En Banc G.R. No.

147678-87, July 7, 2004

THE PEOPLE OF THE PHILIPPINES, APPELLEE, VS. EFREN MATEO Y GARCIA, APPELLANT.

DECISION

Vitug, J.: On 30 October 1996, ten (10) informations, one for each count of rape, allegedly committed on ten different dates 07 October 1995, 14 December 1995, 05 January 1996, 12 January 1996, 29 February 1996, 08 May 1996, 02 July 1996, 18 July 1996, 16 August 1996 and 28 August 1996 were filed against appellant EFREN MATEO. Except for the variance in dates, the ten informations, later docketed Criminal Cases No. 9351 to No. 9360, inclusive, in the Regional Trial Court of Tarlac, uniformly read The undersigned OIC Provincial Prosecutor upon preliminary investigation conducted by the MTC, Tarlac, Tarlac, Branch 1, accuses Efren Mateo of Brgy. Buenavista, Tarlac, Tarlac of the crime of Rape, committed as follows: That on or about January 12, 1996, in the Municipality of Tarlac, Province of Tarlac, Philippines and within the jurisdiction of this Honorable Court, the said accused Efren Mateo y Garcia, who is the guardian of the complaining witness, did then and there willfully, unlawfully and feloniously and by means of force and intimidation have carnal knowledge with said Imelda C. Mateo in their house against her consent.[1] The trial ensued following a plea of not guilty entered by appellant to all the charges. According to Imelda Mateo, she was born on 11 September 1980 to the spouses Dan Icban and Rosemarie Capulong. Rosemarie Capulong and appellant started to live together without the benefit of marriage when private complainant was only two years old. Imelda stayed with her mother and appellant in a house in Buenavista, Tarlac, and adopted the surname of appellant when she started schooling. Imelda recalled that each time the ten rape incidents occurred her mother, Rosemarie, was not at home. On 07 October 1995, the date of the first rape, Rosemarie

went to Bamban and returned home only the next day. The second rape was said to have occurred on 14 December 1995, while her mother was attending a seminar for daycare workers. Imelda recalled the third rape to have been committed on 05 January 1996, the same day her mother resigned from her job and left for Manila. The fourth rape, she said, happened a week later, on 12 January 1996, when Rosemarie Capulong was attending yet another seminar for day-care workers. The fifth incident was on 29 February 1996, when Rosemarie left for Manila to follow-up her application for an overseas job. The sixth rape took place on 08 May 1996 when Rosemarie was once again in Manila to attend to her application papers. On 01 July 1996, Rosemarie and appellant left for Manila as Rosemarie was scheduled to depart for Jeddah. Appellant returned home in the evening of the next day, 02 July 1996, the same day the job recruiter relayed the news that Rosemarie Capulong could not yet leave for Jeddah. During the night, appellant again molested Imelda. With Rosemarie finally away, appellant frequented his nocturnal visits. On the night of 18 July 1996, appellant went into her room and abused her while her siblings were sleeping in the sala. The same incident was repeated on the night of 16 August 1996 when appellant, already naked, entered the room and sexually assaulted Imelda. The last rape was committed on 28 August 1996. According to private complainant, she never reported any of the ten incidents to anybody because the accused had threatened to kill her and her mother if she were to disclose the matter to anyone. Imelda stated that each of the ten rape incidents were committed in invariably the same fashion. All were perpetrated inside the house in Buenavista, Tarlac, during the night and, each time, she would try to ward off his advances by kicking him but that he proved to be too strong for her. These incidents occurred in the presence of her three sleeping siblings who failed to wake up despite the struggles she exerted to fend off the advances. She recalled that in all ten instances, appellant had covered her mouth with a handkerchief to prevent her from shouting. Subsequently, however, she changed her statement to say that on two occasions, particularly the alleged sexual assaults on 02 July 1996 and 18 July 1996, appellant had only covered her mouth with his hands. Still much later, Imelda testified that he had not covered her mouth at all. The predictable pattern of the rape incidents testified to by Imelda prompted the defense to ask her whether she had, at any one time, taken any protective measure in anticipation of the rape incidents. She replied that once she had requested her

brothers and sister to keep her company in the bedroom at night but appellant had scolded them. On the night of the fourth rape, she narrated that she armed herself with a knife but, when appellant entered her room that night, she was not able to retrieve the bladed weapon from under the bed as appellant was sitting right on top of it. Dr. Rosario Fider, the second witness for the prosecution, stated that she had physically examined private complainant on 14 October 1996 and found superficially healed lacerations at 3:00, 6:00 and 9:00 positions on her private organ that could have been caused by an insertion of an instrument or by sexual intercourse. According to Dr. Fider, the lacerations pointed to possibly one or two, and at most three, incidents of rape, which had happened not earlier than two weeks before the date of the physical examination. Appellant denied each of the charges. On 07 October 1995, the date of the first rape, he claimed that he was in BarangayTalaga, Capas, to pick up newly hatched ducklings, numbering about a thousand, which had to be properly fed, kept warm and constantly cared for that required him to be around the entire day and night for two weeks. The fowls had then to be brought into an open field located one and a half kilometers away which could be traversed by foot. He continued to tend to the animals from 20 October 1995 until sometime in February 1996. able to go home only once a week or three times a month. On 14 December 1995, the supposed date of the second rape, appellant admitted that he had temporarily left the care of his ducks to go caroling with his wife, their daughter Imelda and some friends. He immediately returned to care for his ducks, located some 500 meters from their residence, that kept him busy and away from home when the third, fourth and fifth rape incidents were said to have taken place on the 5th and 12th of January and 29th of February of 1996. While he admitted to leaving occasionally the animals in order to go home, these visits, however, were said to be brief and mainly for getting some food and fresh clothes. Appellant could not recall when exactly he sold the ducks but it was definitely prior to 08 May 1996, the day he was accepted and reported for work at the LA Construction of Hacienda Luisita, Tarlac, located some three kilometers away. On 08 May 1996, the date of the sixth rape, he was at work from seven oclock in the morning until the following day to finish a rush job. On 01 July 1996, he accompanied his wife, Rosemarie, to Manila who was scheduled to leave for Jeddah the following day. Upon being advised that her flight was During the period, he was

postponed, the couple stayed in the house of one Luding Sevilla in Caloocan. On 03 July, he returned to Tarlac. From 15 July to September, 1996, he was given the nightshift at the LA Construction. Appellant asserted that it was impossible for him to have raped private complainant on 28 August 1996 because at six oclock that evening, his friends Boy Botio, Boy Pineda, Marvin Dalangin and Nelson Castro had picked him up at his house to attend the fiesta atBarangay Murcia, Concepcion, Tarlac, where they spent the night. Appellant dismissed the charges against him as being the malicious retribution of a vengeful stepdaughter. Allegedly, on 11 October 1996, he took private complainant to task after his son, Marlon Mateo, who had reported seeing her engaged in sexual intercourse with one Pikong Navarro inside the room of their house. Earlier, on 05 August 1996, he also learned that Sharon Flores, a neighbor and a friend of private complainant, had caught his stepdaughter and Navarro in a very compromising position. In anger, he hit Imelda twice with a piece of bamboo. He then forbade her from going out at night and leaving her siblings alone in the house. Rosemarie Capulong, the mother of private complainant, rose to testify in defense of her common-law husband. Capulong asserted that she had not at any time, prior to her departure for Jeddah, spent any night outside their house. Rosemarie said that she was a day-care teacher from June 1990 until June 1996. On 07 October 1995, the date of the supposed first rape, she was at home and did not go to Bamban as so claimed by private complainant. Capulong disputed the claim of private complainant that she attended a seminar for day-care workers on 12 January 1996 since her job did not require her to attend seminars except for regular meetings held on the last Friday of every month, with each meeting lasting for only half a day. The last seminar she had attended was in June of 1990 in Tarlac. On 29 February 1996, Rosemarie was also certain that she spent the night at home as she had to report for work the following day. She started obtaining documents for her planned employment abroad only on 12 February 1996, when she secured her birth certificate in Bamban as so attested by the date appearing on the certification from the Municipal Civil Registrar of Bamban. On 08 May 1996, she admitted being away from home while attending a general assembly of day-care workers in Zambales. On that day, appellant was likewise not at home due to his overtime work up until about three or four oclock in the early morning. Imelda herself, Capulong testified, had attended on that day the San Miguel fiesta. Contrary to

the allegation of private complainant, the witness was not in Manila on the 5th and 12th of January 1996 because, at that time, she had yet no plans of working overseas. She denied the assertions of private complainant that Capulong had resigned from her daycare work on 05 January 1996, saying it was actually months later, or in June of 1996, when she quit her job. It was on 13 February 1996 when she went to Manila for the first time to attend to her application for a possible overseas work. She made subsequent trips to the city, that is, on the 3rd, 5th, 8th and 24th of the month of June, to followup her employment papers and to submit herself to a medical check-up. All these visits only took a day, and she would always be home in Buenavista at nightfall. On 01 July 1996, appellant accompanied her to Manila but, upon learning that her flight was postponed, they spent the night in Caloocan. The couple stayed together in Manila until 03 July 1996, when appellant decided to return to Tarlac. Rosemarie worked in Jeddah, Saudi Arabia, until 11 November 1996 when she decided to return home. Rosemarie Capulong corroborated the testimony of appellant regarding his whereabouts from October 1995, when the ducks were first brought to the field, until 15 December 1995, when appellant had joined her and their friends caroling. Capulong believed that the charges may have been fabricated by her relatives who were jealous of appellant because it was he, not they, who had been receiving the remittances of her earnings from Saudi Arabia. Sharon Flores, a neighbor, testified that, about noontime on 05 August 1996, she repaired to the house of private complainant to investigate rumors regarding a man seen entering the Capulong residence. When she went in, she saw private complainant and Pikong Navarro lying on the bed, embracing each other under a blanket. Anselmo Botio, a friend of appellant, and Marlon Mateo, a brother of private complainant, corroborated appellants alibi. Botio said that on 28 August 1996, at six oclock in the evening, he, together with appellant and some friends, went to attend thefiesta in Barangay Murcia upon the invitation of one Ruben Santos. The group arrived in Murcia at seven oclock that evening and promptly had dinner and a drinking spree which lasted until the morning of the next day. Marlon Mateo testified that one day in October 1996, while his mother was working overseas, he arrived home from school, and saw Pikong Navarro and private complainant, both naked, on the bed. Navarro was on top of private complainant and

was making thrusting motions. Marlon Mateo hurriedly left to report the incident to his father. At the conclusion of the trial, the court a quo issued its decision, dated 23 January 2001, finding appellant guilty beyond reasonable doubt of ten (10) counts of rape WHEREFORE, the Court finds the accused guilty beyond reasonable doubt of ten (10) counts of rape and is hereby sentenced to suffer the penalty of reclusion perpetua for each count of rape and to indemnify the complainant the sum of P50,000.00 as actual damages and P50,000.00 as moral damages for each count of rape.[2] More often than not, the Court has deemed it sufficient to convict an accused for rape solely on the basis of the testimony of the victim.[3] The heavy reliance normally given by the Court on the narration of the victim finds justification on the fact that, generally, she would be the sole witness to the incident and the shy and demure character of the typical Filipina would preclude her from fabricating that crime. It is imperative, nonetheless, that the testimony must be convincing and straightforward in order to avoid any serious doubt from being cast on the veracity of the account given. Relative to the first supposed rape incident, private complainant categorically stated that she had slept in the lone bedroom of the house while her siblings and her stepfather slept in the sala Q. How did (sic) he able to remove your t-shirt and shorts? A. He brought me to the sala and in that place when he undressed me, sir. x x x x x x xxx Q. How did (sic) he able to take you out from the room? In what way? A. She (sic) lifted me and still my mouth was covered, my hands were stocked and I cannot move, sir. Q. She (sic) lifted you by his two hands, is that right? A. Yes, sir.[4] Q. You testified on direct examination that there is only one room in your house, is that right? A. Yes, sir. Q. And you were then sleeping inside your house in that one room, is that right? A. Yes, sir.

Q. While your brothers as well as your stepfather were then sleeping outside your room, you [were] also sleeping, is that right? A. Yes, sir.[5] In the next breath, however, she testified that all her three siblings were sleeping with her on the night of 07 October 1995 Q. How did (sic) he able to remove your t-shirt and shorts? A. He brought me to the sala and in that place when he undressed me, sir. Q. Do you want to tell this Honorable Court that he brought you to the sala where your brothers Ryan and Marlon and your sister Iris were then sleeping? A. My brothers and sister were sleeping in the room, sir. Q. Is it not a fact that there was only one room in your house? A. But they slept there on that night, sir. Q. In other words, Madam Witness, you were sleeping together with Ryan, Marlon, and Iris by that time in one room together in one bed? A. Yes, sir.[6] Still, later, Imelda changed her testimony and said that her brothers were in the sala and that it was only her sister Iris who was with her in the bedroom when the rape incidents were committed Q. How about your brother Ryan where did he sleep on October 7, 1995? A. At the sala, sir. Q. Who was with him in the sala? A. He [was] sleeping with my stepfather and my brother Marlon, sir. Q. How about Iris, where was she sleeping? A. She was with me, sir. Q. You mean to imply to the Court that according to you the accused abused you on October 7, 1995, Iris [was] with you in the room? A. Yes, sir. Q. Are you sure of that? A. Yes, sir. x x x xxx xxx

Q. You stated in your direct testimony that on October 7, 1995 your father entered your room where you were sleeping, covering your mouth and forced you to go to the sala, do you recall that statement? A. No, sir. Q. Do you not remember that you have testified that he was able to take you to the sala? A. No, sir. Q. And then when you reached the sala, you stated that the accused criminally abused you? A. No, sir. Q. Do you not remember having been asked by the prosecutor examining you, and now I cite to you your statement; `Q Public Prosecutor Llobrera, `Now, let us make it clear. You said you were brought to the sala and your answer, `Yes, sir. Do you not remember having made that statement? A. No, sir. Q. And another question, `When you reached the sala what were the first things he did to you and your answer, `He kissed me, sir. Do you remember that? A. No, sir. The first time he abused me was in the room, sir.[7] The Solicitor General would posit that the claim of private complainant that she had the sole privilege of sleeping in the lone bedroom of their house while the rest of the family, namely both her parents and her three siblings, had to squeeze themselves in the sala strained credulity, and that the testimony of her mother, Rosemarie Capulong, to the effect that the couple were the occupants of the single bedroom while their children stayed in the sala where the television was located, made more sense. Imelda testified that her three siblings Marlon, Ryan and Iris were sleeping inside the house every time the rape incidents were committed. The identical testimony of everyone else in the Mateo household, including her mother Rosemarie Capulong and brother Marlon Mateo, exposed such assertions to be a blatant lie and categorically stated that Ryan himself had never stayed in the Mateo residence because he was living with his grandparents since childhood.

