the provincial jail. He also noticed a prisoner, Roman Akyatan, gesture to him with a raised clenched fist. Sensing danger, he called on his sister for help. Adalim admitted staying at Ambil, Jr.s residence for almost three months before he posted bail after the charge against him was downgraded to homicide.17 Petitioner Apelado, Sr. testified that he was the Provincial Jail Warden of Eastern Samar. He recalls that on September 6, 1998, SPO3 Felipe Balano fetched him at home to assist in the arrest of Mayor Adalim. Allegedly, Atty. White was contesting the legality of Mayor Adalims arrest and arguing with the jail guards against booking him for detention. At the provincial jail, petitioner was confronted by Atty. White who informed him that he was under the governor, in the latters capacity as a provincial jailer. Petitioner claims that it is for this reason that he submitted to the governors order to relinquish custody of Adalim.18 Further, petitioner Apelado, Sr. described the physical condition of the jail to be dilapidated and undermanned. According to him, only two guards were incharge of looking after 50 inmates. There were two cells in the jail, each housing 25 inmates, while an isolation cell of 10 square meters was unserviceable at the time. Also, there were several nipa huts within the perimeter for use during conjugal visits.19

RUPERTO A. AMBIL, JR., Petitioner, vs. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, Respondent. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 175482 ALEXANDRINO R. APELADO, SR., Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION VILLARAMA, JR., J.: Before us are two consolidated petitions for review on certiorari filed by petitioner Ruperto A. Ambil, Jr.1 and petitioner Alexandrino R. Apelado Sr.2 assailing the Decision3 promulgated on September 16, 2005 and Resolution4 dated November 8, 2006 of the Sandiganbayan in Criminal Case No. 25892. The present controversy arose from a letter5 of Atty. David B. Loste, President of the Eastern Samar Chapter of the Integrated Bar of the Philippines (IBP), to the Office of the Ombudsman, praying for an investigation into the alleged transfer of then Mayor Francisco Adalim, an accused in Criminal Case No. 10963 for murder, from the provincial jail of Eastern Samar to the residence of petitioner, then Governor Ruperto A. Ambil, Jr. In a Report6dated January 4, 1999, the National Bureau of Investigation (NBI) recommended the filing of criminal charges against petitioner Ambil, Jr. for violation of Section 3(e)7 of Republic Act (R.A.) No. 3019, otherwise known as theAnti-Graft and Corrupt Practices Act, as amended. On September 22, 1999, the new President of the IBP, Eastern Samar Chapter, informed the Ombudsman that the IBP is no longer interested in pursuing the case against petitioners. Thus, he recommended the dismissal of the complaint against petitioners.8 Nonetheless, in an Information9 dated January 31, 2000, petitioners Ambil, Jr. and Alexandrino R. Apelado, Sr. were charged with violation of Section 3(e) of R.A. No. 3019, together with SPO3 Felipe A. Balano. Upon reinvestigation, the Office of the Ombudsman issued a Memorandum10 dated August 4, 2000, recommending the dismissal of the complaint as regards Balano and the amendment of the Information to include the charge of Delivering Prisoners from Jail under Article 15611 of the Revised Penal Code, as amended, (RPC) against the remaining accused. The Amended Information12 reads: That on or about the 6th day of September 1998, and for sometime prior [or] subsequent thereto, [in] the Municipality of Borongan, Province of Eastern Samar, Philippines, and within the jurisdiction of this Honorable Court, [the] above-named accused, Ruperto A. Ambil, Jr.[,] being then the Provincial Governor of Eastern Samar, and Alexandrino R. Apelado, being then the Provincial Warden of Eastern Samar, both having been public officers, duly elected, appointed and qualified as such, committing the offense in relation to office, conniving and confederating together and mutually helping x x x each other, with deliberate intent, manifest partiality and evident bad faith, did then and there wilfully, unlawfully and criminally order and cause the release from the Provincial Jail of detention prisoner Mayor Francisco Adalim, accused in Criminal Case No. 10963, for Murder, by virtue of a warrant of Arrest issued by Honorable Arnulfo P. Bugtas, Presiding Judge, RTC-Branch 2, Borongan, Eastern Samar, and thereafter placed said detention prisoner (Mayor Francisco Adalim) under accused RUPERTO A. AMBIL, JR.s custody, by allowing said Mayor Adalim to stay at accused Ambils residence for a period of Eighty-Five (85) days, more or less which act was done without any court order, thus accused in the performance of official functions had given unwarranted

On September 16, 2005, the Sandiganbayan, First Division, promulgated the assailed Decision20 finding petitioners guilty of violating Section 3(e) of R.A. No. 3019. The court ruled that in moving Adalim to a private residence, petitioners have conspired to accord him unwarranted benefits in the form of more comfortable quarters with access to television and other privileges that other detainees do not enjoy. It stressed that under the Rules, no person under detention by legal process shall be released or transferred except upon order of the court or when he is admitted to bail.21 The Sandiganbayan brushed aside petitioners defense that Adalims transfer was made to ensure his safety. It observed that petitioner Ambil, Jr. did not personally verify any actual threat on Adalims life but relied simply on the advice of Adalims lawyers. The Sandiganbayan also pointed out the availability of an isolation cell and nipa huts within the 10-meter-high perimeter fence of the jail which could have been used to separate Adalim from other prisoners. Finally, it cited petitioner Ambil, Jr.s failure to turn over Adalim despite advice from Assistant Secretary Jesus Ingeniero of the Department of Interior and Local Government. Consequently, the Sandiganbayan sentenced petitioner Ambil, Jr. to an indeterminate penalty of imprisonment for nine (9) years, eight (8) months and one (1) day to twelve (12) years and four (4) months. In favor of petitioner Apelado, Sr., the court appreciated the incomplete justifying circumstance of obedience to a superior order and sentenced him to imprisonment for six (6) years and one (1) month to nine (9) years and eight (8) months. Hence, the present petitions. Petitioner Ambil, Jr. advances the following issues for our consideration: I WHETHER OR NOT SECTION 3(e) REPUBLIC ACT NO. 3019, AS AMENDED, APPLIES TO PETITIONERS CASE BEFORE THE SANDIGANBAYAN. II WHETHER OR NOT A PUBLIC OFFICER SUCH AS PETITIONER IS A PRIVATE PARTY FOR PURPOSES OF SECTION 3(e), REPUBLIC ACT NO. 3019, AS AMENDED. III WHETHER OR NOT PETITIONER ACTED WITH DELIBERATE INTENT, MANIFEST PARTIALITY, EVIDENT BAD FAITH OR GROSS INEXCUSABLE NEGLIGENCE IN THE CONTEXT OF SAID SECTION 3(e). IV WHETHER OR NOT PETITIONER AS PROVINCIAL GOVERNOR AND JAILER UNDER SECTIONS 1730 AND 1733, ARTICLE III, CHAPTER 45 OF THE ADMINISTRATIVE CODE OF 1917 AND SECTION 61, CHAPTER V, REPUBLIC ACT 6975 HAS THE AUTHORITY TO TAKE CUSTODY OF A DETENTION PRISONER. V WHETHER OR NOT PETITIONER IS ENTITLED TO THE JUSTIFYING CIRCUMSTANCE OF FULFILLMENT OF A DUTY OR THE LAWFUL EXERCISE OF A RIGHT OR OFFICE.

VI WHETHER OR NOT PETITIONER SHOULD HAVE BEEN ACQUITTED BECAUSE THE PROSECUTION EVIDENCE DID NOT ESTABLISH HIS GUILT BEYOND REASONABLE DOUBT.22 For his part, petitioner Apelado, Sr. imputes the following errors on the Sandiganbayan: I THERE WAS MISAPPREHENSION OF FACTS AND/OR MISAPPLICATION OF THE LAW AND JURISPRUDENCE IN CONVICTING ACCUSED APELADO, EITHER AS PRINCIPAL OR IN CONSPIRACY WITH HIS CO-ACCUSED AMBIL. II IN THE ABSENCE OF COMPETENT PROOF BEYOND REASONABLE DOUBT OF CONSPIRACY BETWEEN ACCUSED AMBIL AND HEREIN PETITIONER, THE LATTER SHOULD BE ACCORDED FULL CREDIT FOR THE JUSTIFYING CIRCUMSTANCE UNDER PARAGRAPH 6, ARTICLE 11 OF THE REVISED PENAL CODE. III THE COURT A QUOS BASIS IN CONVICTING BOTH ACCUSED AMBIL AND HEREIN PETITIONER OF HAVING GIVEN MAYOR ADALIM "UNWARRANTED BENEFITS AND ADVANTAGE TO THE PREJUDICE x x x OF THE GOVERNMENT IS, AT THE MOST, SPECULATIVE.23 The issues raised by petitioner Ambil, Jr. can be summed up into three: (1) Whether he is guilty beyond reasonable doubt of violating Section 3(e), R.A. No. 3019; (2) Whether a provincial governor has authority to take personal custody of a detention prisoner; and (3) Whether he is entitled to the justifying circumstance of fulfillment of duty under Article 11(5)24 of the RPC. Meanwhile, petitioner Apelado, Sr.s assignment of errors can be condensed into two: (1) Whether he is guilty beyond reasonable doubt of violating Section 3(e), R.A. No. 3019; and (2) Whether he is entitled to the justifying circumstance of obedience to an order issued by a superior for some lawful purpose under Article 11(6)25 of the RPC. Fundamentally, petitioner Ambil, Jr. argues that Section 3(e), R.A. No. 3019 does not apply to his case because the provision contemplates only transactions of a pecuniary nature. Since the law punishes a public officer who extends unwarranted benefits to a private person, petitioner avers that he cannot be held liable for extending a favor to Mayor Adalim, a public officer. Further, he claims good faith in taking custody of the mayor pursuant to his duty as a "Provincial Jailer" under the Administrative Code of 1917. Considering this, petitioner believes himself entitled to the justifying circumstance of fulfillment of duty or lawful exercise of duty. Petitioner Apelado, Sr., on the other hand, denies allegations of conspiracy between him and petitioner Ambil, Jr. Petitioner Apelado, Sr. defends that he was merely following the orders of a superior when he transferred the detention of Adalim. As well, he invokes immunity from criminal liability. For the State, the Office of the Special Prosecutor (OSP) points out the absence of jurisprudence that restricts the application of Section 3(e), R.A. No. 3019 to transactions of a pecuniary nature. The OSP explains that it is enough to show that in performing their functions, petitioners have accorded undue preference to Adalim for liability to attach under the provision. Further, the

OSP maintains that Adalim is deemed a private party for purposes of applying Section 3(e), R.A. No. 3019 because the unwarranted benefit redounded, not to his person as a mayor, but to his person as a detention prisoner accused of murder. It suggests further that petitioners were motivated by bad faith as evidenced by their refusal to turn over Adalim despite instruction from Asst. Sec. Ingeniero. The OSP also reiterates petitioners lack of authority to take custody of a detention prisoner without a court order. Hence, it concludes that petitioners are not entitled to the benefit of any justifying circumstance. After a careful review of this case, the Court finds the present petitions bereft of merit. Petitioners were charged with violation of Section 3(e) of R.A. No. 3019 or the Anti-Graft and Corrupt Practices Actwhich provides: Section. 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: xxxx (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. In order to hold a person liable under this provision, the following elements must concur: (1) the accused must be a public officer discharging administrative, judicial or official functions; (2) he must have acted with manifest partiality, evident bad faith or gross inexcusable negligence; and (3) his action caused any undue injury to any party, including the government, or gave any private party unwarranted benefits, advantage or preference in the discharge of his functions.26 As to the first element, there is no question that petitioners are public officers discharging official functions and that jurisdiction over them lay with the Sandiganbayan. Jurisdiction of the Sandiganbayan over public officers charged with violation of the Anti-Graft Law is provided under Section 4 of Presidential Decree No. 1606,27 as amended by R.A. No. 8249.28 The pertinent portions of Section 4, P.D. No. 1606, as amended, read as follows: SEC. 4. Jurisdiction.The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense: (1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade 27 and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758),specifically including: (a) Provincial governors, vice-governors, members of the sangguniang panlalawigan and provincial treasurers, assessors, engineers and other provincial department heads[;] xxxx In cases where none of the accused are occupying positions corresponding to Salary Grade 27 or higher, as prescribed in the said Republic Act No. 6758, or military and PNP officers

mentioned above, exclusive original jurisdiction thereof shall be vested in the proper regional trial court, metropolitan trial court, municipal trial court, and municipal circuit trial court, as the case may be, pursuant to their respective jurisdiction as provided in Batas Pambansa Blg. 129, as amended. xxxx Thus, the jurisdiction of the Sandiganbayan over petitioner Ambil, Jr. is beyond question. The same is true as regards petitioner Apelado, Sr. As to him, a Certification29 from the Provincial Government Department Head of the HRMO shows that his position as Provincial Warden is classified as Salary Grade 22. Nonetheless, it is only when none of the accused are occupying positions corresponding to salary grade 27 or higher shall exclusive jurisdiction be vested in the lower courts. Here, petitioner Apelado, Sr. was charged as a co-principal with Governor Ambil, Jr., over whose position the Sandiganbayan has jurisdiction. Accordingly, he was correctly tried jointly with said public officer in the proper court which had exclusive original jurisdiction over them the Sandiganbayan. The second element, for its part, describes the three ways by which a violation of Section 3(e) of R.A. No. 3019 may be committed, that is, through manifest partiality, evident bad faith or gross inexcusable negligence. In Sison v. People,30 we defined "partiality," "bad faith" and "gross negligence" as follows: "Partiality" is synonymous with "bias" which "excites a disposition to see and report matters as they are wished for rather than as they are." "Bad faith does not simply connote bad judgment or negligence; it imputes a dishonest purpose or some moral obliquity and conscious doing of a wrong; a breach of sworn duty through some motive or intent or ill will; it partakes of the nature of fraud." "Gross negligence has been so defined as negligence characterized by the want of even slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but wilfully and intentionally with a conscious indifference to consequences in so far as other persons may be affected. It is the omission of that care which even inattentive and thoughtless men never fail to take on their own property." x x x31 In this case, we find that petitioners displayed manifest partiality and evident bad faith in transferring the detention of Mayor Adalim to petitioner Ambil, Jr.s house. There is no merit to petitioner Ambil, Jr.s contention that he is authorized to transfer the detention of prisoners by virtue of his power as the "Provincial Jailer" of Eastern Samar. Section 28 of the Local Government Code draws the extent of the power of local chief executives over the units of the Philippine National Police within their jurisdiction: SEC. 28. Powers of Local Chief Executives over the Units of the Philippine National Police.The extent of operational supervision and control of local chief executives over the police force, fire protection unit, and jail management personnel assigned in their respective jurisdictions shall be governed by the provisions of Republic Act Numbered Sixty-nine hundred seventy-five (R.A. No. 6975), otherwise known as "The Department of the Interior and Local Government Act of 1990," and the rules and regulations issued pursuant thereto. In particular, Section 61, Chapter 5 of R.A. No. 697532 on the Bureau of Jail Management and Penology provides: Sec. 61. Powers and Functions. - The Jail Bureau shall exercise supervision and control over all city and municipal jails. The provincial jails shall be supervised and controlled by the provincial government within its jurisdiction, whose expenses shall be subsidized by the National Government for not more than three (3) years after the effectivity of this Act.

The power of control is the power of an officer to alter or modify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter.33 An officer in control lays down the rules in the doing of an act. If they are not followed, he may, in his discretion, order the act undone or re-done by his subordinate or he may even decide to do it himself.34 On the other hand, the power of supervision means "overseeing or the authority of an officer to see to it that the subordinate officers perform their duties."35 If the subordinate officers fail or neglect to fulfill their duties, the official may take such action or step as prescribed by law to make them perform their duties. Essentially, the power of supervision means no more than the power of ensuring that laws are faithfully executed, or that subordinate officers act within the law.36 The supervisor or superintendent merely sees to it that the rules are followed, but he does not lay down the rules, nor does he have discretion to modify or replace them.37 Significantly, it is the provincial government and not the governor alone which has authority to exercise control and supervision over provincial jails. In any case, neither of said powers authorizes the doing of acts beyond the parameters set by law. On the contrary, subordinates must be enjoined to act within the bounds of law. In the event that the subordinate performs an act ultra vires, rules may be laid down on how the act should be done, but always in conformity with the law. In a desperate attempt to stretch the scope of his powers, petitioner Ambil, Jr. cites Section 1731, Article III of theAdministrative Code of 1917 on Provincial jails in support. Section 1731 provides: SEC. 1731. Provincial governor as keeper of jail.The governor of the province shall be charged with the keeping of the provincial jail, and it shall be his duty to administer the same in accordance with law and the regulations prescribed for the government of provincial prisons. The immediate custody and supervision of the jail may be committed to the care of a jailer to be appointed by the provincial governor. The position of jailer shall be regarded as within the unclassified civil service but may be filled in the manner in which classified positions are filled, and if so filled, the appointee shall be entitled to all the benefits and privileges of classified employees, except that he shall hold office only during the term of office of the appointing governor and until a successor in the office of the jailer is appointed and qualified, unless sooner separated. The provincial governor shall, under the direction of the provincial board and at the expense of the province, supply proper food and clothing for the prisoners; though the provincial board may, in its discretion, let the contract for the feeding of the prisoners to some other person. (Emphasis supplied.) This provision survived the advent of the Administrative Code of 1987. But again, nowhere did said provision designate the provincial governor as the "provincial jailer," or even slightly suggest that he is empowered to take personal custody of prisoners. What is clear from the cited provision is that the provincial governors duty as a jail keeper is confined to the administration of the jail and the procurement of food and clothing for the prisoners. After all, administrative acts pertain only to those acts which are necessary to be done to carry out legislative policies and purposes already declared by the legislative body or such as are devolved upon it38 by the Constitution. Therefore, in the exercise of his administrative powers, the governor can only enforce the law but not supplant it. Besides, the only reference to a transfer of prisoners in said article is found in Section 173739 under which prisoners may be turned over to the jail of the neighboring province in case the provincial jail be insecure or insufficient to accommodate all provincial prisoners. However, this provision has been superseded by Section 3, Rule 114 of the Revised Rules of Criminal Procedure, as amended. Section 3, Rule 114 provides:

SEC. 3. No release or transfer except on court order or bail.-No person under detention by legal process shall be released or transferred except upon order of the court or when he is admitted to bail. Indubitably, the power to order the release or transfer of a person under detention by legal process is vested in the court, not in the provincial government, much less the governor. This was amply clarified by Asst. Sec. Ingeniero in his communication40 dated October 6, 1998 addressed to petitioner Ambil, Jr. Asst. Sec. Ingeniero wrote: 06 October 1996 GOVERNOR RUPERTO AMBIL Provincial Capitol Borongan, Eastern Samar Dear Sir: This has reference to the letter of Atty. Edwin B. Docena, and the reports earlier received by this Department, relative to your alleged action in taking into custody Mayor Francisco "Aising" Adalim of Taft, that province, who has been previously arrested by virtue by a warrant of arrest issued in Criminal Case No. 10963. If the report is true, it appears that your actuation is not in accord with the provision of Section 3, Rule 113 of the Rules of Court, which mandates that an arrested person be delivered to the nearest police station or jail. Moreover, invoking Section 61 of RA 6975 as legal basis in taking custody of the accused municipal mayor is misplaced. Said section merely speaks of the power of supervision vested unto the provincial governor over provincial jails. It does not, definitely, include the power to take in custody any person in detention. In view of the foregoing, you are hereby enjoined to conduct yourself within the bounds of law and to immediately deliver Mayor Adalim to the provincial jail in order to avoid legal complications. Please be guided accordingly. Very truly yours, (SGD.) JESUS I. INGENIERO Assistant Secretary Still, petitioner Ambil, Jr. insisted on his supposed authority as a "provincial jailer." Said petitioners usurpation of the court's authority, not to mention his open and willful defiance to official advice in order to accommodate a former political party mate,41 betray his unmistakable bias and the evident bad faith that attended his actions. Likewise amply established beyond reasonable doubt is the third element of the crime. As mentioned above, in order to hold a person liable for violation of Section 3(e), R.A. No. 3019, it is required that the act constituting the offense consist of either (1) causing undue injury to any party, including the government, or (2) giving any private party any unwarranted benefits, advantage or preference in the discharge by the accused of his official, administrative or judicial functions. In the case at hand, the Information specifically accused petitioners of giving unwarranted benefits and advantage to Mayor Adalim, a public officer charged with murder, by causing his release from prison and detaining him instead at the house of petitioner Ambil, Jr. Petitioner Ambil, Jr. negates the applicability of Section 3(e), R.A. No. 3019 in this case on two points. First,

Section 3(e) is not applicable to him allegedly because the last sentence thereof provides that the "provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses, permits or other concessions" and he is not such government officer or employee. Second, the purported unwarranted benefit was accorded not to a private party but to a public officer. However, as regards his first contention, it appears that petitioner Ambil, Jr. has obviously lost sight, if he is not altogether unaware, of our ruling in Mejorada v. Sandiganbayan42 where we held that a prosecution for violation of Section 3(e) of the Anti-Graft Law will lie regardless of whether or not the accused public officer is "charged with the grant of licenses or permits or other concessions." Following is an excerpt of what we said in Mejorada, Section 3 cited above enumerates in eleven subsections the corrupt practices of any public officers (sic) declared unlawful. Its reference to "any public officer" is without distinction or qualification and it specifies the acts declared unlawful. We agree with the view adopted by the Solicitor General that the last sentence of paragraph [Section 3] (e) is intended to make clear the inclusion of officers and employees of officers (sic) or government corporations which, under the ordinary concept of "public officers" may not come within the term. It is a strained construction of the provision to read it as applying exclusively to public officers charged with the duty of granting licenses or permits or other concessions.43 (Italics supplied.) In the more recent case of Cruz v. Sandiganbayan,44 we affirmed that a prosecution for violation of said provision will lie regardless of whether the accused public officer is charged with the grant of licenses or permits or other concessions.45 Meanwhile, regarding petitioner Ambil, Jr.s second contention, Section 2(b) of R.A. No. 3019 defines a "public officer" to include elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exemption service receiving compensation, even nominal from the government. Evidently, Mayor Adalim is one. But considering that Section 3(e) of R.A. No. 3019 punishes the giving by a public officer of unwarranted benefits to a private party, does the fact that Mayor Adalim was the recipient of such benefits take petitioners case beyond the ambit of said law? We believe not. In drafting the Anti-Graft Law, the lawmakers opted to use "private party" rather than "private person" to describe the recipient of the unwarranted benefits, advantage or preference for a reason. The term "party" is a technical word having a precise meaning in legal parlance46 as distinguished from "person" which, in general usage, refers to a human being.47 Thus, a private person simply pertains to one who is not a public officer. While a private party is more comprehensive in scope to mean either a private person or a public officer acting in a private capacity to protect his personal interest. In the present case, when petitioners transferred Mayor Adalim from the provincial jail and detained him at petitioner Ambil, Jr.s residence, they accorded such privilege to Adalim, not in his official capacity as a mayor, but as a detainee charged with murder. Thus, for purposes of applying the provisions of Section 3(e), R.A. No. 3019, Adalim was a private party. Moreover, in order to be found guilty under the second mode, it suffices that the accused has given unjustified favor or benefit to another in the exercise of his official, administrative or judicial functions.48 The word "unwarranted" means lacking adequate or official support; unjustified; unauthorized or without justification or adequate reason. "Advantage" means a more favorable or improved position or condition; benefit, profit or gain of any kind; benefit from some course of action. "Preference" signifies priority or higher evaluation or desirability; choice or estimation above another.49

Without a court order, petitioners transferred Adalim and detained him in a place other than the provincial jail. The latter was housed in much more comfortable quarters, provided better nourishment, was free to move about the house and watch television. Petitioners readily extended these benefits to Adalim on the mere representation of his lawyers that the mayors life would be put in danger inside the provincial jail. As the Sandiganbayan ruled, however, petitioners were unable to establish the existence of any risk on Adalims safety. To be sure, the latter would not be alone in having unfriendly company in lockup. Yet, even if we treat Akyatans gesture of raising a closed fist at Adalim as a threat of aggression, the same would still not constitute a special and compelling reason to warrant Adalims detention outside the provincial jail. For one, there were nipa huts within the perimeter fence of the jail which could have been used to separate Adalim from the rest of the prisoners while the isolation cell was undergoing repair. Anyhow, such repair could not have exceeded the 85 days that Adalim stayed in petitioner Ambil, Jr.s house. More importantly, even if Adalim could have proven the presence of an imminent peril on his person to petitioners, a court order was still indispensable for his transfer. The foregoing, indeed, negates the application of the justifying circumstances claimed by petitioners. Specifically, petitioner Ambil, Jr. invokes the justifying circumstance of fulfillment of duty or lawful exercise of right or office. Under paragraph 5, Article 11 of the RPC, any person who acts in the fulfillment of a duty or in the lawful exercise of a right or office does not incur any criminal liability. In order for this justifying circumstance to apply, two requisites must be satisfied: (1) the accused acted in the performance of a duty or in the lawful exercise of a right or office; and (2) the injury caused or the offense committed be the necessary consequence of the dueperformance of duty or the lawful exercise of such right or office.50 Both requisites are lacking in petitioner Ambil, Jr.s case. As we have earlier determined, petitioner Ambil, Jr. exceeded his authority when he ordered the transfer and detention of Adalim at his house. Needless to state, the resulting violation of the AntiGraft Law did not proceed from the due performance of his duty or lawful exercise of his office. In like manner, petitioner Apelado, Sr. invokes the justifying circumstance of obedience to an order issued for some lawful purpose. Under paragraph 6, Article 11 of the RPC, any person who acts in obedience to an order issued by a superior for some lawful purpose does not incur any criminal liability. For this justifying circumstance to apply, the following requisites must be present: (1) an order has been issued by a superior; (2) such order must be for some lawful purpose; and (3) the means used by the subordinate to carry out said order is lawful.51 Only the first requisite is present in this case. While the order for Adalims transfer emanated from petitioner Ambil, Jr., who was then Governor, neither said order nor the means employed by petitioner Apelado, Sr. to carry it out was lawful. In his capacity as the Provincial Jail Warden of Eastern Samar, petitioner Apelado, Sr. fetched Mayor Adalim at the provincial jail and, unarmed with a court order, transported him to the house of petitioner Ambil, Jr. This makes him liable as a principal by direct participation under Article 17(1)52 of the RPC. An accepted badge of conspiracy is when the accused by their acts aimed at the same object, one performing one part of and another performing another so as to complete it with a view to the attainment of the same object, and their acts although apparently independent were in fact concerted and cooperative, indicating closeness of personal association, concerted action and concurrence of sentiments.53 Conspiracy was sufficiently demonstrated by petitioner Apelado, Sr.s willful cooperation in executing petitioner Ambil, Jr.s order to move Adalim from jail, despite the absence of a court order. Petitioner Apelado, Sr., a law graduate, cannot hide behind the

cloak of ignorance of the law. The Rule requiring a court order to transfer a person under detention by legal process is elementary. Truth be told, even petitioner governor who is unschooled in the intricacies of the law expressed reservations on his power to transfer Adalim. All said, the concerted acts of petitioners Ambil, Jr. and Apelado, Sr. resulting in the violation charged, makes them equally responsible as conspirators. As regards the penalty imposed upon petitioners, Section 9(a) of R.A. No. 3019 punishes a public officer or a private person who violates Section 3 of R.A. No. 3019 with imprisonment for not less than six (6) years and one (1) month to not more than fifteen (15) years and perpetual disqualification from public office. Under Section 1 of the Indeterminate Sentence Law or Act No. 4103, as amended by Act No. 4225, if the offense is punished by a special law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same.1avvphi1 Thus, the penalty imposed by the Sandiganbayan upon petitioner Ambil, Jr. of imprisonment for nine (9) years, eight (8) months and one (1) day to twelve (12) years and four (4) months is in accord with law. As a co-principal without the benefit of an incomplete justifying circumstance to his credit, petitioner Apelado, Sr. shall suffer the same penalty. WHEREFORE, the consolidated petitions are DENIED. The Decision of the Sandiganbayan in Criminal Case No. 25892 is AFFIRMED WITH MODIFICATION. We find petitioners Ruperto A. Ambil, Jr. and Alexandrino R. Apelado, Sr. guilty beyond reasonable doubt of violating Section 3(e), R.A. No. 3019. Petitioner Alexandrino R. Apelado, Sr. is, likewise, sentenced to an indeterminate penalty of imprisonment for nine (9) years, eight (8) months and one (1) day to twelve (12) years and four (4) months. With costs against the petitioners. SO ORDERED.

A.M. No. RTJ-03-1749 April 4, 2007 [Formerly OCA IPI-01-1342-RTJ] EDUARDO SAN MIGUEL, Complainant, vs. JUDGE BONIFACIO SANZ MACEDA, Presiding Judge, Regional Trial Court, Branch 275, Las Pias City,Respondent. RESOLUTION AUSTRIA-MARTINEZ, J.: Before us is the Complaint-Affidavit1 dated November 28, 2001 of Eduardo M. San Miguel (complainant) charging Judge Bonifacio Sanz Maceda (respondent), Presiding Judge, Regional Trial Court (RTC), Branch 275, Las Pias City with Gross Ignorance of the Law, Manifest Partiality, Gross Misconduct, Grave Abuse of Authority, Evident Bad Faith and Gross Inexcusable Negligence, relative to Criminal Case No. 00-0736, entitled "People of the Philippines v. Eduardo M. San Miguel and Socorro B. Osorio," for Violation of Section 15, Article III, Republic Act (R.A.) No. 6425.2 Complainant was arrested for illegal sale, dispensation, distribution and delivery of .50 grams of methamphetaminehydrochloride, punishable by prision correccional. He jumped bail. On May 10, 2001, then Judge Florentino Alumbres issued a bench warrant and canceled his bail bond in the amount of P60,000.00 and fixed a new bail bond in the amount of P120,000.00. Complainant was arrested on September 8, 2001. On September 12, 2001, the state prosecutor filed a Motion to Cancel Recommended Bail on the ground of reasonable belief and indications pointing to the probability that accused is seriously considering flight from prosecution. The Motion was set for hearing on September 19, 2001. On September 17, 2001, complainant filed an Opposition to the Motion. On the same day, or two (2) days before the scheduled hearing, respondent issued an Order granting the Motion. During the hearing of September 19, 2001, respondent opted to consider complainants Opposition as a motion for reconsideration and merely ordered the prosecutor to file a reply thereto. On November 21, 2001, respondent issued an Order clarifying his Order of September 17, 2001. Complainant comes to this Court alleging that his right to procedural due process was gravely violated when respondent issued the September 17, 2001 Order without giving him the opportunity to comment on the same. The issuance of the September 17, 2001 Order shows respondent's gross ignorance of the law as the offense charged is neither a capital offense nor punishable by reclusion perpetua. His right to bail is not a mere privilege but a constitutionally guaranteed right that cannot be defeated by any order. Clearly, the intendment of the September 17, 2001 Order was to deny him of his constitutional right to bail. The issuance of the November 21, 2001 Order that only the bail recommended by the prosecutor was considered withdrawn did not relieve the respondent of any liability. In his Comment3 dated March 8, 2002, respondent explained that the motion to cancel the prosecutor's recommended bail in Crim. Case No. 00-0736 did not need any hearing because the court could act upon it without prejudicing the rights of the adverse party. When he canceled the bail, the cancellation referred to theP60,000.00 and not the P120,000.00 bail fixed by Judge Alumbres. The September 17, 2001 Order canceling the bail does not speak of the cancellation of the P120,000.00 bail and the same was reaffirmed in a subsequent Order on November 21, 2001. The right of complainant to be heard in the motion to withdraw bail was never violated nor his right to bail impaired. Complainant could have posted the P120,000.00 bail fixed by Judge Alumbres or could have seasonably moved for the lifting of the warrant, but he did not. The Order of cancellation is dated September 17, 2001 while the Information for murder was filed against complainant on September 14, 2001 or three days earlier. Thus, the cancellation was in due course because complainant was already detained for the non-bailable offense of murder three days before the cancellation was ordered.

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In the Agenda Report4 dated September 17, 2002, the Office of the Court Administrator (OCA) submitted its evaluation and recommendation, to wit: EVALUATION: The complaint is meritorious. The complainant is correct in saying that the order dated September 17, 2001 of respondent denied him his right to bail. This order was issued upon motion of the prosecution which motion was quite explicit of what was sought to be cancelled. The motion in part reads: xxx 2. In the said warrant of arrest the Honorable Court recommended bail in the amount of P120,000.00 to secure the provisional release of the accused. Undersigned most respectfully moves for the cancellation of this recommended bail amount due to the actuations of both accused towards the authority of this Honorable Court. xxx PRAYER WHEREFORE, premises considered, it is most respectfully prayed that the allowance for bail granted to the accused to secure their provisional liberty provided in the Warrant of Arrest dated May 10, 2001 be CANCELLED as there is reasonable ground to believe and all indication, point to the probability, that both accused are seriously considering flight from the prosecution of the instant case. x x x It is thus clear that what the prosecution prayed for was the cancellation of the bail of P120,000.00 set by Judge Alumbres in his Warrant of Arrest dated May 10, 2001. This necessarily meant that the prosecution wanted complainant to remain in jail without bail. Hence, when respondent granted the motion in his order dated September 17, 2001, he in effect denied complainant his right to bail. It can not be denied that since complainant was charged with an offense not punishable by death, reclusion perpetua and life imprisonment and since he has not yet been convicted, bail in his case is still a matter of right. (Section 4, Rule 114, Rules of Court) This is true notwithstanding the fact that he previously jumped bail. In such a case, respondent should have increased the amount of bail or set certain conditions to ensure complainant's presence during the trial, but he can not deny altogether complainant's right to bail. xxx In order to prove his point that he never intended to deny respondent his right to bail, respondent used as example Socorro Osorio, the other co-accused, who was able to gain her provisional liberty by posting a bail ofP120,000.00. This is untenable. Ms. Osorio was able to post bail only on November 26, 2001 (Rollo, p. 5) or five (5) days after respondent issued his clarificatory order of November 21, 2001. It is important to recall that the first order of respondent, that dated September 17, 2001, gave the clear impression that bail has been cancelled and from that date up to the time he issued the order dated November 21, 2001 clarifying his position, or a period of two (2) months, complainant stayed in jail because he has lost his right to bail as a result of the patently erroneous and illegal order of respondent Judge. Hence, respondent is liable for gross ignorance of the law for having denied complainant's right to bail in a case where bail was a matter of right. Besides, the prosecution's motion was granted two (2) days before the scheduled date of hearing thereby depriving the accused of his right to due process. RECOMMENDATION: Respectfully submitted for the consideration of the Honorable Court our recommendations that the instant complaint be RE-DOCKETED as a regular administrative matter and respondent be FINED in the amount

of P5,000.00 with a WARNING that commission of a similar offense in the future shall be dealt with more severely.5 In the Resolution of November 27, 2002, the Court required the parties to manifest if they were willing to submit the case for resolution on the basis of the pleadings. Difficulties were encountered in notifying the parties. Finally, on September 18, 2006, respondent manifested his willingness to submit the case for resolution based on the pleadings. In its undated Letter-Reply,6 the Postmaster of Las Pias informed the Court that the letter addressed to complainant under Registry No. 59265 dated June 23, 2005 was returned unserved with the notation "RTS-Deceased." Thus, in the Resolution of January 29, 2007, the Court deemed the case submitted for resolution. The Court agrees with the findings and recommendations of the OCA.1awphi1.nt Section 13, Article III of the 1987 Constitution provides: 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. Section 4, Rule 114 of the Revised Rules of Criminal Procedure provides that before conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment, all persons in custody shall be admitted to bail as a matter of right. Records show that complainant was charged with violation of Section 15, Article III of R.A. No. 6425 which is punishable by prision correccional. Following the provisions of the Constitution and the Revised Rules of Criminal Procedure, complainant is entitled to bail as a matter of right. Records show that the prosecutor's Motion to Cancel Recommended Bail was very precise in its prayer, i.e., that the allowance for bail granted to the accused to secure his provisional liberty provided in the Warrant of Arrest dated May 10, 2001 be canceled as there is reasonable ground to believe and all indications point to the probability that accused is seriously considering flight from the prosecution of the case. Two days before the scheduled date of hearing of the prosecutors Motion, respondent issued the Order dated September 17, 2001, to wit: ORDER Considering the allegations in the Motion to Cancel Recommended Bail filed by the State Prosecutor that both accused are considering flight, especially accused San Miguel who is facing a number of grave criminal charges, and the probability of the accused jumping bail is very high to warrant the cancellation of the recommended bail, and it appearing that the accused x x x jumped bail on May 10, 2001, the x x x motion is GRANTED. The bail recommended xxx is considered withdrawn. SO ORDERED.7 However, respondent continued with the hearing on September 19, 2001. He considered the Opposition to the Motion as a motion for reconsideration of the assailed Order granting the withdrawal by the prosecution of the recommended bail.8 This may have rectified the mistake committed by respondent as the latter took

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into consideration that the accused has a right to due process as much as the State;9 but then, no evidence was adduced to prove that complainant was seriously considering flight from prosecution, which was very critical to the granting or denial of the motion of the prosecution to cancel bail. In his Order dated November 21, 2001, to wit: ORDER The question is whether or not the increased bail of P120,000.00 fixed by x x x Hon. Florentino M. Alumbres, in the Warrant of Arrest he issued on May 10, 2001 x x x was also withdrawn by the Order dated September 17, 2001 granting the prosecution's withdrawal of its recommended bail. The answer is in the negative. On September 19, 2001 Atty. Sebrio xxx manifested that x x x the bail fixed by Judge Alumbres was not affected by the withdrawal of the prosecution's recommended bail. That is correct. Any of the accused, therefore, could have applied for bail thereunder. They could have even moved for the lifting of the warrant dated May 10. But, they did not. It is clear from the [September] 17 Order that only the bail recommended by the prosecutor was "considered withdrawn". Such Order does not speak of cancellation of the P120,000.00 bail fixed by the former Presiding Judge x x x. SO ORDERED.10 respondent clarified that the bail fixed by Judge Alumbres was not affected by the withdrawal of the prosecution's recommended bail; only the bail recommended by the prosecutor in the amount of P60,000.00 was considered withdrawn in the Order of September 17, 2001. This belated order cannot exonerate respondent from liability. The bail in the amount of P60,000.00 was already forfeited as a consequence of complainant's jumping bail.11 How then can respondent claim that he merely canceled the recommended bail of P60,000.00 when the same had already been forfeited? The only recommended bail that remains subject of the Motion of the prosecutor is the increased bail in the amount of P120,000.00. Thus, there remains no other conclusion except that respondent canceled the recommended bail in the increased amount of P120,000.00. The Order of September 17, 2001 effectively deprived complainant of his constitutional right to bail when it was issued two days before the scheduled hearing on September 19, 2001. The OCA was right in observing that it was a mere afterthought on the part of respondent in issuing the clarificatory Order, for how can the latter cancel the P60,000.00 bail when the same was already forfeited as a consequence of complainant's jumping bail? And even granting for the sake of argument that complainant was also charged with the crime of murder on September 14, 2001, or three days before the Order of cancellation was issued, respondent failed to consider that what was being prayed for by the prosecutor was the cancellation of the recommended bail for violation of R.A. No. 6425 and not that of the crime of murder. Respondent's asseveration that the cancellation of the bail without due hearing was justified considering that complainant was already detained for the non-bailable offense of murder three days before the cancellation was ordered, is misplaced.1a\^/phi1.net As we opined in Andres v. Beltran,12 it is a misconception that when an accused is charged with the crime of murder, he is not entitled to bail at all or that the crime of murder is non-bailable. The grant of bail to an accused charged with an offense that carries with it the penalty of reclusion perpetua x x x is discretionary on the part of the trial court. In other words,

accused is still entitled to bail but no longer "as a matter of right." Instead, it is discretionary and calls for a judicial determination that the evidence of guilt is not strong in order to grant bail. The prosecution is accorded ample opportunity to present evidence because by the very nature of deciding applications for bail, it is on the basis of such evidence that judicial discretion is weighed in determining whether the guilt of the accused is strong.13 As we held in Sy Guan v. Amparo,14 where bail is a matter of right and prior absconding and forfeiture is not excepted from such right, bail must be allowed irrespective of such circumstance. The existence of a high degree of probability that the defendant will abscond confers upon the court no greater discretion than to increase the bond to such an amount as would reasonably tend to assure the presence of the defendant when it is wanted, such amount to be subject, of course, to the other provision that excessive bail shall not be required.15 Upon review of the TSN of the September 19, 2001 hearing, we find that the prosecutor failed to adduce evidence that there exists a high probability of accused's jumping bail that would warrant the cancellation of the recommended bail bond. Following then the above ratiocination, respondent's only recourse is to fix a higher amount of bail and not cancel the P120,000.00 bail fixed by Judge Alumbres. Well-entrenched is the rule that a partys remedy, if prejudiced by the orders of a judge given in the course of a trial, is the proper reviewing court, and not with the OCA by means of an administrative complaint.16 As a matter of policy, in the absence of fraud, dishonesty or corruption, the acts of a judge in his judicial capacity are not subject to disciplinary action even though such acts are erroneous.17 A judge may not be disciplined for error of judgment unless there is proof that the error is made with a conscious and deliberate intent to commit an injustice. Thus, as a matter of public policy, not every error or mistake of a judge in the performance of his official duties makes him liable therefor.18 The Court has to be shown acts or conduct of the judge clearly indicative of arbitrariness or prejudice before the latter can be branded the stigma of being biased and partial. To hold otherwise would be to render judicial office untenable, for no one called upon to try the facts or interpret the law in the process of administering justice can be infallible in his judgment.19 For liability to attach for ignorance of the law, the assailed order of a judge must not only be erroneous; more important, it must be motivated by bad faith, dishonesty, hatred or some other similar motive.20 Complainant, having failed to present positive evidence to show that respondent judge was so motivated in granting the Motion without hearing, can not be held guilty of gross ignorance of the law. Anent the allegation that complainant was deprived of his right to due process, we find the same meritorious. Sec. 1, Article III of the Constitution provides that no person shall be deprived of life, liberty, or property without due process of law. Respondent's issuance of the September 17, 2001 Order two days prior to the scheduled hearing without considering complainant's Opposition to the Motion, effectively deprived the latter of his constitutional right to due process. As above stated, during the September 19, 2001 hearing, respondent considered the Opposition to the Motion as a motion for reconsideration of the assailed Order, albeit, the prosecutor was merely ordered to file its reply thereto without adducing evidence to prove the high probability that complainant will jump bail. Respondent's issuance of the assailed Order before the scheduled hearing is premature and is tantamount to misconduct. Thus, we find respondent guilty of simple misconduct. Misconduct is defined as any unlawful conduct on the part of a person concerned in the administration of justice prejudicial to the rights of parties or to the right determination of the cause.21 It generally means wrongful, improper or unlawful conduct motivated by a

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premeditated, obstinate or intentional purpose. Respondent may not be held guilty of gross misconduct because the term "gross" connotes something "out of all measure; beyond allowance; not to be excused; flagrant; shameful."22 In this case, complainant was not able to post bail because there is no other way for a lay man to interpret the assailed Order except that it effectively canceled the bail bond fixed by Judge Alumbres, thereby depriving him of his right to temporary liberty as a result of respondent's erroneous Order. WHEREFORE, Judge Bonifacio Sanz Maceda, RTC, Branch 275, Las Pias City is found GUILTY of simple misconduct and FINED in the amount of P5,000.00 with a WARNING that a repetition of the same or similar acts in the future will be dealt with more severely. SO ORDERED.

G.R. No. 140842

April 12, 2007

RUFINA CHUA, Petitioner, vs. THE COURT OF APPEALS and WILFRED N. CHIOK, Respondents. DECISION SANDOVAL-GUTIERREZ, J.: For our resolution is a Petition for Certiorari1 assailing the Resolutions dated September 20, 19992 and November 16, 1999 of the Court of Appeals in CA-G.R. SP No. 53340. In 1989, Rufina Chua, petitioner, met Wilfred Chiok, respondent, who represented himself as a licensed stockbroker and an expert in the stock market. He encouraged petitioner to invest her money in stocks, requesting her to designate him as her stockbroker. On respondents prodding, she agreed. For several years, respondent acted as petitioners stockbroker. She made profits out of their transactions, prompting her to trust respondent in handling her stock investments. In 1995, respondent encouraged petitioner to purchase shares in bulk as this will increase her earnings. Hence, in June 1995, she entrusted to him the amount of P9,563,900.00 for the purpose of buying shares of stocks in bulk. Petitioner deposited P7,100,000.00 in respondents account and personally gave him the remainingP2,463,900.00. Thereupon, he told petitioner to wait for one week. A week elapsed and respondent advised her to wait for another week. Then, there was no more news from respondent. Finally, when petitioner was able to contact him, respondent admitted that he spent the money. At any rate, he issued two checks as payment but when petitioner deposited them in the drawee bank, the checks were dishonored for insufficient funds. In a letter dated October 25, 1995, petitioner demanded payment from respondent, but this remained unheeded. Petitioner then came to know that respondent was not a licensed stockbroker but only a telephone clerk at Bernard Securities, Inc. Immediately, she caused the filing of an information for estafa against him with the Regional Trial Court, Branch 165, Pasig City, docketed as Criminal Case No. 109927. During the arraignment, respondent, assisted by his counsel de parte, pleaded not guilty. Trial ensued. Respondent denied the charge against him. He testified that he was not an employee of Bernard Securities, Inc.; that he buys and sells U.S. dollars and that petitioner used to buy dollars from him; that what actually existed between them was an unregistered partnership; and that he received the amount of P9,563,900.00 as her investment in their partnership. After the prosecution and the defense had presented their respective evidence, the trial court set the promulgation of judgment on January 26, 1999. However, respondent and his counsel failed to appear on said date despite notice. The trial court reset the promulgation of judgment on February 1, 1999, with notice to respondent. Again, respondent failed to appear. The trial court then promulgated its Decision convicting respondent of estafa and sentencing him to suffer twelve (12) years of prision mayor, as minimum, to twenty (20) years of reclusion temporal, as maximum. Respondent was likewise ordered to pay herein petitioner the amount ofP9,563,900.00 with interest at the legal rate computed from October 25, 1995, the date of demand, until fully paid. On the same day, February 1, 1999, the prosecution filed a motion for cancellation of bail on the ground that respondent might flee or commit another crime.

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On February 13, 199, respondent filed a motion for reconsideration of the judgment of conviction. Meanwhile, or on February 15, 1999, the motion for cancellation of bail was set for hearing. The prosecution presented a Record Check Routing Form issued by the Bureau of Immigration showing that respondent has an Alien Certificate of Registration (ACR) and Immigrant Certificate of Residence (ICR). During that hearing, respondent admitted using the names "Mark Tan" and Tong Wai Fat" as aliases. Consequently, on May 28, 1999, the trial court issued an Omnibus Order (a) denying respondents motion for reconsideration of the judgment of conviction; (b) canceling his bail; and (c) giving him five (5) days from notice within which to appear before the trial court, otherwise he would be arrested. On June 18, 1999, respondent interposed an appeal to the Court of Appeals from the trial courts judgment of conviction and from the Omnibus Order insofar as it denied his motion for reconsideration of said judgment. The appeal was docketed as CA-G.R. CR No. 23309. The following day, or on June 19, 1999, respondent filed with the Court of Appeals a petition for certiorari with application for a temporary restraining order (TRO) and a writ preliminary injunction assailing the trial courts Omnibus Order canceling his bail. The petition was docketed as CA-G.R. SP No. 53340. On June 25, 1999, the trial court issued a warrant of arrest against respondent for his failure to appear despite the lapse of the 5-day period provided in the May 28, 1999 Omnibus Order. The warrant was returned unserved because he could not be found at his given address. However, the Court of Appeals, in a Resolution dated July 27, 1999 issued a TRO enjoining the trial court from implementing its Omnibus Order of May 28, 1999. On September 20, 1999, after hearing respondents application for injunction, the appellate court issued a writ of preliminary injunction enjoining the arrest of respondent, holding that the latter should not be deprived of his liberty pending resolution of his appeal as the offense for which he was convicted is a noncapital offense; and that the probability that he will flee during the pendency of his appeal is merely conjectural. Petitioner then filed a motion for reconsideration but it was denied by the Court of Appeals in its Resolution dated November 16, 1999. Hence, the instant petition for certiorari.1a\^/phi1.net Petitioner contends that the Court of Appeals acted with grave abuse of discretion amounting to lack or in excess of jurisdiction in issuing the writ of preliminary injunction enjoining the arrest of respondent. Private respondent counters that the petition should be dismissed for lack of merit. The petition is meritorious. Firstly, the petition for certiorari with prayer for a TRO and a writ of preliminary injunction (CA-G.R. SP No. 53340) is not the proper recourse in assailing the trial courts May 28, 1999 Omnibus Order canceling his bail. Section 5, Rule 114 of the Revised Rules of Criminal Procedure3 provides: SEC. 5. Bail, when discretionary. Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment, admission to bail is discretionary. The application for bail may be filed and acted upon by the trial court despite the filing of a notice of appeal,

provided it has not transmitted the original record to the appellate court. However, if the decision of the trial court convicting the accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed with and resolved by the appellate court, Should the court grant the application, the accused may be allowed to continue on provisional liberty during the pendency of the appeal under the same bail subject to the consent of the bondsman. If the penalty imposed by the trial court is imprisonment exceeding six (6) years, the accused shall be denied bail, or his bail shall be cancelled upon a showing by the prosecution, with notice to the accused, of the following or other similar circumstances: (a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration; (b) That he has previously escaped from legal confinement, evaded sentence, or violated the conditions of his bail without valid justification; (c) That he committed the offense while under probation, parole, or conditional pardon; (d) That the circumstances of his case indicate the probability of flight if released on bail; or (e) That there is undue risk that he may commit another crime during the pendency of the appeal.1awphi1.nt The appellate court may, motu proprio or ON MOTION OF ANY PARTY, review the resolution of the Regional Trial Court after notice to the adverse party in either case.4 (Underscoring supplied) It is clear from the last paragraph of the above provision that private respondents appropriate remedy against the trial courts May 28, 1999 Omnibus Order canceling his bail is by filing with the Court of Appeals a motion to review the said order in the same regular appeal proceedings in CA-G.R. CR No. 23309 he himself initiated. Such motion is an incident in his appeal.5 The filing of a separate petition via a special civil action or special proceeding questioning such adverse order before the appellate court is proscribed.6 Such independent special civil action obviously contravenes the rule against multiplicity of suits and constitutes forum shopping. Hence, the Court of Appeals erred in not dismissing outright respondents petition for certiorari in CA G.R. SP No. 53340. The basic rule is that such petition may only be availed of when "there is no appeal or any plain, speedy and adequate remedy in the ordinary course of law."7 Secondly, the assailed September 20, 1999 Resolution of the Court of Appeals granting respondents application for a writ of preliminary injunction enjoining the implementation of the trial courts Omnibus Order canceling his bail, is bereft of any factual or legal basis. To be entitled to an injunctive writ, the applicant must show that (1) he has a clear existing right to be protected; and (2) the acts against which the injunction is to be directed are in violation of such right.8 The first requisite is absent. Respondent has no right to be freed on bail pending his appeal from the trial courts judgment. His conviction carries a penalty of imprisonment exceeding 6 years (to be exact, 12 years of prision mayor, as minimum, to 20 years of reclusion temporal, as maximum) which justifies the cancellation of his bail pursuant to the third paragraph of Section 5 (b), (d) and (e) of Rule 114, quoted above. Moreover, he failed to appear despite notice during the promulgation of judgment on January 26, 1999. His inexcusable non-appearance not only violated the condition of his bail that he "shall appear" before the court "whenever required" by the latter or the Rules,9 but also

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showed the probability that he might flee or commit another crime while released on bail. At this point, we stress that when respondent did not appear during the promulgation of judgment on January 26, 1999 despite notice, and without offering any justification therefor, the trial court should have immediately promulgated its Decision. The promulgation of judgment in absentia is mandatory pursuant to Section 6, Rule 120 of the same Rules, the relevant portions of which read: SEC. 6. Promulgation of judgment. The judgment is promulgated by reading it in the presence of the accused and any judge of the court in which it was rendered. However, if the conviction is for a light offense, the judgment may be pronounced in the presence of his counsel or representative. When the judge is absent or outside the province or city, the judgment may be promulgated by the clerk of court. xxx The proper clerk of court shall give notice to the accused personally or through his bondsman or warden and counsel, requiring him to be present at the promulgation of the decision. x x x. In case the accused fails to appear at the scheduled date of promulgation of judgment despite notice, THE PROMULGATION SHALL BE MADE BY RECORDING THE JUDGMENT IN THE CRIMINAL DOCKET and serving him a copy thereof at his last known address or thru his counsel. If the judgment is for conviction and the failure of the accused to appear was without justifiable cause, he shall lose the remedies available in these Rules against the judgment and the court shall order his arrest. Within fifteen (15) days from promulgation of judgment, however, the accused may surrender and file a motion for leave of court to avail of these remedies. He shall state the reasons for his absence at the scheduled promulgation, and if he proves that his absence was for a justifiable cause, he shall be allowed to avail of said remedies within fifteen (15) days from notice.10 (Underscoring supplied) It bears stressing that the rule authorizing the promulgation of judgment in absentia is intended to obviate the situation in the past where the judicial process could be subverted by the accused jumping bail to frustrate the promulgation of judgment.11 As mentioned earlier, the trial court should have promulgated the judgment in absentia on January 26, 1999. The resetting the promulgation on February 1, 1999 is tantamount to condoning respondents act of making a mockery of our judicial process, thereby defeating the avowed purpose of the Rule. Since respondent has not shown any right to be protected, the second requisite for the issuance of a writ of preliminary injunction is obviously absent. As such, the Court of Appeals clearly acted with grave abuse of discretion in issuing its assailed Resolution of September 20, 1999 granting the writ of preliminary injunction. We held that the grant of the writ of preliminary injunction despite the absence of a clear legal right on the part of the applicant constitutes grave abuse of discretion amounting to lack of jurisdiction.12 WHEREFORE, we GRANT the petition. The assailed Resolutions dated September 20, 1999 and November 16, 1999 of the Court of Appeals in CA-G.R. SP No. 53340 are SET ASIDE. Respondent Wilfred N. Chioks petition for certiorari in CA-G.R. SP No. 53340 is DISMISSED. The Omnibus Order dated May 28, 1999 issued by the Regional Trial Court, Branch 165, Pasig City in Criminal Case No. 109927 canceling respondents bail is AFFIRMED. Costs against respondent. SO ORDERED.

G.R. No. 158754

August 10, 2007

PEOPLE OF THE PHILIPPINES, Petitioner, vs. SANDIGANBAYAN (Special Division) and JOSE "JINGGOY" ESTRADA, Respondents. DECISION GARCIA, J.: The instant petition for certiorari under Rule 65 of the Rules of Court seeks to reverse and set aside the Resolution1 of herein respondent Sandiganbayan (Special Division) issued on March 6, 2003 in Criminal Case No. 26558, granting bail to private respondent Senator Jose "Jinggoy" Estrada (hereafter "Jinggoy" for brevity), as effectively reiterated in its Resolution 2 of May 30, 2003, denying the petitioners motion for reconsideration. The factual antecedents which gave rise to this proceeding are set forth in the Courts Decision3 of February 26, 2002, in G.R. No. 148965, to wit: In November 2000, as an offshoot of the impeachment proceedings against Joseph Ejercito Estrada, then President of the Republic of the Philippines, five criminal complaints against the former President and members of his family, his associates, friends and conspirators were filed with the Office of the Ombudsman. On April 4, 2001, the Ombudsman issued a Joint Resolution finding probable cause warranting the filing with the Sandiganbayan of several criminal Informations against the former President and the other respondents therein. One of the Informations was for the crime of plunder under Republic Act [RA] No. 7080 and among the respondents was herein petitioner Jose "Jinggoy" Estrada, then mayor of San Juan, Metro Manila. The Information was amended and filed on April 18, 2001. Docketed as Criminal Case No. 26558, the case was assigned to [the] respondent Third Division of the Sandiganbayan. xxx. (Emphasis added.) The amended information referred to, like the original, charged respondent Jinggoy, together with the former President and several others, with plunder, defined and penalized under RA No. 7080, as amended by Section 12 of RA No. 7659, allegedly committed as follows: That during the period from June, 1998 to January, 2001, in the Philippines, and within the jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, THEN A PUBLIC OFFICER, , by himself AND/OR inCONNIVANCE/CONSPIRACY with his coaccused, 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 (sic), 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 (P545,000,000.00), MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF

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GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in connivance with co-accused Jose Jinggoy Estrada, , [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, forHIS OR THEIR PERSONAL gain and benefit, public funds [P130,000,000.00], more or less, representing a portion of the [P200,000,000] 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 STOCK MORE OR LESS, and the Social Security System (SSS), 329,855,000 SHARES OF STOCK MORE OR LESS, OF THE BELLE CORPORATION IN THE AMOUNT OF MORE OR LESS [P744,612,450.00], RESPECTIVELY, OR A TOTAL OF MORE OR LESS [P1,847,578,057.50]; AND BY COLLECTING OR RECEIVING, DIRECTLY OR INDIRECTLY, BY HIMSELF AND/OR IN CONNIVANCE WITH JOHN DOES AND JANE DOES,COMMISSIONS OR PERCENTAGES BY REASON OF SAID PURCHASES OF SHARES OF STOCK IN THE AMOUNT [P189,700,000.00], MORE OR LESS, FROM THE BELLE CORPORATION WHICH BECAME PART OF THE DEPOSIT IN THE EQUITABLE-PCI BANK UNDER THE ACCOUNT NAME "JOSE VELARDE"; (d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES, PERCENTAGES, KICKBA CKS,OR ANY FORM OF PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN DOES AND JANE DOES, in the amount of MORE OR LESS [P3,233,104,173.17] AND DEPOSITING THE SAME UNDER HIS ACCOUNT NAME "JOSE VELARDE" AT THE EQUITABLE-PCI BANK.4 What transpired next are narrated in the same February 26, 2002 Decision in G.R. No. 148965, thus: On April 25, 2001, the respondent court issued a warrant of arrest for [Jinggoy] and his co-accused. On its basis, [Jinggoy] and his co-accused were placed in custody of the law. On April 30, 2001, [Jinggoy] filed a "Very Urgent Omnibus Motion" alleging that: (1) no probable cause exists to put him on trial and hold him liable for plunder, it appearing that he was only allegedly involved in illegal gambling and not in a "series or combination of overt or criminal acts" as required in R.A. No. 7080; and (2) he is entitled to bail as a matter of right. [He] prayed that he be excluded from the Amended Information . In the alternative, [he] also prayed that he be allowed to post bail .. On June 28, 2001, [he] filed a "Motion to Resolve Mayor Jose Jinggoy Estradas Motion To Fix Bail On Grounds That An Outgoing Mayor Loses Clout An Incumbent Has And That On Its Face, the Facts Charged In The Information Do Not Make Out A Non-Bailable Offense As To Him." xxx xxx xxx

The following day, July 10, 2001, [Jinggoy] moved for reconsideration of the Resolution. Respondent court denied the motion and proceeded to arraign [him]. [He] refused to make his plea prompting respondent court to enter a plea of "not guilty" for him.5 (Emphasis and words in brackets added) From the denial action of the Sandiganbayan immediately adverted to, Jinggoy interposed a petition for certiorari before this Court claiming that the respondent Sandiganbayan committed grave abuse of discretion in, inter alia, (a) sustaining the charge against him for alleged offenses and with alleged conspirators with whom he is not even connected, and (b) in not fixing bail for him. Pending resolution of this petition, docketed as G.R. No. 148965, Jinggoy filed with the Sandiganbayan an "Urgent Second Motion for Bail for Medical Reasons." The Ombudsman opposed the motion. For three (3) days in September 2001, the Sandiganbayan conducted hearings on the motion for bail, with one Dr. Roberto Anastacio of the Makati Medical Center appearing as sole witness for Jinggoy.6 On December 18, 2001, Jinggoy filed with the Court an Urgent Motion praying for early resolution of his Petition for Bail on Medical/Humanitarian Considerations." He reiterated his earlier plea for bail filed with the Sandiganbayan. On the same day, the Court referred the motion to the Sandiganbayan for resolution and directed said court to make a report, not later than 8:30 in the morning of December 21, 2001.7 The report was submitted as directed. Attached to the Report was a copy of the Sandiganbayans Resolution dated December 20, 2001 denying Jinggoys motion for bail for "lack of factual basis." According to the graft court, basing its findings on the earlier testimony of Dr. Anastacio, Jinggoy "failed to submit sufficient evidence to convince the court that the medical condition of the accused requires that he be confined at home and for that purpose that he be allowed to post bail." 8 On February 26, 2002, the Court dismissed Jinggoys petition in G.R. No. 148965, on the following rationale: The constitutional mandate makes the grant or denial of bail in capital offenses hinge on the issue of whether or not the evidence of guilt of the accused is strong. This requires that the trial court conduct bail hearings xxx. The burden of proof lies with the prosecution to show strong evidence of guilt. This Court is not in a position to grant bail to [Jinggoy] as the matter requires evidentiary hearing that should be conducted by the Sandiganbayan. The hearings on which respondent court based its Resolution of December 20, 2001 involved the reception of medical evidence only and which evidence was given in September 2001, five months ago. The records do not show that evidence on petitioners guilt was presented before the lower court. Upon proper motion of [Jinggoy], respondent Sandiganbayan should conduct hearings to determine if the evidence of [Jinggoys] guilt is strong as to warrant the granting of bail to [him].9 (Underscoring and words in brackets added). On April 17, 2002, Jinggoy filed before the Sandiganbayan an Omnibus Application for Bail 10 against which the prosecution filed its comment and opposition. Bail hearings were then conducted, followed by the submission by the parties of their respective memoranda. In the herein assailed Resolution11 of March 6, 2003, respondent Sandiganbayan (Special Division) granted the omnibus application for bail, disposing as follows: WHEREFORE, in light of all the facts and applicable law and jurisprudence, JOSE "JINGGOY" ESTRADAs "OMNIBUS APPLICATION FOR BAIL" dated April 16, 2002 is GRANTED. Bail for accused-movant is fixed at Five Hundred Thousand Pesos (Php500,000.00) to be paid in cash and his release is ordered

On July 9, 2001, respondent Sandiganbayan issued a Resolution denying [Jinggoys] "Motion to Quash and Suspend" and "Very Urgent Omnibus Motion." [His] alternative prayer to post bail was set for hearing after arraignment of all accused. xxx xxx xxx xxx

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upon the posting thereof and its approval, unless movant is being held for some other legal cause. This resolution is immediately executory. SO ORDERED. Petitioner filed a motion for reconsideration thereto which the respondent court denied via the herein equally assailed May 30, 2003 Resolution,12 the dispositive part of which reads: WHEREFORE, for lack of merit, the prosecutions "MOTION FOR RECONSIDERATION [RE: GRANT OF JOSE "JINGGOY" ESTRADAS PETITION FOR BAIL] dated 13 March 2003 is DENIED. SO ORDERED. Hence, the present petition on the submission13 that respondent Special Division of the Sandiganbayan acted with grave abuse of discretion amounting to lack or excess of jurisdiction I. IN GRANTING BAIL TO RESPONDENT JINGGOY ESTRADA,[CONSIDERING] THE WELL-ESTABLISHED THEORY OF OVERLAPPING CONSPIRACIES AND, THUS, GRIEVOUSLY DISREGARDED THE APPLICATION OF ACCEPTED CRIMINAL LAW PRECEPTS AND THEREBY SET A DANGEROUS PRECEDENT. II. xxx WHEN IT GRANTED BAIL TO RESPONDENT JINGGOY ESTRADA WHEN IT FAILED TO RECOGNIZE THAT THE CONDUCT OF RESPONDENT JINGGOY ESTRADA POINTED TO A CONCURRENCE OF SENTIMENT OR CRIMINAL DESIGN INDICATING THE EXISTENCE OF A CONSPIRACY BETWEEN ACCUSED JOSEPH ESTRADA AND JINGGOY ESTRADA. III. xxx WHEN IT GRANTED BAIL TO RESPONDENT JINGGOY ESTRADA CONSIDERING THAT THE UNDISPUTED FACT CLEARLY EVIDENCES THAT RESPONDENT JINGGOY ESTRADA, EVEN WITHOUT A FINDING OF CONSPIRACY, IS EQUALLY GUILTY AND LIABLE AS ACCUSED JOSEPH ESTRADA HIMSELF BY HIS INDISPENSABLE COOPERATION AND/OR DIRECT PARTICIPATION IN THE COMMISSION OF THE CRIME OF PLUNDER. IV. xxx WHEN IT LIMITED THE CONSIDERATION OF THE EVIDENCE, AS WELL AS THE POTENTIAL [LIABILITY] OF RESPONDENT JINGGOY ESTRADA, TO SUBPARAGRAPH "A" OF THE AMENDED INFORMATION. The imputation of grave abuse of discretion to the public respondent is untenable. To begin with, Section 13 of Article III (Bill of Rights) of the Constitution mandates: Section 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. xxx. Even if the capital offense charged is bailable owing to the weakness of the evidence of guilt, the right to bail may justifiably

still be denied if the probability of escape is great.14 Here, ever since the promulgation of the assailed Resolutions a little more than four (4) years ago, Jinggoy does not, as determined by Sandiganbayan, seem to be a flight risk. We quote with approval what the graft court wrote in this regard: It is not open to serious doubt that the movant [Jinggoy] has, in general, been consistently respectful of the Court and its processes. He has not ominously shown, by word or by deed, that he is of such a flight risk that would necessitate his continued incarceration. Bearing in mind his conduct, social standing and his other personal circumstances, the possibility of his escape in this case seems remote if not nil.15 The likelihood of escape on the part individual respondent is now almost nil, given his election on May 10, 2004, as Senator of the Republic of the Philippines. The Court takes stock of the fact that those who usually jump bail are shadowy characters mindless of their reputation in the eyes of the people for as long as they can flee from the retribution of justice. On the other hand, those with a reputation and a respectable name to protect and preserve are very unlikely to jump bail. The Court, to be sure, cannot accept any suggestion that someone who has a popular mandate to serve as Senator is harboring any plan to give up his Senate seat in exchange for becoming a fugitive from justice. Petitioners first argument denigrates as grave abuse of discretion the public respondents rejection of the theory of overlapping conspiracies, which, in the abstract, depicts a picture of a conspirator in the first level of conspiracy performing acts which implement, or in furtherance of, another conspiracy in the next level of which the actor is not an active party. As the petitioners logic goes following this theory, respondent Jinggoy is not only liable for conspiring with former President Estrada in the acquisition of ill-gotten wealth from "jueteng" under par. (a) of the amended information. He has also a culpable connection with the conspiracy, under par. (b), in the diversion of the tobacco excise tax and in receiving commissions and kickbacks from the purchase by the SSS and GSIS of Belle Corporation shares and other illegal sources under par. (c) and (d), albeit, he is not so named in the last three paragraphs. And since the central figure in the overlapping conspiracies, i.e., President Estrada, is charged with a capital offense, all those within the conspiracy loop would be considered charged with the same kind of non-bailable offense. Explaining its point, petitioner cites People v. Castelo16 which, as here, also involves multiple levels of conspiracies. Just like in the present case where the lead accused is a former President no less, the prime suspect in Castelo was also a powerful highranking government official a former Judge who later rose to hold, in a concurrent capacity, the positions of Secretary of Justice and Secretary of National Defense, to be precise. In Castelo, charges and countercharges were initially hurled by and between Castelo and Senator Claro Recto, who was then planning to present Manuel Monroy as star witness against Castelo in a scandal case. Castelo left the Philippines for Korea. While away, someone shot Monroy dead. Evidence pointed to a conspiracy led by a certain "Ben Ulo" (who appears to be the mastermind) and a group of confidential agents of the Department of National Defense, one of whom was the triggerman. Coincidentally, Ben Ulo was a close bodyguard of Castelo. In the end, the Solicitor General tagged Ben Ulo (not Castelo) as the central figure in the conspiracy. This notwithstanding, the Court held Castelo guilty beyond reasonable doubt for murder, because only he had a motive for desiring Monroys demise. The conspiracy between Castelo and Ben Ulo was then determined to be overlapping with the conspiracy between Ben Ulo and the confidential agents, one of whom was the triggerman. Further explaining the theory of overlapping conspiracies, petitioner cites the ruling in People v. Ty Sui Wong,17featuring a love triangle involving a certain Victor and Mariano, each out to win the heart of Ruby. Victor left Manila for Mindanao. While Victor was away, the dead body of Mariano was found with multiple stab wounds in a dark alley in Pasay. Evidence pointed to a conspiracy among "Sampaloc hoodlums" who had no direct

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link with Victor. However, one of the neighbors of the "Sampaloc hoodlums" was a classmate of Victor. In the end, on the basis of interlocking confessions, the Court found Victor and his classmate together with all the "Sampaloc hoodlums" guilty of murder. Positing the applicability of Castelo and Ty Sui Wong under the premises, petitioner presently argues: It should be noted that this is the same scenario of accused Joseph Estrada conspiring with former Gov. Singson for the collection and receipt of bribes (jueteng protection money); and of former Gov. Singson involving respondent Jinggoy Estrada in yet another level of conspiracy in pursuit of the first, i.e., the regular collection of jueteng protection money for accused Joseph Estrada; and, respondent Jinggoy Estrada, aware of the details of the conspiracy between accused Joseph Estrada and Gov. Singson, agreeing to remit the greater part of his collection of bribes to accused Joseph Estrada as its ultimate beneficiary. Thus, respondent Jinggoy Estrada reached an agreement with former Gov. Singson, executed the plan and participated in furtherance of the conspiracy for the receipt and collection of jueteng protection money, i.e., collecting P3 Million in jueteng protection money every month; remitting P2 Million thereof to former Gov. Singson for delivery to accused Joseph Estrada and retaining P1 Million thereof for himself. Similarly, therefore, respondent Jinggoy Estrada should have been denied bail since he is as guilty and liable as accused Joseph Estrada for the non-bailable offense of Plunder.18 As we see it, the rulings in Castelo and Ty Sui Wong are not on allfours applicable to and of governing sway to the issue of the propriety of revoking Jinggoys release on bail. As it were, the petitioner erroneously equates the provisional grant of bail to respondent Jinggoy to his virtual acquittal in Criminal Case No. 26558. Petitioner is wrong. Castelo and Ty Sui Wong contextually dealt with the guilt of culprits therein for the crimes of murder after all the evidence had been adduced. Unlike in this proceeding, the propriety of a grant of bail, given the evidence for or against the bail application, was not an issue in Castelo and Ty Sui Wong. And in the present case, respondent Sandiganbayan is still in the process of determining the facts and merits of the main case. In the words of the public respondent: As a cautionary parting word, it must be categorically stated herein that in making the above pronouncements, this Court [Sandiganbayan] is not making any judgment as to the final outcome of this case either with respect to movant [Jinggoy] or with respect to accused Estrada. This Court [Sandiganbayan] is simply called to determine whether, at this stage, the evidence of movant's guilt is strong as to warrant his temporary release on bail. xxx.19 Revoking the bail thus granted to respondent Jinggoy, as the petitioner urges, which necessarily implies that the evidence of his guilt is strong, would be tantamount to pre-empting the Sandiganbayans ongoing determination of the facts and merits of the main case. Petitioners second and third arguments focus on the possible degrees of participation of Jinggoy in the crime of Plunder. Noticeably, both arguments, if pursued to their respective logical conclusions, tend to cancel each other out, one leading as it were to a direction quite the opposite of the other. For while the second argument attempts to establish an "implied conspiracy" between Jinggoy and his father - hence, the guilt of one is the guilt of the other - the third argument eschews the idea of conspiracy, but respondent Jinggoy is nonetheless "equally guilty" as President Estrada because of his indispensable cooperation and/or direct participation in the crime of Plunder. By statutory definition, conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it.20 Venturing into the gray areas of

the concept of conspiracy, petitioner cites the following obiter defining "implied conspiracy," thus: When by their acts, two or more persons proceed toward the accomplishment of the same felonious object, with each doing his act, so that their acts though seemingly independent were in fact connected, showing a closeness of formal association and concurrence of sentiment, conspiracy may be inferred.21 Admittedly, direct proof is not essential to establish conspiracy. Since by its nature conspiracy is planned in utmost secrecy, it can rarely be proved by direct evidence. Consequently, the presence of the concurrence of minds which is involved in conspiracy may be inferred from proof of facts and circumstances which, taken together, apparently indicate that they are merely parts of some complete whole. If it is proved that two or more persons aimed by their acts towards the accomplishment of the same unlawful object, each doing a part so that their combined acts, though apparently independent, were in fact connected and cooperative, indicating a closeness of personal association and a concurrence of sentiment, a conspiracy may be inferred though no actual meeting among them to concert is proved. That would be termed an implied conspiracy.22 From the above pronouncements, petitioner then proceeds to present voluminous documents and transcripts of stenographic notes purporting to prove that Jinggoy had been deep inside the web of "implied conspiracy" under the second argument of this petition. From the "implied conspiracy" theory, it then shifts gears to embrace the "equally guilty" hypothesis under the fallback third argument. Regardless, however, of whatever legal strategy petitioner may have in mind, the fundamental principle that the Court is not a trier of facts remains.1avvphi1 Petitioners second and third arguments are to be sure relevant to the proceedings for the grant or denial of bail that were pending before in the Sandiganbayan. They are of little moment here where the only issue now is whether or not there was grave abuse of discretion on the part of the Sandiganbayan in granting bail to the private respondent. With the view we take of this case, the respondent court did not commit grave abuse of discretion in issuing its assailed resolutions, because the grant of bail therein is predicated only on its preliminary appreciation of the evidence adduced in the bail hearing to determine whether or not deprivation of the right to bail is warranted. Needless to stress, a grant of bail does not prevent the trier of facts, the same Anti-Graft Court, from making a final assessment of the evidence after full trial on the merits. As jurisprudence teaches: xxx Such appreciation [of evidence] is at best preliminary and should not prevent the trial judge from making a final assessment of the evidence before him after full trial. It is not an uncommon occurrence that an accused person granted bail is convicted in due course. 23 Petitioners last argument is, at bottom, an attempt to have the Court reverse in this case its earlier holding in another case - G.R. No. 148965 - where we stated: The Amended Information, in its first two paragraphs, charges petitioner [Jinggoy] and his other co-accused with the crime of plunder. The first paragraph names all the accused, while the second paragraph describes in general how plunder was committed and lays down most of the elements of the crime itself. Sub-paragraphs (a) to (d) describe in detail the predicate acts that constitute the crime and name in particular the co-conspirators of former President Estrada in each predicate act. The predicate acts alleged in the said four sub-paragraphs correspond to the items enumerated in Section 1 (d) of R.A. No. 7080. Sub-paragraph (a) alleged the predicate act of receiving, on several instances, money from illegal gambling, in consideration of toleration or protection of illegal gambling, and expressly names petitioner [Jinggoy] as one of those who

18

conspired with former President Estrada in committing the offense. This predicate act corresponds with the offense described in item [2] of the enumeration in Section 1 (d) of R.A. No. 7080. Sub-paragraph (b) alleged the predicate act of diverting, receiving or misappropriating a portion of the tobacco excise tax share allocated for the province of Ilocos Sur, which act is the offense described in item [1] in the enumeration in Section 1 (d) of the law. This sub-paragraph does not mention petitioner but instead names other conspirators of the former President. Sub-paragraph (c) alleged two predicate acts that of ordering the (GSIS) and the (SSS) to purchase shares of stock of Belle Corporation, and collecting or receiving commissions from such purchase from the Belle Corporation which became part of the deposit in the "Jose Velarde" account at the Equitable-PCI Bank. These two predicate acts fall under items [2] and [3] in the enumeration of R.A. No. 7080, and was allegedly committed by the former President in connivance with John Does and Jane Does. Finally, sub-paragraph (d) alleged the predicate act that the former President unjustly enriched himself from commissions, gifts, kickbacks, in connivance with John Does and Jane Does, and deposited the same under his account name "Jose Velarde" at the Equitable-PCI Bank. This act corresponds to the offense under item [6] in the enumeration of Section 1 (d) of R.A. No. 7080. From the foregoing allegations of the Amended Information, it is clear that all the accused named in sub-paragraphs (a) to (d), thru their individual acts, conspired with former President Estrada to enable the latter to amass, accumulate or acquire illgotten wealth . As the Amended Information is worded, however, it is not certain whether the accused in sub-paragraphs (a) to (d) conspired with each other to enable the former President to amass the subject ill-gotten wealth. In light of this lack of clarity, petitioner cannot be penalized for the conspiracy entered into by the other accused with the former President as related in the second paragraph of the Amended Information in relation to its sub-paragraphs (b) to (d). We hold that petitioner can be held accountable only for the predicate acts [illegal gambling] he allegedly committed as related in sub-paragraph (a) of the Amended Information which were allegedly done in conspiracy with the former President whose design was to amass ill-gotten wealth amounting to more than P4 billion.24 (Emphasis added.)1avvphi1 Obviously hoping to maneuver around the above ruling so as to implicate individual respondent for predicate acts described in sub-paragraphs (b), (c) and (d) of the Amended Information, petitioner now argues: It should be emphasized that in the course of the proceedings in the instant case, respondent Jinggoy Estrada waived the benefit of the said ruling and opted, instead, to participate, as he did participate and later proceeded to cross-examine witnesses whose testimonies were clearly offered to prove the other constitutive acts of Plunder alleged in the Amended Information under sub-paragraphs "b", "c" and "d".25 We disagree. At bottom, the petitioner assumes that the ruling accorded "benefits" to respondent Jinggoy that were inexistent at the start of that case. But no such benefits were extended, as the Court did not read into the Amended Information, as couched, something not there in the first place. Respondent Jinggoys participation, if that be the case, in the proceedings involving sub-paragraphs "b," "c" and "d," did not change the legal situation set forth in the aforequoted portion of the Courts ruling in G.R. No. 148965. For when it passed, in G.R. No. 148965, upon the inculpatory acts envisaged and ascribed in the Amended Information against Jinggoy, the Court merely defined what he was indicted and can be penalized for. In legal jargon, the Court informed him of the nature and cause of the accusation against him, a right guaranteed an accused under the Constitution.26 In fine, all that the Court contextually did in G.R. No. 148965 was no more than to implement his right to be informed of the nature of the accusation in the light of the filing of the Amended Information as worded. If at all, the Courts holding in G.R. No. 148965 freed

individual respondent from the ill effects of a wrong interpretation that might be given to the Amended Information. In all, the Court rules that public respondent Sandiganbayan (Special Division) did not commit grave abuse of discretion when, after conducting numerous bail hearings and evaluating the weight of the prosecutions evidence, it determined that the evidence against individual respondent was not strong and, on the basis of that determination, resolved to grant him bail. As a final consideration, the Court notes a statement made by the respondent court which adds an appropriate dimension to its resolve to grant bail subject of this recourse. Wrote that court in its assailed resolution of March 6, 2003: xxx Corollarily, it is not amiss to state that, at this time, there looms the possibility that, in case of conviction, [respondent Jinggoys] criminal liability would probably not warrant the death penalty or reclusion perpetua. (Underscoring in the original; Words in bracket added). WHEREFORE, the instant petition is DISMISSED. No pronouncement as to costs. SO ORDERED.

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A.M. No. RTJ-05-1911 December 23, 2008 [Formerly A.M. OCA I.P.I. No. 02-9-540-RTC] OFFICE OF THE COURT ADMINISTRATOR, complainant, vs. JUDGE RODRIGO B. LORENZO, RTC, Branch 266, Pasig City, respondent. x-------------------------------------------x A.M. No. RTJ-05-1913 December 23, 2008 [Formerly A.M. OCA I.P.I. No. 02-1548-RTJ] CHIEF STATE PROSECUTOR JOVENCITO R. ZUO, complainant, vs. JUDGE RODRIGO B. LORENZO, RTC, Branch 266, Pasig City, respondent. DECISION VELASCO, JR., J.: These consolidated administrative cases involve the release on bail of three Filipinos caught while in the act of sniffing methylamphetamine hydrochloride (shabu) and five Chinese nationals arrested while manufacturing shabu. The apprehension was effected on November 6, 2001 during a raid in a makeshift illegal drugs laboratory in Barangay Capitolyo, Pasig City. In A.M. No. RTJ-05-1911, the Court, reacting to news items appearing on page 12 of The Philippine Star in its April 18, 2002 issue1 and the editorial in its April 21, 2002 issue entitled Sino 'shabu makers' freed on bail,2issued a resolution referring the published articles to Court of Appeals Associate Justice Remedios Salazar-Fernando for investigation, report, and recommendation as to the extent of the liability of Judge Rodrigo B. Lorenzo, Regional Trial Court (RTC), Branch 266 in Pasig City, who granted the petition for bail of the accused.3The articles stated that Judge Lorenzo ordered the release of the Chinese nationals after each posted a PhP 700,000 bail and insinuated Judge Lorenzo's involvement in the PhP 12 million pay-off for the speedy release of the Chinese nationals. The article further reported that Judge Lorenzo had inhibited himself from hearing the case and was planning a trip to the United States for medical treatment. In his Comment,4 Judge Lorenzo denied all of the insinuations in the articles. He belied allegations of being the recipient of bribe money, adding, to bolster his claim of innocence, that it was he who issued the hold-departure order against the Chinese accused.5 Responding to allegations about his intended trip to America, Judge Lorenzo stated that he did not even have a passport, let alone a US visa, and his medical condition did not allow him to travel by air. Judge Lorenzo debunked charges of undue haste in the release of the Chinese chemists since prior hearings were held on March 14, 2002. He also alleged that, considering that the substances found in the raided drug laboratory were not yet forensically examined and determined to be shabu--forensics chemist Vivian Sumobay having failed, despite repeated summons, to appear in the hearings of April 4, 5, and 11, 2002--the prosecution is deemed to have not yet established that what were confiscated during the arrests were illegal drugs or ingredients of illegal drugs. According to Judge Lorenzo, the presumptive innocence of the accused not having been overturned, he found no reason to further detain them. He also mentioned that in the April 21, 2002 issue of theThe Philippine Star, Non Alquitran, the news writer, wrote that Police General Efren Fernandez, then head of the Narcotics Group of Camp Crame, when pressed to comment on the alleged pay-off, admitted that "the report remains a SPECULATION until they could gather evidence confirming the 12 million bribery."6

A.M. No. RTJ-05-1913 involves the formal complaint dated August 12, 2002 filed by Chief State Prosecutor Jovencito R. Zuo, charging Judge Lorenzo with Grave Misconduct, Knowingly Rendering an Unjust Judgment or Order, Gross Ignorance of the Law of Procedure, and Bias and Partiality.7 According to complainant, Judge Lorenzo, in Criminal Case No. 10535-D, arbitrarily granted the petition for bail of accused Luven San Juan, Geneveve Ordono, and Annalyn Plaza, who were arrested while in the act of sniffing shabu in a pot session and in possession of 1.03 grams of shabu and paraphernalia, at the time the raid was conducted. Complainant further averred that Judge Lorenzo granted bail without conducting a hearing or giving the prosecution reasonable time and chance to oppose the petition for bail-an act constituting gross and deliberate error, if not bad faith.8 As to those accused in Criminal Case No. 10537-D, the Chinese nationals who were caught in the act of manufacturing and in possession of shabu and 13,977.85 grams of substance, including various manufacturing paraphernalia, complainant contended they were granted bail despite vigorous objection from the prosecution which was still in the process of presenting evidence on the petition for bail, and despite strong evidence of guilt. As complainant put it, evident partiality, bad faith, and malice attended the hasty issuance of the order granting the petition for bail.9 Complainant asked that Judge Lorenzo be dismissed from the service. In his comment on the complaint, Judge Lorenzo stated that the charge against San Juan, Ordono, and Plaza, i.e., use and possession of 1.03 grams of shabu, was, as a matter of right, a bailable offense, contrary to complainant's allegation. In fact, Judge Lorenzo continued, the resolution approving the charge against the three for the aforesaid bailable offense was signed by State Prosecutor Emmanuel Velasco and approved no less by complainant. Besides, Judge Lorenzo contended, the Information against San Juan, Ordono, and Plaza did not contain allegation of conspiracy between them and the arrested Chinese nationals. In addition, the affidavit of apprehension of the police officer stated that the three women accused were in the living room of the house at the time of the raid, while the Chinese nationals were at the back of the house in a makeshift laboratory, a situation negating conspiracy. Judge Lorenzo also pointed out that, during the hearings on the petition for bail on December 7, 2001 and January 9, 2002, the prosecutors made no written or oral objection to said petition which he granted on January 14, 2002 in accordance with Section 4, Rule 114 of the Revised Rules on Criminal Procedure.10 Judge Lorenzo also averred that, contrary to the prosecution's claim, the prosecutors were given reasonable time and opportunity to oppose the petition for bail, State Prosecutor Velasco having personally been furnished a copy of the petition on December 3, 2001, or 30 days before the scheduled arraignment date. Even Prosecutor Conrado Tolentino, per Judge Lorenzo, did not file any written opposition to the petition for bail and did not attend the January 9, 2002 hearing. Prosecutor Marcelino Deza who attended for Prosecutor Tolentino did not also interpose any opposition or objection. We ordered consolidation of the two administrative cases. On March 19, 2004, the Investigating Justice submitted a 101page Consolidated Final Report and Recommendation in which she recommended the dismissal of allegations respecting the reported PhP 12 million bribe for the release of the accused in Criminal Case No. 10537-D. The Investigating Justice, however, found the respondent judge, who has meanwhile reached the compulsory retirement age, to have committed procedural lapses for which he should be adjudged guilty of professional incompetence. After a circumspect review of the report and the case records, the Court finds the conclusions and recommendation of the Investigating Justice to be in accordance, for the most part, with the facts obtaining and the applicable rules. We agree with the

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Investigating Justice that there is no concrete evidence to show that respondent judge received a PhP 12 million bribe for the speedy release of the accused in Criminal Case No. 10537-D, as insinuated in the news articles. No less than the then NARCGROUP head, Philippine National Police (PNP) Gen. Efren Fernandez, squelched speculations on the reported PhP 12 million bribery attempt. We also agree with the Investigating Justice that respondent judge did not err in granting the petition for bail of accused San Juan, Ordono, and Plaza since the offense they were charged with was bailable as a matter of right. Complainant's plea that the respondent judge be dismissed from the service on the grounds detailed in his complaint has nothing substantial to support itself. Bare allegations of bias, partiality, gross ignorance of the law, and knowingly rendering an unjust order will not suffice to merit the dismissal of a judge. In administrative cases, complainant bears the onus of establishing or proving the averments in his complaint by substantial evidence.11As a matter of policy, the acts of a judge in the discharge of official functions are not subject to disciplinary action, absent clear and convincing evidence of fraud, dishonesty, and/or corruption.12 In fine, to merit disciplinary action, the error or mistake must be gross or patent, malicious, deliberate, or in bad faith. In the absence of a showing to the contrary, defective or erroneous decisions or orders, if that be the case, are presumed to have been issued in good faith.13 To us, the evidentiary inculpatory tests and exacting standards have not been met in the case of the respondent judge. As the Investigating Justice aptly observed, there is not an iota of evidence to show that respondent judge received any bribe as insinuated by the articles. Judges should not allow themselves to be harassed and prevented from performing their tasks by malicious and irresponsible media reports. Accordingly, administrative cases leveled against judges must always be examined with a discriminating eye, for their consequential effects are, by their nature, highly penal, such that judges stand to face the sanction of dismissal and/or disbarment. In sum, we find the published articles attributing acts of dishonesty and corruption to respondent judge to be without basis. Nonetheless, we agree with the conclusion of the Investigating Justice that respondent judge, in ordering the release on bail of the accused Chinese nationals, committed several serious lapses in disregard of legal and procedural rules. To start off, respondent judge allowed the accused to post bail supposedly because of the prosecution's inability to prove their guilt with strong evidence. But as aptly observed by the Investigating Justice, respondent judge's decision "would have been correct, if only [he] paid enough attention to the factors why the prosecution had not yet established that the evidence of guilt is strong,"14 referring to the non-appearance during the April 4, 5, and 11, 2002 bail hearings of two key prosecution witnesses, the PNP forensic chemist, Police Inspector Sumobay; and the head of the raiding team, Police Senior Inspector Insp. Napoleon Villegas. As observed further, Sumobay's testimony would have proved not only the amount of shabu seized, but more importantly that the substance examined was shabu. The records tend to show that five kilos of shabu were confiscated. Given the foregoing consideration, the Court is at a loss to understand why the respondent judge did not even bother to look into the reasons for the non-appearance of Sumobay and Villegas during the first three hearings scheduled for the petition for bail; and why Sumobay did not answer the bench warrant issued when she failed to appear in the initial hearings. If respondent did, he would have discovered that Villegas was on an official mission abroad during the petition for bail hearings; as for Sumobay, she failed to appear simply because she never received a subpoena. The investigating report details the circumstances behind her non-appearance, thus: When P/Insp. Sumobay was called to testify during the investigation, she claimed that she did not receive any subpoena, allegedly served by the court. It turned out that the subpoena intended for her was served to a

certain PO3 Elizabeth Villa of the ADOT Training Division, an office different from her office. x x x Sumobay's office has its own receiving section and subpoena clerks x x x. P/Insp. Sumobay, upon learning of the subpoena and bench warrants against her from her co-chemist, went to Branch 266 to verify the information that she was supposed to appear and testify on April 11, 2002. She even checked from the records of the court who received the subpoena for her. She took the time to verify the identity of one PO3 Villa x x x. She attended and testified during the April 18, 2002 hearing which was previously scheduled for the hearing on the petition for bail. Her actuations clearly dispelled the notion that she intentionally absented herself from the April 4, 5, and 11, 2002 hearings x x x. Respondent judge's witness, Allan Alvarez testified that he personally served the subpoena upon verbal order of respondent judge. This was the first time Allan Alvarez, a clerk at Branch 266, served a subpoena. x x x It turned out, that on April 2, 2002, Allan Alvarez served the subpoena to a certain PO3 E. Villa x x x when he was informed that P/Insp. Sumobay was not in her office at the Physical Science Division. Worst, it cannot be verified whether it was really PO3 Villa who received and signed the subpoena since the policewoman was allegedly not in uniform then x x x. As to the bench warrant for Sumobay, respondent judge requested Prosecutor Tolentino to deliver the warrant, which, like the subpoena, never reached its intended recipient. Prosecutor Tolentino admitted having been delegated by respondent judge to deliver the bench warrant, but was unsure of what to do with it. Per his account, he even went to the narcotics group of the Office of the President which knew nothing of the arrest of the Chinese nationals. Later, he handed it to a certain Butoya allegedly in the presence of PNP Director Efren Fernandez, who, when allowed to offer his side, denied being present during the delivery. By the time Sumobay made her appearance during the April 18, 2002 bail hearing, everything was virtually a formality as the accused were already out on bail. The above unfortunate developments could have been avoided had respondent judge exercised conscientiousness expected of him under the given situation. As it were, he personally entrusted the service of a subpoena and a bench warrant to persons not belonging to the Process Service. It is not surprising then that Allan Alvarez, a clerk, did not know what to do when he served the subpoena intended for Sumobay. And respondent judge has not offered an explanation for this decision. The Court takes stock of the fact that the original of the subpoena for Sumobay, received by Police Officer 3 Villa, was filed by Alvarez in the case folder. This reality, viewed with Sumobay's absence in the April 4 and 5 2002 bail hearings, ought to have whetted respondent judge's curiosity and prompted him to inquire on whether the subpoena in question reached the intended recipient. According to the Investigating Justice, respondent judge committed the following inculpatory acts: (1) ordering a clerk to serve the subpoena; (2) ordering a prosecutor to serve the orders of arrest/bench warrant; (3) failing to check if the subpoenas were personally received by the police officers indicated therein; (4) preterminating the hearings for the petition for bail for the reason that counsel for the accused submitted the same for resolution; and (5) denying the prosecution the opportunity to present its evidence necessary for its opposition to the petition for bail, despite two more hearings set for that purpose.15 We agree that these acts in turn translate into violation of Canon 3 of the Code of Judicial Conduct under the heading: "A judge should perform official duties honestly, and with impartiality and diligence," particularly the following Rules under it:

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Rule 3.01. A judge shall be faithful to the law and maintain professional competence; Rule 3.02. In every case, a judge shall endeavor diligently to ascertain the facts and the applicable law unswayed by partisan interest, public opinion or fear or criticism; Rule 3.08. A judge should diligently discharge administrative responsibilities, maintain professional competence in court management; and Rule 3.09. A judge should organize and supervise the court personnel to ensure prompt and efficient dispatch of business and require at all times the observance of high standards of public service and fidelity. While there is no evidence tending to show that he perverted his office for a consideration less than honest, respondent judge, to be sure, did not conduct himself with professional competence required by the Code. Proper and efficient court management is a judge's responsibility. He is directly responsible for the proper discharge of his official functions.16 And respondent judge's disinclination to give the prosecution an opportunity to oppose the petition for bail in Criminal Case No. 10537-D certainly invites suspicion on his partiality. The fact that respondent judge has already reached the compulsory retirement age does not render this case moot, let alone release him from liability incurred while in the active service. The jurisdiction that was ours at the filing of the complaint continues despite the fact that the respondent judge has bowed out of office during the pendency of this case. The Court, even in the extreme case of respondent's death having supervened, retains its jurisdiction to declare the respondent either innocent or guilty of the charge, as the case may be.17 For respondent judge's professional lapses, the Investigating Justice recommended that he be adjudged guilty of violation of Canon 3 of the Code of Judicial Conduct. The recommendation is well taken. In our view, the infractions committed by the respondent judge constitute, as a package, serious misconduct, a term which suggests a violation of an established and definite rule of action, an unlawful behavior, or a dereliction of duty. The complaint of Chief Prosecutor Zuo is, therefore, partly meritorious. Under Rule 140 of the Rules of Court, serious misconduct is punishable by a fine of PhP 20,000 to PhP 40,000 to dismissal from the service, forfeiture of all or part of one's benefits, and disqualification from appointment to any public office.18 Considering, however, that this appears to be respondent judge's first offense, a penalty of fine would be fair and reasonable. The Investigation Justice recommended a fine way beyond the PhP 40,000 threshold. WHEREFORE, this Court adjudges former Judge Rodrigo B. Lorenzo of the RTC, Branch 266 in Pasig CityGUILTY of violation of Canon 3, Rules 3.01, 3.02, 3.08, and 3.09 of the Code of Judicial Conduct. He is hereby meted the penalty of FINE in the amount of forty thousand pesos (PhP 40,000) to be deducted from his retirement benefits. The Office of the Court Administrator is hereby ordered to facilitate the processing of the retirement papers of Judge Lorenzo for the speedy release of his retirement benefits. SO ORDERED.

G.R. No. 176933

October 2, 2009

PEOPLE OF THE PHILIPPINES, Petitioner, vs. LUIS PLAZA Y BUCALON, Respondent. DECISION CARPIO MORALES, J.: Raising only questions of law, the Peoples petition for review on certiorari assails the January 31, 2007 Decision1of the Court of Appeals which affirmed the November 12, 2002 Order of the Regional Trial Court (RTC) of Surigao City, Br. 29 in Criminal Case No. 5144 (the case) fixing bail for the temporary liberty of Luis Bucalon Plaza alias Loloy Plaza (respondent) who was indicted for Murder. The case was originally raffled to Branch 30 of the Surigao RTC presided by Judge Floripinas Buyser (Judge Buyser). After the prosecution rested its case, respondent, with leave of court, filed a Demurrer to Evidence.2 The Demurrer was denied by Judge Buyser by Order3 of March 14, 2002, the pertinent portion of which reads: xxxx The evidence thus presented by the prosecution is sufficient to prove the guilt of the accused beyond reasonable doubt, but only for the crime of homicide and not for murder, as charged. This is because the qualifying circumstance of treachery alleged in the information cannot be appreciated in this case. x x x x (Emphasis and underscoring supplied) The defense thereupon presented evidence4 in the course of which respondent filed a Motion to Fix Amount of Bail Bond,5 contending that in view of Judge Buysers ruling that the prosecution evidence is sufficient to prove only Homicide, he could be released on bail. He thus prayed that the bail bond for his temporary liberty be fixed atP40,000.00 which he claimed was the usual bond for Homicide in the RTC of Surigao City and Surigao del Norte. In its Opposition to Motion to Fix Amount of Bail Bond,6 the prosecution contended, in the main, that the case being for Murder, it is non-bailable as the imposable penalty is reclusion temporal to death; that it is the public prosecutor who has exclusive jurisdiction to determine what crime the accused should be charged with; that the accused should have filed a motion/application to bail and not just a motion to fix the amount of the bail bond; that the accused had already waived his right to apply for bail at that stage of the proceedings; that Judge Buysers March 14, 2002 Order, being a mere opinion and not a ruling or a dispositive part thereof, produced no legal effect inasmuch as it had no jurisdiction to rule on a matter outside the Demurrer; and that under the Rules, the prosecution could still prove the existence of treachery on rebuttal after the defense has rested its case. During the hearing of the Motion to Fix Amount of Bail Bond, Senior State Prosecutor Rogelio Bagabuyo questioned Judge Buysers impartiality, prompting the judge to inhibit himself and to order the case transferred to Branch 29 of the RTC for further proceedings. Branch 29 Presiding Judge Jose Manuel Tan (Judge Tan) heard the Motion to Fix Amount of Bail Bond. By Order7 of November 12, 2002, Judge Tan, concurring with the finding of Judge Buyser that since the prosecution evidence proved only Homicide which is punishable by reclusion temporal and, therefore, bailable, ruled that respondent could no longer be

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denied bail. He accordingly granted respondents Motion and fixed the amount of his bond at P40,000. Petitioners motion for reconsideration cum prayer for inhibition of Judge Tan was denied for lack of merit.8 Respondent was subsequently released9 after he posted a P40,000 bond. Roberto Murcia (Roberto), the victims brother, impleading the People as co-petitioner, assailed the trial courts orders via petition for certiorari10 with the Court of Appeals. Roberto faulted Judge Tan for granting bail without an application for bail having been filed by respondent andwithout conducting the mandatory hearing to determine whether or not the prosecutions evidence is strong. The Office of the Solicitor General (OSG) adopted Robertos argument that the grant of bail to respondent without any separate hearing is contrary to prevailing jurisprudence. By Decision of January 31, 2007, the appellate court, observing that the allegations in respondents Motion to Fix Amount of Bail Bond constituted an application for bail, dismissed Robertos petition and affirmed Judge Tans orders.11 In its present petition, the People contends that THE COURT OF APPEALS DECIDED A QUESTION OF SUBSTANCE CONTRARY TO LAW AND SETTLED JURISPRUDENCE WHEN IT RULED THAT THE HEARING CONDUCTED SATISFIES THE REQUIREMENT OF DUE PROCESS AND THAT RESPONDENT IS ENTITLED TO BAIL12 (Underscoring supplied) Section 13, Article III of the Constitution provides that "All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law." Section 4 of Rule 114 of the Revised Rules of Court, as amended, thus provides that all persons in custody shall,before conviction by a regional trial court of an offense not punishable by death, reclusion perpetua or life imprisonment, be admitted to bail as a matter of right.1avvphi1 The exercise by the trial court of its discretionary power to grant bail to an accused charged with a capital offense thus depends on whether the evidence of guilt is strong. Stressing this point, this Court held: . . . [W]hen bail is discretionary, a hearing, whether summary or otherwise in the discretion of the court, should first be conducted to determine the existence of strong evidence or lack of it, against the accused to enable the judge to make an intelligent assessment of the evidence presented by the parties. A summary hearing is defined as "such brief and speedy method of receiving and considering the evidence of guilt as is practicable and consistent with the purpose of hearing which is merely to determine the weight of evidence for the purposes of bail." On such hearing, the court does not sit to try the merits or to enter into any nice inquiry as to the weight that ought to be allowed to the evidence for or against the accused, nor will it speculate on the outcome of the trial or on what further evidence may be therein offered and admitted. The course of inquiry may be left to the discretion of the court which may confine itself to receiving such evidence as has reference to substantial matters, avoiding unnecessary examination and cross examination."13 (Emphasis and underscoring supplied) Since Judge Tan concurred with the assessment by Judge Buyser of the prosecution evidence when he denied the Demurrer and the latters statement that the evidence was sufficient to convict respondent of Homicide, holding a summary hearing merely to

determine whether respondent was entitled to bail would have been unnecessary as the evidence in chief was already presented by the prosecution. The Peoples recourse to Section 5,14 Rule 114 of the Revised Rules of Criminal Procedure to support its contention that respondent should be denied bail is unavailing, for said Section clearly speaks of an application for bail filed by the accused after a judgment of conviction has already been handed down by the trial court. WHEREFORE, the petition is DENIED. SO ORDERED.