Private complainant testified that during the rape incidents she was gagged with a handkerchief which rendered her unable to shout for help. Later on, however, she gave different versions on whether appellant covered her mouth with his hand or with a handkerchief during the rape incidents occurring on 07 October 1995, 05 January 1996, 12 January 1996, 18 July 1996, 16 August 1996 and 28 August 1996. Eventually, she repudiated her earlier testimony by stating that appellant had never covered her mouth, either with a handkerchief or with his hand Q. Both the incidents of July 2 and July 18, according to you, he only covered your mouth on both occasions? A. Yes, sir. Q. He did not tie your mouth with anything? A. No, sir. Q. Miss Witness, in your statement also on August 20, 1997, you stated that the accused covered your mouth and tied your mouth with a handkerchief on both occasions. Do you remember having given that statement? A. No, sir. Q. So, you do not remember having made that statement? A. No, sir. Q. Recalling your testimony you gave on August 20, 1997, for the July 2 occasion and the testimony that you gave as appearing on page 18 of the transcript of stenographic notes. These questions and answers were given and answered by you. `Q. While he was doing all these things to you, did you call for help? A. I cannot shout because my mouth was covered with a handkerchief, sir. Q. Was he holding that handkerchief? A. It was tied, sir. On July 17, 1997, you said that the accused tied your mouth on July 2, 1996, and you said that you cannot shout because your mouth was tied with a handkerchief. Do you remember having stated that? A. No, sir. x x x 29, 1997, when asked these following questions appearing on page 21 of the transcript of stenographic notes. `Q. Tell the Court how did he rape you on that night? A. On that night while I was sleeping in my room, he tied a handkerchief in my mouth so I could not shout, sir. Do you remember having stated that? A. No, sir. xxx xxx Q. On the July 18 occasion, you also stated in your direct testimony on August

Q. And also you were asked this question: `Q. After tying this handkerchief to your mouth, what did he do to you? You said that he raped you. Do you remember having given this statement? A. No, sir.[8] Also quite telling were some discrepancies in the testimony of private complainant regarding the whereabouts of her mother Rosemarie Capulong on the dates of the incidents. According to private complainant, it was when her mother Rosemarie was not at home when appellant would commit the dastardly crimes. Not only did the account of Imelda contradict that of Rosemarie but that Imelda herself would appear to have made irreconcilable statements. According to her, on 07 October 1995, the date of the first rape, Rosemarie had gone to Bamban to visit her mother. Subsequently, however, she said that Rosemarie went to Bamban because she worked there, only to later say that, at that time, Rosemarie had already resigned from work. Imelda would further change her story by stating that Rosemarie Capulong did not report for work that day; then, in a quick turnaround, she remarked that her mother did go to Bamban not to work but to get her birth certificate. Interestingly, Imelda said that 07 October 1995 was a working day, and that she had gone to school the following day. Judicial notice could be taken of the fact, however, that 07 October 1995 was a Saturday and that the following day, a Sunday, could not have been a school day. With respect to the rape committed on 12 January 1996, Imelda testified that Rosemarie was attending a seminar; yet, when cross-examined, she told the trial court that on that day Rosemarie went to Manila to borrow money from her cousin. The subsequent conduct of a victim could also either confirm or negate her claim of rape.[9] The human nature, characterized by an instinct for self-preservation and an aversion to humiliation, would dictate that a typical victim of rape could display changes in behavior, erratic mood swings and an alteration in her daily routine. No such changes were observed in the case of private complainant. She testified that on the day after the first incident on 07 October 1995, she woke up at six oclock in the morning, washed her face, and went to school. There was no apparent attempt on her part to run away from home despite every chance to escape from her tormentor or to exercise every means available to ensure that the incidents would not be repeated. At fifteen years old, already old enough to think of her safety and well-being, Imelda Mateo went about her usual business as if nothing unusual had occurred. She continued to sleep in the same

bedroom with nary any precaution against the bestiality she was sure would come everytime her mother was away. While it may be argued that appellants moral ascendancy over Imelda was enough to intimidate her to suffer in silence; still, it could well be improbable for a victim who had been raped no less than ten times not to make a simple outcry against her unarmed rapist when she had every opportunity to do so. The Solicitor General assails the factual findings of the trial court and recommends an acquittal of appellant. The records would disclose that the first half of the trial, from 17 July 1997 until 15 October 1997, was conducted by Judge Lino L. Diamsay. Judge Edgardo F. Sundiam conducted the trial from 14 January 1999 until 24 February 1999. From 11 May 1999 until the day of the last hearing, it was Judge Arsenio P. Adriano who heard the case. While this change of the presiding judges would not invalidate the proceedings, it did deny to the deciding magistrate the opportunity to observe in entirety the demeanor of the witnesses which could well be vital to the decision-making process, particularly where credibility would, by and large, constitute the singular issue. The law demands that only proof of guilt beyond reasonable doubt can justify a verdict of guilt. Up until now, the Supreme Court has assumed the direct appellate review over all criminal cases in which the penalty imposed is death, reclusion perpetua or life imprisonment (or lower but involving offenses committed on the same occasion or arising out of the same occurrence that gave rise to the more serious offense for which the penalty of death, reclusion perpetua, or life imprisonment is imposed). The practice finds justification in the 1987 Constitution Article VIII, Section 5. The Supreme Court shall have the following powers: (2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in: x x x xxx xxx (d) All criminal cases in which the penalty imposed is reclusion perpetua or higher. The same constitutional article has evidently been a thesis for Article 47 of the Revised Penal Code, as amended by Section 22 of Republic Act No. 7659,[10] as well as procedural rules contained in Section 3 of Rule 122,[11] Section 10 of Rule 122,[12] Section 13 of Rule 124[13] and Section 3 of Rule 125[14] of the Rules of Court. It must be stressed,

however, that the constitutional provision is not preclusive in character, and it does not necessarily prevent the Court, in the exercise of its rule-making power, from adding an intermediate appeal or review in favor of the accused. In passing, during the deliberations among the members of the Court, there has been a marked absence of unanimity on the crucial point of guilt or innocence of herein appellant. Some are convinced that the evidence would appear to be sufficient to convict; some would accept the recommendation of acquittal from the Solicitor General on the ground of inadequate proof of guilt beyond reasonable doubt. Indeed, the occasion best demonstrates the typical dilemma, i.e., the determination and appreciation of primarily factual matters, which the Supreme Court has had to face with in automatic review cases; yet, it is the Court of Appeals that has aptly been given the direct mandate to review factual issues. While the Fundamental Law requires a mandatory review by the Supreme Court of cases where the penalty imposed isreclusion perpetua, life imprisonment, or death, nowhere, however, has it proscribed an intermediate review. If only to ensure utmost circumspection before the penalty of death, reclusion perpetua or life imprisonment is imposed, the Court now deems it wise and compelling to provide in these cases a review by the Court of Appeals before the case is elevated to the Supreme Court. Where life and liberty are at stake, all possible avenues to determine his guilt or innocence must be accorded an accused, and no care in the evaluation of the facts can ever be overdone. A prior determination by the Court of Appeals on, particularly, the factual issues, would minimize the possibility of an error of judgment. If the Court of Appeals should affirm the penalty of death, reclusion perpetua or life imprisonment, it could then render judgment imposing the corresponding penalty as the circumstances so warrant, refrain from entering judgment and elevate the entire records of the case to the Supreme Court for its final disposition.[15] Statistics would disclose that within the eleven-year period since the reimposition of the death penalty law in 1993 until June 2004, the trial courts have imposed capital punishment in approximately 1,493,[16] out of which 907 cases[17] have been passed upon in review by the Court. In the Supreme Court, where these staggering numbers find their way on automatic review, the penalty has been affirmed in only 230 cases comprising but 25.36% of the total number. Significantly, in more than half or 64.61% of the cases, the judgment has been modified through an order of remand for

further proceedings, by the application of the Indeterminate Sentence Law or by a reduction of the sentence. Indeed, the reduction by the Court of the death penalty to reclusion perpetua has been made in no less than 483 cases or 53.25% of the total number. The Court has also rendered a judgment of acquittal in sixty-five (65) cases. In sum, the cases where the judgment of death has either been modified or vacated consist of an astounding 71.77% of the total of death penalty cases directly elevated before the Court on automatic review that translates to a total of six hundred fifty-one (651) out of nine hundred seven (907) appellants saved from lethal injection. Under the Constitution, the power to amend rules of procedure is constitutionally vested in the Supreme Court Article VIII, Section 5. The Supreme Court shall have the following powers: (5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts. Procedural matters, first and foremost, fall more squarely within the rule-making prerogative of the Supreme Court than the law-making power of Congress. The rule here announced additionally allowing an intermediate review by the Court of Appeals, a subordinate appellate court, before the case is elevated to the Supreme Court on automatic review, is such a procedural matter. Pertinent provisions of the Revised Rules on Criminal Procedure, more particularly Section 3 and Section 10 of Rule 122, Section 13 of Rule 124, Section 3 of Rule 125, and any other rule insofar as they provide for direct appeals from the Regional Trial Courts to the Supreme Court in cases where the penalty imposed is death, reclusion perpetua or life imprisonment, as well as the resolution of the Supreme Court en banc, dated 19 September 1995, in Internal Rules of the Supreme Court in cases similarly involving the death penalty, are to be deemed modified accordingly. WHEREFORE, the instant case is REMANDED, and all pertinent records thereof ordered to be FORWARDED, to the Court of Appeals for appropriate action and disposition, consistent with the discussions hereinabove set forth. No costs. SO ORDERED.

G.R. Nos. 120681-83 October 1, 1999 JEJOMAR C. BINAY, petitioner, vs.

HON. SANDIGANBAYAN (Third Division) and the DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT,respondents. G.R. No. 128136 October 1, 1999 MARIO C. MAGSAYSAY, FRANCISCO B. CASTILLO, CRISTINA D. MABIOG, REGINO E. MALAPIT, ERLINDA I. MASANGCAY and VICENTE DE LA ROSA, petitioner, vs. HON. SANDIGANBAYAN, HON. OMBUDSMAN and its PROSECUTOR WENDELL BARERRAS-SULIT and STATE PROSECUTORS ERIC HENRY JOSEPH F. MALLONGA and GIDEON C. MENDOZA, respondents. KAPUNAN, J.: Pursuant to Section 4, Article XIII of the 1973 Constitution, Presidential Decree No. 1486 created an Anti-Graft Court known as the Sandiganbayan. Since then the jurisdiction of the Sandiganbayan has undergone various changes, 1 the most recent of which were effected through Republic Act Nos. 7975 2 and 8249. 3 Whether the Sandiganbayan, under these laws, exercises exclusive original jurisdiction over criminal cases involving municipal mayors accused of violations of Republic Act No. 3019 4 and Article 220 of the Revised Penal Code 5 is the central issue in these consolidated petitions. In G.R. Nos. 120681-83, petitioner Jejomar Binay seeks to annul, among others, the Resolution of the Sandiganbayan denying his motion to refer Criminal Case Nos. 21001, 21005 and 21007 to the Regional Trial Court (RTC) of Makati and declaring that the Sandiganbayan has jurisdiction over said cases despite the enactment of R.A. No. 7975. In G.R. No. 128136, petitioner Mario C. Magsaysay, et al. assail the October 22, 1996 Resolution of the Sandiganbayan, reversing its Order of June 21, 1996 which suspended the proceedings in Criminal Case No 23278 in deference to whatever ruling this Court will lay down in the Binay cases.1wphi1.nt The, facts, as gathered from the records, are as follows: G.R. Nos. 120681-83 On September 7, 1994, the Office of the Ombudsman filed before the Sandiganbayan three separate informations against petitioner Jejomar Binay, one for violation of Article 220 of the Revised Penal Code, 6 and two for violation of Section 3 (e) of R.A. No. 3019. 7 The informations, which were subsequently amended on September 15, 1994, all alleged that the acts constituting these crimes were committed in 1987 during petitioner's incumbency as Mayor of Makati, then a municipality of Metro Manila.

Thereafter, petitioner moved to quash the informations. He contented that the six-year delay from the time the charges were filed in the Office of the Ombudsman on July 27, 1988 to the time the informations were filed in the Sandiganbayan on September 7, 1994 constituted a violation of his right to due process. Arraignment of the accused was held in abeyance pending the resolution of this motion. On March 29, 1995, the Sandiganbayan issued a Resolution denying petitioner's motion to quash. Petitioner's motion for reconsideration, which was opposed by the prosecution, was likewise denied by the Sandiganbayan. The resolution denying the motion for reconsideration, however, was issued before petitioner could file a reply to the prosecution's opposition to the motion for reconsideration. In the meantime, on March 31, 1995, the prosecution filed a "Motion to Suspend Accused Pendente Lite." The Sandiganbayan, in a Resolution dated April 25, 1995, granted the motion and ordered the suspension of petitioner for ninety days from receipt of the resolution. The court ruled that the requisites for suspensionpendente lite were present as petitioner was charged with one of the offenses under Section 13 of R.A. No. 3019 8and the informations containing these charges had previously been held valid in the resolution denying the motion to quash and the resolution denying the motion for reconsideration. Petitioner thus filed before this Court a petition for certiorari, 9 to set aside the resolution denying his motion for reconsideration, claiming that he was denied due process when the Sandiganbayan ordered his suspensionpendente lite before he could file a reply to the prosecution's opposition to his motion for reconsideration of the resolution denying the motion to quash. In a Resolution dated April 28, 1995, the Court directed the Sandiganbayan to, among other things, permit petitioner to file said reply. After allowing and considering petitioner's reply, the Sandiganbayan, on June 6, 1995, issued a Resolution reiterating the denial of his motion for reconsideration of the denial of the motion to quash. On the same day, the Sandiganbayan issued another resolution reiterating the order suspending petitioner pendente lite. Meanwhile, R.A. No. 7975, redefining the jurisdiction of the Sandiganbayan, took effect on May 16, 1995. 10 On June 13, 1995, petitioner filed before the Sandiganbayan a motion to refer his cases to the "proper court" for further proceedings, alleging that when the two Resolutions, both dated June 6, 1995, were issued by the Anti-Graft Court, it had already lost jurisdiction over the subject cases. The Sandiganbayan, in a Resolution dated July 4, 1995, denied petitioner's motion, holding thus: There is no question that Municipal Mayors are classified as Grade "27" under the Compensation & Position Classification Act of 1989. Since, at the time of the commission of the offenses charged in the above-entitled cases, the accused Mayor Jejomar C. Binay was a Municipal Mayor,

although in an acting or interim capacity, the Sandiganbayan, has, under Section 4 (e) 5, original jurisdiction over the cases therein filed against him. The allegation that Mayor Binay ought to have been classified with a salary grade lower than Grade "27", because at the time of the commission of the offenses charged he was paid a salary which merits a grade lower than Grade "27" does not hold water. In 1986 when the herein offenses were committed by the accused, the Compensation & Position Classification Act of 1989 was not as yet in existence. From the very definition of the very Act itself, it is evident that the Act was passed and had been effective only in 1989. The Grade classification of a public officer, whether at the time of the commission of the offense or thereafter, is determined by his classification under the Compensation & Position Classification Act of 1989. Thus since the accused Mayor Jejomar C. Binay was a Municipal Mayor at the time of the commission of the offenses and the Compensation & Position Classification Act of 1989 classifies Municipal Mayors as Grade "27", it is a conclusion beyond cavil that the Sandiganbayan has jurisdiction over the accused herein. As of July 1, 1989, when Republic Act No. 6758 took effect, Municipal Mayor Jejomar C. Binay had begun receiving a monthly salary of P15,180.00 which is equivalent to Grade "28" under the salary scale provided for in Section 27 of the said Act. Under the Index of Occupational Services, the position titles and salary grades of the Compensation & Position Classification system prepared by the Department of Budget and Management pursuant to Section 6 of Republic [A]ct No. 6758, the position of Municipal Mayor had been classified as Grade "27." 11 On July 7, 1995, petitioner filed the present petition for certiorari, prohibition and mandamus questioning the jurisdiction of the Sandiganbayan over Criminal Case Nos. 21001, 21005 and 21007. He prayed, among others, that the Court annul and set aside: (1) the Resolution of the Sandiganbayan dated June 6, 1995 reiterating the denial of the motion for reconsideration of the motion to quash; (2) the Resolution of the same court also dated June 6, 1995 reiterating the order suspending petitioner pendente lite; and (3) the Resolution of the Sandiganbayan dated July 4, 1995 denying the motion to refer case to the RTC. Petitioner also asked that the Court issue a temporary restraining order preventing the suspension and arraignment of petitioner. The Court on July 7, 1995, resolved, among others, to issue the temporary restraining order prayed for. On July 14, 1995, petitioner filed an "Addendum to Petition (To allow the introduction of alternative reliefs)," praying that, should this Court hold that the Sandiganbayan has jurisdiction over the cases, the criminal cases filed against him be dismissed just the same on the ground that the long delay of the preliminary investigation before the Ombudsman prior to the filing of the informations, deprived him of his right to due process; and that, moreover, there was no probable cause to warrant the filing of the informations.

G.R. No. 128136 Petitioner Mario Magsaysay is the Mayor of the Municipality of San Pascual, Batangas. Save for petitioner Vicente dela Rosa, all of Mayor Magsaysay's co-petitioners are officials of the same municipality. In a complaint dated April 16, 1994, Victor Cusi, then Vice-Mayor of San Pascual, Batangas, charged petitioners along with Elpidia Amada, Jovey C. Babago, and Brigido H. Buhain, also officials of San Pascual Batangas, with violation of R.A. No. 3019, as amended. The complaint charged the respondent municipal officials of overpaying Vicente de la Rosa of TDR Construction for the landscaping project of the San Pascual Central School. This case was docketed in the Office of the Ombudsman as OMB-1-941232. In a Resolution dated June 14, 1995, Graft Investigation Officer Lourdes A. Alarilla recommended the filing of an information for violation of Section 3(e) and (g) of R.A. No. 3019, as amended, against petitioners with the Sandiganbayan. Director Elvis John S. Asuncion concurred in the resolution, and Manuel C. Domingo, Deputy Ombudsman for Luzon, recommended approval of the same. The resolution was approved by then Acting Ombudsman Francisco A. Villa with the following marginal note: Authority is given to the Deputy Ombudsman for Luzon to cause the preparation of the information and to approve the same for filing with the proper court. 12 On August 11, 1995, an Information for violation of Section 3(e) and (g) was filed against petitioners and Jovey C. Babago, not with the Sandiganbayan per the June 14, 1995 Resolution, but with the RTC of Batangas City. The information was signed by Lourdes A. Alarilla, the same Graft Investigation Officer who recommended the filing of the information with the Sandiganbayan. In the meantime, a group denominated as the Concerned Citizens of San Pascual, Batangas filed a complaint before the Ombudsman against petitioners, and Elpidia Amada and Brigido Buhain, with violations of R.A. No. 3019. The complaint also alleged, among others, the overpricing of the landscaping project of San Pascual Central School. The case was docketed as OMB-0-94-0149. In a Resolution dated July 27, 1995, Graft Investigation Officer Ernesto M. Nocos recommended the filing of an information charging petitioners with violation of Section 3(e) and (g) of R.A. No. 3019, as amended "with the proper court." The resolution, which was recommended for approval by Nicanor J. Cruz, OIC-Deputy Ombudsman for Luzon, and approved by Ombudsman Aniano A. Desierto, adopted the findings and conclusions in the resolution in OMB-1-94-1232 that the landscaping project was overpriced.

On February 9, 1996, another Information for violation of Section 3(e)of R.A. No. 3019, as amended, was filed against petitioners for the overpricing of the landscaping project, this time before the Sandiganbayan. The information was subsequently amended on May 17, 1996. Except for the date the alleged crime was committed, the information charged essentially the same inculpatory facts as the information filed in the RTC. The case was docketed in the Sandiganbayan as Crim. Case No. 22378. On June 1, 1996, the accused filed with the Sandiganbayan a motion to quash the information in Crim. Case No. 22378 on the following grounds: that the Sandiganbayan had no jurisdiction over the case; that the accused were charged with the same offense in two informations; and that the proceedings in the Sandiganbayan would expose petitioners to double jeopardy. The Sandiganbayan denied the accused's motion to quash in a Resolution dated June 21, 1996. The court, however, suspended proceedings in the case until the Supreme Court resolved the question of the Sandiganbayan's jurisdiction involved in the Binay petition. Meanwhile, on June 7, 1996, Prosecutor Eric Mallonga filed a motion before the RTC to refer the R.A. No. 3019 case pending therein to the Sandiganbayan, arguing that under R.A. No. 7975 the Sandiganbayan, not the RTC, had jurisdiction over the case. On July 3, 1996, the RTC issued an order holding in abeyance the resolution of the motion to refer the case since the issue of jurisdiction was pending before the Sandiganbayan. Back at the Sandiganbayan, the prosecution, on July 24, 1996, filed a motion for reconsideration of the Sandiganbayan's Order dated June 21, 1996. On August 2, 1996, filed their own motion for the reconsideration of the same order. On October 22, 1996, the Sandiganbayan granted the motion for reconsideration filed by the prosecution and set the case for arraignment. Petitioners moved for a reconsideration of the October 22, 1996 Resolution ordering their arraignment, which motion was denied on February 17, 1997. On February 27, 1997, the accused filed the present petition. On October 1, 1997, the Court resolved to issue a temporary restraining order to prevent respondents from further proceeding with Crim. Case No. 23278 of the Sandiganbayan. The petition raises the following issues: I Had the Sandiganbayan been ousted of its jurisdiction over the case of municipal mayor after the passage of Republic Act No. 7975, coupled with the filing earlier of an information for the same offense before the Regional Trial Court having territorial jurisdiction and venue of the commission of the offense?

II Are the respondents Ombudsman and the prosecutors estopped by laches or waiver from filing and prosecuting the case before respondent Sandiganbayan after the filing earlier of the information in the proper court, thereafter repudiating it, seeking another court of the same category and finally to respondent court? III Whether or not the filing of two (2) informations for the same offense violated the rule on duplicity of information? IV Whether or not the trial to be conducted by respondent court, if the case shall not be dismissed, will expose the petitioners who are accused therein to double jeopardy? V Under the circumstances, are the respondent Ombudsman and the prosecutors guilty of forum shopping? 13 On October 6, 1997, the Court resolved to consolidate G.R. No. 128136 (the Magsaysay petition) with G.R. Nos. 120681-83 (the Binay petition). In resolving these consolidated petitions, the Court shall first address the common question of the Sandiganbayan's jurisdiction. I The Court rules that it is the Sandiganbayan which has jurisdiction over the subject cases. The informations against Mayor Binay were filed in the Sandiganbayan on July 7, 1994 pursuant to Presidential Decree No. 1606, 14 as amended by Presidential Decree No. 1861, 15 the pertinent provisions of which state: Sec. 4. Jurisdiction. The Sandiganbayan shall exercise: (a) Exclusive original jurisdiction in all cases involving: (1) Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII of the Revised Penal Code;

(2) Other offenses or felonies committed by public officers and employees in relation to their office, including those employed in government-owned or controlled corporations, whether simple or complexed with other crimes, where the penalty prescribed by law is higher than prision correccionalor imprisonment for six (6) years, or a fine of P6,000.00; PROVIDED, HOWEVER, that offenses or felonies mentioned in this paragraph where the penalty prescribed by law does not exceed prision correccional or imprisonment for six (6) years or a fine of P6,000.00 shall be tried by the proper Regional Trial Court, Metropolitan Trial Court and Municipal Circuit Trial Court. xxx xxx xxx On May 16, 1995, R.A. No. 7975 took effect. At this time, Mayor Binay had not yet been arraigned in the Sandiganbayan. On the other hand, R.A. No. 7975 was already in effect when the information against Mayor Magsaysay et al., was filed on August 11, 1995 in the RTC of Batangas City. Sec. 2 of R.A. No. 7975 amended Section 4 of P.D. No. 1606 to read as follows: Sec. 4. Jurisdiction. The Sandiganbayan shall exercise 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 of the Revised Penal Code, where one or more of the principal accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense: (1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as grade "27" and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), specifically including: (a) Provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial treasurers, assessors, engineers, and other provincial department heads; (b) City mayors, vice-mayors, members of the sangguniang panlunsod, city treasurers, assessors, engineers, and other city department heads; (c) Officials of the diplomatic service occupying the position of consul and higher;

(d) Philippine army and air force colonels, naval captains, and all officers of higher rank; (e) PNP chief superintendent and PNP officers of higher rank; (f) City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor; (g) Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations; (2) Members of Congress and officials thereof classified as Grade "27" and up under the Compensation and Position Classification Act of 1989; (3) Members of the judiciary without prejudice to the provisions of the Constitution; (4) Chairmen and members of Constitutional Commissions, without prejudice to the provisions of the Constitution; and (5) All other national and local officials classified as Grade "27" and higher under the Compensation and Position Classification Act of 1989. b. Other offenses or felonies committed by the public officials and employees mentioned in subsection (a) of this section in relation to their office. c. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A. In cases where none of the principal accused are occupying positions corresponding to salary grade "27" or higher, as prescribed in the said Republic Act No. 6758, or PNP officers occupying the rank of superintendent or higher, or their equivalent, exclusive jurisdiction thereof shall be vested in the proper Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court, and Municipal Circuit Trial Court, as the case may be, pursuant to their respective jurisdiction as provided in Batas Pambansa Blg. 129. xxx xxx xxx

While the cases against petitioners were pending in this Court, Congress enacted R.A. No. 8249, again redefining the jurisdiction of the Anti-Graft Court. This law took effect, per Section 10 thereof, on February 23, 1997, fifteen days after its complete publication on February 8, 1997 in the Journal and Malaya, two newspapers of general circulation. As further amended by Section 4 of R.A. No. 8249, Section 4 of P.D. No. 1606 now reads: 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 position of regional director and higher, otherwise classified as grade "27" and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), specifically including: (a) Provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial treasurers, assessors, engineers, and other provincial department heads; (b) City mayors, vice-mayors, members of the sangguniang panlunsod, city treasurers, assessors, engineers, and other city department heads; (c) Officials of the diplomatic service occupying the position of consul and higher; (d) Philippine army and air force colonels, naval captains, and all officers of higher rank; (e) Officers of the Philippine National Police while occupying the position of provincial director and those holding the rank of senior superintendent or higher; (f) City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor;

(g) Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations. (2) Members of Congress and officials thereof classified as Grade "27" and up under the Compensation and Position Classification Act of 1989; (3) Members of the judiciary without prejudice to the provisions of the Constitution; (4) Chairmen and members of Constitutional Commissions, without prejudice to the provisions of the Constitution; and (5) All other national and local officials classified as Grade "27" and higher under the Compensation and Position Classification Act of 1989. b. Other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in subsection (a) of this section in relation to their office. d. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986. In cases where none of the accused are occupying positions corresponding to salary grade "27" or higher, as prescribed in the said Republic Act 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 jurisdictions as provided in Batas Pambansa Blg. 129, as amended. Petitioners contend that they do not come under the exclusive original jurisdiction of the Sandiganbayan because: (1) At the alleged time of the commission of the crimes charged, petitioner municipal mayors were not classified as Grade 27. (2) Municipal mayors are not included in the enumeration in Section 4a(1) of P.D. No. 1606, as amended by R.A. No. 7975. (3) Congressional records reveal that the law did not intend municipal mayors to come under the exclusive original jurisdiction of the Sandiganbayan. A

In support of his contention that his position was not that of Grade 27, Mayor Binay argues: . . . The new law's consistent and repeated reference to salary grades show[s] an intention to base the separation of jurisdiction between the Sandiganbayan and the regular courts on pay scale. Grades are determined by compensation. The essence of grades is pay scales. Therefor, pay scales determine grades. 16 Mayor Binay, thus, presented a Certification 17 from the City Personnel Officer of Makati stating that petitioner as mayor received a monthly salary of only P10,793.00 from March 1987 to December 31, 1988. This amount was supposedly equivalent to Grade 22 under R.A. No. 6758. Mayor Magsaysay, for his part, submitted a similar Certification 18 from the Municipal Treasurer of San Pascual, Batangas, stating: . . . that the basic monthly salary received by Mario C. Magsaysay Municipal Mayor of San Pascual, Batangas with Salary Grade 27 is ELEVEN THOUSAND EIGHT HUNDRED TWENTY EIGHT PESOS (P11,828.00) per month as of November 3, 1993 equivalent only to Grade 25, Step 5 of RA 6758, the Compensation and Position Classification Act of 1989. Sec. 444(1) (Grad[e] 27) of RA 6758 is not as yet implemented due to budgetary constraints. This certification is issued to Mayor Mario C. Magsaysay this 30th day of May 1996 at San Pascual, Batangas for whatever legal purpose and/or purposes it may serve. The Court does not subscribe to the manner by which petitioners classify Grades. The Constitution 19 states that in providing for the standardization of compensation of government officials and employees, Congress shall take "into account the nature of the responsibilities pertaining to, and the qualifications required for their positions," thus: The Congress shall provide for the standardization of compensation of government officials, including those in government-owned or controlled corporations with original charters, taking into account the nature of the responsibilities pertaining to, and the qualifications required for their positions. Corollary thereto, Republic Act No. 6758 20 provides in Section 2 thereof that differences in pay are to be based"upon substantive differences in duties and responsibilities, and qualification requirements of the positions." In short, the nature of an official's position should be the determining factor in the fixing of his or her salary. This is not only mandated by law but dictated by logic as well.