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G.R. No. 189122

March 17, 2010

JOSE ANTONIO LEVISTE, Petitioner, vs. THE COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, Respondents. DECISION CORONA, J.: Bail, the security given by an accused who is in the custody of the law for his release to guarantee his appearance before any court as may be required,1 is the answer of the criminal justice system to a vexing question: what is to be done with the accused, whose guilt has not yet been proven, in the "dubious interval," often years long, between arrest and final adjudication?2 Bail acts as a reconciling mechanism to accommodate both the accuseds interest in pretrial liberty and societys interest in assuring the accuseds presence at trial.3 Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment, the accused who has been sentenced to prison must typically begin serving time immediately unless, on application, he is admitted to bail.4 An accused not released on bail is incarcerated before an appellate court confirms that his conviction is legal and proper. An erroneously convicted accused who is denied bail loses his liberty to pay a debt to society he has never owed.5 Even if the conviction is subsequently affirmed, however, the accuseds interest in bail pending appeal includes freedom pending judicial review, opportunity to efficiently prepare his case and avoidance of potential hardships of prison.6 On the other hand, society has a compelling interest in protecting itself by swiftly incarcerating an individual who is found guilty beyond reasonable doubt of a crime serious enough to warrant prison time.7 Other recognized societal interests in the denial of bail pending appeal include the prevention of the accuseds flight from court custody, the protection of the community from potential danger and the avoidance of delay in punishment.8 Under what circumstances an accused may obtain bail pending appeal, then, is a delicate balance between the interests of society and those of the accused.9 Our rules authorize the proper courts to exercise discretion in the grant of bail pending appeal to those convicted by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment. In the exercise of that discretion, the proper courts are to be guided by the fundamental principle that the allowance of bail pending appeal should be exercised not with laxity but with grave caution and only for strong reasons, considering that the accused has been in fact convicted by the trial court.10 The Facts Charged with the murder of Rafael de las Alas, petitioner Jose Antonio Leviste was convicted by the Regional Trial Court of Makati City for the lesser crime of homicide and sentenced to suffer an indeterminate penalty of six years and one day of prision mayor as minimum to 12 years and one day of reclusion temporal as maximum.11 He appealed his conviction to the Court of Appeals.12 Pending appeal, he filed an urgent application for admission to bail pending appeal, citing his advanced age and health condition, and claiming the absence of any risk or possibility of flight on his part. The Court of Appeals denied petitioners application for bail.13 It invoked the bedrock principle in the matter of bail pending appeal, that the discretion to extend bail during the course of appeal should be exercised "with grave caution and only for strong reasons." Citing well-established jurisprudence, it ruled that bail is not a sick pass for an ailing or aged detainee or a prisoner needing medical care outside the prison facility. It found that petitioner

failed to show that he suffers from ailment of such gravity that his continued confinement during trial will permanently impair his health or put his life in danger. x x x Notably, the physical condition of [petitioner] does not prevent him from seeking medical attention while confined in prison, though he clearly preferred to be attended by his personal physician.14 For purposes of determining whether petitioners application for bail could be allowed pending appeal, the Court of Appeals also considered the fact of petitioners conviction. It made a preliminary evaluation of petitioners case and made a prima facie determination that there was no reason substantial enough to overturn the evidence of petitioners guilt. Petitioners motion for reconsideration was denied.15 Petitioner now questions as grave abuse of discretion the denial of his application for bail, considering that none of the conditions justifying denial of bail under the third paragraph of Section 5, Rule 114 of the Rules of Court was present. Petitioners theory is that, where the penalty imposed by the trial court is more than six years but not more than 20 years and the circumstances mentioned in the third paragraph of Section 5 are absent, bail must be granted to an appellant pending appeal. The Issue The question presented to the Court is this: in an application for bail pending appeal by an appellant sentenced by the trial court to a penalty of imprisonment for more than six years, does the discretionary nature of the grant of bail pending appeal mean that bail should automatically be granted absent any of the circumstances mentioned in the third paragraph of Section 5, Rule 114 of the Rules of Court? Section 5, Rule 114 of the Rules of Court provides: Sec. 5. Bail, when discretionary. Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment, admission to bail is discretionary. The application for bail may be filed and acted upon by the trial court despite the filing of a notice of appeal, provided it has not transmitted the original record to the appellate court. However, if the decision of the trial court convicting the accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed with and resolved by the appellate court. Should the court grant the application, the accused may be allowed to continue on provisional liberty during the pendency of the appeal under the same bail subject to the consent of the bondsman. If the penalty imposed by the trial court is imprisonment exceeding six (6) years, the accused shall be denied bail, or his bail shall be cancelled upon a showing by the prosecution, with notice to the accused, of the following or other similar circumstances: (a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration; (b) That he has previously escaped from legal confinement, evaded sentence, or violated the conditions of his bail without a valid justification; (c) That he committed the offense while under probation, parole, or conditional pardon; (d) That the circumstances of his case indicate the probability of flight if released on bail; or

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(e) That there is undue risk that he may commit another crime during the pendency of the appeal. The appellate court may, motu proprio or on motion of any party, review the resolution of the Regional Trial Court after notice to the adverse party in either case. (emphasis supplied) Petitioner claims that, in the absence of any of the circumstances mentioned in the third paragraph of Section 5, Rule 114 of the Rules of Court, an application for bail by an appellant sentenced by the Regional Trial Court to a penalty of more than six years imprisonment should automatically be granted. Petitioners stance is contrary to fundamental considerations of procedural and substantive rules. Basic Procedural Concerns Forbid Grant of Petition Petitioner filed this special civil action for certiorari under Rule 65 of the Rules of Court to assail the denial by the Court of Appeals of his urgent application for admission to bail pending appeal. While the said remedy may be resorted to challenge an interlocutory order, such remedy is proper only where the interlocutory order was rendered without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction.16 Other than the sweeping averment that "[t]he Court of Appeals committed grave abuse of discretion in denying petitioners application for bail pending appeal despite the fact that none of the conditions to justify the denial thereof under Rule 114, Section 5 [is] present, much less proven by the prosecution,"17 however, petitioner actually failed to establish that the Court of Appeals indeed acted with grave abuse of discretion. He simply relies on his claim that the Court of Appeals should have granted bail in view of the absence of any of the circumstances enumerated in the third paragraph of Section 5, Rule 114 of the Rules of Court. Furthermore, petitioner asserts that the Court of Appeals committed a grave error and prejudged the appeal by denying his application for bail on the ground that the evidence that he committed a capital offense was strong. We disagree. It cannot be said that the Court of Appeals issued the assailed resolution without or in excess of its jurisdiction. One, pending appeal of a conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment, admission to bail is expressly declared to be discretionary. Two, the discretion to allow or disallow bail pending appeal in a case such as this where the decision of the trial court convicting the accused changed the nature of the offense from non-bailable to bailable is exclusively lodged by the rules with the appellate court. Thus, the Court of Appeals had jurisdiction to hear and resolve petitioners urgent application for admission to bail pending appeal. Neither can it be correctly claimed that the Court of Appeals committed grave abuse of discretion when it denied petitioners application for bail pending appeal. Grave abuse of discretion is not simply an error in judgmentbut it is such a capricious and whimsical exercise of judgment which is tantamount to lack of jurisdiction.18Ordinary abuse of discretion is insufficient. The abuse of discretion must be grave, that is, the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility.19 It must be so patent and gross as to amount to evasion of positive duty or to a virtual refusal to perform the duty enjoined by or to act at all in contemplation of the law. In other words, for a petition for certiorari to prosper, there must be a clear showing of caprice and arbitrariness in the exercise of discretion.20 Petitioner never alleged that, in denying his application for bail pending appeal, the Court of Appeals exercised its judgment capriciously and whimsically. No capriciousness or arbitrariness in the exercise of discretion was ever imputed to the appellate

court. Nor could any such implication or imputation be inferred. As observed earlier, the Court of Appeals exercised grave caution in the exercise of its discretion. The denial of petitioners application for bail pending appeal was not unreasonable but was the result of a thorough assessment of petitioners claim of ill health. By making a preliminary appraisal of the merits of the case for the purpose of granting bail, the court also determined whether the appeal was frivolous or not, or whether it raised a substantial question. The appellate court did not exercise its discretion in a careless manner but followed doctrinal rulings of this Court. At best, petitioner only points out the Court of Appeals erroneous application and interpretation of Section 5, Rule 114 of the Rules of Court. However, the extraordinary writ of certiorari will not be issued to cure errors in proceedings or erroneous conclusions of law or fact.21 In this connection, Lee v. People22 is apropos: Certiorari may not be availed of where it is not shown that the respondent court lacked or exceeded its jurisdiction over the case, even if its findings are not correct. Its questioned acts would at most constitute errors of law and not abuse of discretion correctible by certiorari. In other words, certiorari will issue only to correct errors of jurisdiction and not to correct errors of procedure or mistakes in the courts findings and conclusions. An interlocutory order may be assailed by certiorari or prohibition only when it is shown that the court acted without or in excess of jurisdiction or with grave abuse of discretion. However, this Court generally frowns upon this remedial measure as regards interlocutory orders. To tolerate the practice of allowing interlocutory orders to be the subject of review by certiorari will not only delay the administration of justice but will also unduly burden the courts.23 (emphasis supplied) Wording of Third Paragraph of Section 5, Rule 114 Contradicts Petitioners Interpretation The third paragraph of Section 5, Rule 114 applies to two scenarios where the penalty imposed on the appellant applying for bail is imprisonment exceeding six years. The first scenario deals with the circumstances enumerated in the said paragraph (namely, recidivism, quasi-recidivism, habitual delinquency or commission of the crime aggravated by the circumstance of reiteration; previous escape from legal confinement, evasion of sentence or violation of the conditions of his bail without a valid justification; commission of the offense while under probation, parole or conditional pardon; circumstances indicating the probability of flight if released on bail; undue risk of committing another crime during the pendency of the appeal; or other similar circumstances) not present. The second scenario contemplates the existence of at least one of the said circumstances. The implications of this distinction are discussed with erudition and clarity in the commentary of retired Supreme Court Justice Florenz D. Regalado, an authority in remedial law: Under the present revised Rule 114, the availability of bail to an accused may be summarized in the following rules: xxx xxx xxx

e. After conviction by the Regional Trial Court wherein a penalty of imprisonment exceeding 6 years but not more than 20 years is imposed, and not one of the circumstances stated in Sec. 5 or any other similar circumstance is present and proved, bail is a matter of discretion (Sec. 5); f. After conviction by the Regional Trial Court imposing a penalty of imprisonment exceeding 6 years but not more than 20 years, and any of the circumstances stated in Sec. 5 or any other similar circumstance is present

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and proved, no bail shall be granted by said court (Sec. 5); x x x24 (emphasis supplied) Retired Court of Appeals Justice Oscar M. Herrera, another authority in remedial law, is of the same thinking: Bail is either a matter of right or of discretion. It is a matter of right when the offense charged is not punishable by death, reclusion perpetua or life imprisonment. On the other hand, upon conviction by the Regional Trial Court of an offense not punishable death, reclusion perpetua or life imprisonment, bail becomes a matter of discretion. Similarly, if the court imposed a penalty of imprisonment exceeding six (6) years then bail is a matter of discretion, except when any of the enumerated circumstances under paragraph 3 of Section 5, Rule 114 is present then bail shall be denied.25 (emphasis supplied) In the first situation, bail is a matter of sound judicial discretion. This means that, if none of the circumstances mentioned in the third paragraph of Section 5, Rule 114 is present, the appellate court has the discretion to grant or deny bail. An application for bail pending appeal may be denied even if the bailnegating26 circumstances in the third paragraph of Section 5, Rule 114 are absent. In other words, the appellate courts denial of bail pending appeal where none of the said circumstances exists does not, by and of itself, constitute abuse of discretion. On the other hand, in the second situation, the appellate court exercises a more stringent discretion, that is, to carefully ascertain whether any of the enumerated circumstances in fact exists. If it so determines, it has no other option except to deny or revoke bail pending appeal. Conversely, if the appellate court grants bail pending appeal, grave abuse of discretion will thereby be committed. Given these two distinct scenarios, therefore, any application for bail pending appeal should be viewed from the perspective of two stages: (1) the determination of discretion stage, where the appellate court must determine whether any of the circumstances in the third paragraph of Section 5, Rule 114 is present; this will establish whether or not the appellate court will exercise sound discretion or stringent discretion in resolving the application for bail pending appeal and (2) the exercise of discretion stage where, assuming the appellants case falls within the first scenario allowing the exercise of sound discretion, the appellate court may consider all relevant circumstances, other than those mentioned in the third paragraph of Section 5, Rule 114, including the demands of equity and justice;27 on the basis thereof, it may either allow or disallow bail. On the other hand, if the appellants case falls within the second scenario, the appellate courts stringent discretion requires that the exercise thereof be primarily focused on the determination of the proof of the presence of any of the circumstances that are prejudicial to the allowance of bail. This is so because the existence of any of those circumstances is by itself sufficient to deny or revoke bail. Nonetheless, a finding that none of the said circumstances is present will not automatically result in the grant of bail. Such finding will simply authorize the court to use the less stringent sound discretion approach. Petitioner disregards the fine yet substantial distinction between the two different situations that are governed by the third paragraph of Section 5, Rule 114. Instead, petitioner insists on a simplistic treatment that unduly dilutes the import of the said provision and trivializes the established policy governing the grant of bail pending appeal. In particular, a careful reading of petitioners arguments reveals that it interprets the third paragraph of Section 5, Rule 114 to cover all situations where the penalty imposed by the trial court on the appellant is imprisonment exceeding six years. For petitioner, in such a situation, the grant of bail pending appeal is always subject to limited discretion, that is, one restricted to the

determination of whether any of the five bail-negating circumstances exists. The implication of this position is that, if any such circumstance is present, then bail will be denied. Otherwise, bail will be granted pending appeal. Petitioners theory therefore reduces the appellate court into a mere fact-finding body whose authority is limited to determining whether any of the five circumstances mentioned in the third paragraph of Section 5, Rule 114 exists. This unduly constricts its "discretion" into merely filling out the checklist of circumstances in the third paragraph of Section 5, Rule 114 in all instances where the penalty imposed by the Regional Trial Court on the appellant is imprisonment exceeding six years. In short, petitioners interpretation severely curbs the discretion of the appellate court by requiring it to determine a singular factual issue whether any of the five bail-negating circumstances is present. However, judicial discretion has been defined as "choice."28 Choice occurs where, between "two alternatives or among a possibly infinite number (of options)," there is "more than one possible outcome, with the selection of the outcome left to the decision maker."29 On the other hand, the establishment of a clearly defined rule of action is the end of discretion.30 Thus, by severely clipping the appellate courts discretion and relegating that tribunal to a mere fact-finding body in applications for bail pending appeal in all instances where the penalty imposed by the trial court on the appellant is imprisonment exceeding six years, petitioners theory effectively renders nugatory the provision that "upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment, admission to bail is discretionary." The judicial discretion granted to the proper court (the Court of Appeals in this case) to rule on applications for bail pending appeal must necessarily involve the exercise of judgment on the part of the court. The court must be allowed reasonable latitude to express its own view of the case, its appreciation of the facts and its understanding of the applicable law on the matter.31 In view of the grave caution required of it, the court should consider whether or not, under all circumstances, the accused will be present to abide by his punishment if his conviction is affirmed.32 It should also give due regard to any other pertinent matters beyond the record of the particular case, such as the record, character and reputation of the applicant,33 among other things. More importantly, the discretion to determine allowance or disallowance of bail pending appeal necessarily includes, at the very least, an initial determination that the appeal is not frivolous but raises a substantial question of law or fact which must be determined by the appellate court.34 In other words, a threshold requirement for the grant of bail is a showing that the appeal is not pro forma and merely intended for delay but presents a fairly debatable issue.35 This must be so; otherwise, the appellate courts will be deluged with frivolous and timewasting appeals made for the purpose of taking advantage of a lenient attitude on bail pending appeal. Even more significantly, this comports with the very strong presumption on appeal that the lower courts exercise of discretionary power was sound,36 specially since the rules on criminal procedure require that no judgment shall be reversed or modified by the Court of Appeals except for substantial error.37 Moreover, to limit the bail-negating circumstances to the five situations mentioned in the third paragraph of Section 5, Rule 114 is wrong. By restricting the bail-negating circumstances to those expressly mentioned, petitioner applies the expressio unius est exclusio alterius38 rule in statutory construction. However, the very language of the third paragraph of Section 5, Rule 114 contradicts the idea that the enumeration of the five situations therein was meant to be exclusive. The provision categorically refers to "the following or other similar circumstances." Hence, under the rules, similarly relevant situations other than those listed in the third paragraph of Section 5, Rule 114 may be considered in the allowance, denial or revocation of bail pending appeal.

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Finally, laws and rules should not be interpreted in such a way that leads to unreasonable or senseless consequences. An absurd situation will result from adopting petitioners interpretation that, where the penalty imposed by the trial court is imprisonment exceeding six years, bail ought to be granted if none of the listed bail-negating circumstances exists. Allowance of bail pending appeal in cases where the penalty imposed is more than six years of imprisonment will be more lenient than in cases where the penalty imposed does not exceed six years. While denial or revocation of bail in cases where the penalty imposed is more than six years imprisonment must be made only if any of the five bail-negating conditions is present, bail pending appeal in cases where the penalty imposed does not exceed six years imprisonment may be denied even without those conditions. Is it reasonable and in conformity with the dictates of justice that bail pending appeal be more accessible to those convicted of serious offenses, compared to those convicted of less serious crimes? Petitioners Theory Deviates from History And Evolution of Rule on Bail Pending Appeal Petitioners interpretation deviates from, even radically alters, the history and evolution of the provisions on bail pending appeal. The relevant original provisions on bail were provided under Sections 3 to 6, Rule 110 of the 1940 Rules of Criminal Procedure: Sec. 3. Offenses less than capital before conviction by the Court of First Instance. After judgment by a municipal judge and before conviction by the Court of First Instance, the defendant shall be admitted to bail as of right. Sec. 4. Non-capital offenses after conviction by the Court of First Instance. After conviction by the Court of First Instance, defendant may, upon application, be bailed at the discretion of the court. Sec. 5. Capital offense defined. A capital offense, as the term is used in this rule, is an offense which, under the law existing at the time of its commission, and at the time of the application to be admitted to bail, may be punished by death. Sec. 6. Capital offense not bailable. No person in custody for the commission of a capital offense shall be admitted to bail if the evidence of his guilt is strong. The aforementioned provisions were reproduced as Sections 3 to 6, Rule 114 of the 1964 Rules of Criminal Procedure and then of the 1985 Rules of Criminal Procedure. They were modified in 1988 to read as follows: Sec. 3. Bail, a matter of right; exception. All persons in custody, shall before final conviction be entitled to bail as a matter of right, except those charged with a capital offense or an offense which, under the law at the time of its commission and at the time of the application for bail, is punishable by reclusion perpetua, when evidence of guilt is strong. Sec. 4. Capital offense, defined. A capital offense, as the term is used in this Rules, is an offense which, under the law existing at the time of its commission, and at the time of the application to be admitted to bail, may be punished by death. (emphasis supplied) The significance of the above changes was clarified in Administrative Circular No. 2-92 dated January 20, 1992 as follows:

The basic governing principle on the right of the accused to bail is laid down in Section 3 of Rule 114 of the 1985 Rules on Criminal Procedure, as amended, which provides: Sec. 3. Bail, a matter of right; exception. All persons in custody, shall before final conviction, be entitled to bail as a matter of right, except those charged with a capital offense or an offense which, under the law at the time of its commission and at the time of the application for bail, is punishable by reclusion perpetua, when evidence of guilt is strong. Pursuant to the aforecited provision, an accused who is charged with a capital offense or an offense punishable by reclusion perpetua, shall no longer be entitled to bail as a matter of right even if he appeals the case to this Court since his conviction clearly imports that the evidence of his guilt of the offense charged is strong. Hence, for the guidelines of the bench and bar with respect to future as well as pending cases before the trial courts, this Court en banc lays down the following policies concerning the effectivity of the bail of the accused, to wit: 1) When an accused is charged with an offense which under the law existing at the time of its commission and at the time of the application for bail is punishable by a penalty lower than reclusion perpetua and is out on bail, and after trial is convicted by the trial court of the offense charged or of a lesser offense than that charged in the complaint or information, he may be allowed to remain free on his original bail pending the resolution of his appeal, unless the proper court directs otherwise pursuant to Rule 114, Sec. 2 (a) of the Rules of Court, as amended; 2) When an accused is charged with a capital offense or an offense which under the law at the time of its commission and at the time of the application for bail is punishable by reclusion perpetua and is out on bail, and after trial is convicted by the trial court of a lesser offense than that charged in the complaint or information, the same rule set forth in the preceding paragraph shall be applied; 3) When an accused is charged with a capital offense or an offense which under the law at the time of its commission and at the time of the application for bail is punishable by reclusion perpetua and is out on bail and after trial is convicted by the trial court of the offense charged, his bond shall be cancelled and the accused shall be placed in confinement pending resolution of his appeal. As to criminal cases covered under the third rule abovecited, which are now pending appeal before his Court where the accused is still on provisional liberty, the following rules are laid down: 1) This Court shall order the bondsman to surrender the accused within ten (10) days from notice to the court of origin. The bondsman thereupon, shall inform this Court of the fact of surrender, after which, the cancellation of the bond shall be ordered by this Court; 2) The RTC shall order the transmittal of the accused to the National Bureau of Prisons thru the Philippine National Police as the accused shall remain under confinement pending resolution of his appeal; 3) If the accused-appellant is not surrendered within the aforesaid period of ten (10) days, his bond shall be forfeited and an order of arrest shall be issued by this Court. The appeal taken by the accused shall also be dismissed under Section 8, Rule 124 of the Revised Rules of Court as he shall be deemed to have jumped his bail. (emphasis supplied)

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Amendments were further introduced in Administrative Circular No. 12-94 dated August 16, 1994 which brought about important changes in the said rules as follows: SECTION 4. Bail, a matter of right. All persons in custody shall: (a) before or after conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities and Municipal Circuit Trial Court, and (b) before conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment, be admitted to bail as a matter of right, with sufficient sureties, or be released on recognizance as prescribed by law of this Rule. (3a) SECTION 5. Bail, when discretionary. Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment, the court, on application, may admit the accused to bail. The court, in its discretion, may allow the accused to continue on provisional liberty under the same bail bond during the period of appeal subject to the consent of the bondsman. If the court imposed a penalty of imprisonment exceeding six (6) years but not more than twenty (20) years, the accused shall be denied bail, or his bail previously granted shall be cancelled, upon a showing by the prosecution, with notice to the accused, of the following or other similar circumstances: (a) That the accused is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration; (b) That the accused is found to have previously escaped from legal confinement, evaded sentence or has violated the conditions of his bail without valid justification; (c) That the accused committed the offense while on probation, parole, under conditional pardon; (d) That the circumstances of the accused or his case indicate the probability of flight if released on bail; or (e) That there is undue risk that during the pendency of the appeal, the accused may commit another crime. The appellate court may review the resolution of the Regional Trial Court, on motion and with notice to the adverse party. (n) SECTION 6. Capital offense, defined. A capital offense, as the term is used in these Rules, is an offense which, under the law existing at the time of its commission and at the time of the application to be admitted to bail, maybe punished with death. (4) SECTION 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, when evidence of guilt is strong, shall be admitted to bail regardless of the stage of the criminal prosecution. (emphasis supplied) The above amendments of Administrative Circular No. 12-94 to Rule 114 were thereafter amended by A.M. No. 00-5-03-SC to read as they do now. The development over time of these rules reveals an orientation towards a more restrictive approach to bail pending appeal. It indicates a faithful adherence to the bedrock principle, that is, bail pending appeal should be allowed not with leniency but with grave caution and only for strong reasons. The earliest rules on the matter made all grants of bail after conviction for a non-capital offense by the Court of First Instance

(predecessor of the Regional Trial Court) discretionary. The 1988 amendments made applications for bail pending appeal favorable to the appellant-applicant. Bail before final conviction in trial courts for non-capital offenses or offenses not punishable by reclusion perpetua was a matter of right, meaning, admission to bail was a matter of right at any stage of the action where the charge was not for a capital offense or was not punished by reclusion perpetua.39 The amendments introduced by Administrative Circular No. 1294 made bail pending appeal (of a conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment) discretionary. Thus, Administrative Circular No. 12-94 laid down more stringent rules on the matter of post-conviction grant of bail. A.M. No. 00-5-03-SC modified Administrative Circular No. 12-94 by clearly identifying which court has authority to act on applications for bail pending appeal under certain conditions and in particular situations. More importantly, it reiterated the "tough on bail pending appeal" configuration of Administrative Circular No. 12-94. In particular, it amended Section 3 of the 1988 Rules on Criminal Procedure which entitled the accused to bail as a matter of right before final conviction.40 Under the present rule, bail is a matter of discretion upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment. Indeed, pursuant to the "tough on bail pending appeal" policy, the presence of bail-negating conditions mandates the denial or revocation of bail pending appeal such that those circumstances are deemed to be as grave as conviction by the trial court for an offense punishable by death, reclusion perpetua or life imprisonment where bail is prohibited. Now, what is more in consonance with a stringent standards approach to bail pending appeal? What is more in conformity with an ex abundante cautelam view of bail pending appeal? Is it a rule which favors the automatic grant of bail in the absence of any of the circumstances under the third paragraph of Section 5, Rule 114? Or is it a rule that authorizes the denial of bail after due consideration of all relevant circumstances, even if none of the circumstances under the third paragraph of Section 5, Rule 114 is present? The present inclination of the rules on criminal procedure to frown on bail pending appeal parallels the approach adopted in the United States where our original constitutional and procedural provisions on bail emanated.41While this is of course not to be followed blindly, it nonetheless shows that our treatment of bail pending appeal is no different from that in other democratic societies. In our jurisdiction, the trend towards a strict attitude towards the allowance of bail pending appeal is anchored on the principle that judicial discretion particularly with respect to extending bail should be exercised not with laxity but with caution and only for strong reasons.42 In fact, it has even been pointed out that "grave caution that must attend the exercise of judicial discretion in granting bail to a convicted accused is best illustrated and exemplified in Administrative Circular No. 12-94 amending Rule 114, Section 5."43 Furthermore, this Court has been guided by the following: The importance attached to conviction is due to the underlying principle that bail should be granted only where it is uncertain whether the accused is guilty or innocent, and therefore, where that uncertainty is removed by conviction it would, generally speaking, be absurd to admit to bail. After a person has been tried and convicted the presumption of innocence which may be relied upon in prior applications is rebutted, and the burden is upon the accused to show error in the conviction. From another point of view it may be properly argued that the probability of ultimate punishment is so enhanced by the conviction that the accused is much more likely to attempt to escape if liberated on bail than before conviction.44 (emphasis supplied)

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As a matter of fact, endorsing the reasoning quoted above and relying thereon, the Court declared in Yap v. Court of Appeals45 (promulgated in 2001 when the present rules were already effective), that denial of bail pending appeal is "a matter of wise discretion." A Final Word Section 13, Article II of the Constitution provides: SEC. 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. x x x (emphasis supplied)1avvphi1 After conviction by the trial court, the presumption of innocence terminates and, accordingly, the constitutional right to bail ends.46 From then on, the grant of bail is subject to judicial discretion. At the risk of being repetitious, such discretion must be exercised with grave caution and only for strong reasons. Considering that the accused was in fact convicted by the trial court, allowance of bail pending appeal should be guided by a stringent-standards approach. This judicial disposition finds strong support in the history and evolution of the rules on bail and the language of Section 5, Rule 114 of the Rules of Court. It is likewise consistent with the trial courts initial determination that the accused should be in prison. Furthermore, letting the accused out on bail despite his conviction may destroy the deterrent effect of our criminal laws. This is especially germane to bail pending appeal because long delays often separate sentencing in the trial court and appellate review. In addition, at the post-conviction stage, the accused faces a certain prison sentence and thus may be more likely to flee regardless of bail bonds or other release conditions. Finally, permitting bail too freely in spite of conviction invites frivolous and time-wasting appeals which will make a mockery of our criminal justice system and court processes. WHEREFORE, the petition is hereby DISMISSED. The Court of Appeals is hereby directed to resolve and decide, on the merits, the appeal of petitioner Jose Antonio Leviste docketed as CA-G.R. CR No. 32159, with dispatch. Costs against petitioner. SO ORDERED.

A.M. No. RTJ-09-2190

April 23, 2010

HADJA SOHURAH DIPATUAN, Complainant, vs. JUDGE MAMINDIARA P. MANGOTARA, Respondent. DECISION PERALTA, J.: Before this Court is an Affidavit-Complaint1 dated May 12, 2008, filed by complainant Hadja Sohurah Dipatuan against respondent Judge Mamindiara P. Mangotara, Presiding Judge, Regional Trial Court (Regional Trial Court) of Iligan City, Branch 1, for Gross Ignorance of the Law and Grave Abuse of Authority. The antecedent facts of the case, as culled from the records, are as follows: On September 5, 2001, a criminal case for murder, docketed as Criminal Case No. 3620-01 was filed against Ishak M. Abdul and Paisal Dipatuan, complainants husband, before the Regional Trial Court of Marawi City, Branch 10, then presided by Judge Yusoph Pangadapun, for the killing of Elias Ali Taher. Judge Pangadapun died during the pendency of the case. The case was transferred to different judges designated by the Supreme Court to act as Presiding Judge of Branch 10, namely, Judge Amer Ibrahim, Judge Rasad Balindog, Judge Macaundas Hadjirasul, Judge Moslemen Macarambon, respondent Judge Mamindiara Mangotara, and Judge Lacsaman Busran. Before Judge Macarambon could render a decision on the case, he was appointed as COMELEC Commissioner. By virtue of Administrative Order No. 201-20072 dated November 16, 2007, the Supreme Court designated respondent Judge Mamindiara Mangotara, Presiding Judge of the RTC of Iligan City, Branch 1, Lanao Del Norte, as Acting Presiding Judge of the RTC of Marawi City, Branch 10. Later on, Mangotara suffered a mild stroke; hence, the Supreme Court, in a Resolution dated December 26, 2007, revoked the earlier designation of Judge Mangotara and designated Judge Lacsaman M. Busran as the new Acting Presiding Judge of Branch 10, by virtue of Administrative Order No. 220-2007. On December 28, 2007, Mangotara issued the disputed Decision3 in Criminal Case No. 3620-01 and found both accused Abdul and Dipatuan guilty beyond reasonable doubt of the crime of murder and sentenced them to imprisonment of reclusion perpetua. The trial court ruled that the prosecution was able to establish that Abdul and co-accused Dipatuan acted in conspiracy in shooting and killing the victim Elias Ali Taher. The court, likewise, increased the accuseds bail bond from P75,000.00 to P200,000.00. On January 21, 2008, the accused filed a motion for reconsideration of the Decision. In an Order dated February 1, 2008, Mangotara denied the motion for lack of merit.4 In another Order of the same date, Mangotara applied the same increased bail bond with regard to accused Ishak M. Abdul.5 However, again on the same date, Mangotara issued another Order recalling the foregoing Orders.6 Thus, on May 14, 2008, complainant filed the instant complaint. Complainant alleged that Judge Mangotara displayed bias and prejudice against her husband Dipatuan when he did not inhibit himself from the case, considering that he is a relative by affinity and consanguinity of the victim Elias Ali Taher and that he also came from Maguing, Lanao Del Sur where Taher also used to reside. Complainant also pointed out that despite the designation of Judge Busran as Acting Presiding Judge of Branch 10 on December 26, 2007, Judge Mangotara, acting with grave abuse of authority, illegally and maliciously rendered the December 28, 2007 Decision as well as the two Orders dated February 1, 2008.

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On May 26, 2008, the Office of the Court Administrator (OCA) directed Mangotara to file his Comment on the instant complaint.7 In his Comment8 dated June 24, 2008, Mangotara averred that he decided the case on December 28, 2007 as it had been pending for almost seven (7) years. He clarified that his relationship to the victim is distant and not a basis for disqualification of judges under Rule 137 of the Rules of Court. Mangotara explained that he received notice of Judge Busrans designation as the new Presiding Judge only on January 26, 2008 and that when he issued the two Orders dated February 1, 2008, Judge Busran had not yet assumed office; and in the honest belief that Abdul was also entitled to the benefits of the bail bond fixed by the court for Dipatuan. Mangotara added that, upon realizing the irregularity of the two Orders issued on February 1, 2008, he immediately rectified the same and recalled the Orders on the same day. Finally, Mangotara maintained that his decision was supported by the evidence on record and that the instant administrative complaint was only meant to embarrass him and destroy his honor and reputation. Subsequently, in its Memorandum9 dated May 18, 2009, the OCA found Mangotara guilty of gross ignorance of the law and abuse of authority. The OCA, likewise, recommended that the instant complaint against Mangotara be re-docketed as a regular administrative matter. However, in its Resolution10 dated July 22, 2009, the Court resolved to re-docket the instant complaint as a regular administrative matter and refer the complaint to Court of Appeals Associate Justice Portia Alio-Hormachuelos for investigation, report and recommendation. We adopt the recommendation of the Investigating Justice. On the charge of bias and partiality resulting to grave abuse of authority We rule in the negative. As correctly observed by the Investigating Justice, complainant indeed failed to specify the degree of relationship of respondent Judge to a party in the subject case. She failed to present any clear and convincing proof that respondent Judge was related within the prohibited degree with the victim. Section 1, Rule 137 of the Revised Rules of Court states: Sec. 1. Disqualification of Judges. - No judge or judicial officer shall sit in any case in which he, or his wife or child, is pecuniarily interested as heir, legatee, creditor or otherwise, or in which he is related to either party within the sixth degree of consanguinity or affinity, or to counsel within the fourth degree, computed according to the rules of the civil law, or in which he has been executor, administrator, guardian, trustee or counsel, or in which he has presided in any inferior court when his ruling or decision is the subject of review, without the written consent of all parties in interest, signed by them and entered upon the record. A judge may, in the exercise of his sound discretion, disqualify himself from sitting in a case, for just or valid reasons other than those mentioned above. This being the case, the inhibition was indeed discretionary or voluntary as the same was primarily a matter of conscience and sound discretion on the part of the respondent Judge. When Mangotara chose not to inhibit and proceed with the promulgation of the disputed decision, he cannot be faulted by doing so. Significantly, complainant while asserting that Mangotara should have inhibited in the said case, she nonetheless failed to institute any motion for inhibition. Moreover, complainant failed to cite any specific act that would indicate bias, prejudice or vengeance warranting respondents voluntary inhibition from the case. Complainant merely pointed on the alleged adverse and erroneous rulings of respondent

Judge to their prejudice. By themselves, however, they do not sufficiently prove bias and prejudice. To be disqualifying, the bias and prejudice must be shown to have stemmed from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case. Opinions formed in the course of judicial proceedings, although erroneous, as long as they are based on the evidence presented and conduct observed by the judge, do not prove personal bias or prejudice on the part of the judge. As a general rule, repeated rulings against a litigant, no matter how erroneous and vigorously and consistently expressed, are not a basis for disqualification of a judge on grounds of bias and prejudice. Extrinsic evidence is required to establish bias, bad faith, malice or corrupt purpose, in addition to the palpable error which may be inferred from the decision or order itself. Although the decision may seem so erroneous as to raise doubts concerning a judge's integrity, absent extrinsic evidence, the decision itself would be insufficient to establish a case against the judge.11 Mere suspicion of partiality is not enough. There must be sufficient evidence to prove the same, as well as a manifest showing of bias and partiality stemming from an extrajudicial source or some other basis. A judge's conduct must be clearly indicative of arbitrariness and prejudice before it can be stigmatized as biased and partial. As there was no substantial evidence to hold Mangotara liable on this point, the Investigating Justice correctly recommended the dismissal of this charge against him. Moreover, we likewise found no basis to hold respondent Judge administratively liable anent his issuance of the Decision dated December 28, 2007. As aptly observed by the Investigating Justice, Mangotara acted in good faith when he issued the subject decision, since he received notice of his replacement by Judge Busran, dated December 26, 2007, only on January 26, 2008. It must be stressed that not every error or mistake that a judge commits in the performance of his duties renders him liable, unless he is shown to have acted in bad faith or with deliberate intent to do an injustice. Good faith and absence of malice, corrupt motives or improper considerations are sufficient defenses in which a judge can find refuge. In this case, complainant adduced no evidence that Mangotara was moved by bad faith when he issued the disputed order. As to the charge of gross ignorance of the law As to the charge of gross ignorance of the law in so far as his act of increasing the bail bond of the accused instead of cancelling it, Mangotara did not deny his issuance of said Order. However, he claims that the issuance thereof was merely an error of judgment. Indeed, as a matter of public policy, not every error or mistake of a judge in the performance of his official duties renders him liable. In the absence of fraud, dishonesty or corruption, the acts of a judge in his official capacity do not always constitute misconduct although the same acts may be erroneous. True, a judge may not be disciplined for error of judgment absent proof that such error was made with a conscious and deliberate intent to cause an injustice. This does not mean, however, that a judge need not observe propriety, discreetness and due care in the performance of his official functions. Section 5, Rule 114 of the Revised Rules on Criminal Procedure is clear on the issue. It provides: SEC. 5. Bail, when discretionary. Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment, admission to bail is discretionary. The application for bail may be filed and acted upon by the trial court despite the filing of a notice of appeal, provided it has not transmitted the original record to the appellate court. However, if the decision of the trial court convicting the accused changed the nature of the offense from

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non-bailable to bailable, the application for bail can only be filed with and resolved by the appellate court. xxx xxx xxx The rule is very explicit as to when admission to bail is discretionary on the part of the respondent Judge. It is imperative that judges be conversant with basic legal principles and possessed sufficient proficiency in the law. In offenses punishable by reclusion perpetua or death, the accused has no right to bail when the evidence of guilt is strong.12 Thus, as the accused in Criminal Case No. 3620-01 had been sentenced to reclusion perpetua, the bail should have been cancelled, instead of increasing it as respondent Judge did. While a judge may not be held liable for gross ignorance of the law for every erroneous order that he renders, it is also axiomatic that when the legal principle involved is sufficiently basic, lack of conversance with it constitutes gross ignorance of the law. Indeed, even though a judge may not always be subjected to disciplinary action for every erroneous order or decision he renders, that relative immunity is not a license to be negligent or abusive and arbitrary in performing his adjudicatory prerogatives. It does not mean that a judge need not observe propriety, discreetness and due care in the performance of his official functions. This is because if judges wantonly misuse the powers vested on them by the law, there will not only be confusion in the administration of justice but also oppressive disregard of the basic requirements of due process.13 Clearly, in the instant case, the act of Mangotara in increasing the bail bond of the accused instead of cancelling it is not a mere deficiency in prudence, discretion and judgment on the part of respondent Judge, but a patent disregard of well-known rules. When an error is so gross and patent, such error produces an inference of bad faith, making the judge liable for gross ignorance of the law.14 It is a pressing responsibility of judges to keep abreast with the law and changes therein, as well as with the latest decisions of the Supreme Court. One cannot seek refuge in a mere cursory acquaintance with the statute and procedural rules. Ignorance of the law, which everyone is bound to know, excuses no one not even judges. IGNORANTIA JURIS QUOD QUISQUE SCIRE TENETUR NON EXCUSAT.15 We come to the imposable penalty. Under Section 8, Rule 140 of the Rules of Court, as amended by A.M. No. 01-8-10-SC, gross ignorance of the law or procedure is classified as a serious charge. Under Section 11(A) of the same Rule, as amended, if the respondent is found guilty of a serious charge, any of the following sanctions may be imposed: 1. Dismissal from the service, forfeiture of all or part of the benefits as the Court may determine, and disqualification from reinstatement or appointment to any public office, including government-owned or controlled corporations; Provided, however, that the forfeiture of benefits shall in no case include accrued leave credits; 2. Suspension from office without salary and other benefits for more than three (3) but not exceeding six (6) months; or 3. A fine of more than P20,000.00 but not exceeding P40,000.00. In this case, a fine of P20,000.00, as recommended by the Investigating Justice, would thus appear to be an appropriate sanction to impose on respondent Judge, considering that this is his first infraction in his 13 years of service; his admission of his mistake; and his prompt correction of such mistake. WHEREFORE, the Court finds JUDGE MAMINDIARA P. MANGOTARA, retired Presiding Judge of the Regional Trial Court of Iligan City, Branch 1, GUILTY of GROSS IGNORANCE OF THE LAW for which he is FINED in the amount of Twenty Thousand Pesos (P20,000,00), to be deducted from his retirement benefits.

G.R. Nos. 164311-12

October 10, 2007

LAARNI N. VALERIO, Petitioner, vs. COURT OF APPEALS, HON. JUDGE MA. THERESA L. DELA TORRE-YADAO, RTC - Branch 81, QUEZON CITY and MILAGROS "MYLA" VALERIO, Respondents. DECISION QUISUMBING, J.: Before this Court are two petitions for review assailing the Consolidated Decision1 dated April 28, 2004 and the Resolution2 dated July 1, 2004 of the Court of Appeals in CA-G.R. SP Nos. 71900 and 72132. The Court of Appeals had upheld the Resolution3 dated February 26, 2002 and the Orders4 of the Regional Trial Court (RTC) of Quezon City, Branch 81, in Criminal Case Nos. Q-00-93291 and Q-00-93292. The antecedent facts in these consolidated petitions are as follows: On March 18, 2000, Jun Valerio, Chief of the Office of the Government Corporate Counsel, was shot and killed in front of his house at No. 82 Mapang-akit St., Diliman, Quezon City. An Information for murder was filed against Antonio E. Cabador, Martin M. Jimenez, Samuel C. Baran, and Geronimo S. Quintana; while an Information for parricide was filed against the victims wife, Milagros E. Valerio, thus: The undersigned Assistant Chief State Prosecutor of the Department of Justice, Manila, hereby accusesANTONIO "Tony" CABADOR y ESTIMO, MARTIN JIMENEZ y MATERUM, a.k.a. "Mar Beltran", SAMUEL BARAN y CABADOR and GERONIMO "Ronie" QUINTANA y SAGUID, a.k.a. "Boy Negro", with the crime of Murder, defined and penalized under Article 248 of the Revised Penal Code, as amended by Republic Act 7659, committed as follows: "That on March 18, 2000, at around 12:30 a.m., or thereabout, in Quezon City, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another and with one Milagros Valerio y Embuscado who is also charged with Parricide in a separate information, as a principal by inducement, did then and there willfully, unlawfully and feloniously, with intent to kill and with evident premeditation and treachery, and for a consideration, promise or reward, shoot Atty. Jun Valerio, Chief of the Office of the Government Corporate Counsel, with the use of an unlicensed .38 caliber Armscor revolver with serial number 55004, hitting him on the different parts of his body, thereby inflicting upon him fatal wounds which caused his death shortly thereafter to the damage and prejudice of the heirs of the victim, with the aggravating circumstances of disregard of the respect due to the victim on account of his rank, nocturnity, consideration of a price, reward or money, use of a motor vehicle and use of an unlicensed firearm." CONTRARY TO LAW.5 The undersigned Assistant Chief State Prosecutor of the Department of Justice, Manila, hereby accusesMILAGROS "Myla" VALERIO y EMBUSCADO, a.k.a. "Marimar", with the crime of Parricide, defined and penalized under Article 246 of the Revised Penal Code, as amended by Republic Act 7659, committed as follows: "That on March 18, 2000, at around 12:30 a.m., or thereabout, in Quezon City, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, with treachery and evident premeditation, that is, having conceived and deliberated to kill her husband, Jun Valerio, Chief of Office of the Government Corporate Counsel with

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whom she was united in lawful wedlock, in consideration for a price, reward, or money and by taking advantage of nighttime, in conspiracy with one Antonio "Tony" Cabador, who is also charged with Murder in a separate Information, together with Martin Jimenez y Materum, Geronimo Quintana y Saguid and Samuel Baran y Cabador, the said accused Milagros Valerio, wilfully, unlawfully and feloniously, did then and there, induce and instigate Antonio Cabador to kill her husband Jun Valerio, and in pursuance of the said conspiracy, the said accused for murder shot Jun Valerio with the use of an unlicensed .38 caliber Armscor revolver with serial number 55004, hitting him on the different parts of his body, thereby inflicting upon him fatal wounds which caused his death shortly thereafter, to the damage and prejudice of the heirs of the victim." CONTRARY TO LAW.6 Milagros filed an application for bail claiming that the evidence of guilt against her was not strong. The prosecution, on the other hand, moved to discharge accused Samuel Baran and to have him as state witness. Meanwhile, Antonio Cabador was arrested. In his sworn statement, he stated that it was Milagros who planned the murder of Jun Valerio. Further, Antonio pleaded guilty to the charge of murder. The RTC granted Milagros application for bail, but denied the motion to convert Samuel as state witness. On March 5, 2002, Milagros posted a bailbond furnished by Central Surety and Insurance Company, and was ordered released.7 Herein petitioners, Laarni N. Valerio, sister of the victim, and the People of the Philippines, elevated the case to the Court of Appeals ascribing grave abuse of discretion to the RTC judge for granting Milagros bail and for denying the motion to convert Samuel as state witness. In its assailed Decision, the appellate court found no grave abuse of discretion committed by the RTC. Hence, in her petition, petitioner Laarni N. Valerio raises the following issues: I. PUBLIC RESPONDENT COURT OF APPEALS ERRED IN HOLDING THAT IT FOUND NOTHING ARBITRARY OR CAPRICIOUS IN THE LOWER COURTS EVALUATION OF THE EVIDENCE FOR PURPOSES SOLELY OF PRIVATE RESPONDENT MILAGROS "MYLA" VALERIOS APPLICATION FOR BAIL. II. PUBLIC RESPONDENT COURT OF APPEALS ERRED IN HOLDING THAT THERE IS NO ABSOLUTE NECESSITY FOR THE TESTIMONY OF SAMUEL BARAN AS THE SAME WOULD ONLY CORROBORATE THE TESTIMONY OF MODESTO CABADOR THAT COVERED THE MATERIAL POINTS OF SAMUEL BARANS PROJECTED TESTIMONY.8 Petitioner People of the Philippines anchors its petition on the following grounds: I. WHETHER OR NOT THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN HOLDING THAT THE TRIAL COURT DID NOT COMMIT GRAVE ABUSE OF DISCRETION IN GRANTING RESPONDENT MILAGROS VALERIOS APPLICATION FOR BAIL; AND

II. WHETHER OR NOT THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN HOLDING THAT THE TRIAL COURT DID NOT COMMIT GRAVE ABUSE OF DISCRETION IN DENYING THE PROSECUTIONS MOTION TO DISCHARGE ACCUSED SAMUEL BARAN AS STATE WITNESS.9 In sum, the basic issues for our resolution are: (1) whether Milagros is entitled to bail; and (2) whether Samuel should be discharged as accused and be converted as state witness. Petitioners contend that Milagros is not entitled to bail as the evidence of guilt against her is strong. They bank on the testimony of Modesto Cabador that he heard Milagros impatiently ask Antonio about their plot to kill Jun Valerio. They maintain that Milagros unrestrained behavior in front of Modesto was not unusual considering Milagros desperation and the fact that Modesto is Antonios cousin. Petitioners point out that Milagros high level of education, social orientation, or breeding does not prevent her from committing parricide. Petitioners aver that the inconsistencies in Modestos testimony involve only minor details and collateral matters. Petitioners also assert that Antonios plea of guilty to the charge of conspiring with Milagros in the murder of Jun Valerio indicated strong evidence of guilt against Milagros. Petitioners further allege that Samuels testimony is not merely corroborative of Modestos testimony. Petitioners insist the testimonies of Samuel and Modesto differ on material points and are both indispensable to the prosecution. Petitioners contend that Samuels testimony is absolutely necessary as he alone has knowledge that Antonio and Milagros carried out their plan to kill Jun Valerio, and that Martin Jimenez and Geronimo Quintana participated in the killing. According to petitioners, Samuel does not appear to be the most guilty; thus, he should be converted as state witness. Milagros, however, counters that she is entitled to bail as a matter of right because the evidence of guilt against her is not strong. She stresses that the trial courts determination of the credibility of Samuel and Modesto deserves the highest respect because it has the peculiar advantage of hearing their testimonies and observing their deportment and manner of testifying. Milagros maintains there is no absolute necessity for Samuels testimony, which she claims to be pure hearsay. The consolidated petitions are impressed with merit. Bail is not a matter of right in cases where the person is charged with a capital offense or an offense punishable by reclusion perpetua or life imprisonment. Article 114, Section 7 of the Revised Rules of Criminal Procedure, states, "No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when the evidence of guilt is strong, regardless of the stage of the criminal action." In this case, the trial court had disregarded the glaring fact that the killer himself has confessed to the crime and has implicated Milagros as the mastermind. When taken in conjunction with the other evidence on record, these facts show very strongly that Milagros may have participated as principal by inducement in the murder of Jun Valerio. It was thus a grave error or a grave abuse of discretion committed by the trial court to grant her application for bail. The appellate court clearly committed a reversible error in affirming the trial courts decision granting bail to Milagros Valerio. Likewise, the trial court committed grave abuse of discretion in denying unreservedly the prosecutions motion to discharge Samuel as state witness.

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Section 17, Rule 119 of the Revised Rules of Criminal Procedure provides the requisites for the discharge of an accused to be a state witness: SEC. 17. Discharge of accused to be state witness. When two or more persons are jointly charged with the commission of any offense, upon motion of the prosecution before resting its case, the court may direct one or more of the accused to be discharged with their consent so that they may be witnesses for the state when, after requiring the prosecution to present evidence and the sworn statement of each proposed state witness at a hearing in support of the discharge, the court is satisfied that: (a) There is absolute necessity for the testimony of the accused whose discharge is requested; (b) There is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of said accused; (c) The testimony of said accused can be substantially corroborated in its material points; (d) Said accused does not appear to be the most guilty; and (e) Said accused has not at any time been convicted of any offense involving moral turpitude. xxxx In denying the prosecutions motion to discharge Samuel as state witness, the trial court held that not all the foregoing requisites were met. The trial court held that there was no "absolute necessity" for Samuels proposed testimony because it would only corroborate the testimony of prosecution witness Modesto. Said the trial court, Before [Modesto] Cabador testified on the circumstances surrounding the killing of the victim there was no direct evidence to establish the identity of the plotters and their underlying motive to kill Justice Valerio. Cabadors testimony supplied the necessary evidence to link Antonio and Milagros to the murder to the victim. It is the belief of the Court that the proposed testimony of [Samuel] Baran would merely corroborate that already given by Modesto. As correctly pointed out by accused [Milagros] Valerio, the instant motion has been rendered moot and academic by recent events which transpired after its filing. Clearly then, there is a person who can supply the DIRECT evidence and that is Modesto Cabador. Hence, the testimony of [Samuel] Baran is not absolutely necessary. Had the prosecution deferred the presentation of Modesto and instead presented its other witnesses listed in the Informations and the pre-trial order, the situation might have been different.10 The trial court, however, misapprehended the import of the proposed testimony of Samuel to the successful prosecution of the case against the other accused. While the testimony of Modesto tends to establish that Milagros and Antonio plotted the killing of Jun Valerio, the evidence that would prove that Milagros and Antonio carried out their sinister plan to eliminate the said victim is supplied by Samuel who stated the following in his sworn statement dated May 16, 2000: 12. T: Ito bang hinala mo na sina TONY CABADOR ang pumatay kay JUN VALERIO ay napatunayan mo? S: Opo, napatunayan ko na sina TONY CABADOR ang pumatay noong nag-inuman kami noong March 20, 2000 sa tindahan ni

JOJO doon po sa Malipay, Bacoor, Cavite, dahil ang sabi niya hindi siya makaconcentrate sa pag-inom pag hindi dumating yong taksi driver na ginamit nila noong gabi na patayain nila si JUN VALERIO, dahil may usapan sila noong taksi driver na babalik at magdadala ng tahong para pulutan sa inuman. Kapag hindi bumalik ang taksi driver ng Martes siguradong nahuli na ng NBI at maituturo sila ng taksi driver ayon kay TONY CABADOR. 13. T: Hanggang anong oras kayo nag-inuman sa tindahan ni JOJO? S: Hanggang alas kuwatro ng hapon March 20, 2000, pagkatapos ay dumaan kami sa bahay ni TONY CABADOR sa Malipay na ipinagawa rin ni MARIMAR para sa kanilang dalawa ni CABADOR. Pagkatapos ay dumiritso (sic) kami sa bahay ni TONY CABADOR na ipinagawa din ni MARIMAR sa Camp Sampaguita, Sitio Mapalad, Muntinlupa, Metro Manila. Pagdating ng gabi ay doon uli kami sa bahay ni BOB natulog. Ayaw na ni TONY CABADOR na matulog kami sa kaniyang bahay. 14. T: Ano uli ang iyong napansin kay TONY CABADOR? S: Ganoon din po uli ang napansin ko kay TONY CABADOR na hindi makatulog ng maayos panay na lang po ang ikot at pag nakarinig siya ng sasakyan [na] pumapasok ay tumatayo kaagad at sisilipin niya kung sino ang may sakay. 15. T: Ano ang ginawa ninyo kinabukasan? S: Kinabukasan, bale March 21, 2000 araw ng Martes, umaga bumalik na naman kami doon sa bahay ni ANTONIO CABADOR na ipagawa ni MARIMAR para sa kanilang dalawa sa Camp Sampaguita, Sitio Mapalad, Muntinlupa City. Pagdating ng alas onse ng umaga umalis na ako patungong Brgy. Tunasan Midland Subd., Muntinlupa City sa bahay ng kapatid ko. 16. T: Kailan uli kayo nagkita ni ANTONIO CABADOR? S: Matagal-tagal po Sir, mahigit isang buwan at noong kami ay magkita sa bahay niya sa #4441 Mauling St., Camp Bagong Diwa, Bicutan, Taguig, Metro Manila ay tinanong niya kaagad sa akin kung may balita pa ba sa diyaryo tungkol sa VALERIO CASE. 17. T: Anong sinagot mo sa kanya? S: Ang sagot ko po sa kaniya ay wala na pong balita tungkol sa VALERIO CASE, ang sabi po niya "Salamat naman at nasabay sa giyera sa Mindanao at natabunan na yong kaso sa VALERIO CASE."11 It must also be stressed that Milagros and Antonio are not the only accused in the consolidated criminal cases (Q-00-93291 and Q-00-93292) pending trial before the lower court. Aside from the two, the other accused are Martin Jimenez and Geronimo Quintana. The testimony of Modesto is silent on the participation of Martin Jimenez and Geronimo Quintana in the killing of Jun Valerio. Thus, there is more need to discharge Samuel as state witness as he alone has personal knowledge on the involvement of the other two accused as shown by the following portions of his aforementioned sworn statements: 20. T: Meron ba siyang nakitang tao na papatay kay JUSTICE JUN VALERIO? S: Opo sir, ganito yon, noong December 1999 nag-iinuman kami sa bahay ni ANTONIO CABADOR sa Malipay, Bacoor, Cavite nina MARTIN JIMENEZ, ALEJANDRO BUENAVENTURA, BOB BELTRAN at dalawa [pang] iba na hindi ko kilala. At doon ay binanggit ni CABADOR na mayroon siyang ipapatay, sumagot naman si MARTIN JIMENEZ at si ALEJANDRO BUENAVENTURA ng ganito, "Uncle subukan mo naman kami para malaman mo kung sino kami." 21. T: Ano ang naging sagot ni TONY CABADOR?

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S: "Sige subukan ko kayo pag-usapan natin, yong tayo-tayo lang, yong walang ibang makakarining" sabi ni TONY CABADOR. 22. T: Nabuo ba ang plano na patayin (sic) nina TONY CABADOR, MARTIN JIMENEZ at ALEJANDRO BUENAVENTURA? S: Nabuo po yon makalipas ang ilang araw sa isa ring inuman sa bahay ni TONY CABADOR sa Malipay, Bacoor, Cavite, buwan din ng Disyembre 1999. Doon nila pinag-usapan nina ALEJANDRO BUENAVENTURA, MARTIN JIMENEZ at ANTONIO CABADOR ang planong pagpatay kay JUN VALERIO. Naroroon din po ako at nakikipag-inuman sa kanila at naririnig ko ang kanilang usapan tungkol sa pagpatay kay JUN VALERIO. 23. T: Ano ang narinig mo sa kanilang usapan noong araw na yon ng Disyembre 1999? S: Ang sabi ni CABADOR "mayroon kaming ipapatay ni MARIMAR at kami na ang bahala sa inyo." 24. T: Nabanggit ba nila kung kailan nila isasakatuparan ang pagpatay kay JUN VALERIO? S: Hindi po. 25. T: Mayroon bang halaga o pera na ipinangako si ANTONIO CABADOR kina ALEJANDRO BUENAVENTURA at MARTIN JIMENEZ? S: Wala po, basta ang sabi ni ANTONIO CABADOR kina BUENAVENTURA at JIMENEZ ay "kami ang bahala sa inyo ni MARIMAR." 26. T: Kilala ba nina ALEJANDRO BUENAVENTURA at MARTIN JIMENEZ si MARIMAR? S: Opo, dahil nakikita na nila si MARIMAR noong nagpapagawa pa sila ng bahay ni CABADOR sa Camp Sampaguita. Dahil mismong sina ALEJANDRO BUENAVENTURA at MARTIN JIMENEZ ang gumawa ng bahay nina MARIMAR at CABADOR. 27. T: Alam ba nina MARTIN JIMENEZ at ALEJANDRO BUENAVENTURA na ang papatayin nila ay asawa ni MARIMAR? S: Hindi po, basta ang alam lang nila ay mayroon silang papatayin. xxxx 33. T: Alam mo ba kung sino ang magkakasama noong patayin si JUN VALERIO? S: Opo, ang magkakasama ay sina ANTONIO CABADOR, MARTIN JIMENEZ, GERONIMO QUINTANA at yong taxi driver.12 From the foregoing, it is evident that the proposed testimony of Samuel is not merely corroborative of the testimony of Modesto, contrary to what the lower court believed. Moreover, the evidence presented by the prosecution in support of its motion to discharge Samuel as state witness shows that he is not the "most guilty." Said accused did not plot the killing of Jun Valerio like Antonio and Milagros. He did not volunteer to carry out the killing like his co-accused Martin Jimenez. Neither did he provide the vehicle which facilitated the commission of the crime like his co-accused Geronimo Quintana. At most, his participation appears to be limited to serving as a lookout.1wphi1 Surely, this act alone does not qualify him to be considered as the "most guilty." The trial court said that from the evidence presented by the prosecution, Samuel was present on the two occasions in December 1999 when Antonio discussed the plot to kill Jun Valerio. The trial court added that a "neighbor of the Valerio also

gave a statement that he saw [Samuel] within the vicinity of the locus criminis an hour before the killing." With these observations, the trial court ruled that "it is still premature to conclude on the participation of [Samuel]" as "there was no basis yet to find him as not the most guilty." But even assuming that it cannot be determined yet whether Samuel is not the "most guilty," the trial court should have held in abeyance the resolution of the prosecutions motion to discharge Samuel as state witness and should have waited for the presentation of additional evidence to enable it to determine the precise degree of culpability of said accused. As held in Flores v. Sandiganbayan:13 At any rate, the discharge of an accused may be ordered "at any time before they (defendants) have entered upon their defense," that is, at any stage of the proceedings, from the filing of the information to the time the defense starts to offer any evidence. In the case at bar, considering the opposition of herein petitioners to the motion for the discharge of Abelardo B. Licaros, particularly the contention that he (herein private respondent) is the most guilty and that his testimony is not absolutely necessary, the trial court should have held in abeyance or deferred its resolution on the motion until after the prosecution has presented all its other evidence. Thereafter, it can fully determine whether the requisites prescribed in Section 9 [Now Section 17], Rule 119 of the New Rules of Court, are fully complied with. WHEREFORE, the instant consolidated petitions are GRANTED. The assailed Decision dated April 28, 2004 and Resolution dated July 1, 2004 of the Court of Appeals in CA-G.R. SP Nos. 71900 and 72132, affirming the subject Resolution dated February 26, 2002 and Orders of the Regional Trial Court of Quezon City, Branch 81, in Criminal Case Nos. Q-00-93291 and Q-00-93292, are REVERSED AND SET ASIDE. The Regional Trial Court of Quezon City, Branch 81, is directed to CANCEL the bail posted by accused Milagros E. Valerio and to order her immediate arrest and detention. SO ORDERED.

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A.M. No. RTJ- 04-1845 October 5, 2011 [Formerly A.M. No. IPI No. 03-1831-RTJ] ATTY. FRANKLIN G. GACAL, Complainant, vs. JUDGE JAIME I. INFANTE, REGIONAL TRIAL COURT, BRANCH 38, IN ALABEL, SARANGANI, Respondent. DECISION BERSAMIN, J.: It is axiomatic that bail cannot be allowed to a person charged with a capital offense, or an offense punishable with reclusion perpetua or life imprisonment, without a hearing upon notice to the Prosecution. Any judge who so allows bail is guilty of gross ignorance of the law and the rules, and is subject to appropriate administrative sanctions. Atty. Franklin Gacal, the private prosecutor in Criminal Case No. 1136-03 of the Regional Trial Court (RTC) in Alabel, Sarangani entitled People v. Faustino Ancheta, a prosecution for murder arising from the killing of Felomino O. Occasion, charges Judge Jaime I. Infante, Presiding Judge of Branch 38 of the RTC to whose Branch Criminal Case No. 1136-03 was raffled for arraignment and trial, with gross ignorance of the law, gross incompetence, and evident partiality, for the latters failure to set a hearing before granting bail to the accused and for releasing him immediately after allowing bail. Antecedents On March 18, 2003, Judge Gregorio R. Balanag, Jr. of the Municipal Circuit Trial Court of Kiamba-Maitum, Sarangani issued a warrant for the arrest of Faustino Ancheta in connection with a murder case. Judge Balanag did not recommend bail. Ancheta, who had meanwhile gone into hiding, was not arrested. Upon review, the Office of the Provincial Prosecutor, acting through Assistant Provincial Prosecutor Alfredo Barcelona, Jr., affirmed the findings and recommendation of Judge Balanag on the offense to be charged, and accordingly filed in the RTC an information for murder on April 21, 2003 (Criminal Case No. 1136-03), but with a recommendation for bail in the amount of P400,000.00. Criminal Case No. 1136-03 was raffled to Judge Infantes Branch. On April 23, 2003, Judge Infante issued twin orders, one granting bail to Ancheta, and another releasing Ancheta from custody. On April 25, 2003, Atty. Gacal, upon learning of the twin orders issued by Judge Infante, filed a so-called Very Urgent Motion For Reconsideration And/Or To Cancel Bailbond With Prayer To Enforce Warrant Of Arrest Or Issue Warrant Of Arrest Anew Or In The Alternative Very Urgent Motion For This Court To Motu Prop[r]io Correct An Apparent And Patent Error (very urgent motion). In the hearing of the very urgent motion on April 29, 2003, only Atty. Gacal and his collaborating counsel appeared in court. Judge Infante directed the public prosecutor to comment on the very urgent motion within five days from notice, after which the motion would be submitted for resolution with or without the comment. Ancheta, through counsel, opposed, stating that the motion did not bear the conformity of the public prosecutor. At the arraignment of Ancheta set on May 15, 2003, the parties and their counsel appeared, but Assistant Provincial Prosecutor Barcelona, Jr., the assigned public prosecutor, did not appear because he was then following up his regular appointment as the Provincial Prosecutor of Sarangani Province. Accordingly, the arraignment was reset to May 29, 2003. On May 21, 2003, Judge Infante denied Atty. Gacals very urgent motion on the ground that the motion was pro forma for not bearing the conformity of the public prosecutor, and on the

further ground that the private prosecutor had not been authorized to act as such pursuant to Section 5, Rule 110, of the Rules of Court. Judge Infante directed that the consideration of the bail issue be held in abeyance until after the public prosecutor had submitted a comment, because he wanted to know the position of the public prosecutor on Atty. Gacals very urgent motion having been filed without the approval of the public prosecutor.1 On May 29, 2003, the public prosecutor appeared, but did not file any comment. Thereupon, Atty. Gacal sought authority to appear as a private prosecutor. The public prosecutor did not oppose Atty. Gacals request. With that, Atty. Gacal moved for the reconsideration of the grant of bail to Ancheta. In response, Judge Infante required the public prosecutor to file his comment on Atty. Gacals motion for reconsideration, and again reset the arraignment of the accused to June 20, 2003.2 On June 4, 2003, the public prosecutor filed a comment, stating that he had recommended bail as a matter of course; that the orders dated April 23, 2003 approving bail upon his recommendation and releasing the accused were proper; and that his recommendation of bail was in effect a waiver of the public prosecutors right to a bail hearing. By June 20, 2003, when no order regarding the matter of bail was issued, Atty. Gacal sought the inhibition of Judge Infante on the ground of his gross incompetence manifested by his failure to exercise judicial power to resolve the issue of bail. In his motion for inhibition,3 Atty. Gacal insisted that the issue of bail urgently required a resolution that involved a judicial determination and was, for that reason, a judicial function; that Judge Infante failed to resolve the issue of bail, although he should have acted upon it with dispatch, because it was unusual that several persons charged with murder were being detained while Ancheta was let free on bail even without his filing a petition for bail; that such event also put the integrity of Judge Infantes court in peril; and that although his motion for reconsideration included the alternative relief for Judge Infante to motu proprio correct his apparent error, his refusal to resolve the matter in due time constituted gross ignorance of law. Atty. Gacal contended that Judge Infante was not worthy of his position as a judge either because he unjustifiably failed to exercise his judicial power or because he did not at all know how to exercise his judicial power; that his lack of judicial will rendered him utterly incompetent to perform the functions of a judge; that at one time, he ordered the bail issue to be submitted for resolution, with or without the comment of the public prosecutor, but at another time, he directed that the bail issue be submitted for resolution, with his later order denoting that he would resolve the issue only after receiving the comment from the public prosecutor; that he should not be too dependent on the public prosecutors comment considering that the resolution of the matter of bail was entirely within his discretion as the judge;4 and that the granting of bail without a petition for bail being filed by the accused or a hearing being held for that purpose constituted gross ignorance of the law and the rules.5 Finally, Atty. Gacal stated that Judge Infante and the public prosecutor were both guilty of violating the Anti-Graft and Corrupt Practices Act6 for giving undue advantage to Ancheta by allowing him bail without his filing a petition for bail and without a hearing being first conducted.7 On July 9, 2003, Judge Infante definitively denied Atty. Gacals very urgent motion. On August 5, 2003, the Office of the Court Administrator (OCAd) received from the Office of the Ombudsman the indorsement of the administrative complaint Atty. Gacal had filed against Judge Infante (CPL-M-03-0581 entitled Gacal v. Infante, et al.), forwarding the records of the administrative case for appropriate action to the Supreme Court as the exclusive administrative authority over all courts, their judges and their personnel.8

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On August 21, 2003, then Court Administrator Prebitero J. Velasco, Jr. (now a Member of the Court) required Judge Infante to comment on the administrative complaint against him, and to show cause within 10 days from receipt why he should not be suspended, disbarred, or otherwise disciplinarily sanctioned as a member of the Bar for violation of Canon 10, Rule 10.03 of the Code of Professional Responsibility pursuant to the resolution of the Court En Banc in A.M. No. 02-9-02-SC dated September 17, 2002.9 On October 6, 2003, the OCAd received Judge Infantes comment dated September 22, 2003, by which he denied any transgression in the granting of bail to Ancheta, stating the following: 2. At the outset, as a clarificatory note, accused Faustino Ancheta is out on bail, not because he applied for bail duly granted by the court but because he posted the required bail since in the first place the Fiscal recommended bail, duly approved by the Undersigned, in the amount of P400,000.00. Underscoring is made to stress the fact that accused Ancheta had actually never filed an application for bail. Perforce, the court had nothing to hear, grant or deny an application/motion/petition for bail since none was filed by the accused. 3. Thus, the twin Orders dated April 23, 2003 are exactly meant as an approval of the bailbond (property) posted by accused Ancheta, it being found to be complete and sufficient. They are not orders granting an application for bail, as misconstrued by private prosecutor. (Certified true machine copy of the twin Orders dated April 23 marked as Annex-2 and 2-a are hereto attached) 4. On April 25, 2003, private complainant in the cited criminal case, thru counsel (the Gacal, Gacal and Gacal Law Office), filed a "Very Urgent Motion for Reconsideration or in the alternative Very Urgent Motion for this Court to Moto Propio Correct an Apparent Error", praying that the twin Orders dated April 23, 2003 be reconsidered. (Certified machine copy of the said urgent motion marked as Annex 3 is hereto attached) 5. On April 29, 2003, during the hearing on motion, the private complainant and his counsel (private prosecutor) appeared. The Fiscal was not present. The court nonetheless ordered the Fiscal to file his comment/s on the said motion. The accused thru private counsel in an open court hearing opposed the subject motion inasmuch as the same bears no conformity of the Fiscal. In that hearing, the court advised the private prosecutor to coordinate and secure the conformity of the Fiscal in filing his motion. (Certified machine copy of the Order dated April 29, 2003, marked as Annex 4 is hereto attached.) 6. On May 15, 2003, the scheduled date for the arraignment of accused Ancheta, the parties and private prosecutor appeared. Again, the 1st Asst. Provincial Fiscal, Alfredo Barcelona, Jr., failed to appear who, being the next highest in rank in their Office, was processing his application for regular appointment as Provincial Fiscal of Sarangani Province. He was then the Acting Provincial Fiscal Designate in view of the appointment of former Provincial Fiscal Laureano T. Alzate as RTC Judge in Koronadal City. Due to the absence of the Fiscal and the motion for reconsideration then pending for resolution, the scheduled arraignment was reset to May 29, 2003, per Order dated May 15, 2003, (certified machine copy of which marked as Annex 5 is hereto attached). 7. On May 21, 2003, the Undersigned resolved to deny for being pro forma the pending motion for reconsideration. As held in the Order of denial, it was

found that the private prosecutor was not duly authorized in writing by the provincial prosecutor to prosecute the said criminal case, nor was he judicially approved to act as such in violation of Section 5, Rule 110 of the Revised Rules on Criminal Procedure. The bail issue, however, was held in abeyance until submission of the comment thereon by the Fiscal as this Presiding Judge would like then to know the position of the Fiscal anent to the cited motion without his approval. The arraignment was reset to June 20, 2003. Again, the private prosecutor was orally advised to coordinate and secure the approval of the Fiscal in filing his motions/pleadings. (Certified machine copy of the Order dated May 21, 2003 marked as Annex 6 hereto attached) 8. On June 4, 2003, the Fiscal finally filed his "Comment on the Very Urgent Motion for Reconsideration filed by private complainant thru counsel (private prosecutor). Consistently, the Fiscal in his comment recommended bail as a matter of course and that he claimed that Orders dated April 23, 2003 approving bail upon his recommendation are proper, waiving in effect his right for a bail hearing. (Certified true machine copy of the Fiscals comment marked as Annex-7 is hereto attached).10 Under date of February 16, 2004, the OCAd recommended after investigation that the case be re-docketed as a regular administrative matter, and that Judge Infante be fined in the amount of P20,000.00,11 viz: EVALUATION: The 1987 Constitution provides that, all persons, except those charged with offenses punishable by reclusion perpetua when the evidence of guilt is strong, shall before conviction, be bailable by sufficient sureties or be released on recognizance as may be provided by law (Sec. 13, Art. III). The Revised Rules of Criminal Procedure provides that, no person charged with a capital offense or offense punishable by reclusion perpetua or life imprisonment shall be admitted to bail when the evidence is strong, regardless of the stage of the criminal prosecution (Sec. 7, Rule 114). With the aforequoted provisions of the Constitution and the Rules of Criminal Procedure as a backdrop, the question is: Can respondent judge in granting bail to the accused dispense with the hearing of Application for Bail? The preliminary investigation of Criminal Case No. 03-61, entitled Benito M. Occasion vs. Faustino Ancheta for Murder was conducted by Judge Gregorio R. Balanag, Jr., of MCTC, KiambaMaitum, Sarangani. Finding the existence of probable cause that an offense of Murder was committed and the accused is probably guilty thereof, he transmitted his resolution to the Office of the Provincial Prosecutor, together with the records of the case, with No Bail Recommended. Upon review of the resolution of the investigating judge by the OIC of the Office of the Provincial Prosecutor of Sarangani, he filed the information for Murder against accused Faustino Ancheta but a bail of P400,000.00 for the provisional liberty of the latter was recommended. Relying on the recommendation of the Fiscal, respondent judge granted the Application for Bail of the accused. The offense of Murder is punishable by reclusion temporal in its maximum period to death (Art. 248, RPC). By reason of the penalty prescribed by law, Murder is considered a capital offense and, grant of bail is a matter of discretion which can be exercised only by respondent judge after the evidence is submitted in a hearing. Hearing of the application for bail is absolutely indispensable before a judge can properly determine whether the prosecutions evidence is weak or strong (People vs. Dacudao, 170 SCRA 489). It becomes, therefore, a ministerial duty of a judge to conduct hearing the moment an application for bail is filed if the accused is charged with capital offense or an offense punishable by reclusion perpetua or life imprisonment. If doubt can be entertained, it follows that the evidence of guilt is weak

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and bail shall be recommended. On the other hand, if the evidence is clear and strong, no bail shall be granted. Verily, respondent judge erred when he issued an order granting the application for bail filed by the accused (Annex "C") based merely on the order issued by the Fiscal (Annex "A") recommending bail of P400,000.00 for the provisional liberty of the accused without even bothering to read the affidavits of the witnesses for the prosecution. Respondent judge cannot abdicate his right and authority to determine whether the evidence against the accused who is charged with capital offense is strong or not. After the respondent judge has approved the property bond posted by the accused, the complainant, as private prosecutor filed a Motion for Reconsideration and/or Cancel Bailbond or in the alternative, Very Urgent Motion to Moto Proprio correct an Apparent Error. On the hearing of the Motion on 29 April 2003, the Fiscal was absent but he (the Fiscal) was given five (5) days from receipt of the order within which to file his comment and, with or without comment the incident is deemed submitted for resolution and, hearing of the Motion was reset to May 15, 2003. But the Fiscal again failed to appear on said date and, the arraignment of the accused was set on 29 May 2003. On 21 May 2003, respondent judge resolved to deny the Motion on the ground that the private prosecutor was not authorized in writing by the Chief of the Prosecutions Office or the Regional State Prosecutor to prosecute the case, subject to the approval of the court, pursuant to Sect. 5, Rule 110 Revised Rules of Criminal Procedure. The need for an authority in writing from the Chief of the Prosecutions Office or Regional State Prosecutor to the Private Prosecutor to prosecute the case, subject to the approval of the court, contemplates of a situation wherein there is no regular prosecutor assigned the court, or the prosecutor assigned, due to heavy work schedule, cannot attend to the prosecution of pending criminal cases to expedite disposition of the case. This provision of the Rules of Criminal Procedure does not prevent the offended party who did not reserve, waive nor institute separate civil action, from intervening in the case through a private prosecutor. Intervention of the offended party in Criminal Action Where the civil action for recovery of civil liability is instituted in the criminal action pursuant to Rule 11, the offended party may intervene by counsel in the prosecution of the offense (Sec. 16, Rule 110 [Supra]). When a criminal action is instituted, the civil action for recovery of civil liability arising from the offense charged shall be deemed instituted with the criminal action unless the offended party waives civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal action (Sec. 1 (a), Rule 111 [Supra]). The offended party in Criminal Case No. 1136-03 did not reserve his right to institute separate civil action, he did not waive such right and did not file civil action prior to the criminal action, so the offended party may under the law intervene as a matter of right. The authority to intervene includes actual conduct of trial under the control of the Fiscal which includes the right to file pleadings. According to respondent judge, he advised the private prosecutor to coordinate with the fiscal and secure his approval in accord with the mandate of Section, 5, Rule 110 of the Revised Rule of Criminal Procedure: On this point, respondent judge again erred. The right of the offended party to intervene is conferred by law and the approval of the Fiscal or even the court is not all necessary (Sec. 1 (a), Rule 111, [Supra]). Respondent Judge, however, is correct when he stated that the motions filed by the private prosecutor should be with the conformity of the Fiscal. Respondent judges errors are basic such that his acts constitutes gross ignorance of the law.

RECOMMENDATION: Respectfully recommended for the consideration of the Honorable Court is the recommendation that the instant I.P.I. be re-docketed as a regular administrative matter and respondent Judge be held ordered to pay a fine of P20,000.00. On March 31, 2004,12 the Court directed that the administrative case be docketed as a regular administrative matter. On December 01, 2004,13 the Court denied Atty. Gacals ancillary prayer to disqualify Judge Infante from trying Criminal Case No. 1138-03 pending resolution of this administrative matter. Ruling We approve and adopt the findings and recommendation of the OCAd, considering that they are well substantiated by the records. We note that Judge Infante did not deny that he granted bail for the provisional release of Ancheta in Criminal Case No. 1138-03 without conducting the requisite bail hearing. I Bail hearing was mandatory in Criminal Case No. 1138-03 Judge Infante would excuse himself from blame and responsibility by insisting that the hearing was no longer necessary considering that the accused had not filed a petition for bail; that inasmuch as no application for bail had been filed by the accused, his twin orders of April 23, 2003 were not orders granting an application for bail, but were instead his approval of the bail bond posted; and that Atty. Gacals very urgent motion and other motions and written submissions lacked the requisite written conformity of the public prosecutor, rendering them null and void. We cannot relieve Judge Infante from blame and responsibility. The willingness of Judge Infante to rely on the mere representation of the public prosecutor that his grant of bail upon the public prosecutors recommendation had been proper, and that his (public prosecutor) recommendation of bail had in effect waived the need for a bail hearing perplexes the Court. He thereby betrayed an uncommon readiness to trust more in the public prosecutors judgment than in his own judicious discretion as a trial judge. He should not do so. Judge Infante made the situation worse by brushing aside the valid remonstrations expressed in Atty. Gacals very urgent motion thusly: This Court is not unaware that the charge of murder being a capital offense is not bailable xxx xxxx The phrase "xxx application for admission to bail xxx" is not an irrelevant but a significant infusion in the cited rule (section 8), the plain import of which is that bail hearing is preceded by a motion/petition for admission to bail filed by a detained accused himself or thru counsel. The peculiar feature of the instant case, however, is the absence of a petition/motion for admission to bail filed by the herein accused. On the contrary, it is the consistent position of the fiscal to recommend bail since the prosecution evidence being merely circumstantial, is not strong for the purpose of granting bail. xxx. This court believes that bail hearing, albeit necessary in the grant of bail involving capital offense, is not at all times and in all instances essential to afford the party the right to due process especially so, when the fiscal in this case was given reasonable opportunity to explain his side, and yet he maintained the

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propriety of grant of bail without need of hearing since the prosecution evidence is not strong for the purpose of granting bail. Further, while it is preponderant of judicial experience to adopt the fiscals recommendation in bail fixing, this court, however, had in addition and in accord with Section 6(a) of the Revised Rules on Criminal Procedure, evaluated the record of the case, and only upon being convinced and satisfied that the prosecution evidence as contained in the affidavits of all the prosecution witnesses, no one being an eye-witness are merely circumstantial evidence, that this court in the exercise of sound discretion allowed the accused to post bail. xxxx The convergence of the foregoing factors - absence of motion for admission to bail filed by the accused, the recommendation of the fiscal to grant bail, the pro forma motion of the private prosecutor for lack of prior approval from the fiscal and this courts evaluation of the records sufficiently warrants the grant of bail to herein accused.14 Judge Infante specifically cited judicial experience as sanctioning his adoption and approval of the public prosecutors recommendation on the fixing of bail. Yet, it was not concealed from him that the public prosecutors recommendation had been mainly based on the documentary evidence adduced,15 and on the public prosecutors misguided position that the evidence of guilt was weak because only circumstantial evidence had been presented. As such, Judge Infantes unquestioning echoing of the public prosecutors conclusion about the evidence of guilt not being sufficient to deny bail did not justify his dispensing with the bail hearing. Judge Infante apparently acted as if the requirement for the bail hearing was a merely minor rule to be dispensed with. Although, in theory, the only function of bail is to ensure the appearance of the accused at the time set for the arraignment and trial; and, in practice, bail serves the further purpose of preventing the release of an accused who may be dangerous to society or whom the judge may not want to release,16 a hearing upon notice ismandatory before the grant of bail, whether bail is a matter of right or discretion.17 With more reason is this true in criminal prosecutions of a capital offense, or of an offense punishable by reclusion perpetua or life imprisonment. Rule 114, Section 7 of the Rules of Court, as amended, states that: "No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment when the evidence of guilt is strong, shall be admitted to bail regardless of the stage of criminal action." In Cortes v. Catral,18 therefore, the Court has outlined the following duties of the judge once an application for bail is filed, to wit: 1. In all cases whether bail is a matter of right or discretion, notify the prosecutor of the hearing of the application for bail or require him to submit his recommendation (Section 18, Rule 114 of the Revised Rules of Court, as amended); 2. Where bail is a matter of discretion, conduct a hearing of the application for bail regardless or whether or not the prosecution refuses to present evidence to show that the guilt of the accused is strong for the purpose of enabling the court to exercise its sound discretion (Sections 7 and 8, id); 3. Decide whether the guilt of the accused is strong based on the summary of evidence of the prosecution; 4. If the guilt of the accused is not strong, discharge the accused upon the approval of the bail bond (Section 19, id); otherwise, the petition should be denied. [emphasis supplied]

II Judge Infante disregarded rules and guidelines in Criminal Case No. 1138-03 Ostensibly, Judge Infante disregarded basic but well-known rules and guidelines on the matter of bail. 1. In case no application for bail is filed, bail hearing was not dispensable Judge Infante contends that a bail hearing in Criminal Case No. 1138-03 was not necessary because the accused did not file an application for bail; and because the public prosecutor had recommended bail. Judge Infantes contention is unwarranted. Even where there is no petition for bail in a case like Criminal Case No. 1138-03, a hearing should still be held. This hearing is separate and distinct from the initial hearing to determine the existence of probable cause, in which the trial judge ascertains whether or not there is sufficient ground to engender a wellfounded belief that a crime has been committed and that the accused is probably guilty of the crime. The Prosecution must be given a chance to show the strength of its evidence; otherwise, a violation of due process occurs.19 The fact that the public prosecutor recommended bail for Ancheta did not warrant dispensing with the hearing. The public prosecutors recommendation of bail was not material in deciding whether to conduct the mandatory hearing or not. For one, the public prosecutors recommendation, albeit persuasive, did not necessarily bind the trial judge,20 in whom alone the discretion to determine whether to grant bail or not was vested. Whatever the public prosecutor recommended, including the amount of bail, was non-binding. Nor did such recommendation constitute a showing that the evidence of guilt was not strong. If it was otherwise, the trial judge could become unavoidably controlled by the Prosecution.1avvphi1 Being the trial judge, Judge Infante had to be aware of the precedents laid down by the Supreme Court regarding the bail hearing being mandatory and indispensable. He ought to have remembered, then, that it was only through such hearing that he could be put in a position to determine whether the evidence for the Prosecution was weak or strong.21 Hence, his dispensing with the hearing manifested a gross ignorance of the law and the rules. 2. Public prosecutors failure to oppose application for bail or to adduce evidence did not dispense with hearing That the Prosecution did not oppose the grant of bail to Ancheta, as in fact it recommended bail, and that the Prosecution did not want to adduce evidence were irrelevant, and did not dispense with the bail hearing. The gravity of the charge in Criminal Case No. 1138-03 made it still mandatory for Judge Infante to conduct a bail hearing in which he could have made on his own searching and clarificatory questions from which to infer the strength or weakness of the evidence of guilt. He should not have readily and easily gone along with the public prosecutors opinion that the evidence of guilt, being circumstantial, was not strong enough to deny bail; else, he might be regarded as having abdicated from a responsibility that was his alone as the trial judge.lawphi1 Judge Infantes holding that circumstantial evidence of guilt was of a lesser weight than direct evidence in the establishment of guilt was also surprising. His training and experience should have

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cautioned him enough on the point that the lack or absence of direct evidence did not necessarily mean that the guilt of the accused could not anymore be proved, because circumstantial evidence, if sufficient, could supplant the absence of direct evidence.22 In short, evidence of guilt was not necessarily weak because it was circumstantial. Instead, Judge Infante should have assiduously determined why the Prosecution refused to satisfy its burden of proof in the admission of the accused to bail. Should he have found that the public prosecutors refusal was not justified, he could have then himself inquired on the nature and extent of the evidence of guilt for the purpose of enabling himself to ascertain whether or not such evidence was strong. He could not have ignored the possibility that the public prosecutor might have erred in assessing the evidence of guilt as weak.23 At any rate, if he found the Prosecution to be uncooperative, he could still have endeavored to determine on his own the existence of such evidence,24 with the assistance of the private prosecutor. 3. Judge Infantes granting of bail without a hearing was censurable for gross ignorance of the law and the rules Every judge should be faithful to the law and should maintain professional competence.25 His role in the administration of justice requires a continuous study of the law and jurisprudence, lest public confidence in the Judiciary be eroded by incompetence and irresponsible conduct.26 In that light, the failure of Judge Infante to conduct a hearing prior to the grant of bail in capital offenses was inexcusable and reflected gross ignorance of the law and the rules as well as a cavalier disregard of its requirement.27 He well knew that the determination of whether or not the evidence of guilt is strong was a matter of judicial discretion,28 and that the discretion lay not in the determination of whether or not a hearing should be held, but in the appreciation and evaluation of the weight of the Prosecutions evidence of guilt against the accused.29 His fault was made worse by his granting bail despite the absence of a petition for bail from the accused.30 Consequently, any order he issued in the absence of the requisite evidence was not a product of sound judicial discretion but of whim and caprice and outright arbitrariness.31 III Imposable Penalty We next determine the penalty imposable on Judge Infante for his gross ignorance of the law and the rules. The Court imposed a fine of P20,000.00 on the respondent judge in Docena-Caspe v. Bugtas.32 In that case, the respondent judge granted bail to the two accused who had been charged with murder without first conducting a hearing. Likewise, in Loyola v. Gabo,33 the Court fined the respondent judge in the similar amount of P20,000.00 for granting bail to the accused in a murder case without the requisite bail hearing. To accord with such precedents, the Court prescribes a fine of P20,000.00 on Judge Infante, with a stern warning that a repetition of the offense or the commission of another serious offense will be more severely dealt with. WHEREFORE, we FIND AND DECLARE Judge Jaime I. Infante guilty of gross ignorance of the law and the rules; and, accordingly, FINE him in the amount of P20,000.00, with a stern warning that a repetition of the offense or the commission of another serious offense will be more severely dealt with. Let a copy of this Decision be furnished to the Office of the Court Administrator for proper dissemination to all trial judges. SO ORDERED.

A.M. No. MTJ-01-1384 April 11, 2002 (Formerly OCA I.P.I. No. 00-970-MTJ) RASMIA U. TABAO, complainant, vs. ACTING PRESIDING JUDGE ACMAD T. BARATAMAN, MTCC, BRANCH 1, MARAWI CITY, respondent. PUNO, J.: The present administrative case stems from an affidavitcomplaint1 filed by complainant Rasmia U. Tabao charging respondent Judge Acmad Barataman, in his capacity as acting presiding judge of MTCC, Branch 1, Marawi City, with gross ignorance of the law and grave abuse of discretion. Complainant Rasmia Tabao is the private complainant in Criminal Case No. 9106 entitled "People vs. Samsodin M. Tabao" for abandonment of minor. It appears that on July 16, 1998, respondent judge issued an Order2 granting the motion for bail on recognizance filed by the father of the accused pursuant to R.A. No. 6036. The motion of the prosecution to cancel bail on the ground that accused is a certified public accountant and can afford to post cash bond was denied by respondent judge in an Order dated June 30, 1999,3 stating that the law, in allowing bail on recognizance, does not distinguish whether an accused is rich or poor.1wphi1.nt Complainant avers that respondent committed grave abuse of discretion in granting the motion for bail on recognizance because (1) it was filed not by the accused but by his father, Hadji Yusoph Tabao; (2) the prosecutor was not furnished a copy of the motion and there was no hearing conducted; (3) it lacked the sworn statement of the accused signed in the presence of two witnesses; and (4) the motion and its supporting affidavit were signed by the father of the accused. Complainant also contends that the accused is not poor but is a certified public accountant and operates a transport business in Metro Manila. Thus, it is urged that he should not have been released on recognizance since he could put up a cash bond. In his comment, respondent judge alleges that the crime of abandonment of a minor is covered by the Rules on Summary Procedure and hence bail on recognizance is not required as the court can immediately arraign and try the accused, pursuant to Section 13 of the Rules; that if he were the acting judge when the criminal case was filed, he would not issue a warrant of arrest but order the immediate arraignment and trial of the case and there would be no need to discuss the matter of bail; and, that the court can appoint as custodian of the accused his father, a former City Councilor of Marawi City, who qualifies as a responsible person under Section 15, Rule 144 of the Rules of Court. On November 6, 2001, Court Administrator Presbitero J. Velasco, Jr. submitted a Memorandum4 finding respondent judge guilty of gross ignorance of the law for releasing the accused on recognizance before it could acquire jurisdiction over his person. The accused was still at large when the motion for bail was filed. He likewise found the respondent judge to have violated R.A. No. 6036. He ratiocinated: first, the law requires that the accused sign in the presence of two witnesses of good standing in the community a sworn statement binding himself, pending final decision of his case, to report to the Clerk of Court hearing the case periodically every two weeks. No such sworn statement was executed by the accused and; second, in order to be released on recognizance, the accused must be unable to post bail bond. The accused is a CPA and can afford to post bond. The Court Administrator recommends that respondent judge be ordered to pay a fine of P20,000.00, considering that it is his first offense, with a warning that a repetition of the same or similar offense shall be dealt with more severely. We agree with the finding of the Office of the Court Administrator. The respondent judge is liable in granting the motion for bail on recognizance in clear violation of R.A. No. 6036, for the following reasons:

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First. Section 1 of R.A. No. 6036 provides that "any provision of law to the contrary notwithstanding, bail shall not be required of a person charged with violation of a criminal offense the prescribed penalty for which is not higher than six months imprisonment and/or a fine of two thousand pesos, or both." Instead of bail, Section 2 states that the person charged "shall be required to sign in the presence of two witnesses of good standing in the community a sworn statement binding himself, pending final decision of his case, to report to the Clerk of Court hearing his case periodically every two weeks. The Court may, in its discretion and with the consent of the person charged, require further that he be placed under the custody and subject to the authority of a responsible citizen in the community who may be willing to accept the responsibility. In such a case the affidavit herein mentioned shall include a statement of the person charged that he binds himself to accept the authority of the citizen so appointed by the Court." In the present case, it is not disputed that the sworn statement supporting the motion for bail filed before respondent judge was signed, not by the accused but by his father. The failure of the accused to sign the sworn statement is in clear contravention of the express mandate of the law that the person charged shall sign a sworn statement binding himself to report to the Clerk of Court. This is a personal obligation imposed by R.A. No. 6036 on the accused and cannot be assumed by the custodian or responsible citizen who may be appointed by the court. It is different from Section 15, Rule 114 of the Rules of Criminal Procedure which allows the release of the accused on his own recognizance or that of a responsible person. R.A. No. 6036 applies to criminal cases where the prescribed penalty is not higher than six months imprisonment and/or a fine of P2,000.00, or both. In the case at bar, accused stands charged with abandonment of a minor which carries with it the imposable penalty of arresto mayor and/or a fine of P500.00. Hence, it was erroneous for respondent judge to have granted the motion for bail on the basis of the affidavit of the father of the accused. Moreover, R.A. No. 6036 allows the release of the accused on his own recognizance only where it has been established that he is unable to post the required cash or bail bond. The accused in this case is a CPA who is engaged in the transport business. We reject the contention of respondent judge that the law does not distinguish whether the accused is rich or poor. The distinction is all to clear for the law explicitly provides that the accused can be released on his own recognizance only if he is able to clearly establish that he is unable to post cash or bail bond. We reiterate the rule that although a judge may not be subjected to disciplinary action for every erroneous order or decision he renders, that relative immunity is not a license to be negligent or abusive and arbitrary in performing his adjudicatory prerogatives. Judges who wantonly misuse the powers vested in them by law cannot render fair and impartial justice.1wphi1.nt Second. Respondent judge does not deny that the accused in Criminal Case No. 9106 was at large when the motion for bail on recognizance was filed and subsequently granted. Bail is the security given for the release of a person in custody of the law.5 Section 15, Rule 114 of the Revised Rules of Criminal Procedure provides that the court may release a person in custody on his own recognizance or that of a responsible person. It is a basic principle that bail is intended to obtain provisional liberty and cannot be granted before custody of an accused has been acquired by the judicial authorities by his arrest or voluntary surrender. It is self-evident that a court cannot grant provisional liberty to one who is actually in the enjoyment of his liberty for it would be incongruous to give freedom to one who is free. Thus, we have held that it is premature to file a motion for bail for someone whose liberty has yet to be curtailed.6 In the case at bar, respondent judge was fully cognizant that the court had not yet acquired jurisdiction over the person of the accused who was still at large and yet, he entertained and granted his motion for bail. In doing so, respondent judge violated a tenet in criminal procedure which is too basic as to

constitute gross ignorance of the law. When the law violated is elementary, a judge is subject to disciplinary action.7 Indeed, the Code of Judicial Conduct enjoins judges to be faithful to the law and maintain professional competence. A judge is called upon to exhibit more than just a cursory acquaintance with statutes and procedural rules; it is imperative that he be conversant with basic legal principles and be aware of wellsettled authoritative doctrines. He should strive for excellence exceeded only by his passion for truth, to the end that he be the personification of justice and the Rule of Law.8 In the case of Comia vs. Antona,9 we found respondent judge liable for gross ignorance of the law for entertaining an application for bail even though the court had not yet acquired jurisdiction over the accused. He was fined P20,000.00 with a stern warning that a repetition of the same or similar acts shall be dealt with more severely. WHEREFORE, the Court finds respondent Judge Acmad T. Barataman liable for gross ignorance of the law and imposes upon him a fine of P20,000.00 with a stern warning that a repetition of the same or similar acts shall be dealt with more severely. SO ORDERED.

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[A.M. No. RTJ-02-1715. September 3, 2002] ATTY. DIOSDADO CABRERA, complainant, vs. JUDGE OSCAR E. ZERNA and GLORIA Z. MARTINEZ, Stenographer, Regional Trial Court, Branch 7, Tubod, Lanao del Norte, respondents. RESOLUTION YNARES-SANTIAGO, J.: A verified letter-complaint[1] for Immorality and Grave Misconduct was filed by Atty. Diosdado Cabrera against Presiding Judge Oscar Zerna, Sr. of the Regional Trial Court of Tubod, Lanao del Norte, Branch 7 and Gloria Z. Martinez, stenographer. Complainant alleged that both respondents have been living together as husband and wife despite the fact that they are both lawfully married to their respective spouses who are still living; that both respondents live in a newly built house located in Poblacion, Tubod, Lanao del Norte; that the house is equipped with an air conditioning unit and a garage intended only for the service-type jeep of respondent judge; that he acquired the said jeep from a litigant in whose favor he issued an injunctive writ; that the house was built with construction materials acquired from a litigant in two civil cases pending at respondent judges sala and from another litigant who obtained a favorable judgment in a case. Complainant likewise charged respondent judge with grave misconduct in connection with several criminal cases pending in his sala, to wit: 1. Criminal Case No. 07-542, where complainant charged respondent judge with rendering a patently erroneous judgment; 2. Criminal Cases Nos. 07-982, 889 and 890, which are drug related cases, where complainant charged the respondent judge with having approved the bonds of supposed bondsmen who did not submit their 2 x 2 I.D. photos or who are either already dead or are out of the country; and 3. Criminal Cases Nos. 07-993, 07-995, 07-996 and 07-997 against five accused therein, in connection with which complainant charges the respondent judge of: a) granting recognizance to two of the accused without legal basis, right upon the filing of their motions for recognizance and without giving the prosecution the opportunity to comment or oppose thereon. There was also an absence of any recommendation from the DSWD for the release of the two alleged minor accused. Respondent judge released on recognizance two accused on the mere basis of questionable Certificate of Live Births furnished by the latter; and b) illegally dismissing these four criminal cases upon motion of a lawyer who was not the counsel of record, without giving the prosecution a chance to be heard, as the Orders of dismissal were issued on the very same day that the motion to dismiss was filed. The dismissals were based only on the Affidavits of Desistance executed for all the four criminal cases by one Georgia Sy, who was the private complainant in only two out of the four cases. As regards respondent Martinez, complainant alleged that she has acquired real and personal properties in amounts that far exceeded her earning capacity. Respondent Martinez submitted her CounterAffidavit[2] where she specifically denied the allegations in the complaint a) relative to the house allegedly used by them for their adulterous relationship; b) pertaining to the referral to her as the wife of respondent judge; c) relative to her alleged immoral relationships with other parties prior to her illicit relationship with respondent judge; and d) on her alleged

acquisition of real and personal properties in amounts which far exceeded her salary. Respondent judge, on the other hand, failed to file his comment despite two motions for extension of time to file comment. Upon evaluation, the OCA recommended the referral of the case to an Associate Justice of the Court of Appeals for formal investigation, report and recommendation.[3] Subsequently, the case was referred to Associate Justice Delilah Vidallon Magtolis of the Court of Appeals.[4] Stripped of other incidental matters, the investigating Justice found that both parties failed to present their respective supporting evidence.[5] During the investigation, complainant failed to appear. Instead, he wrote a letter[6] informing the investigating Justice that he was no longer interested in pursuing his complaint because his witnesses have disappeared, or otherwise have turned indifferent and hostile. He also manifested that in view of the 2-year period that elapsed since he filed the complaint, he thought that his complaint was not given due course. Thus, he withdrew his participation in the investigation. Despite several notices for him to appear and defend himself, respondent judge failed to answer the complaint or deny the charges against him. However, the investigating Justice proceeded to resolve the case on the basis of the available records on hand. On January 19, 2001, a report and recommendation was submitted by the investigating Justice, the dispositive portion of which states: In view of the foregoing, we hereby recommend that the respondent judge be declared guilty of grave misconduct and be meted a FINE OF AT LEAST P20,000.00. The charges against respondent Martinez may be DISMISSED for lack of evidence. The investigating Justice recommended the dismissal of the charge of immorality because of complainants failure to appear at the hearings to prove the same by substantial evidence. As to Criminal Case No. 07-542 for frustrated murder, the investigating justice found that the assailed decision has been affirmed by the Court of Appeals. Accordingly, the charge of complainant against the respondent judge of rendering a patently erroneous judgment has been rendered moot and academic. With regard to Criminal Cases Nos. 07-982, 889 and 890, under Rule 114, Section 2 of the Rules of Court, only the passport size photos of the accused should be attached in the applications for bail. Thus, the submission of the 2 x 2 photographs by bondsmen is not required. Likewise, no evidence was found to substantiate the alleged demise or departure for the USA of the bondsmen in the said criminal cases. Regarding Criminal Cases Nos. 07-993, 07-995, 07-996 and 07-997, the complainant alleged that the respondent judge was precipitate in 1) ordering the release on recognizance of the two accused, and 2) ordering the dismissal of the four criminal cases without a hearing on the basis of the affidavits of desistance of Gregoria Sy. We agree with the investigating Justice that the respondent judge was precipitate in ordering the release on recognizance of Wahab Alom and Saro Ganda, two of the five accused in Criminal Cases Nos. 07-993, 07-995, 07-996 and 07-997. Not only did respondent judge fail to observe the requirement of a hearing before the accused could be released on bail, he also failed to observe the procedure for the release of a youthful offender under Section 191 of P.D. 603. Like any application for bail, a motion to be released on recognizance has the objective of sparing an accused from imprisonment until his conviction and yet secure his appearance at the trial of a pending criminal case.[7] Jurisprudence dictates

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that a hearing is required in granting bail whether it is a matter of right or discretion and the notice of hearing is required to be given to the prosecutor or fiscal, or at least he must be asked on his recommendation.[8] To do away with the requisite hearing is to dispense with this time-tested safeguard against arbitrariness.[9]Perforce, respondent judge should have given the prosecution the opportunity to be heard or at least be allowed to comment or submit its opposition on the application for bail by recognizance. We also note that when accused Alom and Ganda applied for bail by recognizance, both of them made reference, among others, to the applicability of the Child and Youth Welfare Code (P.D. 603), Section 191, which provides: Article 191. Care of Youthful Offender Held for Examination or Trial. A youthful offender held for x x x trial x x x, if unable to furnish bail, shall from the time of his arrest be committed to the care of the Department of Social Welfare and Development or the local rehabilitation center or detention home in the province or city which shall be responsible for his appearance in court whenever required: Provided, that in the absence of any such center or agency within a reasonable distance from the venue of the trial, the provincial, city and municipal jail shall provide quarters for youthful offenders separate from other detainees. The court may, in its discretion upon recommendation of the Department of Social Welfare and Development or other agency or agencies authorized by the Court, release a youthful offender on recognizance, to the custody of his parents or other suitable person who shall be responsible for his appearance whenever required. x x x. (Emphasis supplied) Ensconced in the aforementioned provision of law is the indispensable requirement that before a trial court may release a youthful offender on recognizance to the custody of his parents, the recommendation from the DSWD or other agency or agencies authorized by the Court must be obtained. Otherwise, the youthful offender shall be confined in a separate quarter either in the provincial, city or municipal jail. Notwithstanding the reference made by the two accusedapplicants for bail by recognizance, the respondent judge failed to observe the procedure outlined in Section 191 of P.D. 603 and merely relied upon the birth certificates of the two accusedappellants which showed that respondent judge was deliberately remiss in his duty to uphold the clear mandate of the law. As correctly observed by the investigating Justice: The record of the said cases indicate that indeed, accused Alom and Ganda were precipitately discharged immediately upon their filing of the motions for recognizance, without giving the prosecution a chance to react thereto, and without proper recommendation of the DSWD as required in Sec. 191 of the Child and Youth Welfare Code (P.D. 603, as amended). The basis of the release was the respective birth certificates of the said accused which show upon their faces that they were registered after the filing of the cases and merely two days (9/22/97) before the motions for recognizance were filed on September 24, 1997. The said birth certificates were not even certified by the Local Civil Registrar concerned. Obviously, the respondent judge acted with undue haste and without sufficient basis in ordering the release of said accused on recognizance. There being no apparent legal basis in granting recognizance under P.D. 603, the respondent judge should have observed the general guidelines in the grant of recognizance, x x x. Furthermore, it appears from the records that due to respondent judges negligence in granting bail by recognizance, the two accused who stand charged with four criminal cases, are now both at large.[10] Judges, by the very delicate nature of their office and exalted position they occupy as dispensers of justice, are required to be more circumspect in the performance of their duties.[11]

We are not unmindful of the mistakes that judges may commit in the discharge of their duties. However, they are expected to have more than just a cursory acquaintance with the elementary rules governing procedure as well as jurisprudence. Having accepted the exalted position of a judge, whereby he judges his fellowmen, the judge owes it to the public who depend on him, and to the dignity of the court he sits in, to be proficient in the law.[12] This is so because every judge is bound to know and sworn to uphold the observance of the law.[13] It was held in Cacayoren v. Suller[14] that: A judge should be the embodiment of competence, integrity and independence. It is a pressing responsibility of judges to keep abreast with the law and changes therein for ignorance of the law, which everyone is bound to know, excuses no one not even judges. And while judges should not be disciplined for inefficiency on account merely of occasional mistakes or errors of judgment, yet it is highly imperative that they should be conversant with fundamental and basic legal principles in order to merit the confidence of the citizenry. WHEREFORE, in view of the foregoing, respondent Judge Oscar E. Zerna, who has since retired, is found GUILTY of grave misconduct and is ordered to pay a FINE in the amount of P20,000.00, the same to be deducted from whatever retirement benefits are due him. The charge of immorality against him is DISMISSED for lack of evidence. The charges against respondent Gloria Z. Martinez are DISMISSED for lack of evidence. SO ORDERED.