Consistent with these policies, the law employs the scheme known as the "grade" defined in Presidential Decree No. 985 21 as including . . . all classes of positions which, although different with respect to kind or subject matter of work, are sufficiently equivalent as to level of difficulty and responsibilities and level of qualification requirements of the work to warrant the inclusion of such classes of positions within one range of basic compensation. 22 The grade, therefore, depends upon the nature of one's position the level of difficulty, responsibilities, and qualification requirements thereof relative to that of another position. It is the official's Grade that determines his or her salary, not the other way around. It is possible that a local government official's salary may be less than that prescribed for his Grade since his salary depends also on the class and financial capability of his or her respective local government unit. 23Nevertheless, it is the law which fixes the official's grade. Thus, Section 8 of R.A. No. 6758 fixes the salary grades of the President, VicePresident, Senate President, Speaker, Chief Justice, Senators, Members of the House of Representatives, Associate Justices of the Supreme Court, as well as the Chairmen and Members of the Constitutional Commissions. Section 8 also authorizes the Department of Budget and Management (DBM) to "determine the officials who are of equivalent rank to the foregoing officials, where applicable" and to assign such officials the same Salary Grades subject to a set of guidelines found in said section. For positions below those mentioned under Section 8, Section 9 instructs the DBM to prepare the "Index of Occupational Services" guided by the Benchmark Position prescribed in Section 9 and the factors enumerated therein. To determine whether an official is within the exclusive original jurisdiction of the Sandiganbayan, therefore, reference should be made to R.A. No. 6758 and the Index of Occupational Services, Position Titles and Salary Grades. Salary level is not determinative. An official's grade is not a matter of proof, but a matter of law, of which the Court must take judicial notice. 24 As both the 1989 and 1997 versions of the Index of Occupational Services, Position Titles and Salary Grades list the Municipal Mayor under Salary Grade 27, petitioner mayors come within the exclusive original jurisdiction of the Sandiganbayan. Petitioner mayors are "local officials classified as Grade "27" and higher under the Compensation and Position Classification Act of 1989," under the catchall provision, Section 4a(5) of P.D. No. 1606, as amended by R.A. No. 7975. More accurately, petitioner mayors are "[o]fficials 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," under Section 4a(1) of P.D. No. 1606, as amended by R.A. No. 7975. 25 B Petitioners, however, argue that they are not included in the enumeration in Section 4a(1). They invoke the rule in statutory construction expressio unius est expressio alterius. As what is not included in those enumerated is deemed excluded, municipal officials are excluded from the Sandiganbayan's exclusive original jurisdiction. Resort to statutory construction, however, is not appropriate where the law is clear and unambiguous. 26 The law is clear in this case. As stated earlier, Section 4a(1) of P.D. No. 1606, as amended by R.A. No. 7975, speaks of "[o]fficials 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." The Court fails to see how a different interpretation could arise even if the plain meaning rule were disregarded and the law subjected to interpretation. The premise of petitioners' argument is that the enumeration in Section 4a(1) is exclusive. It is not. The phrase "specifically including" after "[o]fficials 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" necessarily conveys the very idea of non-exclusivity of the enumeration. The principle of expressio unius est exclusio alterius does not apply where other circumstances indicate that the enumeration was not intended to be exclusive, 27 or where the enumeration is by way of example only. 28 In Conrado B. Rodrigo, et al. vs. The Honorable Sandiganbayan (First Division), supra, the Court held that the catchall in Section 4a(5) was "necessary for it would be impractical, if not impossible, for Congress to list down each position created or will be created pertaining to Grades 27 and above." The same rationale applies to the enumeration in Section 4a(1). Clearly, the law did not intend said enumeration to be an exhaustive list. Should there be any doubt as to whether petitioner mayors are under the category of Grade 27, Section 444(d) of the Local Government Code settles the matter: The municipal mayor shall receive a minimum monthly compensation corresponding to Salary Grade twenty-seven (27) as prescribed under R.A. No. 6758 and the implementing guidelines issued pursuant thereto. In the Court's Resolution in Rodrigo dated July 2, 1999 denying the motion for reconsideration, we treated the above provision as "confirmatory of the Salary Grade assigned by the DBM to Municipal Mayors." C

Petitioner Binay cites previous bills 29 in Congress dealing with the jurisdiction of the Sandiganbayan. These bills supposedly sought to exclude municipal officials from the Sandiganbayan's exclusive original jurisdiction to relieve these officials, especially those from the provinces, of the financial burden brought about by trials in Manila. The resort to congressional records to determine the proper application of the law in this case is unwarranted in this case for the same reason that the resort to the rule of inclusio unius est expressio alterius is inappropriate. Verily, the interpretation of the law desired by the petitioner may be more humane but it is also an elementary rule in statutory construction that when the words and phrases of the statute are clear and unequivocal, their meaning must be determined from the language employed and the statute must be taken to mean exactly what it says. (Baranda v. Gustilo, 165 SCRA 758-759 [1988]). The courts may not speculate as to the probable intent of the legislature apart from the words (Aparri v. CA, 127 SCRA 233 [1984]). When the law is clear, it is not susceptible to interpretation. It must be applied regardless of who may be affected, even if the law may be harsh or onerous. (Nepomuceno, et al. v. FC, 110 Phil. 42). And even granting that exceptions may be conceded, the same as a general rule, should be strictly but reasonably construed; they extend only so far as their language fairly warrants, and all doubts should be resolved in favor of the general provisions rather than the exception. Thus, where a general rule is established by statute, the court will not curtail the former nor add to the latter by implication (Samson v. C.A., 145 SCRA 654 [1986]). 30 Thus, in Rodrigo, petitioners therein argued in their motion for reconsideration: . . . that the inclusion of Municipal Mayors within the jurisdiction of the Sandiganbayan would be inconvenient since the witnesses in their case would come from Baguio City and San Nicolas, Pangasinan. This, according to petitioners, would defeat one of the purposes of R.A. No. 7975, that is, the convenience of the accused. The Court, in denying the motion for reconsideration, held, among others, that: The legislature has nevertheless chosen the mode and standard by which to implement its intent, and courts have no choice but to apply it. Congress has willed that positions with Grade 27 and above shall come within the jurisdiction of the Sandiganbayan and this Court is duty-bound to obey the congressional will. Petitioner Binay also quotes the Sponsorship Speech of Senator Roco, stating:

Since February 1979, when the Sandiganbayan was established up to the present, the Court has been confronted with the problem of those accused who are of limited means who stand trial for "petty crimes," the so-called "small fry" the barangay officials, the municipal officials and employees, postal clerks and letter carriers and the like who are involved with "nickel-and-dime" cases and money-related cases such as malversation, estafa and theft. . . .1wphi1.nt xxx xxx xxx Senate Bill No. 1353 modifies the present jurisdiction of the Sandiganbayan such that only those occupying high positions in the Government and the military fall under the jurisdiction of the court. 31 It is not clear, however, whether Senator Roco meant that all municipal officials are excluded from the jurisdiction of the Sandiganbayan. In any case, courts are not bound by a legislator's opinion in congressional debates regarding the interpretation of a particular legislation. It is deemed a mere personal opinion of the legislator. 32Such opinions do not necessarily reflect the view of the entire Congress. 33 D From the foregoing discussion, it is clear that the cases against petitioner Binay cannot be referred to the regular courts under Section 7 of R.A. No. 7975, which provides: Sec. 7. Upon effectivity of this Act, all criminal cases in which trial has not begun in the Sandiganbayan shall be referred to the proper courts. In construing the correct import of Section 7, it may be helpful to refer to the guidelines in determining jurisdiction laid down in Bengzon vs. Inciong: 34 The rule is that where a court has already obtained and is exercising jurisdiction over a controversy, its jurisdiction to proceed to the final determination of the cause is not affected by new legislation placing jurisdiction over such proceedings in another tribunal. The exception to the rule is where the statute expressly provides, or is construed to the effect that it is intended to operate as to actions pending before its enactment. Where a statute changing the jurisdiction of a court has no retroactive effect, it cannot be applied to a case that was pending prior to the enactment of the statute. R.A. No. 7975, by virtue of Section 7, belongs to the exception rather than the rule. The provision is transitory in nature and expresses the legislature's intention to apply its provisions on jurisdiction to "criminal cases in which trial has not begun in the Sandiganbayan." To this extent, R.A. 7975 is retroactive.

Such a transitory provision is not peculiar to R.A. No. 7975; similar provisions are found in other laws reallocating the jurisdiction of the courts. 35 There is no reason why Section 7 of R.A. No. 7975 should be any different. The term "proper courts," as used in Section 7, means "courts of competent jurisdiction," and such jurisdiction is defined in Section 4 of P.D. No. 1606, as amended by R.A. No. 7975. The former should not be read in isolation but construed in conjunction with the latter. The term "proper courts" as used in Section 7, therefore, is not restricted to "regular courts," but includes as well the Sandiganbayan, a special court. If the intent of Congress were to refer all cases the trials of which have not begun to the regular courts, it should have employed the term "proper regular courts" or "regular courts" instead of "proper courts." Accordingly, the law in the third paragraph of Section 4 of P.D. No. 1606, as amended by Section 2 of R.A. No. 7975, uses the term "regular courts," not "proper courts": The Sandiganbayan shall exercise exclusive appellate jurisdiction on appeals from the final judgments, resolutions or orders of regular courts where all the accused are occupying positions lower than salary grade "27," or not otherwise covered by the preceding enumeration. [emphasis supplied.] Construed thus, the effects of Section 7 may be summarized as follows: 1. If trial of cases before the Sandiganbayan has already begun as of the approval of R.A. No. 7975, R.A. No. 7975 does not apply. 2. If trial of cases before the Sandiganbayan has not begun as of the approval of R.A. No. 7975, then R.A. No. 7975 applies. (a) If by virtue of Section 4 of P.D. No. 1606, as amended by Section 2 of R.A. No. 7975, the Sandiganbayan has jurisdiction over a case before it, then the cases shall be referred to the Sandiganbayan. (b) If by virtue of Section 4 of P.D. No. 1606, as amended by Section 2 of R.A. No. 7975, the Sandiganbayan has no jurisdiction over a case before it, the case shall be referred to the regular courts. The trial of the cases involving Mayor Binay had not yet begun as of the date of the approval of R.A. No. 7975; consequently, the Anti-Graft Court retains jurisdiction over said cases.

In any case, whatever seeming ambiguity or doubt regarding the application of Section 7 of R.A. No. 7975 should be laid to rest by Section 7 of R.A. No. 8249, which states: Sec. 7. Transitory Provision. This Act shall apply to all cases pending in any court over which trial has not begun as of the approval hereof. The latter provision more accurately expresses the legislature's intent and in any event should be applied in this case, R.A. No. 8249 having superseded R.A. No. 7975. In Panfilo M. Lacson vs. The Executive Secretary, et al., 36 the Court explained the purpose of the foregoing provision. . . . it can be reasonably anticipated that an alteration of [the Sandiganbayan's] jurisdiction would necessarily affect pending cases, which is why it has to provide for a remedy in the form of a transitory provision. . . . . The transitory provision does not only cover cases which are in the Sandiganbayan but also in "any court." . . . . Moreover, those cases where trial had already begun are not affected by the transitory provision under Section 7 of the new law (RA 8249). [Emphasis in the original.] The possible disruptive effect of the amendments to the Sandiganbayan's jurisdiction on pending cases was, therefore, not lost on the legislature. Congress has, furthermore, deemed the commencement of the trial as the crucial point in determining whether a court retains a case pending before it or lose the same on the ground of lack of jurisdiction per the provisions of R.A. No. 8249. The law obviously does not want to waste the time and effort already devoted to the presentation of evidence if trial had already begun. On the other hand, not much disruption would be caused if the amendment were made to apply to cases the trials of which have yet to start. The ramifications of Section 7 of R.A. No. 8249 may be stated as follows: 1. If trial of the cases pending before whatever court has already begun as of the approval of R.A. No. 8249, said law does not apply. 2. If trial of cases pending before whatever court has not begun as of the approval of R.A. No. 8249, then said law applies. (a) If the Sandiganbayan has jurisdiction over a case pending before it, then it retains jurisdiction. (b) If the Sandiganbayan has no jurisdiction over a case pending before it, the case shall be referred to the regular courts.

(c) If the Sandiganbayan has jurisdiction over a case pending before a regular court, the latter loses jurisdiction and the same shall be referred to the Sandiganbayan. (d) If a regular court has jurisdiction over a case pending before it, then said court retains jurisdiction. Thus, under both R.A. Nos. 7975 and 8429, the Sandiganbayan retains jurisdiction over said cases. II Petitioner Binay avers in his Addendum to Petition that his right to speedy disposition has been violated by the inordinate delay in the resolution of the subject cases by the Ombudsman. Art. III of the Constitution provides that: Sec. 16. All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies. The constitutional right to "a speedy disposition of cases" is not limited to the accused in criminal proceedings but extends to all parties in all cases, including civil and administrative cases, and in all proceedings, including judicial and quasi-judicial hearings. 37 Hence, under the Constitution, any party to a case may demand expeditious action on all officials who are tasked with the administration of justice. 38 However, the right to a speedy disposition of a case, like the right to speedy trial, 39 is deemed violated only when the proceedings is attended by vexatious, capricious, and oppressive delays; or when unjustified postponements of the trial are asked for and secured, or when without cause or justifiable motive a long period of time is allowed to elapse without the party having his case tried. 40 Equally applicable is the balancing test used to determine whether a defendant has been denied his right to a speedy trial, or a speedy disposition of a case for that matter, in which the conduct of both the prosecution and the defendant is weighed, and such factors as 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. 41 The concept of speedy disposition is a relative term and must necessarily be a flexible concept. 42 A mere mathematical reckoning of the time involved, therefore, would not be sufficient. 43 In the application of the constitutional guarantee of the right to speedy disposition of cases, particular regard must also be taken of the facts and circumstances peculiar to each case. 44 In Tatad vs. Sandiganbayan, 45 the Court held that the length of delay and the simplicity of the issues did not justify the delay in the disposition of the cases therein. The

"unexplained inaction" 46 of the prosecutors called for the dismissal of the cases against petitioner Tatad. In Alvizo vs. Sandiganbayan, 47 the Court also ruled that there was no violation of the right to 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 likewise considered the failure of the accused to assert such right, and the lack of prejudice caused by the delay to the accused. In Santiago vs. Garchitorena, 48 the complexity of the issues and the failure of the accused to invoke her right to speedy disposition at the appropriate time spelled defeat to her claim to the constitutional guarantee. In Cadalin vs. POEA's Administrator, 49 the Court, considering also the complexity of the cases ("not run-of-the-mill variety") and the conduct of the parties' lawyers, held that the right to speedy disposition was not violated therein. In petitioner Binay's case, the Court finds that there was no undue delay in the disposition of the subject cases. The proceedings conducted before the Office of the Tanodbayan, and later with the Office of the Ombudsman, adequately explains the length of the delay: 1. That on July 27, 1988 Bobby Brillante filed with the Office of the Tanodbayan an affidavit-complaint charging, Jejomar Binay, Sergio Santos, Roberto Chang, Delfin Almeda, Nelson Irasga, Nicasio Santiago, Feliciano Basam, Maria Chan, Romeo Barrios, Azucena Diaz, Virgilio Clarete, Godofredo Marcelo, Armando San Miguel, Salvador Pangilinan and John Does of the following offenses: (a) Massive Malversation of Public Funds; (b) Multiple Falsification of Public Documents; (c) Usurpation of Official Functions; (d) Violation of Election Law; and (e) Violation of Sec. 3(e) of R.A. 3019. 1.1. Brillante's complaint was based on the initial findings and observations of the COA on the examination of the cash and accounts covering transactions from April 1, 1987 to January 4, 1988 and Post-Audit of Selected Accounts for the last quarter of 1987 of the Municipality of Makati contained in its Report dated January 11, 1988. The COA furnished

the Tanodbayan a copy of this report on August 1, 1988 upon request of the latter. 1.2. In the letter of the COA transmitting a copy of the report, the Tanodbayan was informed that this COA audit report of January 11, 1988 is not yet released since the Mayor of Makati was given thirty days within which to explain/clarify the findings in the report and is subject to change or modification depending upon the explanation/clarification to be submitted by the Mayor of Makati. Because of this the information from the COA the preliminary investigation was held in abeyance until the submission of the final report. 1.3. On March 1, 1989, the first part of the Final Report on Audit of Makati was received by the Office of the Ombudsman and was transmitted for purposes of the ensuring preliminary investigation to the Tanodbayan which received the same on March 22, 1989. 1.4. This first part of the Final Report contained the fifteen (15) adverse findings, above elsewhere stated as the basis of Bobby Brillante's complaint. 1.5. Eleven (11) COA auditors participated in the documentation and analysis of its findings and preparation of the final report. 1.6. The first part of the final report was followed by a Supplemental Report on Findings No. 1 and 3. This Supplemental Report is dated July 3, 1989. 2. After securing machine copies of the voluminous documents supporting the COA findings, Pros. Margarito Gervacio, Chairman of the Panel of Prosecutors, issued the corresponding subpoena directing the respondents to submit their respective counter-affidavits. 2.1. In compliance with the subpoena, Mayor Jejomar Binay submitted his counter-affidavit on May 18, 1990, Marissa Chan, Feliciano

Bascon, Nicanor Santiago, Jr. on June 19, 1990, Renato Manrique on June 4, 1990, Alfredo Ignacio on June 6, 1990, Roberto Chang on August 27, 1990. Feliciano Bascon submitted his Supplemental Affidavit on November 22, 1990. 2.2. Thereafter, clarificatory examinations were conducted on September 27, 1990, October 26, 1990, November 8, 9, 14, 22, 1990. 3. On January 15, 1991 Mayor Jejomar Binay submitted a copy of this Petition forCertiorari in G.R. No. 92380 which he and the municipality of Makati filed with the Supreme Court against COA Chairman, Eufemio Domingo and the Commission on Audit, with a manifestation that said petition is submitted to support Binay's stand as regard COA Finding No. 9 aforestated. 4. On April 2, 1992 respondent Marissa Chan filed an affidavit containing allegations incriminating Jejomar Binay; 5. Upon being ordered to comment on the said April 2, 1992 affidavit of Marissa Chan, Jejomar Binay submitted his comment thereto on April 30, 1992. 6. On August 4, 1993, the Investigation Panel submitted to the Deputy Special Prosecutor its Resolution disposing the preliminary investigation of the case. 6.1. On August 10, 1993 the said Resolution was approved by the Special Prosecutor, who forwarded the same and the entire records to the Office of the Ombudsman for review and/or final action. 6.2. On August 16, 1994, the Review Panel of the Ombudsman submitted to the latter its review action for approval. 6.3. On August 19, 1994; the Ombudsman approved some of the recommendations of the Review Panel and directed the preparation and filing of the informations. 50

Furthermore, the prosecution is not bound by the findings of the Commission on Audit (COA); it must rely on its own independent judgment in the determination of probable cause. Accordingly, the prosecution had to conduct its own review of the COA findings. Judging from said findings, we find that the cases were sufficiently complex, thus justifying the length of time for their resolution. As held by the Sandiganbayan in its Resolution dated March 29, 1995 denying the Motion to Quash: 2. Ten charges are involved in these cases and the prosecution, unable to rely on the raw findings of the Commission on Audit in 15 reports caused the investigation and examination of thousands of vouchers, payrolls, and supporting documents considering that no less than the Chairman of the Commission on Audit, assisted by a team supervisor and 10 team members had to take part in the conduct of a final audit consisting of evaluation and analysis of the initial findings in the 15 raw reports, the cases must have involved complicated legal and factual issues which do warrant or justify a longer period of time for preliminary investigation. xxx xxx xxx 5. In the TATAD case, the preliminary investigation was resolved close to three (3) years from the time all the counter-affidavits were submitted to the Tanodbayan, notwithstanding the fact that very few documentary and testimonial evidence were involved. In the above-entitled cases, the preliminary investigation of all ten (10) cases was terminated in merely two (2) years and four (4) months from the date Mayor Binay filed his last pleading, on April 30, 1992. 51 Petitioner claims that the Resolution of the Sandiganbayan ordering his suspension pendente lite is unwarranted since the informations charging him were not valid. This contention, however, must fail in view of our pronouncement that there was no delay in the resolution of the subject cases in violation of his right to speedy disposition. Accordingly, the informations in question are valid and petitioner's suspension pendente lite must be upheld. Finally, whether or not there is probable cause to warrant the filing of the subject cases is a question best left to the discretion of the Ombudsman. Absent any grave abuse of such discretion, the Court will not interfere in the exercise thereof. 52 Petitioner in this case has failed to establish any such abuse on the part of the Ombudsman. III

Having ruled that the criminal case against petitioners in G.R. No. 128136 is within the exclusive original jurisdiction of the Sandiganbayan, the Court will now dispose of the following issues raised by them: (1) The Sandiganbayan was ousted of its jurisdiction by the filing of an information alleging the same facts with the Regional Trial Court. (2) Respondents are estopped from filing an information before the Sandiganbayan considering that they had already filed another information alleging the same facts before the Regional Trial Court. (3) The filing of the information before the Sandiganbayan constitutes double jeopardy. The Court tackles these arguments successively then deals with the questions of duplicity of information and forum shopping. Petitioners invoke the rule that "the jurisdiction of a court once it attaches cannot be ousted by subsequent happenings or events, although of such character which would have prevented jurisdiction from attaching in the first instance." 53 They claim that the filing of the information in the Sandiganbayan was a "subsequent happening or event" which cannot oust the RTC of its jurisdiction. This rule has no application here for the simple reason that the RTC had no jurisdiction over the case. Jurisdiction never attached to the RTC. When the information was filed before the RTC, R.A. No. 7975 was already in effect and, under said law, jurisdiction over the case pertained to the Sandiganbayan. Neither can estoppel be successfully invoked. First, jurisdiction is determined by law, not by the consent or agreement of the parties or by estoppel. 54 As a consequence of this principle, the Court held in Zamora vs. Court of Appeals 55 that: It follows that as a rule the filing of a complaint with one court which has no jurisdiction over it does not prevent the plaintiff from filing the same complaint later with the competent court. The plaintiff is not estopped from doing so simply because it made a mistake before in the choice of the proper forum. In such a situation, the only authority the first court can exercise is to dismiss the case for lack of jurisdiction. This has to be so as a contrary conclusion would allow a party to divest the competent court of its jurisdiction, whether erroneously or even deliberately, in derogation of the law. It is true that the Court has ruled in certain cases 56 that estoppel prevents a party from questioning the jurisdiction of the court that the party himself invoked. Estoppel, however, remains the exception rather than the rule, the rule being that jurisdiction is vested by law. 57 Even in those instances where the Court applied estoppel, the party estopped consistently invoked the jurisdiction of the court and actively participated in

the proceedings, impugning such jurisdiction only when faced with an adverse decision. This is not the case here. After discovering that a similar information had earlier been filed in the RTC, respondents promptly asked the trial court to refer the case to the Sandiganbayan, which motion was followed by a motion to resolve the previous motion. There was no consistent invocation of the RTC's jurisdiction. There were no further proceedings after the filing of the information save for the motion to refer the case precisely on the ground of lack of jurisdiction, and the motion to resolve the earlier motion. Finally, the trial court had not rendered any decision, much less one adverse to petitioners. Second, petitioners cannot hold respondents in estoppel for the latter are not themselves party to the criminal action. In a criminal action, the State is the plaintiff, for the commission of a crime is an offense against the State. Thus, the complaint or information filed in court is required to be brought in the name of the "People of the Philippines." 58 Even then, the doctrine of estoppel does not apply as against the people in criminal prosecutions.59 Violations of the Anti-Graft and Corrupt Practices Act, like attempted murder, 60 is a public offense. Social and public interest demand the punishment of the offender; hence, criminal actions for public offenses can not be waived or condoned, much less barred by the rules of estoppel. 61 The filing of the information in the Sandiganbayan did not put petitioners in double jeopardy even though they had already pleaded "not guilty" to the information earlier filed in the RTC. The first jeopardy never attached in the first place, the RTC not being not being a court of competent jurisdiction. There can be no double jeopardy where the accused entered a plea in a court that had no jurisdiction. 62 The remedy of petitioners, therefore, was not to move for the quashal of the information pending in the Sandiganbayan on the ground of double jeopardy. 63 Their remedy was to move for the quashal of the information pending in the RTC on the ground of lack of jurisdiction. 64 The contention that the filing of the information in the Sandiganbayan violated the rule against duplicitous informations is patently unmeritorious. That rule presupposes that there is one complaint or information charging not one offense, but two or more offenses. Thus, Rule 110 of the Rules of Court states: Sec. 13. Duplicity of offense. A complaint or information must charge but one offense, except only in those cases in which existing laws prescribe a single punishment for various offenses. Non-compliance with this rule is a ground for quashing the duplicitous complaint or information under Rule 117: Sec. 3. Grounds. The accused may move to quash the complaint or information on any of the following grounds: xxx xxx xxx

(e) That more than one offense is charged except in those cases in which existing laws prescribe a single punishment for various offenses; xxx xxx xxx Here, petitioners are faced not with one information charging more than one offense but with more than one information charging one offense. The Court does not find the prosecution guilty of forum-shopping. Broadly speaking, forum shopping exists when, as a result of an adverse opinion in one forum, a party seeks a favorable opinion (other than by appeal orcertiorari) in another, or when he institutes two or more actions or proceedings grounded on the same cause, on the gamble that one or the other court would make a favorable disposition. 65 We discern no intent on the part of the State, in filing two informations in two different courts, to "gamble that one or the other court would make a favorable disposition." Obviously, respondents got their signals crossed. One set of officials, after investigating a complaint filed by the Vice-Mayor of San Pascual, Batangas charging petitioners of overpricing, filed the information for violation of Section 3(e) of R.A. No. 3019 in the RTC. Another set of officials investigated another complaint from the Concerned Citizens Group accusing petitioners of, among others, overpricing the same project subject of the previous complaint. Finding probable cause, the second set of officials instituted the criminal action, charging the same offense and alleging essentially the same facts as the first, this time in the Sandiganbayan. Later learning of the procedural faux pas, respondents without undue delay asked the RTC to refer the case to the Sandiganbayan. WHEREFORE, the consolidated petitions are hereby DISMISSED. G.R. No. 117970 July 28, 1998 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ULYSSES M. CAWALING, ERNESTO TUMBAGAHAN, RICARDO DE LOS SANTOS, and HILARIO CAJILO,accused-appellants.