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A.M. No. MTJ-05-1588 June 5, 2009 (Formerly No. 04-9-511-RTC) JUDGE DIVINA LUZ P. AQUINO-SIMBULAN, Complainant, vs. PRESIDING JUDGE NICASIO BARTOLOME (retired), ACTING CLERK OF COURT ROMANA C. PASCUAL, CLERK OF COURT MILAGROS P. LEREY (retired), and DOCKET CLERK AMOR DELA CRUZ, all of the Municipal Trial Court, Sta. Maria, Bulacan, Respondents. DECISION PERALTA, J.: Before this Court is a dated April 27, 2004 filed by complainant Judge Divina Luz P. Aquino-Simbulan with the Office of the Court Administrator (OCA), alleging that respondents Judge Nicasio V. Bartolome, together with Romana Pascual, Milagros Lerey, and Amor dela Cruz, Acting Clerk of Court, retired Clerk of Court and Docket Clerk, respectively, all of the Municipal Trial Court (MTC) of Sta. Maria, Bulacan, committed grave errors and discrepancies in processing the surety bond for the accused Rosalina Mercado in Criminal Case No. 13360, entitled People of the Philippines v. Rosalina Mercado, et al. In her complaint, Judge Simbulan alleged the following: Criminal Case No. 13360 was originally raffled to the Regional Trial Court (RTC), Branch 41, San Fernando, Pampanga, where complainant Judge presides. On September 18, 2003, said branch of the RTC received an Indorsement from Warrant/Subpoena Officer PO3 Edwin Villacentino of the Sasmuan Municipal Police Station stating that the accused Mercado voluntarily surrendered before the MTC of Sta. Maria, Bulacan and posted her bail bond through Summit Guaranty & Insurance Co., Inc., which was duly approved by respondent Judge Bartolome on August 21, 2003. This prompted complainant to issue an Order2 dated October 29, 2003, directing respondent Lerey, then Clerk of Court of the MTC, to transmit to the RTC within twenty-four (24) hours from receipt of said Order, the bond which the former court approved. When the Clerk of Court failed to comply, complainant Judge issued an Order3 dated January 12, 2004 directing the former to explain in writing within three (3) days from receipt thereof why she should not be cited in contempt for delaying the administration of justice. On January 29, 2004, the RTC received a letter4 from respondent Romana Pascual, then Acting Clerk of Court of the MTC, explaining that the bail bond in Criminal Case No. 13360 was approved by respondent Judge during the tenure of Lerey, and that the latter had retired on August 26, 2003. On February 12, 2004, the RTC received a written explanation5 from Lerey stating that she had misplaced and overlooked the subject surety bond, which resulted in the delay of its transmission to the RTC. Attached to Lereys letter were the following documents: (1) the Court Order dated August 21, 2003 signed by respondent Judge; (2) Bond No. 46485 dated August 21, 2003 with attachments; (3) Undertaking dated November 22, 2003; (4) Certification from the Office of the Court Administrator, dated October 29, 2003; and (5) Certification from Summit Guaranty and Insurance Company, Inc., dated November 22, 2003. Upon perusal of the documents, complainant Judge discovered that the subject surety bond bore some erasures, and its attachments were highly anomalous. In view of these findings, the RTC issued a subpoena to respondents Pascual and Lerey directing them to appear before it to explain the aforementioned errors. letter-complaint1

During the hearing held on April 26, 2004, respondents Pascual and Lerey appeared before the RTC, Branch 41, San Fernando, Pampanga, and the following facts were established therein: 1. That respondent Judge issued an Order of Release dated August 21, 2003 without a Certificate of Detention and Warrant of Arrest attached to the documents presented to him; 2. That while the Order of Release was dated August 21, 2003, the Undertaking and Certification from the bonding company were dated November 22, 2003 and October 29, 2003, respectively; 3. That it was Lerey who reviewed the documents before the surety bond was referred to respondent Judge for the latters approval; and 4. That the delay in the transmission of the bond and its supporting documents was attributed to Amor dela Cruz, Docket Clerk of the MTC of Sta. Maria, Bulacan.6 After the hearing, Public Prosecutor Otto Macabulos stated that he found the explanation too shallow and self-serving, and that he would file an indirect contempt case under Rule 71, Section 3 (d) of the 1997 Rules of Civil Procedure against Lerey and Dela Cruz. He filed said complaint7 on June 21, 2004. The RTC, Branch 41, San Fernando, Pampanga then directed Lerey and Dela Cruz to explain in writing within fifteen (15) days why they should not be cited in indirect contempt of court or improper conduct in the processing of the bail bond of accused Mercado.8 In her Manifestation/Compliance9 dated October 25, 2004, Lerey admitted lapses and negligence in processing the subject bail bond and was remorseful for what happened. On the other hand, Dela Cruz stated that there was no wrongdoing on her part in the processing of the subject bail bond and that she merely followed instructions in mailing the said bail bond to the RTC.10 In an Order11 dated December 14, 2004, the RTC found Lerey guilty of indirect contempt and sentenced her to pay a fine of P10,000.00, which she duly paid. However, it absolved Dela Cruz from any liability as it found her explanation meritorious. In the meantime, in his 1st Indorsement12 dated February 26, 2004, Deputy Court Administrator (DCA) Jose P. Perez referred to the Clerk of Court of the MTC of Sta. Maria, Bulacan the Orders issued by complainant Judge relative to the surety bond for comment. However, there was nothing on record to show that said Clerk of Court complied with the directive. DCA Perez also issued a 1st Indorsement13 dated June 22, 2004 to respondent Judge referring to the letter dated April 27, 2004 of complainant Judge, which discussed the errors and discrepancies regarding the approval of the bail bond of the accused in Criminal Case No. 13360, with the instruction to the former to submit his comment thereto. In compliance, respondent Judge submitted his 2nd Indorsement14 dated July 13, 2004, wherein he denied any liability concerning his approval of the subject surety bond. According to him, Lerey had expressly admitted her negligence and lapses which caused the delay in transmitting the bond to the RTC. He stressed that just like any other judge, his Clerk of Court (Lerey) enjoys his trust and confidence on matters pertaining to the affairs of the court, including the review and approval of bail bonds. He added that he had no reason to doubt the official actions of Lerey as the latter had been serving the court for around 37 years. In a Memorandum15 dated March 1, 2005, then Court Administrator, now Associate Justice Presbitero J. Velasco, Jr., recommended that the letter dated April 27, 2004 (and the Orders attached thereto) of complainant Judge be treated as a formal administrative complaint and redocketed as such against

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respondents Judge Bartolome, Pascual, Lerey, and Dela Cruz, with the directive that the named respondents submit their respective Comments within ten (10) days upon receipt of the Order from the Court. Said Order16 was issued by the Court on April 13, 2005, and all the respondents submitted their Comments on May 13, 2005. Respondent Judge and Pascual both averred that in the case for indirect contempt, only Lerey was found guilty of negligence in the performance of her duties, and no other indictment was made against them.17 On the other hand, Lerey stated in her Comment18 that she has already been found guilty of indirect contempt for failure to transmit the bail bond within the period directed by the court, and paid the fine therefor, while Dela Cruz clarified that she has already been exonerated from any liability or participation in said incident. In a Resolution19 dated June 22, 2005, the Court referred the administrative matter to the Executive Judge of the RTC of Malolos City, Bulacan for investigation, report and recommendation within 60 days from receipt of the record. On April 7, 2006, 2nd Vice-Executive Judge Candido Belmonte submitted his Report,20 which contained the following findings: The Investigating Court takes judicial notice that certain functions of court which are not directly related to decisionmaking are delegated or reposed to court personnel. Under this category falls the preparation and evaluation of documents for bail, for the final approval of the judge. However, to rely solely on the representation made by the Clerk of Court without making even a perfunctory perusal of the records is also a mark of neglect. As such, this court finds the explanation of the respondent judge to be inadequate to exculpate him for the oversight he committed. xxxx With respect to court personnel Romana Pascual, it was established that, at the time of the commission of the subject administrative offense, she was not yet discharging the functions of an Officer-in-Charge. She had no hand in the approval of the bail. As a matter of fact, she immediately informed respondent Milagros Lerey, the former Clerk of Court, of the Order coming from Judge Simbulan of RTC-Branch 41, Pampanga requiring them to transmit the supporting documents for bail. However, it was the inaction of Milagros Lerey on the matter which caused the delay in the transmission. The Court notes that the Order of Judge Simbulan was received at the MTC-Sta. Maria, Bulacan at a time when there was a transition between Milagros Lerey and the present Clerk of Court. During that interregnum, it was Romana Pascual who was the OIC. As such, the letter-explanation of Romana Pascual, dated February 11, 2004, addressed to Judge Simbulan is deemed sufficient explanation by this Investigating Court. Hence, she is exonerated of the charges against her. Regarding the charge against court personnel Amor dela Cruz, it appears to this Court that although she was the one who finally delivered the supporting bail documents to RTC-Branch 41, Pamapanga, she has nothing to do with the act of delay. This seems to be the implication of the admission of Milagros Lerey that at the time of the approval of the bail bond the supporting documents were incomplete. She only put the documents in order after there was an Order from RTC-Branch 41, Pampanga to transmit the same. The delay took place during this period. Once Milagros Lerey handed the documents to Ms. Dela Cruz, she immediately transmitted them to RTC-Branch 41, Pampanga. These facts borne out by her Comment submitted in the Indirect Contempt Case before RTC-Branch 41, Pampanga dated July 19, 2004, which this Investigating Court finds sufficient.21 Based on the foregoing, the Investigating Judge submitted the following recommendations:

1) For respondent Judge Nicasio Bartolome, he be found to be negligent of his duty to supervise his court employees in the discharge of their respective functions. It is further recommended that a fine of P5,000.00 be imposed on him. 2) For respondent Milagros Lerey, she be found to be grossly negligent of the discharge of her functions as a Clerk of Court. It is further recommended that a fine of P5,000.00 be imposed on her over and above the fine of P10,000.00 imposed on her in the Indirect Contempt Case. 3) For respondents Romana Pascual and Amor dela Cruz, there was no direct documentary or testimonial evidence that shows they have handled the bail bonds. Furthermore, they are not responsible for the delay in the transmission of the pertinent documents. As such, it is recommended that they be exonerated of the charges against them. City of Malolos, Bulacan, April 7, 2006.22 In a Resolution23 dated October 11, 2006, the Court referred the Report of the Investigating Judge to the OCA for evaluation, report and recommendation within thirty (30) days from receipt of records. In his Memorandum24 dated November 20, 2007, DCA Jose P. Perez observed that: 1. In approving the surety bond of the accused, respondent Judge violated Section 17, Rule 114 of the Rules of Court.25 In the instant case, the accused Rosalina Mercado was not arrested. That being the case, she should have filed her bail bond with the court where her case was pending, i.e., the Regional Trial Court, Branch 41, San Fernando City, Pampanga. In the absence of the judge thereof, it could be done at another branch of the same court within the province of Pampanga or City of San Fernando. Instead, accused Mercado filed her bond in the Municipal Trial Court of Sta. Maria, Bulacan, where respondent Judge presides, who approved the same and ordered her release from custody. 2. Respondent Judge did not require the accused to submit the supporting documents pertinent to the application for a bond. It appears that there was no Certificate of Detention presented to him; hence, there was no legal justification for him to issue the Order of Release and process the bond since the accused was not detained within his jurisdiction. Also, there was no Warrant of Arrest attached to the documents presented to him. Moreover, all the supporting papers were belatedly filed: (a) Undertaking was dated 22 November 2003; (b) Certification from the Office of the Court Administrator was dated 29 October 2003; and (c) the Certification from Summit Guaranty & Insurance Co., Inc. was dated 22 November 2003. 3. Respondent Judge failed to live up to the standards of a good magistrate. Not only did he approve the bail bond of the accused without the requisite authority to do so, his manner of doing so showed a flagrant disregard for the applicable procedural law he had sworn to uphold and serve. He committed gross misconduct by blatantly disregarding the Rules and settled jurisprudence. These findings led DCA Perez to recommend the following: Considering that Judge Bartolome has compulsorily retired from the service effective on 11 October 2006, we recommend that a fine in the amount of Forty Thousand Pesos (P40,000.00) be deducted from his retirement benefits.

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With respect to Clerk of Court Milagros Lerey, who already retired from the service on 26 August 2003, we also find her guilty of gross misconduct. As can be gleaned from the records, she admitted her wrongdoing. Had she not retired, we could have meted her the extreme penalty of dismissal. We, therefore, recommend that she be fined in the amount of Forty Thousand Pesos (P40,000.00). With respect to respondents Romana Pascual and Amor dela Cruz, there being no evidence linking them to the processing of the questioned bond, it is recommended that the charges against them be dismissed.26 In a Resolution27 dated April 2, 2008, the Court required the parties to manifest within ten (10) days from notice whether they were willing to submit the case for decision on the basis of the pleadings/records already filed and submitted. All respondents manifested their willingness to submit the case for decision: respondents Lerey, Pascual and Dela Cruz having complied on May 13, 2008, and Judge Bartolome on May 23, 2008. The Court submitted the administrative case for resolution on July 25, 2008. After a careful evaluation of the records and the Reports of the Investigating Judge and the OCA, the Court holds that there were indeed grave errors and discrepancies committed by respondents Judge Bartolome and Lerey in processing the surety bond for the accused in Criminal Case No. 13360. The following provisions of the Revised Rules of Criminal Procedure apply before an accused can be released on bail: Sec. 14. Bail, where filed. (a) Bail in the amount fixed may be filed with the court where the case is pending, or, in the absence or unavailability of the judge thereof, with another branch of the same court within the province or city. If the accused is arrested in a province, city or municipality other than where the case is pending, bail may be filed also with any regional trial court of said place, or, if no judge thereof is available, with any metropolitan trial judge, municipal trial judge or municipal circuit trial judge therein. x x x Sec. 16. Release on bail. The accused must be discharged upon approval of the bail by the judge with whom it was filed in accordance with Section 14 hereof. Whenever bail is filed with a court other than where the case is pending, the judge accepting the bail shall forward the bail, the order of release and other supporting papers to the court where the case is pending, which may, for good reason, require a different one to be filed. The OCAs Report revealed that the accused Rosalina Mercado was not arrested. The proper procedure, according to the abovecited rules, would have been to file her bail bond with the RTC Branch 41, San Fernando, Pampanga where her case was pending. Had complainant Judge been absent or was unavailable at that time, the accused could file for bail with another branch of the RTC in Pampanga or in San Fernando City. However, the accused filed her surety bond with the MTC of Sta. Maria, Bulacan, where it was approved by respondent Judge. Not only did respondent Judge erroneously order the release of the accused, but he also failed to require submission of the supporting documents needed in the application for a bond. There was no Certificate of Detention or Warrant of Arrest attached to the bond transmitted by the MTC to the complainant Judge. Moreover, the other supporting documents were belatedly filed. Records show that respondent Judge approved the bail bond on August 21, 2003, but the Undertaking was dated November 22, 2003, the Certification from the OCA was dated October 29, 2003, and the Certification from Summit Guaranty and Insurance Co., Inc. was dated November 22, 2003. Respondent Judge contends that Lerey, who has been Clerk of Court for 37 years, was given the simple matter of examining the documents attached to the application for a bail bond. For her

part, Lerey admitted her negligence when she misplaced and overlooked the surety bond policy, resulting in the delay in the transmission of said documents to the RTC. Notably, she also failed to give an explanation for the erasures which complainant discovered on the surety bond. By such acts, it is evident that Lerey did not measure up to the standards required by Section 1, Canon IV of the Code of Conduct for Court Personnel28 as quoted: Section 1. Court personnel shall at all times perform official duties properly and with diligence. They shall commit themselves exclusively to the business and responsibilities of their office during working hours. In addition, a clerk of court has a vital function in the prompt and sound administration of justice since his or her office is the hub of adjudicative and administrative orders, processes, and concerns.29 He or she also has the duty to ensure an orderly and efficient record management system in the court and to supervise the personnel under her office to function effectively. 30 However, Lereys admission of negligence cannot excuse respondent Judge from liability in the irregular processing of the bail bond. Pertinent provisions of the Code of Judicial Conduct31 state that: Rule 3.08. A judge should diligently discharge administrative responsibilities, maintain professional competence in court management, and facilitate the performance of the administrative functions of other judges and court personnel. Rule 3.09. A judge should organize and supervise the court personnel to ensure the prompt and efficient dispatch of business, and require at all times the observance of high standards of public service and finality. In Bellena v. Judge Perello,32 wherein respondent Judge attributed the delay in transmittal of records to her clerk of court, the former was still found guilty and sentenced to pay a fine. The Court held that, although the clerk of court is primarily responsible for the implementation of respondent judges orders, the fact remains that respondent judge is tasked with administrative supervision over his or her personnel. It is the responsibility of the judge to always see to it that his/her orders are properly and promptly enforced, and that case records are properly stored and kept. Thus, in the present case, respondent Judge himself should have verified that the documents for bail were complete and correct instead of relying on the representations of his clerk of court. With regard to respondents Pascual and Dela Cruz, the Court observes that there is no evidence to show that they have contributed to the irregularities or delay in transmittal of the bail bond. At the time of the commission of the administrative offense, Pascual was not yet discharging the functions of an Acting Clerk of Court. Dela Cruz, on the other hand, merely delivered the supporting documents to the RTC. Having thus established the respondents liabilities, what remains for the Courts contention are their penalties. Under the Uniform Rules on Administrative Cases in the Civil Service,33 the acts of respondent Judge and Lerey may be classified as gross neglect of duty, which is punishable by dismissal under Rule IV, Section 52 A(2) thereof. Neglect of duty denotes the failure of an employee to give ones attention to a task expected of him. Gross neglect is such neglect which, from the gravity of the case or the frequency of instances, becomes so serious in its character as to endanger or threaten the public welfare.34 In Ulat-Marrero v. Torio, Jr.,35 the Court has categorized as a grave offense of gross neglect of duty, the failure of a court process server to serve summons which resulted in the delayed resolution of a case. As corollarily applied to the present case, where respondents released the accused on temporary liberty

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despite the absence of the required supporting documents for bail, the former are likewise liable for gross neglect of duty. Were it not for the fact that both respondents, Judge Bartolome and Lerey, have retired on October 11, 2006 and August 26, 2003, respectively, the Court would have dismissed them from the service. Instead, it orders respondents to pay a fine to be deducted from their retirement benefits, in accordance with its rulings in Moncada v. Cervantes,36 Office of the Court Administrator v. Paredes,37 and Soria v. Oliveros.38 WHEREFORE, in view of the foregoing, the Court finds: 1. Presiding Judge Nicasio Bartolome (retired) GUILTY of gross neglect of duty for which he is meted a fine in the amount of Forty Thousand Pesos (P40,000.00), to be deducted from his retirement benefits; and 2. Clerk of Court Milagros Lerey (retired) GUILTY of gross neglect of duty for which she is meted a fine in the amount of Forty Thousand Pesos (P40,000.00), to be deducted from her retirement benefits. SO ORDERED.

A.M. No. MTJ-04-1556. March 31, 2005 PURITA LIM, Complainant, vs. JUDGE CESAR M. DUMLAO, Municipal Trial Court, San Mateo, Isabela, Respondents. DECISION YNARES-SANTIAGO, J: In a verified letter-complaint1 dated June 5, 2003, complainant Purita Lim charged respondent Judge Cesar M. Dumlao of the Municipal Trial Court of San Mateo, Isabela, with Gross Ignorance of the Law and Grave Abuse of Authority. Complainant averred that she filed two criminal cases for carnapping and theft with the Regional Trial Court of Santiago City, Isabela, Branch 35, against a certain Herman A. Medina. On May 8, 2003, Medina was apprehended and detained at the Bureau of Jail Management and Penology, Santiago City Jail, by virtue of a Warrant of Arrest issued by then Presiding Judge Fe Albano Madrid of Branch 35. On May 9, 2003, respondent judge issued three separate orders for the release of Medina on the ground that he had posted bail with his court. Complainant alleged that respondent judge frequently approves bail bonds for cases filed in other courts and outside the territorial jurisdiction of his court. He also issues search warrants for implementation outside of his courts jurisdiction which, resultantly, are often quashed and the corresponding cases dismissed because the articles seized were inadmissible as evidence. As proof, complainant attached copies of Search Warrant Nos. 2002-120,2 2002-173,3 and 2002-1804 issued by respondent judge. Search Warrant No. 2002-120 was ordered quashed on September 2, 20025 by Judge Anastacio Anghad for being infirmed and fatally defective. The crime was committed outside the territorial jurisdiction of the MTC of San Mateo, Isabela and no "compelling reasons" were stated in the application to justify its filing before the MTC of San Mateo, Isabela. What is more, it was found that respondent judge did not conduct a thorough and extensive inquiry to the deponent and his witnesses as required by the Rules on Criminal Procedure6 in order to establish probable cause and the justification for the application. Search Warrant No. 2002-173 was also ordered7 quashed by Judge Anghad on December 18, 2002 as probable cause was not actually ascertained and searching questions and answers were not conducted. In another case, Search Warrant No. 20021808 was likewise quashed and the articles seized by virtue of the warrant were declared inadmissible in evidence9 because the applicant failed to prove "extreme and compelling circumstances" and the warrant issued did not particularly describe the place to be searched and the persons or things to be seized. In view of these instances, complainant requested for an investigation into the activities of respondent judge. On June 30, 2003, the Court Administrator referred the complaint to respondent judge requiring his comment thereon within ten days from receipt,10 but he failed to file the required comment notwithstanding his receipt of the order on July 28, 2003 as evidenced by the Registry Return Receipt. The Court Administrator sent a 1st Tracer11 dated October 28, 2003 which respondent judge received on November 19, 2003. On June 28, 2004, this Court resolved to require respondent judge to show cause why he should not be disciplinarily dealt with or held in contempt for his obdurate refusal to file his comment.12 On December 8, 2004, with still no response from respondent judge, the Court resolved to dispense with the comment.13 The Office of the Court Administrator (OCA), through Court Administrator Presbitero J. Velasco, Jr. and Deputy Court Administrator Jose P. Perez, submitted to this Court a

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Memorandum dated February 15, 2005. In said memorandum, the Court was informed that respondent judge has been charged in six (6) administrative cases, including the instant case, to wit: 1. MTJ-01-1339 (Efren Morales vs. Judge Cesar Dumlao) for Abuse of Authority. Respondent was fined P5,000.00 in a decision dated February 13, 2002. 2. MTJ-01-1350 (Lorenzo Pascual, et al. vs. Judge Cesar Dumlao) for Gross Negligence and Gross Ignorance. Respondent fined P10,000.00 in a decision dated July 20, 2001. 3. MTJ-03-1519 (Reynaldo Sinaon, Sr. vs. Judge Cesar Dumlao) for Grave Abuse of Authority, Misconduct, Dereliction of Duty and Ignorance of the Law. The case is pending. 4. 03-1442-MTJ (Ester Barbero vs. Judge Cesar Dumlao) for Abuse of Authority. The case is pending. 5. 97-394-MTJ (Artemio Alivia vs. Judge Cesar Dumlao) for Anomalous Reduction of Bailbond. Case pending. The OCAs evaluation stated: The respondents failure to submit his comment as required is further evidence of his defiance of directives issued by his superiors. It is, furthermore, indicative of his admission of the charges pending against him. Indeed, the practice of respondent accepting and approving bail bonds of detained persons who are charged of crimes in courts other than his own constitutes gross ignorance of the law. We believe, however, that in the determination of the penalty, we should consider the fact that he presides over four (4) courts to wit: MTC, San Mateo, Isabela as presiding judge; MCTC, AlfonsoLista-Aguinaldo as acting presiding judge; MTC, Ilagan, Isabela as acting presiding judge, and MCTC of Tumauini-Delfin Albano also as acting presiding judge. Thus, the OCA recommended: Respectfully submitted for the consideration of the Honorable Court with the recommendations that the respondent Judge be required to pay a fine of TEN THOUSAND PESOS (P10,000.00) for his obdurate refusal to file his comment on the complaint. Further, respondent judge be required to pay a fine of TWENTY ONE THOUSAND PESOS (P21,000.00) and warned that a repetition of the same offense will be dealt with more drastically for approving bail bonds for accused persons who were detained in places outside his territorial jurisdiction. We agree with the recommendations of the OCA, except as to the penalty. Section 17, Rule 114 of the Rules of Criminal Procedure provides: Section 17. Bail, where filed. (a) Bail in the amount fixed may be filed with the court where the case is pending, or, in the absence or unavailability of the judge thereof, with any regional trial court judge, metropolitan trial judge, municipal trial judge, or municipal circuit trial judge in the province, city or municipality. If the accused is arrested in a province, city or municipality other than where the case is pending, bail may also be filed with any Regional Trial Court of said place, or if no judge thereof is available, with any metropolitan trial judge, municipal trial judge, or municipal circuit trial judge therein. It is not disputed that the criminal cases filed by complainant against Herman Medina were pending before the Regional Trial Court of Santiago City, Isabela, Branch 35. In fact, the warrant of arrest was issued by Judge Fe Albano Madrid, presiding judge of the said court. The order of release therefore, on account of the posting of the bail, should have been issued by that court, or in the absence or unavailability of Judge Madrid, by another branch

of an RTC in Santiago City. In this case, however, there is no proof that Judge Madrid was absent or unavailable at the time of the posting of the bail bond. In fact, complainant Lim avers that on the day respondent judge ordered the release of Medina, Judge Madrid and all the judges of the RTC of Santiago City, Isabela were at their respective posts. It is elementary that a municipal trial court judge has no authority to grant bail to an accused arrested outside of his territorial jurisdiction. The requirements of Section 17(a), Rule 114 as quoted above must be complied with before a judge may grant bail.14 The Court recognizes that not every judicial error bespeaks ignorance of the law and that, if committed in good faith, does not warrant administrative sanction, but only in cases within the parameters of tolerable misjudgment.15 Where, however, the law is straightforward and the facts so evident, not to know it or to act as if one does not know it constitutes gross ignorance of the law.16 Respondent judge undeniably erred in approving the bail and issuing the order of release. He is expected to know that certain requirements ought to be complied with before he can approve Medinas bail and issue an order for his release. The law involved is rudimentary that it leaves little room for error. In the case of Espaol and Suluen v. Mupas,17 we have stated: Thus, a judge who approves applications for bail of accused whose cases were not only pending in other courts but who were, likewise, arrested and detained outside his territorial jurisdiction is guilty of gross ignorance of the law and violates Rule 3.01 of the Code of Judicial Conduct. It must be emphasized that the rules of procedure have been formulated and promulgated by this Court to ensure the speedy and efficient administration of justice. Failure to abide by these rules undermines the wisdom behind them and diminishes respect for the law. Judges should ensure strict compliance therewith at all times in their respective jurisdictions.18 It is settled that one who accepts the exalted position of a judge owes the public and the court the ability to be proficient in the law and the duty to maintain professional competence at all times.19 When a judge displays an utter lack of familiarity with the rules, he erodes the confidence of the public in the courts. A judge owes the public and the court the duty to be proficient in the law and is expected to keep abreast of laws and prevailing jurisprudence. Ignorance of the law by a judge can easily be the mainspring of injustice.20 Respondent judges predicament is further aggravated by his unauthorized or irregular issuance of search warrants not once but a number of times. To our mind, his violations cannot be excused as mere lapses in judgment but blatant and conscious disregard of basic rules of procedure. Moreover, records show that he has been previously charged and found guilty of similar charges. Respondent judge has been previously fined Five Thousand Pesos for notarizing the revocation of a Special Power of Attorney in violation of Supreme Court Administrative Circular No. 1-90.21 In another case, he was found guilty of gross ignorance of the law and negligence in the performance of duties for issuing a temporary restraining order and granting a partys motion without the benefit of a proper hearing. He was fined Ten Thousand Pesos.22 Section 8, Rule 140 of the Rules of Court characterizes gross ignorance of the law and procedure as a grave offense. The penalties prescribed for such offense are: (1) Dismissal from service, forfeiture of all or part of the benefits as the Court may determine, and disqualification from reinstatement or appointment to any public office, including government owned or controlled corporations, provided, however, that the forfeiture of benefits shall in no case include accrued leave credits; (2) Suspension from office without salary and other benefits for more than three (3) months but not exceeding six (6) months; or (3) a fine of more than P20,000.00 but not exceeding P40,000.00.

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In Gomos, et al. v. Adiong,23 the respondent judge therein was suspended from office without salary and benefits for six months after he was found guilty of gross ignorance of the law. We took judicial notice that previously, he was fined in the sum of P20,000.00 for gross ignorance of the law and another P5,000.00 for gross ignorance of the law and grave abuse of discretion. In this case, respondent judge appears undeterred in disregarding the law. He has continued to exhibit such behavior that betray an unconcerned stance about the previous penalties he has received and the warnings previously given that any repetition of similar infractions shall be dealt with more severely. Thus, we are imposing a penalty more severe than a fine. Given the circumstances, suspension from office for six (6) months without salary and benefits is reasonable. We agree with the OCA that the respondent judge must be held administratively liable for his unjustified failure to comment on an administrative complaint. This constitutes gross misconduct and insubordination. We held inImbang v. Del Rosario, that: The office of the judge requires him to obey all the lawful orders of his superiors. It is gross misconduct, even outright disrespect for the Court, for respondent judge to exhibit indifference to the resolution requiring him to comment on the accusations in the complaint thoroughly and substantially. After all, a resolution of the Supreme Court should not be construed as a mere request, and should be complied with promptly and completely. Such failure to comply accordingly betrays not only a recalcitrant streak in character, but also disrespect for the Courts lawful order and directive. (Emphasis supplied)24 In that case, we fined the judge in the amount of P10,000.00 for his failure to comply with our directives. In the present case, a fine of Ten Thousand Pesos (P10,000.00) as recommended by the OCA is reasonable penalty for respondent judges repeated failure to file his comment on the complaint. WHEREFORE, premises considered, respondent Judge Cesar M. Dumlao of the Municipal Trial Court of San Mateo, Isabela, is found GUILTY of Gross Ignorance of the Law and Grave Abuse of Authority and is hereby SUSPENDED from office for a period of six (6) months without salary and other benefits with a WARNING that a repetition of the same shall merit a more serious penalty. He is likewise FINED the amount of Ten Thousand Pesos (P10,000.00) for his obstinate failure to file comment on the complaint filed against him despite proper notice. SO ORDERED.

A.M. No. MTJ-07-1673

April 19, 2007

VIRGINIA B. SAVELLA, Complainant, vs. JUDGE ILUMINADA M. INES, MTC-Sinait, Ilocos Sur, Respondent. RESOLUTION TINGA, J.: A verified Letter-Complaint1 was filed by Virginia B. Savella (complainant) charging Iluminada M. Ines (respondent judge), Presiding Judge of the Municipal Trial Court of Sinait, Ilocos Sur (MTC-Sinait) with Serious Misconduct. The Letter-Complaint stemmed from a criminal complaint for Falsification of Public Document filed by complainant against Isabel Ibaez (accused), docketed as Criminal Case No. 13617, before the Municipal Trial Court in Cities of Vigan, Ilocos Sur (MTCC-Vigan). A warrant of arrest was not immediately served on the accused because she was residing in the United States of America at that time. On 18 April 2006, National Bureau of Investigation (NBI) operatives tried to serve an alias warrant of arrest on the accused, who reportedly returned to the Philippines to visit her hometown in Sinait, Ilocos Sur. The accused, however, was not found at her residence. Instead, her daughter produced a copy of the Order2 dated 13 April 2006 issued by respondent judge directing the provisional release of the accused upon posting of a P12,000.00 bail bond. Complainant claims that the Clerk of Court of MTC-Sinait did not forward the bail bond papers to the court where the case was pending. This failure, according to complainant, is tantamount to serious misconduct. He further alleges that the order of respondent judge was highly irregular for it gave undue favor and illegal accommodation to the accused who is known to be a close friend of respondent judge.3 In her Comment, respondent judge narrates that on Holy Tuesday, 13 April 2006, the accused, together with her daughters, dropped by her house, voluntarily surrendered to her, and posted bail. Respondent called her clerk to prepare the corresponding receipt for the cash bond. However, on account of the Holy Week celebration and the heavy workload in her court, so respondent judge claims, she forgot to transmit the bail bond papers to MTCC-Vigan until she was reminded by her Clerk of Court on 20 April 2006 when the latter was "ordered"4 by Judge Francisco Ante, Jr. (Judge Ante) of MTCC-Vigan to immediately forward the bail bond papers of the accused. Respondent judge asserts that her failure to immediately transmit the papers cannot be considered such serious misconduct as to warrant administrative sanction. Neither can the approval of the bail be construed as serious misconduct as well because she was merely performing a judicial function.5 In its Report dated 17 October 2006, the Office of the Court Administrator (OCA) found respondent judge guilty of gross ignorance of the law and recommended a fine of P5,000.00 with warning that a repetition of a similar infraction in the future shall be dealt with more severely.6 In a Resolution7 dated 15 January 2007, the Court required the parties to manifest whether or not they are willing to submit the matter for resolution on the basis of the pleadings filed. Complainant, in her manifestation, responded in the affirmative.8 Respondent, however, did not submit any manifestation despite receipt of a copy of the Resolution9 on 16 February 2007. Therefore, she is deemed to have submitted the case for resolution. We agree with the findings of the OCA but not its recommendation.1^vvphi1.net As correctly pointed out by the OCA, respondent judge failed to properly apply the rule regarding the bail bond application.

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Section 17, Rule 114 of the Rules of Court explicitly provides that "(b)ail in the amount fixed may be filed with the court where the case is pending, or, in the absence or unavailability of the judge thereof, with any regional trial judge, metropolitan trial judge, municipal trial judge, or municipal circuit trial judge of the province or city or municipality." The instant falsification case against accused was filed before the MTCC-Vigan, presided by Judge Ante. There was no showing of the unavailability of Judge Ante at that time. Following the said rule, respondent judge clearly erred in entertaining the bail application despite knowledge of the pendency of the falsification case before the MTCC of Vigan. Assuming arguendo that respondent judge rightfully granted bail to accused, her failure to transmit the order of release and other supporting papers to the court where the case is pending constitutes another violation of the rules, particularly Section 19 of Rule 114.10 Respondent judge should have forwarded the records pertaining to the bail bond immediately after she received the same. 11 Judges are called upon to exhibit more than just a cursory acquaintance with statutes and procedural rules. It is imperative that they be conversant with basic legal principles and be aware of well-settled authoritative doctrines. They should strive for excellence exceeded only by their passion for truth, to the end that they be the personification of justice and the Rule of Law. When the law is sufficiently basic, judges owe it to their office to simply apply it; anything less than that would be gross ignorance of the law.12 This blatant violation of the rules exhibited by respondent judge is tantamount to gross ignorance of law or procedure classified as a serious charge under Section 8 of A.M. No. 01-8-10-SC,13 which merits any of the following sanctions: 1. Dismissal from the service, forfeiture of all or part of the benefits as the Court may determine, and disqualification from reinstatement or appointment to any public office, including government-owned and controlled corporations. Provided, however, that the forfeiture of benefits shall in no case include accrued leave credits; 2. Suspension from office without salary and other benefits for more than three (3) but not exceeding (6) months; or 3. A fine of not more than P20,000.00 but not exceeding P40,000.00. Obviously, the penalty recommended by the OCA does not conform to the prescribed sanctions. In line with our rulings in Balayon, Jr. v. Dinopol14 and Republic v. Hidalgo,15 and considering that this is the first administrative offense of respondent judge, we deem it proper to impose upon her a fine of P20,000.00. WHEREFORE, the Court finds respondent Judge Iluminada M. Ines administratively liable for gross ignorance of the law and accordingly imposes on her a fine in the amount of TWENTY THOUSAND (P20,000.00) PESOS with a stern warning that a repetition of a similar act will be dealt with more severely. SO ORDERED.

A.M. MTJ-04-1558 April 7, 2010 (Formerly OCA IPI No. 04-1594-MTJ) Re: ANONYMOUS LETTER-COMPLAINT AGAINST HON. MARILOU RUNES-TAMANG, PRESIDING JUDGE, MeTC PATEROS, METRO MANILA AND PRESIDING JUDGE, MeTC SAN JUAN, METRO MANILA, DECISION PER CURIAM: The administration of justice is circumscribed with a heavy burden of responsibility. It requires that everyone involved in its dispensation from the presiding judge to the lowliest clerk live up to the strictest standards of competence, honesty, and integrity in the public service.1 Any impression of impropriety, misdeed, or negligence in the performance of official functions must be avoided. The Court shall not countenance any conduct, act, or omission on the part of those involved in the administration of justice that violates the norm of public accountability and diminishes the faith of the people in the Judiciary.2 Indeed, public confidence in our courts is vital to the effective functioning of the Judiciary.3 Bearing these tenets in mind, the Court proceeds to determine the ultimate liabilities of a presiding judge, her branch clerk of court, and her process server in connection with an anomaly involving the approval of bail bonds in criminal cases. An anonymous "Concerned Filipino Citizen" sent to then Chief Justice Hilario G. Davide, Jr. a letter dated October 22, 2003 requesting the investigation of Judge Marilou D. Runes-Tamang, Presiding Judge of the Metropolitan Trial Court (MeTC) in Pateros and Acting Presiding Judge of the MeTC in San Juan, Metro Manila.4 The letter-sender complained that Judge Tamang, through the connivance of the arresting officer and court employees of MeTC at San Juan, had been indiscriminately approving fake bonds for a fee of P1,000.00 "per count ng kaso." The letter-sender also requested the investigation of Judge Tamangs husband, a sheriff of the Regional Trial Court (RTC) in Pasig and an alleged drug addict. The letter prompted the Court to treat it as an administrative complaint. On November 4, 2003,5 Chief Justice Davide, Jr. referred the letter to then Deputy Court Administrator Christopher O. Lock (DCA Lock) for appropriate action.lawph!l Initial Investigation and Report by the Office of the Court Administrator The office of DCA Lock conducted a discreet investigation on the reported impropriety. The investigation revealed that Judge Tamang had approved bail bonds issued by Covenant Assurance Company, Inc (Covenant), despite Covenant having been blacklisted since December 20, 2002 in the RTC in Pasig City. It appears that the RTC, Branch 153, in Pasig City furnished to the OCA a copy of its order dated October 22, 20036 revoking the "unethical Orders of Release" issued by Judge Tamang in various criminal cases assigned to that branch. The order stated that Judge Tamang had approved the bail bonds issued by a blacklisted company without any showing of the unavailability of all the RTC Judges in Pasig, considering that the accused persons posting the bail bonds were charged in criminal cases pending before the RTC in Pasig and were detained in the Pasig City Jail. In his memorandum dated May 12, 2004, DCA Lock recommended that the Assistant Court Administrator in charge of the area where Judge Tamang was stationed be directed to conduct further investigation of the irregularities.7 On May 18, 2004, the Court approved the recommendation, and endorsed the matter to then Assistant Court Administrator

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Antonio H. Dujua (ACA Dujua), who immediately directed the conduct of the investigation. ACA Dujua submitted his memoranda dated June 3, 20048 and June 25, 2004.9 In turn, the Office of the Court Administrator (OCA) presented to the Chief Justice its memorandum dated June 29, 2004,10 detailing the anomalous transactions on bail bonds committed in the sala of Judge Tamang. The OCA memorandum reported thus: We have limited our inquiry to the bail bonds acted upon during the period from January 2003 to June 2004, considering that the Covenant Assurance Company, Inc. (Covenant for brevity) the apparent favored bonding company of Judge Tamang was blacklisted on 20 December 2002 only. As previously mentioned in our first Memorandum, as of the date of our investigation, we found no criminal cases in the RTC in Mandaluyong City wherein the bail bonds were secured from Covenant. However, there are three cases- Criminal Cases Nos. MC03-6841, MC03-7058, and MC03-7156 wherein the bail bonds were secured in San Juan and approved by Judge Tamang, notwithstanding the presence and availability of the Judges in the RTC of Mandaluyong City before whose courts the cases are pending. Such approval was made in contravention of the provisions of Section 17(a), Rule 114, Revised Rules of Criminal Procedure. x x x xxx In the RTC of Pasig City, the records in a considerable number of criminal cases hereinafter enumerated show Judge Tamang's blatant disregard for the provisions of the Rules. These records show how she has been indiscriminately approving bonds in violation of such provisions. Of significance, more than a majority of the bonds she had approved had been secured from the Covenant Assurance Company, Inc., notwithstanding the fact that such bonding company is among those blacklisted by the Supreme Court. xxx There are rare cases when Judge Tamang approved bail bonds secured from legitimate surety companies. However, even in such cases, approval was made without compliance with the provisions of Rule 114 . x x x In Criminal Cases Nos. 125724, 125802, 12612-D, 12648-D and 125723, where the bail bonds were secured from legitimate surety firms (either Commonwealth or Summit Guaranty), the accused were all detained in Pasig City where their cases were pending.11 Acting on the OCAs recommendation, the Court en banc issued a resolution dated July 27, 2004,12 to wit: (a) TREAT OCAs Memorandum dated 29 June 2004 as an administrative complaint against Judge Marilou D. Runes-Tamang to be docketed as A.M. No. MTJ-04-1558 (Office of the Court Administrator vs. Judge Marilou D. Runes-Tamang, Presiding Judge, Metropolitan Trial Court, Pateros, Metro Manila and Acting Presiding Judge, Metropolitan Trial Court San Juan, Metro Manila) and automatically converted into administrative disciplinary proceedings against Judge Runes-Tamang as both judge and member of the Philippine Bar. (b) REQUIRE Judge Runes-Tamang to ANSWER the charges against her and explain why she should not be disciplined as a member of the Philippine Bar, within a period of ten (10) days from notice hereof; (c) DECLARE all the bail bonds secured from the Covenant Assurance Company, Inc. after 20 December 2002 as NULL AND VOID; and

(d) DIRECT the concerned judges of the Regional Trial Court of Pasig City and Mandaluyong City to REQUIRE all the accused who secured the above bail bonds from the Covenant Assurance Company, Inc. to secure NEW bail bonds from accredited and legitimate bonding companies or face immediate arrest. Comment/Answer of Judge Tamang Maintaining her innocence of the charges, Judge Tamang submitted her answer/comment dated September 30, 2003,13 in which she related the circumstances surrounding the approval of the bail bonds. Sometime in August of 2003, an RTC Judge of Pasig City called her attention to an irregular order of release she had signed as the Acting Judge of the MeTC in San Juan, Metro Manila, involving a criminal case pending in Pasig City. Allegedly, the order of release was signed without the necessary supporting documents. The discovery of the irregular order of release prompted Judge Tamang to conduct an investigation in the MeTC of San Juan. After her initial investigation, she issued Office Memorandum No. 001-03 dated September 17, 2003,14 addressed to Ellen Sorio, the Branch Clerk of Court of the MeTC in San Juan, directing her to shed light on the anomaly. Office Memorandum No. 001-03 included a directive that no bails bonds would be approved until after the controversy was resolved. In her response to Office Memorandum No. 001-03, Sorio explained that as standard office procedure, she checked all orders and documents, including bail bonds, before Judge Tamang signed them. Sorio added that to her recollection, all the bail bonds passing through her for presentation to Judge Tamang had been in order, although on many occasions, Ronnie Medrano, the MeTCs Process Server, retained possession of some of the documents accompanying the orders of release.15 Sorios explanation prompted Judge Tamang to issue Office Memorandum No. 002-03 dated September 21, 2003,16 requiring Medrano to submit his comment vis--vis Sorio's allegations. Through his Tugon/Salaysay dated September 26, 2003,17 Medrano "admitted" his guilt, and begged Judge Tamang for forgiveness. Thereafter, Judge Tamang issued Office Memorandum No. 003-03 dated September 27, 2003,18 directing Sorio and Medrano to immediately release all the bail bonds still in their possession, and to request the clerks-in-charge of the various courts concerned to remind their respective judges to immediately cause the cancellation of the bail bonds, if warranted. Conceding that she might have been remiss in her duties with respect to the orders of release based on bail bonds issued by Covenant, Judge Tamang insisted that she had been "too trusting" of some personnel of MeTC in San Juan. In substantiation, she cited the following circumstances: (1) Even the previous Judge of the MeTC in San Juan had been subjected to the modus operandi, because there were ten orders of release that said Judge had issued involving criminal cases pending in the RTC and MeTC in Pasig City, Quezon City, and Mandaluyong City, and even one criminal case pending in Angeles City;19 (2) Fourteen orders of release were issued at around 6 p.m. on Fridays, when there were no available Judges in the other courts; and the orders of release were served from around 7 p.m. to 8 p.m. of the same day;20 (3) Some orders of release involved accused who were detained in San Juan, although the criminal cases were pending in the Pasig City RTC, while other orders of release involving criminal cases in Mandaluyong City

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were based on bail bonds issued by legitimate bonding companies;21 (4) She was not able to receive copies of the orders dated August 25, 2003 and October 22, 2003 issued by Judge Ygaa of RTC Pasig City, declaring her orders of release as null and void,22 which reflected a manifest cover-up on the part of some court personnel of the MeTC in San Juan; (5) The issuance of the orders of release based on Covenants bail bonds happened only in the MeTC in San Juan, not in the MeTC in Pateros where she was the Presiding Judge;23 (6) She stayed late in her office to sign orders, to resolve pending motions, and to pen decisions. She believed that all orders of release involving legitimate bonding companies were signed by her beyond office hours, when there were no available judges in other courts; 24 and (7) That she already rectified her mistakes as early as September 2003 by issuing Memoranda No. 001-03 and No. 003-03. Insisting that the court personnel had taken advantage of her leniency and kindness, Judge Tamang declared that she "has never transgressed the Code of Judicial Conduct with malicious intention and orchestrated plans of compromising the integrity of the judiciary." In her supplemental answer/comment dated October 8, 2004,25 Judge Tamang bewailed the failure to accord her due process, contending that she should have been required to file her answer/comment upon receipt of the anonymous lettercomplaint; and that she should have been given opportunity to explain with particularity each and every document that became the basis of the recommendation. Inclusion of Additional Respondents In the resolution dated November 9, 2004,26 the Court noted Judge Tamangs answer and supplemental answer/comment, and referred the matter to the OCA for evaluation, report and recommendation. The OCA submitted its memorandum dated January 26, 2005,27 recommending as follows: (1) That Ms. Eleanor A. Sorio and Mr. Ronnie Medrano, Clerk of Court III and Process Server, respectively, of the Metropolitan Trial Court (Branch 57) at San Juan, Metro Manila, be INCLUDED as respondents together with Judge Marilou D. Runes-Tamang in the instant administrative case; (2) That both Ms. Sorio and Mr. Medrano be required to submit their respective COMMENTS regarding their participation in the processing/approval of the bonds irregularly issued and secured from Covenant Assurance Company, Inc., subject of the OCA Memorandum dated 12 May 2004 and 29 June 2004; and (3) That the instant administrative matter be REFERRED to the Executive Judge of the Regional Trial Court of Pasig City for investigation of (a) all the circumstances attendant to the irregular bail bond transactions; and (b) the specific liability of Judge Tamang, Ms. Sorio, Mr. Medrano and other court personnel who may be involved, report and recommendation within sixty (60) days from the receipt by the investigating judge of the comments of Ms. Sorio and Mr. Medrano.

Acting on the OCAs recommendations, the Court resolved on March 1, 2005 to: (1) include Eleanor Sorio and Ronnie Medrano as respondents in the administrative case; (2) direct Sorio and Medrano to comment on the complaint; and (3) refer the matter to the Executive Judge of the RTC in Pasig City for investigation, report and recommendation.28 Notwithstanding their receipt of the pertinent documents and the additional time allowed to them under the resolution dated January 24, 2006,29 Sorio and Medrano failed to file their comment/answer. In the meantime, Judge Tamang filed a motion for earlier resolution30 and an omnibus motion to request that the matter be already submitted for resolution.31 Subsequently, Medrano manifested that he was waiving his right to file a comment, and that he was submitting the administrative case for decision.32 Due to the prior referral to the OCA, the Court resolved to refer the manifestation of Medrano to the OCA. Upon recommendation of the OCA,33 the Court en banc issued its resolution dated August 28, 2007,34 to wit: (a) REFER Administrative Matter No. MTJ-04-1558 (formerly A.M. OCA IPI No. 04-1594) to the Office of the incumbent Executive Judge of RTC Pasig City, Judge Amelia C. Manalastas, for investigation, report and recommendation within sixty (60) days from receipt of the records; (b) DIRECT the Office of the Clerk of Court-Supreme Court to REMAND the complete and original records of the instant administrative matter to the OCA for their proper transmittal to the Office of Executive Judge Manalastas; (c) DIRECT Executive Judge Manalastas to (1) FURNISH respondents Eleanor A. Sorio and Ronnie Medrano, Clerk of Court III and Process Server, respectively, of the MeTC, Branch 57, San Juan, with copies of the October 22, 2003 Anonymous Complaint and the September 30, 2004 Answer and October 8, 2004 Supplemental Answer filed by Judge Tamang relative to the case and (2) REQUIRE said respondents to submit their comment thereon within a non-extendible period of ten (10) days from receipt of the corresponding order from the investigating judge; and (d) DIRECT Judge Edwin A. Villasor, Presiding Judge, RTC Branch 265, Pasig City to explain, within fifteen (15) days from receipt of this notice, his failure to act on Administrative Matter No. MTJ-04-1558 (formerly A.M. OCA IPI No. 04-1594) despite having received copies of Court resolutions and documents relative to the case. Investigation, Report and Recommendation of the Executive Judge Upon receiving the Courts resolution dated August 28, 2007, Executive Judge Amelia C. Manalastas35 of the RTC in Pasig City directed Sorio and Medrano to file their respective comments, and set the hearing of the administrative case. Judge Manalastas conducted hearings on October 8 and 16, 2007.36 In her compliance dated November 29, 2007,37 Judge Manalastas stated that she had found no evidence to support a finding against Judge Tamang of bad faith, dishonesty, or deliberate intent to do injustice; but recommended that Judge Tamang be found guilty of gross negligence for violating Canon 6 of the Code of Judicial Conduct and that her co-respondents be found guilty of grave misconduct, viz:

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PREMISES CONSIDERED, this Office respectfully submits the following RECOMMENDATION for consideration by the Honorable Court: 1. That Respondent Judge Marilou D. Runes-Tamang be admonished for her gross negligence in the performance of her functions. 2. That respondents Eleonor Sorio and Ronnie Medrano be suspended for their grave misconduct. Final Report of the OCA In its final report dated June 30, 2008,38 the OCA adopted the findings of the Investigating Judge, but concluded that the penalties for Judge Tamang were not commensurate with the offenses committed. Thus, the OCA submitted as follows: (a) That Respondent Judge Marilou Runes-Tamang be found GUILTY of simple misconduct and be ordered to pay a FINE in the amount of Ten Thousand Pesos (P10,000.00) with a STERN WARNING that a repetition of the same or similar offense in the future shall be dealt with more severely. (b) That Respondent Eleanor A. Sorio, Clerk of Court III, MeTC, Branch 57, San Juan, Metro Manila, be found GUILTY of Gross Neglect of Duty and ordered SUSPENDED for SIX (6) months without pay with the STERN WARNING that a repetition of the same or similar offense in the future shall be dealt with more severely; and (c) That Respondent Ronnie Medrano, Process Server, MeTC, Branch 57, San Juan, Metro Manila be found GUILTY of Grave Misconduct and ordered DISMISSED from the service with forfeiture of retirement benefits, except accrued leave credits, and with prejudice to reemployment in any branch or instrumentality of the government, including government owned or controlled corporations. Ruling I Liability of Judge Tamang Judge Tamang admittedly approved not only the bail bonds issued by Covenant, a blacklisted bonding company, but also the bail bonds in some instances for accused persons charged in criminal cases pending outside her territorial jurisdiction. Yet, she insisted that she did not thereby transgress the Code of Judicial Conduct, because she had relied on the representation of her duly authorized personnel that the bail bonds were in order. She claimed that she approved the bail bonds for the criminal cases pending outside her territorial jurisdiction because the accused were detained in San Juan and Pateros, where she was the Presiding Judge. Judge Tamangs explanations could not completely exonerate her. The New Code of Judicial Conduct for the Philippine Judiciary requires that a magistrate be the embodiment of judicial competence.39 According to Webster,40 competence means "the quality or state of being functionally adequate or having sufficient knowledge, judgment, skill, or strength." Webster also defines a competent person to be one "possessed of or characterized by marked or sufficient aptitude, skill, strength, or knowledge." Did Judge Tamang competently act in approving the questioned bail bonds?

Par. 1.3.1.5 (d.1), Section E, Chapter VI of the 2002 Revised Manual for Clerks of Court, outlines the requirements for the approval of bail bonds posted in the courts, to wit: In accepting surety bond, the Clerk of Court should see to it that the following requisites are complied with, otherwise, the bond should be rejected: (1) Photographs of accused It shall be obligatory on the part of surety and bonding companies issuing such bond to attach photographs (face, left and right profiles), passport size, recently taken of the accused on all copies of the corresponding personal bail bond to be issued or posted. (2) Affidavit of justification The bond shall be accompanied by an affidavit of justification to include a statement to the effect that that the company has no pending obligation demandable and outstanding in any amount to the Government or any of its agencies as of the last day of the month preceding the date the bond is issued or posted. (3) Clearance from the Supreme Court Every bond shall be accompanied by a clearance from the Supreme Court showing that the company concerned is qualified to transact business which is valid only for thirty (30) days from the date of its issuance. (4) Certificate of compliance with the Circular from the Office of the Insurance Commissioner The bond shall be accompanied by a verified certification to the effect that the bond form used has been duly registered with the Insurance Commission; that the same has been entered and recorded in the Bond Registry Book of the company concerned in compliance with OIC Circular No. 66 dated September 19, 1966, and that the said bond has not been cancelled. (5) Authority of agent In case the bond is issued through a branch office or through an agent, a copy of the authority or power of attorney shall be submitted to the Clerk of Court for filing, together with the schedule of limits of its authority. (6) Current certificate of authority The bond shall be accompanied by a current certificate of authority issued by the Insurance Commission with the financial statement (OIC Form No. 1) showing the maximum underwriting capacity of the company. (7) Procedure All applications for bail/judicial bonds, before their approval by the Judge concerned, shall be coursed thru the Clerk of Court or his duly authorized personnel who shall see to it that the bond is in order and the signature of the bonding officer authentic before affixing his signature thereto. He shall also indicate therein the outstanding liability of the bonding company, if any, for the information and guidance of the Court. For this particular purpose, the Clerk of Court shall keep a file of specimen signature of authorized bonding officers, to prevent the submission of "fake bail bonds."41

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Judge Tamang approved bail bonds issued by Covenant although they manifestly lacked the required clearance from the Supreme Court indicating that Covenant was qualified to transact business with the courts. As earlier stated, Covenant was a blacklisted company at the time of issuance of the bail bonds. She was thereby guilty of a neglect of duty, for, according to Judicial Audit and Physical Inventory of Confiscated Cash, Surety and Property Bonds at RTC, Tarlac City, Brs. 63, 64 & 65,42 the judge is still bound to review the supporting documents before approving the bail bonds, even if it is the Clerk of Court who has the duty to ascertain that the bail bonds are in order, and that all requisites for approval have been complied with. The Court concurred with the OCAs following observation submitted in said case, to wit: Although the duty to ensure compliance with the requisites of the bail bond application rests mainly with the Clerk of Court or his duly authorized personnel and the task of the Judge is only to approve the same, said task has an accompanying responsibility on the part of the approving Judge to review or determine its validity. Understandably, he should be employing the minimum standard the rules require the clerks of court to observe. Considering the seriousness of the purpose in the posting of bail bond, approval thereof should pass through strict scrutiny and with utmost caution on the part of both the Clerk of Court (or his duly authorized personnel) and the approving Judge.43 Indeed, in Re: Report on the Judicial Audit Conducted in the Regional Trial Court, Branch 4, Dolores, Eastern Samar44 and Padilla v. Silerio,45 the Court expressly enjoins a judge to carefully pore over all documents before signing the documents and giving them official imprimatur. The judges signing of orders must not be taken lightly, or be regarded as the usual paper work that passes through the judges hands for signature.46 Also, according toSuroza v. Honrado,47 a judge is inexcusably negligent if he fails to observe in the performance of his duties that diligence, prudence and circumspection that the law requires in the rendition of any public service. Judge Tamangs excuse of simply relying on the representation of the court personnel who unfortunately took advantage of her leniency and kindness betrayed a deficiency in that requisite degree of circumspection demanded of all those who don the judicial robe. She cannot now thereby exculpate herself, or take refuge behind that excuse, for, in fact, such reliance was actually her admission of being neglectful and of lacking the diligent care in paying attention to the judicial matters brought to her for signature. A carelessness of that kind and degree ran contrary to the competence expected of her as a dispenser of justice and as a visible representation of the law. Section 17 (a), Rule 114 of the Rules of Court governs the approval of bail bonds for criminal cases pending outside the judges territorial jurisdiction, viz: Section 17. Bail, where filed. (a) Bail in the amount fixed may be filed with the court where the case is pending, or in the absence or unavailability of the judge thereof, with any regional trial judge, metropolitan trial judge, municipal trial judge, or municipal circuit trial judge in the province, city, or municipality. If the accused is arrested in a province, city, or municipality other than where the case is pending, bail may also be filed with any Regional Trial Court of said place, or if no judge thereof is available, with any metropolitan trial judge, municipal trial judge, or municipal circuit trial judge therein. xxx Under the provision, the bail bond may be filed either with the court where the case is pending, or with any RTC of the place of arrest, or if no RTC Judge is available, with any MeTC or MTC of the place of arrest. The list of approved bail bonds contained in the OCA memorandum dated June 29, 200448 shows 34 involved accused detained in Pasig City,49 seven in Taguig City,50 six in San Juan,51 and one in Pateros.52 The remaining three cases involved

accused who voluntarily surrendered to Judge Tamang in the San Juan MeTC.53 However, all of the criminal cases were pending in the Pasig RTC. Judge Tamang contends that under Section 17(a), Rule 114, supra, the accused who were detained and who voluntarily surrendered in San Juan could file their applications for bail in San Juan; that the accused detained in Pateros could do the same; and that the bail applications of those detained in Taguig City were legally approved, because she was then the Pairing Judge of the MeTC in Taguig City (Branch 74).54 As a judge then on detail in San Juan, Judge Tamang was correct in approving the applications for bail of the accused who had voluntarily surrendered and been detained in San Juan, Pateros, and Taguig City, because Section 7(a), Rule 114, supra, granted her the authority to approve applications for bail of accused detained within her territorial jurisdiction, in the event of the unavailability of any RTC Judge in the area. It is worth noting that at the time of the subject bail applications, there was still no RTC Judge stationed in San Juan and Pateros.55 However, Judge Tamang did not substantiate her explanation that she had approved the bail applications of the accused detained in Pasig City and had issued the corresponding release orders after office hours on Fridays because no RTC Judges had been available in Pasig City. Aside from the affidavits attesting that she had stayed and worked in her office until 9 p.m. and that the orders of release had been immediately served on the jail warden concerned, she offered no proof to justify her approval of the questioned bonds. Thus, her explanation did not exculpate her, for, truly, her approvals of the bail bonds constituted an irregularity arising from her lack of the authority to do so. The OCA classified Judge Tamangs acts as simple misconduct, and recommended a fine of P10,000.00 to be imposed on her. Although her approval of the bail bonds and her issuance of the orders of release manifested a degree of incompetence on her part, we should not find Judge Tamang guilty of simple misconduct, a less serious charge under Section 9, Rule 140, Rules of Court. Instead, we find her guilty of simple neglect of duty, a light charge under Section 10, Rule 140, Rules of Court, for we are all too aware of the pitfalls that a judge like her frequently stumbles into when detailed in another station. She became an unwitting victim of the continuing illegal activities of Medrano, who took advantage of her being too busy with her judicial and administrative duties and tasks to have noticed and prevented his illegal activities. Nonetheless, several circumstances properly mitigated her administrative liability.56 First: Medrano admitted his liability and totally exonerated Judge Tamang of any participation in or knowledge of the anomalous scheme of submitting blacklisted bonds for approval. In his Tugon/Salaysay,57 he confessed: Tungkol po sa bond na inyong napirmahan, akin pong inaamin na marami dito ang ipinadaan sa akin. Ngunit nananangan po ako na ang karamihan dito ay ligal at walang problema nang ito ay dinadala sa inyo para sa inyong aprubal. Ngunit inaamin ko rin na nitong nakaraang mga buwan ay may mga bonds na hindi ko pinadala kay Ate Ellen. Ito yung mga pagkakataong may mga taong lumalapit sa akin at nakiusap at dahil na rin sa hindi ko matanggihan bunsod ng pakikisama. Ang mga bonds na sinsabi ko ay isinasabay ko na lamang sa mga papeles na dinadala sa inyong lamesa para mapirmahan kapag kayo ay dumarating na galing sa inyong Korte sa Pateros. Medrano stated that some of the bail applications had incomplete supporting papers; that he had requested the staff to tell Judge Tamang, should she ask, that the bail applications were complete; and that he had thereby taken advantage of the judges voluminous workload. He also declared:

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Inaamin ko din po na ang iba dito ay kulang sa papeles at kung pagkaminsan ay kumpleto nga ngunit mga xerox copies lamang ang mga dokumento naka attach. Sa ganitong mga pagkakataong ay pinasasabi ko na lamang sa mga staff na sabihin sa inyo kapag kayo ay nagtatanong na kumpleto ang lahat at walang prublema at ikakabit ko na lamang sa bond kinabukasan o kapag ito ay dadalhin na sa korte. Maari pong sabihin na akin nga pong naabuso at nasamantala ang kabaitan at pagtitiwala ninyo sa amin, dahil naipalusot ko ang mga nasabing bonds, nang hindi ko sinsabi sa inyo ang katotohanan. Maari ding sabihing sinamantala ko ang sobrang dami ng inyong ginagawa na pagkaminsan ay tinityempo ko ang pagpasok ng mga bonds kasama ng napakaraming papeles na inyong pipirmahan kapag kayo ay nagmamadali nang umalis pauwi. xxx Undoubtedly, Medrano unconditionally assumed sole responsibility for the anomalous bail bonds, even if he admitted having committed the anomaly at the behest of several unnamed persons, viz: Kung mayroon man dapat managot sa lahat ng gusot na ito ay AKO lamang po at wala nang iba pa. xxx Hindi ko po talaga alam na aabot sa ganito ang lahat. Gusto ko lamang pong malaman ninyo na ako ay biktima lamang ng mga taong nakiusap sa akin na dahil sa tiwala at kumpyansa sa kanila, kapag sinabi nila sa akin na ayos ang lahat ng papeles at ang mga nasabing bonds at alam na ng kinauukulang husgado, akin po itong tinatanggap at pinadadala sa inyong lamesa para mapirmahan. Second: It is undisputed that upon learning about the anomaly in August 2003 Judge Tamang immediately took steps to frontally deal with it by conducting an investigation, and directing Sorio at first and Medrano later to explain their participations in the uncovered anomaly.58 Her measures were sincerely taken a few months before the Court received the denunciatory anonymous letter in November 2003. The taking of such measures were probably what convinced Executive Judge Manalastas as Investigating Judge to observe in her report on the investigation that there appeared "no evidence to support a finding of bad faith, fraud, dishonesty or deliberate intent to do injustice."59 Third: The offense is Judge Tamangs first administrative charge as a judge. According to Concerned Boholanos for Law and Order v. Calibo, Jr.,60 the fact that a judge is being charged administratively for the first time is a mitigating circumstance. Such mitigating circumstances, coupled with Judge Tamangs good performance record,61 rendered it is just and warranted to impose the penalty of reprimand pursuant to Section 11, C, Rule 140, Rules of Court, viz Section 11. Sanctions. xxx xxx C. If the respondent is guilty of a light charge, any of the following sanctions shall be imposed: 1. A fine of not less than P1,000.00 but not exceeding P10,000.00 and/or 2. Censure; 3. Reprimand;

Revised Uniform Rules on Administrative Cases in the Civil Service punishes with dismissal from the service. The 2002 Revised Manual for Clerks of Court requires that all applications for bail and judicial bonds shall be coursed, before their approval by the Judge concerned, through the Clerk of Court or his duly authorized personnel, who shall see to it that the bonds are in order. In accepting surety bonds, the Clerk of Court should see to it that all the requisites are complied with; otherwise, the bonds should be rejected. Every bond shall be accompanied by a clearance from the Supreme Court showing that the issuing company is qualified to transact business, which clearance is valid only for 30 days from the date of its issuance. In response to Judge Tamangs Memorandum Order No 001-03, Sorio categorically averred that she had personally scrutinized the documents before these were brought to the judges table for her signature.62 Insisting that there was no single defective or anomalous bond from among the documents that had passed through her, Sorio stated: Its true that all orders and other documents including bail bonds pass through the undersigned before they are presented to you for signature. The idea was for me to check whether the documents to be signed by you are in order. To my recollection, all bail bonds which passed through undersigned for scrutiny/examination were all in order before they were presented to you for your signature. After your signature on bail bonds, corresponding endorsement letters were made to the court where the accused may have pending case and we have these transmittal on record.63 Sorios insistence notwithstanding, there were still spurious bail bonds that had reached the hands of Judge Tamang, and that the latter ultimately signed. Thus, although Sorio denied any knowledge of or participation in such anomalous bail bonds, we find her liable. As the Branch Clerk of Court of the MeTC in San Juan, Sorio was the administrative officer of the branch who had the control and supervision of all court records, exhibits, documents, properties and supplies. With her responsibilities as such, Sorio should have ensured that all bail bonds and their supporting documents were in order before endorsing them to Judge Tamang for approval. Sorio should have rejected the bail bonds of Covenant due to the latters blacklisting and its lack of clearance from the Supreme Court to issue such bail bonds. She cannot now simply feign ignorance and escape liability upon the implausible pretext that some bail bonds did not pass through her. Likewise, Sorio did not explain the non-transmittal of some approved bail bonds and their supporting documents to the courts, before which the criminal cases of the accused concerned had been filed and pending. Based on the record, Judge Tamang had given instructions to Sorio and Medrano to immediately release the bail bonds upon her approval of them. However, during the hearing before the Investigating Judge, Sorio admitted her failure to see to their immediate release, although such was her primary responsibility as the Branch Clerk of Court, to wit: COURT: No, first explain to me why these documents were not transmitted (interrupted) MS. SORIO: Upon approval yon ni Judge Tamang, after approval I gave everything to the one in-charge in transmitting the bonds. COURT: Who is the one in-charge?

4. Admonition with warning. II Liability of Ellen Sorio The OCA recommended that Sorio be found guilty of gross negligence, which Subsection A(2), Section 52, Rule IV of the MS. SORIO: The interpreter, Your Honor, then I presumed that everything will be transmitted by her. COURT: You have administrative responsibility over the personnel of the Court.

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MS. SORIO: Yes, Your Honor, alam ko po yon kaya naman po pag nagpa ano na ho sya hindi ko na po alam kung alin-alin po yong kanyang mga pinadala at hindi niya pinadala. And then ngayon, silang dalawa (2) nalang ho ni Ronnie and nag-uusap ho kung ano pa pong kulang. COURT: Eh pano yan di command responsibility din sayo yan because these documents were never transmitted by your subordinate. MS. SORIO: Basta binigyan ko po sila ng instruction lagi talaga na itransmit nyo kaagad yan. COURT: But they were never transmitted, the fact is, they were never transmitted. MS. SORIO: I dont know (interrupted) COURT: So who should be responsible? MS. SORIO: Hindi ko po talaga alam kung natransmit ho nila lahat yon maam. xxx COURT: So why they were not transmitted and why did you not find out until this investigation? MS. SORIO: I do believe, Your Honor, that they will follow my instructions. COURT: And you never follow it up? You never ask them? MS. SORIO: I am always following up, Your Honor, the instruction to them. COURT: Thats not enough apparently, youre the clerk of court eh kasi lalo na yon its a vacant Court walang judge you should be responsible. Ano bang ginagawa ninyo pag walang judge dyan? You know command responsibility youre the highest official in that Court. MS. SORIO: Yes, Your Honor, Im doing my best, Your Honor, lahat po iniuutos ko sa kanila, lahat ng dapat nilang gawin pinagagawa ko but unfortunately (interrupted) COURT: Oo it is not enough na iuutos mo tapos hindi naman gagawin di ba MS. SORIO: Tsinetsek ko naman po sa kanila eh.64 Sorios passing on the blame to her subordinates, as the foregoing excerpt of her testimony indicates, did not justify her failure to ensure that the approved bail bonds be forthwith transmitted to the courts concerned. Her obligation did not end with the initial verification and signing of the documents, but extended until the bail bonds and their supporting documents were transmitted to the courts concerned for appropriate action. Thus, we cannot exonerate Sorio. As the Branch Clerk of Court, she was an essential and ranking officer of the judicial system who performed delicate administrative functions vital to the prompt and proper administration of justice.65 Her responsibility went beyond a perfunctory and superficial supervision of her subordinates. As the Court pointed out in Office of the Court Administrator v. Saa:66

xxx Clerks of Court are required to be persons of competence, honesty, and probity since they are specifically imbued with the mandate of safeguarding the integrity of the court and its proceedings, to earn and preserve respect therefor, to maintain loyalty thereto and to the judge as a superior officer, to maintain the authenticity and correctness of court records and to uphold the confidence of the public in the administration of justice. xxx The degree of diligence expected of Sorio as the Branch Clerk was high. According to Escobar Vda. de Lopez v. Luna,67 the Clerks of Court: xxx [a]re the hubs of adjudicative and administrative orders, processes and like concerns. Their responsibilities are vital to the prompt and sound administration of justice. They cannot be allowed to slacken on their work. They should be officers of competence; they should safeguard the integrity of the court and its proceedings; they should uphold the confidence of the public in the administration of justice; and they should help ensure that the cause of justice is done without delay. Sorio was remiss in the performance of her duties. Aside from taking her responsibilities as the Branch Clerk of Court for granted, she also fell short of the task of effective supervision of the court staff. The recommendation of the OCA that Sorio be administratively sanctioned for gross negligence of duty was, therefore, proper, considering that, as the OCA aptly put it: Respondent Sorio was grossly negligent in her duties as clerk of court as shown by her insistence, during the hearing conducted by the investigating judge that she knew nothing of what was happening in the Court. Being the Branch Clerk of Court, she cannot just feign ignorance, considering that she is the administrative assistant of the presiding judge with the duty to assist in the management of all matters not involving the exercise of discretion or judgment of the judge.68 The OCA observed, however, that it found no evidence of bad faith, fraud, dishonesty or deliberate intent to do injustice on the part of Sorio. Although her participation in the anomaly was sufficiently established, we give due consideration to the fact that this offense was her first administrative liability in the 35 years she worked in the Judiciary by appreciating this fact as a mitigating circumstance in her favor.69 We impose suspension from the service for two months without pay. III Liability of Ronnie Medrano We cannot be as compassionate towards Medrano, who categorically admitted his offense, giving the simple explanation of having thereby accommodated ill-intentioned people. His anomalies for a consideration appeared to be not isolated, but repeated many times. He thereby converted his employment in the court into an income-generating activity. We find him guilty of grave misconduct,70 because he fell short of his accountability to the people as a public employee. The Court explains in Imperial v. Santiago, Jr.,71 viz: Misconduct is a transgression of some established and definite rule of action, more particularly, unlawful behavior or gross negligence by the public officer. To warrant dismissal from the service, the misconduct must be grave, serious, important, weighty, momentous and not trifling. The misconduct must imply wrongful intention and not a mere error of judgment. The misconduct must also have a direct relation to and be connected with the performance of his official duties amounting either to maladministration or willful, intentional neglect or failure to discharge the duties of the office. There must also be reliable evidence showing that the judicial acts complained of were corrupt or inspired by an intention to violate the law. In grave misconduct, as distinguished from simple misconduct, the elements of corruption, clear intent to violate the law, or flagrant disregard of established rule must be

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manifest.72 Corruption as an element of grave misconduct consists in the act of an official or employee who unlawfully or wrongfully uses his station or character to procure some benefit for himself or for another, contrary to the rights of others.73 Medrano knowingly and corruptly submitted spurious or irregular bail bonds for the approval of the judge. His grave misconduct was, therefore, a grave offense that deserved the penalty of dismissal for the first offense pursuant to Sec. 52-A of the Uniform Rules on Administrative Cases in the Civil Service.74 Accordingly, he is meted the ultimate penalty of dismissal. WHEREFORE, the Court declares and finds: 1. JUDGE MARILOU D. RUNES-TAMANG of the Metropolitan Trial Court in Pateros, Metro Manila guilty of simple neglect of duty, with mitigating circumstances as stated in this decision, and, accordingly, she is reprimanded, with a stern warning that a repetition of the same offense, or the commission of a similar offense, shall be dealt with more severely; 2. ELEANOR A. SORIO, Clerk of Court III, Metropolitan Trial Court, Branch 57, in San Juan, Metro Manila guilty of gross neglect of duty, with a mitigating circumstance as stated in this decision, and, accordingly, she is suspended from the service for two months without pay, with a stern warning that a repetition of the same offense, or the commission of a similar offense, shall be dealt with more severely; and 3. RONNIE MEDRANO, Process Server, Metropolitan Trial Court, Branch 57, in San Juan, Metro Manila guilty of grave misconduct, and, accordingly, he is dismissed from the service with forfeiture of retirement benefits, except accrued leave credits, and with prejudice to his re-employment in any branch or instrumentality of the Government, including government-owned and government-controlled corporations. Let a copy of this decision be attached to the personnel records of the respondents in the Office of the Court Administrator. SO ORDERED.

A.M. No. RTJ-11-2262 February 9, 2011 [Formerly OCA I.P.I. No. 08-3056-RTJ] GAUDENCIO B. PANTILO III, Complainant, vs. JUDGE VICTOR A. CANOY, Respondent. DECISION VELASCO, JR., J.: This administrative complaint against Judge Victor A. Canoy (Judge Canoy) of the Regional Trial Court (RTC), Branch 29 in Surigao City stems from a complaint filed by Gaudencio Pantilo III (Pantilo), charging Judge Canoy with several counts of gross ignorance of the law and/or procedures, grave abuse of authority, and appearance of impropriety (Canon 2, Code of Judicial Conduct). Pantilo prays for Judge Canoys disbarment in relation to Criminal Case No. 8072 for Reckless Imprudence Resulting in Homicide entitled People of the Philippines v. Leonardo Luzon Melgazo. The facts of the case, as gathered from the records, are as follows: The complainant, Pantilo, the brother of the homicide victim in the above-mentioned criminal case, recounts in his lettercomplaint that, on September 3, 2008, at around 5 oclock in the afternoon, he, along with police officers Ronald C. Perocho (Perocho) and Santiago B. Lamanilao, Jr. (Lamanilao), acting as escorts of Leonardo Luzon Melgazo (Melgazo), the accused in Criminal Case No. 8072, went to the City Prosecutors Office, Surigao City, to attend the inquest proceedings.1 Later, at around 8 oclock in the evening, Pantilo was informed by Perocho that Melgazo had been released from detention.2 The following day, September 4, 2008, Pantilo went to the Surigao City Police Station to verify the information. Upon arriving there, Custodial Officer Anecito T. Undangan told him that Melgazo had indeed been released at around 6:30 p.m. on September 3, 2008, as shown in the Police Logbook of Detention Prisoners and as authorized by Chief of Police Supt. Ramer Perlito P. Perlas.3 Further, the logbook showed that Melgazo was temporarily released upon the order of Judge Canoy after he posted bail in the amount of thirty thousand pesos (PhP 30,000), as evidenced by O.R. No. 0291794 dated September 3, 2008.4 Pantilo proceeded to the Office of the Clerk of Court to request a copy of the Information, only to find out that none had yet been filed by the Surigao City Prosecutors Office.5 Puzzled, he inquired from the City Prosecutors Office the details surrounding the release of Melgazo. He learned that no Information had yet been filed in Court that would serve as the basis for the approval of the bail. Likewise, he also learned from the City Police Station that no written Order of Release had been issued but only a verbal order directing the police officers to release Melgazo from his detention cell.6 One of the police officers even said that Judge Canoy assured him that a written Order of Release would be available the following day or on September 4, 2008 after the Information is filed in Court. On September 5, 2008, Melgazo filed a Motion for the Release of his impounded vehicle as physical evidence pending the trial of the case.7 The motion was received by the Office of the Clerk of Court at 8:30 a.m. that day and was subsequently raffled in the afternoon. In the Notice of Hearing of the said motion, Melgazo prayed that it be heard on September 5, 2008 at 8:30 a.m. According to Pantilo, this clearly violated the rules which require that the other party must be served a copy of the motion at least three (3) days before the hearing. Nevertheless, Judge Canoy issued an Order dated September 5, 2008, directing Assistant City Prosecutor Robert Gonzaga (Prosecutor Gonzaga), the prosecutor-in-charge of the case, to give his comment on the said motion within three (3) days upon receipt of the Order. Three (3) days later, Prosecutor Gonzaga

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submitted his comment. And despite his opposition, Judge Canoy granted Melgazos motion.8 Subsequently, Pantilo filed a motion for inhibition of Judge Canoy which was later denied. Aggrieved, Pantilo filed a letter-complaint dated November 3, 2008 before the Office of the Court Administrator charging Judge Canoy with (1) gross ignorance of the law and procedures; (2) grave abuse of authority; and (3) appearance of impropriety (Canon 2, Code of Judicial Conduct). Pantilo also prays for Judge Canoys disbarment. On January 5, 2009, the Court Administrator required respondent judge to comment on the complaint within ten (10) days from receipt. Accordingly, on February 5, 2009, Judge Canoy filed his comment, arguing that the facts in this case were exceptional. In his comment, he admitted that the inquest proceedings of Melgazo before Prosecutor Gonzaga concluded around 5:00 p.m. on September 3, 2008, after which, Melgazo, with his counsel, Atty. Cacel Azarcon, went to his office to post bail for Melgazos provisional liberty.9 He noted that because of the time, most of the clerks in his office and the Office of the Clerk of Court had already gone home. Thus, it was no longer possible to process the posting of bail and all the necessary papers needed for the release of Melgazo. Bearing in mind the constitutional right of the accused to bail and coupled with the insistence of Melgazos counsel, Judge Canoy summoned Prosecutor Gonzaga and inquired about the result of the inquest proceedings. Thereupon, Prosecutor Gonzaga relayed to him that the charge against Melgazo was for Reckless Imprudence with Homicide and the recommended bail bond was thirty thousand pesos (PhP 30,000). However, since it was already past 5:00 p.m., Prosecutor Gonzaga claimed that he could no longer file the Information and that it would have to be filed the next day.10 Despite all this, Judge Canoy informed Prosecutor Gonzaga that he would allow Melgazo to post bail in the amount recommended. He then called Mrs. Ruth O. Suriaga (Suriaga), Clerk IV, Office of the Clerk of Court, RTC, Surigao City, to accept as deposit for bail the thirty thousand pesos (PhP 30,000) from Melgazo.11 Likewise, he instructed Suriaga to earmark an official receipt which would have to be dated the following day or September 4, 2008. Accordingly, he summoned the escorting police officers, Perocho and Lamanilao, and verbally ordered them to release Melgazo from detention. He also said that the written order would be issued the following day.12 In his defense, Judge Canoy invokes the constitutional right of the accused to bail and Section 17(c), Rule 114 of the Revised Rules of Criminal Procedure, which does not require that a person be charged in court before he or she may apply for bail.13 To his mind, there was already "a constructive bail given that only the papers were needed to formalize it."14 It would be unreasonable and unjustifiable to further delay the release of the accused. Nevertheless, he submits that if he would be "faulted for such act, he does humbly concede but he merely acted in accordance with what he deemed best for the moment x x x."15 As to his Order dated September 8, 2008 directing the release of the vehicle subject of the case, he contends that there was no deliberate intent to disregard rules and procedure. In fact, he points out that the prosecution was given three (3) days within which to file its comment on the motion of the accused. The grounds raised by both parties were well taken into consideration, but he found the grounds raised by Melgazo to be more reasonable and practical and, hence, he granted the motion.

Similarly, he denied the motion for inhibition filed by Pantilo owing to the absence of an express imprimatur of the prosecutor handling the case. On February 9, 2009, Pantilo filed his Reply to the Comment arguing that there is no such thing as constructive bail under the rules. He adds that, while he does not dispute the accuseds right to post bail, the granting of such should be in harmony with the rules, i.e., an application or motion to that effect and a corresponding order from the court granting the motion. On October 18, 2010, Court Administrator Jose Midas P. Marquez issued his evaluation and recommendation on the case. In his evaluation, the Court Administrator found that respondent judge failed to comply with the documents required by the rules to discharge an accused on bail. Further, the Court Administrator noted that Judge Canoy also has another pending case (but filed on a later date, September 3, 2009): OCA-IPI No. 09-3254-RTJ, entitled Cristita Conjurado Vda. de Tolibas v. Judge Victor A. Canoy for Gross Ignorance of the Law and Conduct Prejudicial to the Best Interest of Service. Consequently, he recommended the following: (1) the instant complaint be re-docketed as a regular administrative matter; and (2) Judge Canoy be fined forty thousand pesos (PhP 40,000) with a stern warning that a commission of similar acts in the future will be dealt with more severely. The Courts Ruling We find the evaluation and recommendations of the Court Administrator well-founded. It is settled that an accused in a criminal case has the constitutional right to bail,16 more so in this case when the charge against Melgazo, Reckless Imprudence Resulting in Homicide, is a non-capital offense. However, the letter-complaint focuses on the manner of Melgazos release from detention. Sec. 17, Rule 114 of the Revised Rules on Criminal Procedure allows that any person in custody who is not yet charged in court "may apply for bail with any court in the province, city or municipality where he is held." In the case at bar, Melgazo did not file any application or petition for the grant of bail with the Surigao City RTC, Branch 29. Despite the absence of any written application, respondent judge verbally granted bail to Melgazo. This is a clear deviation from the procedure laid down in Sec. 17 of Rule 114.1avvphil In addition to a written application for bail, Rule 114 of the Rules prescribes other requirements for the release of the accused: SEC. 14. Deposit of cash as bail.The accused or any person acting in his behalf may deposit in cash with the nearest collector of internal revenue or provincial, city, or municipal treasurer the amount of bail fixed by the court, or recommended by the prosecutor who investigated or filed the case. Upon submission of a proper certificate of deposit and a written undertaking showing compliance with the requirements of section 2 of this Rule, the accused shall be discharged from custody. The money deposited shall be considered as bail and applied to the payment of fine and costs while the excess, if any, shall be returned to the accused or to whoever made the deposit. SEC. 2. Conditions of the bail; requirements.All kinds of bail are subject to the following conditions: (a) The undertaking shall be effective upon approval, and unless cancelled, shall remain in form at all stages of the case until promulgation of the judgment of the Regional Trial Court, irrespective of whether the case was originally filed in or appealed to it; (b) The accused shall appear before the proper court whenever required by the court or these Rules;

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(c) The failure of the accused to appear at the trial without justification and despite due notice shall be deemed a waiver of his right to be present thereat. In such case, the trial may proceed in absentia; and (d) The bondsman shall surrender the accused to the court for execution of the final execution. The original papers shall state the full name and address of the accused, the amount of the undertaking and the conditions required by this section. Photographs (passport size) taken within the last six (6) months showing the face, left and right profiles of the accused must be attached to the bail. In the case at bar, Melgazo or any person acting in his behalf did not deposit the amount of bail recommended by Prosecutor Gonzaga with the nearest collector of internal revenue or provincial, city or municipal treasurer. In clear departure from Sec. 14 of Rule 114, Judge Canoy instead verbally ordered Clerk IV Suriaga of the Surigao City RTC, Office of the Clerk of Court, to accept the cash deposit as bail, to earmark an official receipt for the cash deposit, and to date it the following day. Worse, respondent judge did not require Melgazo to sign a written undertaking containing the conditions of the bail under Sec. 2, Rule 114 to be complied with by Melgazo. Immediately upon receipt by Suriaga of the cash deposit of PhP 30,000 from Melgazo, Judge Canoy ordered the police escorts to release Melgazo without any written order of release. In sum, there was no written application for bail, no certificate of deposit from the BIR collector or provincial, city or municipal treasurer, no written undertaking signed by Melgazo, and no written release order. As regards the insistence of Judge Canoy that such may be considered as "constructive bail," there is no such species of bail under the Rules. Despite the noblest of reasons, the Rules of Court may not be ignored at will and at random to the prejudice of the rights of another. In BPI v. Court of Appeals, We underscored that "procedural rules have their own wholesome rationale in the orderly administration of justice. Justice has to be administered according to the Rules in order to obviate arbitrariness, caprice, or whimsicality."17 In other words, "[r]ules of procedure are intended to ensure the orderly administration of justice and the protection of substantive rights in judicial and extrajudicial proceedings."18 In this case, the reason of Judge Canoy is hardly persuasive enough to disregard the Rules.19 From the foregoing, the Court finds Judge Canoy guilty of a less serious charge of violation of Supreme Court rules, directives and circulars under Sec. 9, Rule 140 for which a fine of more than PhP 10,000 but not exceeding PhP 20,000 is the imposable penalty under Sec. 11(b), Rule 140 of the Rules of Court. A fine of PhP 11,000 would be the appropriate penalty under the circumstances of the case. WHEREFORE, respondent Judge Victor A. Canoy is found GUILTY of violation of Supreme Court rules, directives, and circulars. He is meted the penalty of a FINE of eleven thousand pesos (PhP 11,000). He is STERNLY WARNED that a repetition of similar or analogous infractions in the future shall be dealt with more severely. SO ORDERED.

A.M No. RTJ-06-1976 April 29, 2009 [Formerly OCA IPI No. 03-1857] PROVINCIAL PROSECUTOR MANUEL F. TORREVILLAS, Complainant, vs. JUDGE ROBERTO A. NAVIDAD,1 REGIONAL TRIAL COURT, BRANCH 32, CALBAYOG CITY, Respondent. x - - - - - - - - - - - - - - - - - - - - - - -x A.M No. RTJ-06-1977 April 29, 2009 [Formerly A.M. No. 04-2-110-RTC] REPORT ON JUDICIAL AUDIT CONDUCTED IN THE REGIONAL TRIAL COURT, BRANCH 32, CALBAYOG CITY. DECISION CARPIO MORALES, J.: These two administrative cases at bar, A.M. No. RTJ-061976 and A.M. No. RTJ-06-1977, were originally consolidated with two other cases: A. M. No. RTJ-06-1978, Office of the Court Administrator v. Judge Roberto A. Navidad, RTC, Br. 32, Calbayog City, Samar, and A.M. No. RTJ-06-1980, Eric C. Isidoro and Atty. Anecio R. Guades v. Judge Roberto A. Navidad, RTC, Br. 32, Calbayog City. By Resolution of January 31, 2007,2 this Court dismissed the complaint in A.M. No. RTJ-06-1978, while that in A.M. No. RTJ-061980 was also dismissed, Judge Roberto A. Navidad (Judge Navidad or respondent) was reminded to be more circumspect in the performance of his duties. This leaves for disposition the first and second cases. Re: A.M. No. RTJ-06-1976 On July 16, 2003, Provincial Prosecutor Manuel Torrevillas, Jr. brought to the attention of then Chief Justice Hilario G. Davide, Jr. the "inapropriate actuation" of Judge Roberto A. Navidad of Branch 32, the RTC of Calabayog City in the handling of cases before his sala. The Chief Justice thus instructed the Provincial Prosecutor to submit a written report thereon to which he complied by letter-complaint dated August 15, 2003,3 attaching thereto the reports4 of the trial prosecutor in the sala of Judge Navidad. By 1st Indorsement dated August 25, 2003,5 the above-said August 15, 2003 letter-complaint was referred by the Chief Justice to then Court Administrator and now a member of this Court, Presbitero J. Velasco, Jr., for comment and recommendation. By Resolution of September 23, 2003,6 this Court acting on the recommendations of Justice Velasco in his September 8, 2003 Memorandum7 to the Chief Justice, required Judge Navidad to comment on the complaint and directed the Court Management Office of the Office of the Court Administrator (OCA) to: (1) conduct a judicial audit on "all undecided criminal cases, which include cases that are pending, submitted for decision, archived, etc. for the purpose of determining any inappropriate actuation with respect to the issuance of court orders especially on matters pertaining to the grant of bail in non-bailable offenses"; and (2) coordinate with Trial Prosecutor Cicero T. Lampasa as regards the other cases that needed to be investigated. By Resolution of March 8, 2006, the Court referred the complaint to Justice Isaias P. Dicdican of the Court of Appeals for investigation, report and recommendation. Covered by A.M. No. RTJ-06-1976 are: (1) Criminal Case No. 4037, "People of the Philippines v. Nestor Sandongan," for

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murder; (2) Criminal Cases No. 4023 and 4024, both entitled "People of the Philippines v. Simproso Paghunasan," for frustrated murder and murder, respectively; and (3) Criminal Case No. 4147, "People of the Philippines v. Alfredo L. Tesoro, et al.," for murder. Justice Dicdican synthesized the version of complainant in his October 25, 2006 Report of Investigation and Recommendation8 as follows: Criminal Case No. 4037 People of the Philippines v. Nestor Sandongan In this case, respondent allegedly improperly cited a witness, SPO2 Rolando Rebortura, in contempt of court for not telling the truth or for violating his oath. Complainant, through (then) Prosecutor Lampasa, alleged that SPO2 Rebortura was testifying on the matter of whether or not he recovered a shotgun from the crime scene. When the said witness first stated that he did not recover any shotgun, he was reminded by defense counsel, Atty. Sisenando Fiel, that he had already revealed to him (Atty. Fiel) in a conference earlier held that he had recovered a shotgun. After the respondent sought a clarification on the matter, SPO2 Rebortura replied to the effect that he might have said that he recovered a shotgun to Atty. Fiel but, because of the lapse of time, he could not anymore recall. The respondent then adjudged SPO2 Rebortura in contempt of court and allegedly ordered the witness to be detained under the custody of the Clerk fo Court for two (2) days. This order of detention was not, however, stated in the order issued by the respondent. After that session, SPO2 Rebortura allegedly pleaded with the respondent that he be not detained.9 Criminal Cases No. 4023 and 4024 - People of the Philippines v. Simproso Paghunasan In these cases, the Office of the Provincial Prosecutor in Calbayog City, on July 1, 2002, a copy of a "Motion to Grant Accused Provisional Liberty" filed by the accused. On July 11, 2002, the prosecution then interposed its Opposition/Comments thereto, not knowing that, on July 2, 2002, the respondent had already issued an order granting the accused provisional liberty and approving the bonds filed by the accused. Complainant claims that the accused had been charged with the capital offense of murder which is a non-bailable offense. The respondent granted bail without conducting a hearing and without affording the prosecution the opportunity to prove the strength of its evidence.10 Criminal Case No. 4147 People of the Philippines v. Alfredo l. Tesoro, et al. An Information was filed against the accused in June 2002. The accused later on filed, on August 13, 2002, a Motion to Quash Warrant of Arrest and For Judicial Determination of Probable Cause. The prosecution filed an opposition to said motion, contending that the accused should first submit to the jurisdiction of the court before he could ask for any positive relief. During the scheduled hearing of the case on December 4, 2002, counsel for the accused filed a Motion to Recall Warrant of Arrest and for Accused Alfredo L. Tesoro To Be Allowed To Be Placed Under the Custody of Counsel Pending Resolution of Motion for Judicial Determination of Probable Cause. The prosecution vehemently opposed such motion but the respondent recalled the warrant of arrest previously issued and allowed the accused to be places under the temporary custody of his counsel.

The December 4, 2002 order issued by the respondent was received by the prosecution only on August 7, 2003. Moreover, the recall of the warrant of arrest was not stated therein. On December 10, 2002, the prosecution filed its Comments/ Opposition to the Motion for Judicial Determination of Probable Cause with Motion to Reinstate the Recalled Warrant of Arrest. Since the accused had not filed any opposition to the motion to reinstate the recalled arrest warrant, the prosecution filed, on March 11, 2003, a Motion to Submit Incident for Resolution. However, the respondent granted the motion for judicial determination of probable cause filed by the accused without acting on the motion to reinstate recalled warrant of arrest filed by the prosecution.11 Justice Dicdican summarized respondents defense as follows: Regarding the alleged irregularities in his handling of Criminal Case No. 4037, respondent contends that he cited SPO2 Rebortura in direct contempt of court because he found the said witness lying and telling untruths at the witness chair. Respondent further contends that it was very evident then that the said witness was the one masterminding the "manufacture" or filing of trumped-up cases. At the behest of (then) Prosecutor Lampasa, the witness asked for forgiveness and admitted his wrongdoings and misconduct. Upon a sincere promise by the said witness, the citation for contempt was lifted and he was released from his detention at the office of the Clerk of Court. As for Criminal Cases Nos. 4023 and 4024, respondent denies that the prosecution was not given the opportunity to prove the strength of its evidence and that the petition for bail was granted without a hearing. Respondent claims that an oral petition for bail had been presented in open court which was duly heard and partially argued. In fact, the prosecution had allegedly energetically argued and suggested that the defense reduce its petition into writing so the matter can be brought up to the Provincial Prosecutor. The proceedings even revealed that there was an error on the part of the prosecution in not applying Article 48 of the Revised Penal Code and the petition for bail was granted only after the prosecution refused to rectify the error. Finally, as to Criminal Case No. 4147, respondent said that he quashed the warrant of arrest for failure of the prosecution to adduce evidence. Furthermore, the preliminary investigation was allegedly improperly conducted with a "tutored" alleged sole eyewitness. As for the grant of custodial rights to the counsel for accused who were charged with heinous crimes, respondent contends that this grant is given only to the said counsel as officer of the court. Respondent further contends that he followed certain parameters before granting such custodial rights.12 Justice Dicdican thus came up with the following Evaluation: From the totality of the evidence adduced by the parties, the undersigned investigator, after a judicious evaluation and scrutiny thereof, has come up with a finding that the respondent had indeed committed irregularities and procedural lapses in the handling of the cases pending before his sala. Anent the charge that he granted the accused bail without a hearing in Criminal Cases Nos. 4023 and 4034, the record shows that, in reality, no hearing had been conducted by the respondent before he issued the order dated July 2, 2002 granting the accused provisional liberty and approving the bonds filed. Respondents claim that there had been an oral petition for bail which was extensively heard and argued during the pre-trial of the cases on June 20, 2002 is not supported by the record .x x x x

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While the respondent maintains that the stenographer failed to take down the discussion on the oral petition for bail, the undersigned finds this unsubstantiated and totally self-serving. The record speaks for itself and the transcript of the stenographic notes is wholly bereft of any reference to the oral petition for bail... The motion filed by the accused for the grant of provisional liberty was dated June 27, 2002 and was received by the prosecution on July 1, 2002. On July 2, 2002 the respondent had issued an order granting said motion. It was established by the undersigned that the July 2, 2002 order was based on the June 27, 2002 motion filed by the accused. Respondent contends that the motion filed by the accused was in compliance with an order by the court for the accused to file a formal petition for bail. However, no such order requiring the accused to file a formal petition for bail can be found in the record. The undersigned is thus convinced that the respondent did not conduct a hearing before he granted the motion filed by the accused for the grant of provisional liberty. Jurisprudence is replete with decisions on the procedural necessity of a hearing, whether summary or otherwise, relative to the grant of bail, especially in cases involving offenses punishable by death, reclusion perpetua, or life imprisonment, whether bail is a matter of discretion. Under the present Rules, a hearing is mandatory in granting bail whether it is a matter of right or discretion. It must be stressed that the grant or the denial of bail, in cases where bail is a matter of discretion, hinges on the issue of whether or not the evidence of guilt of the accused is strong, and the determination of whether or not the evidenceis strong is a matter of judicial discretion which remains with the judge. In order for the latter to properly exercise his discretion, he must first conduct a hearing to determine whether the evidence, he must first conduct a hearing to determine whether the evidence of guilt is strong. In fact, even in cases where there is no petition for bail, a hearing should still be held. After the hearing, the courts order granting or refusing bail must contain a summary of the evidence of the prosecution and, based thereon, the judge should formulate his own conclusion as to whether the evidence so presented is strong enough to indicate the guilt of the accused. However, the July 2, 2002 order of the respondent judge does not contain such summary and conclusion. Based on his investigation and on the evidence presented in this case, the undersigned concludes that the respondent did not conduct the requisite hearing before he granted bail to the accused, in violation of Sections 8 and 18, Rule 114 of the Revised Rules of Criminal Procedure... xxxx It has been held that such error cannot be characterized as mere deficiency in prudence, discretion and judgment but a patent disregard of well-known rules and, therefore, constitutive of gross ignorance of the law. In line with existing jurisprudence, the undersigned recommends that the respondent be fined P20,000.00 with a stern warning that the commission of the same or similar offense in the future will be dealt with more severely. Similarly, in Criminal Case No. 4147, where accused Alfredo Tesoro is charged with murder, the respondent judge allowed the said accused to be placed in the custody of his counsel. The record shows that a warrant of arrest for the said accused had already been issued long before he filed a motion to quash warrant of arrest and for judicial determination of probable cause. Thus, at the time of the filing of the motion to place the said accused under the custody of counsel dated December 4, 2002, the accused was technically a fugitive in the eyes of the law. In granting the said motion on the same day when it was filed, the respondent acted prematurely and incongruously in

allowing the accused to be placed under the custody of counsel when, in fact, the freedom of the accused had yet to be curtailed. The basic rule is that the right to bail, or in this case to be released on recognizance, can only be availed of by a person who is in the custody of the law or otherwise deprived of his liberty. The respondent also deprived the prosecution of the opportunity to prove that the evidence of guilt of said accused is strong, considering that the accused was charged with murder. Likewise, in granting the motion to recall the warrant of arrest, the respondent did not allow the prosecution sufficient time to oppose said motion. There is no showing that respondent conducted a hearing to determine whether or not there was probable cause which respondent contends was made the basis of his recall of the warrant of arrest previously issued. For this irregularity in the recall of the warrant of arrest and for allowing the accused to be placed in the custody of his counsel, the undersigned recommends that the respondent be fined P20,000.00 Anent the charge in Criminal Case No. 4037, the undersigned did not find any impropriety in the respondents act of citing the witness in contemot of court. There is no showing that the respondent acted with malice and bad faith.13 (Emphasis and underscoring supplied) Accordingly, Justice Dicdican recommended that respondent be fined in the total amount of P40,000.14 Re: A.M. No. RTJ-06-1977 Per his October 25, 2006 Manifestation,15 Justice Dicdican manifested his incompetency in passing upon the findings made by the judicial team that conducted the audit in Branch 32 and thus prayed that the matter be referred to the OCA. As recommended and prayed for, the results of the judicial audit were referred to the OCA which, by Memorandum dated September 12, 2007,16 came up with the following findings: The audit team found that Judge Navidad failed to decide Criminal Cases Nos. 3440, 3043 and 3274 within the reglementary periods. Instead of deciding these cases after the expiration of the period to file memorandum, respondent judge issued Orders similarly dated July 3, 2003 directing the parties to "study their cases and submit the necessary pleadings so that the cases can be disposed of accordingly." There were eleven (11) cases with pending motions/incidents which Judge Navidad failed to resolve within the reglementary period. These are Criminal Cases Nos. 3585, 3586[,] 4248, 4312, 4373, 4350 and 4101; and Civil Cases Nos. 809, 846, 747 and 712. Moreover, fifty-one (51) cases had not been acted upon by Judge Navidad for a considerable length of time which have not moved since then, to wit: 3631, 4143, 4098, 4082, 4179, 4180, 4097, 4098, 4036, 4084, 4125, 4126, 4226, 3783, 4122, 3724, 3869, 3902, 3914, 3943, 3975, 4001, 4022, 4080, 4069, 4094, 4121, 4124, 4130, 4205, 4298, 3847, 4231 and 4214; and Civil Cases Nos. 845, SCA 050, SP 189, 394, 546, 722, 721, 527, 293, 209, 675, 755, 758, 766, SCA 051 and SP 171. xxxx Aside from [the] four (4) cases mentioned in the complaint of Prosecutor Torrevillas, irregularities in other cases were also uncovered. Judge Navidad released the accused under the custody of Atty. Fiel in Criminal Cases Nos. 3701, 4101, 4109 and 4110, despite the fact that they were all facing charges for murder and homicide. Respondent judge also granted bail to the accused in Criminal Cases Nos. 4109 for Murder, and 4110 for Murder,without conducting hearing. In Criminal Case No. 4350, Judge Navidad ruled that the offense committed was only homicide allegedly becuase the qualifying circumstances stated

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in the information were not supported by evidence, despite the findings of Judge Salvador P. Jakosalem, Acting Presiding Judge, MCTC, Sta. Margarita, Samar of probable cause for the crime of murder. In Criminal Case No. 3718, the information for murder was downgraded by Judge Navidad to homicide. Similarly, he dismissed Criminal Case No. 4373 on the ground that the qualifying circumstance of abuse of superior strength was not supported by any credible evidence, despite the contrary. ... On March 22, 2004, Judge Navidad was also directed to explain (a) his failure to decide Criminal Cases Nos. 3440, 3093 and 3274 within the reglementary period, (b) his inaction in fifty-one (51) cases, (c) why he allowed the accused in Criminal Cases Nos. 3701, 4101, 4109 and 4110 to be placed under the custody of Atty. Fiel, and (d) to inform the Court whether the pending incidents in Criminal Cases Nos. 3585, 3586, 4248, 4312, 4373, 4350 and 4101 and Civil Cases Nos. 850, 809, 846, 747 and 792 had already been resolved. In his Comments, Judge Navidad claimed that Criminal Cases Nos. 3440, 3093 and 3274 were not yet submitted for decision when the audit was conducted. He said that the prosecution in Criminal Cases Nos. 3440 and 3093 had not yet formally offered evidence, while the parties in Criminal Case No. 3274 had not yet filed their respective memoranda. He also informed the Court that the incidents in Criminal Cases Nos. 3585, 3586, 4248, 4312, 4350, 4373 and 4101 and Civil Cases Nos. 850, 809, 846, 747 and 792 were already resolved. Judge Navidad contended that some cases were left unacted upon because his court personnel failed to archive ten (10) cases, the police officers failed to make return of the warrants of arrest issued in eighteen (18) cases, and in other cases, the parties failed to submit the pleadings he required them to file. Respondent judge explained that he released on recognizance to Atty. Fiel all the accused in four (4) criminal cases because the charges were mere fabrications and no preliminary investigation was conducted or if conducted, was improperly done...17 (Italics in the original; emphasis supplied) The OCA came up with the following Evaluation: Judge Roberto A. Navidad should be held administratively liable for gross inefficiency. He failed to decide Criminal Cases Nos. 3440, 3093 and 3274 within the 90-day reglementary period. Judge Navidads contention that the cases were not yet submitted for decison when the audit was conducted is an outright falsehood meant to mislead this Court. The audit was conducted on October 14-17, 2003, but Criminal Cases Nos. 3440, 3093 and 3274 were already submitted for decision on February 28, 2003, June 2, 2002 and April 30, 2002, respectively. The failure of the parties to file their memoranda within the period given them is not a valid reason for Judge Navidad not to decide the cases. A case is considered submitted for decision upon the admission of the parties evidence at the termination of the trial and respondent is well aware of this. Should the court allow or require the submission of memorandum, the case is considered submitted for decision upon the filing of the last memorandum or the expiration of the period to do so, whichever is earlier. The issuance of respondent judge of an Order in these cases requiring the parties "to file the necessary pleading so that the cases can be disposed of accordingly" was purposely done to subvert the 90-day mandatory period to decide cases. Respondent judge could have asked the Court for an extension of time to decide these cases instead of issuing this Order. If he honestly believed that he could not decide the cases within the reglementary period, all he had to do was to ask for an extension of time. The Court, cognizant of the caseload of judges and mindful of the difficulty encountered by them in the disposition of cases, usually grants the request. Judge Navidad also failed to promptly resolve the incidents in Criminal Cases Nos. 3585, 3586, 4248, 4312, 4373, 4350 and 4101 and Civil Cases Nos. 809, 846, 747 and 792. The resolution

of the petition for bail in Criminal Cases Nos. 3585 and 3586 was due on February 22, 2000, yet it remained pending in October 2003 (three years and eighth months since then) when the audit was conducted. In Civil Case No. 792, the Motion for Special Raffle was due for resolution on May 16, 2001 but was likewise not yet resolved as of audit date. xxxx Respondent judge ascribes his inaction in fifty-one (51) cases to the inadvertence of his court personnel and the failure of the police officers to make a return of the warrants of arrest. This is totally unacceptable. A judge cannot take refuge behind the inefficiency of his court personnel, for the latter are not guardians of the judges responsibilities. Efficient court management is primarily the duty of the presiding judge. In this, he is found wanting. As regards the cases where there were no return of the warrants of arrest, Section 4, Rule 113, Revised Rules of Criminal Procedure requires the head of the office to whom the warrant of arrest was delivered for execution to cause the warrant to be executed within ten (10) days from its receipt. Within ten (10) days after the expiration of the period, the officer to whom it was assigned for execution shall make a report to the judge who issued the warrant. Thus, it is the duty of respondent judge to see to it that this is strictly complied with by the police officers assigned to serve the warrants. His failure to faithfully comply with this duty has contributed to the delay in the disposition of cases in his court. Judge Navidad should also [be] held liable for gross ignorance of the law. In granting bail without conducting any hearing to the accused in Criminal Cases Nos. 4023, 4024, 3701, 4109 and 4110 who were charged with murder and frustrated murder, respondent judge knowingly disregarded the wellestablished rule that 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. Under the present rule, a hearing on application for bail is mandatory. Whether bail is a matter of right or discretion, the prosecutor should be given reasonable notice of hearing, or at least his recommendation on the matter must be sought. These tasks were ignored by the judge. Judge Navidad also erred in allowing the accused in Criminal Case No. 4147 through his counsel, to post bail notwithstanding that the accused was not yet in custody of the law. The right to bail or to be released on recognizance can only be availed of by a person who is in custody of the law or otherwise deprived of his liberty. An application for admission to bail of a person against whom a criminal action has been filed, but who is still at large is premature. The judge likewise has no authority to conduct his own determination of probable cause and downgrade the offense charged or dismiss the complaint for insufficiency of evidence. Judges of the Regional Trial Courts no loner have the authority to conduct preliminary investigations. This authority was removed from them under the 1985 Rules on Criminal Procedure effective January 1, 1985. The determination of probable cause during a preliminary investigation is a function that belongs to the public prosecutor. Whether that function has been correctly discharged by the existence of probable cause in a case, is a matter the trial court itself cannot and may not be compelled to pass upon. As a general rule, if the information is valid on its face and there is no showing of manifest error, grave abuse of discretion or prejudice on the part of the public prosecutor, the courts should not dismiss the case for want of evidence. Judge Navidad should also be sanctioned for placing the accused in Criminal Cases Nos. 3701, 4101, 4109 and 4110 who were charged with heinous crimes under the custody of Atty. Sisenando Y. Fiel, Jr. pending re-investigation of the cases. The grant of bail based on recognizance in these cases are not among the instance the accused may be released on recognizance.

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Section 15, Rule 114 of the Revised Rules of Criminal Procedure provides that "Whenever allowed by law or these Rules, the Court may release a person in custody on his own recognizance or that of a responsible person." The accused may be released on recognizance under Republic Act No. 6036[,] P.D. No. 603[,] and P.D. 968, as amended. Also, Section 16 of Rule 114, Revised Rules of Criminal Procedure explicitly provides, "A person in custody for a period equal to or more than the minimum of the principal penalty prescribed for the offense charged, without application of the Indeterminate Sentence Law or any modifying circumstance, shall be released on a reduced bail or on his own recognizance, at the discretion of the court." It is clear that Judge Navidad not only failed to perform his duties in accordance with the Rules, but he has also been acting willfully, and grossly disregarding and defying the law and controlling jurisprudence. Verily, his actions indicate a blatant contempt for the law and the rules of procedure. This cannot be countenanced especially because the laws involved are simple and elementary for which he cannot claim ignorance. It is imperative that a judge be conversant with basic legal principles and be aware of well-settled authoritative doctrines. When the inefficiency springs from a failure to consider a basic and elemental rule, law or principle in the discharge of his duties, a judge is either incompetent and undeserving of the position and title he holds or is too vicious that the oversight or omission was deliberately done in bad faith and in grave abuse of judicial authority. This is not the first time Judge Navidad has been charged administratively. Verification with the the Statistical Reports Division, CMO-OCA shows that from the time Judge Navidad was appointed to the judiciary (January 30, 1987), several cases had been filed against him[.] xxxx While several of the charges were dismissed, this however is not at all reflective of his innocence, because the issues raised in these cases were judicial in nature, hence, improper for an administrative charge, or respondent had already inhibited from the case, or complainants failed to attend the investigation conducted by investigating justices/judges and failed to substantiate their charges. There were complaints though which even if dismissed, the Court nevertheless rebuked respondent judge and reminded him to be more circumspect in the performance of his duties, reprimanded him for improper conduct, advised him to refrain from the use of intemperate language or the use of the words "Supreme Court" in any of his judgments, orders, letters and correspondence presumably to show that these acts were authorized by or had the imprimatur of the Court, to avoid any misinterpretation and confusion by the public and directed him to couch his inhibition orders in clear and specific language. Respondent judges outrageous conduct was again exhibited recently when he stubbornly refused to inhibit himself in Civil Case No. 586 (Ciriaco Tan vs. Emmanuel Lao), despite the fact that he is residing in a building owned by plaintiff, in that case, a fact he has not denied, and which is of public knowledge in Calbayog City. Judges must maintain and preserve the trust and faith of the parties-litigants. They must hold themselves above reproach and suspicion. At the very first sign of lack of faith and trust in his actions, whether well-grounded or not, the judge has no alternative but to inhibit himself from the case. Judge Navidads persistent refusal to recuse himself from the case has impaired the peoples faith in the court and destroyed the ideal of impartial administration of justice. Respondent judges comportment shows that he is not an upright man of the law who deserves to sit on the bench. That an NGO, the Samarenos for Equity, Justice and Reform, saw it fit to file a case against him, shows how badly he has performed as member of the bench. Such reputation by itself has besmirched the integrity not only of his court but more omportantly of the entire juducial system which he represents. Respondent does not deserve to remain any further in the bench.

Informatively, Judge Navidad was absent for the whole month of May 2007 as reported to OCA by Executive Judge Reynaldo B. Clemens, RTC, Calbayog City, Samar., However, on July 30, 2007, the Leave Division, Office of the Administrative Services, OCA received a Certificate of Service of Judge Navidad for May 2007 stating that he had rendered the services required of him by the law for the period May 1, 2007 to May 31, 2007 except on May 16, 17, 18 and 21 when he was on sick leave and on May 22, 23, 24 and 25 when he was on vacation leave. He did not indicate therein that he was also absent from May 2-15, 2007....He was also absent on June 1, 4, 5, 6, 7, 8, 12, 13, 14, 15, 18, 25, 27, 28, and 29, 2007 , but he declares in his Certificate of Service for that month that he was absent only on June 6, 7, 8, 28 and 29. Likewise, his Certificate of Service for July 2007 showed that he was absent only on July 4, 5, 6, 9 and 10 but Judge Clemens reported that Judge Navidad did not render service on July 2, 3, 4, 5, 6, 9, 10, 11, 16, 19, 20, 23, 24, 25, 26, 27 and 30. Attached to Judge Navidads Certificates of Service for June and July 4, 5, 6, 9 and 10, 2007. All his leave applications did not bear the signature and approval of his Executive Judge, Judge Clemens. Simply put, he was absent without leave. Integrity is essential not only to the proper discharge of the judicial office but also to the personal demeanor of judges. In the case at bar, respondent judge violated Sections 1 and 2 of Canon 2 of the New Code of Judicial Conduct for the Philippine Judiciary[.] xxxx Judge Navidad also violated Sections 1 and 2, Canon 4 of the same Code, which provides that "Judges shall avoid impropriety and the appearance of impropriety in all of their activities. As a subject of constant public scrutiny, judges must accept personal restrictions that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly. In particular, judges shall conduct themselves in a way that is consistent with the dignity of the judicial office." Respondent judge likewise transgressed the Judges Oath wherein he swore that he shall perform his judicial duties efficiently, fairly and to the best of his knowledge and ability.18 (Italics in the original; Emphasis and underscoring supplied)) The OCA thereupon recommended respondents dismissal from the service for gross ignorance of and contempt for the law, gross inefficiency and negligence and violations of the New Code of Judicial Conduct for the Philippine Judiciary and the Judges Oath.19 The Court finds the respective recommendations of the Investigating Justice and the OCA well-taken. Rule 114, on bail, of the Rules of Court reads Sec. 8. Burdern 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 burdern of showing that 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. xxxx Sec. 18. Notice of application to prosecutor. In the application for bail under section 8 of this Rule, the court must give reasonable notice of the hearing to the prosecutor or require him to submit his recommendation. (Italics in the original; underscoring supplied)

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While it is well-settled that the courts cannot interfere with the discretion of the public prosecutor to determine the specificity and adequacy of the offense charged, the judge may dismiss a complaint if he finds it to be insufficient in form or substance or without any ground; otherwise, he may proceed with the case if in his view it is sufficient and proper in form.20 In the discharge of a judges duties, however, when the inefficiency springs from a failure to consider so basic and elemental a rule, a law or a principle, the judge is either too incompetent and undeserving of the position and title he holds, or is too vicious that the oversight or omission was deliberately done in bad faith and in grave abuse of judicial authority. If the rule or law is so elementary, as the above-quoted sections of Rule 114 are, not to know it or to act as if he does not know it constitutes gross ignorance of the law, without even the complainant having to prove malice or bad faith on the part of the judge, as it can be clearly inferred from the error committed.21 On this score, as reflected in the Investigating Justices and the OCAs separate reports, the Court finds respondent guilty of gross ignorance of the law. Respondent also committed undue delay in disposing of the cases assigned to him. Judges have the sworn duty to administer justice without undue delay. A judge who fails to do so has to suffer the consequences of his omission, as any delay in the disposition of cases undermines the peoples faith in the Judiciary.22 Inability to decide a case within the required period is not excusable and constitutes gross inefficiency. The Court has constantly reminded judges to decide cases promptly. Delay not only results in undermining the peoples faith in the judiciary from whom the prompt hearing of their applications is anticipated and expected; it also reinforces in the mind of the litigants the impression that the wheels of justice grind ever so slowly, and worse, it invites suspicion of ulterior motives on the part of the judge. Likewise, delay in resolving motions and incidents pending before a judge within the reglementary period of 90-days fixed by the constitution and the law is not excusable and constitutes gross inefficiency. We cannot countenance such undue delay by a judge, especially at a time when clogging of court dockets is still the bane of the judiciary, whose present leadership has launched an all out program to minimize, if not totally eradicate, docket congestion and undue delay in the disposition of cases. Prompt disposition of cases is attained basically through the efficiency and dedication to duty of judges. If they do not possess these traits, delay in the disposition of cases is inevitable, to the prejudice of litigants. Accordingly, judges should be imbued with a high sense of duty and responsibility in the discharge of their obligation to promptly administer justice.23 In the course of exculpating himself, respondent committed dishonesty, by falsely claiming, for instance, that Criminal Case Nos. 3440, 3093 and 3274 were not yet submitted for decision when the judicial audit was conducted, and that he conducted bail hearings, albeit the records do not show so. Likewise, among other things, in his Certificates of Service for May, 2007, respondent declared that he was on sick leave on May 16, 17, 18 and 21, and on vacation leave from May 22, 23, 24 and 25. Executive Judge Reynaldo Clemens declared, however, that respondent was absent for the entire month of May 2007.1avvphi1 Dishonesty, especially when committed by judges who are supposedly the visible representation of the law, not only tends to mislead the Court; it also tarnishes the image of the judiciary. Dishonesty is defined as the disposition to lie, cheat, deceive or defraud; untrustworthiness; lack of integrity; lack of honesty, probity or integrity in principle; lack of fairness and straightforwardness; disposition to defraud, deceive or betray. This is a grave offense that carries the extreme penalty of

dismissal from the service, even for the first offense, with forefeiture of retirement benefirs except accrued leave credits and perpetual disqualification from re-employment in government service.24 Respondent, on his inaction in 51 cases, ascribes it to the inefficiency of his staff and the failure of the police officers to make a return of the warrants of arrest. Judges cannot, however, take refuge in the inefficiency or mismanagement of his court personnel since proper and efficient court management is their responsibility. Court personnel are not the guardians of judges responsibilities. It is the duty of judges to devise an efficient recording and filing system in their courts to enable them to monitor the flow of cases and to manage their speedy and timely disposition.25 And as correctly pointed out by the OCA, it is the judges duty to see to it that the police officers assigned to execute the warrants comply with Section 4, Rule 113, requiring them to make a report to the judge who issued the warrant within ten days after the expiration of the period within which to execute the warrant. Respondent was felled by a bullet of an assassin on January 14, 2008, however, in view of which the penalty of dismissal that the proven charges against him call for can no longer be imposed. He could still be fined, however, in the amount of P40,000 each in A.M. No. RTJ-06-1976 and A.M. No. RTJ-06-1977, to be deducted from the benefits due him. WHEREFORE, for Dishonesty, Gross Ignorance of and Contempt for the Law, Gross Inefficiency and Negligence, and Violations of the New Code of Judicial Conduct for the Philippine Judiciary and the Judges Oath, respondent, Judge Roberto A. Navidad, who has, in the meantime died, is in each of these cases subject of this Decision FINED the amount of Forty Thousand (P40,000) Pesos. The Financial Management Office, Office of the Court Administrator is authorized to deduct the total sum of Eighty Thousand (P80,000) Pesos from the benefits due respondent and to release the remaining amount to his heirs unless there exists another lawful cause for withholding the same. SO ORDERED.

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A.M. No. MTJ-09-1737

February 9, 2011

LYDELLE L. CONQUILLA, Complainant, vs. JUDGE LAURO G. BERNARDO, Municipal Trial Court, Bocaue, Bulacan Respondent. DECISION

Respondent judge further states that he did not usurp the power of the prosecutor when he reduced the bail considering that under Section 20 of Rule 114, the court may increase or decrease the bail upon good cause. Lastly, respondent judge denies any knowledge of the alleged conversation and transaction between complainant and his wife. The OCAs Report and Recommendation

CARPIO, J.: The Case This is an administrative complaint for usurpation of authority, grave misconduct, and gross ignorance of the law filed by Lydelle L. Conquilla (complainant) against Judge Lauro G. Bernardo (respondent judge), Presiding Judge of the Municipal Trial Court (MTC) of Bocaue, Bulacan. The Facts In a verified complaint dated 30 July 2008, complainant Conquilla charged respondent judge with usurpation of authority, grave misconduct, and gross ignorance of the law. Complainant alleged that on 4 July 2008, a criminal complaint for direct assault was filed against her before the MTC of Bocaue, Bulacan. The complaint was signed by Police Chief Inspector Rizalino Andaya of the Bocaue Police Station. On 8 July 2008, respondent judge conducted a preliminary investigation and found probable cause to hold the complainant for trial for the crime of direct assault. Respondent judge then issued a warrant of arrest dated 8 July 2008, with the bail fixed at P12,000. On 10 July 2008, upon motion of complainant, respondent judge issued an order reducing the bail for complainants provisional liberty to P6,000. On the same date, complainant posted cash bail of P6,000 for her provisional liberty. Complainant then filed an administrative complaint, alleging that under A.M. No. 05-08-[2]6-SC, first level court judges no longer have the authority to conduct preliminary investigations. Thus, complainant avers that respondent judge committed an illegal act constituting gross ignorance of the law and procedure when he conducted the preliminary investigation and issued the warrant of arrest. Complainant claims that the hasty issuance of the warrant of arrest was without legal basis and unjustly prejudiced complainant and deprived her of her liberty. Complainant submits that respondent judge usurped the power of the prosecutor, who was not even given the chance to comment on complainants Motion to Reduce Bail. Furthermore, complainant alleges that when she learned about the warrant of arrest, she called respondent judges wife, who said "she would help in having the bail reduced to P6,000.00 and would have the case for direct assault against herein complainant dismissed provided herein complainant cancel the wifes debt of P35,000.00 and provided that herein complainant loan the wife an additional amount of P50,000.00."1 In his Comment, respondent judge states that he issued the warrant of arrest in good faith because he was convinced that there was probable cause and that it was necessary to place the complainant under immediate custody to prevent a frustration of justice. Although respondent judge knew that the Supreme Court already amended Rules 112 and 114 of the Revised Rules on Criminal Procedure by removing the conduct of the preliminary investigation from judges of first level courts, he argues that the power to personally determine probable cause in the issuance of a warrant of arrest cannot be revoked. Besides, even if such power to determine probable cause was indeed revoked by the amendment, respondent judge submits that technical rules can be relaxed if their implementation will result in injustice.

In its Report dated 12 February 2009, the OCA found respondent judge guilty of gross ignorance of the law for his patent and unjustified violation of the provisions of the Resolution in A.M. No. 05-8-26-SC. The OCA stated that the Resolution in A.M. No. 05-8-26-SC, which took effect on 3 October 2005, removed the conduct of investigation from the scope of authority of first level courts judges. Had respondent judge been more prudent in understanding the pertinent provisions of the Resolution in A.M. No. 05-8-26-SC, which are very clear and concise, no administrative complaint would have been filed against him. The OCA, however, found the charge of usurpation of authority without merit. The OCA agreed with respondent judge that the power to determine the amount of bail is vested in the judge. The OCA recommended (a) that the administrative complaint against respondent judge be re-docketed as a regular administrative matter; and (b) that respondent judge be fined in the amount of P20,000.00 for gross ignorance of the law, with a stern warning that a repetition of the same or similar offense shall be dealt with more severely. The Ruling of the Court In this case, respondent judge makes it appear that he merely conducted a preliminary examination for the purpose of determining whether probable cause exists to justify the issuance of a warrant of arrest. However, the records of the case clearly show that respondent judge indeed conducted a preliminary investigation on 8 July 2008. After finding probable cause to hold complainant for trial for the crime of direct assault, respondent judge then issued a warrant for her arrest. That respondent judge conducted a preliminary investigation and not just a preliminary examination to determine existence of probable cause for the issuance of a warrant of arrest is evident in his Order dated 8 July 2008, which reads: ORDER The undersigned, after personal examination of the witnesses in writing and under oath, finds that a probable cause exists and there is sufficient ground to hold the accused LYDELLE L. CONQUILLA for trial for the crime of DIRECT ASSAULT as charged in the complaint. In order not to frustrate the ends of justice, there is a need to place the accused in immediate custody. Let warrant immediately issue for his [sic] arrest hereby fixing bail in the amount of P12,000.00 for his provisional liberty.2 SO ORDERED. Bocaue, Bulacan, July 8, 2008. (signed) HON. LAURO G. BERNARDO Judge Furthermore, after complainant posted bail on 10 July 2008, respondent judge then issued an Order dated 10 July 2008, ordering the complainants release and setting the case for her arraignment on 3 September 2008. The conduct of preliminary investigation by respondent judge was in direct contravention of A.M. No. 05-8-26-SC, which took effect on 3 October 2005, amending Rules 112 and 114 of the

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Revised Rules on Criminal Procedure by removing the conduct of preliminary investigation from judges of the first level courts. Thus, under Section 2 of Rule 112, only the following officers are authorized to conduct preliminary investigations: (a) Provincial or City Prosecutors and their assistants; (b) National and Regional State Prosecutors; and (c) Other officers as may be authorized by law. Furthermore, Section 5 of Rule 112 provides: SEC. 5. When warrant of arrest may issue. (a) By the Regional Trial Court. Within ten (10) days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on records clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order when the complaint or information was filed pursuant to section 6 of this Rule. In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint or information. (b) By the Municipal Trial Court. When required pursuant to the second paragraph of section 1 of this Rule, the preliminary investigation of cases falling under the original jurisdiction of the Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court or Municipal Circuit Trial Court SHALL be conducted by the prosecutor. The procedure for the issuance of a warrant of arrest by the judge shall be governed by paragraph (a) of this section. (Emphasis supplied.) Clearly, MTC judges are no longer authorized to conduct preliminary investigation. In this case, the crime charged against complainant was direct assault against a public school teacher, who is a person in authority under Article 1523 of the Revised Penal Code.4 Under Article 148 of the Revised Penal Code, when the assault is committed against a person in authority while engaged in the performance of his official duties or on the occasion of such performance, the imposable penalty is prision correccional in its medium and maximum periods. The duration of the penalty of prision correccional in its medium and maximum periods is 2 years, 4 months and 1 day to 6 years. Thus, the offense charged against complainant requires the conduct of preliminary investigation as provided under Section 1 of Rule 112 of the Rules of Court, which reads: SECTION 1. Preliminary investigation defined; when required. Preliminary investigation is an inquiry or proceeding to determine whether there is sufficient ground to engender a wellfounded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial. Except as provided in Section 6 of this Rule, a preliminary investigation is required to be conducted before the filing of a complaint or information for an offense where the penalty prescribed by law is at least four (4) years, two (2) months and (1) day without regard to the fine. (Emphasis supplied.) It was therefore incumbent upon respondent judge to forward the records of the case to the Office of the Provincial Prosecutor for preliminary investigation, instead of conducting the preliminary investigation himself. Rule 3.01, Canon 3 of the Code of Judicial Conduct mandates that a judge shall be faithful to the law and maintain professional competence. Indeed, competence and diligence are prerequisites to the due performance of judicial office.5 Section 3, Canon 6 of the New Code of Judicial Conduct6 requires judges to maintain

and enhance their knowledge and skills to properly perform their judicial functions, thus: SEC. 3. Judges shall take reasonable steps to maintain and enhance their knowledge, skills and personal qualities for the proper performance of judicial duties, taking advantage for this purpose of the training and other facilities which should be made available, under judicial control, to judges. When a law or a rule is basic, judges owe it to their office to simply apply the law. Anything less is gross ignorance of the law.7 Judges should exhibit more than just a cursory acquaintance with the statutes and procedural rules,8and should be diligent in keeping abreast with developments in law and jurisprudence.9 On the alleged promise of respondent judges wife that the bail would be reduced provided her P35,000 debt will be cancelled and that complainant grant respondent judges wife an additional loan, we find that complainant did not substantiate her allegation. Nevertheless, the Court notes that although respondent judge denies knowledge of such transaction between his wife and complainant, respondent judge did not categorically deny his wifes debt to complainant. In his Comment, respondent judge states: "Assuming arguendo that there really was a loan made by his wife, he did not know of such transaction between his wife and the complainant and given this, he did not allow such transaction to take place."10 Canon 4 of the New Code of Judicial Conduct stresses the importance of propriety and the appearance of propriety to the performance of all the activities of a judge. Respondent judge should bear in mind that judges should avoid impropriety and the appearance of impropriety in all of their activities.11 Furthermore, judges and members of their families are prohibited from asking for or accepting any gift, bequest, loan or favor in relation to anything done or to be done or omitted to be done by him in connection with the performance of judicial duties.12 On respondent judges issuance of the warrant of arrest and reduction of the amount of bail, we find such acts void for want of jurisdiction. While Rule 114 of the Rules of Court allows a judge to grant bail in bailable offenses and to increase or decrease bail, it assumes that the judge has jurisdiction over the case. In this case, respondent judge conducted the preliminary investigation without authority and issued the warrant of arrest. Thus, these acts are void for want of jurisdiction. The reduction of bail is also void because in the first place, respondent judge had no jurisdiction over the case itself. The Court notes that this is respondent judges third offense. In 2003, the Court found respondent judge administratively liable for undue delay in rendering decisions and fined him P19,000, with a stern warning that a repetition of similar acts would be dealt with more severely.131avvphi1 More importantly, in the 2008 case of Santos v. Bernardo,14 the Court found respondent judge guilty of gross ignorance of the law and basic rules of procedure and fined him P20,000, with a stern warning that a repetition of the same or similar acts would be dealt with more severely.15 The Court found no merit in respondent judges supposition that grave coercion is an offense not subject to preliminary investigation. The Court, however, emphasized that when the complaint was filed on 3 January 2006, respondent judge no longer had authority to conduct preliminary investigation by virtue of A.M. No. 05-8-26-SC. Thus, the Court held that respondent judge should have referred the complaint to the Office of the Provincial Prosecutor instead of issuing the subpoena directing complainants to appear before the Court. Under Section 8(9), Rule 140 of the Rules of Court, gross ignorance of the law or procedure is classified as a serious charge, for which the imposable penalty is any of the following:

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1. Dismissal from the service, forfeiture of all or part of the benefits as the Court may determine, and disqualification from reinstatement or appointment to any public office, including government-owned or controlled corporation: Provided, however, that the forfeiture of benefits shall in no case include accrued leave credits; 2. Suspension from office without salary and other benefits for more than three (3) but not exceeding six (6) months; or 3. A fine of more than P20,000.00 but not exceeding P40,000.00.16 Considering that this is respondent judges third offense, the second of which was also for gross ignorance of the law, we hold that the penalty of six (6) months suspension from office without salary and other benefits is in order.17 WHEREFORE, we find respondent Judge Lauro G. Bernardo GUILTY of gross ignorance of the law andSUSPEND him from office for a period of six (6) months without salary and other benefits, with a stern warning that a repetition of the same or similar acts shall be dealt with more severely. SO ORDERED.

A.M. No. RTJ-04-1852 [OCA-IPI No. 03-1759-RTJ] June 3, 2004 WILFREDO M. TALAG, complainant, vs. JUDGE AMOR A. REYES, Regional Trial Court, Manila Branch 21, respondent. DECISION YNARES-SANTIAGO, J.: This is an administrative complaint filed against Judge Amor A. Reyes of the Regional Trial Court, Manila for partiality, grave abuse of authority and oppression in connection with Criminal Case No. 02-201852 entitled "People of the Philippines v. Wilfredo Talag." The instant case arose when, on April 18, 2001, a certain Romeo Lacap filed a complaint against Wilfredo Talag, Leticia Talag and Kenneth Bautista, for violation of Batas Pambansa Blg. 22 and Estafa occasioned by the dishonor of four checks. On June 4, 2001, during the preliminary investigation, Wilfredo Talag, Leticia Talag, and Kenneth Bautista, submitted their counter-affidavits denying any participation in the transaction allegedly perpetrated by them to defraud the complainant. On December 15, 2001, the Assistant City Prosecutor issued a Resolution recommending the filing of an Information for Estafa against herein complainant and the dismissal of all the charges against Leticia Talag and Kenneth Bautista. The Information was filed with the RTC of Manila, Branch 21, presided by respondent Judge Amor A. Reyes, and docketed as Criminal Case No. 02201852. On May 7, 2002, complainant filed a motion for reconsideration before the Office of the City Prosecutor, praying for the dismissal of the complaint against him for utter lack of merit. On even date, he filed an Omnibus Motion before the trial court: (1) to defer issuance of warrant of arrest and/or to recall the same if already issued; and (2) to remand case to the Office of the City Prosecutor pending review of the motion for reconsideration. On May 31, 2002, complainant filed with the trial court a Very Urgent Motion to Set for Hearing Accuseds Omnibus Motion to defer issuance of warrant of arrest and/or to remand case to the Office of the City Prosecutor pending review of the motion for reconsideration. According to complainant, on June 11, 2002, he requested his counsel to determine whether the hearing for the pending motions had already been set. To his consternation, he was told by his counsel that respondent Judge ordered the issuance of a warrant of arrest without first resolving the said motions. Complainant immediately filed a petition for certiorari before the Court of Appeals challenging the issuance of the warrant of arrest. The Court of Appeals issued a temporary restraining order enjoining the trial court from enforcing the said warrant. Accordingly, respondent Judge issued an Order on June 25, 2002, deferring the resolution of the Very Urgent Motion until after the expiration of the TRO issued by the Court of Appeals. Thereafter, the petition was dismissed by the Court of Appeals for lack of merit. On August 20, 2002, complainant filed a motion for respondent Judges inhibition. Two days after, i.e., on August 22, respondent Judge issued the assailed warrant of arrest against complainant. Meanwhile, complainant through counsel filed a Notice of Change of Address. On September 30, 2002, complainant filed a Very Urgent Motion to Consider Motion to Remand Case to the Office of the City Prosecutor pending Review of the Motion for Reconsideration and Motion for Re-investigation and to Resolve the Same with

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Urgency. On October 2, 2002, he filed a Motion to Resolve Motion for Inhibition. Respondent Judge denied the motion for inhibition and set the case for arraignment on December 11, 2002. Complainant claims that said order never reached him or his counsel since it was sent by registered mail to his previous address at No. 1 Zaragosa Street, San Lorenzo Village, Makati City, inspite of the Notice of Change Address which was filed as early as August 28, 2002. Since complainant failed to attend his arraignment allegedly due to lack of notice, respondent Judge reset the same to January 22, 2003. However, the second notice was again sent to the wrong address at Makati City, again resulting in complainants failure to attend his arraignment. As a consequence, respondent judge issued a bench warrant of arrest. Subsequently, complainant filed a Motion to Recall Warrant of Arrest and a Very Urgent Motion for Reconsideration. On February 28, 2003, an order was issued by the respondent Judge which lifted the bench warrant but denied the motion for reconsideration. On May 12, 2003, complainant filed a verified complaint before the Office of the Court Administrator charging respondent Judge with partiality, grave abuse of authority and oppression allegedly committed in the following manner: (1) Respondent Judge issued the warrant of arrest on May 23, 2003 despite complainants pending omnibus motion to defer issuance of warrant of arrest or to recall the same if already issued and to remand case to Office of the City Prosecutor, and the very urgent motion to set for hearing the omnibus motion; (2) When the matter was elevated to the Court of Appeals and a temporary restraining order was issued, respondent seemed to have waited for the TRO to expire and for the dismissal of complainants petition before the Court of Appeals because she did not resolve the motion for inhibition, and she immediately issued a warrant of arrest against him after said petition was dismissed. (3) Respondent had a predisposition to deny the motions filed by complainant since, although she was in haste in issuing the warrant of arrest, she nonetheless dilly-dallied in resolving the motions filed by complainant; (4) Despite complainants notice for a change of address, respondents order of November 18, 2002, setting his arraignment on December 11, 2002, was sent to his and counsels former address resulting in his failure to attend the arraignment; (5) In the same way, the notice of the resetting of arraignment from December 11, 2002 to January 22, 2003, was again sent to the wrong address, such that he was not notified of said scheduled arraignment. Such lack of notice however, did not stop respondent Judge from issuing a bench warrant of arrest for his failure to appear on the scheduled arraignment; (6) Although respondent Judge lifted the said bench warrant on February 28, 2003, she nevertheless denied complainants motion for reconsideration relative to the Order dated November 2002 denying the motion for inhibition; (7) Respondent Judge exhibited partiality and malevolent attitude when she did not only deny all remedies available to complainant but also uttered hostile side-comments during hearings and even

commented that complainant was overly fond of filing motions.1 In her comment, respondent Judge refuted the charges in this wise: (1) She did not consider the omnibus motion dated May 7, 2002 filed by complainant because its notice of hearing was addressed to the Public Prosecutor, for which reason, she issued the warrant of arrest on May 23, 2003; (2) She issued the order dated June 25, 2002 deferring the resolution of complainants very urgent motion to set the case for hearing in view of the resolution of the Court of Appeals dated June 14, 2002, enjoining her from enforcing the warrant of arrest issued against complainant; (3) Since the trial court had not yet acquired jurisdiction over the person of the complainant when the court received the motion to set the case for trial filed by Asst. City Prosecutor, she again issued a warrant of arrest against complainant; (4) Respondents issuance of warrant of arrest against complainant on May 23, 2002, despite the filing of the omnibus motion and the motion to set the omnibus motion for hearing, was sustained by the Court of Appeals in its decision dated August 14, 2002, dismissing complainants petition; (5) Inasmuch as the trial court has not acquired jurisdiction over the person of the complainant, respondent, after the Court of Appeals denied complainants petition and lifted the 60-day TRO, ordered the issuance of a warrant of arrest against complainant; (6) Since it was only on October 17, 2002 that the bail posted by complainant on September 26, 2002 for his provisional liberty before the Executive Judge of RTC, Makati, was received by respondent court, she could not resolve the motion for inhibition considering that the court has not acquired jurisdiction over his person; (7) Complainant is to blame for the delay in the resolution of his motions because of his penchant in filing defective motions and for not immediately submitting himself to the jurisdiction of the court; (8) The issuance of a warrant of arrest and confiscation of the bond of complainant on January 22, 2003 was in accordance with Sec. 21, Rule 114 of the Revised Rules on Criminal procedure in view of complainants failure to appear despite notice to him and his bondsman. The notice of change of address filed by complainant pertains to the change of address of his counsel and not to himself, hence, court processes were sent to his "alleged" old address. Moreover, Produce Orders of the December 11, 2002 and January 22, 2003 settings were sent to complainants bondsman, but this notwithstanding, complainants bondsman failed to produce him in court and it even filed a motion of extension of time to do so; (9) Complainants claim of bias and partiality on the part of respondent in denying complainants motion for reconsideration and motion to inhibit is baseless and unfounded considering that the assailed orders of the respondent were made on the basis of law and facts of the case.2

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On August 8, 2003, the Office of the Court Administrator submitted its recommendation for the dismissal of the complaint for lack of merit. We have closely scrutinized the arguments of the contending parties and find the charges filed against respondent are baseless. The Information was filed on May 7, 2002 while the warrant of arrest was issued May 23, 2003. When complainant filed the omnibus motion on May 7, 2002, the court has not yet acquired jurisdiction over his person. With the filing of Information, the trial court could then issue a warrant for the arrest of the accused as provided for by Section 6 of Rule 112 of the Revised Rules on Criminal Procedure. The issuance of the warrant was not only procedurally sound but it was even required considering that respondent had yet to acquire jurisdiction over the person of complainant. Consequently, complainants charge that respondent Judge failed to act on the omnibus motion before issuing the arrest warrant is untenable. Whether respondent correctly disregarded the omnibus motion in view of the alleged fatal defects is a judicial matter, which is not a proper subject in an administrative proceeding. It bears noting that respondent court immediately deferred the execution of the warrant of arrest upon issuance by the Court of Appeals of the TRO. Incidentally, although the Court of Appeals issued a temporary restraining order, it eventually sustained the issuance by respondent of the arrest warrant and dismissed the petition for certiorari. Neither can we ascribe partiality nor grave abuse of authority on the part of respondent for issuing anew an alias warrant after the expiration of the Court of Appeals 60-day TRO. With the lifting of the retraining order, no legal obstacle was left for the issuance of the arrest warrant and thus set in motion the stalled prosecutorial process by acquiring jurisdiction over the person of the accused. Complainant blames the respondent for his failure to appear at his arraignment because the notice was sent to the wrong address despite a prior notice for change of address. A cursory reading of the notice of change of address will show that it pertains to the counsels residence, not to the complainants. In view of this, it becomes reasonable for the court to assume that court processes could be sent to complainants "old" and "unchanged" residence. As correctly pointed out by respondent Judge, the Produce Order of the December 11, 2002 and January 22, 2003 settings were sent to complainants bondsman. Hence, in accordance with Sec. 21, Rule 114 of the Revised Rules of Court, his bondsman must produce him before the court on the given date and failing to do so; the bond was forfeited as it was. On the matter of respondents denial of the motion for inhibition, suffice it to say that the issue of whether a judge should voluntarily inhibit himself is addressed to his sound discretion pursuant to paragraph 2 of Section 1 of Rule 137, which provides for the rule on voluntary inhibition and states: "a judge may, in the exercise of his sound discretion, disqualify himself from sitting in a case, for a just or valid reasons other than those above-mentioned." Taking together all the acts and conduct of respondent Judge relative to complainants case, we believe that she did not exhibit any bias or partiality to warrant her voluntarily inhibition from the case. Curiously, while complainant decries the alleged respondents predilection for denying all his motions, he himself conceded that respondent Judge has done everything pursuant to law and jurisprudence.3 Bias and partiality cannot be presumed, for in administrative proceedings no less than substantial proof is required. Apart from bare allegations, there must be convincing evidence to show that respondent Judge is indeed biased and partial. In administrative proceedings, the burden of proof that respondent Judge committed the act complained of rests on the complainant.4Complainant failed to discharge this burden. WHEREFORE, in view of the foregoing, the Court resolves to adopt the recommendation of the Court Administrator, and accordingly, DISMISS the instant complaint for lack of merit. SO ORDERED.

G.R. No. 151970

May 7, 2008

WINSTON MENDOZA and FE MICLAT, petitioners, vs. FERNANDO ALARMA and FAUSTA ALARMA, respondents. DECISION CARPIO, J.: The Case Before the Court is a petition for review on certiorari1 assailing the Decision2 dated 9 July 2001 and Resolution3 dated 30 January 2002 of the Court of Appeals in CA-G.R. CV No. 58139. The Facts Spouses Fernando and Fausta Alarma (respondents) are the owners of an 11.7 hectare parcel of land (land) located in Iba, Zambales. The land, identified as Cadastral Lot No. 2087 of Iba Cadastre, was posted as a property bond for the provisional liberty of a certain Joselito Mayo, charged with illegal possession of firearms in Criminal Case No. 1417-I, entitled "People of the Philippines v. Gregorio Cayan, et al." When the accused failed to appear in court as directed on 19 March 1984, the trial court ordered his arrest and the confiscation of his bail bond in favor of the government. It also directed the bondsmen to produce within a period of 30 days the person of the accused and to show cause why judgment should not be entered against the bail bond. However, without a judgment being rendered against the bondsmen, the trial court issued a writ of execution against the land in an Order dated 14 April 1986.4 The land was eventually sold at public auction and petitioners Winston Mendoza and Fe Miclat emerged as the highest bidders. Thus, the land was awarded to petitioners and they immediately took possession of the same. Sometime thereafter, respondents filed a complaint for recovery of property against petitioners with the Regional Trial Court of Iba, Zambales, Branch 70,5 grounded on the nullity of the entire proceedings relating to the property bond. During the pre-trial conducted on 3 May 1988, the parties agreed that the property would be placed in the possession of respondents. On 2 August 1989, the court rendered its decision dismissing the complaint and declaring that the Order dated 14 April 1986 was a judgment on the bond. On appeal, the appellate court reversed the decision of the trial court and nullified the proceedings on the execution, sale, and issuance of the writ of possession.6 Thereafter, petitioners filed a petition for review on certiorari with this Court, docketed as G.R. No. 101103 and entitled "Winston Mendoza, et al. v. Court of Appeals, et al." In a Resolution dated 18 March 1992, this Court denied the petition and ruled with finality that the assailed 14 April 1986 Order was not a judgment on the bond.7 Meanwhile, petitioners applied for the registration of the land with the Regional Trial Court of Iba, Zambales, Branch 70.8 On 9 September 1987, the trial court granted the registration and issued Original Certificate of Title (OCT) No. O-7249 in the name of petitioners. The Trial Courts Ruling Respondents then filed an action for the annulment of title and reconveyance of ownership of the land covered by OCT No. O7249 with the Regional Trial Court of Iba, Zambales, Branch 71.9 On 24 September 1997, the trial court dismissed the action contending that it had no jurisdiction to annul the judgment rendered by the Regional Trial Court of Iba, Zambales, Branch 70, a co-equal court.10 The trial court declared further that since the issue of the case was the validity of OCT No. O-7249, the case should have been filed with the Court of Appeals which has

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exclusive original jurisdiction over annulment of judgments of a Regional Trial Court. The Ruling of the Court of Appeals Respondents filed an appeal with the Court of Appeals which reversed the findings of the trial court and annulled OCT No. O7249.11 The appellate court also ordered that a new title over the property be issued in the name of respondents. Petitioners filed a Motion for Reconsideration which the appellate court denied in a Resolution dated 30 January 2002. Hence, this petition. The Issue The sole issue for our resolution is whether the Court of Appeals erred in finding a defect in the proceedings and in ordering the annulment of OCT No. O-7249. Petitioners contend that even if the execution proceedings were nullified, they were not privy to the irregularities of the auction sale. Thus, as buyers in good faith, they must be protected by the law. Respondents, on the other hand, maintain that the basis for the acquisition of the land and the issuance of title over it had already been declared void by this Court in G.R. No. 101103. Thus, petitioners cannot now claim good faith. With no valid title to the land, petitioners must reconvey the land to respondents. The Courts Ruling The petition lacks merit. Section 21, Rule 114 of the Revised Rules on Criminal Procedure states: SEC. 21. Forfeiture of bail. When the presence of the accused is required by the court or these Rules, his bondsmen shall be notified to produce him before the court on a given date and time. If the accused fails to appear in person as required, his bail shall be declared forfeited and the bondsmen given thirty (30) days within which to produce their principal and to show cause why no judgment should be rendered against them for the amount of their bail. Within the said period, the bondsmen must: (a) produce the body of their principal or give the reason for his non-production; and (b) explain why the accused did not appear before the court when first required to do so. Failing in these two requisites, a judgment shall be rendered against the bondsmen, jointly and severally, for the amount of the bail. The court shall not reduce or otherwise mitigate the liability of the bondsmen, unless the accused has been surrendered or is acquitted. The provision clearly provides for the procedure to be followed before a bail bond may be forfeited and a judgment on the bond rendered against the surety. In Reliance Surety & Insurance Co., Inc. v. Amante, Jr.,12 we outlined the two occasions upon which the trial court judge may rule adversely against the bondsmen in cases when the accused fails to appear in court. First, the nonappearance by the accused is cause for the judge to summarily declare the bond as forfeited. Second, the bondsmen, after the summary forfeiture of the bond, are given 30 days within which to produce the principal and to show cause why a judgment should not be rendered against them for the amount of the bond. It is only after this 30-day period, during which the bondsmen are afforded the opportunity to be heard by the trial court, that

the trial court may render a judgment on the bond against the bondsmen. Judgment against the bondsmen cannot be entered unless such judgment is preceded by the order of forfeiture and an opportunity given to the bondsmen to produce the accused or to adduce satisfactory reason for their inability to do so.13 In the present case, it is undisputed that the accused failed to appear in person before the court and that the trial court declared his bail forfeited. The trial court gave the bondsmen, respondents in this case, a 30-day period to produce the accused or a reasonable explanation for their non-production. However, two years had passed from the time the court ordered the forfeiture and still no judgment had been rendered against the bondsmen for the amount of the bail. Instead, an order of execution was issued and the property was put up for sale and awarded to petitioners, the highest bidders. These turn of events distinctly show that there was a failure of due process of law. The execution was issued, not on a judgment, because there was none, but simply and solely on the declaration of forfeiture. An order of forfeiture of the bail bond is conditional and interlocutory, there being something more to be done such as the production of the accused within 30 days. This process is also called confiscation of bond. In People v. Dizon,14 we held that an order of forfeiture is interlocutory and merely requires appellant "to show cause why judgment should not be rendered against it for the amount of the bond." Such order is different from a judgment on the bond which is issued if the accused was not produced within the 30-day period. The judgment on the bond is the one that ultimately determines the liability of the surety, and when it becomes final, execution may issue at once.15However, in this case, no such judgment was ever issued and neither has an amount been fixed for which the bondsmen may be held liable. The law was not strictly observed and this violated respondents right to procedural due process. In addition, we find that the issue of good faith in buying the property at the auction sale is no longer material. This Court in a previous case had already ruled upon the invalidity of the execution and sale of the land. As a result, the basis for which title to the land had been issued has no more leg to stand on. The appellate court, therefore, was correct in ordering the annulment of the title to the land as a matter of course. There being no valid title nor any right to possess the land, reconveyance to the respondents is only proper under the circumstances. WHEREFORE, we DENY the petition. We AFFIRM the 9 July 2001 Decision and 30 January 2002 Resolution of the Court of Appeals in CA-G.R. CV No. 58139. SO ORDERED.

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G.R. Nos. 156687-88

May 21, 2009

indemnify Toribio Bon in the amount of P35,000.00; and to pay the costs.2 Petitioner filed a motion for reconsideration of the 28 March 2001 Decision of the Sandiganbayan. The motion was denied in the Resolution dated 3 September 2001.3 Thereafter, petitioner filed a petition for review on certiorari4 with this Court, which was docketed as G.R. Nos. 149711-12. The petition sought the reversal of the 28 March 2001 Decision of the Sandiganbayan. On 20 February 2002, this Court, in G.R. Nos. 149711-12, issued a Resolution denying the petition for: (a) failure of the petition to sufficiently show that the Sandiganbayan committed any reversible error in the challenged decision and resolution; and (b) failure of the petition to show extraordinary circumstance justifying a departure from the established doctrine that findings of facts of the Sandiganbayan are well-nigh conclusive on this Court and will not be reviewed or disturbed on appeal.5 No motion for reconsideration was filed. Consequently, the Resolution of 20 February 2002 became final and executory on 2 April 2002.6 On 4 December 2002, the Sandiganbayan issued a notice to petitioner and counsel directing them to be present on 8 January 2003 for the execution of judgment in the criminal cases.7 On 26 December 2002, petitioner filed in G.R. Nos. 149711-12 a Very Urgent Petition for Extraordinary Relief with this Court. The petition sought to "reverse and set aside the decision of the Sandiganbayan" and to "declare that petitioner is acquitted of the offense charged."8 Meanwhile, petitioner filed with the Sandiganbayan, in Criminal Case Nos. 18005 and 18006, a Manifestation and Very Urgent Motion to Suspend Further Proceedings praying that the execution of judgment be held in abeyance to await the action of this Court on the Very Urgent Petition for Extraordinary Relief he filed in G.R. Nos. 149711-12.9 On 10 January 2003, the Fourth Division10 of the Sandiganbayan issued a Resolution in Criminal Case Nos. 18005 and 18006 denying, for lack of merit, petitioners Manifestation and Very Urgent Motion to Suspend Further Proceedings. It further directed the issuance of a bench warrant of arrest against petitioner to serve the sentence imposed upon him. The cash bond posted by petitioner for his temporary liberty was ordered cancelled. Petitioner was given five days to voluntarily surrender.11 On 3 March 2003, this Court issued a Resolution in G.R. Nos. 149711-12 denying, for lack of merit, the Very Urgent Petition for Extraordinary Relief. Petitioner filed the present petition for certiorari and prohibition, with prayer for issuance of a writ of preliminary injunction or temporary restraining order praying that the Resolution dated 10 January 2003 issued by the Sandiganbayan be set aside and that the bench warrant of arrest and the order cancelling the bail bond pending resolution of the Very Urgent Petition for Extraordinary Relief be recalled. Petitioner likewise sought to suspend the final execution of the 28 March 2001 Sandiganbayan Decision until after the resolution of the Very Urgent Petition for Extraordinary Relief. Respondents People of the Philippines (People) and Lim filed their respective Comments to the petition. Respondent Bon did not file his comment and the Court resolved to dispense with the filing of the comment as the notices sent to him were returned with the notation "RTS party abroad, USA."12 The People, in its Comment, asserted that this Court had no more jurisdiction to entertain the Very Urgent Petition for Extraordinary Relief because the Courts Resolution of 20

PANFILO D. BONGCAC, Petitioner, vs. SANDIGANBAYAN, PEOPLE OF THE PHILIPPINES, SPECIAL PROSECUTOR FORTUNATO LIM, and TORIBIO BON, Respondents. DECISION CARPIO, J.: The Facts The Mayor of Tagbilaran City, Jose V. Torralba, designated his secretary, petitioner Panfilo D. Bongcac (petitioner), as the "Mayors representative to the City Market Committee," "Consultant and Coordinator on market matters," and "adviser to the Acting Market Administrator." In January 1991, respondents Engr. Fortunato Lim (Lim) and Toribio Bon (Bon) applied for stalls or tiendas in the Cogon Public Market in Tagbilaran City and were referred to petitioner. Petitioner showed them the Minutes of the City Market Committee meeting held on 9 January 1991 which included their names as among the awardees of the market stalls. Petitioner informed Lim and Bon that the city government could not afford to construct a new market and if they were interested, they should give him more money for the construction of the stalls or tiendas they were applying for. Accordingly, Lim issued and delivered to petitioner a BPI check, pay to cash, in the amount of P62,000. Bon issued and delivered to petitioner two Metrobank checks, pay to cash, in the amounts of P30,000 and P10,000. Petitioner issued handwritten receipts to Lim and Bon. Petitioner assured Lim that his stalls would be finished on or before 30 June 1991 and promised Bon that his stall would be finished before the fiesta in Tagbilaran City. The checks were subsequently encashed. Thereafter, Lim and Bon read in the 30 June 1991 issue of a local newspaper that petitioner was "sacked" as market body consultant and was terminated as secretary to the Mayor. They looked for him and demanded that he either make an accounting of the money he received or deliver the stalls or tiendas already constructed. Petitioner failed to do so. Thus, he was charged with two counts of Estafa defined and penalized under Article 315, 1(b) of the Revised Penal Code before the Sandiganbayan. The cases were docketed as Criminal Case Nos. 18005 and 18006. Upon arraignment, petitioner pleaded not guilty. Trial ensued and the cases were tried jointly. On 28 March 2001, the Fourth of the Sandiganbayan rendered judgment finding petitioner guilty of Estafa, the dispositive portion of which reads: WHEREFORE, in Criminal Case No. 18005, the accused, PANFILO D. BONGCAC, is hereby found guilty beyond reasonable doubt of the crime of ESTAFA (of the amount of P54,000.00) defined under subdivision 1, paragraph (b), and penalized under the 1st paragraph, both of Article 315, Revised Rules of Court, and he is hereby sentenced to suffer the indeterminate penalty of imprisonment of from Four (4) Years and Two (2) Months ofprision correccional, as minimum, to Eleven (11) Years of prision mayor, as maximum, to indemnify Engr. Fortunato Lim in the amount of P54,000.00 plus P10,000.00 as attorneys fees; and In Criminal Case No. 18006, the same accused, PANFILO D. BONGCAC, is likewise found guilty beyond reasonable doubt of the same crime of ESTAFA (of the amount of P35,000.00) defined and penalized under the aforestated law, and he is hereby sentenced to suffer the indeterminate penalty of Two (2) Years, Three (3) Months and Five (5) Days of prision correccional, as minimum, to Nine (9) Years of prision mayor, as maximum, to Division1

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February 2002 in G.R. Nos. 149711-12 had already become final and executory. Petitioners bail bond was deemed automatically cancelled upon execution of the judgment of conviction. In his Comment, respondent Lim alleged that the instant petition should be dismissed outright. He argued that the present petition was filed beyond the reglementary period of 60 days and that the Very Urgent Petition for Extraordinary Relief was not sanctioned by the Rules of Civil Procedure and was barred by res judicata. He further argued that the Very Urgent Petition for Extraordinary Relief and the present petition are obviously dilatory tactics to delay the execution of judgment in the criminal cases. Issue The resolution of the present petition hinges on the sole issue of whether or not the Sandiganbayan acted with grave abuse of discretion, amounting to lack of jurisdiction, in denying petitioners motion to hold in abeyance the execution of judgment. The Courts Ruling We dismiss the petition. Petitioner appealed the 28 March 2001 Sandiganbayan Decision via a petition for review on certiorari before this Court. The appeal was docketed as G.R. Nos. 149711-12. This Court, however, denied that petition in the Resolution of 20 February 2002. The Resolution of 20 February 2002 became final and executory on 2 April 2002 after petitioner failed to file a timely motion for reconsideration. Consequently, the 28 March 2001 Sandiganbayan Decision likewise became final and executory. Petitioner could no longer seek a reversal of the judgment of conviction rendered by the Sandiganbayan, as what petitioner did when he filed the Very Urgent Petition for Extraordinary Relief.1avvphi1.zw+ In the present petition, petitioner prayed that the execution of the 28 March 2001 Sandiganbayan Decision be "suspended until after final resolution of petitioners Very Urgent Petition for Extraordinary Relief." The Very Urgent Petition for Extraordinary Relief filed in G.R. Nos. 149711-12 sought to "reverse and set aside the decision of the Sandiganbayan" and to "declare that petitioner is acquitted of the offense charged." While technically, the Very Urgent Petition for Extraodinary Relief filed in G.R. Nos. 149711-12 is not sanctioned by the rules, nonetheless, that petition was likewise denied in the Courts Resolution of 3 March 2003. It is clear, therefore, that the Very Urgent Petition for Extraordinary Relief and the instant petition are merely dilatory tactics employed by petitioner in his efforts to delay the execution of the judgment in the criminal cases for estafa which had long become final and executory. Petitioner cannot perpetually file any petition or pleading to forestall the execution of a final judgment. Execution of a final judgment is the fruit and end of the suit. While a litigants right to initiate an action in court is fully respected, once his case has been adjudicated by a competent court in a valid final judgment, he should not be permitted to initiate similar suits in the hope of securing a favorable ruling. The 28 March 2001 Sandiganbayan Decision has attained finality. Such definitive judgment is no longer subject to change, revision, amendment or reversal. Upon finality of the judgment, the Court loses its jurisdiction to amend, modify or alter the same. Except for correction of clerical errors or the making of nunc pro tunc entries which cause no prejudice to any party, or where the judgment is void, the judgment can neither be amended nor altered after it has become final and executory. This is the principle of immutability of final judgment. In Lim v. Jabalde,13 this Court further explained the necessity of adhering to the doctrine of immutability of final judgments, thus: Litigation must end and terminate sometime and somewhere and it is essential to an effective and efficient administration of justice that, once a judgment has become final, the winning party be not, through a mere subterfuge, deprived of the fruits of the verdict.

Courts must therefore guard against any scheme calculated to bring about that result. Constituted as they are to put an end to controversies, courts should frown upon any attempt to prolong them. Every litigation must come to an end once a judgment becomes final, executory and unappealable. For just as a losing party has the right to file an appeal within the prescribed period, the winning party also has the correlative right to enjoy the finality of the resolution of his case by the execution and satisfaction of the judgment, which is the "life of the law."14 To frustrate it by dilatory schemes on the part of the losing party is to frustrate all the efforts, time and expenditure of the courts. It is in the interest of justice that we should write finis to this litigation. Consequently, we find no grave abuse of discretion when the Sandiganbayan denied petitioners motion to hold in abeyance the execution of judgment.1avvphi1 On the cancellation of petitioners cash bailbond as ordered in the Resolution of 10 January 2003 of the Sandiganbayan, the cancellation of the bailbond was due to the execution of the final judgment of conviction. Section 22 of Rule 114 of the Revised Rules of Criminal Procedure expressly provides: SEC. 22. Cancellation of bail. - Upon application of the bondsmen, with due notice to the prosecutor, the bail may be cancelled upon surrender of the accused or proof of his death. The bail shall be deemed automatically cancelled upon acquittal of the accused, dismissal of the case, orexecution of the judgment of conviction. In all instances, the cancellation shall be without prejudice to any liability on the bail. (emphasis supplied). From this provision, it is clear that the cancellation of bail is automatic upon execution of the judgment of conviction. The Sandiganbayan did not err in cancelling petitioners cash bailbond after the judgment of conviction became final and executory and its execution became ministerial. WHEREFORE, we DISMISS the petition. We AFFIRM the Resolution dated 10 January 2003 of the Sandiganbayan in Criminal Case Nos. 18005 and 18006. Costs against petitioner. SO ORDERED.

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G.R. No. 157147

April 17, 2009

EVIDENCE FOR THE PROSECUTION The Prosecution presented three (3) witnesses. Rommel Brigido, 29 years old, married and a resident of Busay, San Jose, Romblon, testified as follows: That witness was with the accused Wilfredo and Palti in coming from the town of San Jose to barangay Busay. That they passed by the house of Porferio Bina where they drank the locally fermented "tuba." Later, he saw accused Wilfredo sitting on a bench under the "talisay" tree on the other side of the road. Thereafter, he saw Leodegario, Gloria, Roberto and Leon passing by the road. When Leodegario got near the bench where Wilfredo was seated, the latter suddenly stood up and pointed his gun to Leodegario saying "who is brave," and two shots rang out and that there was a handkerchief covering the gun (t.s.n., p. 4, 8/23/95). That the distance between Wilfredo and Leodegario was six (6) meters. Witness, on direct examination, declared that although he was the companion of Wilfredo in coming from the town, he ran away and that he did not anymore know what happened to Leodegario (t.s.n., p. 5, supra). On cross-examination, witness Rommel admitted that he executed and affixed his signature on an affidavit (Exh. "1" and "1-A") and that the same was executed only on July 27, 1995 narrating therein the incident that happened [in] April 1987. Asked as to why witness took a long time before executing the affidavit, he commented that the case then was dismissed, and that Wilfredo is a dangerous man having recently killed his uncle Rexinol Brigido. Rommel elaborated further that he was ten (10) meters away from Wilfredo and also of the same distance to Leodegario. Rommel declared that Palti was on a stump of a chainsawed coconut tree and about six (6) meters away from Wilfredo (t.s.n., p. 13, August 23, 1995). Palti did not [run] away (t.s.n., p. 15, supra). When asked what was Wilfredo doing after the shooting of Leodegario, Rommel said that Wilfredo was going around, "pointing his gun and firing out, causing people to scamper away (t.s.n., p. 5, August 25, 1995). On clarificatory questions of the Court, Rommel admitted that "it was only Wilfredo who pointed a gun towards Leodegario, although Palti was also holding a gun but pointed downward." Gloria Valentin Capispisan, 34 years old, married and a resident of Busay, San Jose, Romblon, the second witness for the Prosecution testified thus She know(s) Wilfredo since childhood and that the victim Leodegario is her father-in-law. At about six oclock in the evening of April 19, 1987 she was near the house of Porferio after coming from the political caucus at the house of Romy Roldan who was then the OIC Mayor of San Jose, and a supporter of Natalio Beltran, Jr. She was in the company of Themestocles Sulat, Jojo Sulat, Noe Antonio, Leon Barrientos, Roberto Capispisan, Leodegario

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. WILFREDO CAWALING, Accused -Appellant. DECISION NACHURA, J.: We are confronted with conflicting accounts of the commission of a crime, a reverse whodunit1 rivaling the murder mysteries of Agatha Christie, in this review of the Court of Appeals (CAs) conviction of accused Wilfredo Cawaling for murder and imposing on him the penalty of reclusion perpetua.2 However, unlike Agatha Christie, we are guided by the test of moral certainty in ascertaining the guilt of the accused. This legal poser arose because, after the prosecution presented an eyewitness to the crime pointing to Cawaling as the perpetrator thereof, the defense offered the testimony of a person, initially charged with Cawaling in the same Information and who previously pled not guilty to the crime, confessing that it was he, and not Cawaling, who murdered the victim. Even the two courts below us parleyed and rendered conflicting decisions. The Regional Trial Court (RTC) partially upheld the defenses version of the events, rejected the prosecutions eyewitness account of the murder and convicted Cawaling only as an accomplice to the offense of homicide. In stark contrast, the CA found the eyewitness testimony credible and convicted Cawaling of murder. The following are the long and arduous facts, seen and appreciated from two different perspectives by the lower courts. Cawaling was charged with Murder in an Information which reads: That on or about the 19th day of April, 1987, in sitio Hinulugan, barangay Agcogon, municipality of San Jose, province of Romblon, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, conspired and confederated with Palti Umambong whose case was already dismissed after arraignment, did then and there by means of treachery, willfully, unlawfully and feloniously attack, assault and shot with a firearm the late ex-vice mayor Leodegario Capispisan, inflicting upon the latter serious and mortal gunshot wounds in different parts of his body which were the direct and immediately (sic) cause of his instantaneous death, thus causing damage and prejudice to his family. Contrary to law.3 The RTC laid out the facts based on the testimonies of the witnesses, to wit: The forerunner of the case at bench was OD-275, for murder. It was filed on June 24, 1987. The respondents were Palti Umambong and Wilfredo Cawaling. The case against Umambong was dismissed on January 25, 1991 on the basis of an affidavit of desistance. On February 4, 1991, this Court likewise dismissed the case against Cawaling upon the initiative of the prosecution. Four (4) years thereafter, specifically on August 17, 1995, Cawaling was arrested, the case against him for murder having been revived and accordingly docketed as OD-852. xxx

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Capispisan and two others, and that she is the wife of Roberto Capispisan. While negotiating the way home she saw Wilfredo seated on a bench along the road about ten (10) meters away from her and demonstrated that Wilfredos hands were on his lap, the left covered by a handkerchief and the right over the handkerchief. Wilfredo, according to witness, suddenly stood up and pointed his gun towards Leodegario and "I heard two shots" with Leodegario falling to the ground on his back (t.s.n. p. 6, 8/24/95). She attempted to approach Leodegario, her father-in-law but "she saw Palti with a gun" so she ran away (t.s.n. p. 8, supra). On question of the private prosecutor whether she saw the gun while Wilfredo was sitting, she replied that she could not see it because it was covered by a handkerchief. Asked as to the possible reasons why Wilfredo shot Leodegario, Gloria hinted that her father-in-law left the SAKADA and secondly, because of politics, the victim being the supporter of Natalio Beltran, Jr., while Wilfredo was for Manuel Martinez, candidates then for Congressmen. Likewise, she testified that the case against Wilfredo relative to the incident of 1987 where Leodegario was the victim was dismissed because of settlement, the accused and Lilia Capispisan, the wife of the victim, are first cousins. Queried as to whether the agreed settlement came about, Gloria said that the accused was able to produce only one-half of the monetary consideration, and that the condition that Wilfredo will not stay in San Jose, Romblon was not complied with because the latter even ran as barangay captain and that accused shot and killed the nephew of her father-in-law, Rexinol Brigido and even pointed the gun to her husband for two (2) times (t.s.n. p. 11, 8/24/95). In the course of the cross-examination of Gloria she admitted having seen the affidavit of waiver and desistance (Exh. "2" for the defense). Gloria testified that before the shooting, she "saw Palti Umambong having a gun" (t.s.n. p. 14, Ibid). In the hearing of August 25, 1995, Gloria admitted that she saw Palti when Leodegario was already dead and that "he chased us." After the shooting, Gloria testified that she saw Wilfredo [run] after her companions, firing a gun (t.s.n. p. 7, supra) Elaborating further, Gloria testified that she "saw Palti who had a gun" and Palti chased her with a gun on his hand (t.s.n. p. 17, supra) and that Palti was near Leodegario lying on the ground, about three (3) meters. On additional cross-examination of Gloria, she admitted that she executed an affidavit, regarding the incident on May 5, 1987 (Exh. "2" and "2-A" for the defense), while the signatures of the witnesses on the first and second pages were marked as Exhibit "2-B" and "2-C". Relative to her affidavit, Gloria narrated in her sworn affidavit that "without any reason he just shot my father-in-law." As to why she did not include the name Rommel in her affidavit, she said it was because Rommel was the companion of Wilfredo (t.s.n. p. 10, 1/12/98) To establish the presence of Rommel during the incident, Gloria categorically stated that Rommel was at the side of Wilfredo.

xxxx EVIDENCE FOR THE DEFENSE Palti Umambong, 53 years old, married, farmer, and resident of Hinulogan, San Jose, Romblon narrated thus That it was him who shot and killed Leodegario. On April 19, 1987, he was in the cockpit of San Jose, and that his fighting cock was pitted against that being handled by Leodegario. He bet P100.00 and referee Pedro Venus declared his cock as the winner. He demanded his winning from the one listing the bets but was told that the bettor on the losing side did not pay, and when he demanded from Leodegario his winning bet, he was told by the latter that he will not pay because the decision of the referee was unfair (t.s.n., p. 6, 7/17/98). Leodegario stood up and swung his right arm forward with a clenched fist and because of this Palti got angry prompting him to go home, but passed by the house of Porferio. Near the house of Porferio he shot Leodegario because the latter did not pay him. When he reached the road fronting that of Porferio, he stopped because he was called by Wilfredo who was seated on a bench beside the road and asked as to what happened in the cockpit and told the latter that he won except that he was not paid by Leodegario (t.s.n., pp. 11 and 12, supra). Later on, as witness testified, Leodegario passed by near the house of Porferio and Palti accosted him and demanded payment, but Leodegario retreated two steps backward and was getting something from his waist as if drawing a gun and then he shot the victim twice resulting to Leodegario falling down on his back (t.s.n., pp. 3-4, supra). After the shooting he walked towards his house, and told his wife that hed done something wrong, that is, that he killed a person a certain Leodegario and that he (witness) will go away. He looked for a sailboat and found one at Pinamihagan. He hired the sailboat and reached Aklan (t.s.n., pp. 16, 17, supra). He stayed in Aklan for three years. Palti, on redirect and recross examination, testified that he hid his gun before proceeding to the cockpit and retrieved the same on his way from the cockpit and before he met Wilfredo (t.s.n., p. 34, 8/24/98). xxxx Wilfredo Cawaling, 56 years old, married, a resident of Nabas, Aklan, and the accused in this case testified as follows: He testified that noontime of April 19, 1987 he was at Poblacion, San Jose, Romblon at the residence of his sister, Heide Casimero where he took his lunch. Thereafter, accused went to his parents[] house at Hinulugan, Busay, San Jose, in the company of Rommel and Rudy de Villa, and that while walking towards Hinulugan they passed by the house of Porferio where he bought "tuba." All the time, he was with Rommel except for Rudy de Villa who proceeded to Busay. While waiting for the "tuba," Rommel went to the back of the house of Porferio where he played volleyball together with Ricky and the latters['] brothers.

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At the time he was waiting for the "tuba" he saw Palti walking along the road towards the house of Porferio. Thereafter, he beckoned Palti to come to him and asked him about the cockfight. Palti informed him that the latters fighting cock won but that he was not paid his wining bet (t.s.n., p. 8, 10/24/98). That while he was conversing with Palti, he saw Leodegario on the road walking towards them in the company of Leon. Immediately, Palti turned his back and faced Leodegario and demanded again his winnings (t.s.n., p. 18, 10/14/98). Thereafter, he heard, Leodegario shouting "bakit ka makulit" and Palti retort[ed] by saying, "manloloko ka." At this point in time, with Palti pointing his three fingers to Leodegario, the latter retreated two steps backward and acted as if to draw something from his right waist which prompted Palti to raise his t-shirt and draw a revolver and fired at the victim. (t.s.n., p. 19, supra). As a result of which the victim fell down on his back. Leon who was in the company of the victim ran away after the shooting incident. And that Rommel who was at the back of the house of Porferio also ran away (t.s.n., p. 22, 10/14/98). After the incident he stayed in his parents[] residence at sitio Hinulugan and the following day the 23rd of May, he returned to Nabas, Aklan where he resides. Failing to get his visa for Saudi Arabia, accused looked for a job in Manila, and finally worked at a logging company in Baler, Quezon where he was the operations manager. He worked in that logging company for almost two years, and after his work was terminated he went back to Nabas, Aklan. In 1998 he returned again to Manila. While in the city he received a letter from his father informing him that he together with Palti were charged of murder before this Court and that there will be a hearing of their case and so he attended the same. The case against him was dismissed [in] February 1991 (Exhibit "2") because the complainant, the wife of the victim, executed an affidavit of waiver (Exhibit "1"). After the dismissal of the case, accused went to Papua, New Guinea and upon his return in 1992 he ran and was elected as barangay captain of Busay, San Jose, Romblon. In 1995 he ran for mayor but lost the election to Mayor Filipino Tandog. He then filed an election protest in this Court. On the scheduled hearing of his protest, he was arrested and upon inquiry with the arresting officer he was told that the dismissed case was refiled, by the same prosecutor who dismissed the original case. Accused denied the assertion of Rommel that he shot the victim contending this witness was at the back portion of the house of Porferio at the time of the incident (t.s.n., p. 30, 10/14/98). That when Palti confronted Leodegario about the formers winning bet in the cockfight he was five (5) meters distant from them and that he not only heard Palti saying "manloloko ka" but pointed his fingers to the victim. At that instant, witness continued, the victim withdrew by about two (2) steps and appeared to be pulling out something. Thereafter, Palti raised his t-shirt, drew his gun and shot the victim (t.s.n., p. 6, 11/4/98). Accused could determine the distance of Palti from where he was but Paltis back was facing towards him and Leodegario was in front of Palti. Thereafter, he saw Palti [run] towards Busay and found himself running too in the direction of his fathers house, also in Busay.4

On the other hand, the findings of fact of the CA are set forth, as follows: The version of the prosecution is narrated in good detail in the Peoples Brief submitted by the Office of the Solicitor General: At about six oclock in the evening of April 19, 1987, at Hinulugan, San Jose, Romblon while on their way home from the town proper, Wilfredo Cawaling, Palti Umambong and Rommel Brigido passed-by (sic) the house of Porferia Vina to have a drink of tuba. While drinking tuba, Leodegario Capispisan, Gloria Capispisan, Roberto Capispisan, Leon Barrientos, Themosticles Sulat, Jojo Sulat, Noe Antonio and two others came heading toward their direction (pp. 2-4, tsn, August 23, 1995). When Leodegario Capispisan was about two meters near appellant, who was seated on the bench by the road, appellant stood up, pointed his gun to (sic) Leodegario and taunted the latter for his bravery. Thereafter, two (2) gun shots were heard (p. 4, tsn, August 23, 1995). All the while, Brigido was seated on the table fronting the road drinking tuba with the others. He was about ten (10) meters from the talisay tree where appellant was seated. Palti Umambong, on the other hand, was standing on the stump of the coconut tree at about six (6) meters distance from appellant (pp. 7-8, tsn, August 23, 1995). From said distance, he saw Leodegario step back by about one (1) meter, raising his hand in surrender. Brigido then heard two (2) gunshots. Brigido also saw Palti Umambong holding a gun but the same was pointed downward (p. 4, Records; pp. 23-24, tsn, August 23, 1995). Upon hearing the shots, the people scampered away, including Brigido and Gloria, who also panicked and ran, leaving appellant and Umambong behind Leodegario Capispisan sprawled on the ground dead (p. 25, tsn, August 23, 1995; see also pp. 3-8, tsn, August 24, 1995). The defendant, for his part, understandably presented a different version. Accused claimed that about four oclock in the afternoon of April 19, 1987, he left his sisters house to go to Barangay Busay together with Rommel Brigido and Rudy de Villa who happened to pass by his sisters house on their way to Hinulugan where they also reside; that on their way to Hinulugan he and Brigido stopped to buy tuba at the house of Porfiria Bina while Rudy de Villa continued on his way home; that while he was sitting in front of the house of Porfirio Bina, Palti Umambong came walking along the road and he asked Palti about the cockfight that afternoon; that Palti told him that he was not paid his winning bet of P100.00 by Leodegario when his (Paltis) cock won; that Leodegario refused to pay him alleging that the decision of the referee was unfair; that when he insisted to collect from Leodegario the amount he won, Leodegario got angry at him and wanted to punch him. Appellant at this time saw Leodegario and Lean Barrientos walking along the road towards their direction. When the two came upon them, Palti stopped Leodegario and asked him again to pay him what he won; that Leodegario remarked "bakit ka makulit?"; that Palti reacted by shouting "manloloko ka" at the same time pointing a finger at Leodegario. At this point, Leodegario moved two steps backward and acted as if to draw something from his waist which prompted Palti to fire his revolver at the victim. Leodegario then fell down on his back. The widow and the children of Leodegario Capispisan executed an Affidavit of Waiver and Desistance dated January 24, 1991 signed by Lilia M. Capispisan and her eight (8) children praying the authorities concerned "to consider the investigation of the criminal case against Wilfredo Cawaling, et al., terminated or caused to be terminated."

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Accordingly, Judge Cezar R. Maravilla issued the Order dated February 4, 1991 dismissing the case against Wilfredo Cawaling without cost. Four (4) years later, an Information charging Cawaling with murder was refiled. On December 15, 1999, following the submission of the case for decision, the Regional Trial Court, Branch 82, Odiongan, Romblon, rendered judgment. WHEREFORE, premises considered, WILFREDO CAWALING is hereby found guilty beyond reasonable doubt as an accomplice to the offense of homicide and is hereby sentenced to an indeterminate penalty of prision correccional as minimum to prision mayor medium as maximum there being no mitigating nor aggravating circumstances, or, from 4 years and 2 months to 8 years and 1 day with all its accessory penalties. The accused shall be entitled to the benefits of Art. 29 of the Revised Penal Code on preventive imprisonment. Accused, in case of appeal of the Decision, may apply for bail pursuant to Sec. 5, Rule 114 of the Revised Rules on Criminal Procedure, as amended. With costs. SO ORDERED.5 Consistent with paragraph 2,6 Section 13 of Rule 124, the CA certified the case and elevated the records to us for review. Cawaling, in his Appellants Brief, posits the following assignment of errors: 1. The Court of Appeals seriously erred when it convicted the herein accused-appellant of Murder without sufficient and credible evidence. 2. The Court of Appeals seriously erred when it disregarded the findings of the trial court on the aspect of the credibility of the prosecutions witnesses and their testimonies, despite well-established jurisprudence on the matter.7 As the assigned errors are intertwined, we shall discuss and resolve both simultaneously. Cawaling maintains that the prosecution failed to discharge the requisite burden of proof in criminal cases because the eyewitness testimony of Rommel Brigido, as corroborated by Gloria Capispisan, is not credible. He asserts that the RTCs findings on the credibility of the witnesses should not have been disregarded by the CA. Specifically, Cawaling points out that, as held by the RTC, the testimony of Palti Umambong, the selfconfessed killer of the victim, was more worthy of credence. As such, Cawaling prays that the decision of the CA be reversed and set aside, and a new one issued, acquitting and exonerating him of the crime charged. Conversely, the Office of the Solicitor General (OSG) argues that the RTC overlooked facts and circumstances when it found Cawaling liable merely as an accomplice to the crime of homicide. The OSG avers that the delay in the execution of Rommel Brigidos affidavit and the failure of the witnesses to identify the gun used by Cawaling do not diminish their credibility. In all, the OSG insists that the CAs reversal of the RTC decision was warranted. Consequently, we juxtapose the conflicting findings of the two lower courts.

The RTCs findings zero in on Rommel Brigidos belated execution of an affidavit which, for the lower court, completely diminished his credibility, to wit: FINDINGS OF THE COURT On the third issue, the Court painstakingly perused the record of the case with objectivity and an open mind, probing and analyzing the pros and cons so as to arrive at a definitive conclusion thus eliminating the possibility of error and misjudgment. In the testimony of Rommel in 1995 during the hearing of the petition for bail, the following incidents came into light. Rommel asseverated that he was the companion of Wilfredo and Palti when they came from the town of San Jose, Romblon. When Leodegario got near the bench where Wilfredo was seated, the latter "pointed his gun towards Leodegario and two shots rang out" and that there was a handkerchief covering the gun (t.s.n., p. 4, 9/28). When he saw Wilfredo pointing his gun towards Leodegario, he also "saw Palti holding a gun pointing downward." By a simple process of mathematical computation Rommel who initially testified in 1995 at age 29 was only 20 or 21 at the time of the incident in 1987. For one to remember the minutest details of events that happened eight years ago, merits the Courts attention why it is so. When the witness testified that the gun which Wilfredo was holding was covered with a handkerchief, it is crystal clear that he did not see the gun itself but probably the likeness of a gun, or, after the death of Leodegario his mind had been conditioned to conclude that what was covered by the handkerchief was a gun. By testifying that he saw "Palti holding a gun" at the time that Wilfredo was pointing his gun towards Leodegario, a disquieting poser comes up: Why was Palti holding a gun? Did he fire his gun? Or did he not? Although Rommel said Palti did not fire his gun, it cannot be the gospel truth. It does not mean that Palti did not fire his gun, those critical moments of April 19, 1987. Remember that Rommel categorically stated that he was ten (10) meters distant from Wilfredo when the incident happened. Six oclock in the afternoon, the beginning of nighttime and the end of daytime, is "nag-aagaw ang liwanag at dilim." And with the distance mentioned by Rommel it is hard to say with definiteness as to whose gun the shot came from, unless there is only one person in the vicinity. It could be from the gun of Palti who was visibly seen by Gloria and Rommel as holding a gun and not Wilfredo because his hand allegedly with a gun was covered by a handkerchief thus impairing their vision of the firearm. The squeezing of a trigger requires only a fraction of a second, without unnecessary movement of body. For one to say he saw someone pulling the trigger of a gun at a distance of ten (10) meters and at a semi-darkness of the day is stretching the mind too far. One may hear the report of a gun but not the pulling of the trigger at the distance aforestated. A presumption thus arises that a person allegedly holding a gun covered by a handkerchief, if said person is the only one in the premises, the report of a gun could be attributed to him. But what if there were two persons? As in this case? As to the credibility of Rommel, it may be stated that when the case originally filed against Wilfredo and Palti on June 24, 1987 and docketed as OD-275, Rommel was not listed as a witness for

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the prosecution. It was only in 1995 when the case was revived that he gave his testimony for the prosecution. So, it took him eight (8) years after 1987 to air his side of the incident. Like in the case filed in 1987 Rommel was also not listed in the information filed in 1995 as a witness for the prosecution. This creates a [sic] serious doubts in the mind of the Court. A surprise witness. The explanation for the delay was because the case was dismissed. Yes, the explanation seems plausible but one cannot disregard the fact that Rommel never did execute an affidavit or sworn statement inculpating Wilfredo as the assailant of Leodegario from 1987 to the early part of 1995. He only surfaced in 1995. Whatever is in the mind of Rommel, is beyond this Courts comprehension, although such state of mind and the forces at work can be reasonably inferred from the acts and submission of the witness. What, therefore, prompted Rommel to come out of his selfimposed silence for eight years and [give] his testimony in this case? First of all, as the record would show Rommel was more or less, an "alalay" or friend of Wilfredo. For short, they are in good terms with one another. In 1987 and prior to that. This harmonious relationship may have ended when Rommel was not taken in as a candidate for vice mayor by Wilfredo when the latter ran for mayor. As things go by, Rommel instead ran for vice mayor as an independent, but lost. With this, it means a break-up in their personal relationship. Politics had taken a toll. Finally, Rommel emerged as a winner in the last political exercise where he was elected to the Sangguniang Bayan of San Jose, under another political patronage. The testimony of Rommel, therefore, remains suspect considering that he testified that (a) Wilfredo is a dangerous man and had killed his uncle Rexinel Brigido, (b) he saw a gun in the hand of Wilfredo "but covered by handkerchief, (c) he saw Palti at that critical moment holding a gun, (d) the long delay in giving his testimony, and (e) the supervening events after 1987. These circumstances have created doubts in the mind of the Court. xxxx The undisputed assertion of Gloria and Rommel that Palti was holding a gun pointed downward (Rommel) and that she saw before the shooting Palti holding a gun (Gloria) are proof enough that Palti was holding a gun before, during and after the killing of Leodegario. Coupled by the admission in open Court by Palti that it was him who shot the victim, these pieces of evidence bear the earmarks of truth, no evidence to the contrary having been proved and established by the prosecution. Why was Palti holding a gun at the crucial minutes of the incident? Did he or did not fire his gun? What had motivated Palti to shoot Leodegario as alleged by him? What possible reason would it be? Remember that he was not paid his winning bet of P100.00 by Leodegario despite his repeated demands. The words

"manloloko" (Palti) and "makulit ka" (Leodegario) are expletives bordering on violence. What did the prosecution witnesses say about Palti? As pointed out by this court Paltis participation was downgraded to the point that Palti was merely "holding a gun." The heat was on Wilfredo not Palti. It is understandable because it would be an exercise in futility to pin down Palti in the killing because he cannot anymore be proceeded against in view of the double jeopardy rule. These circumstances amply suffice [to support] the Courts findings that Palti committed the offense. xxxx Be that as it may, circumstances are aplenty by Paltis admission and the testimony of Rommel and Gloria that he (Palti) was holding a gun that if put on the dock Palti would have been found culpable for homicide and not murder. The lesser offense of homicide because the prosecution failed to establish and prove that the qualifying circumstance of evident premeditation existed in the commission of the offense. Three requisites must be duly proved before evident premeditation may be appreciated as a qualifying circumstance, namely: (a) the time when the accused determined to commit the crime, (b) an act manifestly indicating that the accused clung to his determination, and (c) a sufficient lapse of time between such a determination and execution to allow him to reflect upon the consequences of his act. The killing of Leodegario was at the spur of the moment. An unpremeditated killing. xxxx The question to be asked: Could an accomplice be convicted even if the principal has not been tried and convicted? The answer is yes. If principal is at large, still an accomplice can be convicted so long as the crime is fully established and the requisites for conviction as an accomplice are present. Again, reliance on the autopsy report of Dr. Edmundo Reloj (Exh. "A") is necessary if only to determine the number of bullet wounds the victim sustained. The doctor mentioned of two (2) wounds, entrance and exit. In other words, only one bullet entered the body of the victim, resulting however to two (2) wounds, the entrance and the exit. Therefore, there as only one assailant, contrary to the allegation in the information that the victim suffered "serious and mortal gunshot wounds in different part[s] of his body" and the testimony of Rommel and Gloria that "two shots rang out." xxxx Wilfredo, on the other hand, cannot be faulted for the killing of Leodegario, but is found, on the basis of the evidence, as an accomplice in that Wilfredo according to Rommel was "going around pointing his gun to different directions," and Gloria testifying that "Wilfredo ran after her companions, firing a gun." The case of People v. Crisostomo, 46 Phil. 775 where the accused prevented others in helping the victim by scaring them away is deemed an accomplice only. In case of doubt the Court must lean to the milder form of penalty, that of an accomplice. (People v. Manlangit, 73 SCRA 49).8 Cawaling took exception to the portion of the RTC decision that convicted him as accomplice to homicide, and appealed to the CA. But as previously mentioned, the CA reversed the RTC decision, convicted Cawaling of murder, and sentenced him to reclusion perpetua. The CA found that:

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Scrutinizing the evidence on record, this Court is convinced that the prosecution has successfully overthrown the constitutional presumption of innocence of the accused. Primarily, the appellant questions the credibility of Gloria Capispisan and prosecution rebuttal witness Rommel Brigido who were present at the time of the commission of the offense. We find no reason, however, why they would lie to implicate the accused. We find their testimonies straightforward, unhesitating and sincere. Between the self-serving testimonies of the accused and the positive identification of the assailant made by prosecution witnesses, the latter deserves greater credence. As correctly pointed out by the appellee, herein appellant was positively identified by the prosecution witnesses as the one who shot the victim, as follows: Testimony of Rommel Brigido Q: When Leodegario Capispisan came near Wilfredo Cawaling, who was seated on the bench by the road, what happen? (sic) A: Wilfredo Cawaling suddenly stood up and pointed his gun to Leodegario Capispisan saying: "Who is brave", and two shots rung out. Q: You have demonstrated that the gun came from the lap of Wilfredo Cawaling, what if any covers that gun? A: There was a handkerchief covering that gun. Q: How far was Leodegario Capispisan when Wilfredo Cawaling stood up and fired against Leodegario Capispisan? A: Witness pointing at the door with a distance of six (6) meters. Q: What happen (sic) to Leodegario Capispisan when two shots rung out? A: He fall (sic) down. Q: Under this set up, was there an opportunity for Leodegario Capispisan to be avoiding (sic) the hit? A: No, sir, because he has no chance to avoid that incident, he raised his two hands, (witness demonstrating by raising his right and left hands) and moreover the other side of the road is a cliff. xxxx Q: What did the accused Cawaling do, the first time that you saw Capispisan approaching on April 19, 1987? A: Wilfredo Cawaling suddenly stood up and pointed his gun and two shots rung out. xxxx Testimony of Gloria Capispisan Q: Mrs. Capispisan, do you know the accused, Wilfredo Cawaling in this case? A: Yes, sir, I know. Q: Since when have you known him?

A: I know him since I was a child, since childhood because he was engage (sic) in buying fish. Q: Where were you residing at the time when you knew Wilfredo Cawaling? A: Sta. Fe, Romblon. Q: And where was he buying fish during your younger days? A: He is buying fish from the fishermen at Cabalian, Sta. Fe, Romblon. Q: Now, since you have known Wilfredo Cawaling for long, please look around and point to him if he is in the courtroom this morning? A: I can see him (witness pointing to somebody in the courtroom who when asked his name, replied that he is Wilfredo Cawaling). Q: Do you know Leodegario Capispisan? A: Yes, sir. Q: How are you related to the late Leodegario Capispisan? A: Leodegario Capispisan is my father-in-law. Q: And where is Leodegario Capispisan now? A: He is already dead, he was shot by Wilfredo Cawaling. Q: On April 19, 1987, about six oclock in the evening, where were you? A: We were near Porferio Vina. Q: Where did you come from? A: We came from the caucus of Romy Roldan. xxxx Q: According to you, you attended a caucus in the house of Romy Roldan, who were your companions in going home from there? A: My companions were: Themosticles Sulat, Jojo Sulat, Noe Antonio, Leon Barrientos, Roberto Capispisan, Leodegario Capispisan and two other tagalogs and myself. xxxx Q: Now, who was ahead while you were on your way home? A: We were ahead. Q: When you reached near the place of Porferio Vina, do you know where was Wilfredo Cawaling? A: I saw him sir. Q: Where was he? A: He is sitting in the bench near the street.

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Q: Why were you passing the street? A: That is the only road that we will be passing to Busay. Q: You claimed that you saw Wilfredo Cawaling seated on a bench, how was he seated, will you demonstrate that to this Honorable Court? A: (Witness demonstrating by putting her two hands over her lap with her hand covered by her handkerchief and the right hand over the handkerchief). Q: About how far were you from Wilfredo Cawaling when you noticed his sitting in a manner you have portrayed? A: About ten (10) meters, sir. Q: Now, when you were near the place already where he was sitting, what happened? A: Wilfredo Cawaling suddenly stood up and he pointed his gun and saying who is brave, by dropping the handkerchief. Q: Now, when Wilfredo Cawaling pointed his gun, to whom was it pointed? A: To Leodegario Capispisan, sir. Q: When Wilfredo said who is brave, what did he do with his gun which he was pointing to Leodegario Capispisan? A: It was pointed to Leodegario Capispisan and simultaneously I heard two shots. Q: Did he fell (sic) down with his back or his stomach? A: He fell down on his back with blood oozing from his breast. xxxx Q: What did Wilfredo Cawaling do after firing his gun and after Leodegario Capispisan fell? A: He pointed his gun towards me. Q: What else? A: After telling him that I did not know this man, referring to my father-in-law, he ran after my companions firing his gun.9 From the foregoing contradictory findings, it is obvious that the resolution of this case hinges on which version of the case is more worthy of credence. In other words, we must rule on whether the prosecutions belatedly proffered eyewitness testimony of Rommel Brigido trumps the similarly belated testimony of Palti Umambong who now claims authorship of the crime. It is well-settled that the credibility of witnesses is best determined by the trial judge, who has the direct opportunity and unique advantage to observe at close range their conduct and deportment on the witness stand.10 The general rule is that findings of fact of the trial court, its assessment of the credibility of witnesses and their testimonies, and the probative weight thereof, as well as its conclusions based on said finding, are accorded by the appellate court utmost respect, if not conclusive effect, and can only be set aside upon a clear showing that it

overlooked, ignored, misconstrued and misinterpreted cogent facts and circumstances which, if considered, would alter the outcome of the case.11 This principle notwithstanding, we hold that the appellate court did not err in reversing the trial court and convicting Cawaling of murder, as we fully agree with the argument of the OSG that In this case, the judge who rendered the appealed decision, Judge Francisco F. Fanlo Jr., is not the same judge who heard the prosecution witnesses, namely, Rommel Brigido, who testified on August 23, 1995 and Gloria Capispisan, who testified on August 24, and 25, 1995. When these two witnesses testified in 1995 the presiding Judge was Judge Cesar Maravilla. It was only on January 12, 1998 or three years later when Judge Fanlo, Jr. took over the case and heard these witnesses for additional cross-examination. The additional cross-examination centered on the affidavits executed by these witnesses after the incident and not on the incident itself. The rule on the weight to be given to the findings of the trial court does not unqualifiedly apply, when the judge who rendered the decision did not hear the principal evidence of the prosecution. For in such, case, his evaluation of the evidence is based on the transcript of stenographic notes, which also forms the basis for the Court of Appeals to review the trial courts decision and render its own decision.12 Moreover, Rommel Brigidos belated execution of an affidavit does not detract from or diminish the weight of his direct and positive testimony that Cawaling shot Leodegario, viz: Q: Do you know Wilfredo Cawaling? A: Yes, sir. Q: Since when have you known him? A: Since I was born because we were neighbor[s]. xxxx Q: In the afternoon of April 19, 1987, did you see Wilfredo Cawaling? A: Yes, sir. Q: Where for the first time did you see him that afternoon of April 19, 1987? A: In sitio Hinulugan, Brgy. Busay. Q: Where did you come from that afternoon? A: We came from the town. Q: The town of what? A: San Jose. Q: Aside from Wilfredo Cawaling, do you have any companion in going to the town of San Jose, Romblon? A: Yes, sir. Q: Who were your companion (sic)? A: Palti Umambong. xxxx Q: Now, on your way home, where did you go?

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A: We passed by Porferia Vina coming from the town. Q: What did you do in the place of Porferia Vina? A: We were together in drinking two (2) balls of tuba. xxxx Q: Now, while drinking tube, what happen[ed]? A: While our drinking is not yet finished, I saw Wilfredo Cawaling sitting along the other side of the road. xxxx Q: How far was Wilfredo Cawaling sitting on the bench from the road where Leodegario Capispisan and his group were passing? A: It was near, because the bench was just along the side of the road. Q: When Leodegario Capispisan came near Wilfredo Cawaling, who was [seated] on the bench by the road, what happen[ed]? A: Wilfredo Cawaling suddenly stood up and pointed his gun to Leodegario Capispisan saying: "Who is brave," and two shots [rang] out. xxxx Q: How far was Leodegario Capispisan when Wilfredo Cawaling stood up and fired against Leodegario Capispisan? A: Witness pointing at the door, with a distance of six (6) meters.13 We have had occasion to hold that delay in making a criminal accusation will not necessarily impair the credibility of a witness if such delay is satisfactorily explained.14 In this case, Rommel Brigido, on cross examination, explained, thus: Q: Why did it take you so long to execute this affidavit where the incident took place way back on April [19] 1987 and you only executed your affidavit in support of this information on July 27, 1995? A: Because that case was dismissed and [Wilfredo] Cawaling was at large at that time and I was asked to execute an affidavit. xxxx Q: Why did you say that [Cawaling] is a dangerous man? A: He killed so many people and recently also shot my uncle, Rexinol Brigido.15 Gloria Capispisan likewise satisfactorily explained her failure to include the name of Rommel Brigido in her earlier account of the killing in April 1987, as the latter was the companion of Cawaling. Subsequent thereto, Gloria categorically testified that Rommel was at the side of Cawaling during the incident. The RTC erred in convicting Cawaling merely as an accomplice to homicide, and in giving full faith and credence to Palti Umambongs testimony that he was the one who shot the victim.

We have gone through the trial courts lengthy disquisition and tried to find a rational explanation why Palti, who previously pled not guilty to the crime, will now accept responsibility for the murder of Leodegario. Obviously, it is because the case against him had already been dismissed, and he can no longer be successfully prosecuted for the offense without breaching the rule on double jeopardy. Thus, with Palti securely shielded from punishment by the principle of double jeopardy, he was at liberty to own authorship of the crime. Accordingly, Paltis credibility as a witness directly debunking Rommels testimony is tainted by a serious cloud of doubt. Justice Ricardo J. Francisco, in his treatise on Evidence, writes: "the credibility of a witness depends as much upon himself as upon his testimony, upon his interest as upon his mental cultivation, his conduct before and at the trial, the consistency of his behavior from the time he became aware of the fact to the time he relates it."16 Not surprisingly, Palti is now motivated to confess to a crime for which he can no longer be held liable because of our rule on double jeopardy.17 We note that it was only Palti who was arraigned and who pled not guilty to the initial Information for murder. At that time, Cawaling was at large. After the case against Palti was dismissed, and now no longer in peril of punishment, he acknowledges commission of the crime and conveniently absolves Cawaling who had remained at large. We perceive a brazen conspiracy to escape criminal liability for murder. Justice Francisco, in the same book, states that when there is conflicting evidence, the court is compelled to examine closely the motives of the witnesses for telling the truth or for falsely testifying.18 As between Rommel and Palti, there is, in the former, an absence of proof, except for the defenses bare allegations of political motivations, of an improper motive that would have impelled him to testify for the prosecution and accuse his former friend and companion, Cawaling, of murder.19 As no improper motive can be imputed to Rommel, his testimony is entitled to full faith and credence. One other thing has sealed the conviction of Cawaling. We note that he jumped bail and fled. On this score, jurisprudence has consistently held that flight of an accused is indicative of his guilt.20 As to the propriety of Cawalings conviction for murder, the CA correctly appreciated the circumstance of treachery.21 We quote with favor the appellate courts ruling thereon: The Solicitor General submits that the commission of the crime in the present case was attended by treachery as clearly established by Rommel Brigido and Gloria Capispisan, who testified that they saw appellant stand up from where he was seated and without warning, pointed his gun at Leodegario and instantaneously fired the same, thus killing Leodegario on the spot. It is contended that "the attack being sudden and unexpected, Leodegario was not given any chance to retaliate or defend himself from such attack." We agree. Treachery may be appreciated even if the attack was frontal but no less unexpected and sudden, giving the victim no opportunity, to repel it or offer any defense of his person. Frontal attach can be treachery when it is sudden and unexpected and the victim was unarmed.22 We likewise agree with the OSG that the heirs of the victim must be awarded moral damages in the amount ofP50,000.00 consistent with prevailing jurisprudence.23 Lastly, we dispose of a corollary incident the Manifestation with Motion to withdraw property bond and post cash bond in lieu

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thereof filed by bondsperson Margarita Cruz. In this connection, Section 22 of Rule 114 of the Rules of Court is explicit: SEC. 22. Cancellation of bail. Upon application of the bondsmen with due notice to the prosecutor, the bail may be cancelled upon surrender of the accused or proof of his death. The bail shall be deemed automatically cancelled upon acquittal of the accused, dismissal of the case, or execution of the judgment of conviction. In all instances, the cancellation shall be without prejudice to any liability on the bail.

G.R. No. 143591

May 5, 2010

TEODORO C. BORLONGAN, JR., CORAZON M. BEJASA, ARTURO E. MANUEL, JR., ERIC L. LEE, P. SIERVO H. DIZON, BENJAMIN DE LEON, DELFIN C. GONZALES, JR., and BEN YU LIM, JR., Petitioners, vs. MAGDALENO M. PEA and HON. MANUEL Q. LIMSIACO, JR., as Judge Designate of the Municipal Trial Court in Cities, Bago City, Respondents. DECISION PEREZ, J.:

With the conviction of Cawaling for murder, and the Courts consequent failure to execute the judgment of conviction because of Cawalings flight, the motion must be denied. The posted property bond cannot be cancelled, much less withdrawn and replaced with a cash bond by movant Cruz, unless Cawaling is surrendered to the Court, or adequate proof of his death is presented. We are not unmindful that Cruz posted the property bond simply to accommodate Cawaling, a relative, obtain provisional liberty. However, under Section 124 of Rule 114, Cruz, as a bondsman, guarantees the appearance of the accused before any court as required under specified conditions. It is beyond cavil that, with the property bond posted by Cruz, Cawaling was allowed temporary liberty, which made it possible, quite easily, to flee and evade punishment. As it stands now, Cawaling, a convicted felon, is beyond reach of the law, and the property bond cannot be released.1avvphi1 IN LIGHT OF ALL THE FOREGOING, the decision of the Court of Appeals is AFFIRMED. Accused-appellant Wilfredo Cawaling is found GUILTY of Murder and ordered to pay, P50,000.00 as indemnity and anotherP50,000.00 as moral damages, to the heirs of the victim. The Manifestation with Motion of Movant Cruz is DENIED. SO ORDERED.

The pivotal issue in this case is whether or not the Court of Appeals, in its Decision1 dated 20 June 2000 in CA-G.R. SP No. 49666, is correct when it dismissed the petition for certiorari filed by petitioners Teodoro C. Borlongan, Jr., Corazon M. Bejasa, Arturo E. Manuel, Jr., Benjamin de Leon, P. Siervo H. Dizon, Delfin C. Gonzales, Jr., Eric L. Lee and Ben Yu Lim, Jr., and ruled that the Municipal Trial Court in Cities (MTCC), Bago City, did not gravely abuse its discretion in denying the motion for reinvestigation and recall of the warrants of arrest in Criminal Case Nos. 6683, 6684, 6685, and 6686. The factual antecedents of the case are as follows: Respondent Atty. Magdaleno M. Pea (Atty. Pea) instituted a civil case for recovery of agents compensation and expenses, damages, and attorneys fees2 against Urban Bank and herein petitioners, before the Regional Trial Court (RTC) of Negros Occidental, Bago City. The case was raffled to Branch 62 and was docketed as Civil Case No. 754. Atty. Pea anchored his claim for compensation on the Contract of Agency3 allegedly entered into with the petitioners, wherein the former undertook to perform such acts necessary to prevent any intruder and squatter from unlawfully occupying Urban Banks property located along Roxas Boulevard, Pasay City. Petitioners filed a Motion to Dismiss4 arguing that they never appointed the respondent as agent or counsel. Attached to the motion were the following documents: 1) a Letter5 dated 19 December 1994 signed by Herman Ponce and Julie Abad on behalf of Isabela Sugar Company, Inc. (ISCI), the original owner of the subject property; 2) an unsigned Letter6dated 7 December 1994 addressed to Corazon Bejasa from Marilyn G. Ong; 3) a Letter7 dated 9 December 1994 addressed to Teodoro Borlongan, Jr. and signed by Marilyn G. Ong; and 4) a Memorandum8 dated 20 November 1994 from Enrique Montilla III. Said documents were presented in an attempt to show that the respondent was appointed as agent by ISCI and not by Urban Bank or by the petitioners. In view of the introduction of the above-mentioned documents, Atty. Pea filed his Complaint-Affidavit9 with the Office of the City Prosecutor, Bago City.10 He claimed that said documents were falsified because the alleged signatories did not actually affix their signatures, and the signatories were neither stockholders nor officers and employees of ISCI.11 Worse, petitioners introduced said documents as evidence before the RTC knowing that they were falsified. In a Resolution12 dated 24 September 1998, the City Prosecutor found probable cause for the indictment of petitioners for four (4) counts of the crime of Introducing Falsified Documents, penalized by the second paragraph of Article 172 of the Revised Penal Code. The City Prosecutor concluded that the documents were falsified because the alleged signatories untruthfully stated that ISCI was the principal of the respondent; that petitioners knew that the documents were falsified considering that the signatories were mere dummies; and that the documents formed part of the record of Civil Case No. 754 where they were used by petitioners as evidence in support of their motion to dismiss, and then adopted in their answer and in their Pre-Trial Brief.13 Subsequently, the corresponding Informations14 were filed with the MTCC, Bago City. The cases were docketed as Criminal Case Nos. 6683, 6684, 6685, and 6686. Thereafter, Judge

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Primitivo Blanca issued the warrants15 for the arrest of the petitioners. On 1 October 1998, petitioners filed an Omnibus Motion to Quash, Recall Warrants of Arrest and/or For Reinvestigation.16 Petitioners insisted that they were denied due process because of the non-observance of the proper procedure on preliminary investigation prescribed in the Rules of Court. Specifically, they claimed that they were not afforded the right to submit their counter-affidavit. Then they argued that since no such counter-affidavit and supporting documents were submitted by the petitioners, the trial judge merely relied on the complaint-affidavit and attachments of the respondent in issuing the warrants of arrest, also in contravention with the Rules of Court. Petitioners further prayed that the information be quashed for lack of probable cause. Moreover, one of the accused, i.e., Ben Lim, Jr., is not even a director of Urban Bank, contrary to what complainant stated. Lastly, petitioners posited that the criminal cases should have been suspended on the ground that the issue being threshed out in the civil case is a prejudicial question. In an Order17 dated 13 November 1998, the MTCC denied the omnibus motion primarily on the ground that preliminary investigation was not available in the instant case which fell within the jurisdiction of the first-level court. The court, likewise, upheld the validity of the warrant of arrest, saying that it was issued in accordance with the Rules of Court. Besides, the court added, petitioners could no longer question the validity of the warrant since they already posted bail. The court also believed that the issue involved in the civil case was not a prejudicial question, and, thus, denied the prayer for suspension of the criminal proceedings. Lastly, the court was convinced that the Informations contained all the facts necessary to constitute an offense. Petitioners immediately instituted a special civil action for Certiorari and Prohibition with Prayer for Writ of Preliminary Injunction and Temporary Restraining Order (TRO) before the Court of Appeals, ascribing grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the MTCC in issuing and not recalling the warrants of arrest, reiterating the arguments in their omnibus motion.18 They, likewise, questioned the courts conclusion that by posting bail, petitioners already waived their right to assail the validity of the warrants of arrest. On 20 June 2000, the Court of Appeals dismissed the petition.19 Thus, petitioners filed the instant petition for review on certiorari under Rule 45 of the Rules of Court, raising the following issues: A. Where the offense charged in a criminal complaint is not cognizable by the Regional Trial Court and not covered by the Rule on Summary Procedure, is the finding of probable cause required for the filing of an Information in court? If the allegations in the complaint-affidavit do not establish probable cause, should not the investigating prosecutor dismiss the complaint, or at the very least, require the respondent to submit his counter-affidavit? B. Can a complaint-affidavit containing matters which are not within the personal knowledge of the complainant be sufficient basis for the finding of probable cause? C. Where there is offense charged in a criminal complaint is not cognizable by the Regional Trial Court and not covered by the Rule on Summary Procedure, and the record of the preliminary investigation does not show the existence of probable cause, should not the judge refuse to issue a warrant of arrest and

dismiss the criminal case, or at the very least, require the accused to submit his counter-affidavit in order to aid the judge in determining the existence of probable cause? D. Can a criminal prosecution be restrained? E. Can this Honorable Court itself determine the existence of probable cause?20 On the other hand, respondent contends that the issues raised by the petitioners had already become moot and academic when the latter posted bail and were already arraigned. On 2 August 2000, this Court issued a TRO21 enjoining the judge of the MTCC from proceeding in any manner with Criminal Case Nos. 6683 to 6686, effective during the entire period that the case is pending before, or until further orders of, this Court. We will first discuss the issue of mootness. The issues raised by the petitioners have not been mooted by the fact that they had posted bail and were already arraigned. It appears from the records that upon the issuance of the warrant of arrest, petitioners immediately posted bail as they wanted to avoid embarrassment, being then the officers of Urban Bank. On the scheduled date for the arraignment, despite the petitioners refusal to enter a plea, the court a quo entered a plea of "Not Guilty" for them. The erstwhile ruling of this Court was that posting of bail constitutes a waiver of any irregularity in the issuance of a warrant of arrest, that has already been superseded by Section 26, Rule 114 of the Revised Rule of Criminal Procedure. The principle that the accused is precluded from questioning the legality of the arrest after arraignment is true only if he voluntarily enters his plea and participates during trial, without previously invoking his objections thereto.22 As held in Okabe v. Hon. Gutierrez:23 It bears stressing that Section 26, Rule 114 of the Revised Rules on Criminal Procedure is a new one, intended to modify previous rulings of this Court that an application for bail or the admission to bail by the accused shall be considered as a waiver of his right to assail the warrant issued for his arrest on the legalities or irregularities thereon. The new rule has reverted to the ruling of this Court in People v. Red. The new rule is curative in nature because precisely, it was designed to supply defects and curb evils in procedural rules. Hence, the rules governing curative statutes are applicable. Curative statutes are by their essence retroactive in application. Besides, procedural rules as a general rule operate retroactively, even without express provisions to that effect, to cases pending at the time of their effectivity, in other words to actions yet undetermined at the time of their effectivity. Before the appellate court rendered its decision on January 31, 2001, the Revised Rules on Criminal Procedure was already in effect. It behoved the appellate court to have applied the same in resolving the petitioners petition for certiorari and her motion for partial reconsideration.1avvphi1 Moreover, considering the conduct of the petitioner after posting her personal bail bond, it cannot be argued that she waived her right to question the finding of probable cause and to assail the warrant of arrest issued against her by the respondent judge. There must be clear and convincing proof that the petitioner had an actual intention to relinquish her right to question the existence of probable cause. When the only proof of intention rests on what a party does, his act should be so manifestly consistent with, and indicative of, an intent to voluntarily and

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unequivocally relinquish the particular right that no other explanation of his conduct is possible. x x x. Herein petitioners filed the Omnibus Motion to Quash, Recall Warrants of Arrest and/or For Reinvestigation on the same day that they posted bail. Their bail bonds likewise expressly contained a stipulation that they were not waiving their right to question the validity of their arrest.24 On the date of their arraignment, petitioners refused to enter their plea due to the fact that the issue on the legality of their arrest is still pending with the Court. Thus, when the court a quo entered a plea of not guilty for them, there was no valid waiver of their right to preclude them from raising the same with the Court of Appeals or this Court. The posting of bail bond was a matter of imperative necessity to avert their incarceration; it should not be deemed as a waiver of their right to assail their arrest. The ruling to which we have returned in People v. Red25 stated: x x x The present defendants were arrested towards the end of January, 1929, on the Island and Province of Marinduque by order of the judge of the Court of First Instance of Lucena, Tayabas, at a time when there were no court sessions being held in Marinduque. In view of these circumstances and the number of the accused, it may properly be held that the furnishing of the bond was prompted by the sheer necessity of not remaining in detention, and in no way implied their waiver of any right, such as the summary examination of the case before their detention. That they had no intention of waiving this right is clear from their motion of January 23, 1929, the same day on which they furnished a bond, and the fact that they renewed this petition on February 23, 1929, praying for the stay of their arrest for lack of the summary examination; the first motion being denied by the court on January 24, 1929 (G.R. No. 33708, page 8), and the second remaining undecided, but with an order to have it presented in Boac, Marinduque. Therefore, the defendants herein cannot be said to have waived the right granted to them by section 13, General Order No. 58, as amended by Act No. 3042. The rest of the issues raised by the petitioners may be grouped into two, which are: (1) the procedural aspect, i.e., whether the prosecution and the court a quo properly observed the required procedure in the instant case, and, (2) the substantive aspect, which is whether there was probable cause to pursue the criminal cases to trial. The procedural aspect: Petitioners contend that they were denied due process as they were unable to submit their counter-affidavits and were not accorded the right to a preliminary investigation. Considering that the complaint of Atty. Pea was filed in September 1998, the rule then applicable was the 1985 Rules of Criminal Procedure. The provisions of the 1985 Rules of Criminal Procedure relevant to the issue are Sections 1, 3(a) and 9(a) of Rule 112, to wit: Section 1. Definition. Preliminary investigation is an inquiry or proceeding for the purpose of determining whether there is sufficient ground to engender a well founded belief that a crime cognizable by the Regional Trial Court has been committed and that the respondent is probably guilty thereof, and should be held for trial. Sec. 3. Procedure. Except as provided for in Section 7 hereof, no complaint or information for an offense cognizable by the Regional Trial Court shall be filed without a preliminary investigation having been first conducted in the following manner: (a) The complaint shall state the known address of the respondent and be accompanied by affidavits of the complainant and his witnesses as well as other supporting documents, in such number of copies as there are respondents, plus two (2) copies for the

official file. The said affidavits shall be sworn to before any fiscal, state prosecutor or government official authorized to administer oath, or, in their absence or unavailability, a notary public, who must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits. Sec. 9. Cases not falling under the original jurisdiction of the Regional Trial Courts nor covered by the Rule on Summary Procedure. (a) Where filed with the fiscal. If the complaint is filed directly with the fiscal or state prosecutor, the procedure outlined in Section 3(a) of this Rule shall be observed. The fiscal shall take appropriate action based on the affidavits and other supporting documents submitted by the complainant. (underscoring supplied) The crime to which petitioners were charged was defined and penalized under second paragraph of Article 172 in relation to Article 171 of the Revised Penal Code. Art. 172. Falsification by private individual and use of falsified documents. The penalty of prision correccional in its medium and maximum periods and a fine of not more than P5,000 pesos shall be imposed upon: 1. Any private individual who shall commit any of the falsifications enumerated in the next preceding article in any public or official document or letter of exchange or any other kind of commercial document; and 2. Any person who, to the damage of a third party, or with the intent to cause such damage, shall in any private document commit any of the acts of falsification enumerated in the next preceding article. Any person who shall knowingly introduce in evidence in any judicial proceeding or to the damage of another or who, with the intent to cause such damage, shall use any of the false documents embraced in the next preceding article or in any of the foregoing subdivisions of this article, shall be punished by the penalty next lower in degree. Prision correccional in its medium and maximum periods translates to imprisonment of 2 years, 4 months and 1 day.26 The next lower in degree to prision correccional is arresto mayor in its maximum period to prision correccional in its minimum period which translates to 4 months and 1 day to 2 years and 4 months27 of imprisonment. Since the crime committed is not covered by the Rules of Summary Procedure,28 the case falls within the exclusive jurisdiction of the first level courts but applying the ordinary rules. In such instance, preliminary investigation as defined in Section 1, Rule 112 of the 1985 Rules of Criminal Procedure is not applicable since such section covers only crimes cognizable by the RTC. That which is stated in Section 9(a) is the applicable rule. Under this Rule, while probable cause should first be determined before an information may be filed in court, the prosecutor is not mandated to require the respondent to submit his counteraffidavits to oppose the complaint. In the determination of probable cause, the prosecutor may solely rely on the complaint, affidavits and other supporting documents submitted by the complainant. If he does not find probable cause, the prosecutor may dismiss outright the complaint or if he finds probable cause or sufficient reason to proceed with the case, he shall issue a resolution and file the corresponding information. The complaint of respondent, verbatim, is as follows: COMPLAINT AFFIDAVIT

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I, MAGDALENO M. PEA, Filipino, of legal age, with address at Brgy. Ubay, Pulupandan, Negros Occidental, after having been sworn in accordance with law hereby depose and state: 1. I am the Plaintiff in Civil Case No. 754 pending with the Regional Trial Court of Bago City entitled "Atty. Magdaleno M. Pea v. Urban Bank, et al" Impleaded therein as defendants of the board of the bank, namely, Teodoro Borlongan, Delfin Gonzales, Jr., Benjamin De Leon, P. Siervo Dizon, Eric Lee, Ben Lim Jr., Corazon Bejasa and Arturo Manuel.(underlining ours) 2. I filed the said case to collect my fees as agent of Urban Bank, Inc.(hereinafter referred to as the "bank") in ridding a certain parcel of land in Pasay City of squatters and intruders. A certified true copy of the Complaint in the said case is hereto attached as Annex "A". 3. In the Motion to Dismiss dated 12 March 1996 (a certified true copy of which is attached as Annex "B"), Answer dated 28 October 1996 (Annex "C"), and Pre-Trial Brief dated 28 January 1997 (Annex "D") filed by the bank and the respondent members of the board, the said respondents used as evidence the following documents: a. Letter dated 19 December 1994 supposedly signed by a certain Herman Ponce and Julie Abad for Isabela Sugar Company (ISC) (a copy of which is attached as Annex "E"), which states: December 19, 1994 Urban Bank Urban Avenue, Makati Metro Manila Gentlemen: This has reference to your property located among Roxas Boulevard, Pasay City which you purchased from Isabela Sugar Company under a Deed of Absolute Sale executed on December 1, 1994. In line with our warranties as the Seller of the said property and our undertaking to deliver to you the full and actual possession and control of said property, free from tenants, occupants or squatters and from any obstruction or impediment to the free use and occupancy of the property and to prevent the former tenants or occupants from entering or returning to the premises. In view of the transfer of ownership of the property to Urban Bank, it may be necessary for Urban Bank to appoint Atty. Pea likewise as its authorized representative for purposes of holding/maintaining continued possession of the said property and to represent Urban Bank in any court action that may be instituted for the abovementioned purposes. It is understood that any attorneys fees, cost of litigation and any other charges or expenses that may be incurred relative to the exercise by Atty. Pea of his abovementioned duties shall be for the account of Isabela Sugar Company and any loss or damage that may be incurred to third parties shall be answerable by Isabela Sugar Company. Very truly yours, Isabela Sugar Company By: HERMAN PONCE JULIE ABAD b. Memorandum dated 7 December 1994 supposedly executed by a certain Marilyn Ong on behalf of ISC, a copy of which is hereto attached as annex "F", which states: December 7, 1994

To: ATTY. CORA BEJASA From: MARILYN G. ONG RE: ISABELA SUGAR CO., INC. Atty. Magdaleno M. Pea, who has been assigned by Isabela Sugar Company inc. to take charge of inspecting the tenants would like to request an authority similar to this from the Bank to new owners. Can you please issue something like this today as he (unreadable) this. b. Letter dated 9 December 1994 supposedly executed by the same Marilyn Ong, a copy of which is hereto attached as Annex "G", which states: December 9, 1994 Atty. Ted Borlongan URBAN BANK OF THE PHILIPPINES MAKATI, METRO MANILA Attention: Mr. Ted Borlongan Dear Mr. Borlongan I would like to request for an authority from Urban Bank per attached immediately as the tenants are questioning authority of the people who are helping us to take possession of the property. Marilyn Ong c. Memorandum dated 20 November 1994, copy of which is attached as annex "H", which states: MEMORANDUM To: Atty. Magadaleno M. Pea Director From: Enrique C. Montilla III President Date: 20 November 1994 You are hereby directed to recover and take possession of the property of the corporation situated at Roxas Boulevard covered by TCT No. 5382 of the Registry of Deeds for Pasay City, immediately upon the expiration of the contract of lease over the said property on 29 November 1994. For this purpose, you are authorized to engage the services of security guards to protect the property against intruders. You may also engage the services of a lawyer in case there is a need to go to court to protect the said property of the corporation. In addition, you may take whatever steps or measures are necessary to ensure our continued possession of the property. ENRIQUE C. MONTILLA III President 4. The respondent member of the board of the bank used and introduced the aforestated documents as evidence in the civil case knowing that the same are falsified. They used thae said documents to justify their refusal to pay my agents fees, to my damage and prejudice. 5. The 19 December 1994 letter (Annex E") is a falsified document, in that the person who supposedly executed the letter on behalf of ISC, a certain Herman Ponce and Julie Abad did not actually affix their signatures on the document. The execution of the letter was merely simulated by making it appear that Ponce

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and Abad executed the letter on behalf of ISC when they did not in fact do so. 6. No persons by the name of Herman Ponce and Julie Abad were ever stockholders, officers, employees or representatives of ISC. In the letter, Herman Ponce was represented to be the President of ISC and Julie Abad, the Corporate Secretary. However, as of 19 December 1994, the real President of plaintiff was Enrique Montilla, III and Cristina Montilla was the Corporate Secretary. A copy of the Minutes of the Regular Meeting of ISC for the year 1994, during which Montilla, et al. Were elected is hereto attached as Annex "I". On the otherhand, a list of the stockholders of ISC on or about the time of the transaction is attached as Annex "J". 7. The same holds true with respect to the Memorandum dated 7 December 1994 and athe letter dated 9 December 1994 allegedly written by a ceratin Marilyn Ong. Nobody by the said name was ever a stockholder of ISC. 8. Lastly, with respect to the supposed Memorandum issued by Enrique Montilla, III his signature thereon was merely forged by respondents. Enrique Montilla III, did not affix his signature on any such document. 9. I am executing this affidavit for the purpose of charging Teodoro C. Borlongan, Corazon M. Bejasa and Arturo E. Manuel, Delfin C. Gonzales Jr., Benjamin L. De Leon, P. Siervo H. Dizon and Eric Lee, with the crime of use of falsified documents under Artilce 172, paragraph 2, of the Revised Penal Code.(underlining ours) 10. I am likewise executing this affidavit for whatever legal purpose it may serve. FURTHER AFFIANT SAYETH NAUGHT. Sgd. MAGDALENO M. PEA It is evident that in the affidavit-complaint, specifically in paragraph 1, respondent merely introduced and identified "the board of the bank, namely, Teodoro Borlongan, Jr., Delfin Gonzales, Jr., Benjamin De Leon, P. Siervo Dizon, Eric Lee, Ben Lim, Jr., Corazon Bejasa and Arturo Manuel, Sr." However, in the accusatory portion of the complaint which is paragraph number 9, Mr. Ben Lim, Jr. was not included among those charged with the crime of use of falsified documents under Article 172, paragraph 2, of the Revised Penal Code. The omission indicates that respondent did not intend to criminally implicate Mr. Ben Lim, Jr., even as he was acknowledged to be a member of the board. And there was no explanation in the Resolution and Information by the City Prosecutor why Mr. Ben Lim, Jr. was included. Moreover, as can be gleaned from the body of the complaint and the specific averments therein, Mr. Ben Lim, Jr. was never mentioned. The City Prosecutor should have cautiously reviewed the complaint to determine whether there were inconsistencies which ought to have been brought to the attention of the respondent or, on his own, considered for due evaluation. It is a big mistake to bring a man to trial for a crime he did not commit. Prosecutors are endowed with ample powers in order that they may properly fulfill their assigned role in the administration of justice. It should be realized, however, that when a man is hailed to court on a criminal charge, it brings in its wake problems not only for the accused but for his family as well. Therefore, it behooves a prosecutor to weigh the evidence carefully and to deliberate thereon to determine the existence of a prima facie case before filing the information in court. Anything less would be a dereliction of duty.29 Atty. Pea, in his Second Manifestation30 dated 16 June 1999, averred that petitioners, including Mr. Ben Lim, Jr., were already estopped from raising the fact that Mr. Ben Lim, Jr. was not a

member of the board of directors of Urban Bank, as the latter participated and appeared through counsel in Civil Case No. 754 without raising any opposition. However, this does not detract from the fact that the City Prosecutor, as previously discussed, did not carefully scrutinize the complaint of Atty. Pea, which did not charge Mr. Ben Lim, Jr. of any crime. What tainted the procedure further was that the Judge issued a warrant for the arrest of the petitioners, including, Mr. Ben Lim, Jr. despite the filing of the Omnibus Motion to Quash, Recall Warrants of Arrest and/or For Reinvestigation raising among others the issue that Mr. Ben Lim, Jr., was not even a member of the board of directors. With the filing of the motion, the judge is put on alert that an innocent person may have been included in the complaint. In the Order31 dated 13 November 1998, in denying the motion to quash, Judge Primitivo Blanca ruled that: Courts in resolving a motion to quash cannot consider facts contrary to those alleged in the information or which do not appear on the face of the information because said motion is hypothethical admission of the facts alleged in the information x x x. (citations omitted.) We cannot accept as mere oversight the mistake of respondent judge since it was at the expense of liberty. This cannot be condoned. In the issuance of a warrant of arrest, the mandate of the Constitution is for the judge to personally determine the existence of probable cause: Section 2, Article III of the Constitution provides: 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. Corollary thereto, Section 9(b) of the 1985 Rules of Criminal Procedure provides: Sec. 9. Cases not falling under the original jurisdiction of the Regional Trial Courts nor covered by the Rule on Summary Procedure. (a) x x x. (b) Where filed directly with the Municipal Trial Court. If the complaint or information is filed directly with the Municipal Trial Court, the procedure provided for in Section 3(a) of this Rule shall likewise be observed. If the judge finds no sufficient ground to hold the respondent for trial, he shall dismiss the complaint or information. Otherwise, he shall issue a warrant of arrest after personally examining in writing and under oath the complainant and his witnesses in the form of searching questions and answers. Enshrined in our Constitution is the rule that "[n]o x x x 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 x x x the persons x x x to be seized."32 Interpreting the words "personal determination," we said in Soliven v. Makasiar33 that it does not thereby mean that judges are obliged to conduct the personal examination of the complainant and his witnesses themselves. To require thus would be to unduly laden them with preliminary examinations and investigations of criminal complaints instead of concentrating on hearing and deciding cases filed before them. Rather, what is emphasized merely is the exclusive and personal

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responsibility of the issuing judge to satisfy himself as to the existence of probable cause. To this end, he may: (a) personally evaluate the report and the supporting documents submitted by the prosecutor regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (b) if on the basis thereof he finds no probable cause, disregard the prosecutor's report and require the submission of supporting affidavits of witnesses to aid him in determining its existence. What he is never allowed to do is to follow blindly the prosecutor's bare certification as to the existence of probable cause. Much more is required by the constitutional provision. Judges have to go over the report, the affidavits, the transcript of stenographic notes if any, and other documents supporting the prosecutor's certification. Although the extent of the judge's personal examination depends on the circumstances of each case, to be sure, he cannot just rely on the bare certification alone but must go beyond it. This is because the warrant of arrest issues not on the strength of the certification standing alone but because of the records which sustain it.34 He should even call for the complainant and the witnesses to answer the court's probing questions when the circumstances warrant.35 An arrest without a probable cause is an unreasonable seizure of a person, and violates the privacy of persons which ought not to be intruded by the State.36 Measured against the constitutional mandate and established rulings, there was here a clear abdication of the judicial function and a clear indication that the judge blindly followed the certification of a city prosecutor as to the existence of probable cause for the issuance of a warrant of arrest with respect to all of the petitioners. The careless inclusion of Mr. Ben Lim, Jr., in the warrant of arrest gives flesh to the bone of contention of petitioners that the instant case is a matter of persecution rather than prosecution.37 On this ground, this Court may enjoin the criminal cases against petitioners. As a general rule, criminal prosecutions cannot be enjoined. However, there are recognized exceptions which, as summarized in Brocka v. Enrile,38 are: a. To afford adequate protection to the constitutional rights of the accused;39 b. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions;40 c. When there is a prejudicial question which is sub judice;41 d. When the acts of the officer are without or in excess of authority;42 e. Where the prosecution is under an invalid law, ordinance or regulation;43 f. When double jeopardy is clearly apparent;44 g. Where the court had no jurisdiction over the offense;45 h. Where it is a case of persecution rather than prosecution;46 i. Where the charges are manifestly false and motivated by the lust for vengeance;47 and j. When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied.48 The substantive aspect:

Petitioners were charged with violation of par. 2, Article 172 of the Revised Penal Code or Introduction of Falsified Document in a judicial proceeding. The elements of the offense are as follows: 1. That the offender knew that a document was falsified by another person. 2. That the false document is embraced in Article 171 or in any subdivisions Nos. 1 or 2 of Article 172. 3. That he introduced said document in evidence in any judicial proceeding.49 The falsity of the document and the defendants knowledge of its falsity are essential elements of the offense. The Office of the City Prosecutor filed the Informations against the petitioners on the basis of the Complaint-Affidavit of respondent Atty. Pea, attached to which were the documents contained in the Motion to Dismiss filed by the petitioners in Civil Case No. 754. Also included as attachments to the complaint were the Answers, PreTrial Brief, the alleged falsified documents, copy of the regular meetings of ISCI during the election of the Board of Directors and the list of ISCI Stockholders.50 Based on these documents and the complaint-affidavit of Atty. Pea, the City Prosecutor concluded that probable cause for the prosecution of the charges existed. On the strength of the same documents, the trial court issued the warrants of arrest. This Court, however, cannot find these documents sufficient to support the existence of probable cause. Probable cause is such set of facts and circumstances as would lead a reasonably discreet and prudent man to believe that the offense charged in the Information or any offense included therein has been committed by the person sought to be arrested. In determining probable cause, the average man weighs the facts and circumstances without restoring to the calibrations of the rules of evidence of which he has no technical knowledge. He relies on common sense. A finding of probable cause needs only to rest on evidence showing that, more likely than not, a crime has been committed and that it was committed by the accused. Probable cause demands more than suspicion; it requires less than evidence that would justify conviction.51 As enunciated in Baltazar v. People,52 the task of the presiding judge when the Information is filed with the court is first and foremost to determine the existence or non-existence of probable cause for the arrest of the accused. The purpose of the mandate of the judge to first determine probable cause for the arrest of the accused is to insulate from the very start those falsely charged with crimes from the tribulations, expenses and anxiety of a public trial.53 We do not see how it can be concluded that the documents mentioned by respondent in his complaint-affidavit were falsified. In his complaint, Atty. Pea stated that Herman Ponce, Julie Abad and Marilyn Ong, the alleged signatories of the questioned letters, did not actually affix their signatures therein; and that they were not actually officers or stockholders of ISCI.54 He further claimed that Enrique Montillas signature appearing in another memorandum addressed to respondent was forged.55 These averments are mere assertions which are insufficient to warrant the filing of the complaint or worse the issuance of warrants of arrest. These averments cannot be considered as proceeding from the personal knowledge of herein respondent who failed to, basically, allege that he was present at the time of the execution of the documents. Neither was there any mention in the complaint-affidavit that herein respondent was familiar with the signatures of the mentioned signatories to be able to conclude that they were forged. What Atty. Pea actually stated were but sweeping assertions that the signatories are mere dummies of ISCI and that they are not in fact officers, stockholders or representatives of the corporation. Again, there is no indication that the assertion was based on the personal knowledge of the affiant.