PANGANIBAN, J.: It is axiomatic that once an accused-appellant admits killing the victim, he bears the burden of establishing the presence of any circumstance like self-defense, performance of a lawful duty or, for that matter, double jeopardy, which may relieve him of responsibility, or which may mitigate his criminal liability. 1 If he fails to discharge this

burden, his conviction becomes inevitable. In this Decision, we also reiterate the following doctrines: (1) the regional trial court, not the Sandiganbayan, has jurisdiction over informations for murder committed by public officers, including a town mayor; (2) the assessment of trial courts on the credibility of witnesses and their testimonies deserve great respect; (3) the equipoise rule cannot be invoked where the evidence of the prosecution is overwhelming; (4) alibi cannot be believed in the face of credible testimony identifying the appellants; and (5) conspiracy may be proven by circumstantial evidence. The Case Before us is an appeal from the 34-page Decision 2 dated October 21, 1994, promulgated by the Regional Trial Court of Romblon in Criminal Case No. OD-269. Convicted of murder were former Mayor Ulysses M. Cawaling and Policemen Ernesto Tumbagahan, 3 Ricardo De los Santos and Hilario Cajilo. Prior to the institution of the criminal case against all the appellants, an administrative case 4 had been filed before the National Police Commission, in which Policemen Ernesto Tumbagahan, Ricardo De los Santos, Hilario Cajilo (three of herein appellants) and Andres Fontamillas were charged by Nelson Ilisan 5 with the killing of his brother Ronie 6 Ilisan. On April 6, 1986, Adjudication Board No. 14 7 rendered its Decision which found Tumbagahan, De los Santos, Cajilo and Fontamillas guilty of grave misconduct and ordered their dismissal from the service with prejudice. 8 On June 26, 1986, the Board issued a resolution, 9 dismissing the respondents' motion for reconsideration for lack of merit. Subsequently, on June 4, 1987, Second Assistant Provincial Fiscal Alexander Mortel filed, before the Regional Trial Court (RTC) of Odiongan, Romblon, 10 an Information for murder 11 against the appellants and Andres Fontamillas. The accusatory portion reads: That on or about the 4th day of December 1982, at around 9:00 o'clock in the evening, in the Poblacion, [M]unicipality of San Jose, [P]rovince of Romblon, Philippines, and within the jurisdiction of this Honorable Court, the said accused, with intent to kill, conspiring, confederating and mutually helping one another, did then and there, by means of treachery and with evident premeditation and taking advantage of their superior strenght [sic] willfully, unlawfully and feloniously attack, assault and shoot RONIE ILISAN, with the use of firearms, inflicting upon the latter multiple mortal injuries in different parts of his body which were the direct and immediate cause of his death. Accused Tumbagahan, De los Santos, Cajilo and Fontamillas, with the assistance of their lawyers Atty. Abelardo V. Calsado and Juanito Dimaano, pleaded not guilty when arraigned on February 15, 1988; 12 while Accused Cawaling, assisted by Counsel Jovencio Q. Mayor, entered a plea of not guilty on March 16, 1988. 13

After due trial, 14 the court a quo 15 rendered its Decision dated October 21, 1994, 16 the decretal portion of which reads: WHEREFORE, this Court finds the accused (1) ULYSSES M. CAWALING, (2) ERNESTO TUMBAGAHAN, (3) RICARDO DELOS SANTOS, (4) HILARIO CAJILO, AND (5) ANDRES FONTAMILLAS GUILTY beyond reasonable doubt of the crime of MURDER under the Information, dated June 4, 1987, and sentences each of them to suffer the penalty of reclusion perpetua, with the accessory penalties of the law. The accused, jointly and severally, are ORDERED to pay Nelson Elisan the sum of P6,000.00 as actual damages and the heirs of the deceased Ronie Elisan the sums of P116,666.66 by way of lost earnings and P50,000.00 as indemnity for death, without subsidiary imprisonment in case of insolvency, and to pay the costs. The bail bonds of all the accused are ORDERED CANCELLED and all said accused ORDERED immediately confined in jail. The slug (Exh. A); the .38 caliber revolver (with 3 empty shells and 3 live bullets) (Exh. G); and the slug of bullet (Exh. H) are confiscated in favor of the government. After the judgment has become final, the Officer-in-Charge, Office of the Clerk of Court, this Court, is ordered to deliver and deposit the foregoing Exhibits A, F, G and H, inclusive, to the Provincial Director, PNP, of the Province of Romblon properly receipted. Thereafter, the receipt must be attached to the record of the case and shall form part of the record. The period of preventive imprisonment the accused had undergone shall be credited in their favor to its full extent pursuant to Article 29 of the Revised Penal Code, as amended. The case against co-accused ALEX BATUIGAS who is at large is ORDERED ARCHIVED pending his arrest.17 Hence, this appeal. 18 The Facts Version of the Prosecution The trial court gives this summary of the facts as viewed by the prosecution witnesses: The killing occurred on December 4, 1982 at around 9:00 o'clock in the evening at the ricefield of Poblacion, San Jose, Romblon when the bright

moon was already above the sea at an angle of about 45 degrees, or if it was daytime, it was about 9:00 o'clock in the morning (Imelda Elisan Tumbagahon, on direct examination, tsn, Jan. 17, 1989, p. 5, and on cross examination, tsn, April 18, 1989, p. 22). On December 4, 1982, about 8:00 o'clock or 8:30 o'clock in the evening, Vicente Elisan and his elder brother Ronie Elisan, the victim, were drinking tuba at C & J-4 Kitchenette of co-accused Andres Fontamillas in Poblacion, San Jose, Romblon. When they stood up to go home, Luz Venus, the wife of Diosdado Venus, told them not to go out because the accused were watching them outside about three (3) meters from the restaurant. Diosdado Venus accompanied them upon their request and they went out and walked towards home. About a hundred meters from the restaurant, the six (6) accused, that is, Mayor Cawaling, the four (4) policemen, namely, Hilario Cajilo, Andres Fontamillas, Ernesto Tumbagahan and Ricardo delos Santos, and civilian Alex Batuigas, the mayor's brother-in-law, flashlighted them and Diosdado Venus ran going back. The two (2) brothers also ran towards home to the house of their elder sister Imelda Elisan Tumbagahon. Co-accused Andres Fontamillas and Hilario Cajilo blocked them on the gate of the fence of their sister's house. Ronie Elisan ran towards the ricefield. The accused were chasing them. Vicente Elisan saw his brother Ronie f[a]ll down on the ricefield while he ran towards the bushes and la[y] on the ground. Ronie Elisan rose up by kneeling and raising his two (2) hands. All the six (6) accused approached him with their flashlights and shot him. Ronie fell down about twenty (20) meters from the bushes where Vicente Elisan hid behind the coconut tree. Co-accused Cawaling said ["]you left him, he is already dead.["] Mayor Cawaling was armed with .45 caliber, policemen Andres Fontamillas and Hilario Cajilo were both with armalites, Ernesto Tumbagahan and Ricardo delos Santos were both with .38 caliber and so with civilian Alex Batuigas. They left towards the house of Mayor Cawaling. After they were gone, Vicente Elisan ran towards the house of his older brother Nelson Elisan. Upon seeing him, Vicente told Nelson that Ronie was already dead. Nelson said nothing. While they were there, elder sister Imelda Elisan Tumbagahon, who was crying came. She said: "Manong, patay ron si Ronie." (Brother, Ronie is already dead). Nelson said ["]do not be noisy; they might come back and kill all of us.["] Imelda stopped crying. After a while, brothers Nelson and Vicente Elisan went to the house of barangay captain Aldolfo Tumbagahon. The three (3) went to the townhall and called the police but there was none there. Going to the house of the Chief of Police Oscar Montero, they were told by his wife that Commander Montero was in the house of Mayor Cawaling. They proceeded to the place where Ronie Elisan was shot. The cadaver was brought to the house of Nelson Elisan. Vicente Elisan found an empty shell of a .45

caliber about three (3) arm's length from the body of the victim. They surrendered it to the Napolcom. 19 Dr. Blandino C. Flores described the gunshot wounds of the victim as follows: Gunshot Wounds: 1. Shoulder: Gun shot wound 1/2 x 1/2 inch in diameter shoulder right 2 inches from the neck with contussion [sic] collar s[u]rrounding the wound. 2. Right Axilla: Gun shot wound 1/4 x 1/4 inch in diameter, 2 inches below the right nipple with contussion [sic] collar s[u]rrounding the wound. 3. Left Axilla: Exit of the gun shot wound from the right axilla, measuring 1/2 x 1/2 inch with edges everted, one inch below the axilla and one inch below the level of the nipple. 4. Back: Gun shot wound measuring 1/4 x 1/4 inch, along the vertebral column, right at the level of the 10th ribs with contussion [sic] collar. 5. Leg, Left: Gun shot wound measuring 1/4 x 1/4 anterior aspect upper third leg with contussion [sic] collar, with the exit 1/2 x 1/2 posterior aspect upper third leg, left.20 Based on the death certificate (Exhibit E) issued by Dr. Flores, Ronie Ilisan died of "severe hemorrhage and gun shot wo[unds]." 21 Version of the Defense Appellant Cawaling, in his 47-page Brief, 22 presented his own narration of the incident as follows:

At around 7:00 in the evening of December 4, 1982, Ulysses Cawaling, then the mayor of the [M]unicipality of San Jose in the [P]rovince of Romblon, arrived aboard a hired motorized boat from Manila in the seashore of San Jose. From the seashore, he immediately proceeded to his home. At around 7:30 in the evening, Cawaling went to the municipal hall to check on administrative matters that piled up in the course of his trip to Manila. He also went inside the police station (located inside the municipal building) to be apprised of any developments, after which he went out and joined Pfc. Tumbagahan and Pfc. Cajilo who were standing near the flagpole in front of the municipal building. The three engaged in a conversation. Cawaling learned that the two police officers were the ones assigned for patrol/alert for that night. The three of them went inside the INP office and there Cawaling informed the two policemen that he received information from reliable persons that certain persons were plotting to kill him and a member of the town's police force. It is to be noted that this occurred at the height of the communist insurgency and political violence in the countryside in the early 80's. Hence, such information was taken very seriously, having been relayed by sources independent of each other. Cawaling, as town chief then empowered with supervisory authority over the local police, accompanied Pfc. Tumbagahan and Pfc. Cajilo in conducting patrol and surveillance operations around the small municipality. He usually did this as routine since Romblon was then plagued with political assassinations and armed conflict. On their way to the seashore, they passed by C & J-4 Kitchenette, and chanced upon Ronnie Ilisan and his brother Vicente Ilisan drinking liquor and discussing in very loud voices. They stopped right in the front of the restaurant and there they heard Ronnie Ilisan state in a every loud voice that he will kill a person that night. Inside the restaurant, without the knowledge then of Cawaling and the two police officers, witness Gil Palacio, who was buying cigarettes and Luz Venus, the cook/server of the restaurant, saw Ronnie Ilisan, very drunk, brandishing in the air a .38 caliber Smith and Wesson revolver with a protruding screw. Initially dismissing Ronnie Ilisan's statement as just another hollow swagger of an intoxicated person ("salitang lasing"), Cawaling and the two policemen proceeded on their way. After the patrol, they returned to the municipal building and stationed themselves in front. At around 8:30 in the evening, Ronnie Elisan passed by the municipal hall walking towards the direction of the house of Nelson Ilisan, another brother, and shouted the challenge, "gawas ang maisog", meaning THOSE WHO ARE BRAVE, COME OUT. Cawaling and the two police officers again brushed aside [the] challenge as just another foolish drunken revelry [o]n the part of Ronnie Ilisan, a well-known troublemaker in the small municipality.

A few moments later, after Ronie Ilisan had passed by, they distinctly heard a gunshot and hysterical female voices shouting, "pulis, tabang" meaning POLICE! HELP! four times. Impelled by the call of duty, Cawaling and the two policemen immediately ran in the direction of the gunshot and the desperate female voices until they reached the house of Nelson Ilisan in San Jose Street. At this point, they saw Ronnie Ilisan holding a .38 caliber revolver. They also saw Vicente Ilisan, Francisco Tesnado, Fe Ilisan, the wife of Nelson and Delma Ilisan, the wife of Vicente, the latter two being the same persons who cried "pulis, tabang" four times. Cawaling then told Ronnie to surrender his gun but the latter responded by pointing the gun at Cawaling and pulling the trigger. At the precise moment that the gun fired, Cawaling warned the two policemen to drop to the ground by shouting "dapa". Fortunately, Cawaling was not hit. Ronnie Ilisan then turned around and ran towards the church. The two policemen gave chase. Cawaling, still shaken and trembling after the mischance was initially left behind but followed shortly. When Ronnie Ilisan reached the church, he turned around and again fired at the pursuing Pfc. Cajilo. Fortunately, the gun misfired. When they finally reached the ricefield, Pfc. Cajilo fired two (2) warning shots in the air for Ronnie to surrender. Ronnie responded by firing once again at Pfc. Tumbagahan but failed to hit the latter. At that instance, Pfc. Cajilo counter-fired at Ronnie Ilisan hitting him. Pfc. Tumbagahan also fired his weapon in the heat of exchange and also hit Ronnie Ilisan. As a result of the gunshot wounds, Ronnie Ilisan later on succumbed. Pfc. Tumbagahan picked up the gun still in the hand of the dead Ronnie Ilisan and gave it to Pfc. Cajilo. The three, Cawaling, who subsequently caught up with them after the incident, and the two police officers, then proceeded to the police station located in the municipal building to formally report the incident in their station blotter. 23 The "Brief for All of the Accused-Appellants" filed by Atty. Napoleon U. Galit and the "Brief for Appellants Ernesto Tumbagahan and Hilario Cajilo" submitted by Atty. Joselito R. Enriquez merely repeated the facts as narrated by the trial court. Ruling of the Trial Court Finding the prosecution witnesses and their testimonies credible, the court a quo convicted the appellants. The killing was qualified to murder because of the aggravating circumstances of abuse of superior strength and treachery. The trial court ruled that there was a notorious inequality of forces between the victim and his assailants, as the latter were greater in number and armed with guns. It further ruled that abuse of superior strength absorbed treachery, as it ratiocinated:

"Certain cases," an authority wrote, "involving the killing of helpless victim by assailants superior to them in arms or numbers, or victims who were overpowered before being killed, were decided on the theory that the killing was treacherous, when perhaps the correct qualifying circumstance would be abuse of superiority. In these cases the attack was not sudden nor unexpected and the element of surprise was lacking." (Id., I Aquino, pp. 423-424). In the instant case, we earlier ruled that the qualifying treachery should be considered as an exception to the general rule on treachery because it was not present at the inception of the attack. The killing was not sudden nor unexpected and the element of surprise was lacking. It is for this reason that we hold that alevosia should be deemed absorbed or included in abuse of superiority. Even assuming ex-gratia argumenti that it should be the other way around, the situation will not be of help, penaltywise, to the accused.24 The defenses raised by the appellants were dismissed and their witnesses declared unworthy of belief for the following reasons: 1. It was highly improbable that Defense Witness Tesnado would not tell his wife (Dory) and Bebelinia Ilisan Sacapao about the incident he had allegedly witnessed, more so when Sacapao was the victim's first cousin. 2. The spot report prepared by Station Commander Oscar M. Montero, the testimonies of Cajilo and Tumbagahan and the medical findings of Dr. Flores contradicted one another on the following details: the caliber of the gun used in shooting the victim, the wounds inflicted and the whereabouts of Cawaling during the shoot-out. 3. Cawaling and his men, armed with guns, could have immediately disarmed the victim at the initial encounter. The court could not understand why the victim was able to fire his gun, run, then stop and again fire his gun, without being caught. 4. The positive identification made by the prosecution witnesses prevails over the alibi posed by De los Santos and Fontamillas, a defense that was not corroborated by any other witness. 5. The .38 caliber revolver, allegedly owned by the victim, was in fact owned and used by Alex Batuigas. 6. The defense presented a photo and a sketch to prove that Imelda Ilisan Tumabagahan had an obstructed view of the killing. The trial court ruled that such evidence was misleading, because the window, from where said witness allegedly saw the incident, was at the eastern side of her house, and thus afforded a clear view of the incident, while the window referred to by the defense was at the southern portion.