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The reason for the requirement that affidavits must be based on personal knowledge is to guard against hearsay evidence. A witness, therefore, may not testify as what he merely learned from others either because he was told or read or heard the same. Such testimony is considered hearsay and may not be received as proof of the truth of what he has learned.56 Hearsay is not limited to oral testimony or statements; the general rule that excludes hearsay as evidence applies to written, as well as oral statements.57 The requirement of personal knowledge should have been strictly applied considering that herein petitioners were not given the opportunity to rebut the complainants allegation through counter-affidavits. Quite noticeable is the fact that in the letter dated 19 December 1994 of Herman Ponce and Julie Abad, neither of the two made the representation that they were the president or secretary of ISCI. It was only Atty. Pea who asserted that the two made such representation. He alleged that Marilyn Ong was never a stockholder of ISCI but he did not present the stock and transfer book of ISCI. And, there was neither allegation nor proof that Marilyn Ong was not connected to ISCI in any other way.lawphil Moreover, even if Marilyn Ong was not a stockholder of ISCI, such would not prove that the documents she signed were falsified. The Court may not be compelled to pass upon the correctness of the exercise of the public prosecutors function without any showing of grave abuse of discretion or manifest error in his findings.58 Considering, however, that the prosecution and the court a quo committed manifest errors in their findings of probable cause, this Court therefore annuls their findings. Our pronouncement in Jimenez v. Jimenez59 as reiterated in Baltazar v. People is apropos: It is x x x imperative upon the fiscal or the judge as the case may be, to relieve the accused from the pain of going through a trial once it is ascertained that the evidence is insufficient to sustain a prima facie case or that no probable cause exists to form a sufficient belief as to the guilt of the accused. Although there is no general formula or fixed rule for the determination of probable cause since the same must be decided in the light of the conditions obtaining in given situations and its existence depends to a large degree upon the finding or opinion of the judge conducting the examination, such a finding should not disregard the facts before the judge nor run counter to the clear dictates of reasons. The judge or fiscal, therefore, should not go on with the prosecution in the hope that some credible evidence might later turn up during trial for this would be a flagrant violation of a basic right which the courts are created to uphold. It bears repeating that the judiciary lives up to its mission by visualizing and not denigrating constitutional rights. So it has been before. It should continue to be so. On the foregoing discussion, we find that the Court of Appeals erred in affirming the findings of the prosecutor as well as the court a quo as to the existence of probable cause. The criminal complaint against the petitioners should be dismissed. WHEREFORE, the petition is hereby GRANTED. The Decision of the Court of Appeals dated 20 June 2000, in CA-G.R. SP No. 49666, is REVERSED and SET ASIDE. The Temporary Restraining Order dated 2 August 2000 is hereby made permanent. Accordingly, the Municipal Trial Court in Cities, Negros Occidental, Bago City, is herebyDIRECTED to DISMISS Criminal Case Nos. 6683, 6684, 6685 and 6686. SO ORDERED.

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RULE 116
G.R. No. 171020 March 14, 2007

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. ALFREDO PANGILINAN y TRINIDAD, Accused-Appellant. DECISION CHICO-NAZARIO, J.: For review is the decision1 of the Court of Appeals in CA-G.R. CRH.C. No. 01414 dated 16 November 2005 which affirmed with modification the decision2 of the Regional Trial Court (RTC) of Dinalupihan, Bataan, Branch 5, in Criminal Cases Nos. DH 586-97 and 587-97, finding appellant Alfredo Trinidad Pangilinan guilty of two counts of rape. The Court of Appeals upheld the two death sentences imposed on appellant but modified the award of damages.1vvphi1.nt Two informations were filed charging appellant with raping AAA,3 his daughter. The informations read: Crim. Case No. DH-586-97 That in or about the month of September 1995 at Brgy. Pita, Dinalupihan, Bataan, Philippines, and within the jurisdiction of this Honorable Court, the said accused, thru force and intimidation, did then and there willfully, unlawfully and feloniously lie and succeed to have sexual intercourse with the offended party, AAA, an eleven (11) year old minor girl, who is his daughter against the will and consent of the latter, to her damage and prejudice.4 Crim. Case No. DH-587-97 That in or about the month of January 1997 at Brgy. Pita, Dinalupihan, Bataan, Philippines, and within the jurisdiction of this Honorable Court, the said accused, thru force and intimidation, did then and there willfully, unlawfully and feloniously lie and succeed to have sexual intercourse with the offended party, AAA, an eleven (11) year old minor girl, who is his daughter against the will and consent of the latter, to her damage and prejudice.5 On 5 May 1997, appellant, who was arrested and detained with no bail recommended, filed a petition for bail.6 In the hearings for the petition for bail, the prosecution presented the private complainant-victim, BBB, and Dr. Melinda Layug. From the evidence presented, the prosecutions version of what transpired, as summarized by the Office of the Solicitor General, is quoted by the Court of Appeals: BBB is the wife of appellant Alfredo Pangilinan. On May 9, 1985, BBB gave birth to AAA. Their family lived in Barangay Pita, Bayan-bayanan, Bataan. On September 9, 1995, around 9 oclock in the evening, AAA, her brother and two (2) sisters were asleep. Suddenly, she felt her father, herein appellant, approach their bed, remove her shorts and lay on top of her. She could not move. Appellant proceeded to remove the rest of her clothes. AAA struggled with all her strength even though her hands were pinned down by appellant above her head. AAA cried and shouted for help, but appellant quickly covered her mouth. When appellant attempted to insert his penis into her vagina, AAA unceasingly resisted until appellant finally stopped his attack and left her.

Around 11 oclock the following night, appellant once again crawled beside AAA while she was asleep beside her siblings. He removed all her clothes. When AAA woke up, she resisted appellant with all her strength and shouted for her grandmothers help, but he quickly covered her mouth, thus stifling her cries. Appellant, who was naked, mounted AAA and kissed her on different parts of her body. After a while, AAAs energy waned. AAA felt excruciating pain when appellant forcibly inserted his penis in her vagina and had sexual intercourse with her. The following morning, AAA was feverish. She saw blood oozing out of her vagina. Scared and confused, AAA confided to her eight (8) year-old brother CCC that appellant raped her the previous night. The following week, appellant repeated his dastardly act. While his children were playing in the creek behind their house, appellant pulled AAA, who was busy washing dishes, inside their house. Appellant brought her upstairs and pushed her down to the floor. As before, AAA tried to push appellant away and scream for help but he covered her mouth and easily overcame her resistance. Appellant removed AAAs clothes, mounted her and had sexual intercourse with her. After a few minutes, appellant stood up, put on his clothes and ordered AAA to take a bath.1awphi1.nt That same evening, appellant raped AAA again. After doing so, he threatened to kill her and her siblings should she report him to the authorities. During the month of September in 1995, appellant repeatedly raped AAA. AAA lost count of the number of times appellant had raped her. Fearing for her safety and that of her siblings, AAA kept her silence. For a while, AAA thought that appellant would no longer abuse her. She was wrong. Around 11 oclock in the evening of January 5, 1997, AAA felt her father grope for her while she was sleeping in their room. Like in the past, appellant removed her clothes. AAA resisted and struggled to free herself in vain. Appellant was too heavy. Appellant mounted her, inserted his penis into her vagina and had sexual intercourse with her. AAAs fear of her father intensified. His stares stopped her from confiding her ordeal to her mother, who had just arrived from Singapore. On March 16, 1997, BBB informed her children that she was leaving for Singapore again. DDD, AAAs grandmother, advised BBB not to leave her children. She told BBB that appellant had been molesting AAA. Shocked by the revelation, BBB confronted AAA. AAA tearfully confessed everything to her mother. BBB could only embrace her daughter tightly after hearing the sordid details. That same day, BBB confronted appellant. As expected, appellant denied any wrongdoing and hastily left their house. After the confrontation, BBB decided to leave appellant. On March 17, 1997, BBB brought AAA to the Dinalupihan District Hospital where she was examined by Dra. Melinda Layug. The examination revealed that the victim had a non-parous introitus with an old healed hymenal laceration at the 4 oclock position. Thus the instant case was filed.7 On 30 October 1997, the prosecution formally offered its evidence consisting of Exhibits "A" to "E," with sub-markings, and the testimonies of its witnesses, praying that they be admitted and considered in the resolution of the petition for bail, and that the same be considered as part of its evidence in chief.8 On 15 December 1997, appellant filed his comment and/or opposition to the prosecutions offer of evidence.9 In an Order dated 23 April 1998, the trial court, finding that the evidence against the accused is strong, denied appellants petition for bail.10 Thereafter, the defense presented its evidence with appellant as the sole witness. Appellant testified as follows:

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Appellant narrated that he left for Saudi Arabia on 27 May 1990 and returned on 22 September 1992. Upon his return, a lot of people informed him that his wife was having an affair. Complainant even told him he is not the father of his youngest daughter. As a result, he lost interest in going back to Saudi Arabia, merely stayed at home and did not look for work. He revealed that before he left for Saudi Arabia, his daughter AAA was sweet to him, that is, she hugged and kissed him. When he returned from Saudi Arabia, he said AAA became sweeter. In September 1995, his wife was in Singapore working as an overseas contract worker. He kept in touch with her through phone and letters. Once, while he was writing a letter to his wife, he said he became drunk and was not able to finish the letter. He felt dizzy, lay down and slept. He was awakened by the embraces and kisses of a person who turned out to be his daughter, AAA. He said there was malice in the way his daughter embraced and kissed him. He wondered why his daughter was kissing him the way she did. He embraced her but he did not allow anything to happen, she being his daughter. Appellant further testified that the same incident happened again, but this time, he was not drunk. He said AAA approached him wanting to have sex with him by pointing her finger on her palm. He advised her that sex is only done by married couples. He claimed he did not have any sexual relationship with her although she seduced him. He added he did not know of any reason why she is mad at him and why she filed the rape cases against him. On 9 June 1999, the trial court, having discovered that appellant had not yet been arraigned, scheduled his arraignment. On 17 June 1999, appellant, with the assistance of counsel de oficio, pleaded not guilty to the charges against him.11 Since the prosecution adopted all the evidence it adduced during the hearing for the petition for bail as part of its evidence-in-chief, which evidence the trial court admitted, the trial court deemed the cases submitted for decision. In its Decision dated 9 September 1999, the trial court convicted appellant of two counts of rape and imposed on him the capital punishment for each count. The dispositive portion of the decision reads: WHEREFORE, this Court finds the accused Alfredo Pangilinan Y Trinidad GUILTY beyond reasonable doubt of RAPE in both cases, Criminal Cases Nos. DH-586-97 and 587-97, and hereby sentences him to suffer the penalty of DEATH for each case and to indemnify the victim, AAA, with the sum of FIFTY THOUSAND (P50,000.00) PESOS.12 The trial court was convinced that private complainant was raped several times by her father during the month of September 1995, and once on 5 January 1997. It accorded credence to the testimony of private complainant who, at 12 years old testified in a spontaneous and direct manner. It found private complainant to be immature, innocent, nave, unfamiliar with sex and incapable of inventing or fabricating charges against her own father when the sexual assaults were committed in September 1995 and January 1997 when she was only 10 or 11 years old. The trial court brushed aside appellants defense of denial. It said it is simply unbelievable for a ten-year old girl to be as malicious as appellant described his daughter. It explained that the minor inconsistencies in private complainants testimony did not in any way affect her credibility. In conclusion, the trial court said: In this society, at a time when incestuous acts are not uncommon, and with the situation where the accused and offended party were in, when the wife of the accused was away working in Singapore, it is easy to believe that his loneliness urged him to sexually abuse his daughter. The offended party had no ill motive in filing the case against him. It was even the paternal grandmother who initially informed her mother that the accused

was raping his daughter while she was gone. For fear that the accused might do it again, the paternal grandmother was trying to prevail over the mother who was again planning to leave for abroad. The one responsible for bringing the matter to the attention of the mother who later reported to the police was no less tha(n) the mother of the accused. A mother would not allow herself to be used to make her son suffer, (e)specially if the charges are fabricated. She heard the cries/shouts from the offended party while the accused was sexually assaulting her. What she did was to tell the truth. Is accused blaming her own mother for simply telling the truth?13 Inasmuch as the penalty it imposed was the death penalty, the trial court forwarded the records of the case to the Supreme Court for automatic review pursuant to Section 10, Rule 122 of the 2000 Rules of Criminal Procedure.14However, pursuant to our ruling in People v. Mateo,15 the case was transferred to the Court of Appeals for appropriate action and disposition.16 On 16 November 2005, the Court of Appeals affirmed the death penalties imposed by the trial court but modified the amounts of damages awarded. The decretal portion of the decision reads: WHEREFORE, premises considered, the Decision dated September 9, 1999 of the Regional Trial Court, Branch V, Dinalupihan, Bataan in Criminal Case Nos. 586-97 and 1257 (sic), finding appellant Alfredo Pangilinan guilty beyond reasonable doubt of rape in both cases and sentencing him to suffer the supreme penalty of death is AFFIRMED with the modification that he is ordered to pay the victim AAA, P75,000.00 as civil indemnity andP50,000.00 as moral damages in each case. Appellant is further ordered to pay an additional amount ofP25,000.00 as exemplary damages, also in each case.17 On 27 January 2006, the Court of Appeals elevated the records of the case to the Supreme Court for automatic review.18 Thereafter, in our resolution dated 28 February 2006, the parties were required to submit supplemental briefs, if they so desired, within thirty (30) days from notice. The parties opted not to file supplemental brief on the ground they had fully argued their positions in their respective briefs. Appellant makes the following assignment of errors: I THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSEDAPPELLANT GUILTY OF TWO (2) COUNTS OF RAPE DESPITE THE FACT THAT HE WAS NOT PROPERLY ARRAIGNED, AND WAS NOT INFORMED OF THE NATURE AND CAUSE OF THE ACCUSATION AGAINST HIM BEFORE THE EVIDENCE FOR THE PROSECUTION WAS PRESENTED. II THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSEDAPPELLANT GUILTY BEYOND REASONABLE DOUBT DESPITE THE INSUFFICIENCY OF EVIDENCE FOR THE PROSECUTION. On the first assigned error, appellant assails his conviction because he was not properly arraigned. Since he was arraigned only after the case was submitted for decision, said irregularity, he argues, is a procedural error which is prejudicial to the appellant and is tantamount to denial of his constitutional right to be informed of the accusation against him. He claims that his subsequent arraignment did not cure the defect in the trial proceedings because at the time the petition for bail was heard, the trial court had not yet acquired jurisdiction over his person. Appellant is mistaken. When the hearings for his petition for bail were conducted, the trial court had already acquired jurisdiction over his person. Settled is the rule that jurisdiction over the person of the accused is acquired upon his arrest or voluntary appearance.19 In the case at bar, the trial court acquired jurisdiction over the person of the appellant when he was

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arrested on 19 March 1997. His arrest, not his arraignment, conferred on the trial court jurisdiction over his person. Arraignment is the formal mode and manner of implementing the constitutional right of an accused to be informed of the nature and cause of the accusation against him.20 The purpose of arraignment is, thus, to apprise the accused of the possible loss of freedom, even of his life, depending on the nature of the crime imputed to him, or at the very least to inform him of why the prosecuting arm of the State is mobilized against him.21 Admittedly, appellant was arraigned after the case was submitted for decision. The question is: Were appellants rights and interests prejudiced by the fact that he was arraigned only at this stage of the proceedings? We do not think so. Appellants belated arraignment did not prejudice him. This procedural defect was cured when his counsel participated in the trial without raising any objection that his client had yet to be arraigned. In fact, his counsel even cross-examined the prosecution witnesses. His counsels active participation in the hearings is a clear indication that he was fully aware of the charges against him; otherwise, his counsel would have objected and informed the court of this blunder. Moreover, no protest was made when appellant was subsequently arraigned. The parties did not question the procedure undertaken by the trial court. It is only now, after being convicted and sentenced to two death sentences, that appellant cries that his constitutional right has been violated. It is already too late to raise this procedural defect. This Court will not allow it. In People v. Cabale22 and People v. Atienza23 where the same issue was raised under similar circumstances, we held that while the arraignment of appellant was conducted after the cases had been submitted for decision, the error is non-prejudicial and has been fully cured. Since appellants rights and interests were not prejudiced by this lapse in procedure, it only follows that his constitutional right to be informed of the nature and cause of the accusation against him was not violated. With the procedural issue resolved, we now go to the substantial issues raised by appellant. Appellant tries to discredit private complainant by citing several circumstances that tend to create doubt as to his guilt, to wit: (1) the alleged molestations could not have been perpetrated within the confines of the small room in the "upstairs" portion of their house in the presence and within the hearing distance of the victims brother and two sisters in September 1995, and of her mother in January 1997; (2) the failure of private complainant to immediately report the sexual attacks to her maternal relatives and to her mother upon her arrival from abroad, and the delay of more than one (1) year from the alleged offense in September 1995 and more than two (2) months from the alleged felony in January 1997 before they were reported to the police or to any barangay official, before private complainant reported the incidents, render doubtful her charges of rape; (3) private complainants declaration in her sworn statement contradicted her testimony in court as to how she reported the incidents; (4) the alleged material inconsistencies in the testimony of private complainant; and (5) the result of the medical examination that there was no sign of violence on the person of private complainant is an indication that she was not a victim of rape. To determine the innocence or guilt of the accused in rape cases, the courts are guided by three well-entrenched principles: (1) an accusation of rape can be made with facility and while the accusation is difficult to prove, it is even more difficult for the accused, though innocent, to disprove; (2) considering that in the nature of things, only two persons are usually involved in the crime of rape, the testimony of the complainant should be scrutinized with great caution; and (3) the evidence for the prosecution must stand or fall on its own merits and cannot be allowed to draw strength from the weakness of the evidence for the defense.24

After examining the testimony of the private complainant, we find no compelling reason to deviate from the findings of the trial court as affirmed by the Court of Appeals. When it comes to credibility, the trial courts assessment deserves great weight, and is even conclusive and binding, if not tainted with arbitrariness or oversight of some fact or circumstance of weight and influence. The reason is obvious. Having the full opportunity to observe directly the witnesses deportment and manner of testifying, the trial court is in a better position than the appellate court to evaluate properly testimonial evidence.25 In the case at bar, there being overwhelming evidence showing that in September 1995 and in January 2000 appellant had carnal knowledge of private complainant by means of force and intimidation, we have no reason not to apply the rule and to apply the exception. In a clear and straightforward manner, private complainant recounted her ordeal as follows: Prosec. Tanciongco: Now, in this month of September 1995, while you were there at your house together with your brother and sisters, and with your father, do you recall of any unusual incident that happened to you? Witness: Yes, sir. Prosec. Tanciongco: What was that unusual incident that you remember that happened to you? a. I was molested by my father, sir. Atty. Danan: Ginamit? Court: What do you mean be "ginamit". a. I was raped, sir. Atty. Danan: Ginamit, ginahasa, rape. Prosec. Tanciongco: I was raped by my father. q. When you said you were raped by your father, you are referring to the accused in this case, Alfredo Pangilinan? Witness: Yes, sir. Prosec. Tanciongco: How were you raped by your father? a. It was night time, sir, my brother and sisters, sir, including me, sir, were already sleeping, I just felt that my father was removing my short. q. Where were you then at the time when you felt that your father was removing your short? a. I was in my bed, sir. q. You said a while ago that night time, what time more or less of the night? a. Between the hours of 9 and 10 oclock in the evening, sir. Prosec. Tanciongco: We would like to make on record that the witness is crying at the time she is testifying. Court: Take note of that. The Court has observed that the witness is crying. Prosec. Tanciongco:

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And where were your brother and sisters at that time that your father was molesting you? a. They were already sleeping, sir. q. Were were your brother and sisters sleeping at that time? a. Upstairs, sir. q. Where were you sleeping? a. Upstairs also, sir. Prosec. Tanciongco: How about your father, where was he sleeping? a. Also upstairs, sir. q. In relation to your father, where were you sleeping? In what part of the house were you sleeping? Court: Sama-sama ba kayo? a. We were in the same room, sir. Prosec. Tanciongco: Now, according to you your father was removing your shorts, was he able to remove your shorts? a. Yes, sir. q. What else did your father do aside from removing your shorts if he did anything? Witness: He raised my clothes, sir. Prosec. Tanciongco: How about you, what were you doing at that time that he raised your clothes and removing your shorts, what were you doing then? a. I was preventing him from doing so, but he was so strong I cannot control him. q. After the accused, your father raised your shirt, what happened next? a. I was fighting back sir, but both of my hands were pinned by him. q. You mean both of your hands were pinned by your father? a. Yes, sir. q. And then what happened to you? Witness: Sumigaw po ako. "Inang, inang tulungan po ninyo ako inaasawa po ako ng papa ko." (I was shouting. "Inang, inang tulungan po ninyo ako, inaasawa po ako ng Papa ko.") xxxx Witness: Hindi pa rin niya po ako tinitigilan, tapos po sumisikad na po ako, hindi pa rin po siya umaalis. Tapos po hinahalikan niya ang suso ko. Court: You translate it first. Court Interpreter: He still continued with what he was doing, I am kicking him, but he is (sic) continue to kiss my breast, sir. Prosec. Tanciongco: What else did the accused do if any, aside from kissing your breast? a. He followed my vagina, sir. Court: What do you mean by that?

Prosec. Tanciongco: What do you mean by that when you said, "he followed your vagina? Witness: He placed himself on top of me, sir. q. What happened when he was on top of you? a. Tapos po kumikinyud po siya sa akin. (He was pumping, sir.) q. How long was he pumping if you know? a. Less than five (5) minutes, sir. q. Now, after he was pumping, what happened next? a. Hindi niya makuha ang gusto niya. Umalis na po siya. (He was not able to succeed of what he wanted to do, so he left) Court: What do you mean? Prosec. Tanciongco? Why? Witness: Because I was fighting back, sir. q. Was he able to insert his penis into your vagina? a. He was forcing to insert it, sir. q. But he was not able to completely insert his penis? xxxx Court: Yes, that is the question. And the answer is, Yes, sir. Prosec. Tanciongco: Now, after that, what happened? a. The following evening, sir, the same thing was also repeated by my father. He repeated what he had done to me. q. When you said the same thing was repeated what do you mean? Witness: He repeated what he had done on the first night. Prosec. Tanciongco: Can you tell this Honorable Court, what was that same thing that was done to you again by your father? a. He removed my pants and panty and raised my clothes, sir. q. What were you doing then at the time your father was doing that? a. I was shouting and struggling, sir, because my father was very heavy. q. What time more or less of the night was that done by your father? a. Between ten (10) to eleven (11), sir. q. Where were your brother and sisters at that time while your father was doing that to you? a. There were sleeping during that time, sir. Prosec. Tanciongco: And your father was the only person awake at that time? a. Yes, sir. q. Now, after that he raised your skirt and removed your shorts and panty, what happened next? a. I was shouting sir, but he was covering my mouth, sir. q. Covering your mouth? a. Yes, sir.

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q. After that what happened next? a. He was kissing my breast, sir, then he placed himself on top of me, sir. Prosec. Tanciongco: How about you, when he placed himself on top of you, what were you doing? a. I was kicking my feet, sir. q. After he was on top of you, can you tell us what was he doing when he was on top of you? a. He was pumping, sir. q. While he was pumping, what happened? a. He was able to take my virginity, sir. Court: What do you mean by, he was able to take your virginity? a. He was able to completely penetrate his penis inside my vagina, sir. Prosec. Tanciongco: How about you when you feel that he was able to completely penetrate his penis inside your vagina, what is your reaction? How do you feel? Witness: Its painful, sir. Prosec. Tanciongco: What did you do? a. After his penetration a thick fluid came out from his penis.26 question: Now, while you were there at your house in the month of January 1997, by the way in the first week of January to be specific, Your Honor, do you recall of any incident that happened to you? Witness: Yes, sir. question: Will you please tell that before this Honorable Court? answer: I was raped by my father, sir. Prosec. Tanciongco: You are referring to the accused Alfredo Pangilinan, in this case? Witness: Yes, sir. question: Where were you raped by your father? answer: In our house, sir. question: In what portion of your house were you raped by your father? answer: Upstairs, sir. question: What time more or less were you raped by your father? answer: Between the hours of ten (10) to eleven (11) oclock in the evening, sir. Prosec. Tanciongco: In the evening or in the morning?

answer: In the evening, sir. question: Can you tell this Honorable Court, how were you [raped] by your father? answer: I was sleeping then and suddenly I felt my father was removing my clothes including my short and panty and he was raising my shirt, sir. And then, I felt he was on top of me. question: By the way, what was your father wearing at that time? answer: He was wearing shorts, sir. Prosec. Tanciongco: At that time that he was on top of you, was he wearing anything? answer: No more, sir. question: Now, at the time he was removing your panty, raised your shirt, what did you do? answer: I was fighting back, sir. I was kicking and pushing him, but he was so heavy so I cant push him, sir. question: When you stated that he was on top of you, what happened when he was on top of you? Witness: He was pumping, sir. Prosec. Tanciongco: While he was pumping, what were you doing at that time? answer: I was pushing him sir, but he was so heavy, I was not able to push him. Prosec. Tanciongco: I would like to make of record that the witness is crying while testifying. Court: Make that on record. Prosec. Tanciongco: Now, while he was pumping and you were trying to push him and failed to do so, what happened next? Witness: Something sticky came out from him, sir. And then, he stopped.27 This Court has held time and again that testimonies of rape victims who are young and immature deserve full credence, considering that no young woman, especially of tender age, would concoct a story of defloration, allow an examination of her private parts, and thereafter pervert herself by being subject to a public trial, if she was not motivated solely by the desire to obtain justice for the wrong committed against her.28 Youth and immaturity are generally badges of truth.29 It is highly improbable that a girl of tender years, one not yet exposed to the ways of the world, would impute to any man a crime so serious as rape if what she claims is not true.30 A rape victims testimony against her parent is entitled to great weight since Filipino children have a natural reverence and respect for their elders. These values are so deeply ingrained in Filipino families and it is unthinkable for a daughter to brazenly concoct a story of rape against her, if such were not true.31 Her credibility was bolstered

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beyond reproach by her spontaneous emotional breakdown during trial.32 In this case, considering that the victim was of tender age, has undergone a harrowing experience, and has exposed herself to the rigors of public trial, we find it very unlikely that she would impute so grave a crime to her father. Appellants contention that it is impossible for him to have consummated the rapes in the "upstairs room" without her brother and two sisters becoming aware thereof is untenable. It has been oft said that lust is no respecter of time or place. Neither the crampness of the room, nor the presence of other people therein, nor the high risk of being caught, has been held sufficient and effective obstacle to deter the commission of rape.33 There have been too many instances when rape was committed under circumstances as indiscreet and audacious as a room full of family members sleeping side by side.34 There is no rule that a woman can only be raped in seclusion.35 As testified to by the private complainant, her brother and two sisters were sleeping soundly and were not awakened by the commotion36 She further said that when the rape was perpetrated on 5 January 1997, her mother was in the sala downstairs sleeping while her father proceeded upstairs to commit the dastardly act on her.37 With her brother and sisters sleeping soundly, and her mother sleeping downstairs (during the rape committed on 5 January 1997), appellant had all the opportunity to carry out, which he did, his dissolute plan. Appellants argument that the delay of more than one (1) year from September 1995 and more than two (2) months from January 1997 before reporting the sexual attacks to her maternal relatives, mother or to the authorities is a clear indication that the claimed sexual assaults never happened does not persuade. The delay and initial reluctance of a rape victim to make public the assault on her virtue is neither unknown nor uncommon. Particularly in incestuous rape, this Court has consistently held that delay in reporting the offense is not indicative of a fabricated charge.38 It has been repeatedly held that the delay in reporting a rape incident due to death threats cannot be taken against the victim.39 The fact of delay does not necessarily lead to an acquittal. In several cases we have decided,40 the delay lasted for two years or more; nevertheless, the victims were found to be credible. The charge of rape is rendered doubtful only if the delay was unreasonable and unexplained. Private complainant was only 10 years old when she was sexually molested by her father in September 1995 and 11 years old when her father satisfied his bestial desire in January 1997. Private complainant explained to the satisfaction of the Court why she did not immediately report the matter to anybody. She disclosed that she is afraid of her father and that the latter threatened to kill her and her siblings if she would report the matter. Though she told her eight-year old brother of her ordeal, her brother likewise did not report to the authorities because he was also afraid of his father. 41 She added that she really wanted to tell her mother after she arrived from abroad but every time she went near her mother, her father kept staring at her. Exercising moral ascendancy and influence over his children, appellant clearly instilled fear in them, causing them not to go to the authorities. Her unwillingness to report which caused the delay does not diminish her credibility or weaken the charge of rape. Appellant further attacks private complainants credibility because the latters declaration in her sworn statement as to how she reported the incidents contradicted her testimony in court. In her sworn statement,42 it was stated that she reported the rapes to her mother in January 1997, but in her testimony in court, she said that she reported the matter on 16 March 1997. Settled is the rule that affidavits, being taken ex parte, are almost always incomplete and often inaccurate for lack of searching inquiries by the investigating officer or due to partial suggestions, and are thus generally considered to be inferior to the testimony

given in open court.43 In the instant case, the said contradiction between private complainants sworn statement and her statement in court was fully explained by her. She made it clear in court that this portion of her sworn statement was wrong and what was correct was her declaration in court. She explained in court that she informed the investigator about the mistake in her sworn statement but the latter told her to just sign it and that he will change this portion. However, the investigator never corrected the same.44Having fully explained the discrepancy, her credibility has not been impaired. Appellant ascribes to private complainant several alleged material inconsistencies that affect the veracity of private complainants testimony. These are: (1) whether the rapes were committed inside or outside the room in the "upstairs" portion of their house; (2) whether private complainant was able to shout or utter the words "Inang, inang tulungan po ninyo ako inaasawa po ako ng papa ko"; (3) whether the sticky fluid coming out of her fathers penis was ejected inside or outside her vagina; and (4) whether it was private complainant or her grandmother who told Dr. Melinda Layug that she was abused. These inconsistencies refer to minor and collateral matters. Inconsistencies in the testimony of the witness with regard to minor or collateral matters do not diminish the value of his testimony in terms of truthfulness or weight. The gravamen of the felony is the carnal knowledge by the appellant of the private complainant under any of the circumstances provided in Article 335 of the Revised Penal Code, as amended. Where the inconsistency is not an essential element of the crime, such inconsistency is insignificant and cannot have any bearing on the essential fact testified to.45 In fact, these inconsistencies bolster the credibility of the witnesss testimony as they erase the suspicion of the witness having been coached or rehearsed.46 It is when the testimony appears totally flawless that a court might have some misgiving on its veracity. This is especially true in rape cases where victims are not expected to have a total recall of the incident.47 Appellant tries to utilize the first and second inconsistencies in order to show that the rapes could not have happened in a room in the presence and within hearing distance of other people. As discussed above, a rape can be committed inside a house where there are other occupants, and even in the same room where there are other members of the family who are sleeping. More importantly, what is clear from the evidence adduced is the fact that, regardless of whether private complainant was able to shout or not, appellant was shown to have carnal knowledge of private complainant in the room located in the "upstairs" portion of their house. On the third inconsistency, appellant makes a big fuss as to where appellants sperm was ejected. Whether the sperm was ejected inside or outside the vagina of private complainant is of no moment. It is clear from the testimony of private complainant that appellant already consummated the crime of rape when the latter tried to insert his sexual organ into her vagina during the first time that he molested her because his penis already touched her hymen.48 It is a settled rule that for rape to be consummated, the hymen of the private complainant need not be penetrated or ruptured. It is enough that the penis reaches the pudendum, or at the very least, the labia. The briefest of contacts under circumstances of force, intimidation or unconsciousness, even without laceration of the hymen, is deemed to be rape in our jurisprudence. The mere introduction of the penis into the aperture of the female organ, thereby touching the labia of the pudendum, already consummates the crime of rape.49 As to the last inconsistency regarding the person who informed Dr. Melinda Layug that private complainant had been abused, we find this to be very trivial as to affect her credibility. To support his claim that private complainant was not a victim of rape, appellant uses the answer elicited from Dr. Layug that she had not observed any physical violence or force perpetrated on the body of private complainant, specifically on the area surrounding the private organ.

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This is not sufficient to exonerate him. The trial court addressed this issue in this wise: As to the absence of violence, accused pointed out that the physical examination revealed that there were no signs of violence. This is understandable since the offense took place in September 1995 and January 5, 1997 while the physical examination was conducted on March 17, 1997 or almost two (2) years and two (2) months, respectively. Whatever signs of physical violence or wounds/injuries there may be at the time of the commission of the offense the same had healed in time.50 Though there were no longer physical manifestations of violence outside the sexual organ of private complainant, there was, however, an indication that the vagina had been injured.51 The medical certificate issued52 by Dr. Layug contains, among other things, a finding that reads "Internal Examination revealed nonparous introitus with old healed hymenal laceration at 4 oclock position." The finding that the victim had a healed laceration at 4 oclock position on her hymen substantiates her claim that appellant had sexual intercourse with her. Hymenal lacerations, whether healed or fresh, are the best evidence of forcible defloration.53] And when the consistent and forthright testimony of a rape victim is consistent with medical findings, there is sufficient basis to warrant a conclusion that the essential requisites of carnal knowledge have been established.54] Against a deluge of damning evidence from the prosecution, appellant merely raises the defense of denial. He denies sexually molesting her daughter. He even claimed that private complainant seduced him and wanted to have sex with him, but he refused. His defense, unsubstantiated and uncorroborated, must certainly fail. Mere denial, if unsubstantiated by clear and convincing evidence, has no weight in law and cannot be given greater evidentiary value than the positive testimony of a rape victim.55 Denial is intrinsically weak, being a negative and selfserving assertion.56 The trial court had this to say: It is unbelievable for a ten (10)-year old girl to be as malicious as accused described the offended party. At age ten (10), girls still play games that children normally play, but definitely not sex. If indeed accused had good relationship with the offended party, he would not destroy the reputation or character of his daughter just to save himself from punishment of his immoral and bestial act. Following his line of defense, offended party would not file charges against the accused had the latter treated her well, respected her as a child and cared for her like a precious jewel. Had the offended party enjoyed this treatment and did not suffer in his hands, the former would not have any reason nor have a heart to file charges against the (latter). x x x.57 Moreover, appellants statement that he does not know of any reason why his daughter filed the rape charges58further bolstered the credibility of private complainant. When there is no evidence to show any improper motive on the part of the rape victim to testify falsely against the accused or to falsely implicate him in the commission of a crime, the logical conclusion is that the testimony is worthy of full faith and credence.59 Since the felonies were committed in September 1995 and in January 1997, the provisions of Republic Act No. 7659,60 which was the law in effect on the day when the rapes were committed, shall apply. The gravamen of the offense of rape is sexual congress with a woman by force and without consent. If the woman is under 12 years of age, proof of force is not an element of statutory rape, but the absence of a free consent is presumed. Conviction will therefore lie, provided sexual intercourse is proven. But if the woman is 12 years of age or over at the time she was violated, sexual intercourse must be proven and also that it was done through force, violence, intimidation or threat.61

As provided for in the Revised Penal Code,62 sexual intercourse with a girl below 12 years old is statutory rape. The two elements of statutory rape are: (1) that the accused had carnal knowledge of a woman; and (2) that the woman is below 12 years of age. Sexual congress with a girl under 12 years old is always rape.63 In the present case, appellant was charged with two counts of statutory rape. The first element was proved by the testimony of the victim herself, while the second element was established by appellants admission and the presentation of private complainants Certificate of Live Birth64 showing that she was born on 9 May 1985. When the crimes were committed in September 1995 and in January 1997, private complainant was not yet 12 years old. For one to be convicted of qualified rape, at least one of the attendant circumstances mentioned in Article 33565must be alleged in the information and duly proved during the trial.66 In the instant case, since the attendant circumstances of the victims minority and her relationship with the offender have been properly alleged in the informations and established during trial, the trial courts imposition of the penalty of death on appellant is justified. With the effectivity,67 however, of Republic Act No. 9346 entitled, "An Act Prohibiting the Imposition of Death Penalty in the Philippines," the imposition of the supreme penalty of death has been prohibited. Pursuant to Section 2 thereof, the penalty to be meted on appellant shall be reclusion perpetua. Said section reads: SECTION 2. In lieu of the death penalty, the following shall be imposed: (a) the penalty of reclusion perpetua, when the law violated makes use of the nomenclature of the penalties of the Revised Penal Code; or (b) the penalty of life imprisonment, when the law violated does not make use of the nomenclature of the penalties of the Revised Penal Code. Notwithstanding the reduction of the penalty imposed on appellant, he is not eligible for parole following Section 3 of said law which provides: SECTION 3. Persons convicted of offenses punished with reclusion perpetua, or whose sentences will be reduced to reclusion perpetua, by reason of this Act, shall not be eligible for parole under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended. As regards the award of damages, the same must be modified. The P50,000.00 awarded by the trial court as civil indemnity was correctly increased by the Court of Appeals to P75,000.00 which is the amount awarded if the crime is qualified by circumstances which warrant the imposition of the death penalty.68 With respect to the award of moral damages, the P50,000.00 awarded by the Court of Appeals should be increased to P75,000.00 without need of pleading or proof of basis thereof.69 In addition, the amount of P25,000.00 awarded by the Court of Appeals as exemplary damages was proper due to the presence of the qualifying circumstances of minority and relationship.70 WHEREFORE, all the foregoing considered, the decision of the Court of Appeals dated 16 November 2005 finding appellant Alfredo Pangilinan y Trinidad guilty beyond reasonable doubt of two counts of qualified rape is AFFIRMED with the MODIFICATION that each penalty of death imposed on appellant is reduced to reclusion perpetua without eligibility for parole pursuant to Republic Act No. 9346. He is also ordered to pay private complainant AAA, for each count of rape, the amount of P75,000.00 as civil indemnity, P75,000.00 as moral damages and P25,000.00 as exemplary damages. Costs against appellant. SO ORDERED.

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G.R. No. 174056

February 27, 2007

THE PEOPLE OF THE PHILIPPINES, Appellee vs. ROGELIO GUMIMBA y MORADANTE alias ROWING and RONTE ABABO (acquitted), Appellants, DECISION TINGA, J.: For review before the Court is the Decision1 of the Court of Appeals (CA) dated 26 April 2006, affirming with modification the Decision2 of the Regional Trial Court (RTC), Ozamiz City, Branch 15,3 dated 10 March 1999, finding appellant guilty beyond reasonable doubt of the crime of rape with homicide. In an Information4 dated 17 April 1997, appellant Rogelio Gumimba y Morandante alias Rowing and co-accused Ronie Abapo (Abapo) were charged before the RTC, with the crime of rape with homicide of an eight (8)-year old child, thus: That on or about April 8, 1997, in Barangay Pantaon, Ozamiz City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating with each other, did then and there willfully, unlawfully and feloniously and by means of force, violence and intimidation, to wit: by then and there pinning down one [AAA],5 a minor, 8 years of age, and succeeded in having carnal knowledge with her and as a result thereof she suffered 6-12 o'clock lacerated wounds of [sic] the vagina as well as fatal stab wounds on the different parts of her body and which were the direct cause of her death thereafter. CONTRARY to Article 335 in relation with Article 249 of the Revised Penal Code. On 16 May 1997, appellant and Abapo both entered a plea of not guilty on arraignment.6 Thereafter, the case proceeded to trial with the prosecution first presenting two witnesses: (1) Emelio Magallano, President of Purok I, Barangay Pantaon, Ozamiz City; and (2) Sofronio Araas, a Civilian Volunteer Officer (CVO) of the same barangay. Magallano and Araas testified that at around 9 o'clock in the evening of 10 April 1997, appellant went to Magallano's home and confessed to him that he alone and by himself raped and killed his (appellant's) niece, AAA, in Purok Pantaon, Ozamiz City. Subsequently, Magallano accompanied appellant to the residence of Araas where he reiterated his confession. That same night, Magallano, Araas, appellant and family members of the witnesses proceeded to the home of Barangay Captain Santiago Acapulco, Jr. who conducted an investigation. Appellant repeated his narration and confessed to the barangay captain that he had raped and killed the victim, and that he was alone when he committed the crime. As a result thereof, Acapulco, Jr., in the company of the others, brought appellant to the Ozamiz City Hall and turned him over to the police authorities.7 However, appellant manifested though counsel (before the court) at the following hearing on 22 May 1997 that he would like to change his earlier plea of not guilty to a plea of guilty.8 The RTC ordered appellant's re-arraignment and the latter accordingly entered a plea of guilty.9 The court conducted an inquiry to ascertain the voluntariness of appellant's plea and his full comprehension of the consequences thereof. Prosecution was likewise charged to establish the guilt and degree of culpability of appellant.10 In accordance with the court's directive, the prosecution continued with the presentation of its evidence in chief. It presented Dr. Pedrita Rosauro, the physician who conducted the autopsy on the body of the victim, and who testified that the victim was raped before she was killed. The examination by Dr. Rosauro revealed that AAA sustained four (4) stab wounds in front, two (2) stab wounds in her back and one (1) lacerated

wound each on her neck and on her middle upper extremity. Furthermore, she found 6 and 12 o'clock laceration wounds on the external genital organ of the victim.11 Before resting its case, the prosecution presented appellant as witness against his co-accused Abapo. Appellant testified that he and Abapo raped and killed the victim. He likewise explained that he had previously confessed to Magallano, Araas and Acapulco that he alone committed the crime in the hope that the parents of the victim, who were relatives of his, might take pity on him.12 In his defense, Abapo testified that at the time the crime was allegedly committed, he was with his mother and three (3) siblings at the Labo River, about two (2) kilometers away from Barangay Pantaon, washing their clothes.13 In support thereof, Abapo presented his mother Virgencita Abapo, Elisa Carreon and Raymundo Orot, all of whom corroborated his alibi.14 The defense also presented witness Araas who reiterated his earlier testimony that appellant confessed to him that he alone was responsible for the raping and killing of the victim.15Finally, Eugenio Bucog, a teacher at Capucao Elementary School, was presented to demonstrate Abapo's good character when he was his student.16 On 10 March 1999, the RTC promulgated its Decision. On the basis of appellant's plea of guilty, the RTC found him guilty beyond reasonable doubt of the crime as charged. Appellant was sentenced to suffer the death penalty and ordered to indemnify the heirs of the victim in the amounts of P50,000.00 as indemnity for the life of the victim,P30,000.00 as moral damages, and costs.17 On the other hand, the trial court acquitted Abapo on the ground that his guilt was not established beyond reasonable doubt. Except for the lone testimony of appellant, the RTC held that no other evidence was adduced to prove the participation of Abapo. Moreover, the court a quo found that appellant's testimony implicating Abapo was not worthy of credence coming as it did from a polluted source.18 With the death penalty imposed on appellant, the case was elevated to this Court on automatic review. Pursuant to this Court's decision in People v. Mateo,19 the case was transferred to the Court of Appeals. On 26 April 2006, the appellate court rendered its Decision20 affirming the appellant's conviction, but with modification as to damages awarded to the heirs of the victim. The dispositive portion of the said Decision states: "WHEREFORE, premises considered, the instant Appeal is DISMISSED for lack of merit. The Decision dated March 10, 1999 of the Regional Trial Court, Branch 15, of Ozami[s] City, is hereby AFFIRMED with the MODIFICATION that the amount of civil indemnity ex delicto is hereby increased from P50,000.00 to P100,000.00, including the award of moral damages from P30,000.00 to P50,000.00. Conformably with the ruling of the Supreme Court in People of the Philippines v. Efren Mateo, We refrain from entering judgment, and the Division Clerk of Court is hereby directed to elevate the entire records of the case to the Honorable Supreme Court for its final disposition. SO ORDERED."21 On 3 October 2006, the Court issued an order requiring the parties to simultaneously submit supplemental briefs within thirty (30) days from notice should they so desire.22 On 21 November and 24 November 2006, appellant and appellee filed similar manifestations that they are adopting the briefs they filed before the Court of Appeals.23

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Thus, appellant raises the following errors in this petition for review: I THE COURT A QUO ERRED IN CONVICTING THE ACCUSEDAPPELLANT ON THE BASIS OF HIS IMPROVIDENT PLEA OF GUILTY AND HIS ALLEGED SEPARATE CONFESSIONS TO ONE EM[I]LIO MAGALLANO, AND ONE SOFRONIO ARAAS, THE LATTER BEING HEARSAY AND WITHOUT PROBATIVE VALUE WHATSOEVER. II THE COURT A QUO LIKEWISE ERRED IN CONVICTING THE ACCUSED-APPELLANT OF RAPE WITH HOMICIDE DESPITE THE FAILURE OF THE PROSECUTION TO ESTABLISH THE LATTER'S GUILT BEYOND REASONABLE DOUBT, AND THE ACCUSEDAPPELLANT OWNING UP ONLY TO THE CRIME OF SIMPLE RAPE.24 The ultimate issue is whether appellant's guilt was established by evidence beyond reasonable doubt. It must be conceded at the outset that the trial court failed in its duty to conduct the prescribed "searching inquiry" into the voluntariness of appellant's plea of guilty and full comprehension thereof. Consequently, appellant's plea of guilty was made improvidently and it is rendered inefficacious.25 Nevertheless, the Court must rule against appellant as the evidence on record is ample to sustain the judgment of conviction independent from his plea of guilty. The crime of rape with homicide is punishable with death under Article 335 of the Revised Penal Code, as amended by Republic Act (R.A.) No. 7659, which provides: Article 335. When and how rape is committed. - Rape is committed by having carnal knowledge of a woman under any of the following circumstances: 1. By using force or intimidation; 2. When the woman is deprived of reason or otherwise unconscious; and 3. When the woman is under twelve years of age or is demented. The crime of rape is punishable by reclusion perpetua. xxxx When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death. xxxx The Information, to which appellant pleaded guilty, alleged that homicide was committed by reason or on the occasion of the rape of AAA. This, if proven, would warrant the penalty of death at that time.26 Accordingly, a plea of guilty to such charges calls into play the provisions of Section 3, Rule 116 of the 2000 Revised Rules of Criminal Procedure, thus Sec. 3. Plea of guilty to capital offense; reception of evidence. When the accused pleads guilty to a capital offense, the court shall conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his plea and shall require the prosecution to prove his guilt and the precise degree of culpability. The accused may present evidence in his behalf.

Based on this rule, when a plea of guilty to a capital offense is entered, there are three (3) conditions that the trial court must observe to obviate an improvident plea of guilty by the accused: (1) it must conduct a searching inquiry into the voluntariness and full comprehension by the accused of the consequences of his plea; (2) it must require the prosecution to present evidence to prove the guilt of the accused and the precise degree of his culpability; and (3) it must ask the accused whether he desires to present evidence on his behalf, and allow him to do so if he so desires. 27 There is no hard and fast rule as to how a judge may conduct a "searching inquiry," or as to the number and character of questions he may ask the accused, or as to the earnestness with which he may conduct it, since each case must be measured according to its individual merit.28 However, the logic behind the rule is that courts must proceed with caution where the imposable penalty is death for the reason that the execution of such a sentence is irrevocable and experience has shown that innocent persons have at times pleaded guilty.29 An improvident plea of guilty on the part of the accused when capital crimes are involved should be avoided since he might be admitting his guilt before the court and thus forfeit his life and liberty without having fully comprehended the meaning and import and consequences of his plea.30 Moreover, the requirement of taking further evidence would aid this Court on appellate review in determining the propriety or impropriety of the plea.31 In the instant case, when the accused entered a plea of guilty at his re-arraignment, it is evident that the RTC did not strictly observe the requirements under Section 3, Rule 116 above. A mere warning that the accused faces the supreme penalty of death is insufficient.32 Such procedure falls short of the exacting guidelines in the conduct of a "searching inquiry," as follows: (1) Ascertain from the accused himself (a) how he was brought into the custody of the law; (b) whether he had the assistance of a competent counsel during the custodial and preliminary investigations; and (c) under what conditions he was detained and interrogated during the investigations. This is intended to rule out the possibility that the accused has been coerced or placed under a state of duress either by actual threats of physical harm coming from malevolent quarters or simply because of the judge's intimidating robes. (2) Ask the defense counsel a series of questions as to whether he had conferred with, and completely explained to, the accused the meaning and consequences of a plea of guilty. (3) Elicit information about the personality profile of the accused, such as his age, socio-economic status, and educational background, which may serve as a trustworthy index of his capacity to give a free and informed plea of guilty. (4) Inform the accused of the exact length of imprisonment or nature of the penalty under the law and the certainty that he will serve such sentence. For not infrequently, an accused pleads guilty in the hope of a lenient treatment or upon bad advice or because of promises of the authorities or parties of a lighter penalty should he admit guilt or express remorse. It is the duty of the judge to ensure that the accused does not labor under these mistaken impressions because a plea of guilty carries with it not only the admission of authorship of the crime proper but also of the aggravating circumstances attending it, that increase punishment. (5) Inquire if the accused knows the crime with which he is charged and to fully explain to him the elements of the crime which is the basis of his indictment. Failure of

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the court to do so would constitute a violation of his fundamental right to be informed of the precise nature of the accusation against him and a denial of his right to due process. (6) All questions posed to the accused should be in a language known and understood by the latter. (7) The trial judge must satisfy himself that the accused, in pleading guilty, is truly guilty. The accused must be required to narrate the tragedy or reenact the crime or furnish its missing details.33 An examination of the records of the proceedings will illustrate the court's treatment of appellant's change of plea,viz: Atty. Cagaanan: Considering the voluntary plea of guilty of the accused[,] we pray that the mitigating circumstance to prove his plea of guilty be appreciated in favor of the accused. We likewise pray that another mitigating [circumstance] of voluntary surrender be appreciated in his favor. Pros. Edmilao: Considering the gravity of the crime, may we ask your Honor that we will present evidence inorder [sic] that it will give also justice to the victim. Court: Present evidence to prove gravity of the crime. Pros. Edmilao: Our first witness is the ABC president. Court: What matter will Santiago Acapulco testify? Court: Was there cruelty done by the accused in picking [sic] the life of the minor girl? xxxx Pros. Edmilao: May we ask that we will present her [sic] in the next hearing.1awphi1.net Court: The court will call the accused to the witness stand. xxxx (The witness after having administered an oath, took the witness stand and declared that he is: ROGELIO GUMIMBA 20 years old Single Occupation- duck raising Resident of Capucao, Ozamiz City) xxxx Court: The court will allow the prosecutor or the defense to profound [sic] question [sic] on the matter and the accused understand [sic] and fully comprehend [sic] the consequence of his plea of guilty. xxxx Pros. Edmilao:

Q Mr. Rogelio Gumimba[,] are you the same accused in this case in Crim. Case No. RTC 2074? A Yes, sir. Q Now the victim in this case is [AAA], a minor, 8 years of age[.] Since you have admitted this in what particular place wherein [sic] you raped and slew [AAA]? A Purok Pantaon, Ozamiz City. Q How far is that place wherein you slew and raped [AAA] from her house? A Very near, sir. Q Can you estimate how many meters? A One meter, sir. Q Was it committed inside or outside the house? A Outside. Q In what particular place of the house[:] in front, at the side or at the back? A At the back of the house of the victim. Q Will you please tell the court, how did you do it, will you please narrate. A I raped her by tying her hand, then I killed her. Q Before you raped and killed [AAA], where did you get her? A I saw her roaming around. Q In committing the crime, were you alone? Atty. Anonat: Objection Court: Sustained. Pros. Edmilao: You stated that you pushed her and even tied her hand and raped her and stabbed her, were you the one alone [sic]? Atty. Anonat: Objection Court: Sustained. Court: Q When you said you raped her, you mean you inserted your penis inside the vagina of [AAA]? A No, Your Honor. Q When you said you raped her, what do you mean? A I was drank [sic] at that time. Q And you said you tied [AAA], what did you use in tying her? A Banana skin. Q How did you tie [AAA]? A I tied both her hands. Q The hands of [AAA], you placed at the back? A In front of her. Q After tying her [,] what did you do to her? A After that I went home. Q You did not stab [AAA]? A I stabbed her, Your Honor. Q What weapon did you use in stabbing her? A A long bolo. Q You mean you were bringing [a] long bolo at that time?

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A Yes, Your Honor. Q After stabbing her, what did you do to her? A No more, Your Honor. Q How many times did you stab [AAA]? A I could not count how many stab wounds I inflicted to [sic] her. Q But you will agree that you have stabbed her many times? A I could no longer count how many stab wounds, Your Honor. Q When you were arraigned, you pleaded guilty, do you understand the consequence of your pleading guilty? A I do not know Your Honor [,] the consequence. Q You pleaded guilty to the offense of rape with homicide, did you understand? A Yes, Your Honor, I understand. Q That by your pleading guilty to the offense you will be sentenced to die? A Yes, I am aware. Q Your act of pleading guilty to the offense charged is your voluntary will? A Yes, I admitted that crime, but we were two. Q You mean to say there were two of you who raped [AAA]? A Yes, your Honor. Q Before raping her, was [AAA] wearing clothes? A Yes, Your Honor. Q Was [AAA] wearing [a] panty before you raped her? A Yes, Your Honor. Q Did you remove her panty before raping her? A No, You Honor, I did not. Q How did you rape [AAA]? A I have sexed [sic] with her. Q What do you mean by I "remedio" her, you mean you have inserted your penis into the vagina of [AAA]? A No, Your Honor, my penis did not penetrate into the vagina of [AAA]. Q Why your penis did [sic] not able to penetrate into the vagina of [AAA]? A The vagina of [AAA] is very small. Q Can you tell this Court how tall was [AAA]? A (The witness demonstrated that from the floor about 3 feet high was the height of [AAA]) Q If you are standing and [AAA] is also standing side by side with you, up to what part of your body is the height of [AAA]? A Up to my waist line. Atty. Cagaanan: Q When you pleaded guilty [,] was it in your own free will? A Yes, sir. Q Were you not forced or coerced by anybody with this crime? A No, sir.34 The inefficacious plea of guilty notwithstanding, the totality of the evidence for the prosecution undeniably establishes appellant's guilt beyond reasonable doubt of the crime of rape with homicide. Apart from his testimony upon changing his plea to a plea of guilty, appellant gave a subsequent testimony when he was presented by the prosecution as a witness against his coaccused. This second testimony which constitutes another judicial confession, replete with details and made consciously as

it was, cured the deficiencies which made his earlier plea of guilty improvident. The latter testimony left no room for doubt as to the voluntariness and comprehension on appellant's part of his change of plea, as well as completed his narration of how he raped and killed the victim. The pertinent portions of the second testimony follow, thus: Pros. Jose A. Edmilao: Q While you were gathering firewoods [sic] and Ronie Abapo was pasturing carabao, do you recall of any untoward incident that happened? A We raped and killed. Q Whom did you rape and kill? A [AAA]. Q And when you said [AAA], who was then your companion, because you said we? A Ronie Abapo. xxxx Q While she [AAA] was there gathering oranges, you mean to say you were close to the place [AAA] was? A I, together with Ronie Abapo go [sic] near to the place [AAA] was. Q When you were already near at [sic] the place where [AAA] was climbing, was she still up there at the orange tree? A She already came down. Q When she came down, what followed next then? A We held her hands. Q Who held her hands? A The two of us. Q You mean one hand was held by you and the other hand was held by Ronie Abapo? Atty. Anonat: Objection, leading. Pros. Edmilao: Q You said that you were holding the hands of [AAA], how did you do it? A We held her hands and tied it [sic] with banana skin. Q Who tied the hands of [AAA]? A Both of us. Q After tying the hands of [AAA][,] with banana stalk where did you place her? A We brought her to the [sic] grassy place. Q What happened then after [AAA] was brought to the [sic] grassy place? A We killed her. Q Before you killed her, what did you do to her? A We raped her. Q Who raped her first? A It was Ronie Abapo, then followed by me. Q How did you rape her? A We undress[sed] her. Q What was she wearing at that time? A She wore a dress. Q What about Ronie Abapo? A He did not undress. Q How did you let your penis out?

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A I removed my t-shirt. Q How about your pants? A I also removed my pants. Q What was then the reaction of [AAA], when you first tied her hand? A She did not cry, because we covered her mouth. Q Who covered her mouth? You or Ronie? A Ronie. Q What [sic] you said that it was Ronie Abapo, what did you do then when he was on [sic] the act of raping her? A I was just near to [sic] them. Q The after Ronie Abapo, what did you do then? A He told me that you will be the next [sic]. Q So when he told you that you will be the next [sic], what did you do next? A I also raped her. Q Again, when you said you raped her, you inserted your penis into the vagina of [AAA]? A It did not enter [sic]. Q Why? A It did not penetrate, because I was afraid. Q But your penis erected [sic]? A No, Your Honor. Q You said that Ronie was the first to have sexual intercourse, was he able to insert his penis into the vagina of [AAA]? A No, sir, because he was watching, if there was person [sic] around. Q Were you able to see the penis of Ronie inserted into the vagina of [AAA]? A I have [sic] not seen. xxxx Q You said that you and Ronie Abapo raped [AAA], what do you mean or what do you understand by the word rape? A We undressed her. Q Why did you undress her? A We undressed her, because we want [sic] to do something to her. Q What is that something that you want [sic] top do to [AAA]? A We raped her. Q When you said we raped her, you mean, you inserted your penis inside the vagina of [AAA]? A No, sir. Q But you tried to insert your penis inside the vagina? A Yes, sir. Q And your penis touched the vagina of [AAA]? A Yes, sir. Q Only your penis was not able to enter the vagina because [AAA] is [sic] still a small girl? A Yes, sir. Q After trying to insert your penis after Ronie Abapo, what did you do to [AAA]? A I walked away, but he called me. Q Who called you? A Ronie Abapo. Q Why did he call you?

A He asked me, what to do with [AAA]. It might be that she will tell us to somebody [sic], we will kill her. Q What did you do? A I did not answer. Q And what was your answer? A Because he keep [sic] on persuading me. Q How did he persuade you? A He persuaded me because we might be caught. Q And what did he tell you to do? A That we will kill [AAA]. Q How did he tell you that? A Rowing[,] we will kill her. Q And what was your reply? A I refused. Q When you refused, what did he do then? A He keep [sic] on persuading me. Q And what did eventually came [sic] to your mind? A Evil came to my mind, so we killed her. Q How did you kill her? A We stabbed her. Q What weapon you used [sic] when you killed her? A A long bolo. Q Whose [sic] the owner of that long bolo? A Mine, but Ronie Abapo used it. Q Who was the first one to use it? A Ronie Abapo. Q But the bolo was in your hands, how did [sic] he be able to use it? A I put it on the ground and he got it. Q You said that he made the first struck [sic]. Where was [AAA] first hit? A In the stomach. Q How many times did Ronie Abapo strike her with the use of that bolo? A I cannot remember anymore. Q Aside from the stomach, where were the other pants [sic] of [AAA] also hit? A At the left side. Q How about you, did you made [sic] the following stab to [AAA]? A I was hesitant to stab, but eventually I stabbed her. Q How many times? A Only one. Q What part of her body was she hit? A At the stomach. Q Do you mean to say that you also got the bolo from the hands of Ronie Abapo and also stabbed [AAA]? A Yes, sir. Q Why was [AAA] not killed, when Ronie Abapo made stabbed [sic] on her? A He [sic] was already dead. Q Why did you stab her, when she was already dead? A I just stabbed her, because I thought that she was still alive. xxxx

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Q Do you know where is [sic] the bolo used in stabbing [AAA]? A No, sir. Q After killing [AAA], where did you place the bolo? A In our place. Q It [sic] it there in your home? A Already taken. Q Who got? A The barangay captain. Q Now, did you tell to [sic] anybody regarding the raping and killing of [AAA] aside from here in Court? A I have already told. Q Who was the person whom you talked about [sic]? A My neighbor. Q Whose [sic] the name of that neighbor? A Emilio Magallano. Q After Emilio Magallano[,] to whom did you report? A Sofronio Aranas. Q Who else? A Rico Magallano. Q Who else? A The wife of Panyong. Q In the reporting [sic] this matter[,] were you together with Ronie Abapo telling these persons that you raped [AAA]? A I was alone. Q And did you tell her that you were two in killing and raping with Ronie Abapo? A No, sir. Q Why not? A According to Emilio that the mother of the victim might be [sic] pity enough to me, because I am related to them. Q When you reported to these persons you have mentioned, did you also tell them that you were together with Ronie Abapo in killing and raping? A No, sir.35 While the trial court found appellant's second testimony insofar as it implicated his co-accused to be unworthy of credence, there is absolutely nothing on record which militates against its use as basis for establishing appellant's guilt. In fact, in his Brief, appellant submits that he must be convicted of simple rape alone and not rape with homicide. Thus, he admits in writing, albeit implicitly, that he raped the victim. Convictions based on an improvident plea of guilt are set aside only if such plea is the sole basis of the judgment. If the trial court relied on sufficient and credible evidence to convict the accused, the conviction must be sustained, because then it is predicated not merely on the guilty plea of the accused but on evidence proving his commission of the offense charged.36 Thus, as we have ruled in People v. Derilo:37 While it may be argued that appellant entered an improvident plea of guilty when re-arraigned, we find no need, however, to remand the case to the lower court for further reception of evidence. As a rule, this Court has set aside convictions based on pleas of guilty in capital offenses because of improvidence thereof and when such plea is the sole basis of the condemnatory judgment. However, where the trial court receives evidence to determine precisely whether or not the accused has erred in admitting his guilt, the manner in which the plea of guilty is made (improvidently or not) loses legal significance, for the simple reason that the conviction is based on evidence proving the commission by the accused of the offense charged.

Thus, even without considering the plea of guilty of appellant, he may still be convicted if there is adequate evidence on record on which to predicate his conviction. x x x x Here, the prosecution was able to establish, through the separate testimonies of appellant, that at around 1:00 o'clock in the afternoon of 8 April 1997, appellant was gathering firewood not far from the house of the victim AAA in Barangay Pantaon, Ozamiz City. He met co-accused Ronie Abapo who was then pasturing his carabao also within the vicinity of the victim's home. They spotted the victim picking oranges with her three (3)-year old brother at the back of their house and together approached her from behind, tied her hands with banana skin and dragged her to a grassy place.38 Abapo raped the victim first.39 Thereafter, appellant followed suit.40 Once they had finished with their dastardly acts, they stabbed and killed the victim with a long bolo which belonged to appellant.41 Through the testimony of the physician who conducted the autopsy on AAA's body, it was established that the victim had 6 and 12 o'clock lacerations on her external genital organ. Thus, it is clear that the rape was consummated. Appellant challenges the testimonies of the witnesses Magallano and Araas on what appellant had confessed to or told them for being hearsay. The challenge fails. The testimonies, it should be conceded, cannot serve as a proof of extrajudicial confession for an extrajudicial confession has to be in writing, among others, to be admissible in evidence.42 That is why the testimonies are of use in the case as corroborative evidence only. Such utility, however, cannot be defeated by the hearsay rule. The testimonies covered are independently relevant statements which are not barred by the hearsay rule.1awphi1.net Under the doctrine of independently relevant statements, only the fact that such statements were made is relevant, and the truth or falsity thereof is immaterial. The hearsay rule does not apply. The statements are admissible as evidence. Evidence as to the making of such statement is not secondary but primary, for the statement itself may constitute a fact in issue or be circumstantially relevant as to the existence of such a fact.43 Moreover, where, as in the case at bar, there is no evidence to show any dubious reason or improper motive for a prosecution witness to bear false testimony against the accused or falsely implicate him in a crime, his or her testimony should be given full faith and credit.44 Next, we address appellant's contention that he can only be convicted of simple rape, as this is the only crime to which he has owned up. Arguing that the victim may have already been dead after his co-accused had allegedly hacked her first, appellant theorizes that he, at most, would be guilty of an impossible crime. Appellant is clutching at straws. It is extremely doubtful that appellant could have known positively that the victim was already dead when he struck her. The proposition not only completely contradicts his judicial confession, it is also speculative as to cause of death. In light of the particular circumstances of the event, appellant's mere conjecture that AAA had already expired by the time he hacked her cannot be sufficient to support his assertion of an impossible crime. An examination of the testimony is again called for, thus: Pros. Edmilao: Q You said that he (Abapo) made the first strike, where was [AAA] first hit? A In the stomach. Q How many times did Ronie Abapo strike her with the use of that bolo? A I cannot remember anymore. Q Aside from the stomach, where were the other pants [sic] of [AAA] also hit?

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A At the left side. Q How about you, did you made [sic] the following stab to [AAA]? A I was hesitant to stab, but eventually I stabbed her. Q How many times? A Only one. Q What part of her body was she hit? A At the stomach. Q Do you mean to say that you also got the bolo from the hands of Ronie Abapo and also stabbed AAA? A Yes, sir. Q Why was [AAA] not killed, when Ronie Abapo made stabbed [sic] on her? A He [sic] was already dead. Q Why did you stab her, when she was already dead? A I just stabbed her, because I thought that she was still alive.45 Thus, the finding of guilt as pronounced by the RTC and the Court of Appeals should be sustained. However, with the passage of R.A. No. 9346, entitled "An Act Prohibiting the Imposition of Death Penalty in the Philippines," the penalty of death can no longer be imposed. Accordingly, the penalty imposed upon appellant is reduced from death to reclusion perpetua without eligibility for parole.46 With respect to the civil liability of appellant, we modify the award in light of prevailing jurisprudence. Accordingly, appellant is ordered to indemnify the heirs of AAA in the amount of P100,000.00 as civil indemnity, P75,000.00 as moral damages, P25,000.00 as temperate damages and P100,000.00 as exemplary damages.47 WHEREFORE, the Decision of the Court of Appeals in CA G.R. CRHC No. 00193 is AFFIRMED WITH MODIFICATION. Appellant is sentenced to suffer the penalty of reclusion perpetua without eligibility for parole and to pay the heirs of the victim, AAA, in the amounts of P100,000.00 as civil indemnity, P75,000.00 as moral damages, P25,000.00 as temperate damages, and P100,000.00 as exemplary damages, plus costs. SO ORDERED.

G.R. No. 121234 August 23, 1995 HUBERT J. P. WEBB, petitioner, vs. HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE GUIA, JOVENCITO ZUO, LEONARDO GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 274, respondents, LAURO VIZCONDE, intervenor. G.R. No. 121245 August 23, 1995 MICHAEL A. GATCHALIAN, petitioner, vs. HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 274, respondents. G.R. No. 121297 August 23, 1995 ANTONIO L. LEJANO, petitioner, vs. HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE GUIA, JOVENCITO ZUO, LEONARDO GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 274,respondents.

PUNO, J.: Before the Court are petitions for the issuance of the extraordinary writs of certiorari, prohibition and mandamuswith application for temporary restraining order and preliminary injunction to: (1) annul and set aside the Warrants of Arrest issued against petitioners by respondent Judges Raul E. de Leon and Amelita Tolentino in Criminal Case No. 95-404; (2) enjoin the respondents from conducting any proceeding in the aforementioned criminal case; and (3) dismiss said criminal case or include Jessica Alfaro as one of the accused therein. 1 From the records of the case, it appears that on June 19, 1994, the National Bureau of Investigation (NBI) filed with the Department of Justice a letter-complaint charging petitioners Hubert Webb, Michael Gatchalian, Antonio J. Lejano and six (6) other persons, 2 with the crime of Rape with Homicide. Forthwith, the Department of Justice formed a panel of prosecutors headed by Assistant Chief State Prosecutor Jovencio R. Zuo to conduct the preliminary investigation 3 of those charged with the rape and killing on June 30, 1991 of Carmela N. Vizconde; 4her mother Estrellita Nicolas-Vizconde, 5 and her sister Anne Marie Jennifer 6 in their home at Number 80 W. Vinzons, St., BF Homes, Paraaque, Metro Manila. During the preliminary investigation, the NBI presented the following: (1) the sworn statement dated May 22, 1995 of their principal witness, Maria Jessica M. Alfaro who allegedly saw the commission of the crime; 7 (2) the sworn statements of two (2) of the former housemaids of the Webb family in the persons

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of Nerissa E. Rosales and Mila S. Gaviola; 8 (3) the swornstatement of Carlos J. Cristobal who alleged that on March 9, 1991 he was a passenger of United Airlines Flight No. 808 bound for New York and who expressed doubt on whether petitioner Webb was his co-passenger in the trip; (4) the sworn statement of Lolita Birrer, a former live-in partner of Gerardo Biong, who narrated the manner of how Biong investigated and tried to cover up the crime at bar; 9 (5) the sworn statements of Belen Dometita and Teofilo Minoza, two of the Vizconde maids, and the sworn statements of Normal White, a security guard and Manciano Gatmaitan, an engineer. The autopsy reports of the victims were also submitted and they showed that Carmela had nine (9) stab wounds, Estrellita twelve (12) and Jennifer nineteen (19). 10 The genital examination of Carmela confirmed the presence of spermatozoa. 11 Before submitting his counter-affidavit, petitioner Webb filed with the DOJ Panel a Motion for Production And Examination of Evidence and Documents for the NBI to produce the following: (a) Certification issued by the U.S. Federal Bureau of Investigation on the admission to and stay of Hubert Webb in the United States from March 9, 1991 to October 22, 1992; (b) Laboratory Report No. SN-91-17 of the Medico Legal Officer, Dr. Prospero A. Cabanayan, M.D.; (c) Sworn Statements of Gerardo C. Biong (other than his Sworn Statement dated October 7, 1991); (d) Photographs of fingerprints lifted from the Vizconde residence taken during the investigation; (e) Investigation records of NBI on Engr. Danilo Aguas, et al.; (f) List of names of 135 suspects/persons investigated by the NBI per Progress Report dated September 2, 1991 submitted by Atty. Arlis Vela, Supervising Agent; (g) Records of arrest, interview, investigation and other written statements of Jessica Alfaro (other than the May 22, 1995 Sworn Statement) conducted by the NBI and other police agencies; (h) transmittal letter to the NBI, including the report of the investigation conducted by Superintendent Rodolfo C. Sison, Regional Deputy Director, NCRC; (i) The names of NBI officials/agents composing the Task Force Jecares, including their respective positions and duties; (j) Statements made by other persons in connection with the crime charged. The motion was granted by the DOJ Panel and the NBI submitted photocopies of the documents. It alleged it lost the original of the April 28, 1995 sworn statement of Alfaro. This compelled petitioner Webb to file Civil Case No. 951099 in the Regional Trial Court (RTC) of Makati, Br. 63, for the purpose, among others, of obtaining the original of said sworn statement. He succeeded, for in the course of its proceedings, Atty. Arturo L. Mercader, Jr., produced a copy of said original in compliance with a subpoena duces tecum. The original was then submitted by petitioner Webb to the DOJ Panel together with his other evidence. It appears, however, that petitioner Webb failed to obtain from the NBI the copy of the Federal Bureau of Investigation (FBI) Report despite his request for its production. Petitioner Webb claimed during the preliminary investigation that he did not commit the crime at bar as he went to the United States on March 1, 1991 and returned to the Philippines on October 27, 1992. 12 His alibi was corroborated by Honesto

Aragon, Lecinia Edrosolano, Sylvia Climaco, Gina Roque, Sonia Rodriguez, Edgardo Venture and Pamela Francisco. 13 To further support his defense, he submitted documentary evidence that he bought a bicycle and a 1986 Toyota car while in the United States on said dates 14 and that he was issued by the State of California Driver's License No. A8818707 on June 14, 1991. 15 Petitioner Webb likewise submitted the letter dated July 25, 1995 of Mr. Robert Heafner, Legal Attache of the US Embassy, citing certain records tending to confirm, among others, his arrival at San Francisco, California on March 9, 1991 as a passenger in United Airlines Flight No. 808. The other respondents Hospicio "Pyke" Fernandez, Michael Gatchalian, Antonio "Tony Boy" Lejano, Peter Estrada, Miguel Rodriguez and Gerardo Biong submitted sworn statements, responses, and a motion to dismiss denying their complicity in the rape-killing of the Vizcondes. 16 Only the respondents Joey Filart and Artemio "Dong" Ventura failed to file their counteraffidavits though they were served with subpoena in their last known address. 17 In his sworn statement, petitioner Gatchalian alleged that from 11 o'clock in the evening of June 29, 1991 until 3 o'clock in the morning of the following day, he was at the residence of his friends, Carlos and Andrew Syyap, at New Alabang Village, Muntinlupa watching video tapes. He claimed that his co-petitioner Lejano was with him. On August 8, 1995, the DOJ Panel issued a 26-page Resolution "finding probable cause to hold respondents for trial" and recommending that an Information for rape with homicide be filed against petitioners and their co-respondents, 18 On the same date, it filed the corresponding Information 19 against petitioners and their co-accused with the Regional Trial Court of Paraaque. The case was docketed as Criminal Case No. 95-404 and raffled to Branch 258 presided by respondent judge Zosimo V. Escano. It was, however, the respondent judge Raul de Leon, pairing judge of Judge Escano, who issued the warrants of arrest against the petitioners. On August 11, 1995, Judge Escano voluntarily inhibited himself from the case to avoid any suspicion about his impartiality considering his employment with the NBI before his appointment to the bench. The case was re-raffled to Branch 274, presided by Judge Amelita Tolentino who issued new warrants of arrest against the petitioners and their co-accused. On August 11, 1995, petitioner Webb voluntarily surrendered to the police authorities at Camp Ricardo Papa Sr., in Bicutan, Taguig. Petitioners Gatchalian and Lejano likewise gave themselves up to the authorities after filing their petitions before us. In their petitions at bar, petitioners contend: (1) respondent Judges de Leon and Tolentino gravely abused their discretion when they failed to conduct a preliminary examination before issuing warrants of arrest against them: (2) the DOJ Panel likewise gravely abused its discretion in holding that there is probable cause to charge them with the crime of rape with homicide; (3) the DOJ Panel denied them their constitutional right to due process during their preliminary investigation; and (4) the DOJ Panel unlawfully intruded into judicial prerogative when it failed to charge Jessica Alfaro in the Information as an accused. We find the petitions bereft of merit. I Petitioners fault the DOJ Panel for its finding of probable cause. They insist that the May 22, 1995 sworn statement of Jessica Alfaro is inherently weak and uncorroborated. They hammer on alleged material inconsistencies between her April 28, 1995 and May 22, 1995 sworn statements. They assail her credibility for her misdescription of petitioner Webb's hair as semiblonde. They also criticize the procedure followed by the DOJ Panel when it did not examine witnesses to clarify the alleged incredulities and inconsistencies in the sworn statements of the witnesses for the NBI. We start with a restatement of the purpose of a preliminary investigation. Section 1 of Rule 112

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provides that a preliminary investigation should determine " . . . whether there is a sufficient ground to engender a well-grounded belief that a crime cognizable by the Regional Trial Court has been committed and that the respondent is probably guilty thereof, and should be held for trial." Section 3 of the same Rule outlines the procedure in conducting a preliminary investigation, thus: Sec. 3. Procedure. Except as provided for in Section 7 hereof, no complaint or information for an offense cognizable by the Regional Trial Court shall be filed without a preliminary investigation having been first conducted in the following manner: (a) The complaint shall state the known address of the respondent and be accompanied by affidavits of the complainant and his witnesses as well as other supporting documents, in such number of copies as there are respondents, plus two (2) copies for the official file. The said affidavits shall be sworn to before any fiscal, state prosecutor or government official authorized to administer oath, or, in their absence or unavailability, a notary public, who must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits. (b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss the same if he finds no ground to continue with the inquiry, or issue a subpoena to the respondent, attaching thereto a copy of the complaint, affidavits and other supporting documents. Within ten (10) days from receipt thereof, the respondent shall submit counteraffidavits and other supporting documents. He shall have the right to examine all other evidence submitted by the complainant. (c) Such counter-affidavits and other supporting evidence submitted by the respondent shall also be sworn to and certified as prescribed in paragraph (a) hereof and copies thereof shall be furnished by him to the complainant. (d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counteraffidavits within the ten (10) day period, the investigating officer shall base his resolution on the evidence presented by the complainant. (e) If the investigating officer believes that there are matters to be clarified, he may set a hearing to propound clarificatory questions to the parties or their witnesses, during which the parties shall be afforded an opportunity to be present but without the right to examine or cross-examine. If the parties so desire, they may submit questions to the investigating officer which the latter may propound to the parties or witnesses concerned. (f) Thereafter, the investigation shall be deemed concluded, and the investigating officer shall resolve the case within ten (10) days therefrom. Upon the evidence thus adduced, the investigating officer shall determine whether or not there is sufficient ground to hold the respondent for trial.

Section 4 of Rule 112 then directs that "if the investigating fiscal finds cause to hold the respondent for trial, he shall prepare the resolution and corresponding information. He shall certify under oath that he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses, that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof . . ." The need to find probable cause is dictated by the Bill of Rights which protects "the right of the people to be secure in their persons . . . against unreasonable searches and seizures of whatever nature . . ." 20 An arrest without a probable cause is an unreasonable seizure of a person, and violates the privacy of persons which ought not to be intruded by the State. 21 Probable cause to warrant arrest is not an opaque concept in our jurisdiction. Continuing accretions of case law reiterate that they are facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed by the person sought to be arrested. 22Other jurisdictions utilize the term man of reasonable caution 23 or the term ordinarily prudent and cautious man.24 The terms are legally synonymous and their reference is not to a person with training in the law such as a prosecutor or a judge but to the average man on the street. 25 It ought to be emphasized that in determining probable cause, the average man weighs facts and circumstances without resorting to the calibrations of our technical rules of evidence of which his knowledge is nil. Rather, he relies on the calculus of common sense of which all reasonable men have an abundance. Applying these basic norms, we are not prepared to rule that the DOJ Panel gravely abused its discretion when it found probable cause against the petitioners. Petitioners belittle the truthfulness of Alfaro on two (2) grounds: (a) she allegedly erroneously described petitioner Webb's hair as semi-blond and (b) she committed material inconsistencies in her two (2) sworn statement, thus: 26 xxx xxx xxx To illustrate, the following are some examples of inconsistencies in the two sworn statements of Alfaro: On whether Alfaro knew Carmela before the incident in question First Affidavit: She had NOT met Carmela before June 29, 1991. Second Affidavit: "I met her in a party sometime in February, 1991." On whether Alfaro saw the dead bodies First Affidavit: She did not see the three dead persons on that night. She just said "on the following day I read in the newspaper that there were three persons who were killed . . ." Second Affidavit: "I peeped through the first door on the left. I saw two bodies on top of the bed, bloodied, and in the floor, I saw Hubert on top of Carmela."

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On the alleged rape of Carmela Vizconde First Affidavit: She did not see the act of rape. Second Affidavit: She saw Hubert Webb "with bare buttocks, on top of Carmela and pumping, her mouth gagged and she was moaning and I saw tears on her eyes." On how Webb, Lejano, and Ventura entered the Vizconde house First Affidavit: "by jumping over the fence, which was only a little more than a meter high." Second Affidavit: They "entered the gate which was already open." On whether Alfaro entered the Vizconde house First Affidavit: She never entered the house. Second Affidavit: "I proceeded to the iron grill gate leading to the dirty kitchen." In its Resolution, the DOJ Panel ruled that these alleged misdescription and inconsistencies did not erode the credibility of Alfaro. We quote the pertinent ruling, viz.: 27 xxx xxx xxx As regards the admissibility of Alfaro's statements, granting for purposes of argument merely that she is a co-conspirator, it is well to note that confessions of a co-conspirator may be taken as evidence to show the probability of the co-conspirator's participation in the commission of the crime (see People vs. Lumahang, 94 Phil. 1084). Furthermore, it is a well-established doctrine that conspiracy need not be proved by direct evidence of prior agreement to commit the crime. Indeed, "only rarely would such a prior agreement be demonstrable since, in the nature of things, criminal undertakings are only rarely documented by agreements in writing. Thus, conspiracy may be inferred from the conduct of the accused before, during and after the commission of the crime, showing that the several accused had acted in concert or in unison with each other, evincing a common purpose or design." (Angelo vs. Court of Appeals, 210 SCRA 402 [1992], citations omitted; People vs. Molleda, 86 SCRA 699). Neither can we discredit Alfaro merely because of the inconsistencies in her two sworn statements. InAngelo, the Court refused to discredit the testimony of a witness accusing therein petitioner for the slaying of one Gaviano Samaniego even though said witness failed to name Angelo in his affidavit

which was executed five (5) months earlier. Granting, the Court continued, that a part of the witness' testimony is untrue, such circumstance is not sufficient to discredit the entire testimony of the witness. On August 7, 1995, another counsel for respondent Webb submitted his memorandum suggesting that the instant complaint "should not be decided within the month to give time to the NBI to coordinate with the FBI on the latter's inquiry into the whereabouts of Hubert Webb . . . and to check on our U.S.based witnesses." In said memorandum, counsel for respondent Webb calls for the application of the maxim falsus in uno, falsus in omnibus arising from the inconsistencies of Alfaro's statements, among others. This is untenable. As held in Angelo: There is no rule of law which prohibits a court from crediting part of the testimony of a witness as worthy of belief and from simultaneously rejecting other parts which the court may find incredible or dubious. The maxim falsus in uno, falsus in omnibus is not a rule of law, let alone a general rule of law which is universally applicable. It is not a legal presumption either. It is merely a latinism describing the conclusion reached by a court in a particular case after ascribing to the evidence such weight or lack of weight that the court deemed proper. In the case before us, complainant reasoned out that Alfaro was then having reservations when she first executed the first statement and held back vital information due to her natural reaction of mistrust. This being so, the panel believes that the inconsistencies in Alfaro's two sworn statements have been sufficiently explained especially specially so where there is no showing that the inconsistencies were deliberately made to distort the truth. Consequently, the probative value of Alfaro's testimony deserves full faith and credit. As it has been often noted, ex parte statements are generally incomplete because they are usually executed when the affiant's state of mind does not give her sufficient and fair opportunity to comprehend the import of her statement and to narrate in full the incidents which transpired (People vs. Sarellana, 233 SCRA 31 [1994]; Angelo vs. Court of Appeals, supra). In the case at bar, there is no dispute that a crime has been committed and what is clear before us is that the totality of the evidence submitted by the complainant indicate a prima faciecase that respondents conspired in the perpetration of the imputed offense. We note that the May 22, 1995 sworn statement of Alfaro was given with the assistance of counsel 28 and consists of six (6) pages, in single space reciting in rich details how the crime was planned and then executed by the petitioners. In addition, the

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DOJ Panel evaluated the supporting sworn statements of Nerissa Rosales and Mila Gaviola, former housemaids of the Webbs, Carlos J. Cristobal, a passenger in United Airlines Flight No. 808 and Lolita Birrer, a paramour of Gerardo Biong. The Panel assayed their statements as follows: 29 xxx xxx xxx According to Nerissa E. Rosales, a former housemaid of the Webb family, on June 29, 1991, between 7:00 o'clock and 8:00 o'clock in the evening, Hubert was at home inside his room with two male visitors. She knew it because she and her co-housemaid, Loany, were instructed by Hubert to bring them three glasses of juice. It was the last time she saw Hubert and was later told by then Congressman Webb that Hubert was in the United States. While Mila S. Gaviola, another former housemaid of the Webb family and who served as a laundry woman, claims, aside from corroborating the statement of Nerissa Rosales, that on June 30, 1991, she woke up at around 4:00 in the morning and as what she used to do, she entered the rooms of the Webbs to get their clothes to be washed. As a matter of fact, in that early morning, she entered Hubert's room and saw Hubert, who was only wearing his pants, already awake and smoking while he was sitting on his bed. She picked up Hubert's scattered clothes and brought them together with the clothes of the other members of the family to the laundry area. After taking her breakfast, she began washing the clothes of the Webbs. As she was washing the clothes of Hubert Webb, she noticed fresh bloodstains in his shirt. After she finished the laundry, she went to the servant's quarters. But feeling uneasy, she decided to go up to the stockroom near Hubert's room to see what he was doing. In the said stockroom, there is a small door going to Hubert's room and in that door there is a small opening where she used to see Hubert and his friends sniffing on something. She observed Hubert was quite irritated, uneasy, and walked to and from inside his room. On that day, she noticed Hubert left the house at around 1:00 in the afternoon and came back at around 4:00 in the same afternoon and went inside his room using the secret door of the house. It was the last time that she saw Hubert until she left the Webb family. On the other hand, Carlos J. Cristobal alleged that on March 9, 1991, at about 10:00 in the morning, he was at the Ninoy Aquino International Airport as he was then scheduled to take the United Airlines Flight No. 808 at 2:00 in the afternoon for New York. At the airport's lobby, he saw then Congressman Freddie Webb with a male companion. He greeted him and Webb answered: "Mabuti naman, at ito, ihahatid ko ang anak ko papuntang Florida." He knew Freddie Webb because he often watched him then in a television show "Chicks to Chicks." He observed that the man whom Freddie Webb referred to as his son, was of the same height as Freddie. The son referred to has fair complexion with no distinguishing marks on his face. He (son of Webb) was then wearing a striped white jacket. When he and his children were already inside the plane, he did not see

Freddie anymore, but he noticed his son was seated at the front portion of the economy class. He never noticed Freddie Webb's son upon their arrival in San Francisco. He claims that, while watching the television program "DONG PUNO LIVE" lately, he saw the wife of Freddie Webb with her lawyer being interviewed, and when she described Hubert as "moreno" and small built, with a height of five feet and seven inches tall, and who was the one who left for United States on March 9, 1991, he nurtured doubts because such description does not fit the physical traits of the son of Freddie, who left with him for United States on the same flight and date. Lolita Birrer, alleged that she know Gerardo Biong because she had an affair with him for almost three (3) years and in fact, she had a child with him who is now four (4) years old. Their relationship started in February, 1991 until she broke up with him in September 1993. She recalls that on June 29, 1991, at around 6:00 p.m., Biong invited her to play mahjong at the canteen of a certain Aling Glo located at the back of the Paraaque Municipal Hall. At about 2:30, in the early morning of January 30, 1991, the radio operator of the Paraaque police told Biong that he has a phone call. Before Biong went to the radio room, she was instructed to take him over and after somebody won the game, she followed Biong at the radio room where she overheard him uttering, "Ano?, Saan? Mahirap yan, Paano, o sige, aantayin kita, O ano?, dilaw na taxi, o sige." When he put the phone down, Biong told her, "Mayroon lang akong rerespondehan, ikaw muna ang maupo" and then, he went outside the canteen apparently waiting for somebody. Twenty minutes later, a taxi, colored yellow, arrived with a male passenger sitting at the backseat and parked near the canteen. After it made some signals by blinking its headlight, Biong rode thereat at the front seat beside the driver and then, they left. She was not able to recognize the male passenger because the window of the taxi was tinted. Biong came back at around 7:00 of the same morning and when he arrived, he immediately washed his hands and face, and took his handkerchief from his pocket which he threw at the trash can. She asked him why he threw his handkerchief and he answered, "Hmp . . . amoy tae." She inquired what happened in BF Homes and he replied, "Putang inang mga batang iyon, pinahirapan nila ako." Biong later invited her for breakfast, but they first went to his office where she observed him doing something in his steel cabinet while he appeared to be uneasy. Moments later, Galvan, another policeman of Paraaque, arrived and said, "Oy Biong, may tatlong patay sa BF, imbestigahan mo" to which Biong answered, "Oo susunod na ako." Biong went to the office of Capt. Don Bartolome who offered to accompany him and with whom she asked permission to go with them. Before they proceeded to the place where the killings happened, she asked Biong if he knew the exact address and the latter immediately responded, "Alam ko na yon." She was surprised because Galvan never told him the place of the incident.

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As soon as they arrived at the Vizconde's residence, Biong instructed the housemaids to contact the victim's relatives, while the security guard fetched the barangay chairman and the president of the Homeowners Association. When all these persons were already in the house, Biong started recording the wounds of the victim. Inside the master's bedroom, she saw Biong took a watch from the jewelry box. Because she could not tolerate the foul odor, she and Capt. Bartolome went out of the room and proceeded to the dining area. On top of the dining table, she saw the scattered contents of a shoulder bag. Moments later, Biong came out from the room and proceeded to the front door to remove the chain lock; asked the keys from the housemaid and it was only then that the main door was opened. Biong noticed a stone in front of the broken glass of the door and requested Capt. Bartolome to go inside the servant's quarters as he doubted the housemaids' claim that they heard nothing unusual. Using the handle of his gun, Biong broke the remaining glass of the door panel. Bartolome then came out of the room and told Biong that he can hear the sound of the glass being broken. At the garage, Biong also noticed same marks on the hood of the car. On the following day, at around 12:00 noon, Biong arrived in her house together with the Vizconde housemaids. When Biong was preparing to take a bath, she saw him remove from his pocket the things she also saw from Vizconde's residence, to wit: calling cards, driver's license, ATM card, a crossed check worth P80,000.00, earrings, a ring, bracelet, necklace, and the watch he took from the jewelry box inside the room of the Vizcondes. These jewelry items were later pawned by Biong for P20,000.00 at a pawnshop in front of Chow-Chow restaurant in Santos Avenue, Paraaque. The next day, she saw Biong took from his locker at the Paraaque Police Station an imported brown leather jacket, which the latter claimed to have been given to him by the person who called him up in the early morning of June 30, 1991. Since then, Biong has been wearing said jacket until they broke up sometime in 1993. She observed that Biong seemed not interested in pursuing the investigation of the Vizconde case. In fact, when Biong and this group picked up Mike Gatchalian and brought him to the Paraaque Police Station, she was surprised that Biong halted the investigation when Gatchalian was profusely sweating while being interrogated. After the father of Gatchalian talked to Colonel Pureza, the latter called up and instructed Biong to bring Gatchalian to him (Colonel Pureza) and that was the last thing she remembered regarding this case. The DOJ Panel then weighed these inculpatory evidence against the exculpatory evidence of petitioners. It ruled:30 xxx xxx xxx The voluminous number of exhibits submitted by respondent Webb to support his defense of denial and alibi notwithstanding, the panel, after a careful and thorough evaluation of the records, believes that they cannot outweigh the evidence submitted by the complainant. Alibi cannot prevail over the positive

identification made by a prosecution witness. Verily, alibi deserves scant consideration in the face of positive identification especially so where the claim of alibi is supported mainly by friends and relatives (People vs. Apolonia, 235 SCRA 124 [1994]; People vs. Lucas, 181 SCRA 316 and a long line of cases). Similarly, denial is a self-serving negative which cannot be given greater evidentiary weight than the declaration of a credible witness who testified on affirmative matters (People vs. Carizo, 233 SCRA 687 [1994]). Indeed, denial, like alibi, is weak and becomes even more weaker when arrayed against the positive identification by the witness for the prosecution (People vs. Onpaid, 233 SCRA 62 [1994]). Surprisingly, Gatchalian's defense of alibi was not corroborated by Lejano, whom he claimed was with him watching video tapes at the Syyap residence. Other than claiming that he "was not and could not have been at or near the area of the Vizconde residence at the time of the alleged commission of the crime," respondent Lejano proffered no evidence to substantiate his claim of alibi. xxx xxx xxx On the other hand, respondent Webb seeks to enhance the acceptability of his alibi in the form of documents tending to show that he was thousands of miles away when the incident occurred. We have carefully deliberated and argued on the evidence submitted by respondent Webb in support of his absence from the country since March 9, 1991 to October 26, 1992 and found the same wanting to exonerate him of the offense charged. The material dates in this case are June 29 and 30, 1991. While respondent Webb may have submitted proof tending to show that he was issued a California driver's license on June 14, 1991, there is no showing that he could not have been in the country on the dates above mentioned. Neither do we find merit in the allegation that respondent Webb personally bought a bicycle on June 30, 1991 in California in view of his positive identification by Alfaro and the two (2) househelps of the Webb family who testified that he was here in the country on said dates. Additionally, the issuance of receipt evidencing the purchase of a bicycle in California is no conclusive proof that the name appearing thereon was the actual buyer of the merchandise. Given these conflicting pieces of evidence of the NBI and the petitioners, we hold that the DOJ Panel did not gravely abuse its discretion when it found probable cause against the petitioners. 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 suspects. 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. As well put in Brinegar v. United States, 31 while probable cause demands more than "bare suspicion," it requires "less than evidence which would justify . . . conviction." A finding of probable cause merely binds over the suspect to stand trial. It is not a pronouncement of guilt.

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Considering the low quantum and quality of evidence needed to support a finding of probable cause, we also hold that the DOJ Panel did not, gravely abuse its discretion in refusing to call the NBI witnesses for clarificatory questions. The decision to call witnesses for clarificatory questions is addressed to the sound discretion of the investigator and the investigator alone. If the evidence on hand already yields a probable cause, the investigator need not hold a clarificatory hearing. To repeat, probable cause merely implies probability of guilt and should be determined in a summary manner. Preliminary investigation is not a part of trial and it is only in a trial where an accused can demand the full exercise of his rights, such as the right to confront and cross-examine his accusers to establish his innocence. In the case at bar, the DOJ Panel correctly adjudged that enough evidence had been adduced to establish probable cause and clarificatory hearing was unnecessary. II We now come to the charge of petitioners that respondent Judge Raul de Leon and, later, respondent Judge Amelita Tolentino issued warrants of arrest against them without conducting the required preliminary examination. Petitioners support their stance by highlighting the following facts: (1) the issuance of warrants of arrest in a matter of few hours; (2) the failure of said judges to issue orders of arrest; (3) the records submitted to the trial court were incomplete and insufficient from which to base a finding of probable cause; and (4) that even Gerardo Biong who was included in the Information as a mere accessory had a "NO BAIL" recommendation by the DOJ Panel. Petitioners postulate that it was impossible to conduct a "searching examination of witnesses and evaluation of the documents" on the part of said judges. The issuance of a warrant of arrest interferes with individual liberty and is regulated by no less than the fundamental law of the land. Section 2 of Article III of the Constitution provides: Sec. 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. The aforequoted provision deals with the requirements of probable cause both with respect to issuance of warrants of arrest or search warrants. The similarities and differences of their requirements ought to be educational. Some of them are pointed out by Professors LaFave and Israel, thus: 32 "It is generally assumed that the same quantum of evidence is required whether one is concerned with probable cause to arrest or probable cause to search. But each requires a showing of probabilities as to somewhat different facts and circumstances, and thus one can exist without the other. In search cases, two conclusions must be supported by substantial evidence: that the items sought are in fact seizable by virtue of being connected with criminal activity, and that the items will be found in the place to be searched. It is not also necessary that a particular person be implicated. By comparison, in arrest cases there must be probable cause that a crime has been committed and that the person to be arrested committed it, which of course can exist without any

showing that evidence of the crime will be found at premises under that person's control." Worthy to note, our Rules of Court do not provide for a similar procedure to be followed in the issuance of warrants of arrest and search warrants. With respect to warrants of arrest, section 6 of Rule 112 simply provides that "upon filing of an information, the Regional Trial Court may issue a warrant for the arrest of the accused." In contrast, the procedure to be followed in issuing search warrants is more defined. Thus, Sections 3, 4 and 5 of Rule 126 provide: xxx xxx xxx Sec. 3. Requisites for issuing search warrant. A search warrant shall not issue but upon probable cause in connection with one specific offense 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 things to be seized. Sec. 4. Examination of complainant; record. The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath the complainant and any witnesses he may produce on facts personally known to them and attach to the record their sworn statements together with any affidavits submitted. Sec. 5. Issuance and form of search warrant. If the judge is thereupon satisfied of the facts upon which the application is based, or that there is probable cause to believe that they exist, he must issue the warrant, which must be substantially in the form prescribed by these Rules. We discussed the difference in the Procedure of issuing warrants of arrest and search warrants in Soliven vs. Makasiar, 33 thus: xxx xxx xxx The second issue, raised by Beltran, calls for an interpretation of the constitutional provision on the issuance of warrants of arrest. The pertinent provision reads: Art. III, Sec. 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. The addition of the word "personally" after the word "determined" and the deletion of the

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grant of authority by the 1973 Constitution to issue warrants to "other responsible officers as may be authorized by law," has apparently convinced petitioner Beltran that the Constitution now requires the judge to personally examine the complainant and his witnesses in his determination of probable cause for the issuance of warrants of arrest. This is not an accurate interpretation. 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 documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusions as to the existence of probable cause. Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts. Clearly then, the Constitution, the Rules of Court, and our case law 34 repudiate the submission of petitioners that respondent judges should have conducted "searching examination of witnesses" before issuing warrants of arrest against them. They also reject petitioners' contention that a judge must first issue an order of arrest before issuing a warrant of arrest. There is no law or rule requiring the issuance of an Order of Arrest prior to a warrant of arrest. In the case at bar, the DOJ Panel submitted to the trial court its 26-page report, the two (2) sworn statements of Alfaro and the sworn statements of Carlos Cristobal and Lolita Birrer 35 as well as the counter-affidavits of the petitioners. Apparently, the painstaking recital and analysis of the parties' evidence made in the DOJ Panel Report satisfied both judges that there is probable cause to issue warrants of arrest against petitioners. Again, we stress that before issuing warrants of arrest, judges merely determinepersonally the probability, not the certainty of guilt of an accused. In doing so, judges do not conduct a de novo hearing to determine the existence of probable cause. They just personally review the initial determination of the prosecutor finding a probable cause to see if it is supported by substantial evidence. The sufficiency of the review process cannot be measured by merely counting minutes and hours. The fact that it took the respondent judges a few hours to review and affirm the probable cause determination of the DOJ Panel does not mean they made no personal evaluation of the evidence attached to the records of the case. 36 Petitioners' reliance on the case of Allado vs. Diokno 37 is misplaced. Our Allado ruling is predicated on the utter failure of the evidence to show the existence of probable cause. Not even the corpus delicti of the crime was established by the evidence of the prosecution in that case. Given the clear insufficiency of the evidence on record, we stressed the necessity for the trial judge to make a further personal examination of the

complainant and his witnesses to reach a correct assessment of the existence or non-existence of probable cause before issuing warrants of arrest against the accused. The case at bar, however, rests on a different factual setting. As priorly discussed, the various types of evidence extant in the records of the case provide substantial basis for a finding of probable cause against the petitioner. The corpus delicti of the crime is a given fact. There is an eyewitness account of the imputed crime given by Alfaro. The alibi defense of petitioner Webb is also disputed by sworn statements of their former maids. It was therefore unnecessary for the respondent judges to take the further step of examining ex parte the complainant and their witnesses with searching questions. III Petitioners also complain about the denial of their constitutional right to due process and violation of their right to an impartial investigation. They decry their alleged hasty and malicious prosecution by the NBI and the DOJ Panel. They also assail the prejudicial publicity that attended their preliminary investigation. We reject these contentions. The records will show that the DOJ Panel did not conduct the preliminary investigation with indecent haste. Petitioners were given fair opportunity to prove lack of probable cause against them. The fairness of this opportunity is well stressed in the Consolidated Comment of the Solicitor General, viz.: Again, there is no merit in this contention. Petitioners were afforded all the opportunities to be heard. Petitioner Webb actively participated in the preliminary investigation by appearing in the initial hearing held on June 30, 1995 and in the second hearing on July 14, 1995; and by filing a "Motion for Production and Examination of Evidence and Documents" on June 27, 1995 (p. 4, Petition), a "Reply to the compliance and Comment/Manifestation to the Motion for Production and Examination of Evidence" on July 5, 1995 (p. 6, Petition), a "Comment and Manifestation" on July 7, 1995 (p. 6, Petition), his "Counter-Affidavit" on July 14, 1995 (pp. 6-7, Petition) and a "Motion to Resolve" on August 1, 1995. Numerous letterrequests were also sent by the petitioner Webb's counsel to the DOJ Panel requesting the latter to furnish him a copy of the reports prepared by the FBI concerning the petitioner's whereabouts during the material period (Annexes "L", "L-1" and "L-2" of the Supplemental Petition dated August 14, 1995). In fact, not satisfied with the decision of the DOJ Panel not to issuesubpoena duces tecum to Atty. Arturo L. Mercader, Jr., petitioner Webb filed a "Petition for Injunction, Certiorari, Prohibition and Mandamus" with the Regional Trial Court, Branch 63 of Makati in order to compel said Atty. Mercader, Jr. to produce the first sworn statement of Alfaro for submission to the DOJ Panel. (p. 4, Petition) The said court dismissed the petition after Mercader produced and submitted to the DOJ Panel the first sworn statement of Alfaro, without ruling on the admissibility and credence of the two (2) conflicting and inconsistent sworn statements of the principal witness, Alfaro. (Attached hereto is a copy of the order of Judge Ruben A. Mendiola, RTC-Makati, Branch 63 dated July 28, 1995) marked as Annex "F." It must also be pointed out that despite the declaration by the DOJ Panel that the

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preliminary investigation was to be terminated after the hearing held on July 14, 1995, the panel continued to conduct further proceedings, e.g. comparison of the photocopies of the submitted documents with the originals on July 17, 1995. (p. 7, Petition) The panel even entertained the "Response" submitted by accused Miguel Rodriguez on July 18, 1995. (p. 17 Resolution) In addition to these, the panel even announced that any party may submit additional evidence before the resolution of the case. (p. 8, Petition) From the time the panel declared the termination of the preliminary investigation on July 14, 1995, twenty-seven (27) days elapsed before the resolution was promulgated, and the information eventually filed in the Regional Trial Court of Paraaque on August 10, 1995. This notwithstanding the directive of Section 3(f) Rule 112 of the Revised Rules of Court that the investigating officer shall resolve the case within ten (10) days from the termination of the preliminary investigation. The DOJ Panel precisely allowed the parties to adduce more evidence in their behalf and for the panel to study the evidence submitted more fully. This directly disputes the allegation of the petitioners that the resolution was done with indecent haste in violation of the rights of the petitioners. During the period of twenty-seven (27) days, the petitioners were free to adduce and present additional evidence before the DOJ Panel. Verily, petitioners cannot now assert that they were denied due process during the conduct of the preliminary investigation simply because the DOJ Panel promulgated the adverse resolution and filed the Information in court against them. Petitioners cannot also assail as premature the filing of the Information in court against them for rape with homicide on the ground that they still have the right to appeal the adverse resolution of the DOJ Panel to the Secretary of Justice. The filing of said Information is in accord with Department of Justice Order No. 223, series of 1993, dated June 25, 1993. We quote its pertinent sections, viz.: Sec. 4. Non-Appealable Cases; Exceptions. No appeal may be taken from a resolution of the Chief State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor finding probable causeexcept upon showing of manifest error or grave abuse of discretion. Notwithstanding the showing of manifest error or grave abuse of discretion, no appeal shall be entertained where the appellant had already been arraigned. If the appellant is arraigned during the pendency of the appeal, said appeal shall be dismissed motu propio by the Secretary of Justice. An appeal/motion for reinvestigation from a resolution finding probable cause, however, shall not hold the filing of the information in court. Sec. 2. When to appeal. The appeal must be filed within a period of fifteen (15) days from receipt of the questioned resolution by the party or his counsel. The period shall be interrupted only by the filing of a motion for reconsideration within ten (10) days from receipt of the resolution and shall continue to run from the time the resolution denying the

motion shall have been received by the movant or his counsel. (Emphasis supplied) Without doubt then, the said DOJ Order No. 223 allows the filing of an Information in court after the consummation of the preliminary investigation even if the accused can still exercise the right to seek a review of the prosecutor's recommendation with the Secretary of Justice. Next, petitioners fault the DOJ Panel for not including Alfaro in the Information considering her alleged conspiratorial participation in the crime of rape with homicide. The non-inclusion of Alfaro is anchored on Republic Act No. 6981, entitled "An Act Providing For A Witness Protection, Security And Benefit Program And For Other Purposes" enacted on April 24, 1991. Alfaro qualified under its Section 10, which provides: xxx xxx xxx Sec. 10. State Witness. Any person who has participated in the commission of a crime and desires to a witness for the State, can apply and, if qualified as determined in this Act and by the Department, shall be admitted into the Program whenever the following circumstances are present: (a) the offense in which his testimony will be used is a grave felony as defined under the R.P.C. or its equivalent under special laws; (b) there is absolute necessity for his testimony; (c) there is no other direct evidence available for the proper prosecution of the offense committed; (d) his testimony can be substantially corroborated on its material points; (e) he does not appear to be most guilty; and (f) he has not at anytime been convicted of any crime involving moral turpitude. An accused discharged from an information or criminal complaint by the court in order that he may be a State Witness pursuant to Sections 9 and 10 of Rule 119 of the Revised Rules of Court may upon his petition be admitted to the Program if he complies with the other requirements of this Act. Nothing in this Act shall prevent the discharge of an accused so that he can be used as a Witness under Rule 119 of the Revised Rules of Court. Upon qualification of Alfaro to the program, Section 12 of the said law mandates her non-inclusion in the criminal Complaint or Information, thus: xxx xxx xxx Sec. 12. Effect of Admission of a State Witness into the Program. The certification of admission into the Program by the Department shall be given full faith and credit by the provincial or city prosecutor who is required NOT TO INCLUDE THE WITNESS IN THE CRIMINAL COMPLAINT OR INFORMATION and if included therein, to

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petition the court for his discharge in order that he can be utilized as a State Witness. The court shall order the discharge and exclusion of the said accused from the information. Admission into the Program shall entitle such State Witness to immunity from criminal prosecution for the offense or offenses in which his testimony will be given or used and all the rights and benefits provided under Section 8 hereof. The validity of these provisions is challenged by petitioner Webb. It is urged that they constitute ". . . an intrusion into judicial prerogative for it is only the court which has the power under the Rules on Criminal Procedure to discharge an accused as a state witness." The argument is based on Section 9, Rule 119 38which gives the court the prerogative to approve the discharge of an accused to be a state witness. Petitioner's argument lacks appeal for it lies on the faulty assumption that the decision whom to prosecute is a judicial function, the sole prerogative of courts and beyond executive and legislative interference. In truth, the prosecution of crimes appertains to the executive department of government whose principal power and responsibility is to see that our laws are faithfully executed. A necessary component of this power to execute our laws is the right to prosecute their violators. The right to prosecute vests the prosecutor with a wide range of discretion the discretion of whether, what and whom to charge, the exercise of which depends on a smorgasbord of factors which are best appreciated by prosecutors. We thus hold that it is not constitutionally impermissible for Congress to enact R.A. No. 6981 vesting in the Department of Justice the power to determine who can qualify as a witness in the program and who shall be granted immunity from prosecution. 39 Section 9 of Rule 119 does not support the proposition that the power to choose who shall be a state witness is an inherent judicial prerogative. Under this provision, the court, is given the power to discharge a state witness only because it has already acquired jurisdiction over the crime and the accused. The discharge of an accused is part of the exercise of jurisdiction but is not a recognition of an inherent judicial function. Moreover, the Rules of Court have never been interpreted to be beyond change by legislation designed to improve the administration of our justice system. R.A. No. 6981 is one of the much sought penal reform laws to help government in its uphill fight against crime, one certain cause of which is the reticence of witnesses to testify. The rationale for the law is well put by the Department of Justice, viz.: "Witnesses, for fear of reprisal and economic dislocation, usually refuse to appear and testify in the investigation/prosecution of criminal complaints/cases. Because of such refusal, criminal complaints/cases have been dismissed for insufficiency and/or lack of evidence. For a more effective administration of criminal justice, there was a necessity to pass a law protecting witnesses and granting them certain rights and benefits to ensure their appearance in investigative bodies/courts." 40 Petitioner Webb's challenge to the validity of R.A. No. 6981 cannot therefore succeed. Further, petitioners charge the NBI with violating their right to discovery proceedings during their preliminary investigation by suppressing the April 28, 1995 original copy of the sworn statement of Alfaro and the FBI Report. The argument is novel in this jurisdiction and as it urges an expansive reading of the rights of persons under preliminary investigation it deserves serious consideration. To start with, our Rules on Criminal Procedure do not expressly provide for discovery proceedings during the preliminary investigation stage of a criminal proceeding. 41 Sections 10 and 11 of Rule 117 do provide an accused the right to move for a bill of

particulars and for production or inspection of material evidence in possession of the prosecution. 42 But these provisions apply after the filing of the Complaint or Information in court and the rights are accorded to the accused to assist them to make an intelligent plea at arraignment and to prepare for trial. 43 This failure to provide discovery procedure during preliminary investigation does not, however, negate its use by a person under investigation when indispensable to protect his constitutional right to life, liberty and property. Preliminary investigation is not too early a stage to guard against any significant erosion of the constitutional right to due process of a potential accused. As aforediscussed, the object of a preliminary investigation is to determine the probability that the suspect committed a crime. We hold that the finding of a probable cause by itself subjects the suspect's life, liberty and property to real risk of loss or diminution. In the case at bar, the risk to the liberty of petitioners cannot be understated for they are charged with the crime of rape with homicide, a non-bailable offense when the evidence of guilt is strong. Attuned to the times, our Rules have discarded the pure inquisitorial system of preliminary investigation. Instead, Rule 112 installed a quasi-judicial type of preliminary investigation conducted by one whose high duty is to be fair and impartial. 44 As this Court emphasized in Rolito Go vs. Court of Appeals, 45 "the right to have a preliminary investigation conducted before being bound over for trial for a criminal offense, and hence formally at risk of incarceration or some other penalty, is not a mere formal or technical right; it is a substantive right." A preliminary investigation should therefore be scrupulously conducted so that the constitutional right to liberty of a potential accused can be protected from any material damage. We uphold the legal basis of the right of petitioners to demand from their prosecutor, the NBI, the original copy of the April 28, 1995 sworn statement of Alfaro and the FBI Report during their preliminary investigation considering their exculpatory character, and hence, unquestionable materiality to the issue of their probable guilt. The right is rooted on the constitutional protection of due process which we rule to be operational even during the preliminary investigation of a potential accused. It is also implicit in section (3) (a) of Rule 112 which requires during the preliminary investigation the filing of a sworn complaint, which shall ". . . state the known address of the respondent and be accompanied by affidavits of the complainant and his witnesses as well as other supporting documents . . ." In laying down this rule, the Court is not without enlightened precedents from other jurisdictions. In the 1963 watershed case of Brady v. Maryland 46 the United States Supreme Court held that "suppression of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the prosecution." Its progeny is the 1935 case ofMooney v. Holohan 47 which laid down the proposition that a prosecutor's intentional use of perjured testimony to procure conviction violates due process. Thus, evolved jurisprudence firming up the prosecutor's duty to disclose to the defense exculpatory evidence in its possession. 48 The rationale is well put by Justice Brennan in Brady 49 "society wins not only when the guilty are convicted but when criminal trials are fair." Indeed, prosecutors should not treat litigation like a game of poker where surprises can be sprung and where gain by guile is not punished. But given the right of petitioners to compel the NBI to disclose exculpatory evidence in their favor, we are not prepared to rule that the initial non-production of the original sworn statement of Alfaro dated April 28, 1995

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could have resulted in the reasonable likelihood that the DOJ Panel would not have found probable cause. To be sure, the NBI, on July 4, 1995, upon request of petitioners, submitted a photocopy of Alfaro's April 28, 1995 sworn statement. It explained it cannot produce the original as it had been lost. Fortunately, petitioners, on July 28, 1995, were able to obtain a copy of the original from Atty. Arturo Mercader in the course of the proceedings in Civil Case No. 951099. 50 As petitioners admit, the DOJ Panel accepted the original of Alfaro's April 28, 1995 sworn statement as a part of their evidence. 51 Petitioners thus had the fair chance to explain to the DOJ Panel then still conducting their preliminary investigation the exculpatory aspects of this sworn statement. Unfortunately for petitioners, the DOJ Panel still found probable cause to charge them despite the alleged material discrepancies between the first and second sworn statements of Alfaro. For reasons we have expounded, this finding of probable cause cannot be struck down as done with grave abuse of discretion. 52 On the other hand, the FBI Report while corroborative of the alibi of petitioner Webb cannot by itself reverse the probable cause finding of the DOJ Panel in light of the totality of evidence presented by the NBI. Finally, we come to the argument of petitioner that the DOJ Panel lost its impartiality due to the prejudicial publicity waged in the press and broadcast media by the NBI. Again, petitioners raise the effect of prejudicial publicity on their right to due process while undergoing preliminary investigation. We find no procedural impediment to its early invocation considering the substantial risk to their liberty while undergoing a preliminary investigation. In floating this issue, petitioners touch on some of the most problematic areas in constitutional law where the conflicting demands of freedom of speech and of the press, the public's right to information, and an accused's right to a fair and impartial trial collide and compete for prioritization. The process of pinpointing where the balance should be struck has divided men of learning as the balance keeps moving either on the side of liberty or on the side of order as the tumult of the time and the welfare of the people dictate. The dance of balance is a difficult act to follow. In democratic settings, media coverage of trials of sensational cases cannot be avoided and oftentimes, its excessiveness has been aggravated by kinetic developments in the telecommunications industry. For sure, few cases can match the high volume and high velocity of publicity that attended the preliminary investigation of the case at bar. Our daily diet of facts and fiction about the case continues unabated even today. Commentators still bombard the public with views not too many of which are sober and sublime. Indeed, even the principal actors in the case the NBI, the respondents, their lawyers and their sympathizers have participated in this media blitz. The possibility of media abuses and their threat to a fair trial notwithstanding, criminal trials cannot be completely closed to the press and the public. In the seminal case of Richmond Newspapers, Inc. v. Virginia, 53 it was wisely held: xxx xxx xxx (a) The historical evidence of the evolution of the criminal trial in Anglo-American justice demonstrates conclusively that at the time this Nation's organic laws were adopted, criminal trials both here and in England had long been presumptively open, thus giving assurance

that the proceedings were conducted fairly to all concerned and discouraging perjury, the misconduct of participants, or decisions based on secret bias or partiality. In addition, the significant community therapeutic value of public trials was recognized: when a shocking crime occurs, a community reaction of outrage and public protest often follows, and thereafter the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion. To work effectively, it is important that society's criminal process "satisfy the appearance of justice," Offutt v. United States, 348 US 11, 14, 99 L Ed 11, 75 S Ct 11, which can best be provided by allowing people to observe such process. From this unbroken, uncontradicted history, supported by reasons as valid today as in centuries past, it must be concluded that a presumption of openness inheres in the very nature of a criminal trial under this Nation's system of justice, Cf., e.g., Levine v. United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038. (b) The freedoms of speech, press, and assembly, expressly guaranteed by the First Amendment, share a common core purpose of assuring freedom of communication on matters relating to the functioning of government. In guaranteeing freedoms such as those of speech and press, the First Amendment can be read as protecting the right of everyone to attend trials so as to give meaning to those explicit guarantees; the First Amendment right to receive information and ideas means, in the context of trials, that the guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors which had long been open to the public at the time the First Amendment was adopted. Moreover, the right of assembly is also relevant, having been regarded not only as an independent right but also as a catalyst to augment the free exercise of the other First Amendment rights with which it was deliberately linked by the draftsmen. A trial courtroom is a public place where the people generally and representatives of the media have a right to be present, and where their presence historically has been thought to enhance the integrity and quality of what takes place. (c) Even though the Constitution contains no provision which by its terms guarantees to the public the right to attend criminal trials, various fundamental rights, not expressly guaranteed, have been recognized as indispensable to the enjoyment of enumerated rights. The right to attend criminal trials is implicit in the guarantees of the First Amendment; without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and of the press could be eviscerated. Be that as it may, we recognize that pervasive and prejudicial publicity under certain circumstances can deprive an accused of his due process right to fair trial. Thus, in Martelino, et al. vs. Alejandro, et al., 54 we held that to warrant a finding of prejudicial publicity there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at bar, we find nothing in the records that will prove that the tone and content, of the publicity that attended the investigation of petitioners fatally infected the fairness and impartiality

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of the DOJ Panel. Petitioners cannot just rely on the subliminal effects of publicity on the sense of fairness of the DOJ Panel, for these are basically unbeknown and beyond knowing. To be sure, the DOJ Panel is composed of an Assistant Chief State Prosecutor and Senior State Prosecutors. Their long experience in criminal investigation is a factor to consider in determining whether they can easily be blinded by the klieg lights of publicity. Indeed, their 26-page Resolution carries no indubitable indicia of bias for it does not appear that they considered any extra-record evidence except evidence properly adduced by the parties. The length of time the investigation was conducted despite its summary nature and the generosity with which they accommodated the discovery motions of petitioners speak well of their fairness. At no instance, we note, did petitioners seek the disqualification of any member of the DOJ Panel on the ground of bias resulting from their bombardment of prejudicial publicity. It all remains to state that the Vizconde case will move to a more critical stage as petitioners will now have to undergo trial on the merits. We stress that probable cause is not synonymous with guilt and while the light of publicity may be a good disinfectant of unfairness, too much of its heat can bring to flame an accused's right to fair trial. Without imposing on the trial judge the difficult task of supervising every specie of speech relating to the case at bar, it behooves her to be reminded of the duty of a trial judge in high profile criminal cases to control publicity prejudicial to the fair administration of justice. 55 The Court reminds judges that our ability to dispense impartial justice is an issue in every trial and in every criminal prosecution, the judiciary always stands as a silent accused. More than convicting the guilty and acquitting the innocent, the business of the judiciary is to assure fulfillment of the promise that justice shall be done and is done and that is the only way for the judiciary to get an acquittal from the bar of public opinion. IN VIEW WHEREOF, the petitions are dismissed for lack of showing of grave abuse of discretion on the part of the respondents. Costs against petitioners. SO ORDERED.

G.R. No. 170447

June 23, 2009

BIENVENIDO DIO and RENATO COMPARATIVO, Petitioners, vs. PABLO OLIVAREZ,1 Respondent. DECISION CHICO-NAZARIO, J.: Petitioners Bienvenido Dio and Renato Comparativo assail the Decision2 of the Court of Appeals dated 28 September 2005 in CA-G.R. SP No. 89230, nullifying the Orders3 dated 12 January 2005, 9 March 2005, and 31 March 2005 of Judge Fortunito L. Madrona of Branch 274 of the Regional Trial Court (RTC) of Paraaque City, in Criminal Cases No. 04-1104 and No. 04-1105. Petitioners instituted a complaint for vote buying against respondent Pablo Olivarez. Based on the finding of probable cause in the Joint Resolution issued by Assistant City Prosecutor Antonietta Pablo-Medina, with the approval of the city prosecutor of Paraaque, two Informations4 were filed before the RTC on 29 September 2004 charging respondent Pablo Olivarez with Violation of Section 261, paragraphs a, b and k of Article XXII of the Omnibus Election Code, which read: Criminal Case No. 04-1104 That on or about the 10th day of May 2004, in the City of Paraaque, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, Remedios Malibiran and Pablo Olivarez, conspiring and confederating together and both of them mutually helping and aiding one another, did then and there willfully, unlawfully and feloniously, engage in vote buying activities on election day of May 10, 2004, by distributing or giving Uniwide gift certificates, a thing of value, as consideration to induce or influence the voters to vote for candidate Pablo Olivarez, a candidate for the City Mayor of Paraaque, in violation of Omnibus Election Code. Criminal Case No. 04-1105 That on or about the 10th day of May, 2004, in the City of Paraaque, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, Carmelo Jaro and Pablo Olivarez, conspiring and confederating together and both of them mutually helping and aiding one another, did then and there willfully, unlawfully and feloniously, engage in vote buying activities on election day of May 10, 2004, by distributing or giving Uniwide gift certificates, a thing of value, as consideration to induce or influence the voters to vote for candidate Pablo Olivarez, a candidate for the City Mayor of Paraaque, in violation of the Omnibus Election Code. The arraignment of the respondent was initially set on 18 October 2004.5 On 7 October 2004, respondent filed before the Law Department of the Commission on Elections (COMELEC) an "[a]ppeal of [the] Joint Resolution of the City Prosecutor of Paraaque City with Motion to Revoke Continuing Authority" pursuant to Section 10, Rule 34 of the 1993 COMELEC Rules of Procedure. Respondent argued that the pendency of the appeal of the Joint Resolution before the COMELEC should prevent the filing of the Informations before the RTC as there could be no final finding of probable cause until the COMELEC had resolved the appeal. Moreover, he argued that the charges made against him were groundless.6 In a letter7 dated 11 October 2004, the Law Department of the COMELEC directed the city prosecutor to transmit or elevate the entire records of the case and to suspend further implementation of the Joint Resolution dated 20 September 2004 until final resolution of the said appeal before the COMELEC en banc.

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On 11 October 2004, respondent filed a Motion to Quash the two criminal informations on the ground that more than one offense was charged therein, in violation of Section 3(f), Rule 117 of the Rules of Court, in relation to Section 13, Rule 110 of the Rules of Court.8 This caused the resetting of the scheduled arraignment on 18 October 2004 to 13 December 2004.9 Before Judge Madrona could act on the motion to quash, Assistant Prosecutor Pablo-Medina, with the approval of the city prosecutor, filed on 28 October 2004 its "Opposition to the Motion to Quash and Motion to Admit Amended Informations.10 " The Amended Informations sought to be admitted charged respondent with violation of only paragraph a, in relation to paragraph b, of Section 261, Article XXII of the Omnibus Election Code.11 On 1 December 2004, Judge Madrona issued an Order resetting the hearing scheduled on 13 December 2004 to 1 February 2005 on account of the pending Motion to Quash of the respondent and the Amended Informations of the public prosecutor.12 On 14 December 2004, respondent filed an "Opposition to the Admission of the Amended Informations," arguing that no resolution was issued to explain the changes therein, particularly the deletion of paragraph k, Section 261, Article XXII of the Omnibus Election Code . Moreover, he averred that the city prosecutor was no longer empowered to amend the informations, since the COMELEC had already directed it to transmit the entire records of the case and suspend the hearing of the cases before the RTC until the resolution of the appeal before the COMELEC en banc.13 On 12 January 2005, Judge Madrona issued an order denying respondents Motion to Quash dated 11 October 2004, and admitted the Amended Informations dated 25 October 2004.14 Respondent filed an Urgent Motion for Reconsideration dated 20 January 2005 thereon.15 On 1 February 2005, Judge Madrona reset the arraignment to 9 March 2005, with a warning that the arraignment would proceed without any more delay, unless the Supreme Court would issue an injunctive writ.16 On 9 March 2005, respondent failed to appear before the RTC. Thereupon, Judge Madrona, in open court, denied the Motion for Reconsideration of the Order denying the Motion to Quash and admitting the Amended Informations, and ordered the arrest of respondent and the confiscation of the cash bond.17 On 11 March 2005, respondent filed an "Urgent Motion for Reconsideration and/or to Lift the Order of Arrest of Accused Dr. Pablo Olivarez,"18 which was denied in an Order dated 31 March 2005. The Order directed that a bench warrant be issued for the arrest of respondent to ensure his presence at his arraignment.19 On 5 April 2005, the Law Department of the COMELEC filed before the RTC a Manifestation and Motion20 wherein it alleged that pursuant to the COMELECs powers to investigate and prosecute election offense cases, it had the power to revoke the delegation of its authority to the city prosecutor. Pursuant to these powers, the COMELEC promulgated Resolution No. 745721 dated 4 April 2005. The dispositive portion of Resolution No. 7457 states: Considering the foregoing, the Commission RESOLVED, as it hereby RESOLVES, to APPROVE and ADOPT the recommendation of the Law Department as follows: 1. To revoke the deputation of the Office of the City Prosecutor of Paraaque to investigate and prosecute election offense cases insofar as I.S. Nos. 04-2608 and 04-2774, entitled "Renato Comparativo vs. Remedios Malabiran and Pablo Olivarez" and "Bienvenido et. al. vs. Sally Rose Saraos, et. al.," respectively, are concerned; and

2. To direct the Law Department to handle the prosecution of these cases and file the appropriate Motion and Manifestation before the Regional Trial Court of Paraaque, Branch 274, to hold in abeyance further proceedings on Criminal Case Nos. 1104 and 1105 until the Commission has acted on the appeal of respondents. Let the Law Department implement this Resolution. Thus, the Law Department of the COMELEC moved (1) that the RTC hold in abeyance further proceedings in Criminal Cases No. 04-1104 and No. 04-1105 until the COMELEC has acted on respondents appeal; and (2) to revoke the authority of the city prosecutor of Paraaque to prosecute the case, designating therein the lawyers from the Law Department of the COMELEC to prosecute Criminal Cases No. 04-1104 and No. 04-1105. On 8 April 2005, respondent filed a Special Civil Action for Certiorari before the Court of Appeals docketed as CA-G.R. SP No. 89230, assailing the Orders, dated 12 January 2005, 9 March 2005 and 31 March 2005 of the RTC. The appellate court granted the appeal in a Decision dated 28 September 2005 declaring that the COMELEC had the authority to conduct the preliminary investigation of election offenses and to prosecute the same. As such, the COMELEC may delegate such authority to the Chief State Prosecutor, provincial prosecutors, and city prosecutors. The COMELEC, however, has the corresponding power, too, to revoke such authority to delegate. Thus, the categorical order of the COMELEC to suspend the prosecution of the case before the RTC effectively deprived the city prosecutor of the authority to amend the two informations. The appellate court also pronounced that Judge Madrona erred in admitting the amended informations, since they were made in excess of the delegated authority of the public prosecutor, and his orders to arrest the respondent and to confiscate the latters cash bond were devoid of legal basis.22 The fallo of the Decision reads: UPON THE VIEW WE TAKE OF THIS CASE, THUS, the petition at bench must be, as it hereby is, GRANTED. The impugned Orders of the public respondent Judge Fortunito L. Madrona of Branch 274, Regional Trial Court of Paraaque City dated 12 January 2005, 9 March 2005, and 31 March 2005 are hereby VACATED and NULLIFIED. The Temporary Restraining Order issued in the instant petition is made PERMANENT. Without costs in this instance.23 Hence, the present petition under Rule 65 where the petitioners enumerate the following assignments of error, to wit: I THE HONORABLE COURT OF APPEALS ERRED IN NULLIFYING THE ORDER OF THE COURT A QUO AS IT BASICALLY ERRED IN ITS APPRECIATION THAT THE TWO AMENDED INFORMATIONS WERE FILED AT A TIME WHEN THE PUBLIC PROSECUTOR HAD NO MORE AUTHORITY TO DO SO; II THE HONORABLE COURT OF APPEALS ERRED IN GIVING CREDENCE TO ACCUSEDS ALLEGATION THAT COMELEC RESOLUTION WAS RECEIVED BY THE PROSECUTOR "DAYS BEFORE THE (sic) FILED THE AMENDED INFORMATIONS;" III THE HONORABLE COURT OF APPEALS ERRED IN DECLARING AS PERMANENT THE TEMPORARY RESTRAINING ORDER EARLIER ISSUED.24 This Court finds merit in the present petition. At the outset, it should be noted that the appropriate remedy for petitioners is to file a petition for review on certiorari under Rule

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45 of the Rules of Court, and not a petition for certiorari under Rule 65 as petitioners aver in their Manifestation and Motion dated 9 January 2006. However, in accordance with the liberal spirit pervading the Rules of Court and in the interest of justice, this Court has decided to treat the present petition for certiorari as having been filed under Rule 45, especially considering that it was filed within the reglementary period for the same. Petitioners received the Court of Appeals Resolution on 24 November 2005 and filed an Urgent Motion for Extension of Time to Appeal on 6 December 2005, within the 15-day reglementary period for the filing of a petition for review on certiorari. This Court granted the motion of petitioners for an extension of 30 days from 9 December 2005, the expiration of the reglementary period, and the petitioners were able to file their petition on 6 January 2006 within the period for extension granted by this Court. It cannot therefore be claimed that this petition is being used as a substitute for appeal after the remedy has been lost through the fault of the petitioner.25 The main issues in this case are (1) whether or not the Office of the City Prosecutor of Paraaque had acted in excess of its jurisdiction when it filed the Amended Informations, and whether Judge Madrona had acted in excess of his jurisdiction when he admitted the said Amended Informations and denied the respondents motion to quash; and (2) whether or not Judge Madrona had acted in accordance with law when he issued the warrant for the arrest of respondent and ordered the confiscation of his cash bond due to the latters failure to appear for arraignment. There is no dispute that the COMELEC is empowered to investigate and prosecute election offenses, and that the Chief State Prosecutor, the provincial prosecutors and city prosecutors, acting on its behalf, must proceed within the lawful scope of their delegated authority. Section 265 of the Omnibus Election Code provides: Section 265. Prosecution.The Commission shall, through its duly authorized legal officers, have the exclusive power to conduct preliminary investigation of all election offenses punishable under this Code, and to prosecute the same. The Commission may avail of the assistance of other prosecuting arms of the government: Provided, however, That in the event that the Commission fails to act on any complaint within four months from his filing, the complainant may file the complaint with the office of the fiscal or with the Ministry of Justice for proper investigation and prosecution, if warranted. Section 2, Rule 34 of the COMELEC Rules of Procedure provides for the continuing delegation of authority to other prosecuting arms of the government, an authority that the COMELEC may revoke or withdraw in the proper exercise of its judgment. Section 2. Continuing Delegation of Authority to Other Prosecution Arms of the Government.The Chief State Prosecutor, all Provincial and City Fiscals, and/or their respective assistants are herby given continuing authority, as deputies of the Commission, to conduct preliminary investigation of complaints involving election offenses under the election laws which may be filed directly with them, or which may be indorsed to them by the Commission or its duly authorized representative and to prosecute the same. Such authority may be revoked or withdrawn any time by the Commission whenever in its judgment such revocation or withdrawal is necessary to protect the integrity of the Commission, promote the common good, or when it believes that successful prosecution of the case can be done by the Commission. Furthermore, Section 10 of the COMELEC Rules of Procedure provides that the COMELEC is empowered to revise, modify and reverse the resolution of the Chief State Prosecutor and/or provincial/city prosecutors. Section 10. Appeals from the Action of the State Prosecutor, Provincial or City Fiscal.Appeals from the resolution of the State Prosecutor or Provincial or City Fiscal on the recommendation or resolution of investigating officers may be

made only to the Commission within ten (10) days from receipt of the resolution of said officials, provided, however that this shall not divest the Commission of its power to motu proprio review, revise, modify or reverse the resolution of the chief state prosecutor and/or provincial/city prosecutors. The decision of the Commission on said appeals shall be immediately executory and final. Be that as it may, this Court finds that the public prosecutors, in filing the Amended Informations, did not exceed the authority delegated by the COMELEC. Resolution No. 7457, which effectively revoked the deputation of the Office of the City Prosecutor of Paraaque, was issued on 4 April 2005, after the Amended Informations were filed on 28 October 2004. The letter dated 11 October 2004, written by Director Alioden D. Dalaig of the COMELEC Law Department, did not revoke the continuing authority granted to the City Prosecutor of Paraaque. It simply reads: In this connection, you are hereby directed to transmit the entire records of the case to the Law Department, Commission on Elections, Intramuros, Manila by the fastest means available. You are further directed to suspend further implementation of the questioned resolution until final resolution of said appeal by the Comelec En Banc.26 The filing of the Amended Informations was not made in defiance of these instructions by the COMELEC; rather it was an act necessitated by the developments of the case. Respondent filed a Motion to Quash on 11 October 2004 on the ground that more than one offense was charged therein. Section 14, Rule 110 of the Rules on Criminal Procedure, provides: Section 14. Amendment or substitution. A complaint or information may be amended, in form or in substance, without leave of court, at any time before the accused enters his plea. After the plea and during the trial, a formal amendment may only be made with leave of court and when it can be done without causing prejudice to the rights of the accused. x x x. (Emphasis provided.) Since the Rules of Court provided for a remedy that would avert the dismissal of the complaints on the ground that more than one offense was charged, the public prosecutor filed the Amended Informations. The instructions of the COMELEC, in the letter dated 11 October 2004, were clearly intended to allow sufficient time to reconsider the merit of the Joint Resolution, not to have the public prosecutor abandon the prosecution of the case and negligently allow its dismissal by not filing the Amended Informations, thus, leaving the COMELEC in a quandary should it later dismiss the appeal before it. By filing the Amended Informations, the public prosecutor had avoided such an undesirable situation, which would have forced the COMELEC to re-file the cases, waste government resources, and delay the administration of justice. Thus, the precautionary measure taken by the public prosecutor was clearly not intended to disobey the COMELEC, or to flout its authority or diminish its powers to review the appealed Joint Resolution. As such, the filing of the Amended Informations cannot in any way be considered improper. Consequently, Judge Madrona acted in accordance with law when he admitted these Informations and dismissed the respondents Motion to Quash, as the ground stated thereinthe informations charged more than one offensecould no longer be sustained. Moreover, no abuse of discretion can be attributed to Judge Madrona when he issued the Orders, dated 9 March 2005 and 31 March 2005, for the arrest of the respondent due to his failure to be present for his arraignment and for the confiscation of his cash bond. These Orders are consistent with criminal procedure. The filing of an information in the trial court initiates a criminal action. The trial court thereby acquires jurisdiction over the case. After the filing of the complaint or the information, a warrant for the arrest of the accused is issued by the trial court. When the accused voluntarily submits himself to the court or is duly arrested, the court then acquires jurisdiction over the person of

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the accused.27 In this case, the trial court acquired jurisdiction over the persons of the accused Carmelo Jaro, Remedios Malibaran, and the respondent, who posted bail bonds after the trial court issued a Warrant of Arrest on 4 October 2004. While it is true that the fiscal has the quasi-judicial discretion to determine whether or not a criminal case should be filed in court, once the case has been brought to court, whatever disposition the fiscal may feel is proper in the case should be addressed to the consideration of the trial court.28 Thereafter, arraignment shall follow as a matter of course. Section 11, Rule 116 of the Rules of Criminal Procedure, enumerates the instances that can suspend the arraignment of the accused: Section 11. Suspension of arraignment.Upon motion of the proper party, the arraignment shall be suspended in the following cases: xxxx (c) A petition for review of the resolution of the prosecutor is pending at either the Department of Justice, or the Office of the President; Provided, That the period of suspension shall not exceed sixty (60) days counted from the filing of the petition with the reviewing office. From the foregoing, it is clear that the arraignment of the accused is not indefinitely suspended by the pendency of an appeal before the Department of Justice or, in this case, Law Department of the COMELEC; rather, the reviewing authority is allowed 60 days within which to decide the appeal. In this case, respondent filed his Appeal of the Joint Resolution at the Office of the City Prosecutor of Paraaque on 7 October 2004. Thus, the arraignment that was scheduled on 11 October 2004 was rescheduled to 13 December 2004, approximately 60 days thereafter. On 1 December 2004, the arraignment scheduled on 13 December 2004 was reset to 1 February 2005 because of the pending Motion to Quash. When the respondent failed to appear on the scheduled arraignment, Judge Madrona nonetheless reset the arraignment to 9 March 2005, with the warning that the court would impose the appropriate sanctions, should respondent still fail to appear therein. It was only on 9 March 2005, or five months after the respondent filed his appeal before the Law Department of the COMELEC that Judge Madrona held the arraignment and issued the Bench Warrant of Arrest against respondent.29 Five months, which far exceeded the sixty days provided by the rules, was ample time for the respondent to obtain from COMELEC a reversal of the Joint Resolution. In pronouncing that Judge Madrona acted in grave abuse of discretion when he failed to defer the arraignment of the respondent, the Court of Appeals cited Solar Team Entertainment, Inc. v. Judge How,30 wherein this Court cautioned judges to refrain from precipitately arraigning the accused to avoid any miscarriage of justice. However, this case was decided before the Rules of Criminal Procedure were revised on 1 December 2000; and the rule setting the 60-day period for the suspension of the arraignment of the accused pending an appeal or a petition for review before a reviewing authority was not yet applicable. Nevertheless, it should be noted that even in Solar, this Court did not sanction an indefinite suspension of the proceedings in the trial court. Its reliance on the reviewing authority, the Justice Secretary, to decide the appeal at the soonest possible time was anchored on the rule provided under Department Memorandum Order No. 12, dated 3 July 2000, which mandates that the period for the disposition of appeals or petitions for review shall be 75 days.31 WHEREFORE, the instant appeal is GRANTED. The Decision of the Court of Appeals dated 28 September 2005 in CA-G.R. SP No. 89230 is REVERSED. This Court orders the continuation of the proceedings in Criminal Cases No. 04-1104 and No. 04-1105 before the RTC, the prosecution of which shall be under the direction of the Law Department of the COMELEC. No costs. SO ORDERED.

G.R. No. 192898

January 31, 2011

SPOUSES ALEXANDER TRINIDAD and CECILIA TRINIDAD, Petitioners, vs. VICTOR ANG, Respondent. RESOLUTION BRION, J.: We resolve the motion for reconsideration filed by petitioner spouses Alexander Trinidad and Cecilia Trinidad (petitioners) to challenge our Resolution of September 29, 2010. Our Resolution denied the petition for review on certiorari for its failure to state the material dates of receipt of the order1 of the Regional Trial Court (RTC), Branch 44, Masbate City, and of filing the motion for reconsideration, in violation of Sections 4(b)2 and 5,3 Rule 45, in relation to Section 5(d),4 Rule 56 of the Rules of Court. Antecedent Facts On September 3, 2007, the Office of the City Prosecutor, Masbate City, issued a Resolution recommending the filing of an Information for Violation of Batas Pambansa Bilang 22 against the petitioners. On October 10, 2007, the petitioners filed with the Department of Justice (DOJ) a petition for review challenging this Resolution. On March 3, 2009, the Office of the City Prosecutor filed before the Municipal Trial Court in Cities (MTCC), Fifth Judicial Region, Masbate City, an Information for Violation of Batas Pambansa Bilang 22 against the petitioners. As the case was covered by the Rules on Summary Procedure, the MTCC ordered the petitioners to submit their counter affidavits and to appear in court within 10 days from receipt of the said order. The petitioners filed a Manifestation and Motion to Defer Arraignment and Proceedings and Hold in Abeyance the Issuance of Warrants of Arrest5 praying, among others, for the deferment of their arraignment in view of the pendency of their petition for review before the DOJ. The MTCC, in its Order6 dated May 28, 2009, granted the motion, "subject x x x to paragraph c[,] Section 11, Rule 116 of the Revised Rules of Criminal Procedure." On August 10, 2009, the MTCC reconsidered this order, and set the petitioners arraignment on September 10, 2009.7 The petitioners filed a petition for certiorari before the RTC, docketed as SCA No. 05-2009. The RTC, in its decision8 of January 6, 2010, denied this petition. The petitioners moved to reconsider this decision, but the RTC denied their motion in its order9 dated July 5, 2010. The RTC held that the MTCC judge did not err in setting the arraignment of the petitioners after the lapse of one (1) year and ten (10) months from the filing of the petition for review with the DOJ. It explained that the cases cited by the petitioners were decided before the amendment of the Revised Rules of Criminal Procedure. After the amendment of the Rules on December 1, 2000, the Supreme Court applied the 60-day limit on suspension of arraignment in case of a pendency of a petition for review with the DOJ. The petitioners filed with this Court a petition for review on certiorari essentially claiming that the 60-day limit on suspension of arraignment is only a general rule. They cited several cases to show that the arraignment of an accused should be deferred until the petition for review with the DOJ is resolved. As earlier stated, we denied the petition for its failure to state the material dates of receipt of the assailed RTC order and of filing the motion for reconsideration.

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The Motion for Reconsideration In the present motion for reconsideration, the petitioners claim that the date of receipt of the assailed RTC order was stated in the petition. The petitioners further state that they filed the motion for reconsideration on January 2, 2010. The Courts Ruling We grant the motion for reconsideration and reinstate the petition for review on certiorari. A careful examination of the petition reveals that it stated the date when the petitioners received a copy of the RTCs assailed order. In addition, the petitioners failure to state the material date of filing the motion for reconsideration is only a formal requirement that warrants the relaxation of the rules in accordance with the liberal spirit pervading the Rules of Court and in the interest of justice. Nevertheless, we resolve to deny the petition for its failure to show any reversible error in the challenged RTC order. The grounds for suspension of arraignment are provided under Section 11, Rule 116 of the Rules of Court, which provides: SEC. 11. Suspension of Arraignment. Upon motion by the proper party, the arraignment shall be suspended in the following cases: (a) The accused appears to be suffering from an unsound mental condition which effectively renders him unable to fully understand the charge against him and to plead intelligently thereto. In such case, the court shall order his mental examination and, if necessary, his confinement for such purpose; (b) There exists a prejudicial question; and (c) A petition for review of the resolution of the prosecutor is pending at either the Department of Justice, or the Office of the President; Provided, that the period of suspension shall not exceed sixty (60) days counted from the filing of the petition with the reviewing office. In Samson v. Daway,10 the Court explained that while the pendency of a petition for review is a ground for suspension of the arraignment, the aforecited provision limits the deferment of the arraignment to a period of 60 days reckoned from the filing of the petition with the reviewing office. It follows, therefore, that after the expiration of said period, the trial court is bound to arraign the accused or to deny the motion to defer arraignment. In the present case, the petitioners filed their petition for review with the DOJ on October 10, 2007. When the RTC set the arraignment of the petitioners on August 10, 2009, 1 year and 10 months had already lapsed. This period was way beyond the 60day limit provided for by the Rules. In addition, the cases cited by the petitioners Solar Team Entertainment, Inc. v. How,11 Roberts, Jr. v. CA,12 and Dimatulac v. Villon13 were all decided prior to the amendment to Section 11 of the Revised Rules of Criminal Procedure which took effect on December 1, 2000. At the time these cases were decided, there was no 60-day limit on the suspension of arraignment.1wphi1 WHEREFORE, premises considered, the Court resolves to: (1) GRANT the present motion for reconsideration, and REINSTATE the petition for review on certiorari; and (2) DENY the said petition for petitioners failure to show any reversible error in the challenged RTC order. SO ORDERED.

Rule 117
G.R. No. 143193 June 29, 2005

MELBAROSE R. SASOT and ALLANDALE R. SASOT, petitioners, vs. PEOPLE OF THE PHILIPPINES, The Honorable court of of appeals, and REBECCA G. SALVADOR, Presiding Judge, RTC, Branch 1, Manila, respondents. DECISION AUSTRIA-MARTINEZ, J.: The case subject of the present special civil action for certiorari is a criminal prosecution against petitioners for unfair competition under Article 189 of the Revised Penal Code, filed before the Regional Trial Court (RTC) of Manila (Branch 1), and docketed as Criminal Case No. 98-166147.1 Some time in May 1997, the National Bureau of Investigation (NBI) conducted an investigation pursuant to a complaint by the NBA Properties, Inc., against petitioners for possible violation of Article 189 of the Revised Penal Code on unfair competition. In its Report dated June 4, 1997, the NBI stated that NBA Properties, Inc., is a foreign corporation organized under the laws of the United States of America, and is the registered owner of NBA trademarks and names of NBA basketball teams such as "USA Basketball," "Chicago Bulls," "Orlando Magic," "Los Angeles Lakers," "Rockets," "Phoenix Suns," "Bullets," "Pacers," "Charlotte Hornets," "Blazers," "Denver Nuggets," "Sacramento Kings," "Miami Heat," Utah Jazz," "Detroit Pistons," "Milwaukee Bucks," "Seattle Sonics," "Toronto Raptors," "Atlanta Hawks," "Cavs," "Dallas Mavericks," "Minnesota Timberwolves," and "Los Angeles Clippers." These names are used on hosiery, footwear, t-shirts, sweatshirts, tank tops, pajamas, sport shirts, and other garment products, which are allegedly registered with the Bureau of Patents, Trademarks and Technology Transfer. The Report further stated that during the investigation, it was discovered that petitioners are engaged in the manufacture, printing, sale, and distribution of counterfeit "NBA" garment products. Hence, it recommended petitioners prosecution for unfair competition under Article 189 of the Revised Penal Code.2 In a Special Power of Attorney dated October 7, 1997, Rick Welts, as President of NBA Properties, Inc., constituted the law firm of Ortega, Del Castillo, Bacorro, Odulio, Calma & Carbonell, as the companys attorney-in-fact, and to act for and on behalf of the company, in the filing of criminal, civil and administrative complaints, among others.3The Special Power of Attorney was notarized by Nicole Brown of New York County and certified by Norman Goodman, County Clerk and Clerk of the Supreme Court of the State of New York. Consul Cecilia B. Rebong of the Consulate General of the Philippines, New York, authenticated the certification.4 Welts also executed a Complaint-Affidavit on February 12, 1998, before Notary Public Nicole J. Brown of the State of New York.5 Thereafter, in a Resolution dated July 15, 1998, Prosecution Attorney Aileen Marie S. Gutierrez recommended the filing of an Information against petitioners for violation of Article 189 of the Revised Penal Code.6 The accusatory portion of the Information reads: That on or about May 9, 1997 and on dates prior thereto, in the City of Manila, Philippines, and within the jurisdiction of this Honorable Court, above named accused ALLANDALE SASOT and MELBAROSE SASOT of Allandale Sportslines, Inc., did then and there willfully, unlawfully and feloniously manufacture and sell various garment products bearing the appearance of "NBA" names, symbols and trademarks, inducing the public to believe that the goods offered by them are those of "NBA" to the damage and prejudice of the NBA Properties, Inc., the trademark owner of the "NBA".

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CONTRARY TO LAW.7 Before arraignment, petitioners filed a Motion to Quash the Information on the following grounds: I. THAT THE FACTS CHARGED DO NOT CONSTITUTE AN OFFENSE II. AND THIS HONORABLE COURT HAD NO JURISDICTION OVER THE OFFENSE CHARGED OR THE PERSON OF THE ACCUSED8 In support of the foregoing, petitioners argue that the fiscal should have dismissed Weltss complaint because under the rules, the complaint must be sworn to before the prosecutor and the copy on record appears to be only a fax transmittal.9 They also contend that complainant is a foreign corporation not doing business in the Philippines, and cannot be protected by Philippine patent laws since it is not a registered patentee. Petitioners aver that they have been using the business name "ALLANDALE SPORTSLINE, INC." since 1972, and their designs are original and do not appear to be similar to complainants, and they do not use complainants logo or design.10 The trial prosecutor of the RTC-Manila (Branch 1), Jaime M. Guray, filed his Comment/Opposition to the motion to quash, stating that he has the original copy of the complaint, and that complainant has an attorney-in-fact to represent it. Prosecutor Guray also contended that the State is entitled to prosecute the offense even without the participation of the private offended party, as the crime charged is a public crime.11 The trial court sustained the prosecutions arguments and denied petitioners motion to quash in its Order dated March 5, 1999.12 Petitioners filed a special civil action for certiorari with the Court of Appeals (CA) docketed as CA-G.R. SP No. 52151 which was dismissed per its Decision dated January 26, 2000.13 According to the CA, the petition is not the proper remedy in assailing a denial of a motion to quash, and that the grounds raised therein should be raised during the trial of the case on the merits.14 The dispositive portion of the assailed Decision reads: WHEREFORE, premises considered, the petition for certiorari is hereby DISMISSED. Respondent court is hereby ordered to conduct further proceedings with dispatch in Criminal Case No. 98-166147. SO ORDERED.15 Petitioners sought reconsideration of the Decision but this was denied by the CA.16 Hence, the present petition for review on certiorari under Rule 45 of the Rules of Court, with issues raised as follows: 1. WHETHER A FOREIGN CORPORATION NOT ENGAGED AND LICENSE (sic) TO DO BUSINESS IN THE PHILIPPINES MAY MAINTAIN A CAUSE OF ACTION FOR UNFAIR COMPETITION. 2. WHETHER AN OFFICER OF A FOREIGN CORPORATION MAY ACT IN BEHALF OF A CORPORATION WITHOUT AUTHORITY FROM ITS BOARD OF DIRECTORS. 3. WHETHER A FOREIGN CORPORATION NOT ENGAGED IN BUSINESS AND WHOSE EMBLEM IT SOUGHT TO PROTECT IS NOT IN ACTUAL USE IS ENTITLED TO THE PROTECTION OF THE PHILIPPINE LAW. 4. WHETHER THE RESPONDENT REGIONAL TRIAL COURT CORRECTLY ASSUMED JURISDICTION OVER THE CASE AND THE PERSONS OF THE ACCUSED.

5. WHETHER THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION WHEN IT DISMISSED THE PETITION.17 Petitioners reiterate the argument that the complaint filed by Rick Welts of the NBA Properties, Inc., is defective and should have been dismissed by the fiscal because it should have been personally sworn to by the complainant before the investigating prosecutor. They also reiterate the claim that Welts failed to show any board resolution showing his authority to institute any action in behalf of the company, and that the NBAs trademarks are not being actually used in the Philippines, hence, they are of public dominion and cannot be protected by Philippine patent laws. Petitioners further contend that they have not committed acts amounting to unfair competition.18 The Office of the Solicitor General appeared in behalf of the People, and filed its Amended Comment to the petition, praying for its dismissal, arguing that the CA did not commit any grave abuse of discretion in dismissing the petition for reasons stated in its Decision dated January 26, 2000.19 The petition must be denied. The Court has consistently held that a special civil action for certiorari is not the proper remedy to assail the denial of a motion to quash an information.20 The proper procedure in such a case is for the accused to enter a plea, go to trial without prejudice on his part to present the special defenses he had invoked in his motion to quash and, if after trial on the merits, an adverse decision is rendered, to appeal therefrom in the manner authorized by law.21Thus, petitioners should not have forthwith filed a special civil action for certiorari with the CA and instead, they should have gone to trial and reiterate the special defenses contained in their motion to quash. There are no special or exceptional circumstances22 in the present case such that immediate resort to a filing of a petition forcertiorari should be permitted. Clearly, the CA did not commit any grave abuse of discretion in dismissing the petition. Moreover, the Court does not find any justification for the quashal of the Information filed against petitioners. For one, while petitioners raise in their motion to quash the grounds that the facts charged do not constitute an offense and that the trial court has no jurisdiction over the offense charged or the person of the accused,23 their arguments focused on an alleged defect in the complaint filed before the fiscal, complainants capacity to sue and petitioners exculpatory defenses against the crime of unfair competition. Section 3, Rule 117 of the 1985 Rules of Criminal Procedure, which was then in force at the time the alleged criminal acts were committed, enumerates the grounds for quashing an information, to wit: a) That the facts charged do not constitute an offense; b) That the court trying the case has no jurisdiction over the offense charged or the person of the accused; c) That the officer who filed the information had no authority to do so; d) That it does not conform substantially to the prescribed form; e) That more than one offense is charged except in those cases in which existing laws prescribe a single punishment for various offenses; f) That the criminal action or liability has been extinguished;

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g) That it contains averments which, if true, would constitute a legal excuse or justification; and h) That the accused has been previously convicted or in jeopardy of being convicted, or acquitted of the offense charged. Nowhere in the foregoing provision is there any mention of the defect in the complaint filed before the fiscal and the complainants capacity to sue as grounds for a motion to quash. For another, under Section 3, Rule 112 of the 1985 Rules of Criminal Procedure, a complaint is substantially sufficient if it states the known address of the respondent, it is accompanied by complainants affidavit and his witnesses and supporting documents, and the affidavits are sworn to before any fiscal, state prosecutor or government official authorized to administer oath, or in their absence or unavailability, a notary public who must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits. All these have been duly satisfied in the complaint filed before Prosecution Attorney Aileen Marie S. Gutierrez. It must be noted that even the absence of an oath in the complaint does not necessarily render it invalid.24 Want of oath is a mere defect of form, which does not affect the substantial rights of the defendant on the merits.25 In this case, Weltss Complaint-Affidavit contains an acknowledgement by Notary Public Nicole Brown of the State of New York that the same has been subscribed and sworn to before her on February 12, 1998,26 duly authenticated by the Philippine Consulate. While the copy on record of the complaint-affidavit appears to be merely a photocopy thereof, Prosecution Attorney Gutierrez stated that complainants representative will present the authenticated notarized original in court,27 and Prosecutor Guray manifested that the original copy is already on hand.28 It is apt to state at this point that the prosecutor enjoys the legal presumption of regularity in the performance of his duties and functions, which in turn gives his report the presumption of accuracy.29 Moreover, records show that there are other supporting documents from which the prosecutor based his recommendation, to wit: (1) The NBI Report dated June 4, 1997, containing an account of the investigation conducted from April 30, 1997 to May 9, 1997, and the subsequent search and seizure of several items from petitioners establishment;30 (2) The letter dated May 8, 1997 from the law firm of Ortega, Del Castillo, Bacorro, Odulio, Calma & Carbonell to the NBI, seeking assistance in stopping the illegal manufacture, distribution and sale of "fake products bearing the NBA trademark, and in prosecuting the proprietors of aforesaid factory;"31 and (3) The Joint Affidavit executed by Rechie D. Malicse and Dalisay P. Bal-ot of the Pinkerton Consulting Services (Phils.) Inc., which was certified to by Prosecution Attorney Gutierrez, attesting to their findings that petitioners were found to be manufacturing, printing, selling, and distributing counterfeit "NBA" garment products.32 Consequently, if the information is valid on its face, and there is no showing of manifest error, grave abuse of discretion and prejudice on the part of public prosecutor, as in the present case, the trial court should respect such determination.33 More importantly, the crime of Unfair Competition punishable under Article 189 of the Revised Penal Code34 is a public crime. It is essentially an act against the State and it is the latter which principally stands as the injured party. The complainants capacity to sue in such case becomes immaterial.

In La Chemise Lacoste, S.A. vs. Fernandez,35 a case akin to the present dispute, as it involved the crime of Unfair Competition under Article 189 of the Revised Penal Code, and the quashal of search warrants issued against manufacturers of garments bearing the same trademark as that of the petitioner, the Court succinctly ruled that: More important is the nature of the case which led to this petition. What preceded this petition for certiorari was a lettercomplaint filed before the NBI charging Hemandas with a criminal offense, i.e., violation of Article 189 of the Revised Penal Code. If prosecution follows after the completion of the preliminary investigation being conducted by the Special Prosecutor the information shall be in the name of the People of the Philippines and no longer the petitioner which is only an aggrieved party since a criminal offense is essentially an act against the State. It is the latter which is principally the injured party although there is a private right violated. Petitioner's capacity to sue would become, therefore, of not much significance in the main case. We cannot allow a possible violator of our criminal statutes to escape prosecution upon a far-fetched contention that the aggrieved party or victim of a crime has no standing to sue. In upholding the right of the petitioner to maintain the present suit before our courts for unfair competition or infringement of trademarks of a foreign corporation, we are moreover recognizing our duties and the rights of foreign states under the Paris Convention for the Protection of Industrial Property to which the Philippines and France are parties. We are simply interpreting and enforcing a solemn international commitment of the Philippines embodied in a multilateral treaty to which we are a party and which we entered into because it is in our national interest to do so.36 (Emphasis supplied) Lastly, with regard to petitioners arguments that the NBA Properties, Inc., is not entitled to protection under Philippine patent laws since it is not a registered patentee, that they have not committed acts amounting to unfair competition for the reason that their designs are original and do not appear to be similar to complainants, and they do not use complainants logo or design, the Court finds that these are matters of defense that are better ventilated and resolved during trial on the merits of the case. WHERFORE, the petition is DENIED for lack of merit. Let the records of this case be REMANDED to the Regional Trial Court of Manila (Branch 24) where Criminal Case No. 98-166147 is presently assigned, for further proceedings with reasonable dispatch. SO ORDERED.

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G.R. No. 150606

June 7, 2007

On August 16, 2001, State Prosecutor Tolentino filed an Opposition to Motion to Quash4 on the following grounds: (1) He (State Prosecutor Tolentino) is authorized to investigate, file the necessary Information and prosecute SSS cases since he was designated as Special Prosecutor for SSS cases by Regional State Prosecutor Santiago M. Turingan by virtue of Regional Order No. 97-024A dated July 14, 1997; (2) In a letter5 dated October 24, 2000, Chief State Prosecutor Jovencito Zuo confirmed such authority and that Informations to be filed in court by prosecutors-designate do not need the approval of the Regional State Prosecutor or Provincial or City Prosecutor; (3) Under the Administrative Code of 1987, the Regional State Prosecutor, as alter ego of the Secretary of Justice, is vested with authority to designate Special Prosecutors; and (4) The City Prosecutor has been inhibited by the private complainant from investigating SSS Cases as it is the Panel of Prosecutors that is now acting as City Prosecutor over all city cases involving violations of the Social Security Act. As acting Prosecutor, the panel outranks the City Prosecutor. On August 24, 2001, the RTC issued an Order quashing the Information and dismissing the case, thus: For resolution is a motion to quash filed by x x x counsel for the accused, with an opposition to the same filed by State Prosecutor Romulo SJ. Tolentino, the prosecutor who filed the information. The motion is based on the lack of legal personality of State Prosecutor Tolentino, [not being] legally clothed with the authority to commence prosecution by the filing of the information and, thus, prosecute the case. One of the grounds provided by the rules to quash an Information is paragraph (c), of Sec. 3 of Rule 117. "(c) that the officer who filed the information had no authority to do so." A glance on the face of the information would glaringly show that it was filed by State Prosecutor Romulo Tolentino, without the approval of the City Prosecutor of Naga City, the situs of the crime, a blatant violation of the third paragraph of Sec. 4 of Rule 112 of the Revised Rules on Criminal Procedure. An information filed by a qualified and authorized officer is required for the jurisdiction of the court over the case (Villa v. Ibaez, et al., 88 Phil. 402). A justification put up by State Prosecutor Tolentino is a Regional Order No. 07-024-A subject of which is the Designation of Personnel issued by the Regional State Prosecutor which in effect designated him as the special prosecutor to handle the investigation of all SSS cases filed before the Offices of the City Prosecutor of the Cities of Naga, Iriga and Legaspi and the Offices of the Provincial Prosecutor of the different provinces in the Bicol Region, except the provinces of Catanduanes and Masbate, and if evidence warrants to file the necessary information and prosecute the same in the court of [appropriate] jurisdiction. The designation of State Prosecutor Tolentino to investigate, file this information if the evidence warrants, and to prosecute SSS cases in court does not

STATE PROSECUTOR AND SPECIAL PROSECUTOR ON SSS CASES IN REGION V, ROMULO SJ. TOLENTINO, AND REGIONAL STATE PROSECUTOR SANTIAGO M. TURINGAN, as alter ego of the Secretary of Justice in Region V, in their official capacities, and, for and in representation of the PEOPLE OF THE PHILIPPINES and MARITES C. DE LA TORRE, in her official capacity as counsel for the Complainant, SOCIAL SECURITY SYSTEM (SSS) Bicol Cluster, petitioners, vs. HON. PABLO M. PAQUEO, JR., in his capacity as Presiding Judge of RTC, Branch 23, of the City of Naga, and Accused BENEDICT DY TECKLO, respondents. DESICION AZCUNA, J.: This is a petition for certiorari and mandamus alleging that respondent Judge Pablo M. Paqueo, Jr., Regional Trial Court (RTC) of Naga City, Branch 23, acted with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the Orders dated August 24, 2001 and October 15, 2001. The Order dated August 24, 2001 granted the Motion to Quash of private respondent Benedict Dy Tecklo, thus dismissing the Information filed by petitioner State Prosecutor Romulo SJ. Tolentino. The Order dated October 15, 2001 denied State Prosecutor Tolentinos Objection and Motion dated September 5, 2001. The facts are: On June 22, 2001, petitioner State Prosecutor Romulo SJ. Tolentino filed an Information charging private respondent Benedict Dy Tecklo, the owner/proprietor of Qualistronic Builders, of violation of Sec. 22 (a) in relation to Sec. 28 (e) of Republic Act No. 82821 for failing to remit the premiums due for his employee to the Social Security System despite demand. The Information contains a certification by State Prosecutor Tolentino, thus: CERTIFICATION I HEREBY CERTIFY THAT THE REQUIRED INVESTIGATION IN THIS CASE HAS BEEN CONDUCTED BY THE UNDERSIGNED SPECIAL PROSECUTOR IN ACCORDANCE WITH LAW AND UNDER OATH AS OFFICER OF THE COURT, THAT THERE IS REASONABLE GROUND TO BELIEVE THAT THE OFFENSE HAS BEEN COMMITTED, THAT THE ACCUSED IS PROBABLY GUILTY THEREOF AND THAT THE FILING OF THE INFORMATION IS WITH THE PRIOR AUTHORITY AND APPROVAL OF THE REGIONAL STATE PROSECUTOR.2 The case was raffled to the RTC of Naga City, Branch 23, presided by respondent Judge Pablo M. Paqueo, Jr. It was set for arraignment on August 7, 2001. On said date, counsel for private respondent moved for the deferment of the arraignment and requested time to file a motion to quash the Information, which request was granted by the court. On August 10, 2001, private respondent filed a Motion to Quash, thus: Accused, through counsel, most respectfully moves to quash the Information x x x upon the sole ground that State Prosecutor Romulo SJ Tolentino, not being the City Prosecutor nor the Provincial Prosecutor, has no legal personality nor is he legally clothed with the authority to commence prosecution by the filing of the Information and thus prosecute the case.3

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exempt him from complying with the provision of the third paragraph of [Sec. 4 of] Rule 112 of the Revised Rules on Criminal Procedure, that no complaint or information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the Provincial or City Prosecutor or Chief State Prosecutor or the Ombudsman or his deputy. The designation given to Prosecutor Tolentino came from the Regional Chief State Prosecutor [who] is not one of those mentioned exclusively by the Rules to approve in writing the filing or the dismissal of an information. Also, as ruled by this court in a similar case which was dismissed, the second attached document supporting the opposition to the motion, is but an opinion of the Chief State prosecutor which has no force and effect to set aside the mandatory requirement of the Rules in the filing of an information in court. WHEREFORE, in view of all the foregoing, the motion is granted, The information is hereby ordered quashed and dismissed.6 Petitioner State Prosecutor Tolentino filed an Objection and Motion praying that the Order dated August 24, 2001 be set aside and that the case entitled People v. Tecklo be scheduled for arraignment without unnecessary delay. In an Order dated October 15, 2001, respondent Judge denied Tolentinos Objection and Motion, thus: For consideration is an Objection and Motion filed by State Prosecutor Romulo SJ. Tolentino, praying that the Order of this court dated August 24, 2001 be set aside and the case be scheduled for arraignment. Acting on said motion upon receipt thereof, the court gave the defense a period of fifteen (15) days from receipt of the order dated September 18, 2001 to file its comment and/or opposition; however, the period lapsed with the court never receiving any comment and/or opposition from the defense. The records show that the issue raised in the pleadings from both parties is whether Prosecutor Tolentino, in filing the information, can just ignore the provision of the third paragraph of Sec. 4 of Rule 112 of the Revised Rules on [C]riminal [P]rocedure. It is the stand of this court, when it ruled and so holds that Prosecutor Tolentino may conduct exclusive investigation and prosecute all violations of the provisions of the SSS Laws within the Bicol Region, but in the filing of the information in court, he must comply with [x x x] the above-cited provision of the rules on criminal procedure, that is, to have the provincial or city prosecutor at the situs of the offense approve in writing said information. It was further ruled by this court that failure to secure said written authority of the provincial or city prosecutor would touch on the jurisdiction of this court. With the foregoing, this court cannot find any legal basis to disturb its ruling of August 24, 2001. The instant objection and motion is therefore denied. SO ORDERED.7 Petitioners, thereafter, filed this petition praying for the nullification of the Orders dated August 24, 2001 and October 15, 2001.

The main issue in this case is whether or not petitioner State Prosecutor Tolentino is duly authorized to file the subject Information without the approval of the City Prosecutor? In their Memorandum,8 petitioners allege that State Prosecutor Tolentino was duly authorized to file the Information based on the following: 1. Petitioner Regional State Prosecutor Santiago M. Turingan, per Regional Order dated July 14, 1997, authorized State Prosecutor Tolentino to file the necessary Information for violations of Republic Act No. 8282 in the Bicol Region, except Masbate and Catanduanes, and to prosecute the same in courts of competent jurisdiction. This was in response to the request of the SSS, Region V for the designation of a Special Prosecutor to handle the prosecution of said criminal cases with the Office of the City Prosecutor and Office of the Provincial Prosecutor of the cities of Naga, Legaspi and Iriga and all provinces of the Bicol Region. 2. Per ruling of the Chief State Prosecutor in his letter dated October 24, 2000, ". . . the information to be filed in court by prosecutors-designate do not need the approval of the Regional State Prosecutor or the Provincial or City Prosecutor." An administrative opinion interpreting existing rules issued by agencies directly involved in the implementation of the rules should be respected and upheld. Respondent judge quashed the Information based on Sec. 3 (d), Rule 117 of the Revised Rules of Criminal Procedure in relation to the third paragraph of Sec. 4, Rule 112 of the Revised Rules of Criminal Procedure, thus: Rule 112. Sec 4. Resolution of investigating prosecutor and its review. x x x No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy.9 Rule 117. Sec. 3. Grounds. The accused may move to quash the complaint or information on any of the following grounds: xxx (d) That the officer who filed the information had no authority to do so. Notably, changes in the third paragraph of Sec. 4, Rule 112 were introduced in the Revised Rules of Criminal Procedure, which took effect on December 1, 2000. It is noted that the letter dated October 24, 2000 of Chief State Prosecutor Jovencito R. Zuo, upon which State Prosecutor Tolentino relies to support his authority to file the subject Information without the approval of the City Prosecutor, was issued before the changes in the third paragraph of Sec. 4, Rule 112 were introduced in the Revised Rules of Criminal Procedure. While the old 1985 Rules of Criminal Procedure, as amended, stated that "[no] complaint or information may be filed or dismissed by an investigating fiscal without the prior written authority or approval of the provincial or city fiscal of chief state prosecutor," the 2000 Revised Rules of Criminal Procedure states that "[n]o complaint or information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy." Since the provision is couched in negative terms importing that the act shall not be done otherwise than designated, it is mandatory.10

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An examination of the functions11 of the Regional State Prosecutor under Sec. 8 of Presidential Decree No. 127512 showed that they do not include that of approving the Information filed or dismissed by the investigating prosecutor. It is a rule of statutory construction that the express mention of one person, thing, or consequence implies the exclusion of all others, expressio unius est exclusio alterius. Since the Regional State Prosecutor is not included among the law officers authorized to approve the filing or dismissal of the Information of the investigating prosecutor, the Information filed by petitioner State Prosecutor Tolentino did not comply with the requirement of Sec. 4, Rule 112 of the Revised Rules of Criminal Procedure. Consequently, the non-compliance was a ground to quash the Information under Sec. 3 (d), Rule 117 of the Revised Rules of Criminal Procedure. Petitioners also contend that the accused must move to quash at any time before entering his plea and the trial court is barred from granting further time to the accused to do so; and that there is no evidence in support of the motion to quash. Rule 117 of the Revised Rules of Criminal Procedure on the Motion to Quash provides: SECTION 1. Time to move to quash.At any time before entering his plea, the accused may move to quash the complaint or information. SEC. 2. Form and contents. The motion to quash shall be in writing, signed by the accused or his counsel and shall distinctly specify its factual and legal grounds. The court shall consider no grounds other than those stated in the motion, except lack of jurisdiction over the offense charged. The Court finds that there is substantial compliance by private respondent with the rule above quoted, as it was satisfactorily explained in his Memorandum13 that his counsel orally moved to quash the Information before the arraignment on August 7, 2001. In an Order issued on the same date, respondent Judge required private respondents counsel to file a motion to quash within five days from the issuance of the Order. Accordingly, the motion was filed on August 10, 2001. Moreover, there was no need to submit any evidence to support the ground for quashing the Information, since it was apparent and within judicial notice that petitioner State Prosecutor Tolentino was not the City Prosecutor or the Provincial Prosecutor. As regards the allegation of willful miscitation of the ground for quashing the Information, the Court finds that respondent Judge failed to cite in his Order the correct paragraph under Rule 117 of the Rules of Court where the ground relied upon for quashing the Information is enumerated. What is important, however, is that he correctly cited the ground for quashing the Information. Certiorari implies an indifferent disregard of the law, arbitrariness and caprice, an omission to weigh pertinent considerations, a decision arrived at without rational deliberation.14 In this petition for certiorari, the Court finds that respondent judge did not gravely abuse his discretion in dismissing the Information filed by petitioner State Prosecutor Romulo SJ. Tolentino for failure to comply with the third paragraph of Sec. 4, Rule 112 of the Revised Rules of Criminal Procedure. The Rules of Court governs the pleading, practice and procedure in all courts of the Philippines. For the orderlyadministration of justice, the provisions contained therein should be followed by all litigants, but especially by the prosecution arm of the Government.

WHEREFORE, the petition for certiorari and mandamus is DISMISSED for lack of merit. No costs. SO ORDERED.

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G.R. No. 168340

December 5, 2006

RAFAEL GONZALES, Petitioner, vs. HON. TRANQUIL P. SALVADOR in his capacity as Presiding Judge of the Regional Trial Court of Makati City, Branch 63, and GLEN DALE a.k.a. RENE MARTEL,* Respondents. DECISION CARPIO MORALES, J.: Assailed via petition for review on certiorari is the May 26, 2005 Decision1 of the Court of Appeals finding no grave abuse of discretion on the part of Judge Tranquil P. Salvador, Jr. of the Regional Trial Court (RTC) of Makati City, Branch 63 in issuing the Orders dated July 16, 2003 and June 10, 2004 in Criminal Case No. 99-1567, "People of the Philippines vs. Glen Dale a.k.a. Rene Martel." The antecedent facts are as follows: Rafael Gonzales (petitioner) filed before the Makati City Prosecutors Office a complaint against respondent Glen Dale arising from the publication in the January 7, 1999 issue of Today of his article, entitled "Glad Tidings for Manila Polo Club members" in the "Bizz N Fizz" column, under the nom de plume Rene Martel.2 By Resolution of May 31, 1999, the Prosecutors Office found probable cause to hale respondent into court for Libel. An Information was thus filed before the Makati RTC against respondent reading: xxxx That on or about the 7th day of January 1999 in the City of Makati, Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused, has a regular column named "BIZZ "N" FIZZ" in Today newspaper, did then and there willfully, unlawfully and feloniously with malicious intent of impeaching the honesty, virtue and reputation of the complainant RAFAEL GONZALES, and with further malicious intent of injuring his good name and exposing him to public hatred, contempt and ridicule, publish or cause to be published in a column of Today, a newspaper of general circulation, the words and phrases which reads, among others, the following: "A lone voice of dissent has been raised by board member Ambassador Rafael Gonzales, who circulated a letter expressing his opposition to the plan to bring in a management company to run the show at the MPC. "Gonzales (who sounds in his letter to members like a typewriter salesman making his pitch in the age of the wordprocessor) outlines in passionate terms several reasons why he is against the plan. But then, curiously, he self-defeatingly goes on to say that the "biggest plus in hiring a management company is to streamline the operations and make the club financially viable" Hello Ambassador Gonzales are you in outer space or what? "History note: Ambassador Gonzales, who now fronts an obscure real-estate company called Worldmaster Corp: used to be the gofer of Benjamin "Kokoy" Romualdez (brother of you knowwho) and later the baby-sitter of Bongbong Marcos. "Some MPC members are taking a cynical view of Gonzaless opposition. They claim that his previously held view that matters be held in abeyance for at least a year might have to do with the fact that by that time his term as a director would have expired and with all the signing privileges that go with the position". (underscoring supplied).

wherein the said accused maliciously and without justifiable motive falsely imputed, inferred and insinuated in the column published in Today, which tends and is calculated to induce the reader or public to suppose and understand that Rafael Gonzales his nice (sic) or defect or committed on (sic) act or omission, condition or status that is sufficient to impeach his honesty, virtue or imputation (sic) or to hold Rafael Gonzales in public ridicule, to the damage and prejudice of the said complainant Rafael Gonzales in such amount or amounts as maybe (sic) proven in court. CONTRARY TO LAW.3 The case was raffled to Branch 63 of the Makati RTC. After posting the necessary cash bond for his provisional liberty,4 respondent filed with the Department of Justice (DOJ) a Petition for Review5 challenging the Resolution of the City Prosecutors Office. By Resolutions of May 4, 2000 and January 12, 2001, the DOJ dismissed respondents Petition for Review and denied his Motion for Reconsideration, respectively.6 Respondent elevated the DOJ Resolutions to the Court of Appeals via Petition for Certiorari and Prohibition with prayer for the issuance of preliminary injunction and temporary restraining order.7 As no preliminary injunction or restraining order was issued by the Court of Appeals, respondent was arraigned before the trial court and pleaded "not guilty" to the offense charged.8 Respondent later filed a Motion to Quash9 on the ground of lack of jurisdiction over the offense charged,10 there being no allegation in the Information that the offended party-herein petitioner actually resides in Makati or that the allegedly libelous article was printed or first published in Makati. Respondent cited Article 36011 of the Revised Penal Code as prescribing a specific venue for libel. After the parties ventilated their respective positions, the trial court, by Order of May 29, 2002,12 granted respondents Motion to Quash, holding that the Information was defective for failure to allege that the newspaper article was printed and first published in Makati or that petitioner actually resided in Makati at the time of the commission of the act complained of. On June 25, 2002, 26 days after receiving13 the May 29, 2002 Order, petitioner filed a Motion (to Order the Public Prosecutor to Amend the Information and to Admit said Amended Information),14 invoking Sections 4 and 5 of Rule 117 of the Rules of Court. Respondent opposed15 the motion on the ground that it was beyond the jurisdiction of the trial court to reconsider or recall its May 29, 2002 Order which became final after the lapse of 15 days. Respondent added that there was nothing to consider for admission since the supposed amended information was not attached to the motion. Replying,16 petitioner argued that the motion was timely filed since the Rules allow the filing of a new information"within such further time as the court may allow for good cause" and the May 29, 2002 Order failed to provide a period within which the prosecution could file an amended information. Petitioner further argued that a defective or deficient information cannot be the proper subject of a motion for reconsideration or appeal under the Rules, hence, not subject to the reglementary periods provided therein; and that the Amended Information would be filed once the court directed the amendment of the Information. By Order of December 26, 2002,17 the trial court granted petitioners Motion and directed the public prosecutor to amend the Information within ten (10) days from notice, and to forthwith file the same before the court.

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In compliance with the trial courts order, the public prosecutor filed an Amended Information. From the Order of December 26, 2002, respondent filed a Motion for Reconsideration18 on the ground that under Section 4 of Rule 117 the amendment of a defective information may be made only before a motion to quash is granted and, once quashed, especially in a case where the unqualified quashal had become final, the information can no longer be amended. Respondent added that under Section 5 of Rule 117, the order to file another information must be contained in the same order sustaining the motion to quash since the accused would have been discharged by the time the new information is filed. By Order of July 16, 2003,19 the trial court granted respondents Motion for Reconsideration and accordingly set aside its December 26, 2002 Order. Petitioner filed a Motion for Reconsideration of said July 16, 2003 Order which the trial court denied by Order of June 10, 2004.20 Petitioner thereupon filed with the Court of Appeals a Petition for Certiorari assailing the trial courts Orders dated July 16, 2003 and June 10, 2004. By the challenged Decision of May 26, 2005, the Court of Appeals dismissed petitioners petition for lack of merit. Hence, the present appeal which, in the main, faults the appellate court in holding that under Rule 117, Sections 4 and 5, the order to file another information was discretionary with the court. The pertinent rule applicable to the present petition Sections 4 and 5 of Rule 117 reads: SEC. 4. Amendment of complaint or information. If the motion to quash is based on an alleged defect of the complaint or information which can be cured by amendment, the court shall order that an amendment be made. If it is based on the ground that the facts charged do not constitute an offense, the prosecution shall be given by the court an opportunity to correct the defect by amendment. The motion shall be granted if the prosecution fails to make the amendment, or the complaint or information still suffers from the same defect despite the amendment. SEC. 5. Effect of sustaining the motion to quash. If the motion to quash is sustained, the court may order that another complaint or information be filed except as provided in section 6 of this rule. If the order is made, the accused, if in custody, shall not be discharged unless admitted to bail. If no order is made or if having been made, no new information is filed within the time specified in the order or within such further time as the court may allow for good cause, the accused, if in custody, shall be discharged unless he is also in custody for another charge.21(Underscoring supplied) Section 4 covers the amendment of an information. Section 5 deals with the filing of a new information. The amendment of an information under Section 4 of Rule 117 applies if the trial court finds that there is a defect in the information and the defect can be cured by amendment, in which case the court shall order the prosecution to amend the information. Once the court issues an order granting the motion to quash the information and such order becomes final and executory, however, there is nothing more to amend. In cases falling under Section 5 of Rule 117, where the motion to quash is sustained on grounds other than those stated in Section 622 of the same Rule, the trial court has the discretion to order the filing of another informationwithin a specified period which is extendible to such further time as the court may allow for good cause. The order to file another information, if determined to be warranted by the circumstances of the case, must be contained in

the same order granting the motion to quash. If the order sustaining the motion to quash does not order the filing of another information, and said order becomes final and executory, then the court may no longer direct the filing of another information. It is gathered that petitioner never asserted the propriety of amending the Information, he having maintained that the allegations in the Information provided sufficient and adequate bases to confer jurisdiction. When the trial court granted the motion to quash, petitioner did not assail the same within the reglementary period. The order quashing the Information thus became final and executory. Petitioner posits, however, that the order to file another information may be separately issued at any time after the quashal of the information. He anchors his argument on the clause "within such further time as the court may allow for good cause" contained in Section 5 of Rule 117. Petitioners position does not lie. The clause denotes no other construction than a plain extension of time.23 The allowance of additional time qualifies the period of filing a new information pursuant to an order, and not the period of issuing an order to file a new information. It presupposes that an order has been previously issued, as signified by the prior phrase "if having been made." As earlier stated, this order to file another information, if the trial court finds that circumstances warrant its issuance, must be included in the order granting the motion to quash. The time limitation in the rule was intended to prevent the accused from being unnecessarily detained at the whim of the prosecution. Since the order granting the motion to quash had attained finality,24 it had become immutable. Clutching at straws, petitioner implores a relaxation of the application of the Rules to promote substantial justice. Not all defects in an information can be cured by amendment, however. In Agustin v. Pamintuan,25 this Court held that the absence of any allegation in the information that the therein offended party was actually residing in Baguio City at the time of the commission of the alleged offense or that the alleged libelous articles were printed and first published in Baguio City is a substantial defect, which cannot be amended after the accused enters his plea.26Amendments of the information to vest jurisdiction upon a court is not permissible.27 At all events, the prosecution is not, under the circumstances attendant to the case, precluded from refiling an information against respondent as long as prescription has not set in.28 WHEREFORE, the petition is DENIED. Costs against petitioner. SO ORDERED.

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G.R. No. 173637

April 21, 2009

DANTE T. TAN, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondents. DECISION CHICO-NAZARIO, J.: Before this Court is a Petition for Review on Certiorari filed under Rule 45 of the Revised Rules of Court seeking the reversal and setting aside of the Decision1 dated 22 February 2006 and Resolution2 dated 17 July 2006 issued by the Court of Appeals in CA-G.R. SP No. 83068 entitled, "People of the Philippines v. Hon. Briccio C. Ygana, in his capacity as Presiding Judge of Branch 153, Regional Trial Court, Pasig City and Dante Tan." The assailed Decision reinstated Criminal Case No. 119830, earlier dismissed by the trial court due to an alleged violation of petitioner Dante T. Tans right to speedy trial.lawphil.net The assailed Resolution denied his Motion for Reconsideration and Motion to Inhibit. The factual and procedural antecedents of the instant petition are as follows: On 19 December 2000, a Panel of Prosecutors of the Department of Justice (DOJ), on behalf of the People of the Philippines (People), filed three Informations against Dante T. Tan (petitioner) before the Regional Trial Court (RTC) of Pasig City. The cases were docketed as Criminal Cases No. 119830, No. 119831 and No. 119832, all entitled, "People of the Philippines v. Dante Tan." Criminal Case No. 1198303 pertains to allegations that petitioner employed manipulative devises in the purchase of Best World Resources Corporation (BW) shares. On the other hand, Criminal Cases No. 1198314 and No. 1198325 involve the alleged failure of petitioner to file with the Securities and Exchange Commission (SEC) a sworn statement of his beneficial ownership of BW shares. In two other related cases, two Informations were filed against a certain Jimmy Juan and Eduardo G. Lim for violation of the Revised Securities Act involving BW shares of stock. These were docketed as Criminal Cases No. 119828 and No. 119829. On the same day, the DOJ, through Assistant Chief State Prosecutor Nilo C. Mariano, filed a Motion for Consolidation praying that Criminal Cases No. 119830, No. 119831 and No. 119832 be consolidated together with Criminal Cases No. 119828 and No. 119829, which the trial court granted. On 21 December 2000, Criminal Cases No. 119830, No. 119831 and No. 119832 were raffled off to the Pasig RTC, Branch 153, presided by Judge Briccio C. Ygana. Criminal Cases No. 119828 and No. 119829 also went to the same court. Petitioner was arraigned on 16 January 2001, and pleaded not guilty to the charges.6 On 6 February 2001, the pre-trial was concluded, and a pre-trial order set, among other things, the first date of trial on 27 February 2001.7 Atty. Celia Sandejas of the Securities and Exchange Commission (SEC), under the direct control and supervision of Public Prosecutor Nestor Lazaro, entered her appearance for the People; Atty. Agnes Maranan for petitioner Dante Tan; Atty. Sigfrid Fortun for Eduardo Lim, Jr.; and Atty. Rudolf Brittanico for Jimmy Juan. State Prosecutors Susan Dacanay and Edna Villanueva later on took over as lawyers for the People.

The People insists that during the pendency of the initial hearing on 27 February 2001, the parties agreed that Criminal Cases No. 119831 and No. 119832 would be tried ahead of Criminal Case No. 119830, and that petitioner would not interpose any objection to its manifestation, nor would the trial court disapprove it. Thereafter, the People presented evidence for Criminal Cases No. 119831 and No. 119832. On 18 September 2001, the prosecution completed the presentation of its evidence and was ordered by the RTC to file its formal offer of evidence within thirty days. After being granted extensions to its filing of a formal offer of evidence, the prosecution was able to file said formal offer for Criminal Cases No. 119831 and No. 119832 on 25 November 2003.8 On 2 December 2003, petitioner moved to dismiss Criminal Case No. 119830 due to the Peoples alleged failure to prosecute. Claiming violation of his right to speedy trial, petitioner faults the People for failing to prosecute the case for an unreasonable length of time and without giving any excuse or justification for the delay. According to petitioner, he was persistent in asserting his right to speedy trial, which he had allegedly done on several instances. Finally, he claimed to have been substantially prejudiced by this delay. The prosecution opposed the Motion, insisting on its claim that the parties had an earlier agreement to defer the trial of Criminal Case No. 119830 until after that of Criminal Cases No. 119831119832, as the presentation of evidence and prosecution in each of the five cases involved were to be done separately. The presentation of evidence in Criminal Cases No. 119831-119832, however, were done simultaneously, because they involved similar offenses of non-disclosure of beneficial ownership of stocks proscribed under Rule 36(a)-19 in relation to Sections 32(a)-110 and 5611 of Batas Pambansa Bilang 178, otherwise known as the "Revised Securities Act." Criminal Case No. 119830 pertains to alleged violation of Section 27 (b),12 in relation to Section 56 of said act. On 22 December 2003, Judge Briccio C. Ygana of the Pasig RTC, Branch 153, ruled that the delays which attended the proceedings of petitioners case (Criminal Case No. 119830) were vexatious, capricious and oppressive, resulting in violation of petitioners right to speedy trial. The RTC ordered 13 the dismissal of Criminal Case No. 119830, disposing as follows: WHEREFORE, foregoing premises duly considered and finding the motion to dismiss to be meritorious, the Court hereby orders Criminal Case No. 119830 DISMISSED.1avvphi1 On motion for reconsideration, the prosecution insisted that the parties agreed to hold separate trials of the BW cases, with petitioner acquiescing to the prosecution of Criminal Cases No. 119831 and No. 119832 ahead of Criminal Case No. 119830. In an Order dated 20 January 2004, the RTC denied the Motion for Reconsideration for lack of merit. The RTCs order of dismissal was elevated to the Court of Appeals via a petition for certiorari, with the People contending that: RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION IN RULING THAT THE PEOPLE VIOLATED DANTE TANS RIGHT TO SPEEDY TRIAL, ALBEIT, THE LATTER AND RESPONDENT JUDGE HIMSELF HAVE CONFORMED TO THE DEFERMENT OF CRIMINAL CASE NO. 119830 PENDING HEARING OF THE TWO OTHER RELATED CASES. Setting aside the trial courts order of dismissal, the Court of Appeals granted the petition for certiorari in its Decision dated 22 February 2006. In resolving the petition, the appellate court reinstated Criminal Case No. 119830 in this wise:

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WHEREFORE, the petition is granted and the assailed Orders dated December 22, 2003 and January 20, 2004 are set aside. Criminal Case No. 119830 is reinstated and the trial court is ordered to conduct further proceedings in said case immediately.14 Petitioner moved for a reconsideration of the Decision and filed a motion for inhibition of the Justices who decided the case. On 17 July 2006, the Court of Appeals denied both motions. Petitioner Dante Tan, henceforth, filed the instant petition for review on certiorari, raising the following issues: I. WHETHER OR NOT THE ACTING SECRETARY OF JUSTICE MAY VALIDLY EXECUTE THE CERTIFICATE OF NON-FORUM SHOPPING ATTACHED TO THE PETITION FOR CERTIORARI FILED BY THE PEOPLE WITH THE COURT OF APPEALS EVEN THOUGH THE CRIMINAL ACTION WAS INSTITUTED BY A COMPLAINT SUBSCRIBED BY THE AUTHORIZED OFFICERS OF THE SECURITIES AND EXCHANGE COMMISSION. II. WHETHER OR NOT THE PETITION FOR CERTIORARI VIOLATED TANS RIGHT AGAINST DOUBLE JEOPARDY. III. WHETHER OR NOT CRIMINAL CASE NO. 119830 WAS CORRECTLY DISMISSED BY THE TRIAL COURT ON THE GROUND OF VIOLATION OF TANS RIGHT TO SPEEDY TRIAL. IV. WHETHER OR NOT THE TRIAL COURT COMMITTED GRAVE ABUSE OF DISCRETION. We first resolve the preliminary issues. In an attempt at having the instant petition dismissed, petitioner contends that the certificate of non-forum shopping attached to the Peoples appeal before the Court of Appeals should have been signed by the Chairman of the SEC as complainant in the cases instead of Acting DOJ Secretary Merceditas N. Gutierrez. Petitioners argument is futile. The Court of Appeals was correct in sustaining the authority of Acting DOJ Secretary Merceditas Gutierrez to sign the certificate of non-forum shopping of the petition for certiorari before said court. It must be stressed that the certification against forum shopping is required to be executed by the plaintiff.15 Although the complaint-affidavit was signed by the Prosecution and Enforcement Department of the SEC, the petition before the Court of Appeals originated from Criminal Case No. 119830, where the plaintiff or the party instituting the case was the People of the Philippines. Section 2, Rule 110 of the Rules of Court leaves no room for doubt and establishes that criminal cases are prosecuted in the name of the People of the Philippines, the offended party in criminal cases. Moreover, pursuant to Section 3, paragraph (2) of the Revised Administrative Code, the DOJ is the executive arm of the government mandated to investigate the commission of crimes, prosecute offenders and administer the probation and correction system. It is the DOJ, through its prosecutors, which is authorized to prosecute criminal cases on behalf of the People of the Philippines.16 Prosecutors control and direct the prosecution of criminal offenses, including the conduct of preliminary investigation, subject to review by the Secretary of Justice. Since it is the DOJ which is the government agency tasked to prosecute criminal cases before the trial court, the DOJ is best suited to attest whether a similar or related case has been filed or is pending in another court of tribunal. Acting DOJ Secretary

Merceditas N. Gutierrez, being the head of the DOJ, therefore, had the authority to sign the certificate of non-forum shopping for Criminal Case No. 119830, which was filed on behalf of the People of the Philippines. The preliminary issues having been resolved, the Court shall proceed to discuss the main issues. At the crux of the controversy is the issue of whether there was a violation of petitioner Dante Tans right to speedy trial. Petitioner Dante Tan assails the Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 83068. The appellate court determined that he "impliedly agreed" that Case No. 119830 would not be tried until after termination of Criminal Cases No. 119831-119832, which finding was grounded entirely on speculations, surmises and conjectures. Both parties concede that this issue is factual. It is a basic rule that factual issues are beyond the province of this Court in a petition for review, for it is not our function to review evidence all over again.17 Rule 45 of the Rules of Court provides that only questions of law may be raised in this Court in a petition for review on certiorari.18 The reason is that the Court is not a trier of facts.19 However, the rule is subject to several exceptions.20 Under these exceptions, the Court may delve into and resolve factual issues, such as in cases where the findings of the trial court and the Court of Appeals are absurd, contrary to the evidence on record, impossible, capricious or arbitrary, or based on a misappreciation of facts. In this case, the Court is convinced that the findings of the Court of Appeals on the substantial matters at hand, while conflicting with those of the RTC, are adequately supported by the evidence on record. We, therefore, find no reason to deviate from the jurisprudential holdings and treat the instant case differently. An accuseds right to "have a speedy, impartial, and public trial" is guaranteed in criminal cases by Section 14(2) of Article III of the Constitution. This right to a speedy trial may be defined as one free from vexatious, capricious and oppressive delays, its "salutary objective" being to assure that an innocent person may be free from the anxiety and expense of a court litigation or, if otherwise, of having his guilt determined within the shortest possible time compatible with the presentation and consideration of whatsoever legitimate defense he may interpose.21Intimating historical perspective on the evolution of the right to speedy trial, we reiterate the old legal maxim, "justice delayed is justice denied." This oft-repeated adage requires the expeditious resolution of disputes, much more so in criminal cases where an accused is constitutionally guaranteed the right to a speedy trial.22 Following the policies incorporated under the 1987 Constitution, Republic Act No. 8493, otherwise known as "The Speedy Trial Act of 1998," was enacted, with Section 6 of said act limiting the trial period to 180 days from the first day of trial.23 Aware of problems resulting in the clogging of court dockets, the Court implemented the law by issuing Supreme Court Circular No. 38-98, which has been incorporated in the 2000 Rules of Criminal Procedure, Section 2 of Rule 119.24 In Corpuz v. Sandiganbayan,25 the Court had occasion to state The right of the accused to a speedy trial and to a speedy disposition of the case against him was designed to prevent the oppression of the citizen by holding criminal prosecution suspended over him for an indefinite time, and to prevent delays in the administration of justice by mandating the courts to proceed with reasonable dispatch in the trial of criminal cases. Such right to a speedy trial and a speedy disposition of a case is violated only when the proceeding is attended by vexatious, capricious and oppressive delays. The inquiry as to whether or not an accused has been denied such right is not susceptible by precise qualification. The concept of a speedy disposition is a relative term and must necessarily be a flexible concept.

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While justice is administered with dispatch, the essential ingredient is orderly, expeditious and not mere speed. It cannot be definitely said how long is too long in a system where justice is supposed to be swift, but deliberate. It is consistent with delays and depends upon circumstances. It secures rights to the accused, but it does not preclude the rights of public justice. Also, it must be borne in mind that the rights given to the accused by the Constitution and the Rules of Court are shields, not weapons; hence, courts are to give meaning to that intent. The Court emphasized in the same case that: A balancing test of applying societal interests and the rights of the accused necessarily compels the court to approach speedy trial cases on an ad hoc basis. In determining whether the accused has been deprived of his right to a speedy disposition of the case and to a speedy trial, four factors must be considered: (a) length of delay; (b) the reason for the delay; (c) the defendants assertion of his right; and (d) prejudice to the defendant. x x x. Closely related to the length of delay is the reason or justification of the State for such delay. Different weights should be assigned to different reasons or justifications invoked by the State. x x x.26 Exhaustively explained in Corpuz v. Sandiganbayan, an accuseds right to speedy trial is deemed violated only when the proceeding is attended by vexatious, capricious, and oppressive delays. In determining whether petitioner was deprived of this right, the factors to consider and balance are the following: (a) duration of the delay; (b) reason therefor; (c) assertion of the right or failure to assert it; and (d) prejudice caused by such delay.27 From the initial hearing on 27 February 2001 until the time the prosecution filed its formal offer of evidence for Criminal Cases No. 119831-119832 on 25 November 2003, both prosecution and defense admit that no evidence was presented for Criminal Case No. 119830. Hence, for a period of almost two years and eight months, the prosecution did not present a single evidence for Criminal Case No. 119830. The question we have to answer now is whether there was vexatious, capricious, and oppressive delay. To this, we apply the four-factor test previously mentioned. We emphasize that in determining the right of an accused to speedy trial, courts are required to do more than a mathematical computation of the number of postponements of the scheduled hearings of the case. A mere mathematical reckoning of the time involved is clearly insufficient,28 and particular regard must be given to the facts and circumstances peculiar to each case.29 In Alvizo v. Sandiganbayan,30 the Court ruled that there was no violation of the right to speedy trial and speedy disposition. The Court took into account the reasons for the delay, i.e., the frequent amendments of procedural laws by presidential decrees, the structural reorganizations in existing prosecutorial agencies and the creation of new ones by executive fiat, resulting in changes of personnel, preliminary jurisdiction, and the functions and powers of prosecuting agencies. The Court also considered the failure of the accused to assert such right, and the lack of prejudice caused by the delay to the accused. In Defensor-Santiago v. Sandiganbayan,31 the complexity of the issues and the failure of the accused to invoke her right to speedy disposition at the appropriate time spelled defeat for her claim to the constitutional guarantee. In Cadalin v. Philippine Overseas Employment Administrations Administrator,32 the Court, considering also the complexity of the cases and the conduct of the parties lawyers, held that the right to speedy disposition was not violated therein.

Petitioners objection to the prosecutions stand that he gave an implied consent to the separate trial of Criminal Case No. 119830 is belied by the records of the case. No objection was interposed by his defense counsel when this matter was discussed during the initial hearing.33 Petitioners conformity thereto can be deduced from his non-objection at the preliminary hearing when the prosecution manifested that the evidence to be presented would be only for Criminal Cases No. 119831-119832. His failure to object to the prosecutions manifestation that the cases be tried separately is fatal to his case. The acts, mistakes and negligence of counsel bind his client, except only when such mistakes would result in serious injustice.34 In fact, petitioners acquiescence is evident from the transcript of stenographic notes during the initial presentation of the Peoples evidence in the five BW cases on 27 February 2001, herein quoted below: COURT: Atty. Sandejas, call your witness. ATTY. SANDEJAS [SEC Prosecuting Lawyer]: May we make some manifestation first, your Honor, before we continue presenting our witness. First of all, this witness will only be testifying as to two (2) of the charges: non-disclosure of beneficial ownership of Dante Tan x x x. xxxx COURT: (to Atty. Sandejas) Call your witness. ATTY. SANDEJAS: Our witness is Mr. Wilfredo Baltazar of the Securities and Exchange Commission, your Honor. We are presenting this witness for the purpose of non-disclosure of beneficial ownership case COURT: I would advise the counsel from the SEC to make it very clear your purpose in presenting your first witness. ATTY. SANDEJAS: Yes, your Honor. Can I borrow the file? COURT: Show it to counsel. ATTY. SANDEJAS: Crim. Case Nos. 119831 and 119832, for Violation of RA Rule 36(a)1, in relation to Sec. 32 (a)-1 of the Revised Securities Act when he failed to disclose his beneficial ownership amounting to more than 10% which requires disclosure of such fact.35 During the same hearing, the People manifested in open court that the parties had agreed to the separate trials of the BW Cases: PROSECUTOR LAZARO: May we be allowed to speak, your Honor? Your Honor please, as we x x x understand, this is not a joint trial but a separate trial x x x so as manifested by the SEC lawyer, the witness is being presented insofar as 119831 and 119832 as against Dante Tan only x x x.36 The transcript of stenographic notes taken from the 3 April 2001 hearing further clarifies that only the two cases against Dante Tan were being prosecuted: ATTY. DE LA CRUZ [new counsel for accused Eduardo Lim, Jr.]: Your Honor, please, may I request clarification from the prosecutors regarding the purpose of the testimony of the witness in the stand. While the Private Prosecutor stated the purpose of the testimony of the witness. . . xxxx PROSECUTOR LAZARO:

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I was present during the last hearing. I was then going over the transcript of this case, well, I believe the testimony x x x mainly [is] on accused Dante Tan, your Honor. As a matter of fact, there was a clarification made by the parties and counsels after the witness had testified that the hearing in these cases is not a joint trial because it involves separate charges, involving different documents, your Honor. That is why the witness already testified only concerning Dante Tan. Per the query made by Atty. Fortun, because at that time, Atty. Fortun was still representing Mr. Lim, I believe, your Honor, then I understand that the testimony of this witness cannot just be adopted insofar as the other accused, your Honor. ATTY. MARANAN: We confirm that, your Honor, since x x x particularly since this is already cross, it is clear that the direct examination dealt exclusively with Mr. Dante Tan. PROS. LAZARO: Mr. Dante Tan, involving the 2 (two) cases.37 Moreover, although periods for trial have been stipulated, these periods are not absolute. Where periods have been set, certain exclusions are allowed by law.38 After all, this Court and the law recognize that it is but a fact that judicial proceedings do not exist in a vacuum and must contend with the realities of everyday life. In spite of the prescribed time limits, jurisprudence continues to adopt the view that the fundamentally recognized principle is that the concept of speedy trial is a relative term and must necessarily be a flexible concept.39 As to the assertion that delay in the presentation of evidence for Criminal Case No. 119830 has prejudiced petitioner because the witnesses for the defense may no longer be available at this time, suffice it to say that the burden of proving his guilt rests upon the prosecution.40 Should the prosecution fail for any reason to present evidence sufficient to show his guilt beyond reasonable doubt, petitioner will be acquitted. It is safely entrenched in our jurisprudence that unless the prosecution discharges its burden to prove the guilt of an accused beyond reasonable doubt, the latter need not even offer evidence in his behalf.41 In the cases involving petitioner, the length of delay, complexity of the issues and his failure to invoke said right to speedy trial at the appropriate time tolled the death knell on his claim to the constitutional guarantee.42 More importantly, in failing to interpose a timely objection to the prosecutions manifestation during the preliminary hearings that the cases be tried separately, one after the other, petitioner was deemed to have acquiesced and waived his objection thereto. For the reasons above-stated, there is clearly insufficient ground to conclude that the prosecution is guilty of violating petitioners right to speedy trial. Grave abuse of discretion defies exact definition, but generally refers to "capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction." Any capricious or whimsical exercise of judgment in dismissing a criminal case is equivalent to lack of jurisdiction. This is true in the instant case. There is also no merit to petitioners claim that a reversal of the RTCs Order dismissing Criminal Case No. 119830 is a violation of his constitutional right against double jeopardy which dismissal was founded on an alleged violation of his right to speedy trial. The constitutional protection against double jeopardy shields one from a second or later prosecution for the same offense. Article III, Section 21 of the 1987 Constitution declares that no person shall be twice put in jeopardy of punishment for the same offense, providing further that if an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.