7. The questioned testimonies of Dr. Flores, Nelson Ilisan and Provincial Prosecutor Pedro Victoriano, Jr., though not formally offered as evidence, may be admitted because of the failure of the defense to object thereto at the time they were called to testify. 8. The defense failed to prove that the prosecution witnesses had any ill motive to testify falsely against the appellant. 9. Appellants had a motive to kill the victim. Nelson Ilisan testified that his brother Ronie (the victim) had witnessed Bonifacio Buenaventura (a former chief commander of the San Jose Police Force) kill a certain Ruben Ventura. Cawaling, who was Buenaventura's first cousin, wanted Ronie dead, because the latter had not followed his instruction to leave town to prevent him from testifying in said case. Assignment of Errors The appellants, through their common counsel, Atty. Napoleon Galit, assign the following errors to the lower court: 1. The trial court gravely erred in sustaining prosecutor's theory of conspiracy and thus renders nugatory or has totally forgotten that policemen when in actual call of duty normally operate in group but not necessarily in conspiracy. 2. The trial court gravely erred in believing the theory of the prosecution that accused-appellant Ulysses Cawaling was one of the alleged coconspirators in the killing of the deceased Ronnie Elisan. 3. The trial court gravely erred in not believing the defense of accusedappellant Ulysses Cawaling that he has nothing to do with the shooting incident except to shout to arrest the accused[,] which prompted his coaccused policemen to chase the accused and sho[o]t him when he resisted, after he fired at Mayor Cawaling. 4. The trial court gravely erred in not giving weight to accused-appellant policemen['s] testimonies which carry the presumption of regularity. 5. The trial court gravely erred in not acquitting all the accused-appellants by applying "the equipoise rule" thereby resulting [i]n reasonable doubts on the guilt. 25 In their joint brief, 26 Appellants Tumbagahan and Cajilo cite these other errors:

1. The trial court gravely erred in relying on the theory of the prosecution that accused-appellants Ernesto Tumbagahan and Hilario Cajilo were alleged co-conspirators in the killing of the victim, Ronie Ilisan. 2. The trial court gravely erred in not believing the defense that herein accused-appellants merely did a lawful duty when the shooting incident happened which led to the death of Ronnie Ilisan. 3. The trial court gravely erred in not acquitting herein accused-appellants by applying the equipoise rule, thereby resulting in reasonable doubt on their guilt. 4. Prescinding from the foregoing, herein accused-appellants do press and hold, that the lower court committed grave, serious and reversible error in appreciating the qualifying circumstance of treachery (alevosia). 5. The lower court committed grave, serious and reversible error in convicting both accused-appellants of murder, instead merely of homicide, defined and penalized under the Revised Penal Code. 6. The lower court committed grave, serious and reversible error in appreciating the qualifying circumstance of taking advantage of superior strength. 7. The consummated crime being merely homicide, the mitigating circumstance of voluntary surrender should be considered to lower the penalty of homicide. 8. The lower court committed error in not considering double jeopardy. 9 The lower court committed error in not dismissing the case for want of jurisdiction. 27 Appellant Cawaling imputes these additional errors to the court a quo: 1. The trial court gravely erred in not acquitting herein accused-appellant, Ulysses M. Cawaling, considering that he had no part in the killing and the prosecution failed to prove his guilt beyond reasonable doubt; 2. The trial court gravely erred in not finding the shooting incident a result of hot pursuit and shoot-out between the deceased Ronnie Ilisan and the police officers in the performance of their duty and self-defense, and in sustaining the prosecution's conspiracy theory;

3. The trial court gravely erred in not acquitting Accused-Appellant Ulysses M. Cawaling considering that there was blatant absence of due process in the proceedings tantamount to mistrial. 28 This Court's Ruling We affirm the conviction of the appellants. In so ruling, we will resolve the following issues: (1) jurisdiction of the trial court, (2) double jeopardy, (3) credibility of prosecution witnesses and their testimonies, (4) self-defense, (5) performance of lawful duty, (6) alibi, (7) conspiracy, (8) rule on equipoise, (9) qualifying circumstances, (10) damages and (11) attending circumstances as they affect the penalty. We shall address the first two issues as important preliminary questions and discuss the merits of the remaining ones, which we have culled from the errors cited by the appellants in their aforementioned briefs. First Issue: Jurisdiction of the Trial Court Appellants Tumbagahan and Cajilo argue that the trial court erred when it assumed jurisdiction over the criminal case. They insist that the Sandiganbayan, not the regular courts, had jurisdiction to try and hear the case against the appellants, as they were public officers at the time of the killing which was allegedly committed by reason of or in relation to their office. We do not agree. The jurisdiction of a court to try a criminal case is determined by the law in force at the time of the institution of the action. Once the court acquires jurisdiction, it may not be ousted from the case by any subsequent events, such as a new legislation placing such proceedings under the jurisdiction of another tribunal. The only recognized exceptions to the rule, which find no application in the case at bar, arise when: (1) there is an express provision in the statute, or (2) the statute is clearly intended to apply to actions pending before its enactment. 29 The statutes pertinent to the issue are PD 1606, as amended; amended by PD 1952 and BP 129. Sec. 4 of PD 1606 31 reads: Sec. 4. Jurisdiction. The Sandiganbayan shall exercise: (a) Exclusive original jurisdiction in all cases involving: xxx xxx xxx
30

and PD 1850, as

(2) Other offenses or felonies committed by public officers and employees in relation to their office, including those employed in government-owned or controlled corporations, whether simple or complexed with other crimes, where the penalty prescribed by law is higher than prision correccional or imprisonment for six (6) years, or a fine of P6,000.00: PROVIDED, HOWEVER, that offenses or felonies mentioned in this paragraph where the penalty prescribed by law does not exceed prision correccional or imprisonment for six (6) years or a fine of P6,000.00 shall be tried by the proper Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court and Municipal Circuit Trial Court. xxx xxx xxx However, former President Ferdinand Marcos issued two presidential decrees placing the members of the Integrated National Police under the jurisdiction of courts-martial. Section 1 of PD 1952, 32 amending Section 1 of PD 1850, reads: Sec. 1. Court Martial Jurisdiction over Integrated National Police and Members of the Armed Forces. Any provision of law to the contrary notwithstanding (a) uniformed members of the Integrated National Police who commit any crime or offense cognizable by the civil courts shall henceforth be exclusively tried by courts-martial pursuant to and in accordance with Commonwealth Act No. 408, as amended, otherwise known as the Articles of War; (b) all persons subjects to military law under Article 2 of the aforecited Articles of War who commit any crime or offense shall be exclusively tried by courts-martial or their case disposed of under the said Articles of War; Provided, that, in either of the aforementioned situations, the case shall be disposed of or tried by the proper civil or judicial authorities when court-martial jurisdiction over the offense has prescribed under Article 38 of Commonwealth Act Numbered 408, as amended, or court-martial jurisdiction over the person of the accused military or Integrated National Police personnel can no longer be exercised by virtue of their separation from the active service without jurisdiction having duly attached beforehand unless otherwise provided by law: PROVIDED FURTHER, THAT THE PRESIDENT MAY, IN THE INTEREST OF JUSTICE, ORDER OR DIRECT, AT ANY TIME BEFORE ARRAIGNMENT, THAT A PARTICULAR CASE BE TRIED BY THE APPROPRIATE CIVIL COURT.

As used herein, the term uniformed members of the Integrated National Police shall refer to police officers, policemen, firemen, and jail guards. On the other hand, the jurisdiction of regular courts over civil and criminal cases was laid down in BP 129, the relevant portion of which is quoted hereunder: Sec. 20. Jurisdiction in Criminal Cases. Trial Courts shall exercise exclusive original jurisdiction in all criminal cases not within the exclusive jurisdiction of any court, tribunal or body, except those now falling under the exclusive and concurrent jurisdiction of the Sandiganbayan which shall hereafter be exclusively taken cognizance of by the latter. 33 In relation to the above, Section 4-a-2 of PD 1606, as amended by PD 1861, quoted earlier, lists two requisites that must concur before the Sandiganbayan may exercise exclusive and original jurisdiction over a case: (a) the offense was committed by the accused public officer in relation to his office; and (b) the penalty prescribed by law is higher than prision correccional or imprisonment for six (6) years, or higher than a fine of six thousand pesos (P6,000). 34 Sanchez vs. Demetriou 35 clarified that murder or homicide may be committed both by public officers and by private citizens, and that public office is not a constitutive element of said crime, viz.: The relation between the crime and the office contemplated by the Constitution is, in our opinion, direct and not accidental. To fall into the intent of the Constitution, the relation has to be such that, in the legal sense, the offense cannot exist without the office. In other words, the office must be a constituent element of the crime as defined in the statute, such as, for instance, the crimes defined and punished in Chapter Two to Six, Title Seven, of the Revised Penal Code. Public office is not the essence of murder. The taking of human life is either murder or homicide whether done by a private citizen or public servant, and the penalty is the same except when the perpetrator, being a public functionary, took advantage of his office, as alleged in this case, in which event the penalty is increased. But the use or abuse of office does not adhere to the crime as an element; and even as an aggravating circumstance, its materiality arises, not from the allegations but on the proof, not from the fact that the criminals are public officials but from the manner of the commission of the crime. Furthermore, the Information filed against the appellants contains no allegation that appellants were public officers who committed the crime in relation to their office. The charge was for murder, a felony punishable under Article 248 of the Revised Penal Code. As clarified in Aguinaldo, et al. vs. Domagas, et al., 36 "[I]n the absence of such essential allegation, and since the present case does not involve charges of violation of R.A. No. 3019 (the Anti-Graft etc. Act), the Sandiganbayan does not have jurisdiction

over the present case. (Bartolome vs. People, 142 SCRA 459 [1986]) Even before considering the penalty prescribed by law for the offense charged, it is thus essential to determine whether that offense was committed or alleged to have been committed by the public officers and employees in relation to their offices." Jurisdiction is determined by the allegations in the complaint or information. 37 In the absence of any allegation that the offense was committed in relation to the office of appellants or was necessarily connected with the discharge of their functions, the regional trial court, not the Sandiganbayan, has jurisdiction to hear and decide the case. 38 Second Issue: Double Jeopardy In seeking their acquittal, Appellants Tumbagahan and Cajilo also invoke their right against double jeopardy. They argue that the first jeopardy attached when a criminal case for murder was filed before the Judge Advocate General's Office (JAGO), which was allegedly dismissed after several hearings had been conducted. 39 We are not persuaded. There is double jeopardy when the following requisites are present: (1) a first jeopardy has attached prior to the second; (2) the first jeopardy has been validly terminated; and (3) a second jeopardy is for the same offense as that in the first. And the 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. 40 For a better appreciation of appellants' argument, we must consider PD 39 41 and its implementing rules, 42 which prescribe the procedure before a military commission. A summary preliminary investigation shall be conducted before trial for the purpose of determining whether there is prima facie evidence to pursue trial before a military commission. The investigation report shall contain a summary of the evidence, the acts constituting the offense or offenses committed, and the findings and recommendations of the investigating officer. Thereafter, the report shall be forwarded to the judge advocate general, who shall determine for either the defense secretary or for the AFP chief of staff whether the case shall be referred for trial to a military commission. 43 Where a prima facie case is found against the accused, formal charges shall be signed by a commissioned officer designated by the judge advocate general. 44 The accused shall then be arraigned, during which the charge and specification shall be read and the accused shall enter his plea. 45 After hearings, a record of the trial shall be forwarded to the AFP chief of staff for proper action. 46 In the present case, the appellants have presented no sufficient and conclusive evidence to show that they were charged, arraigned and acquitted in a military

commission, or that the case was dismissed therein without their consent. The defense merely offered as evidence certain disposition forms 47 and a letter, 48 dated March 8, 1983, recommending that the case against Appellants Tumbagahan, Cajilo and De los Santos be dropped and considered closed. 49 No charge sheet and record of arraignment and trial were presented to establish the first jeopardy. As pointed out by the solicitor general, "appellants were never arraigned, they never pleaded before the Judge Advocate General's Office, there was no trial, and no judgment on the merits had been rendered." 50 Third Issue: Credibility of Witnesses As a general rule, the factual findings of trial courts deserve respect and are not disturbed on appeal, unless some facts or circumstances of weight and substance have been overlooked, misapprehended or misinterpreted, and would otherwise materially affect the disposition of the case. 51 This rule, however, does not apply when the judge who penned the decision was not the same one who had heard the prosecution witnesses testify, 52 as in the present case. Nonetheless, we have carefully perused and considered the voluminous records of this case, and we find no reason to alter the findings of the court a quo in regard to the credibility of the prosecution witnesses and their testimonies. Vicente Ilisan, the victim's brother, narrated before the trial court the circumstances relevant to the crime: Q. In the evening of December 4, 1982, at about 8:00 or 8:30, where were you? A. I was inside the restaurant of Andres Fontamillas. xxx xxx xxx Q. What were you doing there? A. I was drinking tuba. Q. When you were about to finish drinking tuba, what did you do? A. I stood up preparing to go home. Q. Were you able to leave that restaurant actually?