Following the above constitutional provision, Section 7, Rule 117 of the Revised Rules of Court found it apt to stipulate: SEC. 7. Former conviction or acquittal; double jeopardy. When an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information. For double jeopardy to attach then, the following elements in the first criminal case must be present: (a) The complaint or information or other formal charge was sufficient in form and substance to sustain a conviction; (b) The court had jurisdiction; (c) The accused had been arraigned and had pleaded; and (d) He was convicted or acquitted or the case was dismissed or otherwise terminated without the express consent of the accused.43 Among the above-cited elements, we are concerned with the fourth element, conviction or acquittal, or the case was dismissed or otherwise terminated without the express consent of the accused. This element is crucial since, as a general rule, the dismissal of a criminal case resulting in acquittal, made with the express consent of the accused or upon his own motion, will not place the accused in double jeopardy.44 This rule, however, admits of two exceptions, namely: insufficiency of evidence and denial of the right to speedy trial.45 While indeed petitioner was in fact the one who filed the Motion to Dismiss Criminal Case No. 119830, the dismissal thereof was due to an alleged violation of his right to speedy trial, which would otherwise put him in double jeopardy should the same charges be revived. Petitioners situation is different. Double jeopardy has not attached, considering that the dismissal of Criminal Case No. 119830 on the ground of violation of his right to speedy trial was without basis and issued with grave abuse of discretion amounting to lack or excess of jurisdiction. Where the right of the accused to speedy trial has not been violated, there is no reason to support the initial order of dismissal. Following this Courts ruling in Almario v. Court of Appeals,46 as petitioners right to speedy trial was not transgressed, this exception to the fourth element of double jeopardy that the defendant was acquitted or convicted, or the case was dismissed or otherwise terminated without the express consent of the accused was not met. Where the dismissal of the case was allegedly capricious, certiorari lies from such order of dismissal and does not involve double jeopardy, as the petition challenges not the correctness but the validity of the order of dismissal; such grave abuse of discretion amounts to lack of jurisdiction, which prevents double jeopardy from attaching.47 As this Court ruled in People v. Tampal,48 reiterated in People v. Leviste,49 where we overturned an order of dismissal by the trial court predicated on the right to speedy trial It is true that in an unbroken line of cases, we have held that dismissal of cases on the ground of failure to prosecute is equivalent to an acquittal that would bar further prosecution of the accused for the same offense. It must be stressed, however, that these dismissals were predicated on the clear right of the accused to speedy trial. These cases are not applicable to the petition at bench considering that the right of the private

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respondents to speedy trial has not been violated by the State. x x x. From the foregoing, it follows that petitioner cannot claim that double jeopardy attached when said RTC order was reversed by the Court of Appeals. Double jeopardy does not apply to this case, considering that there is no violation of petitioners right to speedy trial. The old adage that justice delayed is justice denied has never been more valid than in our jurisdiction, where it is not a rarity for a case to drag in our courts for years and years and even decades. It was this difficulty that inspired the constitutional requirement that the rules of court to be promulgated by the Supreme Court shall provide for a simplified and inexpensive procedure for the speedy trial and disposition of cases.50 Indeed, for justice to prevail, the scales must balance, for justice is not to be dispensed for the accused alone.51 Evidently, the task of the pillars of the criminal justice system is to preserve our democratic society under the rule of law, ensuring that all those who appear before or are brought to the bar of justice are afforded a fair opportunity to present their side. As correctly observed by the Court of Appeals, Criminal Case No. 119830 is just one of the many controversial cases involving the BW shares scam where public interest is undoubtedly at stake. The State, like any other litigant, is entitled to its day in court, and to a reasonable opportunity to present its case. A hasty dismissal, instead of unclogging dockets, has actually increased the workload of the justice system and unwittingly prolonged the litigation.52 Finally, we reiterate that the rights given to the accused by the Constitution and the Rules of Court are shields, not weapons. Courts are tasked to give meaning to that intent. There being no capricious, vexatious, oppressive delay in the proceedings, and no postponements unjustifiably sought, we concur in the conclusions reached by the Court of Appeals. WHEREFORE, the petition is DISMISSED. The assailed 22 February 2006 Decision and 17 July 2006 Resolution issued by the Court of Appeals in CA-G.R. SP No. 83068 are hereby AFFIRMED. The instant case is REMANDED to the Regional Trial Court, Branch 153, Pasig City for further proceedings in Criminal Case No. 119830 with reasonable dispatch. SO ORDERED.

G.R. No. 168982

August 5, 2009

PEOPLE OF THE PHILIPPINES, Petitioner, vs. DIR. GEN. CESAR P. NAZARENO, DIR. EVERLINO NARTATEZ, DIR. NICASIO MA. S. CUSTODIO, and THE SANDIGANBAYAN (FIFTH DIVISION), Respondents. DECISION BRION, J.: The People of the Philippines seeks, through this petition for review on certiorari,1 the reversal of the decision of the Sandiganbayan (Fifth Division) in People of the Philippines v. Dir. Gen Cesar P. Nazareno (Ret.), Dir. Gen Everlino Nartatez (Ret.), and Dir. Gen Nicasio Ma. S. Custodio (Ret.), CRIM. CASE No. 23030. The Sandiganbayan acquitted the respondents Cesar Nazareno, Everlino Nartatez and Nicasio Ma. Custodio (collectively, the respondents) of the charge of violating Section 3(g) of Republic Act No. 3019 (RA 3019) or the Anti-Graft and Corrupt Practices Act. THE ANTECEDENTS Three (3) separate but related contracts between the Philippine National Police (PNP) and Beltra Industries, for the purchase and delivery of Caliber .45 Thompson Brand pistols spawned the filing of the criminal charge against the respondents. The first of the contracts, covered by Purchase Order (PO) No. 081190-654 dated November 8, 1990, was for the purchase and delivery of 2,822 units at P18,550.30 each, for the total amount ofP52,348,946.60. The second was covered by PO No. 0-240-492185 dated April 24, 1992 for the purchase of 1,617 units for P29,995,835.10. The third was under PO No. 0-050-582-153 dated May 5, 1992, for the purchase of 1,242 units at a total price of P23,039,472.60. The purchase orders were signed by then Director General Nazareno and then Director Nartatez, while the corresponding checks were signed by then Director Custodio. Allegations of irregularity or overpricing surrounded the procurement, leading then President Fidel V. Ramos to order the creation of a tri-agency investigating committee composed of lawyers from the PNPs Inspector Generals Office, the National Police Commission, and the Office of the President. This committee found no overpricing; neither did it find collusion among the officers of the PNP participating in the transactions. The Commission on Audit, for its part, created a special audit team to look into the same allegations of overpricing. After an investigation that compared the AFP Logistics Command (LOGCOM) purchase price of P10,5873.25 per unit for the same brand and the PNPs purchase of 5,681 units at P18,550.30 per unit, the audit team found that the PNP procurement appeared to have been overpriced; the PNP purchases, if made at the AFP LOGCOM unit price, would have cost P45 Million less. After due proceedings and based on the report of the special audit team, the Office of the Special Prosecutor filed an information against the respondents with the Sandiganbayan. The information reads: That on or about January 1, 1991 and May 29, 1992, and for sometime prior or subsequent thereto, in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the accused Cesar P. Nazareno, then Director General, Philippine National Police (PNP) and Everlino P. Nartatez and Nicasio Ma. S. Custodio, then directors of PNP Logistics Support Command, successively while in the performance of their official functions, taking advantage of their positions and committing the crimes in relation to their offices, did then and there willfully, unlawfully and criminally conspiring with one another, enter in behalf of the said PNP Contract/Document with Beltra Industries, Inc. a private enterprise at PILAND Building, Javier cor. Santillan Street, Makati for the supply of Five Thousand Six Hundred Eighty-One (5,681.00) units of Caliber .45 Pistol in the amount of One

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Hundred Five Million Three Hundred Eighty Four Thousand Three Hundred Fifty four Pesos and Seventy Centavos (105,384,254.70), under terms and conditions manifestly and grossly disadvantageous to the government. The respondents pleaded not guilty to the charge. At the trial, the People presented the members of the special audit team to testify on the overpricing that the team found. Among others, a member of the special audit team testified that there was a big difference between the AFP price and the PNPs; as shown by documents obtained from the Philippine Navy, the AFP purchased the pistols at a unit cost of P10,578.25. The People then presented the documents related to the various contracts and the documents the members of the audit team mentioned in their testimonies. The Sandiganbayan, in its Decision,2 graphically presented the claimed price difference as follows: PNP Qt PO y. No. 081 190 854 240 492 185 050 592 153 Unit Cost Amount LOGC Amount Price OM Differen U/C ce P22,49 7,125.1 0

The respondents also presented some of the members of the triagency team that investigated the alleged overpricing;4 all of them testified that they found no irregularity in the procurement of the pistols. The respondents completed their case with the presentation of their documentary evidence, including those identified or touched upon in the testimonies of their witnesses. The Verdict of Acquittal The Sandiganbayan agreed with the respondents submissions and acquitted the respondents after trial. It concluded that the AFP prices did not offer sufficient basis for comparison to be able to establish firmly the alleged overpricing in the purchase of the subject firearms by the PNP. The Sandiganbayan based this conclusion on the testimonies of the respondents witnesses whose competence on the matters they testified on was never questioned or disputed by the prosecution. The Sandiganbayan further observed that the audit team followed a flawed procedure in reaching its overpricing conclusion. The audit team merely relied on the AFP Supply Issuance and did not conduct any actual canvass of the gun prices. Thus, to the Sandiganbayan, the comparison made between the PNP price and the AFP quoted cost was substantially deficient under the prevailing rules that indispensably required an actual canvass done on different and identified suppliers to show exactly the variances in the prices of similar articles to firm up, for evidentiary purposes and to a reliable degree of certainty, a finding of overpricing. The requirement of actual canvass, according to the Sandiganbayan, was settled law as applied by this Court in Arriola v. Commission on Audit5 and in National Center for Mental Health Management v. COA.6 The Sandiganbayan added that Commission on Audit Memorandum No. 97-012 dated March 31, 1997 imposed stricter requirements on the process of evidence-gathering to support any audit finding of overpricing; it now required that the initial findings be supported by canvass sheets and/or price quotations indicating: (1) the identities/names of the suppliers or sellers; (2) the availability of stock sufficient in quantity to meet the requirements of the procuring agency; (3) the specifications of the items that should match those involved in the overpricing; and (4) the purchase/contract terms and conditions that should be the same as those of the questioned transaction. The Sandiganbayan cited in this regard our ruling in Sajul v. Sandiganbayan7 where we ruled that a basis for comparison had to be established to support a conclusion of overpricing; otherwise, the conclusion would be unfair. Despite its clearly negative conclusion on the overpricing charge, the Sandiganbayan still proceeded to discuss and reject the allegation of conspiracy between and among the respondents. Noting the respondents individual participation in the questioned transactions (i.e., the necessity of the respondents individual signatures in the documents for the purchase of the pistols) and the evidentiary requirement that conspiracy must be proved by evidence of a chain of circumstances and may be inferred from the acts of the accused before, during and after the commission of the crime which indubitably point to and are indicative of a joint purpose, concert of action and community of interest, the Sandiganbayan rejected allegation of conspiracy with the statement that X x x the Court finds that the evidence presented by the prosecution, which focused more on documents to prove the alleged overpricing, failed to show that the three accused indeed conspired with one another in entering into the subject supply contracts and in effecting the purchase of firearms through the execution of the purchase orders and the supply contracts.

28 P18,5 P52,348, P10,5 P29,85 22 50.30 946.60 78.25 1,821.5 0

16 P18,5 P29,995, P10,5 P17,10 17 50.30 835.10 78.25 5,030.2 5

P12,89 0,804.8 5

12 P18,5 P23,039, P10,5 P13,13 42 50.30 472.60 78.25 8,186.5 0

P9,901, 286.10

P105,38 4,254.30

P60,09 5,038.2 5

P45,28 9,216.0 5

In their defense, the respondents took the basic position that the AFPs unit price could not be the basis for a comparison to support the conclusion that the PNP purchase was overpriced. They presented witnesses3 who commonly testified that the AFP purchases were made under a foreign military assistance program the Foreign Military Sales (FMS) program extended by the United States of America (US) to the Philippines pursuant to the Mutual Defense Treaty and the Military Assistance Agreement of 1953. The FMS program, one of the witnesses testified, was a security assistance program that allowed eligible countries to purchase defense articles, defense services and training from the US government; it was "non-appropriated," which meant that a foreign military financing program was available for loan grants to eligible countries. US laws (specifically, the Arms Export Control Act [AECA]), however, imposed certain limitations, one of which was that the PNP, as a police organization, was not entitled to FMS benefits. Evidence of this (duly marked and presented) was the US JUSMAG Chiefs letter to then AFP Chief of Staff Lisandro Abadia. Another witness also claimed that a comparison showed a big difference between the cost of articles acquired through FMS and those through direct commercial sales; a local purchase was 2 to 3 times more expensive than a purchase through FMS, although local procurement was faster than FMS. Still another witness echoed this statement through the declaration that the AFP could not have purchased pistols in the local market at a price or cost similar to the FMS price.

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The Petition and the Respondents Comments The People filed the present petition under Rule 45 of the Rules of Court, and raised the following ISSUES: I. WHETHER OR NOT THE COURT A QUO GRAVELY ERRED IN TAKING JUDICIAL NOTICE OF THE ALLEGED LAWS OF THE UNITED STATES OF AMERICA AND IN APPLYING THE SAME TO THE CASE AT BAR II. WHETHER OR NOT THE COURT A QUO GRAVELY ERRED IN RELYING SOLELY ON THE TESTIMONIES OF DEFENSE WITNESSES AS TO THE EXISTENCE AND EFFECTIVITY OF THE LAWS OF THE UNITED STATES III. WHETHER OR NOT THE COURT A QUO GRAVELY ERRED IN NOT APPRECIATING THE EVIDENCE OF THE PROSECUTION WHICH PROVED BEYOND REASONABLE DOUBT THAT THE PNP PURCHASED THE 5,681 UNITS OF PISTOLS AT AN OVERPRICED AMOUNT OF P18,550.30 PER UNIT IV. WHETHER OR NOT DOUBLE JEOPARDY HAS ALREADY ATTACHED TO HEREIN RESPONDENTS AND THUS PROSCRIBES THE RESOLUTION OF THE ISSUES RAISED BY PETITIONER. Expectedly, the respondents object to the petition mainly because the review sought violates their constitutional right against double jeopardy.8 They assert that the petition is essentially an appeal from a judgment of acquittal or a review of alleged errors in judgment that throws the case wide open, placing the respondents in danger of being punished twice for the same offense. They also posit that a judgment of acquittal can only be challenged through a petition for certiorari under Rule 65 of the Rules of Court, citing our ruling in People v. Sandiganbayan9that only a clear showing of grave abuse of discretion or denial of due process to the State can justify a review of a judgment of acquittal through a petition for certiorari. The present petition, according to the respondents, is a Rule 45 appeal that raises errors of judgment, not errors of jurisdiction. On the merits, the respondents claim that the Sandiganbayan did not commit grave abuse of discretion in acquitting them of the criminal charge. OUR RULING We resolve to dismiss the petition on the basis of the double jeopardy clause of the Constitution. Section 21, Article III of the Constitution provides that "no person shall be twice put in jeopardy of punishment for the same offense." Section 7, Rule 117 of the Rules of Court, which implements this particular constitutional right, reads: SEC. 7. Former conviction or acquittal; double jeopardy. When an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information.

Double jeopardy exists when the following requisites are present: (1) a first jeopardy attached prior to the second; (2) the first jeopardy has been validly terminated; and (3) a second jeopardy is for the same offense as in the first. A first jeopardy attaches only (a) after a valid indictment; (b) before a competent court; (c) after arraignment; (d) when a valid plea has been entered; and (e) when the accused was acquitted or convicted, or the case was dismissed or otherwise terminated without his express consent.10 A judgment of acquittal is final and is no longer reviewable.11 It is also immediately executory and the State may not seek its review without placing the accused in double jeopardy.12 We had occasion to fully explain the reason behind the double jeopardy rule in People v. Velasco13: The fundamental philosophy highlighting the finality of an acquittal by the trial court cuts deep into "the humanity of the laws and in a jealous watchfulness over the rights of the citizen, when brought in unequal contest with the State x x x x." Thus Green expressed the concern that "(t)he underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent, he may be found guilty." It is axiomatic that on the basis of humanity, fairness and justice, an acquitted defendant is entitled to the right of repose as a direct consequence of the finality of his acquittal. The philosophy underlying this rule establishing the absolute nature of acquittals is "part of the paramount importance criminal justice system attaches to the protection of the innocent against wrongful conviction." The interest in the finality-of-acquittal rule, confined exclusively to verdicts of not guilty, is easy to understand: it is a need for "repose," a desire to know the exact extent of one's liability. With this right of repose, the criminal justice system has built in a protection to insure that the innocent, even those whose innocence rests upon a jurys leniency, will not be found guilty in a subsequent proceeding. The Constitution has expressly adopted the double jeopardy policy and thus bars multiple criminal trials, thereby conclusively presuming that a second trial would be unfair if the innocence of the accused has been confirmed by a previous final judgment.14 Further prosecution via an appeal from a judgment of acquittal is likewise barred because the government has already been afforded a complete opportunity to prove the criminal defendants culpability; after failing to persuade the court to enter a final judgment of conviction, the underlying reasons supporting the constitutional ban on multiple trials applies and becomes compelling.15 The reason is not only the defendants already established innocence at the first trial where he had been placed in peril of conviction, but also the same untoward and prejudicial consequences of a second trial initiated by a government who has at its disposal all the powers and resources of the State. Unfairness and prejudice would necessarily result, as the government would then be allowed another opportunity to persuade a second trier of the defendants guilt while strengthening any weaknesses that had attended the first trial, all in a process where the governments power and resources are once again employed against the defendants individual means. That the second opportunity comes via an appeal does not make the effects any less prejudicial by the standards of reason, justice and conscience. Thus, the absolute and inflexible rule is that the State is proscribed from appealing the judgment of acquittal through either a regular appeal under Rule 41 of the Rules of Court, or an appeal by certiorari on pure questions of law under Rule 45 of the same Rules. An instance when the State can challenge a judgment of acquittal is pursuant to the exercise of our judicial power "to determine

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whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government,"16 as implemented through the extraordinary writ of certiorari under Rule 65 of the Rules of Court. In such instance, however, no review of facts and law on the merits, in the manner done in an appeal, actually takes place; the focus of the review is on whether the judgment is per se void on jurisdictional grounds, i.e., whether the verdict was rendered by a court that had no jurisdiction; or where the court has appropriate jurisdiction, whether it acted with grave abuse of discretion amounting to lack or excess of jurisdiction. In other words, the review is on the question of whether there has been a validly rendered decision, not on the question of the decisions error or correctness. Under the exceptional nature of a Rule 65 petition, the burden a very heavy one is on the shoulders of the party asking for the review to show the presence of a whimsical or capricious exercise of judgment equivalent to lack of jurisdiction; or of a patent and gross abuse of discretion amounting to an evasion of a positive duty or a virtual refusal to perform a duty imposed by law or to act in contemplation of law; or to an exercise of power in an arbitrary and despotic manner by reason of passion and hostility.17 Applying all these principles, the present Rule 45 petition must necessarily fail. Even under our most liberal reading, we cannot treat the petition as a Rule 65 petition, as it raises no jurisdictional error that can invalidate a verdict of acquittal. The petition itself states that it was formally filed under Rule 45 of the Rules of Court and seeks to reverse and set aside the decision of the Sandiganbayan.18 Thus, the petitions clear and unequivocal intention to seek a review on the merits of the Sandiganbayan judgment of acquittal puts it on a direct collision course with the constitutional proscription on double jeopardy. This is more than enough reason to deny the petition.1avvphi1 Additionally, a Rule 45 petition can only address pure questions of law, not factual errors, committed by the tribunal below. In this petition, the People raise factual errors, or to be exact, "appreciation of evidence" errors that the descriptive term "gravely erred" cannot convert into jurisdictional errors. Specifically, the petition alleges: (1) that the Sandiganbayan gravely erred in taking judicial notice of the alleged laws of the US; (2) that the Sandiganbayan gravely erred in relying solely on the testimonies of the defense witnesses as to the existence and effectivity of the laws of the US; and (3) that the Sandiganbayan gravely erred in not appreciating the prosecutions presented evidence on the guilt of the respondents. We add that any error that the Sandiganbayan might have committed in appreciating the evidence presented at the trial are mere errors of judgment and do not rise to the level of jurisdictional errors despite the allegation that the Sandiganbayan had "gravely erred" in appreciating the evidence. Misapplication of facts and evidence, and erroneous conclusions based on evidence do not, by the mere fact that errors were committed, rise to the level of grave abuse of discretion.19 That an abuse itself must be "grave" must be amply demonstrated since the jurisdiction of the court, no less, will be affected.20 The mere fact, too, that a court erroneously decides a case does not necessarily deprive it of jurisdiction.21 We have consistently ruled that a Rule 65 certiorari does not involve the correction of errors of judgment: Certiorari is a remedy designed for the correction of errors of jurisdiction, not errors of judgment. In Pure Foods Corporation v. NLRC, we explained the simple reason for the rule in this light: When a court exercises its jurisdiction, an error committed while so engaged does not deprive it of the jurisdiction being exercised when the error is committed. If it did, every error committed by a court would deprive it of its jurisdiction and every erroneous judgment would be a void judgment. This cannot be allowed. The administration of justice would not survive such a rule. Consequently, an error of judgment that the court may commit in

the exercise of its jurisdiction is not correct[a]ble through the original civil action of certiorari. The supervisory jurisdiction of a court over the issuance of a writ of certiorari cannot be exercised for the purpose of reviewing the intrinsic correctness of a judgment of the lower court on the basis either of the law or the facts of the case, or of the wisdom or legal soundness of the decision. Even if the findings of the court are incorrect, as long as it has jurisdiction over the case, such correction is normally beyond the province of certiorari. Where the error is not one of jurisdiction, but of an error of law or fact a mistake of judgment appeal is the remedy.22 In this case, the Sandiganbayans jurisdiction over the nature of the case is not disputed, nor was its jurisdiction over the respondents ever brought into question. Neither does the petition substantively and effectively impute any error based on the Sandiganbayans grave abuse of discretion in the exercise of its jurisdiction. In other words, the petition, styled as a Rule 45 petition, is not even one that we can liberally treat as a Rule 65 certioraripetition that may permit a review of a verdict of acquittal.23 WHEREFORE, premises considered, the petition is hereby DENIED for lack of merit. SO ORDERED.

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G.R. No. 185230

June 1, 2011

continue with the prosecution [of] the same. As in this case, the Court finds merit [in] the motion of the Public Prosecutor.11 Aggrieved, petitioner moved for reconsideration of the said Order, arguing that the November 20, 2003 OP-QC resolution has not yet attained finality, considering that the same was the subject of a Petition for Review filed before the Department of Justice (DOJ).12 The RTC deferred action on the said motion to await the resolution of the DOJ.13 On June 26, 2006, the Secretary of Justice promulgated his resolution reversing and setting aside the OP-QCs November 20, 2003 resolution, and directing the latter to refile the earlier Information for libel.14 On October 24, 2006, the RTC issued its first assailed Order granting petitioners motion for reconsideration, conformably with the resolution of the DOJ Secretary, thus: Considering the findings of the Department of Justice reversing the resolution of the City Prosecutor, the Court gives favorable action to the Motion for Reconsideration. In the same manner as discussed in arriving at its assailed order dated 17 March 2004, the Court gives more leeway to the Public Prosecutor in determining whether it has to continue or stop prosecuting a case. While the City Prosecutor has previously decided not to pursue further the case, the Secretary of Justice, however, through its resolution on the Petition for Review did not agree with him. The Court disagrees with the argument raised by the accused that double jeopardy sets in to the picture. The order of dismissal as well as the withdrawal of the Information was not yet final because of the timely filing of the Motion for Reconsideration. The Court[,] therefore, can still set aside its order. Moreover, there is no refiling of the case nor the filing of a new one. The case filed remains the same and the order of dismissal was merely vacated because the Court finds the Motion for Reconsideration meritorious. WHEREFORE, finding the Motion for Reconsideration meritorious, the Order dated 17 March 2004 is hereby RECONSIDERED and SET ASIDE. Let the arraignment of accused Oscar Mapalo and pre-trial [of] the other accused be set on 06 December 2006 at 8:30 in the morning. SO ORDERED.15 Respondents moved for reconsideration, but the motion was denied in the RTCs second assailed Order dated February 26, 2007.16 Relentless, respondents elevated their predicament to the CA through a Petition for Certiorari under Rule 65 of the Rules of Court, arguing in the main that the RTC Orders violated their constitutional right against double jeopardy. Ruling of the CA The appellate court found the RTC to have gravely abused its discretion in ordering the reinstatement of the case. The CA annulled the impugned RTC Orders, ruling that all the elements of double jeopardy exist. There was a valid Information sufficient in form and substance filed before a court of competent jurisdiction to which respondents had pleaded, and that the termination of the case was not expressly consented to by respondents; hence, the same could not be revived or refiled without transgressing respondents right against double jeopardy. The CA further found that the DOJ Secretary improperly took cognizance of the Petition for Review because DOJ Department Order No. 223 mandates that no appeal shall be entertained if the accused has already been arraigned or, if the arraignment took

JOSEPH C. CEREZO, Petitioner, vs. PEOPLE OF THE PHILIPPINES, JULIET YANEZA, PABLO ABUNDA, JR., and VICENTE AFULUGENCIA,Respondents. DECISION NACHURA, J.: This petition for review on certiorari under Rule 45 of the Rules of Court seeks to annul the July 11, 2008 Decision1 and the November 4, 2008 Resolution2 of the Court of Appeals (CA) in CA-G.R. SP No. 99088, which reversed and set aside the October 24, 20063 and the February 26, 20074 Orders of the Regional Trial Court (RTC) of Quezon City, Branch 92. The RTC Orders revived Criminal Case No. Q-03-115490, entitled "People of the Philippines v. Juliet Yaneza, Pablo Abunda, Jr., Oscar Mapalo and Vicente Afulugencia," after the same was dismissed in an earlier Order. The Facts On September 12, 2002, petitioner Joseph Cerezo filed a complaint for libel against respondents Juliet Yaneza, Pablo Abunda, Jr., and Vicente Afulugencia (respondents), as well as Oscar Mapalo (Mapalo).5 Finding probable cause to indict respondents,6 the Quezon City Prosecutors Office (OP-QC) filed the corresponding Information against them on February 18, 2003 before the RTC.7 Respondents thereafter filed a Motion for Reconsideration and/or Motion to Re-evaluate Prosecutions Evidence before the OP-QC.8 In its resolution dated November 20, 2003, the OP-QC reversed its earlier finding and recommended the withdrawal of the Information.9 Consequently, a Motion to Dismiss and Withdraw Information was filed before the RTC on December 3, 2003. During the intervening period, specifically on November 24, 2003, respondents were arraigned. All of them entered a "not guilty" plea.10 In deference to the prosecutors last resolution, the RTC ordered the criminal case dismissed in its Order dated March 17, 2004, viz.: Settled is the rule that the determination of the persons to be prosecuted rests primarily with the Public Prosecutor who is vested with quasi-judicial discretion in the discharge of this function. Being vested with such power, he can reconsider his own resolution if he finds that there is reasonable ground to do so. x x x. More so, the Court cannot interfere with the Public Prosecutors discretion to determine probable cause or the propriety of pursuing or not a criminal case when the case is not yet filed in Court, as a general rule. However, if the same criminal case has been filed in Court already, the Public Prosecutor can still interfere with it subject to the approval of the Court. In the case of Republic vs. Sunga, et al., the Supreme Court held that while it has been settled in the case of Crespo vs. Mogul that the trial court is the sole judge on whether a criminal case should be dismissed after the complaint or information has been filed in court, nonetheless any motion of the offended party for the dismissal of the criminal case, even if without objection of the accused, should first be referred to the prosecuting fiscal and only after hearing should the court exercise its exclusive authority to dismiss or continue with the prosecution of the case. The Court, therefore, after hearing and conferring with the fiscal, can dismiss the case if convinced that there is [no] reason to

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place during the pendency of the appeal, the same shall be dismissed.17 Petitioner interposed the instant appeal when his motion for reconsideration of the CA Decision was denied.18 The Issues Petitioner ascribes the following errors to the CA: a. The Honorable Court of Appeals erred in finding that there was Double Jeopardy, specifically on the alleged existence of the requisites to constitute Double Jeopardy; b. The Honorable Court of Appeals failed to consider the fact that there was NO refiling of the case nor the filing of a new one in arriving [at] its conclusion that Double Jeopardy sets in to the picture; c. The Honorable Court of Appeals erred in finding that there was 1.) a valid termination of the case on the basis of the Order of the Trial Court dated 17 March 2004, and allegedly 2.) without the express consent of the respondents.19 The assigned errors will be subsumed into this issue: Whether there was a valid termination of the case so as to usher in the impregnable wall of double jeopardy. Our Ruling The petition is impressed with merit. Well-entrenched is the rule that once a case is filed with the court, any disposition of it rests on the sound discretion of the court. In thus resolving a motion to dismiss a case or to withdraw an Information, the trial court should not rely solely and merely on the findings of the public prosecutor or the Secretary of Justice.20 It is the courts bounden duty to assess independently the merits of the motion, and this assessment must be embodied in a written order disposing of the motion.21 While the recommendation of the prosecutor or the ruling of the Secretary of Justice is persuasive, it is not binding on courts. In this case, it is obvious from the March 17, 2004 Order of the RTC, dismissing the criminal case, that the RTC judge failed to make his own determination of whether or not there was a prima facie case to hold respondents for trial. He failed to make an independent evaluation or assessment of the merits of the case. The RTC judge blindly relied on the manifestation and recommendation of the prosecutor when he should have been more circumspect and judicious in resolving the Motion to Dismiss and Withdraw Information especially so when the prosecution appeared to be uncertain, undecided, and irresolute on whether to indict respondents. The same holds true with respect to the October 24, 2006 Order, which reinstated the case. The RTC judge failed to make a separate evaluation and merely awaited the resolution of the DOJ Secretary. This is evident from the general tenor of the Order and highlighted in the following portion thereof: As discussed during the hearing of the Motion for Reconsideration, the Court will resolve it depending on the outcome of the Petition for Review. Considering the findings of the Department of Justice reversing the resolution of the City Prosecutor, the Court gives favorable action to the Motion for Reconsideration.22 By relying solely on the manifestation of the public prosecutor and the resolution of the DOJ Secretary, the trial court abdicated its judicial power and refused to perform a positive duty enjoined

by law. The said Orders were thus stained with grave abuse of discretion and violated the complainants right to due process. They were void, had no legal standing, and produced no effect whatsoever.23 This Court must therefore remand the case to the RTC, so that the latter can rule on the merits of the case to determine if a prima facie case exists and consequently resolve the Motion to Dismiss and Withdraw Information anew.1awphil It is beyond cavil that double jeopardy did not set in. Double jeopardy exists when the following requisites are present: (1) a first jeopardy attached prior to the second; (2) the first jeopardy has been validly terminated; and (3) a second jeopardy is for the same offense as in the first. A first jeopardy attaches only (a) after a valid indictment; (b) before a competent court; (c) after arraignment; (d) when a valid plea has been entered; and (e) when the accused has been acquitted or convicted, or the case dismissed or otherwise terminated without his express consent.24 Since we have held that the March 17, 2004 Order granting the motion to dismiss was committed with grave abuse of discretion, then respondents were not acquitted nor was there a valid and legal dismissal or termination of the case. Ergo, the fifth requisite which requires the conviction and acquittal of the accused, or the dismissal of the case without the approval of the accused, was not met. Thus, double jeopardy has not set in. WHEREFORE, the petition is hereby GIVEN DUE COURSE, and the assailed July 11, 2008 Decision and the November 4, 2008 Resolution of the Court of Appeals in CA-G.R. SP No. 99088, and the October 24, 2006 and the February 26, 2007 Orders of the Regional Trial Court of Quezon City, Branch 92, are hereby ANNULLED andSET ASIDE. The case is REMANDED to the Quezon City RTC, Branch 92, for evaluation on whether probable cause exists to hold respondents for trial. No costs. SO ORDERED.

132

G.R. No. 149453

October 7, 2003

No. 99-8-09-SC is applicable only to cases assigned to the divisions of the Court: The respondents reliance on Supreme Court Circular No. 99-8-09 is misplaced. As admitted by the respondent, the said circular is applicable only to motions for reconsideration in cases assigned to the Divisions of the Court. For cases assigned to the Court En Banc, the policy of the Court had always been and still is, if the ponente is no longer with the Court, his replacement will act upon the motion for reconsideration of a party and participate in the deliberations thereof. This is the reason why Justice Callejo, Sr. who had replaced retired Justice De Leon, prepared the draft of the April 1, 2003 Resolution of the Court.8 The Court also ruled that there was no need for its newest members to inhibit themselves from participating in the deliberation of the respondents Motion for Reconsideration: Although Justices Conchita Carpio-Morales, Romeo J. Callejo, Sr., and Adolfo S. Azcuna were not yet members of the Court during the February 18, 20029 oral arguments before the Court, nonetheless they were not disqualified to participate in the deliberations on the petitioners motion for reconsideration of the May 28, 2002 Resolution of the Court or of the instant motion for reconsideration. Neither is Justice Callejo, Sr. disqualified to prepare the resolution of the Court on the motion for reconsideration of the respondent. When the Court deliberated on petitioners motion for reconsideration, Justices Conchita Carpio-Morales, Romeo J. Callejo, Sr. and Adolfo S. Azcuna were already members of the Court. It bears stressing that transcripts of stenographic notes taken during the February 18, 2002 hearing and oral arguments of the parties are parts of the records of this case. Said transcripts are available to the parties or to any member of the Court. Likewise, Attys. Rene A.V. Saguisag and Felix Carao, Jr. may not yet have been the counsel of the respondent on February 18, 2002 but by reading the said transcripts and the records of this case they are informed of what transpired during the hearing and oral arguments of the parties.10 It is thus clear that the grounds cited by the respondent in his omnibus motion had already been passed upon and resolved by this Court. The respondent did not make any new substantial arguments in his motion to warrant a reconsideration of the aforesaid resolutions. Besides, the respondent sought the inhibition of Justices Conchita C. Morales and Adolfo S. Azcuna only after they had already concurred in the Courts Resolution dated April 1, 2003. Case law has it that a motion for disqualification must be denied when filed after a member of the Court has already given an opinion on the merits of the case, the rationale being that a litigant cannot be permitted to speculate upon the action of the Court, only to raise an objection of this sort after a decision has been rendered.11 The Motion to Set the Case for Oral Arguments The Court denies the motion of the respondent. The parties have already extensively discussed the issues involved in the case. The respondents motion for reconsideration consists of no less than a hundred pages, excluding the supplement to his motion for reconsideration and his reply to the petitioners comment on his motion. There is no longer a need to set the instant case for oral arguments. The Issue as to the Application of the Time-bar under Section 8, Rule 117 of the Revised Rules of Criminal Procedure Whether Prospective or Retroactive The respondent seeks the reconsideration of the April 1, 2003 Resolution of the Court and thereafter reinstate its Resolution of May 28, 2002.

PEOPLE OF THE PHILIPPINES, THE SECRETARY OF JUSTICE, DIRECTOR GENERAL OF THE PHILIPPINE NATIONAL POLICE, CHIEF STATE PROSECUTOR JOVENCITO ZUO, STATE PROSECUTORS PETER L. ONG and RUBEN A. ZACARIAS; 2ND ASSISTANT CITY PROSECUTOR CONRADO M. JAMOLIN and CITY PROSECUTOR OF QUEZON CITY CLARO ARELLANO, petitioners, vs. PANFILO M. LACSON, respondent. RESOLUTION CALLEJO, SR., J.: Before the Court are the following motions of the respondent, to wit: (a) Omnibus Motion;1 (b) Motion for Reconsideration;2 (c) Supplement to Motion for Reconsideration;3 (d) Motion To Set for Oral Arguments.4 The Omnibus Motion The respondent seeks the reconsideration of the April 29, 2003 Resolution of this Court which granted the petitioners motion for reconsideration. The respondent thereafter prays to allow Associate Justices Renato C. Corona, Ma. Alicia Austria-Martinez, Conchita C. Morales, Romeo J. Callejo, Sr., and Adolfo S. Azcuna to voluntary inhibit themselves or, absent their consent, rule that such inhibition is in order and to recuse them from further deliberating, discussing or, in any manner, participating in the resolution of the Motion for Reconsideration and the Supplement to Motion for Reconsideration. The respondent points out that the aforenamed members of the Court were appointed by President Gloria Macapagal-Arroyo after the February 19, 2002 oral arguments and after the case at bar was submitted for the decision of the Court. He asserts that although A.M. No. 99-8-09SC5 specifically provides that it applies only to the divisions of the Court, it should likewise apply to this case, in light of the April 1, 2003 Resolution of this Court which set aside its Resolution dated May 28, 2002, apart from the constitutional issues raised by the respondent in his motion for reconsideration and its supplement. As such, according to the respondent, the instant case should be unloaded by Justice Callejo, Sr. and re-raffled to any other member of the Court. The Court resolves to deny the respondents motion for lack of merit. The records show that as early as May 24, 2002, the respondent filed an urgent motion for the recusation of Justices Renato C. Corona and Ma. Alicia Austria-Martinez for the reason that they were appointed to the Court after the February 19, 2002 oral arguments and did not participate in the integral portions of the proceedings. Justices Corona and Austria-Martinez refused to inhibit themselves and decided to participate in the deliberation on the petition.6 On March 18, 2003, the respondent filed a motion with the Court for the recusation of Justice Romeo J. Callejo, Sr. on account of his voluntary inhibition when the case was pending before the Court of Appeals. On March 25, 2003, this Court issued a resolution denying the respondents Motion dated March 18, 2003. The respondent thereafter filed his motion for reconsideration of the April 1, 2003 Resolution of the Court in which he prayed, inter alia, for the inhibition of Justice Callejo, Sr. under A.M. No. 99-8-09-SC and that the case be re-raffled to another member of the Court who had actually participated in the deliberation and the rendition of its May 28, 2002 Resolution. The respondent likewise sought the inhibition of Justices Conchita C. Morales and Adolfo S. Azcuna, again for the reason that they were appointed to the Court after the oral arguments on February 19, 2002 and after the case had already been submitted for decision. On April 29, 2003, this Court issued a resolution denying the aforesaid motions of the respondent.7 The Court ruled that A.M.

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He asserts that pursuant to a long line of jurisprudence and a long-standing judicial practice in applying penal law, Section 8, Rule 117 of the Revised Rules of Criminal Procedure (RRCP) should be applied prospectively and retroactively without reservations, only and solely on the basis of its being favorable to the accused. He asserts that case law on the retroactive application of penal laws should likewise apply to criminal procedure, it being a branch of criminal law. The respondent insists that Section 8 was purposely crafted and included as a new provision to reinforce the constitutional right of the accused to a speedy disposition of his case. It is primarily a check on the State to prosecute criminal cases diligently and continuously, lest it loses its right to prosecute the accused anew. The respondent argues that since Section 8 is indubitably a rule of procedure, there can be no other conclusion: the rule should have retroactive application, absent any provision therein that it should be applied prospectively. Accordingly, prospective application thereof would in effect give the petitioners more than two years from March 29, 1999 within which to revive the criminal cases, thus violating the respondents right to due process and equal protection of the law. The respondent asserts that Section 8 was meant to reach back in time to provide relief to the accused. In this case, the State had been given more than sufficient opportunity to prosecute the respondent anew after the March 29, 1999 dismissal of the cases by then Judge Wenceslao Agnir, Jr. and even before the RRCP took effect on December 1, 2000. According to the respondent, the petitioners filed the Informations with the RTC in Criminal Cases Nos. 01-101102 to 01-101112 beyond the two-year bar, in violation of his right to a speedy trial, and that such filing was designed to derail his bid for the Senate. In their comment on the respondents motions, the petitioners assert that the prospective application of Section 8 is in keeping with Section 5(5), Article VIII of the 1987 Constitution, which provides in part that the rules of procedure which the Court may promulgate shall not diminish, increase or modify substantial rights. While Section 8 secures the rights of the accused, it does not and should not preclude the equally important right of the State to public justice. If such right to public justice is taken away, then Section 8 can no longer be said to be a procedural rule. According to the petitioners, if a procedural rule impairs a vested right, or would work injustice, the said rule may not be given a retroactive application. They contend that the right of the accused to a speedy trial or disposition of the criminal cases applies only to outstanding and pending cases and not to cases already dismissed. The petitioners assert that the "refiling of the cases" under Section 8 should be taken to mean as the filing of the criminal complaint with the appropriate office for the purpose of conducting a preliminary investigation, and not the actual filing of the criminal complaint or information in court for trial. Furthermore, according to the petitioners, the offended parties must be given notices of the motion for provisional dismissal of the cases under Section 8 since the provision so expressly states. Thus, if the requisite notices to the heirs of the deceased would be taken into consideration, the two-year period had not yet even commenced to run. In his consolidated reply to the comment of the petitioners, the respondent asserts that the State is proscribed from refiling a criminal case if it can be shown that the delay resulted in a violation of the right of the accused to due process. In this case, there was an inordinate delay in the revival of the cases, considering that the witnesses in the criminal cases for the State in March 1999 are the same witnesses in 2001. The State had reasonable opportunity to refile the cases before the two-year bar but failed to do so because of negligence; and perhaps institutional indolence. Contrary to the petitioners contention, the respondent posits that the revival of the cases contemplated in Section 8 refers to the filing of the Informations or complaints in court for trial. The operational act then is the refiling of the Informations with the RTC, which was done only on June 6, 2001, clearly beyond the two-year bar. The Court finds the respondents contentions to be without merit.

First. The Court approved the RRCP pursuant to its power under Article VIII, Section 5, paragraph 5 of the Constitution which reads: (5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court. The Court is not mandated to apply Section 8 retroactively simply because it is favorable to the accused. It must be noted that the new rule was approved by the Court not only to reinforce the constitutional right of the accused to a speedy disposition of the case. The time-bar under the new rule was fixed by the Court to excise the malaise that plagued the administration of the criminal justice system for the benefit of the State and the accused; not for the accused only. The Court emphasized in its assailed resolution that: In the new rule in question, as now construed by the Court, it has fixed a time-bar of one year or two years for the revival of criminal cases provisionally dismissed with the express consent of the accused and with a priori notice to the offended party. The time-bar may appear, on first impression, unreasonable compared to the periods under Article 90 of the Revised Penal Code. However, in fixing the time-bar, the Court balanced the societal interests and those of the accused for the orderly and speedy disposition of criminal cases with minimum prejudice to the State and the accused. It took into account the substantial rights of both the State and of the accused to due process. The Court believed that the time limit is a reasonable period for the State to revive provisionally dismissed cases with the consent of the accused and notice to the offended parties. The time-bar fixed by the Court must be respected unless it is shown that the period is manifestly short or insufficient that the rule becomes a denial of justice.12 In criminal litigations concerning constitutional issue claims, the Court, in the interest of justice, may make the rule prospective where the exigencies of the situation make the rule prospective. The retroactivity or non-retroactivity of a rule is not automatically determined by the provision of the Constitution on which the dictate is based. Each constitutional rule of criminal procedure has its own distinct functions, its own background or precedent, and its own impact on the administration of justice, and the way in which these factors combine must inevitably vary with the dictate involved.13 Matters of procedure are not necessarily retrospective in operation as a statute.14 To paraphrase the United States Supreme Court per Justice Benjamin Cardozo, the Court in defining the limits of adherence may make a choice for itself between the principle of forward operation and that of relating forward.15 The Court approved Section 8 pursuant to its power under Article VIII, Section 5, paragraph 5 of the Constitution. This constitutional grant to promulgate rules carries with it the power, inter alia, to determine whether to give the said rules prospective or retroactive effect. Moreover, under Rule 144 of the Rules of Court, the Court may not apply the rules to actions pending before it if in its opinion their application would not be feasible or would work injustice, in which event, the former procedure shall apply.16 The absence of a provision in Section 8 giving it prospective application only does not proscribe the prospective application thereof; nor does it imply that the Court intended the new rule to be given retroactive and prospective effect. If the statutory purpose is clear, the provisions of the law should be construed as is conducive to fairness and justice, and in harmony with the

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general spirit and policy of the rule. It should be construed so as not to defeat but to carry out such end or purpose.17 A statute derives its vitality from the purpose for which it is approved. To construe it in a manner that disregards or defeats such purpose is to nullify or destroy the law.18 In Cometa v. Court of Appeals,19 this Court ruled that "the spirit rather than the letter of the statute determines its construction; hence, a statute must be read according to its spirit or intent."20 While we may not read into the law a purpose that is not there, we nevertheless have the right to read out of it the reason for its enactment. In doing so, we defer not to the "letter that killeth" but to the "spirit that vivifieth, to give effect to the lawmakers will."21 In this case, when the Court approved Section 8, it intended the new rule to be applied prospectively and not retroactively, for if the intention of the Court were otherwise, it would defeat the very purpose for which it was intended, namely, to give the State a period of two years from notice of the provisional dismissal of criminal cases with the express consent of the accused. It would be a denial of the States right to due process and a travesty of justice for the Court to apply the new rule retroactively in the present case as the respondent insists, considering that the criminal cases were provisionally dismissed by Judge Agnir, Jr. on March 29, 1999 before the new rule took effect on December 1, 2000. A retroactive application of the time-bar will result in absurd, unjust and oppressive consequences to the State and to the victims of crimes and their heirs. Consider this scenario: the trial court (RTC) provisionally dismissed a criminal case with the express consent of the accused in 1997. The prosecution had the right to revive the case within the prescriptive period, under Article 90 of the Revised Penal Code, as amended. On December 1, 2000, the time-bar rule under Section 8 took effect, the prosecution was unable to revive the criminal case before then. If the time-bar fixed in Section 8 were to be applied retroactively, this would mean that the State would be barred from reviving the case for failure to comply with the said time-bar, which was yet to be approved by the Court three years after the provisional dismissal of the criminal case. In contrast, if the same case was dismissed provisionally in December 2000, the State had the right to revive the same within the time-bar. In fine, to so hold would imply that the State was presumed to foresee and anticipate that three years after 1997, the Court would approve and amend the RRCP. The State would thus be sanctioned for its failure to comply with a rule yet to be approved by the Court. It must be stressed that the institution and prosecution of criminal cases are governed by existing rules and not by rules yet to exist. It would be the apex of injustice to hold that Section 8 had a platonic or ideal existence before it was approved by the Court. The past cannot be erased by a capricious retroactive application of the new rule. In holding that the petitioners had until December 1, 2002 within which to revive the criminal cases provisionally dismissed by Judge Agnir, Jr. on March 29, 1999, this Court explained, thus: The Court agrees with the petitioners that to apply the time-bar retroactively so that the two-year period commenced to run on March 31, 1999 when the public prosecutor received his copy of the resolution of Judge Agnir, Jr. dismissing the criminal cases is inconsistent with the intendment of the new rule. Instead of giving the State two years to revive provisionally dismissed cases, the State had considerably less than two years to do so. Thus, Judge Agnir, Jr. dismissed Criminal Cases Nos. Q-99-81679 to Q99-81689 on March 29, 1999. The new rule took effect on December 1, 2000. If the Court applied the new time-bar retroactively, the State would have only one year and three months or until March 31, 2001 within which to revive these criminal cases. The period is short of the two-year period fixed under the new rule. On the other hand, if the time limit is applied prospectively, the State would have two years from December 1, 2000 or until December 1, 2002 within which to revive the cases. This is in consonance with the intendment of the new rule in fixing the time-bar and thus prevent injustice to the State and

avoid absurd, unreasonable, oppressive, injurious, and wrongful results in the administration of justice. The period from April 1, 1999 to November 30, 199922 should be excluded in the computation of the two-year period because the rule prescribing it was not yet in effect at the time and the State could not be expected to comply with the time-bar. It cannot even be argued that the State waived its right to revive the criminal cases against respondent or that it was negligent for not reviving them within the two-year period under the new rule.1a\^/phi1.netAs the United States Supreme Court said, per Justice Felix Frankfurter, in Griffin v. People, 351 US 12 (1956): We should not indulge in the fiction that the law now announced has always been the law and, therefore, that those who did not avail themselves of it waived their rights The two-year period fixed in the new rule is for the benefit of both the State and the accused. It should not be emasculated and reduced by an inordinate retroactive application of the time-bar therein provided merely to benefit the accused. For to do so would cause an "injustice of hardship" to the State and adversely affect the administration of justice in general and of criminal laws in particular.23 Further quoting Justice Felix Frankfurters opinion in Griffin v. People,24 he said, "it is much more conducive to laws self-respect to recognize candidly the considerations that give prospective content to a new pronouncement of law. That this is consonant with the spirit of our law and justified by those considerations of reason which should dominate the law has been luminously expounded by Mr. Justice Cardozo shortly before he came here and in an opinion which he wrote for the Court." Parenthetically, the respondent himself admitted in his motion for reconsideration that Judge Agnir, Jr. could not have been expected to comply with the notice requirement under the new rule when it yet had to exist: 99. Respondent submits that the records are still in the same state of inadequacy and incompletion. This however is not strange considering that Section 8, Rule 117 had not existed on March 29, 1999, when the criminal cases were dismissed, and then Judge Agnir did not have its text to guide his actions. How could the good judge have complied with the mandate of Section 8, Rule 117 when it yet had to exist?25 Statutes regulating the procedure of the courts will be construed as applicable to actions pending and undetermined at the time of their passage. In that sense and to that extent, procedural laws are retroactive.26Criminal Cases Nos. Q-99-81679 to Q-99-81689 had long been dismissed by Judge Agnir, Jr. before the new rule took effect on December 1, 2000. When the petitioners filed the Informations in Criminal Cases Nos. 01-101102 to 01-101112 on June 6, 2001, Criminal Cases Nos. Q-99-81679 and Q-99-81689 had long since been terminated. The two-year bar in the new rule should not be reckoned from the March 29, 1999 dismissal of Criminal Cases Nos. Q-99-81679 to Q-99-81689 but from December 1, 2000 when the new rule took effect. While it is true that the Court applied Section 8 of Rule 11027 of the RRCP retroactively, it did so only to cases still pending with this Court and not to cases already terminated with finality. The records show that after the requisite preliminary investigation conducted by the petitioners in accordance with existing rules, eleven Informations in Criminal Cases Nos. 01101102 to 01-101112 were filed with the RTC on June 6, 2001, very well within the time-bar therefor. The respondent cannot argue that his right to due process and to a speedy disposition of the cases as enshrined in the Constitution had been violated.28 The respondents plaint that he was being singled out by the prospective application of the new rule simply because before the Court issued its April 1, 2003 Resolution, he announced his candidacy for the presidency of the Republic for the 2004 elections has no factual basis whatsoever.29 The bare and

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irrefutable fact is that it was in this case where the issue of the retroactive/prospective application of the new rule was first raised before the Court. The ruling of the Court in its April 1, 2003 Resolution and its ruling today would be the same, regardless of who the party or parties involved are, whether a senator of the Republic or an ordinary citizen. The respondents contention that the prospective application of the new rule would deny him due process and would violate the equal protection of laws is barren of merit. It proceeds from an erroneous assumption that the new rule was approved by the Court solely for his benefit, in derogation of the right of the State to due process. The new rule was approved by the Court to enhance the right of due process of both the State and the accused. The State is entitled to due process in criminal cases as much as the accused. Due process has never been and perhaps can never be precisely defined.1a\^/phi1.net It is not a technical conception with a fixed content unrelated to time, place and circumstances. The phrase expresses the requirement of fundamental fairness, a requisite whose meaning can be as opaque as its importance is lofty.30 In determining what fundamental fairness consists of in a particular situation, relevant precedents must be considered and the interests that are at stake; private interests, as well as the interests of the government must be assessed. In this case, in holding that the new rule has prospective and not retroactive application, the Court took into consideration not only the interests of the respondent but all other accused, whatever their station in life may be. The interest of the State in the speedy, impartial and inexpensive disposition of criminal cases was likewise considered. The Respondent Failed to Comply with the Essential Prerequisites of Section 8, Rule 117 of the Revised Rules of Criminal Procedure The respondent argues that the issue involved in the Court of Appeals is entirely different from the issue involved in the present recourse; hence, any admissions he made in the court below are not judicial admissions in this case. He asserts that the issue involved in the CA was whether or not he was placed in double jeopardy when he was charged with murder in Criminal Cases Nos. 01-101102 to 01-101112 despite the dismissal of Criminal Cases Nos. Q-99-81679 to Q-99-81689; whereas the issue in this Court is whether the prosecution of Criminal Cases Nos. 01-101102 to 01-101112 was barred by Section 8, Rule 117 of the RRCP. The respondent avers that the proceedings in the appellate court are different from those in this Court. The respondent posits that this Court erred in giving considerable weight to the admissions he made in his pleadings and during the proceedings in the CA. He stresses that judicial admissions may only be used against a party if such admissions are (a) made in the course of the proceedings in the same case; and (b) made regarding a relevant fact, pursuant to Section 4, Rule 129 and Section 26, Rule 130 of the Rules of Evidence. He contends that contrary to the ruling of the Court, when he filed his motion for the judicial determination of probable cause in Criminal Cases Nos. Q-99-81679 to Q-99-81689, he thereby prayed for the dismissal of the said cases. His motion carried with it, at the very least, the prayer for the dismissal of the criminal cases. Absent a finding of probable cause, Judge Agnir, Jr. had no recourse but to dismiss the criminal cases. Moreover, the respondent avers that his motion included the general prayer "for such other reliefs as may be equitable in the premises." The respondent also points out that the public prosecutor agreed to the averments in his motion as the latter did not even file any motion for the reconsideration of Judge Agnir, Jr.s order dismissing the cases. The respondent further contends that the Court is not a trier of facts. It has no means to ascertain or verify as true the contrasting claims of the parties on the factual issues, a function best left to the trial court as the trier of facts. He posits that there is a need for the case to be remanded to the RTC to enable him to present evidence on whether or not Judge Agnir, Jr. complied with the notice requirements of Section 8. Echoing the May 28,

2002 ruling of this Court, the respondent contends that it is not fair to expect the element of notice under Section 8 to be litigated before Judge Agnir, Jr., for the said rule was not yet in existence at the time he filed his motion for a determination of probable cause. The respondent avers that the requirement for notices to the offended parties under Section 8 is a formal and not an essential requisite. In criminal cases, the offended party is the State and the role of the private complainant is limited to the determination of the civil liability of the accused. According to the respondent, notice to the prosecution provides sufficient safeguard for the private complainant to recover on the civil liability of the accused based on the delicts; after all, the prosecution of the offense is under the control and direction of the public prosecutor. The contentions of the respondent have no merit. First. The issue posed by the respondent in the CA and in this Court are the same. To recall, in Civil Case No. 01-100933,31 the respondent32 sought injunctive relief from the RTC of Manila on his claim that in conducting a preliminary investigation in Criminal Cases Nos. 01-101102 to 01-101112, the petitioners thereby placed him in double jeopardy under Section 7, Rule 117 of the RRCP.33 When the RTC denied his plea for injunctive relief, the respondent filed his petition for certiorari in the CA, again invoking his right against double jeopardy, praying that: 13. Inasmuch as the case subject of the "preliminary investigation" was dismissed for the reasons mentioned, there currently exists no complaint upon which a valid investigation can be had in light of the clear provisions of Rule 110 which requires the existence of a "sworn written statement charging a person with an offense" as basis for the commencement of a preliminary investigation under Rule 112.1awphi1.nt For petitioner, the investigation covers exactly the same offenses over which he had been duly arraigned and a plea validly entered before the Sandiganbayan (in Criminal Cases Nos. 23047 to 57) before its remand to the QC RTC. Hence, to proceed therewith on similar charges will put him in jeopardy of being twice punished therefor (Article III, 21, Constitution).34 The respondent (petitioner therein) contended that the dismissal of Criminal Cases Nos. Q-99-81679 to Q-99-81689 by Judge Agnir, Jr. amounted to a judgment of acquittal; hence, he could no longer be charged and prosecuted anew for the same offense without violating his right against double jeopardy. However, the respondent filed a second amended petition wherein he invoked for the first time Section 8 of Rule 117 of the RRCP: (e) the new criminal cases for Murder filed by respondents against petitioner and the other accused on June 6, 2001 (docketed as Criminal Cases Nos. 01-101102 to 01-101112) and pending before respondent Judge Yadao (Annex B) is dismissible on its face as they involve exactly the same accused, facts, and offenses which had previously been dismissed by the QC RTC in Criminal Cases Nos. Q-99-81679 to 89 on March 29, 1999, hence, can no longer be revived two (2) years after such dismissal in accordance with the clear provisions of Section 8, Rule 117.35 Indeed, the CA granted the respondents petition based on Section 8, Rule 117 of the RRCP. In this case, the respondent invoked the same rule and the Constitution. Thus, during the oral arguments in this Court, the respondent, through counsel, admitted that he was indeed invoking Section 8 anew and the provisions of the Constitution on double jeopardy: JUSTICE PANGANIBAN: You are saying that Sen. Lacson can no longer be prosecuted forever for that crime, for the killing of the 11 in 1995?

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ATTY. FORTUN: That is my submission, Your Honor. JUSTICE PANGANIBAN: Let us see your reason for it? ATTY. FORTUN:36 First, are you saying that double jeopardy applies or not? JUSTICE PANGANIBAN:37 Allow me to qualify the effects of double jeopardy occur with permanent dismissal that is my submission. ATTY. FORTUN:38

So, the answer is yes? ATTY. FORTUN: No, Your Honor, we were saying that precisely a permanent dismissal vests the rights of double jeopardy upon the accused who invokes it. JUSTICE PANGANIBAN: What you are saying is the effects, I am not asking about the effects, I will ask that later. ATTY. FORTUN: They are two different (interrupted) JUSTICE PANGANIBAN: Later, I am asking about doctrines. Since you are not invoking the doctrine of double jeopardy you are resting your case win or lose, sink or sail on the application of 8,117? ATTY. FORTUN: On the constitutional right of the accused under Section 16 of Article 3 which is speedy disposition of cases which implemented 8,817, that is our arguments in this bar. JUSTICE PANGANIBAN: Are you not resting on 8,117? ATTY. FORTUN: That and the constitutional provision, Your Honor. JUSTICE PANGANIBAN: So, you are resting on 8,117? ATTY. FORTUN: Not exclusive, Your Honor. JUSTICE PANGANIBAN: And the Constitution? ATTY. FORTUN: The Constitution which gave life to 8,117. JUSTICE PANGANIBAN: To speedy disposition? ATTY. FORTUN: Yes, Your Honor.

No, no, I am not talking of the effects, I am talking of the doctrine, you are not invoking the doctrine of double jeopardy? ATTY. FORTUN: Your Honor, double jeopardy does not apply Section 8, 117 they are (interrupted) JUSTICE PANGANIBAN: That is right. ATTY. FORTUN: They are two different claims. JUSTICE PANGANIBAN: That is what I am trying to rule out so that we do not have to discuss it. ATTY. FORTUN: Very well, Your Honor. JUSTICE PANGANIBAN: You are not invoking double jeopardy? ATTY. FORTUN: As I mentioned we are saying that the effects of a permanent dismissal vest the effects (interrupted) JUSTICE PANGANIBAN: No, I am not talking of the effects, I am asking about the application, you are not asking the Court to apply the doctrine of double jeopardy to prevent a prosecution of Mr. Lacson? ATTY. FORTUN:

JUSTICE PANGANIBAN: Because the element of double jeopardy cannot apply 8, 117. JUSTICE PANGANIBAN: Can a Court, let us see your theory then your theory rest on two provisions: first, the Rules of Court 8,117 and Second, the Constitution on speedy disposition?

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ATTY. FORTUN: Yes, Your Honor.39

Was there an express conformity on the part of the accused? ATTY. FORTUN:

Second. The respondents answers to the questions of Madame Justice Josefina Salonga during the hearing in the CA where he admitted, through counsel, that he gave no express conformity to the dismissal of the cases by Judge Agnir, Jr., were in relation to Section 8 of Rule 117 and not to Section 7 of Rule 117 on double jeopardy, thus: JUSTICE SALONGA: Do we get it from you that it is your stand that this is applicable to the case at bar? ATTY. FORTUN: It is my submission, that it is, Your Honor. In addition, of course, to my proposition that Mr. Lacson is covered by the rule on double jeopardy as well, because he had already been arraigned before the Sandiganbayan prior to the case being remanded to the RTC. JUSTICE SALONGA: You are referring to those cases which were dismissed by the RTC of Quezon City. ATTY. FORTUN: Yes, Your Honor. JUSTICE SALONGA: And it is your stand that the dismissal made by the Court was provisional in nature? ATTY. FORTUN: It was in that the accused did not ask for it. What they wanted at the onset was simply a judicial determination of probable cause for warrants of arrest issued. Then Judge Agnir, [Jr.] upon the presentation by the parties of their witnesses, particularly those who had withdrawn their affidavits, made one further conclusion that not only was this case lacking in probable cause for purposes of the issuance of an arrest warrant but also it did not justify proceeding to trial. JUSTICE SALONGA: And it is expressly provided under Section 8 that a case shall not be provisionally dismissed except [if] it is with the express conformity of the accused. ATTY. FORTUN: That is correct, Your Honor. JUSTICE SALONGA: And with notice to the offended party. ATTY. FORTUN: That is correct, Your Honor. JUSTICE SALONGA:

There was none, Your Honor. We were not asked to sign any order, or any statement which would normally be required by the Court on pre-trial or on other matters, including other provisional dismissal. My very limited practice in criminal courts, Your Honor, had taught me that a judge must be very careful on this matter of provisional dismissal. In fact, they ask the accused to come forward, and the judge himself or herself explains the implications of a provisional dismissal.40 The respondent, through counsel, even admitted that despite his plea for equitable relief in his motion for a judicial determination of probable cause in the RTC, he did not agree to a provisional dismissal of the cases. The respondent insisted that the only relief he prayed for before Judge Agnir, Jr. was that warrants for his arrest be withheld pending a finding of probable cause. He asserted that the judge did not even require him to agree to a provisional dismissal of the cases: JUSTICE ROSARIO: You were present during the proceedings? ATTY. FORTUN: Yes, Your Honor. JUSTICE ROSARIO: You represented the petitioner in this case? ATTY. FORTUN: That is correct, Your Honor. And there was nothing of that sort which the good Judge Agnir, [Jr.] who is most knowledgeable in criminal law, had done in respect of provisional dismissal or the matter of Mr. Lacson agreeing to the provisional dismissal of the case. JUSTICE GUERRERO: Now, you filed a motion, the other accused then filed a motion for a judicial determination of probable cause? ATTY. FORTUN: Yes, Your Honor. JUSTICE GUERRERO: Did you make any alternative prayer in your motion that if there is no probable cause what should the Court do? ATTY. FORTUN: That the arrest warrants only be withheld. That was the only prayer that we asked. In fact, I have a copy of that particular motion, and if I may read my prayer before the Court, it said: "Wherefore, it is respectfully prayed that (1) a judicial determination of probable cause pursuant to Section 2, Article III of the Constitution be conducted, and for this purpose, an order be issued directing the prosecution to present private complainants and their witnesses at the scheduled hearing for that purpose; and (2) the

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warrants for the arrest of the accused be withheld, or, if issued, recalled in the meantime until resolution of this incident." JUSTICE GUERRERO: There is no general prayer for any further relief? ATTY. FORTUN: There is but it simply says other equitable reliefs are prayed for. JUSTICE GUERRERO: Dont you surmise Judge Agnir, [Jr.] now a member of this Court, precisely addressed your prayer for just and equitable relief to dismiss the case because what would be the net effect of a situation where there is no warrant of arrest being issued without dismissing the case? ATTY. FORTUN: Yes, Your Honor. I will not second say (sic) yes the Good Justice, but what is plain is we did not agree to the provisional dismissal, neither were we asked to sign any assent to the provisional dismissal. JUSTICE GUERRERO: If you did not agree to the provisional dismissal, did you not file any motion for reconsideration of the order of Judge Agnir, [Jr.] that the case should be dismissed? ATTY. FORTUN: I did not, Your Honor, because I knew fully well at that time that my client had already been arraigned, and the arraignment was valid as far as I was concerned. So, the dismissal, Your Honor, by Judge Agnir operated to benefit me, and therefore I did not take any further step in addition to rocking the boat or clarifying the matter further because it probably could prejudice the interest of my client. JUSTICE GUERRERO: Continue.41 In his memorandum, in lieu of the oral argument filed with the Court of Appeals, the respondent declared in no uncertain terms that: Soon thereafter, the SC in early 1999 rendered a decision declaring the Sandiganbayan without jurisdiction over the cases. The records were remanded to the QC RTC. Upon raffle, the case was assigned to Branch 91. Petitioner and the others promptly filed a motion for judicial determination of probable cause (Annex B). He asked that warrants for his arrest not be issued. He did not move for the dismissal of the Informations, contrary to respondent OSGs claim.42 Section 4, Rule 129 of the Revised Rules of Court reads: Sec. 4. Judicial admissions. An admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made. A judicial admission is a formal statement made either by a party or his or her attorney, in the course of judicial proceeding which removes an admitted fact from the field of controversy. It is a

voluntary concession of fact by a party or a partys attorney during such judicial proceedings, including admissions in pleadings made by a party.43It may occur at any point during the litigation process. An admission in open court is a judicial admission.44 A judicial admission binds the client even if made by his counsel.45 As declared by this Court: ... [I]n fact, "judicial admissions are frequently those of counsel or of attorney of record, who is, for the purpose of the trial, the agent of his client. When such admissions are made ... for the purpose of dispensing with proof of some fact, ... they bind the client, whether made during, or even after the trial."46 When the respondent admitted that he did not move for the dismissal of Criminal Cases Nos. Q-99-81679 to Q-99-81689 in his motion for a judicial determination of probable cause, and that he did not give his express consent to the provisional dismissal of the said cases, he in fact admitted that one of the essential requisites of Section 8, Rule 117 was absent. The respondents contention that his admissions made in his pleadings and during the hearing in the CA cannot be used in the present case as they were made in the course of a different proceeding does not hold water. It should be borne in mind that the proceedings before the Court was by way of an appeal under Rule 45 of the Rules of Court, as amended, from the proceedings in the CA; as such, the present recourse is but a mere continuation of the proceedings in the appellate court. This is not a new trial, but a review of proceedings which commenced from the trial court, which later passed through the CA. The respondent is bound by the judicial admissions he made in the CA, and such admissions so hold him in the proceedings before this Court. As categorically stated in Habecker v. Clark Equipment Company:47 ... [J]udicial admissions on issues of fact, including those made by counsel on behalf of a client during a trial, are binding "for the purpose of the case ... including appeals." While it may be true that the trial court may provisionally dismiss a criminal case if it finds no probable cause, absent the express consent of the accused to such provisional dismissal, the latter cannot thereafter invoke Section 8 to bar a revival thereof. Neither may the accused do so simply because the public prosecutor did not object to a motion of the accused for a judicial determination of probable cause or file a motion for the reconsideration of the order of dismissal of the case. Even a cursory reading of the respondents motion for a judicial determination of probable cause will show that it contained no allegation that there was no probable cause for the issuance of a warrant for the respondents arrest as a prayer for the dismissal of the cases. The respondent was only asking the court to determine whether or not there was probable cause for the issuance of a warrant for his arrest and in the meantime, to hold in abeyance the issuance of the said warrant. Case law has it that a prayer for equitable relief is of no avail, unless the petition states facts which will authorize the court to grant such relief.48 A court cannot set itself in motion, nor has it power to decide questions except as presented by the parties in their pleadings. Anything that is resolved or decided beyond them is coram non judice and void.49 Third. There is no need for the Court to remand the instant case to the trial court to enable the respondent to adduce post facto evidence that the requisite notices under Section 8 had been complied with by Judge Agnir, Jr. The Court has thoroughly examined the voluminous records from the Sandiganbayan and the RTC50 and found no proof that the requisite notices were even served on all the heirs of the victims. The respondent himself admitted that, as held by this Court, in its May 28, 2002 Resolution, "Judge Agnir, Jr. could not have complied with the mandate under Section 8 because said rule had yet to exist."51 One final matter. The records show that Criminal Cases Nos. 01101102 to 01-101112 were assigned, through the customary raffle of cases, to Branch 81 of the RTC of Quezon City, the same branch which dismissed Criminal Cases Nos. 99-81679 to 99-

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81689.52 In the April 1, 2003 Resolution of the Court, the Presiding Judge of Branch 81 of the RTC of Quezon City was directed to try and decide Criminal Cases Nos. 01-101102 to 01101112 with reasonable dispatch. The Court notes, however, that in Administrative Order No. 104-96, it designated six branches of the RTC of Quezon City53 as special courts, exclusively to try and decide heinous crimes under Rep. Act No. 7659. Since the accused in the said cases are charged with murder, which under Rep. Act No. 7659, is classified as a heinous crime, the above cases should be consolidated and re-raffled by the Executive Judge of the RTC of Quezon City to a branch thereof designated as a special court, exclusively to try and decide heinous crimes. IN LIGHT OF ALL THE FOREGOING, respondent Panfilo M. Lacsons Omnibus Motion and Motion to Set for Oral Arguments are DENIED. The respondents Motion for Reconsideration and its Supplement are DENIED WITH FINALITY. The Executive Judge of the Regional Trial Court of Quezon City is hereby DIRECTED to CONSOLIDATE Criminal Cases Nos. 01-101102 to 01-101112 and to RE-RAFFLE the same with dispatch to one of the branches of the Regional Trial Court of Quezon City designated as a special court, exclusively to try and decide heinous crimes. SO ORDERED.

G.R. No. 173588

April 22, 2009

ARIEL M. LOS BAOS, on behalf of P/Supt. Victor Arevalo, SPO2 Marcial Olympia, SPO1 Rocky Mercene and PO1 Raul Adlawan, and in his personal capacity, Petitioner, vs. JOEL R. PEDRO, Respondent. DECISION BRION, J.: We review in this petition for review on certiorari1 the September 19, 2005 decision2 and the July 6, 2006 resolution3 of the Court of Appeals (CA) in CA-G.R. SP No. 80223. The petition seeks to revive the case against respondent Joel R. Pedro (Pedro) for election gun ban violation after the CA declared the case permanently dismissed pursuant to Section 8, Rule 117 of the Rules of Court. THE ANTECEDENTS Pedro was charged in court for carrying a loaded firearm without the required written authorization from the Commission on Elections (Comelec) a day before the May 14, 2001 national and local elections. The Information reads: That on or about the 13th day of May 2001 at about 4:00 oclock in the afternoon, in [S]itio Bantauyan, [B]arangay Bantad, Municipality of Boac, Province of Marinduque, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused did then and there, willfully, unlawfully and feloniously carry a Revolver Cal. 357, Magnum Ruger 100 loaded with six (6) ammunitions, with Serial No. 173-56836 outside his residence during the election period, without authorization in writing from the Commission on Election[s]. CONTRARY TO LAW.4 The accusation was based on Batas Pambansa Bilang 881 or the Omnibus Election Code (Code) after the Marinduque Philippine National Police (PNP) caught Pedro illegally carrying his firearm at a checkpoint at Boac, Marinduque. The Boac checkpoint team was composed of Police Senior Inspector Victor V. Arevalo, SPO2 Marshal Olympia, SPO1 Rocky Mercene, and PO1 Raul Adlawan. The team stopped a silver-gray Toyota Hi-Ace with plate number WHT-371 on the national highway, coming from the Boac town proper. When Pedro (who was seated at the rear portion) opened the window, Arevalo saw a gun carry case beside him. Pedro could not show any COMELEC authority to carry a firearm when the checkpoint team asked for one, but he opened the case when asked to do so. The checkpoint team saw the following when the case was opened: 1) one Revolver 357 Magnum Ruger GP100, serial number 173-56836, loaded with six ammunitions; 2) one ammunition box containing 100 bullets; 3) two pieces speed loader with six ammunitions each; and 4) one set ear protector. Pedro was with three other men. The checkpoint team brought all of them to the Boac police station for investigation. The Boac election officer filed a criminal complaint against Pedro for violating the election gun ban, i.e., for carrying a firearm outside of his residence or place of business without any authority from the Comelec. After an inquest, the Marinduque provincial prosecutor filed the above Information against Pedro with the Marinduque Regional Trial Court (RTC) for violation of the Codes Article XXII, Section 261 (q),5 in relation to Section 264.6 Pedro filed a Motion for Preliminary Investigation, which the RTC granted.7 The preliminary investigation, however, did not materialize. Instead, Pedro filed with the RTC a Motion to Quash, arguing that the Information "contains averments which, if true, would constitute a legal excuse or justification8 and/or that the facts charged do not constitute an offense."9 Pedro attached to his motion a Comelec Certification dated September 24, 2001 that he

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was "exempted" from the gun ban. The provincial prosecutor opposed the motion. The RTC quashed the Information and ordered the police and the prosecutors to return the seized articles to Pedro.10 The petitioner, private prosecutor Ariel Los Baos (Los Baos), representing the checkpoint team, moved to reopen the case, as Pedros Comelec Certification was a "falsification," and the prosecution was "deprived of due process" when the judge quashed the information without a hearing. Attached to Los Baos motion were two Comelec certifications stating that: (1) Pedro was not exempted from the firearm ban; and (2) the signatures in the Comelec Certification of September 24, 2001 were forged. The RTC reopened the case for further proceedings, as Pedro did not object to Los Baos motion.11 Pedro moved for the reconsideration of the RTCs order primarily based on Section 8 of Rule 117,12 arguing that the dismissal had become permanent. He likewise cited the public prosecutors lack of express approval of the motion to reopen the case. The public prosecutor, however, manifested his express conformity with the motion to reopen the case. The trial court, for its part, rejected the position that Section 8, Rule 117 applies, and explained that this provision refers to situations where both the prosecution and the accused mutually consented to the dismissal of the case, or where the prosecution or the offended party failed to object to the dismissal of the case, and not to a situation where the information was quashed upon motion of the accused and over the objection of the prosecution. The RTC, thus, set Pedros arraignment date. Pedro filed with the CA a petition for certiorari and prohibition to nullify the RTCs mandated reopening.13 He argued that the RTC committed grave abuse of discretion amounting to lack or excess of jurisdiction in ruling that the dismissal contemplated under Section 8, Rule 117 refers to situations where either the prosecution and the accused mutually consented to, or where the prosecution alone moved for, the provisional dismissal of the case; in rejecting his argument that the prescriptive periods under Article 90 of the Revised Penal Code14 or Act No. 332615 find no application to his case as the filing of the Information against him stopped the running of the prescriptive periods so that the prescription mandated by these laws became irrelevant; and, in setting the case for arraignment and pre-trial conference, despite being barred under Section 8 of Rule 117. THE COURT OF APPEALS DECISION The CA initially denied Pedros petition. For accuracy, we quote the material portions of its ruling: The petition lacks merit. The trial court erred in ruling that Section 8, Rule 117 does not apply to provisional dismissals on motion of the accused. The Rule merely provides that a case shall not be provisionally dismissed, except with the express consent of the accused and with notice to the offended party. Nothing in the said rule proscribes its application to dismissal on motion of the accused. Nevertheless, we find no basis for issuing the extraordinary writs of certiorari and prohibition, as there is no showing that the error was tainted with grave abuse of discretion. Grave abuse of discretion implies capricious and whimsical exercise of judgment amounting to lack of jurisdiction. The grave abuse of discretion must be so patent and gross as to amount to an evasion or refusal to perform a duty enjoined by law. Before the petitioner may invoke the time-bar in Section 8, he must establish the following:

1. the prosecution, with the express conformity of the accused or the accused moves for a provisional (sin perjuicio) dismissal of the case; or both the prosecution and the accused move for a provisional dismissal of the case; 2. the offended party is notified of the motion for a provisional dismissal of the case; 3. the court issues an order granting the motion and dismissing the case provisionally; 4. the public prosecutor is served, with a copy of the order of provisional dismissal of the case. Although the second paragraph of Section 8 states that the order of dismissal shall become permanent one year after the issuance thereof, without the case having been revived, such provision should be construed to mean that the dismissal shall become permanent one year after service of the order of dismissal on the public prosecutor, as the public prosecutor cannot be expected to comply with the timeliness requirement unless he is served with a copy of the order of dismissal. In the instant, case, the records are bereft of proof as to when the public prosecutor was served the order of dismissal dated 22 November 2001. Absent such proof, we cannot declare that the State is barred from reviving the case. WHEREFORE, the petition is DENIED. In his motion for reconsideration, Pedro manifested the exact date and time of the Marinduque provincial prosecutors receipt of the quashal order to be "2:35 p.m., December 10, 2001," and argued that based on this date, the provisional dismissal of the case became "permanent" on December 10, 2002. Based on this information, the CA reversed itself, ruling as follows: On 9 September 2005, we ruled that Section 8, Rule 117 is applicable to a dismissal on motion of the accused. However, we did not issue the writs of certiorari and prohibition, because it was shown that the trial court committed grave abuse of discretion in ordering the reopening of the case. Moreover, we stated that we cannot rule on the issue of whether or not the State is barred from reopening the case because it was not shown when the public prosecutor was served the order of dismissal. xxx The arguments raised in the respondents motion for modification were duly passed upon in arriving at the decision dated 9 September 2005, and no new matters were raised which would warrant a reconsideration thereof. On the other hand, the petitioner was able to prove that the motion to reopen the case was filed after the lapse of more than one year from the time the public prosecutor was served the notice of dismissal. Therefore, the state is barred from reopening the case. WHEREFORE, petitioner Joel Pedros motion for partial reconsideration is hereby GRANTED, and respondent Ariel Los Banos motion for modification of judgment is, accordingly, DENIED. To summarize this ruling, the appellate court, while initially saying that there was an error of law but no grave abuse of discretion that would call for the issuance of a writ, reversed itself on motion for reconsideration; it then ruled that the RTC committed grave abuse of discretion because it failed to apply Section 8, Rule 17 and the time-bar under this provision. THE PETITION

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Los Baos prays in his petition that the case be remanded to the RTC for arraignment and trial, or that a new charge sheet be filed against Pedro, or that the old information be re-filed with the RTC. He contends that under Section 6 of Rule 117, an order sustaining a motion to quash does not bar another prosecution for the same offense, unless the motion was based on the grounds specified in Section 3(g)16 and (i)17 of Rule 117. Los Baos argues that the dismissal under Section 8 of Rule 117 covers only situations where both the prosecution and the accused either mutually consented or agreed to, or where the prosecution alone moved for the provisional dismissal of the case; it can also apply to instances of failure on the part of the prosecution or the offended party to object, after having been forewarned or cautioned that its case will be dismissed. It does not apply where the information was quashed. He adds that although the trial court granted the motion to quash, it did not categorically dismiss the case, either provisionally or permanently, as the judge simply ordered the return of the confiscated arms and ammunition to Pedro. The order was "open-ended," and did not have the effect of provisionally dismissing the case under Section 8 of Rule 117. Los Baos also contends that the CA gravely erred when: (1) it ruled in effect that the Order dated November 22, 2001 granting the motion to quash is considered a provisional dismissal, which became permanent one year from the prosecutors receipt of the order; the order to quash the Information was based on Section 3 of Rule 117, not on Section 8 of this Rule; (2) it granted Pedros motion for reconsideration and denied Los Baos motion for modification of judgment, when Section 6 of Rule 117 clearly provides that an order granting a motion to quash is not a bar to another prosecution for the same offense. He notes that the grounds Pedro relied upon in his motion to quash are not subsections (g) or (i) of Rule 117, but its subsections (a) that the facts charged do not constitute an offense, and (h) that it contains averments which if true would constitute a legal justification. Pedros cited grounds are not the exceptions that would bar another prosecution for the same offense.18 The dismissal of a criminal case upon the express application of the accused (under subsections [a] and [h]) is not a bar to another prosecution for the same offense, because his application is a waiver of his constitutional prerogative against double jeopardy. In response to all these, respondent Pedro insists and fully relies on the application of Section 8 of Rule 117 to support his position that the RTC should not have granted Los Banos motion to reopen the case. THE ISSUES The issue is ultimately reduced to whether Section 8, Rule 117 is applicable to the case, as the CA found. If it applies, then the CA ruling effectively lays the matter to rest. If it does not, then the revised RTC decision reopening the case should prevail. OUR RULING We find the petition meritorious and hold that the case should be remanded to the trial court for arraignment and trial. Quashal v. Provisional Dismissal a. Motion to Quash A motion to quash is the mode by which an accused assails, before entering his plea, the validity of the criminal complaint or the criminal information filed against him for insufficiency on its face in point of law, or for defect apparent on the face of the Information.19 The motion, as a rule, hypothetically admits the truth of the facts spelled out in the complaint or information. The rules governing a motion to quash are found under Rule 117 of the Revised Rules of Court. Section 3 of this Rule enumerates the grounds for the quashal of a complaint or information, as follows:

(a) That the facts charged do not constitute an offense; (b) That the court trying the case has no jurisdiction over the offense charged; (c) That the court trying the case has no jurisdiction over the person of the accused; (d) That the officer who filed the information had no authority to do so; (e) That it does not conform substantially to the prescribed form; (f) That more than one offense is charged except when a single punishment for various offenses is prescribed by law; (g) That the criminal action or liability has been extinguished; (h) That it contains averments which, if true, would constitute a legal excuse or justification; and (i) That the accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without his express consent. b. Provisional Dismissal On the other hand, Section 8, Rule 117 that is at the center of the dispute states that: SEC.8. Provisional dismissal. A case shall not be provisionally dismissed except with the express consent of the accused and with notice to the offended party. The provisional dismissal of offenses punishable by imprisonment not exceeding six (6) years or a fine of any amount, or both, shall become permanent one (1) year after issuance of the order without the case having been revived. With respect to offenses punishable by imprisonment of more than six (6) years, their provisional dismissal shall become permanent two (2) years after issuance of the order without the case having been revived. A case is provisionally dismissed if the following requirements concur: 1) the prosecution with the express conformity of the accused, or the accused, moves for a provisional dismissal (sin perjuicio) of his case; or both the prosecution and the accused move for its provisional dismissal; 2) the offended party is notified of the motion for a provisional dismissal of the case; 3) the court issues an order granting the motion and dismissing the case provisionally; and 4) the public prosecutor is served with a copy of the order of provisional dismissal of the case.20 In People v. Lacson,21 we ruled that there are sine quanon requirements in the application of the time-bar rule stated in the second paragraph of Section 8 of Rule 117. We also ruled that the time-bar under the foregoing provision is a special procedural limitation qualifying the right of the State to prosecute, making the time-bar an essence of the given right or as an inherent part thereof, so that the lapse of the time-bar operates to extinguish the right of the State to prosecute the accused.

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c. Their Comparison An examination of the whole Rule tells us that a dismissal based on a motion to quash and a provisional dismissal are far different from one another as concepts, in their features, and legal consequences. While the provision on provisional dismissal is found within Rule 117 (entitled Motion to Quash), it does not follow that a motion to quash results in a provisional dismissal to which Section 8, Rule 117 applies. A first notable feature of Section 8, Rule 117 is that it does not exactly state what a provisional dismissal is. The modifier "provisional" directly suggests that the dismissals which Section 8 essentially refers to are those that are temporary in character (i.e., to dismissals that are without prejudice to the re-filing of the case), and not the dismissals that are permanent (i.e., those that bar the re-filing of the case). Based on the law, rules, and jurisprudence, permanent dismissals are those barred by the principle of double jeopardy,22 by the previous extinction of criminal liability,23 by the rule on speedy trial,24 and the dismissals after plea without the express consent of the accused.25 Section 8, by its own terms, cannot cover these dismissals because they are not provisional. A second feature is that Section 8 does not state the grounds that lead to a provisional dismissal. This is in marked contrast with a motion to quash whose grounds are specified under Section 3. The delimitation of the grounds available in a motion to quash suggests that a motion to quash is a class in itself, with specific and closely-defined characteristics under the Rules of Court. A necessary consequence is that where the grounds cited are those listed under Section 3, then the appropriate remedy is to file a motion to quash, not any other remedy. Conversely, where a ground does not appear under Section 3, then a motion to quash is not a proper remedy. A motion for provisional dismissal may then apply if the conditions required by Section 8 obtain. A third feature, closely related to the second, focuses on the consequences of a meritorious motion to quash. This feature also answers the question of whether the quashal of an information can be treated as a provisional dismissal. Sections 4, 5, 6, and 7 of Rule 117 unmistakably provide for the consequences of a meritorious motion to quash. Section 4 speaks of an amendment of the complaint or information, if the motion to quash relates to a defect curable by amendment. Section 5 dwells on the effect of sustaining the motion to quash - the complaint or information may be re-filed, except for the instances mentioned under Section 6. The latter section, on the other hand, specifies the limit of the re-filing that Section 5 allows it cannot be done where the dismissal is based on extinction of criminal liability or double jeopardy. Section 7 defines double jeopardy and complements the ground provided under Section 3(i) and the exception stated in Section 6.1awwphi1 Rather than going into specifics, Section 8 simply states when a provisional dismissal can be made, i.e., when the accused expressly consents and the offended party is given notice. The consent of the accused to a dismissal relates directly to what Section 3(i) and Section 7 provide, i.e., the conditions for dismissals that lead to double jeopardy. This immediately suggests that a dismissal under Section 8 i.e., one with the express consent of the accused is not intended to lead to double jeopardy as provided under Section 7, but nevertheless creates a bar to further prosecution under the special terms of Section 8. This feature must be read with Section 6 which provides for the effects of sustaining a motion to quash the dismissal is not a bar to another prosecution for the same offense unless the basis for the dismissal is the extinction of criminal liability and double jeopardy. These unique terms, read in relation with Sections 3(i) and 7 and compared with the consequences of Section 8, carry unavoidable implications that cannot but lead to distinctions between a quashal and a provisional dismissal under Section 8. They stress in no uncertain terms that, save only for what has been provided under Sections 4 and 5, the governing rule when a motion to quash is meritorious are the terms of Section 6. The failure of the Rules to state under Section 6 that a Section 8

provisional dismissal is a bar to further prosecution shows that the framers did not intend a dismissal based on a motion to quash and a provisional dismissal to be confused with one another; Section 8 operates in a world of its own separate from motion to quash, and merely provides a time-bar that uniquely applies to dismissals other than those grounded on Section 3. Conversely, when a dismissal is pursuant to a motion to quash under Section 3, Section 8 and its time-bar does not apply. Other than the above, we note also the following differences stressing that a motion to quash and its resulting dismissal is a unique class that should not be confused with other dismissals: First, a motion to quash is invariably filed by the accused to question the efficacy of the complaint or information filed against him or her (Sections 1 and 2, Rule 117); in contrast, a case may be provisionally dismissed at the instance of either the prosecution or the accused, or both, subject to the conditions enumerated under Section 8, Rule 117.26 Second, the form and content of a motion to quash are as stated under Section 2 of Rule 117; these requirements do not apply to a provisional dismissal. Third, a motion to quash assails the validity of the criminal complaint or the criminal information for defects or defenses apparent on face of the information; a provisional dismissal may be grounded on reasons other than the defects found in the information. Fourth, a motion to quash is allowed before the arraignment (Section 1, Rule 117); there may be a provisional dismissal of the case even when the trial proper of the case is already underway provided that the required consents are present.27 Fifth, a provisional dismissal is, by its own terms, impermanent until the time-bar applies, at which time it becomes a permanent dismissal. In contrast, an information that is quashed stays quashed until revived; the grant of a motion to quash does not per se carry any connotation of impermanence, and becomes so only as provided by law or by the Rules. In re-filing the case, what is important is the question of whether the action can still be brought, i.e., whether the prescription of action or of the offense has set in. In a provisional dismissal, there can be no re-filing after the time-bar, and prescription is not an immediate consideration. To recapitulate, quashal and provisional dismissal are different concepts whose respective rules refer to different situations that should not be confused with one another. If the problem relates to an intrinsic or extrinsic deficiency of the complaint or information, as shown on its face, the remedy is a motion to quash under the terms of Section 3, Rule 117. All other reasons for seeking the dismissal of the complaint or information, before arraignment and under the circumstances outlined in Section 8, fall under provisional dismissal. Thus, we conclude that Section 8, Rule 117 does not apply to the reopening of the case that the RTC ordered and which the CA reversed; the reversal of the CAs order is legally proper. Pedros Motion to Quash The merits of the grant of the motion to quash that the RTC initially ordered is not a matter that has been ruled upon in the subsequent proceedings in the courts below, including the CA. We feel obliged to refer back to this ruling, however, to determine the exact terms of the remand of the case to the RTC that we shall order. The grounds Pedro cited in his motion to quash are that the Information contains averments which, if true, would constitute a

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legal excuse or justification [Section 3(h), Rule 117], and that the facts charged do not constitute an offense [Section 3(a), Rule 117]. We find from our examination of the records that the Information duly charged a specific offense and provides the details on how the offense was committed.28 Thus, the cited Section 3(a) ground has no merit. On the other hand, we do not see on the face or from the averments of the Information any legal excuse or justification. The cited basis, in fact, for Pedro s motion to quash was a Comelec Certification (dated September 24, 2001, issued by Director Jose P. Balbuena, Sr. of the Law Department, Committee on Firearms and Security Personnel of the Comelec, granting him an exemption from the ban and a permit to carry firearms during the election period)29 that Pedro attached to his motion to quash. This COMELEC Certification is a matter aliunde that is not an appropriate motion to raise in, and cannot support, a motion to quash grounded on legal excuse or justification found on the face of the Information. Significantly, no hearing was ever called to allow the prosecution to contest the genuineness of the COMELEC certification.30 Thus, the RTC grossly erred in its initial ruling that a quashal of the Information was in order. Pedro, on the other hand, also misappreciated the true nature, function, and utility of a motion to quash. As a consequence, a valid Information still stands, on the basis of which Pedro should now be arraigned and stand trial. One final observation: the Information was not rendered defective by the fact that Pedro was charged of violating Section 261(q) of the Code, instead of Section 32 of R.A. No. 7166, which amended Section 261(q); these two sections aim to penalize among others, the carrying of firearms (or other deadly weapons) in public places during the election period without the authority of the Comelec. The established rule is that the character of the crime is not determined by the caption or preamble of the information or from the specification of the provision of law alleged to have been violated; the crime committed is determined by the recital of the ultimate facts and circumstances in the complaint or information31 Further, in Abenes v. Court of Appeals,32 we specifically recognized that the amendment under Section 32 of R.A. No. 7166 does not affect the prosecution of the accused who was charged under Section 261(q) of the Code. WHEREFORE, we hereby GRANT the petition and accordingly declare the assailed September 19, 2005 decision and the July 6, 2006 resolution of the Court of Appeals in CA-G.R. SP No. 80223 respectively MODIFIED and REVERSED. The case is remanded to the Regional Trial Court of Boac, Marinduque for the arraignment and trial of respondent Joel R. Pedro, after reflecting in the Information the amendment introduced on Section 261(q) of the Code by Section 32 of Republic Act No. 7166. SO ORDERED.

G.R. No. 188322

April 11, 2012

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. JOSEPH ASILAN y TABORNAL, Accused-Appellant. DECISION LEONARDO-DE CASTRO, J.: This is an appeal filed by the accused-appellant Joseph Asilan y Tabornal (Asilan) to challenge the February 25, 2009 Decision 1 of the Court of Appeals in CA-G.R. CR.-H.C. No. 02686, which affirmed in toto his Murder conviction, rendered by the Regional Trial Court (RTC), Branch 20 of the City of Manila on January 8, 2007, in Criminal Case No. 06-243060. On March 31, 2006, Asilan was charged with the complex crime of Direct Assault with Murder in an Information,2the pertinent portion of which reads: That on or about March 27, 2006, in the City of Manila, Philippines, the said accused, conspiring, and confederating with another whose true name, real identity and present whereabouts are still unknown and mutually helping each other, did then and there willfully, unlawfully, and feloniously attack, assault and use personal violence upon the person of PO1 RANDY ADOVAS y PECAAT, a member of the Philippine National Police assigned at Camp Bagong Diwa, Bicutan, Taguig, MM, duly qualified, appointed, and acting as such, and therefore an agent of a person in authority, which fact was known to the said accused, while PO1 RANDY ADOVAS y PE-CAAT was in the performance of his official duty, that is, while handcuffing the at-large co-conspirator for illegal possession of deadly weapon, herein accused suddenly appeared and with intent to kill, treachery and evident premeditation, attack, assault, and use personal violence upon said police officer by then and there repeatedly stabbing the latter with a fan knife then grabbing his service firearm and shooting him, thereby inflicting upon the said PO1 RANDY ADOVAS y PE-CAAT mortal stab and gunshot wounds which were the direct and immediate cause of his death thereafter. Asilan pleaded not guilty upon his arraignment3 on April 10, 2006. Pre-Trial Conference followed on April 26, 2006, where the counsels agreed to stipulate that Asilan, who was at that time present in the RTC, was the same Asilan named in the Information, and that the victim, Police Officer 1 (PO1) Randy Adovas y Pe-caat (Adovas), was a police officer in active duty at the time of his death.4 Trial on the merits ensued after the termination of the pre-trial conference. Below is the prosecutions version, as succinctly summarized by the Office of the Solicitor General (OSG) from the testimony of Joselito Binosa (Binosa)5: In the evening of March 27, 2006, around 10:00 oclock, Joselito Binosa, a jeepney barker/carwash boy while chatting with his friends at the El Nio Bakery along Teresa Street, Sta. Mesa, Manila, heard a gunshot nearby. He then went to the place where the sound came and from where he was standing which was about three (3) to four (4) meters away, he saw a uniformed policeman, who seemed to be arresting someone and ordering the latter to lay on the ground. The police officer pushed the man to the wall, poked the gun on him and was about to handcuff the latter when another man, herein appellant Asilan arrived, drew something from his back and stabbed the police officer on his back several times until the latter fell to the ground. The man who was being arrested by the police officer held the latters hand while he was being stabbed repeatedly by [Asilan]. The man who was being arrested then took the officers gun and shot the latter with it.

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The fellow barker of Joselito Binosa then threw stones at the malefactors who subsequently left the place. Joselito Binosa secretly followed [Asilan] and his companion who walked towards the railroad track taking Teresa St., Sta. Mesa, Manila. [Asilan] entered an alley and thereafter returned to the place of the incident. The other man walked on to the tracks. At that moment, a policeman passed by and Binosa pointed [Asilan] to him. [Asilan] was arrested and the knife which was used in the stabbing was confiscated by the policeman.6 (Citations omitted.) The above narration of events was largely corroborated by Pol Justine San Diego (San Diego), a student, who also witnessed the events that transpired on March 27, 2006.7 The prosecution also submitted as evidence Medico Legal Report No. M-219-06,8 accomplished and testified to by Dr. Vladimir V. Villaseor. The pertinent portion of the Medico Legal Report states: SPECIMEN SUBMITTED: Cadaver of Randy Pe-caat Adovas, 29 y/o male, married, a policeman, 167 cm in height and a resident of 19 West Bank Road, Floodway, Rosario Pasig City. PURPOSE OF LABORATORY EXAMINATION: To determine the cause of death. FINDINGS: Body belongs to a fairly nourished, fairly developed male cadaver in rigor mortis with postmortem lividity at the dependent portions of the body. Conjunctivae, lips and nailbeds are pale. With exploratory laparotomy incision at the anterior abdominal wall, measuring 29 cm long, along the anterior midline. Trunk & Upper Extremity: 1) Stab wound, right axillary region, measuring 6 x 4 cm, 16 cm from the anterior midline. 2) Stab wound, right hypochondriac region, measuring 2.3 x 0.7 cm, 2cm right of the anterior midline, 9 cm deep, directed posteriorwards, downwards & medialwards, lacerating the right lobe of the liver. -overCONCLUSION: Cause of death is MULTIPLE STAB WOUNDS & GUNSHOT WOUND OF THE TRUNK AND UPPER EXTREMITIES. Meanwhile, Asilan, in his Appellants Brief,9 summed up his defense as follows: On March 27, 2006, at around 10:00 oclock p.m. JOSEPH ASILAN [Asilan] was on board a passenger jeepney on his way to Mandaluyong. As he had to transfer to another jeepney, [Asilan] alighted at Old Sta. Mesa and waited for a jeep bound for Pasig City. Suddenly, three (3) motorcycles stopped in front of him, the passengers of which approached and frisked him. He was thereafter brought to the police station and in a small room, he was forced to admit to the stabbing of a police officer. Thereafter, he was brought to a nearby hospital and was medically examined. Then he was again taken to the police station where he was confronted with the knife which was allegedly used in stabbing PO1 Adovas. He was mauled for refusing to confess to the

stabbing of the said policeman. Afterwards, he was presented to alleged eyewitnesses. However, the supposed eyewitnesses were not the ones presented by the prosecution in court.10 The RTC convicted Asilan of Murder in its Decision11 dated January 8, 2007, the dispositive portion of which reads: WHEREFORE, premises considered, the Court finds the Prosecution to have failed to establish and prove beyond reasonable doubt the offense of direct assault. Where a complex crime is charged and the evidence fails to support the charge as to one of the component, the accused can be convicted of the other (People v. Roma, 374 SCRA 457). WHEREFORE, his guilt having been proven beyond reasonable doubt for the crime of murder with the qualifying circumstance of treachery, judgment is hereby rendered finding accused Joseph Asilan y Tabornal GUILTY beyond reasonable doubt of the crime of murder and is hereby imposed the penalty of reclusion perpetua. He is hereby ordered to pay the heirs of PO1 Randy Adovas y Pe-Caat the sum of P 84,224.00 as actual damages, P25,000.00 for moral damages and P 50,000.00 civil indemnity.12 The RTC, in acquitting Asilan of Direct Assault, held that while it was confirmed that Adovas was in his police uniform at the time of his death, the prosecution failed to establish convincingly that he was in the performance of his duty when he was assaulted by Asilan. The RTC explained that there was no evidence to show that Adovas was arresting somebody at the time Asilan stabbed him.13 The RTC added: What the framers of the law wanted was to know the reason of the assault upon a person in authority or his agents. The prosecution failed to show why the victim was pushing the man on the wall or why he poked his gun at the latter. That the victim was assaulted while in the performance of his duty or by reason thereof was not conclusively proven.14 In convicting Asilan of Murder, the RTC held that his defense of denial could not be "accorded more weight than the categorical assertions of the witnesses who positively identified him as the man who suddenly appeared from behind [Adovas] and stabbed the latter repeatedly."15 Moreover, Asilan admitted that he was at the scene of the crime when he was arrested, that he could not give any reason for the witnesses to falsely testify against him, and that he did not know them. Anent the aggravating circumstances, the RTC found that the killing of Adovas was proven to be attended with treachery since Adovas was attacked from behind, depriving him of the opportunity to defend himself.16 However, the RTC declared that the aggravating circumstance of evident premeditation "could not be appreciated x x x absent evidence that [Asilan] planned or prepared to kill [Adovas] or of the time when the plot was conceived."17 As to the damages, the RTC found the prosecutions evidence, which consisted of Adovass wifes testimony, and the receipts of the expenses she incurred in Adovass hospitalization, wake, and burial, sufficient to award moral and actual damages. On January 19, 2007, Asilan appealed18 his conviction to the Court of Appeals, mainly on the ground that the prosecution failed to prove his guilt beyond reasonable doubt. He subsequently filed a Motion to Litigate as a Pauper, 19 which on February 28, 2007, was granted in an Order20 by the RTC. On February 25, 2009, the Court of Appeals rendered its Decision, affirming in toto the RTCs ruling. WHEREFORE, premises considered, the assailed Decision dated 08 January 2007 of the Court a quo in Criminal Case No. 06243060, finding Accused-Appellant JOSEPH ASILAN Y TABORNAL

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guilty beyond reasonable doubt of Murder, is hereby AFFIRMED in toto.21 The Court of Appeals rejected Asilans arguments and averred that his denial and bare attempt at exculpation by trying to destroy the credibility of the candid, categorical, and trustworthy testimonies of the witnesses must fail. Aggrieved, Asilan is now appealing22 his case to this Court, with the same assignment of errors he posited before the Court of Appeals: ASSIGNMENT OF ERRORS I THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSEDAPPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE OFFENSE CHARGED BY RELYING ON THE INCONSISTENT AND UNNATURAL TESTIMONY OF THE ALLEGED EYEWITNESS. II THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSEDAPPELLANT GUILTY OF THE CRIME CHARGED DESPITE THE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT. III THE TRIAL COURT GRAVELY ERRED IN APPRECIATING THE QUALIFYING CIRCUMSTANCE OF TREACHERY.23 Discussion Asilan was convicted of the crime of Murder under Article 248 of the Revised Penal Code: Art. 248. Murder. Any person who, not falling within the provisions of Article 246 shall kill another, shall be guilty of murder and shall be punished by reclusion perpetua to death, if committed with any of the following attendant circumstances: 1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense or of means or persons to insure or afford impunity; 2. In consideration of a price, reward, or promise; 3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a railroad, fall of an airship, by means of motor vehicles, or with the use of any other means involving great waste and ruin; 4. On occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano, destructive cyclone, epidemic, or any other public calamity; 5. With evident premeditation; 6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse. Asilan claims that the testimonies of the witnesses were not only filled with inconsistencies, they were also incredible for being contrary to the common experience and observation that mankind can approve as probable under the circumstance.24

Asilan insists that the testimony of Binosa should not be given credence as he was selective in his recollection of the events. Asilan claimed that Binosa seemed to have recalled more details on cross-examination, thus "improving" on the version he gave during his direct examination. Asilan further claims that Binosas suggestion that Asilan returned to the scene of the crime after he committed the alleged crime is very unlikely. Asilan avers that San Diegos testimony was likewise not credible as it was clearly only a more refined version of Binosas account of the events. Moreover, Asilan says that San Diegos testimony is too good to be true as he is unlikely to have a detailed recollection of an event, which according to him happened within a span of two minutes.25 Credibility of Witnesses It is a well-settled rule that the assessment of the trial court regarding the credibility of witnesses will generally not be disturbed on appeal. The rationale for this doctrine is that the trial court is in a better position to decide the issue, as it heard the witnesses themselves and observed their deportment and manner of testifying during the trial.26 The only exceptions to this rule are the following: 1. When patent inconsistencies in the statements of witnesses are ignored by the trial court; or 2. When the conclusions arrived at are clearly unsupported by the evidence.27 This Court sees no reason to apply the above exceptions and disturb the findings of the RTC, which were affirmed by the Court of Appeals. Our perusal of the records showed that the RTC was vigilant in its duty to ascertain the truth. The RTC itself propounded clarificatory questions to Binosa and San Diego while they were testifying. At the end of the trial, the RTC found these witnesses credible, and believed their eyewitness accounts because they were categorical in their identification of Asilan as one of Adovass assailants. The RTC also pointed out that it could not find any dubious reason for Binosa and San Diego to falsely implicate Asilan in a heinous crime.28 Alleged Inconsistencies The alleged inconsistency in Binosas testimony does not render his testimony fictitious. The fact that he was able to provide more details of the events only during cross-examination is not unusual, and on the contrary tends to buttress, rather than weaken, his credibility, since it shows that he was neither coached nor were his answers contrived.29 After all, "[w]itnesses are not expected to remember every single detail of an incident with perfect or total recall."30 As for San Diegos testimony, it is not unnatural for him to have a detailed recollection of the incident. "Different persons have different reactions to similar situations. There is no typical reaction to a sudden occurrence."31 It is worthy to note that San Diego was only sixteen years old when he witnessed the stabbing of Adovas. It was his first time to witness a person being stabbed right before his very eyes. He testified that three months after that night, the events were still vividly imprinted in his mind.32 It is thus not improbable that he could, with certainty, identify Asilan as the man who stabbed Adovas that fateful night. Likewise, our scrutiny of the so-called inconsistencies relied upon by Asilan showed that they only referred to minor details, which did not affect the credibility of the prosecution witnesses.33 In People v. Albarido,34 this Court said: It is elementary in the rule of evidence that inconsistencies in the testimonies of prosecution witnesses with respect to minor details and collateral matters do not affect the substance of their declaration nor the veracity or weight of their testimony. In fact,

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these minor inconsistencies enhance the credibility of the witnesses, for they remove any suspicion that their testimonies were contrived or rehearsed. In People vs. Maglente, this Court ruled that inconsistencies in details which are irrelevant to the elements of the crime are not grounds for acquittal. x x x.35 Credibility of the evidence Asilan further asseverates that it is perplexing how none of the witnesses, who were present during the incident, warned Adovas of the impending danger to his life. He contends that "for evidence to be believed, it must not only proceed from the mouth of a credible witness, but must be credible in itself such as the common experience and observation of mankind can approve as probable under the circumstance."36 This Court would like to reiterate that no standard form of behavior is expected of an individual who witnesses something shocking or gruesome like murder. This is especially true when the assailant is near. It is not unusual that some people would feel reluctant in getting involved in a criminal incident.37 In the same manner, it is also not surprising that Asilan returned to the scene of the crime after stabbing Adovas. His "failure to flee and the apparent normalcy of his behavior subsequent to the commission of the crime do not imply his innocence."38 This Court, elucidating on this point, declared: Flight is indicative of guilt, but its converse is not necessarily true. Culprits behave differently and even erratically in externalizing and manifesting their guilt. Some may escape or flee -- a circumstance strongly illustrative of guilt -- while others may remain in the same vicinity so as to create a semblance of regularity, thereby avoiding suspicion from other members of the community.39 Defense of Denial Unfortunately, Asilans bare denial, when juxtaposed with the prosecution witnesses positive declarations, is not worthy of credence. Denial, which is the usual refuge of offenders, is an inherently weak defense, and must be buttressed by other persuasive evidence of non-culpability to merit credibility. The defense of denial fails even more when the assailant, as in this case, was positively identified by credible witnesses, against whom no ulterior motive could be ascribed.40 Asilan not only admitted that he was at the scene of the crime when he was arrested by the police authorities, he also admitted that he did not know any of the prosecution witnesses prior to his trial. Moreover, he had filed no case against the police officers whom he accused of mauling him to make him admit to the stabbing of Adovas. Asilans "self-serving statements deserve no weight in law and cannot be given greater evidentiary value over the testimony of the witnesses who testified on positive points."41 Qualifying Circumstance of Treachery Asilan pleads that treachery cannot be appreciated in the present case as the prosecution failed to establish that he had consciously or deliberately adopted or chosen the mode of attack employed upon Adovas to deprive him of an opportunity to defend himself or retaliate. Asilan argues that mere suddenness of the attack is not enough to constitute treachery. He further posits that while it may be true that he allegedly came from behind, the "mode of attack could have occurred in a spur of the moment."42 The RTC correctly appreciated the qualifying circumstance of treachery in the killing of Adovas. The prosecution was able to sufficiently establish the attendance of treachery in the case at bar. "It is basic in our penal law that treachery is present when the offender employs means, methods or forms which tend directly and especially to insure the execution of the crime, without risk to himself arising from the

defense which the offended party might make."43 In People v. Tan,44 this Court expounded on the concept of treachery as follows: The essence of treachery is the sudden and unexpected attack, without the slightest provocation on the part of the person attacked. Treachery is present when the offender commits any of the crimes against persons, employing means, methods or forms in the execution thereof, which tend directly and especially to insure its execution, without risk arising from the defense which the offended party might make. In the case at bar, the attack on Magdalino Olos was treacherous, because he was caught off guard and was therefore unable to defend himself, as testified to by the prosecution witnesses and as indicated by the wounds inflicted on him.45 Both eyewitnesses testified on how Asilan attacked Adovas from behind. Adovas could not have defended himself because Asilan stabbed him at his back repeatedly sans provocation or warning. The deciding factor is that Asilans execution of his attack made it impossible for Adovas to defend himself or retaliate.46 Sufficiency of the Information Asilan also claims that his constitutional right to be informed of the nature and cause of accusation against him was infringed when he was convicted for Murder, since the manner by which he carried out the killing with the qualifying circumstance of treachery was not alleged in the Information against him. Thus, he asserts, he was effectively only charged with Homicide.47 This Court does not find merit in Asilans contention that he cannot be convicted of murder because his acts of treachery were not alleged with specificity in the Information. Section 6, Rule 110 of the Rules on Criminal Procedure states: Sec. 6. Sufficiency of complaint or information. A complaint or information is sufficient if it states the name of the accused; the designation of the offense by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate time of the commission of the offense; and the place wherein the offense was committed. When the offense is committed by more than one person, all of them shall be included in the complaint or information. This Court held that "[u]nder Section 6, the Information is sufficient if it contains the full name of the accused, the designation of the offense given by the statute, the acts or omissions constituting the offense, the name of the offended party, the approximate date, and the place of the offense."48 The Information herein complied with these conditions. Contrary to Asilans contention, the qualifying circumstance of "treachery" was specifically alleged in the Information. "The rule is that qualifying circumstances must be properly pleaded in the Information in order not to violate the accuseds constitutional right to be properly informed of the nature and cause of the accusation against him."49 Asilan never claimed that he was deprived of his right to be fully apprised of the nature of the charges against him due to the insufficiency of the Information. This Court completely agrees with the Court of Appeals pronouncement that "since treachery was correctly alleged in the Information and duly established by the prosecution, x x x [Asilan]s conviction for the crime of murder is proper."50 In any case, it is now too late for Asilan to assail the sufficiency of the Information on the ground that there was failure to specifically allege therein how treachery was carried out. Section 9, Rule 117 of the Rules of Court provides: SEC. 9. Failure to move to quash or to allege any ground therefor.The failure of the accused to assert any ground of a motion to quash before he pleads to the complaint or information, either because he did not file a motion to quash or failed to allege the

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same in said motion, shall be deemed a waiver of any objections except those based on the grounds provided for in paragraphs (a), (b), (g), and (i) of section 3 of this Rule. Moreover, in People v. Candaza,51 this Court held that "[a]n Information which lacks essential allegations may still sustain a conviction when the accused fails to object to its sufficiency during the trial, and the deficiency was cured by competent evidence presented therein."52 In this case, Asilan not only failed to question the sufficiency of the Information at any time during the pendency of his case before the RTC, he also allowed the prosecution to present evidence, proving the elements of treachery in the commission of the offense. Asilan is thus deemed to have waived any objections against the sufficiency of the Information.531wphi1 Pursuant to prevailing jurisprudence,54 this Court is increasing the award of civil indemnity from Fifty Thousand Pesos (P 50,000.00) to Seventy-Five Thousand Pesos (P 75,000.00), and the moral damages from Twenty-Five Thousand Pesos (P 25,000.00) to Fifty Thousand Pesos (P 50,000.00). Moreover, in view of the presence of the qualifying circumstance of treachery, an additional award of Thirty Thousand Pesos (P 30,000.00), as exemplary damages, in accordance with Article 2230 of the Civil Code,55 should be awarded to the heirs of Adovas.56 As to actual damages, Adovass widow, Irene Adovas, presented the receipts showing that she paid P 25,224.00 to Our Lady of Lourdes Hospital, Inc., as hospital expenses,57 P 35,000.00 to Marulas Memorial Homes,58 and P20,000.00 to Funeraria Saranay as funeral expenses,59 or a total of P 80,224.00. Both the RTC and the Court of Appeals failed to consider that under Article 2206 of the Civil Code, Asilan is also liable for the loss of the earning capacity of Adovas, and such indemnity should be paid to his heirs60: Art. 2206. The amount of damages for death caused by a crime or quasi-delict shall be at least three thousand pesos, even though there may have been mitigating circumstances. In addition: (1) The defendant shall be liable for the loss of the earning capacity of the deceased, and the indemnity shall be paid to the heirs of the latter; such indemnity shall in every case be assessed and awarded by the court, unless the deceased on account of permanent physical disability not caused by the defendant, had no earning capacity at the time of his death; Irene Adovas testified61 on the amount her husband received as police officer and presented documentary evidence to show that Adovas, who was only 29 years old when he died, 62 earned P 8,605.00 a month63 at the time of his death. The following are the factors in computing the amount of damages recoverable for the loss of earning capacity of the deceased: 1) The number of years on the basis of which the damages shall be computed. This is based on the formula (2/3 x 80 age of the deceased at the time of his death = life expectancy), which is adopted from the American Expectancy Table of Mortality; and 2) The rate at which the losses sustained by the heirs of the deceased should be fixed.64 Net income is arrived at by deducting the amount of the victims living expenses from the amount of his gross income.65 The loss of earning capacity of Asilan is thus computed as follows: Net Earning Capacity = life expectancy x [gross annual income living expenses]66

= 2/3 [80-age at time of death] x [gross annual income 50% of gross annual income] = 2/3 [80-29] x [P 103,260.00 P 51,630.00] = 34 x P 51,630.00 = P 1,755,420.00 WHEREFORE, the decision dated February 25, 2009 of the Court of Appeals in CA-G.R. CR.-H.C. No. 02686 is hereby AFFIRMED insofar as it found accused-appellant Joseph Asilan y Tabornal guilty beyond reasonable doubt of MURDER and sentenced to suffer the penalty of reclusion perpetua, with MODIFICATION as to the damages. Asilan is hereby ordered to indemnify the heirs of Randy Adovas y Pe-caat the following: (a) P75,000.00 as civil indemnity; (b) P 50,000.00 as moral damages; (c) P 30,000.00 as exemplary damages; (d) P80,224.00 as actual damages; (e) P 1,755,420.00 as loss of earning capacity; and (f) interest on all damages awarded at the rate of 6% per annum from the date of finality of this judgment. SO ORDERED.

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G.R. No. 173421

December 14, 2006

On June 11, 2002, the MeTC issued an Order which states in part: [I]n line with the long standing policy of the Courts to decide issues based on the substantial merits of the case and not simply dismiss cases on technical defects, the Court finds Merit in the Motion for Reconsideration filed by the Prosecution. Effectively, the Order of the Court dated January 28, 200215 is set aside and the case is reinstated in the dockets of the Court. The Prosecution's Formal Offer of Evidence is admitted by the Court and the accused is given 15 days from receipt of this Order to filed (sic) their Comment or Opposition thereto. Thereafter, the incident is deemed submitted for resolution.16 Petitioner's Motion for Reconsideration17 was denied, hence a petition18 for certiorari was filed with the RTC. In granting the petition, the RTC noted that the MeTC Order dismissing the case for failure to prosecute "had the effect of an acquittal" which is "a bar to another prosecution for the offense charged."19 The RTC denied respondent's motion for reconsideration. Alleging grave abuse of discretion, respondent filed a petition20 for certiorari with the Court of Appeals arguing that there was no failure to prosecute and that double jeopardy did not attach as a result of the dismissal thereof. The Court of Appeals reversed the RTC's Resolution. It held that contrary to the findings of the RTC, there was no double jeopardy because the order dismissing the case for failure to prosecute had not become final and executory due to the timely motion for reconsideration filed by respondent. The appellate court also held that petitioner's right to speedy trial was not violated when respondent failed to formally offer her evidence within the period required by the trial court. The Court of Appeals thus ordered the MeTC to set the case for further trial. Petitioner moved for reconsideration but was denied, hence this petition on the following grounds: I. THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN HOLDING THAT THE RIGHT OF THE PETITIONER TO SPEEDY TRIAL WAS NOT VIOLATED. II. THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN NOT HOLDING THAT THE DISMISSAL OF THE CASE BY MTC-61 WAS A DISMISSAL ON THE MERITS WHICH RESULTED IN THE ACQUITTAL OF THE PETITIONER. III. THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS AND REVERSIBLE ERROR IN NOT APPLYING THE RULE ON DOUBLE JEOPARDY.21 The issue for resolution is whether the MeTC's Order dismissing the case for failure to prosecute amounted to an acquittal which gave petitioner the right to invoke double jeopardy. Petitioner argued that the six months' delay by the prosecution to formally offer its evidence is vexatious, capricious and oppressive; that the private prosecutor's claim that the documents could not be found is untrue considering that no manifestation was filed in court stating that fact; that the documents were available as early as January 2002 but the prosecution never asked for extension, nor explained the delay in filing its formal offer despite two orders to do so. Petitioner further argued that under Section 3, Rule 17 of the Rules of Court, failure to comply with a court order without justifiable reason may cause the dismissal of the case, which shall

OSCAR Z. BENARES,1 petitioner, vs. JOSEPHINE LIM, respondents.

DECISION

YNARES-SANTIAGO, J.: This petition for review assails the May 25, 2005 Decision2 of the Court of Appeals setting aside the Resolution3dated May 5, 2004 and Order4 dated July 9, 2004 of the Regional Trial Court (RTC) of Makati City, Branch 132, which set aside the Orders dated June 11, 20025 and December 26, 20026 of the Metropolitan Trial Court (MeTC) of Makati City granting respondent's motion for reconsideration of the Order dismissing the complaint for estafa for failure to prosecute. Also assailed is the July 7, 2006 Resolution7 denying petitioner's motion for reconsideration. The following facts are undisputed: Petitioner Oscar Beares was accused of estafa arising from two contracts of sale executed in 1976 where he sold two parcels of land to respondent. Records show that after respondent had fully paid the amortizations and after the deed of absolute sale was issued, petitioner mortgaged the same parcels of land to the Bank of Philippine Islands. Thus, when respondent demanded delivery of the properties, petitioner failed to comply, thus respondent was compelled to file a case for estafa against petitioner. Trial thereafter ensued. After the prosecution presented its last witness, it was given 15 days to formally offer its evidence.8 However, the prosecution did not make any formal offer of evidence, hence petitioner filed a motion praying that the prosecution's submission of formal offer of evidence be deemed waived and the case dismissed for lack of evidence.9 Despite receipt of notice of petitioner's motion, respondent and her counsel failed to attend the hearing on the motion set on December 4, 2001. On January 28, 2002, the MeTC issued an giving the prosecution another 15 days within which to formally offer its evidence which petitioner opposed.11 On February 27, 2002, the MeTC issued the following Order: In view of the oral manifestation of counsel for the accused, showing that the private prosecutor received the Order of this Court dated January 28, 2002 on February 7, 2002 giving them an extension of another fifteen days to file their formal offer of evidence, yet failed to do so; the court finds reason to deny the submission of formal offer of evidence. Acting on the Motion of the accused for the dismissal of this case, for failure of the prosecution to prosecute this case, the motion is granted. This case is hereby ordered DISMISSED. SO ORDERED.12 Respondent moved to reconsider the order of dismissal and prayed for the admission of Formal Offer of Documentary Exhibits,13 claiming that she had difficulty securing documents from the court which were marked during trial. Petitioner opposed the motion invoking his right against double jeopardy.14 Order10

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have the effect of an adjudication on the merits unless otherwise stated by the court. Respondent, on the other hand, asserted that it was petitioner who delayed the proceedings in the instant case, when he questioned the finding of probable cause against him before the Department of Justice, the Court of Appeals and the Supreme Court, which were all denied; and that the delay in the filing of a formal offer of evidence is justified because as noted by the MeTC, the records were missing. Respondent likewise insisted that even without documentary evidence, testimonial evidence were presented against petitioner; that petitioner admitted the documentary evidence formally offered. Respondent refuted petitioner's invocation of double jeopardy because the case was dismissed with his express consent. The petition is without merit. Section 7, Rule 117 of the Rules of Court states in part: SEC. 7. Former conviction or acquittal; double jeopardy.When an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information. Double jeopardy attaches only (1) upon a valid indictment, (2) before a competent court, (3) after arraignment, (4) when a valid plea has been entered, and (5) when the defendant was convicted or acquitted, or the case was dismissed or otherwise terminated without the express consent of the accused.22 In the instant case, there is no question as to the presence of the first four elements. As to the last element, there was yet no conviction, nor an acquittal on the ground that petitioner's guilt has not been proven beyond reasonable doubt,23 but the dismissal of the case was based on failure to prosecute. A dismissal with the express consent or upon motion of the accused does not result in double jeopardy, except in two instances, to wit: (1) the dismissal is based on insufficiency of evidence or (2) the case is dismissed for violation of the accused's right to speedy trial. 24 Petitioner's claim that the prosecution's delay in filing its formal offer of evidence violated his right to speedy trial is not well taken. The prosecution's delay in the filing of its formal offer of evidence in this case cannot be considered vexatious, capricious, and oppressive. It appears that there was justifiable reason for the prosecution's failure to formally offer its evidence on time, i.e., the documents which were previously marked in court were misplaced. As correctly ruled by the Court of Appeals: Truly, the prosecution had failed twice to file the formal offer of evidence within the fifteen (15) day period set by the MeTC. Once was due to the fault of the MeTC judge who expressly admitted in his order that the documentary exhibits necessary for the formal offer of evidence were lost in his office. Thus, the prosecution was unable to submit its formal offer of evidence on time. In short, there was actually only one unjustified delay in the filing of formal offer of evidence in the

proceedings below, which cannot be described as vexatious, capricious or oppressive. There is no showing that the criminal case was unreasonably prolonged nor there was deliberate intent on the part of the petitioner to cause delay in the proceedings resulting to serious and great prejudice affecting the substantial rights of the accused.25 Indeed, delay is not a mere mathematical computation of the time involved. Each case must be decided upon the facts peculiar to it. The following factors must be considered and balanced: the length of the delay, the reasons for such delay, the assertion or failure to assert such right by the accused, and the prejudice caused by the delay.26In the instant case, the totality of the circumstances excuses the delay occasioned by the late filing of the prosecution's formal offer of evidence. Since the delay was not vexatious or oppressive, it follows that petitioner's right to speedy trial was not violated, consequently he cannot properly invoke his right against double jeopardy.27 Petitioner's reliance in People v. Cloribel28 is misplaced because in said case, trial commenced almost four years from the date of filing of the complaint. Such delay, the Court held, can hardly be ignored or disregarded by any fair standard. Neither can petitioner rely on the doctrine that when a judge dismisses a case for failure to prosecute, the termination amounts to an acquittal as the prosecution will fail to prove the case when the time therefor comes. In the instant case, testimonial evidence were presented against petitioner. Thus, even without documentary evidence, his guilt or innocence may be proven. Second, petitioner appears to have admitted the genuineness and due execution of respondent's documentary evidence, thus the prosecution need not even present such documents in view of his admission. With or without these documents, therefore, the prosecution has enough evidence left for the trial court's determination of his guilt. Thus We agree with the OSG's contention that the trial court exceeded its authority when it dismissed the case without giving the prosecution a right to be heard, hence there was a violation of due process. Further, the failure of the prosecution to offer its exhibits is not a ground to dismiss the case. Even without any documentary exhibits, the prosecution could still prove its case through the testimonies of its witnesses. Thus, we find that when the trial court reconsidered its order of dismissal, it merely corrected itself.29 WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals setting aside the Resolution dated May 5, 2004 and Order dated July 9, 2004 of the Regional Trial Court of Makati City, Branch 132, as well as its July 7, 2006 Resolution denying petitioner's motion for reconsideration, are AFFIRMED. SO ORDERED.

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G.R. No. 163741

August 7, 2007

motion to suspend proceedings, but it was denied in the July 18, 2001 Order of the trial court. On September 28, 2001, the DOJ issued a Resolution10 dismissing both the complaint filed by petitioner and the counterclaim filed by private respondents. Feeling aggrieved, petitioner immediately filed a motion for reconsideration of the Secretarys ruling. On October 23, 2001, the prosecution filed with the trial court a Motion to Withdraw Information11 on the basis of the September 28, 2001 Resolution issued by Secretary Perez. The next day, the RTC issued the first assailed Order, dated October 24, 2001. The pertinent portion of the Order reads as follows: Acting on the Motion to Withdraw Information filed by the trial prosecutor dated October 22, 2001, and for the reason therein cited the motion is hereby granted. The Information against the accused is hereby ordered withdrawn. This order likewise renders the Motion to Dismiss filed by the accused through counsel dated October 9, 2001, moot and academic. SO ORDERED.12 On November 23, 2001 petitioner filed its Motion for Reconsideration of the October 24, 2001 Order. On June 6, 2002, the trial court issued an Order13 holding in abeyance all pending incidents to await the final resolution of the motion filed before the DOJ. Private respondents Khos filed a Motion for Reconsideration, arguing that the trial court has all the facts necessary to resolve the pending incidents. On July 31, 2002, the Khos filed a supplemental motion insisting that the case be dismissed on the ground of double jeopardy. On August 21, 2002, the trial court issued the second assailed Order,14 holding that due to its Order withdrawing the Information, there is no necessity to order the dismissal of the case. The re-filing of the Information would constitute double jeopardy.15 Petitioner then filed a Motion for Reconsideration of the August 21, 2002 Order. On September 17, 2002, the DOJ, through Secretary Perez, issued a Resolution16 granting the Motion for Reconsideration filed by petitioner and ordered the Office of the City Prosecutor of Manila to file the appropriate Information for Unfair Competition. Private respondents Khos then filed a Motion for Reconsideration with the Office of the Secretary of Justice. Petitioner on the other hand filed a manifestation before the trial court informing it of the recent development with a prayer to reinstate the case. On April 2, 2003, the trial court issued its last assailed Order17 holding that the "revival of the case is now barred by the impregnable wall of double jeopardy."18 On July 17, 2003, then Secretary of Justice Simeon Datumanong finally disposed of the petition for review by denying the Motion for Reconsideration filed by private respondents Khos. Petitioner then filed a Petition for Certiorari and Mandamus with the CA which sought to annul the October 24, 2001, August 21, 2002, and April 2, 2003 Orders issued by the Manila RTC. In its May 26, 2004 Decision, the CA held that double jeopardy had set in and that Judge Eugenio cannot be faulted for dismissing the case. The CA ratiocinated that:

SUMMERVILLE GENERAL MERCHANDISING & CO., INC., Petitioner, vs. HON. ANTONIO M. EUGENIO, JR., in his capacity as PRESIDING JUDGE of RTC-MANILA, BR. 24, and ELIDAD KHO, VIOLETA KHO, and ROGER KHO, Respondents. RESOLUTION VELASCO, JR., J.: This is a Petition for Review on Certiorari1 under Rule 45 which seeks to reverse and set aside the May 26, 2004 Decision 2 of the Court of Appeals (CA) in CA-G.R. SP No. 77180, which upheld the October 24, 2001,3 August 21, 2002,4 and April 2, 20035 Orders of the Manila Regional Trial Court (RTC), Branch 24. The instant petition originated from a complaint for unfair competition filed by petitioner against private respondents Elidad Kho, Violeta Kho, and Roger Kho, before the City Prosecutors Office of Manila. After due investigation, the City Prosecutors Office of Manila came out with its May 31, 2000 Resolution recommending the prosecution of private respondents for unfair competition and dismissing private respondents counterclaim against petitioner. Pursuant to the Resolution, an Information6 for unfair competition was filed against private respondents Khos before the Manila RTC, Branch 24, which was docketed as Crim. Case No. 00-183261. The charge as contained in the Information is hereby reproduced as follows: That on or about January 10, 2000 and for sometime prior and subsequent thereto, in the City of Manila, Philippines, the said accused, conspiring and confederating together and helping one another, then engaged in a business known as KEC Cosmetic Laboratory, located at 2407 Topacio Street and 2412 Raymundo Street, San Andres, this City, in an unfair competition, and for the purpose of deceiving/defrauding the public in general and the Summerville General Merchandising and Co. (Summerville) which is engaged, among others, in the importation and distribution of facial cream products with the trademark known as Chin Chun Su, herein represented by VICTOR CHUA, its General Manager, did then and there willfully, unlawfully, knowingly and jointly sell/dispose and/or cause to be sold/disposed to the public facial cream products using tools, implements and equipments in its production, labeling and distribution, which give and depict the general appearance of the Chin Chun Su facial cream products and likely influence the purchasers to believe that the same are those of the said Summerville. CONTRARY TO LAW.7

Arraignment was scheduled for July 13, 2000; however, on June 22 of the same year, private respondents filed a petition for review with the Department of Justice (DOJ), assailing the May 31, 2000 Resolution of the City Prosecutors Office of Manila. On August 17, 2000 the DOJ through Undersecretary Regis V. Puno issued a Resolution8 affirming the May 31, 2000 Resolution of the City Prosecutor. Upon a motion for reconsideration filed by private respondents, then DOJ Secretary Hernando Perez issued his June 18, 2001 Resolution which recalled and set aside the August 17, 2000 Resolution of Undersecretary Puno, but without however issuing a ruling on the propriety of the complaint and merely indicated that the case would be further reviewed and the corresponding resolution would be issued.9 The arraignment pushed through on October 11, 2000. Since the accused refused to plea to the charge, a plea of not guilty was entered for each of them. In the meantime, pending the resolution of the petition for review, private respondents filed a

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This is because once a complaint or information has been filed in court, any disposition of the case rests in the sound discretion of the court (Mamburao v. Ombudsman, G.R. Nos. 139141-42, Nov. 15, 2000), and the said undulating stance of the prosecution was reason enough to grant its withdrawal without the judge having to divine and weigh the probable evidence of both the prosecution and the defense.19 Finding that no grave abuse of discretion was committed by the trial court, the CA, in its May 26, 2004 Decision, denied due course and dismissed the petition.20 Petitioner now comes before this Court assailing the Decision of the CA on the following grounds: 1. The [CA] erred in not finding that respondent judge committed grave abuse of discretion in proceeding with the arraignment despite the fact that the petition for review is still pending with the DOJ. 2. The [CA] gravely erred in not finding that the respondent judge gravely abused his discretion in allowing the withdrawal of the information without making an independent assessment of the evidence. 3. The [CA] failed to apply the doctrine laid down by the Hon. Supreme Court in Martinez versus Court of Appeals, G.R. No. 112387, promulgated October 12, 1994 in consonance with another doctrinal ruling inCrespo v. Mogul (151 SCRA 462), by not finding that the trial court gravely abused its jurisdiction amounting to lack of jurisdiction in allowing the withdrawal of the Information in Crim. Case No. 00-183261 and in disregarding the latest Resolution of the DOJ directing the continuation of the prosecution of the Respondents for Unfair Competition. 4. The [CA] seriously erred in law in ruling that the reinstatement of the Information in Crim. Case No. 00183261 pursuant to the DOJ Resolution directing the continued prosecution of the respondents for Unfair Competition will constitute double jeopardy.21 The issues submitted for our resolution can be summarized into (1) whether Judge Eugenio committed grave abuse of discretion in allowing the withdrawal of the Information against the accused without making an independent assessment of the evidence, contrary to established jurisprudence; and (2) whether the re-filing or the reinstatement of the Information would constitute double jeopardy. The petition has merit. We have ruled time and again that once a case is filed with the court, any disposition of it rests on the sound discretion of the court. This rule, however, is not without restrictions. We held in Santos v. Orda, Jr. that: [T]he trial court is not bound to adopt the resolution of the Secretary of Justice since it is mandated to independently evaluate or assess the merits of the case and it may either agree or disagree with the recommendation of the Secretary of Justice. Reliance alone on the resolution of the Secretary of Justice would be an abdication of the trial courts duty and jurisdiction to determine a prima facie case.22 Thus, the courts should not blindly follow the resolutions issued by the DOJ. On the contrary, it should determine on its own whether there is probable cause to hold the accused for trial. In this case, it can be readily seen from the October 24, 2001 Order of Judge Eugenio, granting the withdrawal of the Information, that the trial court glaringly failed to conduct its own determination of a prima facie case, and simply adopted the September 28, 2001 Resolution issued by the Secretary of Justice.

Where the prosecution is, as in this case, disappointingly unsure, irresolute, and uncertain on whether it should prosecute the accused, the court should have been most circumspect and judicious in the resolution of the Motion to Withdraw Information, and should have conducted its own determination whether or not there is probable cause to hold the accused for trial.1avvphi1 This failure of Judge Eugenio to independently evaluate and assess the merits of the case against the accused violates the complainants right to due process and constitutes grave abuse of discretion amounting to excess of jurisdiction. And, all other acts which trace their roots from this act committed in excess of his jurisdiction, including the assailed Orders, lose their standing and produce no effect whatsoever. Thus, it is only but proper for this Court to remand the case to the trial court to rule on the merits of the case to determine if a prima facie case exists and consequently resolve the Motion to Withdraw Information anew. On the issue of double jeopardy, we hold that it does not bar the reinstatement of the Information. The right against double jeopardy is contained in Sec. 21, Art. III of the Constitution, which reads: "No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act." For double jeopardy to set in, the following requisites must concur: (1) there is a valid complaint or information; (2) the complaint should be filed before a court of competent jurisdiction; (3) the accused has pleaded to the charge; and (4) the accused has been convicted, acquitted, or the case has been dismissed or terminated without the express consent of the accused.23 Since we have held that the October 24, 2001 Order granting the withdrawal of the Information was committed with grave abuse of discretion, then the accused was not acquitted nor was there a valid and legal dismissal or termination of the case. Ergo, the fourth requisite on the conviction and acquittal of the accused in the dismissal of the case, without the approval of the accused, was not met. Thus, double jeopardy has not set in. WHEREFORE, the petition is hereby GIVEN DUE COURSE, and the assailed May 26, 2004 Decision of the CA and the October 24, 2001, August 21, 2002, and April 2, 2003 Orders of the Manila RTC are hereby SET ASIDE and ANNULLED. The case is remanded to the Manila RTC, Branch 24 to independently evaluate or assess the merits of the case to determine whether or not probable cause exists to hold the accused for trial. No costs. SO ORDERED.

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RULE 118
G.R. Nos. 163972-77 March 28, 2008

main ground that no cogent reason was presented to justify its approval.5 The Sandiganbayan likewise denied petitioner's Motion for Reconsideration in a Resolution dated May 31, 2004. This compelled petitioner to file the present case for certiorari and prohibition with prayer for the issuance of a temporary restraining order and/ or writ of preliminary injunction under Rule 65 of the Rules of Court. Petitioner argues that the Sandiganbayan committed grave abuse of discretion in denying his plea bargaining offer on the following grounds: first, petitioner is not an accountable officer and he merely affixed his signature on the payrolls on a "routinary basis," negating any criminal intent; and that the amount involved is only P18,860.00, which he already restituted.6 The petition is meritorious. Plea bargaining in criminal cases is a process whereby the accused and the prosecution work out a mutually satisfactory disposition of the case subject to court approval. It usually involves the defendant's pleading guilty to a lesser offense or to only one or some of the counts of a multi-count indictment in return for a lighter sentence than that for the graver charge.7 Plea bargaining is authorized under Section 2, Rule 116 of the Revised Rules of Criminal Procedure, to wit: SEC. 2. Plea of guilty to a lesser offense. At arraignment, the accused, with the consent of the offended party and the prosecutor, may be allowed by the trial court to plead guilty to a lesser offense which is necessarily included in the offense charged. After arraignment but before trial, the accused may still be allowed to plead guilty to said lesser offense after withdrawing his plea of not guilty. No amendment of the complaint or information is necessary. (sec. 4, cir. 38-98) Ordinarily, plea bargaining is made during the pre-trial stage of the proceedings. Sections 1 and 2, Rule 118 of the Rules of Court, require plea bargaining to be considered by the trial court at the pre-trial conference,8 viz: SEC. 1. Pre-trial; mandatory in criminal cases. In all criminal cases cognizable by the Sandiganbayan, Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court and Municipal Circuit Trial Court, the court shall, after arraignment and within thirty (30) days from the date the court acquires jurisdiction over the person of the accused, unless a shorter period is provided for in special laws or circulars of the Supreme Court, order a pre-trial conference to consider the following: (a) plea bargaining; (b) stipulation of facts; (c) marking for identification of evidence of the parties; (d) waiver of objections to admissibility of evidence; (e) modification of the order of trial if the accused admits the charge but interposes a lawful defense; and (f) such matters as will promote a fair and expeditious trial of the criminal and civil aspects of the case. SEC. 2. Pre-trial agreement. All agreements or admissions made or entered during the pre-trial conference shall be reduced in writing and signed by the accused and counsel, otherwise, they cannot be used against the accused. The agreements covering the matters referred to in section 1 of this Rule shall be approved by the court. (Emphasis supplied)

JOSELITO RANIERO J. DAAN, Petitioner, vs. THE HON. SANDIGANBAYAN Respondent. DECISION AUSTRIA-MARTINEZ, J.: Joselito Raniero J. Daan (petitioner), one of the accused in Criminal Cases Nos. 24167-24170, 24195-24196,1questions the denial by the Sandiganbayan of his plea bargaining proposal. The antecedents facts are laid down by Sandiganbayan in its Resolution dated March 25, 2004, as follows: Said accused,2 together with accused Benedicto E. Kuizon, were charged before this Court for three counts of malversation of public funds involving the sums of P3,293.00, P1,869.00, and P13,528.00, respectively, which they purportedly tried to conceal by falsifying the time book and payrolls for given period making it appear that some laborers worked on the construction of the new municipal hall building of Bato, Leyte and collected their respective salaries thereon when, in truth and in fact, they did not. Thus, in addition to the charge for malversation, the accused were also indicted before this Court for three counts of falsification of public document by a public officer or employee. In the falsification cases, the accused offered to withdraw their plea of "not guilty" and substitute the same with a plea of "guilty", provided, the mitigating circumstances of confession or plea of guilt and voluntary surrender will be appreciated in their favor. In the alternative, if such proposal is not acceptable, said accused proposed instead to substitute their plea of "not guilty" to the crime of falsification of public document by a public officer or employee with a plea of "guilty", but to the lesser crime of falsification of a public document by a private individual. On the other hand, in the malversation cases, the accused offered to substitute their plea of "not guilty" thereto with a plea of "guilty", but to the lesser crime of failure of an accountable officer to render accounts. Insofar as the falsification cases are concerned, the prosecution found as acceptable the proposal of the accused to plead "guilty" to the lesser crime of falsification of public document by a private individual. The prosecution explained: "With respect to the falsification cases earlier mentioned, it appears that the act of the accused in pleading guilty for a lesser offense of falsification by a private individual defined and penalized under Article 172 of the Revised Penal code will strengthen our cases against the principal accused, Municipal Mayor Benedicto Kuizon, who appears to be the master mind of these criminal acts." Insofar as the malversation cases are concerned, the prosecution was likewise amenable to the offer of said accused to plead "guilty" to the lesser crime of failure of an accountable officer to render accounts because: "x x x JOSELITO RANIERO J. DAAN has already restituted the total amount of P18,860.00 as per official receipt issued by the provincial government of Leyte dated February 26, 2002. In short, the damage caused to the government has already been restituted x x x.3 The Sandiganbayan, in the herein assailed Resolution,4 dated March 25, 2004, denied petitioners Motion to Plea Bargain, despite favorable recommendation by the prosecution, on the

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But it may also be made during the trial proper and even after the prosecution has finished presenting its evidence and rested its case. Thus, the Court has held that it is immaterial that plea bargaining was not made during the pre-trial stage or that it was made only after the prosecution already presented several witnesses.9 Section 2, Rule 116 of the Rules of Court presents the basic requisites upon which plea bargaining may be made,i.e., that it should be with the consent of the offended party and the prosecutor,10 and that the plea of guilt should be to a lesser offense which is necessarily included in the offense charged. The rules however use word may in the second sentence of Section 2, denoting an exercise of discretion upon the trial court on whether to allow the accused to make such plea.11 Trial courts are exhorted to keep in mind that a plea of guilty for a lighter offense than that actually charged is not supposed to be allowed as a matter of bargaining or compromise for the convenience of the accused.12 In People of the Philippines v. Villarama,13 the Court ruled that the acceptance of an offer to plead guilty to a lesser offense is not demandable by the accused as a matter of right but is a matter that is addressed entirely to the sound discretion of the trial court,14 viz: x x x In such situation, jurisprudence has provided the trial court and the Office of the Prosecutor with a yardstick within which their discretion may be properly exercised. Thus, in People v. Kayanan (L-39355, May 31, 1978, 83 SCRA 437, 450), We held that the rules allow such a plea only when the prosecution does not have sufficient evidence to establish the guilt of the crime charged. In his concurring opinion in People v. Parohinog (G.R. No. L47462, February 28, 1980, 96 SCRA 373, 377), then Justice Antonio Barredo explained clearly and tersely the rationale or the law: x x x (A)fter the prosecution had already rested, the only basis on which the fiscal and the court could rightfully act in allowing the appellant to change his former plea of not guilty to murder to guilty to the lesser crime of homicide could be nothing more nothing less than the evidence already in the record. The reason for this being that Section 4 of Rule 118 (now Section 2, Rule 116) under which a plea for a lesser offense is allowed was not and could not have been intended as a procedure for compromise, much less bargaining.15 (Emphasis supplied) However, Villarama involved plea bargaining after the prosecution had already rested its case. As regards plea bargaining during the pre-trial stage, as in the present case, the trial court's exercise of its discretion should neither be arbitrary nor should it amount to a capricious and whimsical exercise of discretion. Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction or, in other words, where the power is exercised in an arbitrary manner by reason of passion, prejudice, or personal hostility; and it must be so patent or gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined by law, or to act at all in contemplation of law.16 In the present case, the Sandiganbayan rejected petitioner's plea offer on the ground that petitioner and the prosecution failed to demonstrate that the proposal would redound to the benefit of the public. TheSandiganbayan believes that approving the proposal would "only serve to trivialize the seriousness of the charges against them and send the wrong signal to potential grafters in public office that the penalties they are likely to face would be lighter than what their criminal acts would have merited or that the economic benefits they are likely to derive from their criminal activities far outweigh the risks they face in committing them; thus, setting to naught the deterrent value of the laws intended to curb graft and corruption in government."171avvphi1

Apparently, the Sandiganbayan has proffered valid reasons in rejecting petitioner's plea offer. However, subsequent events and higher interests of justice and fair play dictate that petitioner's plea offer should be accepted. The present case calls for the judicious exercise of this Court's equity jurisdiction Equity as the complement of legal jurisdiction seeks to reach and do complete justice where courts of law, through the inflexibility of their rules and want of power to adapt their judgments to the special circumstances of cases, are incompetent so to do. Equity regards the spirit of and not the letter, the intent and not the form, the substance rather than the circumstance, as it is variously expressed by different courts.18 and of its power of control and supervision over the proceedings of lower courts,19 in order to afford equal justice to petitioner. In People of the Philippines v. Estrada,20 the Sandiganbayan, in its Resolution dated March 14, 2007, approved the Plea Bargaining Agreement entered into by the prosecution and one of the accused, Charlie "Atong" Ang. The agreement provided that the accused undertakes to assist in the prosecution of the case and promises to return the amount of P25,000,000.00. In approving the Plea Bargaining Agreement, the Sandiganbayan took into consideration the timeliness of the plea bargaining and whether the agreement complied with the requirements of Section 2, Rule 116 of the Rules of Court. The Sandigabayan noted that the accused had already withdrawn his earlier plea of "not guilty"; and that the prosecution consented to the plea of guilt to a lesser offense; and the lesser offense, which is Corruption of Public Officials in relation to Indirect Bribery, is necessarily included in the offense charged, which is Plunder.21 The Court sees no reason why the standards applied by the Sandiganbayan to Estrada should not be applied to the present case. Records show that there was a favorable recommendation by the Office of the Special Prosecutor to approve petitioner's motion to plea bargain. Thus, in its Memorandum dated August 16, 2002, the Office of the Special Prosecutor rationalized: In the cases at bar, there is no dispute that JOSELITO RANIERO J. DAAN has already restituted the total amount of P18,860.00 as per official receipt issued by the provincial government of Leyte dated February 26, 2002. In short, the damage caused to the government has already been restituted by the accused. There is also no dispute that accused DAAN voluntarily surrendered in the instant cases. Moreover, the accused is also willing to plead guilty to a lesser offense which to our mind, merits consideration. With respect to the falsification cases earlier mentioned, it appears that the act of the accused in pleading guilty for a lesser offense of falsification by private individual defined and penalized under Article 172 of the Revised Penal Code will strengthen our cases against the principal accused, the Municipal Mayor Benedicto Kuizon, who appears to be the master mind of these criminal acts. After all, the movants herein JOSELITO RANIERO J. DAAN was merely designated as draftsman detailed as foreman/timekeeper of the Municipality of Bato, Leyte.22 Moreover, the lesser offenses of Falsification by Private Individuals and Failure to Render Account by an Accountable Officer are necessarily included in the crimes of Falsification of Public Documents and Malversation of Public Funds, respectively, with which petitioner was originally charged. Under Article 171, paragraph 4 of the Revised Penal Code, for the crime of Falsification of Public Documents through an untruthful narration of facts to be established, the following elements must concur: (a) the offender makes in a document untruthful statements in a narration of facts; (b) the offender has a legal obligation to disclose the truth of the facts narrated; (c) the facts narrated by the offender are absolutely false; and (d) the

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perversion of truth in the narration of facts was made with the wrongful intent of injuring a third person.23 On the other hand, Falsification by Private Individuals penalized under Article 172, paragraph 1 of the Revised Penal Code has the following elements: (a) the offender is a private individual or a public officer or employee who did not take advantage of his official position; (b) the offender committed any of the acts of falsification enumerated under Article 171 of the Revised Penal Code; and (c) the falsification was committed in a public or official or commercial document.24 As regards the crime of Malversation of Public Funds defined and penalized under Article 217 of the Revised Penal Code, with which petitioner was also charged, the elements are as follows: (a) the offender is a public officer; (b) he has custody or control of funds or property by reason of the duties of his office; (c) the funds or property involved are public funds or property for which he is accountable; and (d) he has appropriated, taken or misappropriated, or has consented to, or through abandonment or negligence permitted, the taking by another person of such funds or property.25 Article 217 also provides that the failure of the public officer to have duly forthcoming such public funds or property, upon demand by a duly authorized officer, "shall be prima facieevidence that he has put such missing funds or property to personal use." In this regard, it has been ruled that once such presumption is rebutted, then it is completely destroyed; in fact, the presumption is never deemed to have existed at all.26 Meanwhile, under Article 218 of the Revised Penal Code, Failure to Render Account by an Accountable Officer, the lesser offense which petitioner seeks to plead guilty of, the following elements must concur: (a) the offender is a public officer; (b) the offender must be an accountable officer for public funds or property; (c) the offender is required by law or regulation to render accounts to the COA or to a provincial auditor; and (d) the offender fails to render an account for a period of two months after such accounts should be rendered.27 Section 5, Rule 120 of the Rules of Court states when an offense includes or is included in the other, to wit: SEC. 5. When an offense includes or is included in another. An offense charged necessarily includes the offense proved when some of the essential elements or ingredients of the former, as alleged in the complaint or information, constitute the latter. And an offense charged is necessarily included in the offense proved, when the essential ingredients of the former constitute or form part of those constituting the latter. An offense may be said to necessarily include another when some of the essential elements or ingredients of the former as alleged in the complaint or information constitute the latter. And vice versa, an offense may be said to be necessarily included in another when the essential ingredients of the former constitute or form part of those constituting the latter.28 In this case, the allegations in the Informations filed against petitioner are sufficient to hold petitioner liable for the lesser offenses. Thus, in the charge for Falsification of Public Documents, petitioner may plead guilty to the lesser offense of Falsification by Private Individuals inasmuch as it does not appear that petitioner took advantage of his official position in allegedly falsifying the timebook and payroll of the Municipality of Bato, Leyte. In the same vein, with regard to the crime of Malversation of Public Funds, while the Informations contain allegations which make out a case for Malversation against petitioner, nevertheless, absent the element of conversion, theoretically, petitioner may still be held liable for Failure to Render Account by an Accountable Officer if it is shown that the failure to render account was in violation of a law or regulation that requires him to render such an accounting within the prescribed period.

Given, therefore, that some of the essential elements of offenses charged in this case likewise constitute the lesser offenses, then petitioner may plead guilty to such lesser offenses. Finally, as propounded by petitioner, indeed, he is not an accountable officer in that the nature of his duty as foreman/timekeeper does not permit or require possession or custody of local government funds,29 not to mention that petitioner has already restituted the amount of P18,860.00 involved in this case. Unlike Estrada which involves a crime punishable by reclusion perpetua to death,30 and a whopping P25,000,000.00 taken from the public coffers, this case tremendously pales in comparison. Under the peculiar circumstances of the present case, where gross inequity will result in a discriminatory dispensation of justice, the Court will not hesitate to intervene in order to equalize the imbalance. WHEREFORE, the petition is GRANTED. The Resolutions dated March 25, 2004 and May 31, 2004 are SETASIDE. The Sandiganbayan is hereby ORDERED to grant petitioner's Motion to Plea Bargain. Let records of this case be REMANDED to the Sandiganbayan for further proceedings in accordance with this Decision. SO ORDERED.

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G.R. Nos. 174507-30

August 3, 2011

ATTY. EMELITA H. GARAYBLAS and ATTY. RENATO G. DE LA CRUZ, Petitioners, vs. THE HON. GREGORY ONG, HON. JOSE HERNANDEZ and HON. RODOLFO PONFERRADA, as Chairman & Members, respectively, 4th Division, Sandiganbayan; and People of the Philippines, Respondents. DECISION PERALTA, J.: This resolves the Petition for Certiorari under Rule 65 of the Rules of Court, praying that the Order1 of the 4th Division of the Sandiganbayan (SB 4th Division) dated June 14, 2006, holding petitioners liable for their non-appearance in the scheduled pretrial conferences, and the Resolution2 dated August 10, 2006, denying petitioners' motion for reconsideration, be annulled and set aside. The records reveal the following antecedent facts. Petitioner Atty. Emelita H. Garayblas (Atty. Garayblas) is the principal legal counsel, with petitioner Atty. Renato G. De la Cruz (Atty. De la Cruz) as collaborating counsel, for Gen. Jose S. Ramiscal who is facing charges for falsification of public documents and violation of Section 3 (e) of Republic Act No. 3019 before several divisions of the Sandiganbayan. Criminal Case Nos. 25741 and 25742 are pending before the Second Division, while Criminal Case Nos. 25122-45 are pending in the Fourth Division.3 Accused Gen. Jose S. Ramiscal was arraigned on February 20, 2006, and the SB 4th Division set the pre-trial for April 6, 2006 in Davao City. On February 28, 2006, the Office of the Clerk of Court of the SB 4th Division sent a Notice of Hearing to all the parties, informing them of the cancellation of the April 6, 2006 pre-trial hearing and the resetting to April 27, 2006 in Davao City. Petitioner Atty. Garayblas, opposing the resetting to April 27, 2006, filed a Motion to Reset. On March 23, 2006, the SB 4th Division issued an Order4 denying said motion to reset, stating that "Atty. Garayblas and Associates must adjust their schedule to suit all the other accused and their counsels, who are available for the pre-trial hearing in Davao City on April 27, 2006." Petitioners failed to appear for pre-trial on April 27, 2006 in Davao City; hence, public respondents ordered petitioners to explain why they should not be held in contempt.5 Atty. Garayblas filed a Compliance/Manifestation dated June 5, 2006, explaining as follows: On the morning of April 26, 2006, she went home from her office in view of her severe headache, body weakness and sluggishness. She gave a call to her doctor/diabetologist who instructed her to get her sugar count and blood pressure. The blood sugar taken revealed that her sugar count was 420 and the blood pressure, was 170/140, a very precarious condition. She was advised to enter the hospital but the undersigned [Atty. Garayblas] opted to stay home and just follow the instruction given by her doctor, Dr. Graciella Garayblas-Gonzaga of UST Hospital. She was requested to administer her insulin injection every six (6) hours x x x. She was also advised to stay on (sic) bed until her sugar count and blood pressure normalize. Till the evening of the said date, the undersigned [Atty. Garayblas] continued to suffer the recurrent headaches, sluggishness and body weakness. Her condition did not disappear. Due to this continuous discomforts and pains, and apprehensive that she might lose her consciousness, she was unable to attend the above numbered criminal cases scheduled for pre-trial hearings on April 27, 2006.6

Atty. De la Cruz also filed his Explanation7 dated June 3, 2006, stating that he did not attend the pre-trial of the cases on April 27, 2006 in Davao City because he had to appear before the Second Division of the SB in Criminal Case No. 25741 involving the same accused, attaching a certificate of appearance from the Second Division as proof of his explanation. On June 14, 2006, the SB 4th Division issued the first assailed Order, pertinent portions of which read as follows: After reading and considering the respective submissions of Attys. De la Cruz and Habacon-Garayblas for their absence in the scheduled pre-trial proceedings of the above-entitled cases in Davao City on April 27, 2006, which caused the cancellation thereof, the Court finds them not quite satisfactory. It appears that they belong to the same law office and, therefore, one or the other should have appeared or made the necessary arrangement to let one of their associates or colleagues appear in the pre-trial conference knowing as they do of the Davao City (out of town) schedule and the corresponding expenses thereof. Atty. De la Cruz should have been more prudent in the scheduling of his cases in order to avoid his alleged conflict of schedule. Moreover, in case of conflict, he should [have given] precedence or priority to the out of town schedule of this Court considering the additional expenses for such out of town hearings. On the other hand, the Court commiserates with the alleged plight and/or adverse medical condition of Atty. HabaconGarayblas (at that time) but, with the advance or modern means of communication at her disposal, she should have made the necessary arrangement with her co-counsel Atty. De la Cruz or the other members of her law office. Besides, the Court notes the absence of a medical certificate attesting to such medical condition of Atty. Habacon-Garayblas. Under these circumstances, the Court is constrained to hold Attys. De la Cruz and Habacon-Garayblas liable for their absence or non-appearance which caused the cancellation of the scheduled pre-trial conference and thus wasted the time of the Court. Hence, pursuant to Sec. 3 of Rule 118 of the Revised Rules of Criminal Procedure, the Court hereby orders them to pay the amount of ten thousand pesos (P10,000) each as sanction or penalty and to partially answer the traveling and other expenses of the Court in holding the subject pre-trial conference in Davao City, within ten (10) days from receipt of this order. xxxx SO ORDERED.8 From the above-quoted Order, petitioners moved for reconsideration. Atty. Garayblas reasoned that: (1) she had no intention whatsoever of disregarding the scheduled pre-trial but her health and physical condition prevented her from attending the same, and records would show that except for her non-appearance at the pre-trial, she had never been absent in all the proceedings for subject criminal cases before the SB 4th Division; (2) her failure to submit a medical certificate was purely out of inadvertence; (3) her non-appearance was not the only reason for the cancellation of the pre-trial as the records show that all the accused failed to submit their respective pretrial briefs; (4) while the Court has the duty to act on cases with promptness, it should also act with understanding and compassion; (5) just so there would be a lawyer to attend the proceedings scheduled on the same date in both the Second Division and the Fourth Division, they agreed that Atty. De la Cruz would be the one to appear before the Second Division, while she (Atty. Garayblas) would be the one to attend the pre-trial in Davao City before the Fourth Division; and (6) there were no other lawyers from their law office who could attend the pre-trial in Davao City, as one had already resigned and another member, Atty. Rafaelito Garayblas, just suffered from acute myocardial infraction complicated by diabetes.9

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Atty. De la Cruz, for his part, reiterated Atty. Garayblas' explanation that he did not appear before the SB 4th Division because they agreed that it was the latter who would appear for their client at the pre-trial in Davao City.10 On August 10, 2006, the SB 4th Division promulgated the Resolution denying petitioners' motions for reconsideration, stating that even if the Court is inclined to believe Atty. Garayblas' illness, the Court still expected her to make the necessary arrangement for co-counsel or any other colleague to attend the pre-trial. It was also reiterated in said Resolution that Atty. De la Cruz should have given priority to the pre-trial hearing in Davao City.11 Aggrieved by the foregoing disposition of the SB 4th Division, petitioners filed the present petition for certiorari, alleging that the SB 4th Division acted with grave abuse of discretion amounting to lack or excess of jurisdiction in not finding their explanation satisfactory and ordering them to pay a fine of Ten Thousand Pesos (P10,000.00) each and to partially answer the traveling and other expenses of the Court in holding the subject pre-trial conference in Davao City. The Court finds some merit in the petition. Section 3, Rule 118 of the Revised Rules of Criminal Procedure provides as follows: Sec. 3. Non-appearance at Pre-Trial Conference. - If the counsel for the accused or the prosecutor does not appear at the pre-trial conference and does not offer an acceptable excuse for his lack of cooperation, the court may impose proper sanctions or penalties. Pursuant to the foregoing provision, the court may sanction or penalize counsel for the accused if the following concur: (1) counsel does not appear at the pre-trial conference AND (2) counsel does not offer an acceptable excuse. There is no cavil that petitioners failed to appear at the pre-trial conference in Davao City on April 27, 2006. The crux of the matter in this case then is, did petitioners present an acceptable or valid excuse for said non-appearance? The SB 4th Division already said it believed Atty. Garayblas' claim that a day before the scheculed pre-trial conference in Davao City, she started suffering from hyperglycemia (high blood sugar) and hypertension, and she felt the symptoms thereof until the day of the pre-trial itself. This incapacitated her from traveling to Davao City to appear at the proceedings. Note that symptoms of hypertension include confusion, ear noise or buzzing, fatigue, headache, irregular heartbeat, and vision changes.12 As for hyperglycemia, a person suffering therefrom experiences headaches, increased thirst, difficulty concentrating, blurred vision, frequent urinating, andfatigue, among others.13 Verily, the Court can understand that a person suffering from confusion, difficulty in concentrating, blurred vision, fatigue, and others, would be hard put to attend a hearing, much less have the clarity of mind to think or worry about finding another lawyer to substitute for her. Indeed, it would not be reasonable to expect her to have been able to make the necessary arrangements for another lawyer to attend in her stead. Consider, further, the importance of having counsel who is the most well-versed on the facts of the case, to be the one attending a pre-trial conference. In Bayas v. Sandiganbayan,14 the Court expounded on the role of lawyers in pre-trials, to wit: Pre-trial is meant to simplify, if not fully dispose of, the case at its early stage. x x x . x x x during pre-trial, attorneys must make a full disclosure of their positions as to what the real issues of the trial would be. They should not be allowed to embarrass or inconvenience the court or injure the opposing litigant by their careless preparation for a case; or by their failure to raise relevant issues at the outset of a trial x x x15

This being so, it is not quite prudent to send in a new lawyer, who has not had ample time to fully familiarize himself or herself with the facts and issues involved in the case, to attend a pre-trial conference. Sending to the pre-trial conference a new lawyer who is not very knowledgeable about the case would most probably lead to such careless preparation which the Court abhors. Moreover, respondents do not refute Atty. Garayblas' claim that before the pre-trial conference, she had never been absent for a hearing before the SB 4th Division. This circumstance should be taken in her favor, as it shows that she is not in the habit of feigning illness to deliberately delay the proceedings. However, Atty. Garayblas should have at least sent word to the SB 4th Division and to her co-counsel, Atty. De la Cruz, when she began feeling the symptoms of hypertension and hyperglycemia, that she would be unable to attend said pre-trial conference. This would have been the courteous thing to do. With regard to Atty. De la Cruz, his non-appearance at the pretrial conference was also excusable. There were hearings for their client's case in two separate divisions of the Sandiganbayan on the very same date in two distant locations. To ensure representation for their client at the hearings in both divisions of the Sandiganbayan, petitioners agreed that Atty. De la Cruz would attend the one before the Second division, while Atty. Garayblas would attend the one before the SB 4th Division in Davao City. It appears that Atty. De la Cruz was not fully apprised of the fact that his co-counsel would not be able to attend the pre-trial conference. It is understandable why Atty. De la Cruz could not have abandoned the hearing before the Second Division so he could attend the pre-trial in Davao City. It was already too late in the day for Atty. De la Cruz to change plans and to notify the Second Division that he would be absent so he could attend the pre-trial in Davao City instead of the hearing at the Second Division.1avvphi1 The Court finds respondents' directive for petitioners to pay part of the travel expenses of court personnel in holding the hearing in Davao City to be unwarranted. There is nothing on record to show that the proceedings were being held in Davao City mainly because of the cases being handled by petitioners. In fact, the SB 4th Division does not deny Atty. Garayblas' asseveration that the cancellation of the hearing on April 27, 2006 in Davao City was caused not only by her and her co-counsel's failure to attend the pre-trial, but also because of all the other accused's failure to submit their respective pre-trial briefs. The Minutes of the Session held on April 27, 2006,16 also shows that hearings/arraignment of the accused in Criminal Cases Nos. 25144 and 25143 (which are cases different from the ones being handled by petitioners) were held on that day for the Davao City sessions of the SB 4th Division. Hence, the SB 4th Division's time and effort in holding sessions in Davao City were not entirely wasted due to petitioners' inability to attend the pre-trial conference. For the foregoing reasons, the Court deems imposing a fine on petitioners and ordering them to answer part of the court personnels' travel expenses to be too harsh. In Inonog v. Ibay,17 the Court reiterated that: The power to punish for contempt is inherent in all courts so as to preserve order in judicial proceedings as well as to uphold the administration of justice. The courts must exercise the power of contempt for purposes that are impersonal because that power is intended as a safeguard not for the judges but for the functions they exercise. Thus, judges have, time and again, been enjoined to exercise their contempt power judiciously, sparingly, with utmost restraint and with the end in view of utilizing the same for correction and preservation of the dignity of the court, not for retaliation or vindication. x x x18 Petitioner Atty. De la Cruz has presented a valid and acceptable excuse, for which he should not be found liable under Section 3, Rule 118 of the Revised Rules of Criminal Procedure. On the other hand, petitioner Atty. Garayblas showed some lapse in judgment, not to mention discourteous behavior, in not informing

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the SB 4th Division at the earliest possible time of her illness and inability to attend said pre-trial conference. WHEREFORE, the petition is PARTIALLY GRANTED. The Sandiganbayan 4th Division's Order dated June 14, 2006 and its Resolution dated August 10, 2006 in Criminal Cases Nos. 25122, 25125-29, 25133, 25135, 25137-38, are hereby MODIFIED by DELETING the fine and the order for both petitioners to pay part of the traveling expenses of the court. Instead, petitioner Atty. Garayblas is hereby given a STERN WARNING that a repetition of the same or similar act shall be dealt with more severely. SO ORDERED.

G.R. No. 131540 December 2, 1999 BETTY KING, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. PANGANIBAN, J.: Under Batas Pambansa Blg. 22 (BP 22), the prosecution must prove not only that the accused issued a check that was subsequently dishonored. It must also established that the accused was actually notified that the check was dishonored, and that he or she failed, within five banking days from receipt of the notice, to pay the holder of the check the amount due thereon or to make arrangement for its payment. Absent proof that the accused received such notice, a prosecution for violation of the Bouncing Check Law cannot prosper. The Case Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court assailing the January 30, 1997 Decision 1 of the Court of Appeals 2 (CA) in CA-GR CR No. 18226 and its November 5, 1997 Resolution 3 denying reconsideration. The CA affirmed the June 14, 1994 Decision 4 of the Regional Trial Court (RTC) of Makati, Metro Manila 5 in Criminal Case Nos. 93-3335 to 93-3345 which convicted petitioner of 11 counts of violation of BP 22, otherwise known as the Bouncing Check Law. On April 28, 1993, Second Assistant Provincial Prosecutor Jaime A. Adoc filed against petitioner eleven separate Informations, 6 which are identically worded, except for the check number, the amount and the date, as follows: That in or about the month of January, 1992 in the Municipality of Las Pias, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did, then and there willfully, unlawfully and feloniously make or draw and issue to EILEEN FERNANDEZ herein represented by ________ to apply on account or for value the check described below: EQUITABLE BANK Check No. 021711 In the amount of P50,000.00 Postdated July 24, 1992 said accused well knowing that at the time of issue she/he did not have sufficient funds in or credit with the drawee bank for the payment in full of the face amount of such check upon their presentment, which check when presented for payment within ninety (90) days from the date thereof were subsequently dishonored by the drawee bank for the reason "Account Closed" and despite receipt of notice of such dishonor the accused failed to pay the face amount thereof or make arrangement for the full payment thereof within five (5) working days after receiving notice. 7 When arraigned, petitioner, assisted by counsel, pleaded not guilty. After the prosecution presented its evidence and rested its case, petitioner filed a Demurrer to Evidence without leave of court, on the ground that the prosecution failed to prove her guilt beyond reasonable doubt. The trial court denied the Demurrer in its assailed Decision, the dispositive portion of which reads:

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WHEREFORE, premises considered, the demurrer to evidence without prior leave of court is DENIED for lack of merit. Since accused has waived her right to present evidence, judgment is hereby rendered finding accused guilty beyond reasonable doubt of Violation of Batas Pambansa Bilang 22 in the eleven (11) above-entitled cases and is ordered to: 1. Suffer imprisonment for thirty (30) days, to pay a fine in the amount of P50,000.00, and to pay complainant Eileen Fernandez the amount of P50,000.00 as actual damages in Criminal Case No. 93-3335; 2. Suffer imprisonment for thirty (30) days, to pay a fine in the amount of P50,000.00, and to pay complainant Eileen Fernandez the amount of P50,000.00 as actual damages in Criminal Case No. 93-3336; 3. Suffer imprisonment for thirty (30) days, to pay a fine in the amount of P50,000.00, and to pay complainant Eileen Fernandez the amount of P50,000.00 as actual damages in Criminal Case No. 93-3337; 4. Suffer imprisonment for thirty (30) days, to pay a fine in the amount of P64,200.00, and to pay complainant Eileen Fernandez the amount of P64,200.00 as actual damages in Criminal Case No. 93-3338; 5. Suffer imprisonment for thirty (30) days, to pay a fine in the amount of P66,000.00, and to pay complainant Eileen Fernandez the amount of P66,000.00 as actual damages in Criminal Case No. 93-3339; 6. Suffer imprisonment for thirty (30) days, to pay a fine in the amount of P100,000.00, and to pay complainant Eileen Fernandez the amount of P100,000.00 as actual damages in Criminal Case No. 93-3340; 7. Suffer imprisonment for thirty (30) days, to pay a fine in the amount of P150,000.00, and to pay complainant Eileen Fernandez the amount of P150,000.00 as actual damages in Criminal Case No. 93-3341; 8. Suffer imprisonment for thirty (30) days, to pay a fine in the amount of P150,000.00, and to pay complainant Eileen Fernandez the amount of P150,000.00 as actual damages in Criminal Case No. 93-3342; 9. Suffer imprisonment for thirty (30) days, to pay a fine in the amount of P130,000.00, and to pay complainant Eileen Fernandez the amount of P130,000.00 as actual damages in Criminal Case No. 93-3343; 10. Suffer imprisonment for thirty (30) days, to pay a fine in the amount of P130,000.00, and to pay complainant Eileen Fernandez the amount of P130,000.00 as actual damages in Criminal Case No. 93-3344; and, 11. Suffer imprisonment for thirty (30) days, to pay a fine in the amount of P130,000.00, and to pay complainant Eileen Fernandez the

amount of P130,000.00 as actual damages in Criminal Case No. 93-3345. 8 As already stated, the Court of Appeals affirmed the RTC in this wise: 9 WHEREFORE, the appealed decision is hereby affirmed [I]N TOTO. Costs against appellant. Hence, this Petition. 10 The Facts Evidence for the Prosecution The Office of the Solicitor General 11 summarized the facts, as viewed by the prosecution, in this wise: On several occasions in January, 1992, at Las Pias, Metro Manila, petitioner discounted with complainant Ellen Fernandez several Equitable Bank checks postdated from July 23 to 29, 1992 in the total amount of P1,070,000.00 in exchange for cash in the amount of P1,000,000.00. When the checks were deposited for payment, they were dishonored by the drawee bank because they were drawn against an account without sufficient funds. Petitioner failed to make good the checks despite demand. (Memorandum dated April 7, 1993 of Assistant Provincial Prosecutor to the Rizal Provincial Prosecutor) During the hearing on the merits of this case on September 17, 1998, the prosecution offered in evidence its documentary evidence. Petitioner admitted the genuineness and due execution of the documents presented.12 Evidence for the Defense As noted earlier, petitioner filed a Demurrer to Evidence without leave of court. In doing so, she waived her right to present evidence and submitted the case for judgment on the basis of the documentary exhibits adduced by the prosecution. 13 Ruling of the Court of Appeals In affirming the trial court, the Court of Appeals explained that the prosecution proved all the elements of the crime. The CA also pointed out that the failure of petitioner to sign the pretrial order was not fatal to the prosecution, because her conviction was based on the evidence presented during the trial. The Issues Petitioner submits the following issues for the Court's consideration: I Whether or not the trial court and the Court of Appeals gravely erred in admitting in evidence all the documentary evidence of the prosecution though their due execution and genuineness were not duly established in evidence pursuant to the provisions of the Rules of Court and prevailing jurisprudence; II

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Whether or not the trial court and the Court of Appeals gravely erred in declaring that Rule 118, Section 4 of the Rules of Court, as applied in the case of Fule vs. Court of Appeals, 162 SCRA 446, which states that no agreement or admission made or entered during the pretrial conference shall be used in evidence against the accused unless reduced to writing and signed by him and his counsel, is inapplicable in the case at bar; III Whether or not the trial court and the Court of Appeals gravely erred in ruling that the burden of evidence has already been shifted from the prosecution to the defense despite the definite factual issues in the pre-trial order; and IV Whether or not the trial court and the Court of Appeals erred in ruling that the prosecution has proven the guilt of the accused beyond reasonable doubt albeit the prosecution did not produce any evidence. 14 In the main, the resolution of the Petition hinges on (1) the admissibility and (2) the sufficiency of the prosecution evidence. This Court's Ruling The Petition has merit insofar as it contends that the elements of the crime charged have not all been proven beyond reasonable doubt. First Issue: Admissibility of Documentary Evidence Because the first, the second and the third issues raised by petitioner all refer to the same matter, they will be discussed together. She contends that the pieces of documentary evidence presented by the prosecution during pretrial are inadmissible, because she did not sign the pretrial agreement as required under Section 4 of Rule 118 of the Rules of Court. 15 Hence, she argues that there is no basis for her conviction. True, a pretrial agreement not signed by a party is inadmissible. However, the conviction of petitioner was based not on that agreement but on the documents submitted during the trial, all of which were admitted without any objection from her counsel. During the hearing on September 17, 1993, the prosecution offered as evidence the dishonored checks, the return check tickets addressed to private complainant, the notice from complainant addressed to petitioner that the checks had been dishonored, and the postmaster's letter that the notice had been returned to sender. Petitioner's counsel did not object to their admissibility. This is shown by the transcript of stenographic notes taken during the hearing on September 17, 1993: COURT: You have no objection to the admissibility, not that the Court will believe it. ATTY. MANGERA No, Your Honor. COURT:

Exhibits "A" to "A" to "K" are admitted. ATTY. MAKALINTAL: We offer Exhibit "L", the return-check ticket dated July 27, 1992, relative to checks No. 021745 and 021746 indicating that these checks were returned DAIF, drawn against insufficient funds; Exh. M, returned check ticket dated July 28, 1992, relative to Check No. 021727, 021711 and 021720 likewise indicating the said checks to have been drawn against insufficient funds, Your Honor. Exhibit N, returned check ticket dated July 29, 1992, relative to Check Nos. 021749 and 021748, having the same indications; Exhibits O, returned check ticket dated July 29, 1992 relative to Check Nos. 021750 and 021753, with the same indications; Exhibits P, returned check ticket dated August 4, 1992 relative to Check No. 021752, having the same indication as being drawn against insufficient funds; Exhibit Q, the demand letter sent to the accused by Atty. Horacio Makalintal dated August 3, 1992; Exhibit R, the letter-request for certification addressed to the Postmaster General sent by the same law office dated 17 September 1992, showing that the said letter was dispatched properly by the Central Post Office of Makati; Exhibit S, 1st Indorsement of the Makati Central Post Office dated 21 September 1992; Exhibit T, the Philippine Postal Corporation Central Post Office letter dated 24 September 1992, addressed to this representation showing that there were 3 notices sent to the herein accused who received the said letter. COURT: Let's go to the third check slip; any objection to the third slip?

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ATTY. MANGERA: We have no objection as to the due execution and authenticity. COURT: Admitted. ATTY. MAKALINTAL: We are offering Exhibits Q, R, S and T, for the purpose of showing that there was demand duly made on the accused and that the same had been appropriately served by the Central Post Office Services of Manila. ATTY. MANGERA: We admit as to the due execution and authenticity only as to that portion, Your Honor. COURT: We are talking of admissibility now, so admitted. In other words, at this point, he makes an offer and the Court will either grant admission, [admit] it in evidence or deny it. It can deny admission if it is not properly identified etcetera. ATTY. MANGERA: I think it is already provided. COURT: So, admitted. ATTY. MAKALINTAL: With the admission of our offer, Your Honor, the prosecution rests. 16 From the foregoing, it is clear that the prosecution evidence consisted of documents offered and admitted during the trial. In view of this, the CA correctly ruled that Fule v. Court of Appeals 17 would not apply to the present controversy. In that case, a hearing was conducted during which the prosecution presented three exhibits. However, Fule's conviction was "based solely on the stipulation of facts made during rile pre-trial on August 8, 1985, which was not signed by the petitioner, nor by his counsel." Because the stipulation was inadmissible in evidence under Section 4 of Rule 118, the Court held that there was no proof of his guilt. In the present case, petitioner's conviction was based on the evidence presented during trial, and not on the stipulations made during the pretrial. Hence, petitioner's admissions during the

trial are governed not by the Fuleruling or by Section 4 of Rule 118, but by Section 4 of Rule 129 which reads: Sec. 4. Judicial Admissions. An admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made. Hence, the trial court and the Court of Appeals did not err in taking cognizance of the said documentary evidence. Second Issue: Sufficiency of Prosecution Evidence Petitioner argues that the prosecution failed to prove beyond reasonable doubt the elements of the offense. After a careful consideration of the records of this case, we believe and so rule that the totality of the evidence presented does not support petitioner's conviction for violation of BP 22. Sec. 1 of BP 22 defines the offense as follows: Sec. 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 check in full upon its 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 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. Where the check is drawn by a corporation, company or entity, the person or persons who actually signed the check in behalf of such drawer shall be liable under this Act. Accordingly, this Court has held that the elements of the crime are as follows: 18 1. The accused makes, draws or issues any check to apply to account or for value. 2. The checks subsequently dishonored by the drawee bank for insufficiency of funds or credit; or it would have been dishonored for the same reason had not

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the drawer, without any valid reason, ordered the bank to stop payment. 3. The accused knows at the time of the issuance that he or she does not have sufficient funds in, or credit with, drawee bank for the payment of the check in full upon its presentment. We shall analyze the evidence, purportedly establishing each of the aforementioned elements which the trial and the appellate courts relied upon. Issuance of the Questioned Checks Contending that the prosecution failed to prove the first element, petitioner maintains that she merely signed the questioned checks without indicating therein the date and the amount involved. She adds that they were improperly filled up by Eileen Fernandez. Thus, she concludes, she did not "issue" the dishonored checks in the context of the Negotiable Instruments Law, which defines "issue" as the "first delivery of the instrument complete in form to a person who takes it as a holder." 19 Petitioner's contentions are not meritorious. The questioned checks, marked as Exhibits "A" to "K," contained the date of issue and the amount involved. In fact, petitioner even admitted that she signed those checks. On the other hand, no proof was adduced to show that petitioner merely signed them in blank, or that complainant filled them up in violation of the former's instructions or their previous agreement. The evidence on record is clear that petitioner issued eleven checks, all of which were duly filled up and signed by her. Checks Dishonored Neither are we persuaded by petitioner's argument that "there appears no evidence on record that the subject checks were unpaid and dishonored." 20 Under Section 3 of BP 22, "the introduction in evidence of any unpaid and dishonored check, having the drawee's refusal to pay stamped or written thereon, or attached thereto, with the reason therefor as aforesaid, shall be prima facie evidence of the making or issuance of said check, and the due presentment to the drawee for payment and the dishonor thereof, and that the same was properly dishonored for the reason written, stamped, or attached by the drawee on such dishonored check." In the present case, the fact that the checks were dishonored was sufficiently shown by the checks themselves, which were stamped with the words "ACCOUNT CLOSED." This was further supported by the returned check tickets issued by PCI Bank, the depository bank, stating that the checks had been dishonored. Clearly, these documents constitute prima facie evidence that the drawee bank dishonored the checks. Again, no evidence was presented to rebut the prosecution's claim. Knowledge of Insufficiency of Funds To hold a person liable under BP 22, it is not enough to establish that a check issued was subsequently dishonored. It must be shown further that the person who issued the check knew "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." Because this element involves a state of mind which is difficult to establish, Section 2 of the law creates a prima facie presumption of such knowledge, as follows: 21 Sec. 2. Evidence of knowledge of insufficient funds. The making, drawing and issuance of a check payment of 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. In other words, the prima facie presumption arises when a check is issued. But the law also provides that the presumption does not arise when the issuer pays the amount of the check or makes arrangement for its payment "within five banking days after receiving notice that such check has not been paid by the drawee." Verily, BP 22 gives the accused an opportunity to satisfy the amount indicated in the check and thus avert prosecution. As the Court held in Lozano v. Martinez, the aforecited provision serves to "mitigate the harshness of the law in its application." 22 This opportunity, however, can be used only upon receipt by the accused of a notice of dishonor. This point was underscored by the Court in Lina Lim Lao v. Court of Appeals: 23 It has been observed that the State, under this statute, actually offers the violator a "compromise by allowing him to perform some act which operates to preempt the criminal action, and if he opts to perform it the action is abated." This was also compared "to certain laws allowing illegal possessors of firearms a certain period of time to surrender the illegally possessed firearms to the Government, without incurring any criminal liability." In this light, the full payment of the amount appearing in the check within five banking days from notice of dishonor is a "complete defense." The absence of a notice of dishonor necessarily deprives an accused an opportunity to preclude a criminal prosecution. Accordingly, procedural due process clearly enjoins that a notice of dishonor be actually served on petitioner. Petitioner has a right to demand and the basic postulates of fairness require that the notice of dishonor be actually sent to and received by her to afford her the opportunity to avert prosecution under BP 22. Thus, in order to create the prima facie presumption that the issuer knew of the insufficiency of funds, it must be shown that he or she received a notice of dishonor and, within five banking days thereafter, failed to satisfy the amount of the check or make arrangement for its payment. To prove that petitioner knew of the insufficiency of her funds, the prosecution presented Exhibits "Q" to "T." Based on these documents, the Court of Appeals concluded that "[p]rivate complainant sent a demand letter to appellant to make good said checks . . .. Appellant failed to pay the face value of the eleven checks or make arrangement for the full payment thereof within 90 days after receiving the notice." 24 Upon closer examination of these documents, we find no evidentiary basis for the holding of the trial court and the Court of Appeals that petitioner received a notice that the checks had been dishonored. True, complainant sent petitioner a registered mail, as shown in Exhibit "Q" informing the latter that the checks had been dishonored. But the records show that petitioner did not receive it. In fact, Postmaster Wilfredo Ulibarri's letter addressed to complainant's counsel certified that the "subject registered mail was returned to sender on September 22, 1992 . . .. " 25

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Notwithstanding the clear import of the postmaster's certification, the prosecution failed to adduce any other proof that petitioner received the post office notice but unjustifiably refused to claim the registered mail. It is possible that the drawee bank sent petitioner a notice of dishonor, but the prosecution did not present evidence that the bank did send it, or that petitioner actually received it. It was also possible that she was trying to flee from complainant by staying in different address. Speculations and possibilities, however, cannot take the place of proof. Conviction must rest on proof beyond reasonable doubt. Clearly, the evidence on hand demonstrates the indelible fact that petitioner did not receive notice that the checks had been dishonored. Necessarily, the presumption that she knew of the insufficiency of funds cannot arise. Be that as it may, the Court must point out that it cannot rule on petitioner's civil liability, for the issue was not raised in the pleadings submitted before us. We must stress that BP 22, like all penal statutes, is construed strictly against the State and liberally in favor of the accused. 26 Likewise, the prosecution has the burden to prove beyond reasonable doubt each element of the crime. Hence, the prosecution's case must rise or fall on the strength of its own evidence, never on the weakness or even absence of that of the defense. WHEREFORE, the assailed Decision of the Court of Appeals is hereby REVERSED and SET ASIDE. Petitioner Betty King is ACQUITTED for failure of the prosecution to prove all the elements of the crimes charged. No pronouncement as to costs. SO ORDERED.

G.R. No. 169246

January 26, 2007

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. NICOLAS GUZMAN y BOCBOSILA, Accused-Appellant. DECISION CHICO-NAZARIO, J.: Man is subject to innumerable pains and sorrows by the very condition of humanity, and yet, as if nature had not sown evils enough in life, we are adding grief to grief and aggravating the common calamity by our cruel treatment of one another. Joseph Addison. The passage depicts the tragic fate of the deceased victim in the case at bar. His ultimate dream was to become a pilot so that he would have enough money to shoulder the schooling and education expenses of his younger siblings. Sadly, however, this dream will never become a reality as his young life was brutally snuffed out by certain violent individuals. He was a minor at the time of his death. Now his family is seeking justice for his untimely and senseless killing. For review is the Decision of the Court of Appeals in CA-G.R. C.R.H.C. No. 00095, dated 28 February 2005,1affirming with modification the Decision of the Regional Trial Court (RTC) of Quezon City, Branch 69, in Criminal Case No. Q-99-88737, dated 12 November 2001,2 finding accused-appellant Nicolas Guzman y Bocbosila guilty beyond reasonable doubt of the crime of murder, sentencing him to suffer the penalty of reclusion perpetua, and ordering him to pay the heirs of Michael Balber (Michael) the amount of P35,470.00 as actual damages,P50,000.00 as civil indemnity, and P50,000.00 as moral damages. On 29 November 1999, appellant was charged in an Information3 with Murder allegedly committed as follows: That on or about the 25th day of November 1999 in Quezon City, Philippines, the above-named accused, conspiring and confederating with two other persons, whose true names/identities and whereabouts are still unknown, and mutually helping one another with intent to kill, with treachery and evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault and employ personal violence upon the person of one MICHAEL ANGELO BALBER Y CASTILLON, a minor, 17 years of age, by then and there stabbing him on the trunk with the use of a bladed weapon, thereby inflicting upon him serious and grave wound which was the direct and immediate cause of his untimely death to the damage and prejudice of the heirs of Michael Angelo Balber y Castillon. When arraigned on 21 January 2000,4 appellant pleaded "Not Guilty" to the charge therein. Trial on the merits thereafter ensued. In building its case against appellant, the prosecution relied on the testimonies of its witnesses, namely: Ronald Santiago (Ronald), Edgardo Bauto (Edgardo), Danilo Balber (Danilo), Police Inspector Alberto Malaza (Inspector Malaza), SPO3 Samuel Quinto (SPO3 Quinto), and Dr. Francisco Supe, Jr. (Dr. Supe). Their testimonies are summarized as follows: Ronald is a jeepney driver and resident of Barangay Commonwealth, Quezon City. He testified that on 25 November 1999, at about 9:00 in the evening, he stopped by and ate at a carinderia located at the corner of Sto. Nino Street and Mactan Street, Brgy. Commonwealth, Quezon City. After eating, he sat on a bench just beside the carinderia and rested. He noticed appellant and two other persons having a drinking spree in a nearby grocery store. He also saw Michael walking towards the direction of the same grocery store. When Michael was passing in front of the grocery store, appellant and his two companions suddenly approached and surrounded Michael. Appellant

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positioned himself at the back of Michael while his two companions stood in front of Michael. Suddenly, they grabbed the shoulders of Michael and overpowered the latter. One of appellants companions, whom he described as a male with long hair, drew out a knife and repeatedly stabbed Michael at the stomach. Afterwards, the appellants other companion, whom he described as a male with flat top hair, took the knife from the companion with long hair, and also stabbed Michael at the stomach. Later, appellant went in front of Michael, took the knife from the companion with flat top hair, and likewise stabbed Michael at the stomach. Appellant also kicked Michael when the latter was already lying on the ground. He witnessed this stabbing incident at a distance of five arms length.5 Afraid and confused, he immediately went home. The next day, however, he went to the house of Michaels family and narrated the incident to Michaels father, Danilo. Subsequently, he was accompanied by Danilo to the Batasan Hills Police Station 6 where he gave a statement about the incident.6 Edgardo Bauto (Edgardo) is also a tricycle driver and resident of Brgy. Commonwealth, Quezon City. He narrated that on 25 November 1999, at around 9:00 in the evening, he was standing at the corner of Sto. Nino Street and Mactan Street, Brgy. Commonwealth, Quezon City, when he heard a female voice shouting "Sinasaksak!" When he glanced at the direction of the said shouts, he saw, at a distance of about five arms length, appellant and the latters two companions taking turns in stabbing Michael. One of the appellants companions, whom he described as a toothless male with a long hair, was the first one to stab Michael. Afterwards, the appellants other companion, whom he described as a male with flat top hair, took the knife from the toothless male with a long hair and stabbed Michael. Subsequently, appellant also took the knife from his companion with flat top hair and stabbed Michael too.7 Thereafter, he immediately ran and proceeded to the house of Michaels family and informed Michaels parents about the incident. Michaels parents rushed to the crime scene and took Michael to a hospital. The next day, he was accompanied by Danilo and a certain Ramiro Alfaro to Batasan Hills Police Station 6 where he gave a statement about the incident.8 Danilo, Michaels father, testified that on 25 November 1999, at about 9:00 in the evening, he was walking on his way home along the corner of Sto. Nino Street and Mactan Street, Brgy. Commonwealth, Quezon City, when he saw Michael lying along Sto. Nino Street. He also saw appellant and the latters two male companions near Michaels body. When he was about to approach them, they immediately ran away. He chased and threw stones at them. Appellant and his two companions proceeded to the formers house and locked the door. He tried to follow them all the way to the house but appellants relatives blocked his way to the door and told him to leave. Thereafter, he went back to Michael and took the latter to Fairview Hospital.9 He was later informed by the doctors that Michael was already dead. The next day, he went to Batasan Hills Police Station 6 and gave a statement about the incident. In an effort to settle the instant case, appellants wife and daughter told Danilo that they would sell a bus which they owned and would turn over to him the proceeds thereof. He also stated that Michael wanted to become a pilot so that, as the eldest of the children, he would be the one to shoulder the education of his siblings.10 Inspector Malaza is a member of the police force assigned at Police Community Precinct No. 1, Batasan Hills, Quezon City. He testified that on 25 November 1999, at about 9:00 in the evening, he was on his way home on board his owner type jeep. Upon reaching the corner of Sto. Nino Street and Mactan Street, Brgy. Commonwealth, Quezon City, he noticed a commotion nearby. He slowed down his vehicle and saw, at a distance of five to ten meters, appellant stabbing and kicking Michael. He also noticed that the appellants two companions were armed with bladed weapons. He alighted from his vehicle and approached appellant and his two companions. After introducing himself as a police officer, appellant and his two companions scampered away. He

ran after them but caught only appellant. The two other companions of the appellant successfully escaped. Thereafter, he handcuffed appellant and brought him to Batasan Hills Police Station 6. He turned him over to a police investigator therein and executed an affidavit of arrest.11 SPO3 Quinto is a police investigator at the Batasan Hills Police Station 6. He was the one who investigated the incident. After the incident was reported to his station on 26 November 1999, he immediately went to the crime scene upon the advice of the desk officer. Since Michael was already brought to Fairview Hospital at that time, he proceeded thereto. Upon arriving at the Fairview Hospital, he was informed that Michael was already dead. He then went back to the station and took the statements of the prosecution witnesses.12 Dr. Supe is a medico-legal officer of the PNP Crime Laboratory, Camp Crame, Quezon City. He conducted the post mortem examination on Michaels body. His testimony evolved on the matters stated in the Medico-Legal Report No. M-3112-99,13 viz: "POSTMORTEM FINDINGS: Fairly developed, fairly nourished male cadaver in rigor mortis with postmortem lividity at the dependent portions of the body. Conjunctivae are pale. Lips and nail beds are cyanotic. Needle puncture mark is noted on the dorsum of the right hand. There is fungal infection covering the entire groin and extending to the buttocks. "HEAD AND NECK: 1.) Abrasion, left superior orbital region, measuring 0.2 x 0.7 cm, 3.7 cm, from the anterior midline. 2.) Lacerated wound, left lateral orbital region, measuring 0.5 x 0.8 cm, 5 cm from the anterior midline. 3.) Abrasion, right inferior orbital region, measuring 0.6 x 2 cm, 1 cm from the anterior midline. "CHEST AND ABDOMEN: 1.) Abrasion, left inferior or mammary region, measuring 0.5 x 8.5 cm. along the anterior midline. 2.) Stab wound, thru and thru, point of entry, left coastal region, measuring 1 x 4 cm, 8 cm from the anterior midline, directed posteriorwards and medialwards making a point of exit at the left inferior mammary region, measuring 0.7 x 2.5 cm, 5 cm from the anterior midline, superficial. 3.) Stab wound, left subcostal region, measuring 0.7 x 2.3 cm, 14.2 cm from the anterior midline, 9 cm deep, directed posteriorwards, slightly upwards and medialwards, lacerating the mesentery, small intestine, left hemidiaphragm. 4.) Lacerated wound, thru and thru, point of entry, left inferior clavicular region, measuring 2 x 7 cm, 4.5 cm from the posterior midline, extending to the right inferior clavicular region and making a point of exit thereat, measuring 1 x 3 cm, superficial. 5.) Two and a half liters of blood and blood clots were evacuated from the abdominal cavity. 6.) The stomach is 250 ml full of billous fluid. "Extremity:

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1.) Lacerated wound, distal third of the right arm, measuring 0.4 x 1 cm, 2.5 cm lateral to its anterior midline. "CONCLUSION: Cause of death is hemorrhage and shock secondary to multiple stab wounds of the trunk."14 On the other hand, the defense presented the testimonies of appellant and Antonio Sulficiencia (Antonio) to disprove the foregoing charges. Appellant testified that on 25 November 1999, at about 9:00 in the evening, he was inside his store located at No. 886 Mactan St. Brgy. Commonwealth, Quezon City, when he heard shouts outside. He peeped through the window of his store and saw Danilo and Ronald pulling out a certain Jesus de Guzman (Jesus) from the latters tricycle. Danilo and Ronald punched Jesus but the latter retaliated. Thereafter, a rumble ensued. At the height of the brawl, he shouted Hoy! ano ba yan? Tama na yan! Itigil na ninyo yan! Awatin na ninyo yan." Minutes later, Michael passed by his store and inquired as to what was happening. He told Michael "Yung tatay mo at si Santiago (Ronald) pinagtulungan si Rommel." Michael rushed to Danilo and pacified the latter. Edgardo, one of the participants therein, threw stones at Michael. At this point, a certain Lemuel Grans Querubin (Lemuel) arrived and tried to join the fracas. Michael, however, blocked Lemuels way. The two wrestled and both of them fell to the ground. Moments later, Lemuel stood up. Lemuel was holding a knife and his hands were bloodied. Michael, on the other hand, was still lying on the ground. Lemuel then chased Danilo and Ronald but the two were able to escape. Afterwards, Danilo, Ronald and five other persons returned to the scene. Danilo was carrying a big bolo while the others were armed with stones and lead pipe. Lemuel and Jesus ran towards the direction of Sto. Nino in order to escape.15 Appellant went outside his house to observe the situation. Five minutes later, the group of Danilo, together with two policemen, proceeded to appellants house. The policemen forcibly entered appellants house and pushed the latter against the wall. They inquired as to the whereabouts of Lemuel and Jesus, who happened to be appellants bus conductor and driver, respectively. When they could not find the two, the policemen invited him to the police station. Appellant told them "Bakit ninyo ako dadalhin? wala naman akong kinalaman diyan." From then on, the policemen held appellant in custody.16 Antonio was a former bus driver of appellant and a resident of Paranaque City. He narrated that on 25 November 1999, at about 9:00 in the evening, he parked a bus owned by appellants cousin named Juanito Palmares (Juanito) just beside the appellants store. He went to appellants store and conversed with the latter who was inside the same store. Thereafter, he saw a rumble nearby. He ran and hid inside the parked bus while appellant stayed inside his store. Later, the participants of the rumble began to stone them. He alighted from the bus and went inside Juanitos house. He noticed that appellant was still inside the store. Subsequently, he saw Lemuel running and carrying a knife. He also heard Lemuel saying "Tapos na ang laban, manahimik na kayo." Thereupon, he saw appellant being apprehended by policemen in civilian clothes.17 On 12 November 2001, the RTC rendered its Decision convicting appellant of murder.18 It sustained the "clear, direct and positive" testimony of the prosecution witnesses who all declared that they saw appellant stab Michael. It found no ill-motive on the part of the prosecution witnesses in testifying against appellant. It also ruled that there was treachery in the killing of Michael since the latter was unarmed, unsuspecting and very young at the time of the attack. In ending, the RTC held: WHEREFORE, judgment is rendered finding accused Nicolas Guzman Y Bocbosila guilty beyond reasonable doubt of the crime of murder qualified by treachery. Accordingly, he is sentenced to suffer the penalty of reclusion perpetua to death and further

ordered to pay the heirs of the late Michael Angelo Balber the sum of Thirty-Five Thousand Four hundred Seventy Pesos (P35,470.00), Philippine Currency, as actual damages, excluding the Six Thousand Pesos (P6,000.00) Bagbag Cemetery as there was no evidence to justify the award of the same; Fifty Thousand Pesos (P50,000.00), as moral damages and the additional civil indemnity of Fifty Thousand Pesos (P50,000.00). Appellant filed a Notice of Appeal on 26 November 2001.19 On 28 February 2005, the Court Appeals promulgated its Decision affirming with modification the RTC Decision.20 The modification pertains only to the penalty imposed by the RTC, thus: WHEREFORE, the Decision of the Regional Trial Court of Quezon City, Branch 89, in Criminal Case No. Q-99-88737 is hereby AFFIRMED in all respects except that the sentence be RECLUSION PERPETUA only. On automatic review before us, appellant assigned the following errors of the lower court: I. THE LOWER COURT ERRED IN FINDING THE ACCUSEDAPPELLANT GUILTY BEYOND REASONABLE [DOUBT] OF THE CRIME OF MURDER DESPITE THE PALPABLE DISCREPANCIES AND INCONSISTENCIES IN THE TESTIMONIES OF THE PROSECUTION WITNESSES. II. THE LOWER COURT ERRED IN NOT GIVING EXCULPATORY WEIGHT TO THE EVIDENCE PRESENTED BY THE DEFENSE. III. THE LOWER COURT ERRED IN NOT ALLOWING THE ACCUSEDAPPELLANT TO PRODUCE SUBSTITUTE OR ADDITIONAL WITNESSES FOR HIS DEFENSE. IV. ASSUMING ARGUENDO THAT THE ACCUSED-APPELLANT CAN BE HELD LIABLE FOR THE DEATH OF THE VICTIM, THE LOWER COURT ERRED IN APPRECIATING THE QUALIFYING CIRCUMSTANCE OF TREACHERY.21 Anent the first issue, appellant claims that the testimonies of the prosecution witnesses should not be given any weight as the same are filled with discrepancies and inconsistencies. According to him, Ronald and Edgardo testified that appellant and his two companions used only one knife in stabbing Michael. Inspector Malaza, however, declared that appellant and his two companions were armed with separate knives during the stabbing incident. He also avers that Inspector Malaza gave contradicting versions of how the latter apprehended him after the incident. Further, Edgardo testified that after the incident, he immediately went to the house of Michael and informed Danilo of what he witnessed. Danilo, however, declared that while he was on his way home, he saw Michael lying at the corner of Sto. Nino St. and Mactan St., and, that the malefactors were running away. Appellants contention is bereft of merit. A witness testifying about the same nerve-wracking incident can hardly be expected to be correct in every detail and consistent with other witnesses in every respect, considering the inevitability of differences in perception, recollection, viewpoint, or impressions, as well as in their physical, mental, emotional, and psychological states at the time of the reception and recall of such impressions.22 Thus, we have followed the rule in accord with human nature and experience that honest inconsistencies on minor and trivial matters serve to strengthen, rather than

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destroy the credibility of a witness, especially of witnesses to crimes shocking to conscience and numbing to senses.23 The inconsistencies cited by appellant refer to minor and unimportant details which do not adversely affect the credibility of the prosecution witnesses. Although the testimony of Ronald and Edgardo as to the number of knives used in the stabbing incident differs with that of Inspector Malaza, all of them declared under oath during the trial that appellant stabbed Michael. Thus, as aptly stated by the Court of Appeals, such inconsistency should not be considered as a "fatal error," since what is important and decisive is that they had seen appellant stab Michael and that they testified on the fact during the trial. Besides, their testimonies on material and relevant points are substantially consistent with each other. They testified that three persons, among whom was the appellant, had stabbed Michael. Their descriptions of the faces, physical attributes, and respective positions of appellant and his two companions during the attack are compatible. They also stated that appellant was the last person who stabbed Michael. As regards the alleged inconsistent testimony of Inspector Malaza as to how the latter apprehended the appellant, it should be borne in mind that the weight of the eyewitness account should be on the fact that the witness saw the accused commit the crime and was positive of the latters physical identification.24 Inspector Malaza had seen appellant stab Michael, and, in fact, apprehended him right after the incident. Hence, the details on the manner by which Inspector Malaza apprehended the appellant would be immaterial and irrelevant. Appellant asserts that the testimony of Danilo runs counter to the testimony of the other prosecution witnesses. Even if we were to disregard as evidence for the prosecution the testimony of Danilo, the categorical and credible testimonies of the other prosecution witnesses are sufficient to support the finding of guilt on the part of appellant. It should be emphasized that the testimony of one eyewitness would be enough to support a conviction provided it is positive, credible, clear and straightforward.25 Apropos the second issue, appellant denied any liability and invoked alibi. He argued that he was inside his store when the stabbing incident occurred, and, that it was Lemuel who stabbed Michael. He also presented Antonio to corroborate his testimony. For alibi to prosper, it is not enough for the accused to prove that he was somewhere else when the crime was committed. He must likewise prove that it is physically impossible for him to be present at the crime scene or its immediate vicinity at the time of its commission.26 If appellant was, as he claimed, inside his store at the time of the incident, then it was not physically impossible for him to be at the crime scene or in its immediate vicinity. His store is located just beside Mactan Street,27 and that he witnessed the incident at a distance of merely five arms length from his store.28 Therefore, his defense of alibi must fail. Antonio testified that he and appellant, who was inside his store, were having a conversation when the incident occurred. A perusal of the records, however, shows that appellant did not mention anything about such conversation. In fact, appellant did not even mention the name of Antonio in his entire testimony. Given the foregoing, the testimony of Antonio cannot be considered as credible. In arguing the third issue, appellant avers that his constitutional rights to produce evidence on his behalf and to due process were violated when the trial court denied the motion of his counsel to present substitute witnesses. In the Pre-Trial Order of the RTC dated 29 February 2000, the defense named only four witnesses, to wit: Antonio, Lizardo

Dedase, Eduardo Bidia, and accused himself.29 In the same order, the RTC stated the following: All parties are informed that witnesses and documents which were not mentioned in this pre-trial order shall not be entertained during the trial on the merits.30 During the trial, only appellant and Antonio were able to testify. When the two other witnesses in the pre-trial order, namely, Lizardo Dedase and Eduardo Bidia, failed to appear and testify in court several times, the defense counsel moved to substitute them explaining that they were hesitant to testify, and, that one of them went home to his province.31 The RTC was correct in denying the defense counsels motion for substitution of witnesses since Section 4, Rule 118 of the Revised Rules on Criminal Procedure mandates that the matters agreed upon in the pre-trial conference and as stated in the pre-trial order shall bind the parties, to wit: SEC. 4. Pre-trial order. After the pre-trial conference, the court shall issue an order reciting the actions taken, the facts stipulated, and evidence marked. Such order shall bind the parties, limit the trial to matters not disposed of, and control the course of the action during the trial, unless modified by the court to prevent manifest injustice (Italics supplied). The pre-trial order of the RTC dated 29 February 2000 clearly shows that the defense named only four witnesses. The parties were also informed therein that witnesses who were not mentioned in the pre-trial order will not be entertained during the trial on the merits. Thus, pursuant to the afore-stated provision and its purpose of preventing undue delay in the disposition of criminal cases and ensuring fair trial, the denial of the defense counsels motion for substitution of witnesses is justified. Moreover, if appellants motion for substitution of witnesses is given due course, it will amount to an unreasonable disregard of solemn agreements submitted to and approved by the court of justice and would make a mockery of the judicial process. This is not to say, however, that such provision is absolute. It can be relaxed in the greater interest of justice. Nevertheless, the exception does not apply in favor of appellant as the RTC had observed that his motion for substitution of witnesses appears to be a "fishing expedition" of evidence which is clearly unfair to the case of the prosecution.32 Moreover, as aptly stated by the Solicitor General, if the two other witnesses of appellant were indeed afraid or hesitant to testify, he should have moved the RTC to subpoena the said witnesses to testify in court33 pursuant to his constitutional right to compulsory process to secure the attendance of his witnesses.34Unfortunately, appellant did not avail himself of this remedy. As to the fourth issue, appellant contends that even if he were held liable for the death of Michael, there was no treachery which will qualify the killing as murder. According to him, there is no evidence to show that appellant and his two companions had deliberately and consciously adopted their mode of attack to ensure its execution without risk to themselves. The stabbing incident occurred in a place that was properly lighted. There were many people in the area then walking in different directions. He claims that if he and his two companions wanted to ensure that no risk would come to them, then they could have chosen another time and place to attack Michael. Treachery is a sudden and unexpected attack under the circumstances that renders the victim unable and unprepared to defend himself by reason of the suddenness and severity of the attack.35 It is an aggravating circumstance that qualifies the killing of a person to murder. Article 14, paragraph (16) of the Revised Penal Code states the concept and essential elements of treachery as an aggravating circumstance, thus: ART. 14. The following are aggravating circumstances:

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xxxx 16. That the act be committed with treachery (alevosia). There is treachery when the offender commits any of the crimes against the person, employing means, methods, or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make. As can be gleaned from the foregoing, two essential elements/conditions are required in order that treachery may be appreciated: (1) The employment of means, methods or manner of execution that would ensure the offenders safety from any retaliatory act on the part of the offended party, who has, thus no opportunity for self-defense or retaliation; (2) deliberate or conscious choice of means, methods or manner of execution. Further, it must always be alleged in the information and proved in trial in order that it may be validly considered.36 In the instant case, treachery was alleged in the Information against appellant.37 Moreover, all the essential elements/conditions of treachery were established and proven during the trial. After attending a worship service at the Iglesia ni Kristo church in his barangay, Michael proceeded home. While Michael was casually walking along the corner of Sto. Nino Street and Mactan Street, appellant and his two companions, who were drinking nearby, suddenly approached and surrounded Michael. Appellant positioned himself at the back of Michael while his two companions stood in front of Michael. In an instant, they grabbed the shoulders of Michael and overpowered the latter. One of the appellants companions, whom the prosecution witnesses described as a male with long hair, drew out a knife and repeatedly stabbed Michael on the stomach. Unsatisfied, the appellants other companion, whom the prosecution witnesses described as a male with flat top hair, took the knife and stabbed Michael on the stomach. As the finale, appellant went in front of Michael, took the knife and also stabbed Michael on the stomach. When Michael fell on the ground, appellant kicked him at the body. Upon noticing that the bloodied Michael was no longer moving, appellant and his two companions fled the scene. As viewed from the foregoing, the suddenness and unexpectedness of the attack of appellant and his two companions rendered Michael defenseless, vulnerable and without means of escape. It appears that Michael was unarmed and alone at the time of the attack. Further, he was merely seventeen years of age then.38 In such a helpless situation, it was absolutely impossible for Michael to escape or to defend himself against the assault of appellant and his two companions. Being young and weak, Michael is certainly no match against adult persons like appellant and his two companions. Michael was also outnumbered since he had three assailants, and, was unarmed when he was stabbed to death. Appellant and his two companions took advantage of their size, number, and weapon in killing Michael. They also deliberately adopted means and methods in exacting the cruel death of Michael by first surrounding him, then grabbing his shoulders and overpowering him. Afterwards, each of them repeatedly stabbed Michael with a knife at the stomach until the latter fell lifeless to the ground. The stab wounds sustained by Michael proved to be fatal as they severely damaged the latters large intestine.39 The fact that the place where the incident occurred was lighted and many people were walking then in different directions does not negate treachery. It should be made clear that the essence of treachery is the sudden and unexpected attack on an unsuspecting victim without the slightest provocation on his part.40 This is even more true if the assailant is an adult and the victim is a minor. Minor children, who by reason of their tender years, cannot be expected to put up a defense. Thus, when an adult person illegally attacks a minor, treachery exists.41As we earlier found, Michael was peacefully walking and not provoking anyone to a fight when he was stabbed to death by appellant and his two companions. Further, Michael was a minor at the time of

his death while appellant and his two companions were adult persons. With regard to the allegation in the Information that the killing of Michael was attended by an aggravating circumstance of evident premeditation, the RTC and the Court of Appeals were correct in disregarding the same against appellant. The essence of evident premeditation as an aggravating circumstance is that the execution of the criminal act was preceded by cool thought and reflection upon the resolution to carry out the criminal intent during a space of time sufficient to arrive at a calm judgment.42 It implies a deliberate planning of the crime before executing it. It must also be shown how and when the plan to kill was hatched or what time elapsed before it was carried out.43 Further, there must be proof that the accused meditated and reflected on his intention between the time when the crime was conceived by him and the time it was actually perpetrated.44 In the case at bar, there is no evidence to show that appellant and his two companions had previously planned and reflected in killing Michael. When appellant and his two companions saw Michael on that fateful night, they immediately pounced on him. The thought of killing Michael came into the minds of appellant and his two companions only when they saw Michael walking on the road. Indeed, the killing of Michael was sudden and unplanned. On another point, we agree with the penalty imposed by the Court of Appeals. Article 248 of the Revised Penal Code states that murder is punishable by reclusion perpetua to death. Article 63 of the same Code provides that if the penalty is composed of two indivisible penalties, as in the instant case, and there are no aggravating or mitigating circumstances, the lesser penalty shall be applied. Since there is no mitigating or aggravating circumstance in the present case, and, treachery cannot be considered as an aggravating circumstance as it was already taken as a qualifying circumstance, the lesser penalty of reclusion perpetua should be imposed. As regards the damages awarded by the Court of Appeals, we rule that the sum of P35,470.00 as actual damages should be reduced to P25,670.00 since the receipts on record amounts only to P25,670.00.45 It is well-settled that only expenses supported by receipts will be allowed for actual damages.46 Furthermore, exemplary damages should also be awarded to the heirs of Michael since the qualifying circumstance of treachery was firmly established by the prosecution.47 If a crime is committed with an aggravating circumstance, either qualifying or generic, an award of P25,000.00 as exemplary damages is justified under Article 2230 of the New Civil Code.48This kind of damage is intended to serve as a deterrent to serious wrongdoings, and as a vindication of undue sufferings and wanton invasion of the rights of an injured person or punishment for those guilty of outrageous conduct.49lawphil.net WHEREFORE, the Decision of the Court of Appeals in CA-G.R. C.R.H.C. No. 00095 dated 28 February 2005 is hereby AFFIRMED with MODIFICATIONS. Appellant is hereby found guilty beyond reasonable doubt of the crime of murder, for which, he is accordingly sentenced to suffer the penalty of reclusion perpetua. Appellant is further ordered to pay the heirs of Michael P25,670.00 as actual damages; P50,000.00 as moral damages; P50,000.00 as civil indemnity for Michaels death; and P25,000.00 as exemplary damages. SO ORDERED.

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