A. No, sir. Q. Why? A. Luz Venus told us not to go out when [I] stood up to go home. Q. Do you know why you were advise[d] not to go out? A. Yes, sir. Q. Why? A. Because we were being watched by Mayor Cawaling, Andres Fontamillas, Hilario Cajilo and Alex Bat[ui]gas. xxx xxx xxx Q. When you were informed by Luz Venus that you should not go out because Mayor Cawaling and the persons you mentioned were outside watching for you, what did you do? A. We did not go out. Q. Since you remained inside, what did you do? A. I also viewed thru the window. Q. Did you see them? A. Yes, sir. Q. How far were they from the restaurant? A. About three meters. Q. What were they doing outside the restaurant? A. They were also viewing us. Q. For how long did they remain there viewing you? A. Just a short time. Q. And later on, do you know where did they go? [sic]

A. No, sir. I went out from the restaurant and when I went out, I did not see them anymore. Q. Before you went out of the restaurant, what did you do? A. Diosdado Venus accompanied us. Q. Why did you ask Diosdado Venus to accompany you? A. Yes, sir. Because we were aware that we were being watched from outside so we asked to be accompanied by Diosdado Venus. Q. From the restaurant accompanied by Diosdado Venus, what did you do? A. Towards home. Q. Were you able to reach home? A. No, sir. Q. Why, what happened on the way? A. Diosdado Venus ran going back because we were lighted by a flashlight. Q. How many flashlight[s] were trimed [sic] to you? A. Six. Q. Did you come to know who trimed [sic] the flashlight towards you? A. Yes, sir. Q. Who were they? A. Mayor Cawaling, Andres Fontamillas, Hilario Cajilo, Ernesto Tumbagahan, Ricardo delos Santos and Alex Batuigas. Q. How were you able to recognize them when that was night time? A. Because the flashlight[s] were bright.

Q. When Diosdado Venus ran back to his restaurant, what did your brother Ronie Elisan and you do? A. We also ran towards home. Q. To whose house? A. That of my older sister Imelda [E]lisan. Q. Were you able to reach that house? A. No, sir. Q. Why, what happened when you ran away? A. Andres Fontamillas and Hilario Cajilo were blocking us on the gate of the fence of my sister's house. Q. Since your way was blocked, where did Ronie Elisan go? A. We ran towards the ricefield. Q. When you ran, what did Mayor Cawaling do? A. They were chasing us. Q. What about Alex Batuigas, what did he do? A. He also followed helping chasing us. [sic] Q. What about the four policemen, what did they do? A. The same. They were also chasing us. Q. About how far is that restaurant [from] the spot where you were first lighted by the flashlight of the accused? A. About one hundred meters. Q. Now, according to you, you ran towards the ricefield, what happened while you were running towards the ricefield? A. I saw my brother fell [sic] down. Q. Fell down where?

A. On the ricefield. Q. What about you, where were you when your brother fell down in the ricefield? A. I ran towards the bushes. Q. What did you do upon reaching the bushes? A. I la[y] on the ground with my belly touch[ing] on the ground behind the coconut tree. Q. When your brother according to you had fallen on the ricefield, what did he do thereafter? A. He rose up, [raised] his hands and surrender[ed] to them. Q. In rising, what was his position? A. He was rising like this. (Witness demonstrating by kneeling [and] raising his two hands). Q. While Ronie Elisan was kneeling and raising both of his hands, what happened? A. Mayor Cawaling approached him together with the four policemen and his brother-in-law and they shot him. Q. Do you know what weapon[s] were used in shooting your brother? A. Yes, sir. Q. What weapon were used? A. The weapon of Mayor Cawaling is .45 caliber and that of Andres Fontamillas and Hilario Cajilo were both armalite and that of Ernesto Tumbagahan, Alex Batuigas and Ricardo delos Santos were .38 caliber. Q. How were you able to identify their weapons? A. Because the flashlight[s] were bright. Q. Now, what happened to your brother when he was fired upon by the accused in this case?

A. He fell down. Q. And how far is that spot where your elder brother had fallen down to the spot where Diosdado Venus left you when he returned to the restaurant? A. To my estimate it is about 300 meters. Q. After your brother had fallen down, what did the accused do? A. Mayor Cawaling said, ["]you left him, he is already dead.["] Q. Where did they go? A. They went towards the house of Mayor Cawaling.
53

Imelda Tumbagahan was at home feeding her child when she heard her brother Ronie shouting for help. After getting a flashlight and looking through the window of her house, she saw Cawaling and Alex Batuigas chasing Ronie who was running towards her house. Tumbagahan and De los Santos prevented Ronie from entering the fence of her house, as a result of which, her brother ran towards a rice field nearby. There, on bended knees and with hands raised, Ronie was shot by Cawaling and his men. 54 Nelson Ilisan also heard his younger brother Ronie shouting for help while being chased by the group of Cawaling. As Cajilo and Fontamillas blocked Ronie from entering the gate of Imelda's house, the victim ran towards a rice field. Nelson stopped Cawaling and asked, "Nong, basi guinalagas ninyo and acon hali? (Nong, why do you chase my brother?)" But the mayor merely continued chasing Ronie. Thereafter, Nelson saw his brother, on his knees with both hands raised, shot by appellants. 55 The three aforementioned witnesses narrated in detail the assault against their brother Ronie and positively identified the appellants as the perpetrators. The trial court cannot be faulted for relying on their testimonies and accepting them as true, 56 especially when the defense failed, to prove any ill motive on their part. 57 In addition, family members who have witnessed the killing of their loved one usually strive to remember the faces of the assailants. 58 Thus, the relationship per se of witnesses with the victim does not necessarily mean that the former are biased. On the contrary, it is precisely such relationship that would impel them to seek justice and put the real culprit behind bars, rather than impute the offense to the innocent. 59 Appellant Cawaling submits that the prosecution witnesses tampered with the evidence by cleaning the cadaver before an autopsy could be done. "Such irregular washing of the cadaver by a close relative of the deceased, who is educated and who presumably knew perfectly well the need to preserve it in its original state for the medico-legal

examination[,] is highly suspicious. It points to the fact that the relatives of the deceased wanted to hide, or erase something that would bolster and assist the defense (that is, state of drunkenness, powder burns or lack thereof, indicating the firing of a weapon or the proximity of the weapon used on the deceased, etc.)." 60 Such contention is unavailing. First, Bebelinia Sacapao merely cleaned the cadaver and made no further examination. Second, appellants had an opportunity to have the body examined again to determine or prove important matters, such as whether Ronie was drunk, if he fired a gun, how many and what caliber of guns were used in shooting him; they did not, however, avail themselves of this opportunity. As public officers, appellants knew that it was within their power to request or secure from the court, or any other competent authority, an order for another autopsy 61 or any such evidence as may affirm their innocence. Third, their conviction lies in the strong and convincing testimonial evidence of the prosecution, not in the corroborative testimony of Bebelinia Sacapao. Relying on the testimonies of Luz Venus and Gil Palacio, Appellant Cawaling also pointed out that "[t]he power of observation of alleged eyewitness Vicente was severely affected by his intoxication. It may be inferred that an intoxicated person's sense[s] of sight and hearing and of touch are less acute than those of a sober person and that his observation are inexact as to what actually occurred." 62 This argument is not persuasive. The evidence presented fails to show that Vicente was so intoxicated that night as to affect his powers of observation and retrospection. Defense Witness Palacio merely saw the witness drinkingtuba on the night of the killing. 63 Meanwhile the whole testimony of Luz on the matter mainly reveals that Ronie was the person she was referring to as drunk, as shown by this portion: 64 Q When Ronie and Vicente both surnamed Ilisan entered the C & J-4 kitchenette what if any did you observe? A I saw them so dr[u]nk (Nakita ko sila lasing na lasing). Q Who was lasing na lasing or so dr[u]nk? A Ronie Ilisan sir. Granting that Vicente was drunk, the conviction of the appellants is still inevitable in view of the positive declarations of Witnesses Nelson and Imelda, who unequivocally identified appellants as perpetrators of the senseless killing of their brother Ronie. Appellant Cawaling also questions the trial court's reliance on the testimonies of Dr. Blandino Flores, 65 Nelson Ilisan 66 and Prosecutor Pedro Victoriano, Jr., 67 for failure of the prosecution to offer them as evidence. In People vs. Java, 68 this Court ruled that the testimony of a witness, although not formally offered in evidence, may still be admitted by the courts, if the other party does not object to its presentation. The Court

explained: "Section 36 of [Rule 132] requires that an objection in the course of the oral examination of a witness should be made as soon as the grounds therefor shall become reasonably apparent. Since no objection to the admissibility of evidence was made in the court below, an objection raised for the first time on appeal will not be considered." In the present case, a cursory reading of the stenographic notes reveals that the counsel for the appellants did not raise any objection when said witnesses testified on the matters now being impugned. Moreover, they repeatedly cross-examined the witnesses, which shows that they had waived their objections to the said testimonies of such witnesses. Lastly, Appellant Mayor Cawaling questions the motive of Prosecutor Pedro Victoriano Jr. This contention is likewise bereft of merit. Unlike judges who are mandated to display cold neutrality in hearing cases, 69 prosecutors are not required to divest themselves of their personal convictions and refrain from exhibiting partiality. In this case, there is reasonable ground for Prosecutor Victoriano to believe that an offense has been committed and that the accused was probably guilty thereof. 70 Under the circumstance, it is his sworn duty to see that justice is served. 71 Thus, "[h]e may prosecute with earnestness and vigor indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." 72Further, Under the prevailing criminal procedure, the fiscal's sphere of action is quite extensive, for he has very direct and active intervention in the trial, assuming as the Government's representative the defense of society, which has been disturbed by the crime, and taking public action as though he were the injured party, for the purpose of securing the offender's punishment, whenever the crime has been proved and the guilt of the accused as the undoubted perpetrator thereof established. 73 Fourth Issue: Self-Defense To escape criminal liability, the appellants also invoke the justifying circumstances of self-defense and lawful performance of duty. 74 Allegedly, Ronie was firing his gun and shouting. "Guwa ang maisog! (Come out who is brave!)." Then the mayor and the policemen arrived at the scene to pacify him. Ronie fired at them, which forced them to chase him and return fire. We find this scenario bereft of plausibility. Unlawful aggression on the part of the victim is a condition sine qua non for the successful invocation of self-defense. 75 As factually found by the trial court, unlawful aggression did not start with the victim, but rather with the appellants. Cawaling and his men proceeded to the C & J-4 Kitchenette and waited for Ronie to come out. When the

victim did, they chased and shot him without giving him any opportunity to defend himself. Granting arguendo the veracity of the defense's factual version, it is important to note that appellants admitted that Ronie was running away from them when they chased and shot him. Thus, unlawful aggression assuming it was initially present had ceased, and the appellants no longer had any right to pursue the offender. Basic is the rule that when unlawful aggression ceases, the defender no longer has the right to kill or even wound the former aggressor. Upon the cessation of the unlawful aggression and the danger or risk to life and limb, there should be a corresponding cessation of hostilities on the part of the person defending himself. 76

Furthermore, the means employed to ward off the attack was unreasonably excessive. Being armed, the appellants could have easily ordered the victim to surrender. Even the first shot at his shoulder would have been sufficient to immobilize him, yet they fired a succession of shots at him while he was in no position to put up a defense. Jurisprudence teaches that when an accused admits having committed the crime but invokes self-defense to escape criminal liability, the burden of proof is reversed and shifted to him. He must then prove the elements of self-defense. 77 It necessarily follows that he must now rely on the strength of his own evidence and not on the weakness of that of the prosecution; for even if the latter evidence were weak, it could not be disbelieved after the accused has admitted the killing. 78 Thus, appellants must establish with clear and convincing evidence that the killing was justified, and that they incurred no criminal liability therefor. 79 They failed to do so, and their conviction thus becomes inevitable. 80 Fifth Issue: Lawful Performance of Duties Appellants contend that the killing of Ronie resulted from the lawful performance of their duties as police officers. However, such justifying circumstance may be invoked only after the defense successfully proves that (1) the accused acted in the performance of a duty, and (2) the injury or offense committed is the necessary consequence of the due performance or lawful exercise of such duty. 81 These two requisites are wanting in this case. The appellants, except Mayor Cawaling, were men in uniform who happened to be on duty when they killed Ronie. The victim was nor committing any offense at the time. Killing the victim under the circumstances of this case cannot in any wise be considered a valid performance of a lawful duty by men who had sworn to maintain peace and order and to protect the lives of the people. As aptly held in People vs. De la Cruz, 82 "Performance of duties does not include murder." That Ronie was a

troublemaker in their town is not an excuse; as the Court declared in the same case of People vs. De la Cruz, "Murder is never justified, regardless of the victim." Sixth Issue: Alibi We likewise brush aside the defenses of alibi and denial raised by Appellant De los Santos. Prosecution witnesses positively identified him and Fontamillas as part of the group which chased and shot Ronie Ilisan. It is elementary that alibi and denial are outweighed by positive identification that is categorical, consistent and untainted by any ill motive on the part of the eyewitness testifying on the matter. Alibi and denial, if not substantiated by clear and convincing evidence, are negative and self-serving evidence undeserving of weight in law. 83 In fact, De los Santos failed to establish with clear and convincing evidence that it was physically impossible for him to have been at the scene of the crime during its commission. 84 The evidence he had presented demonstrated only that, at the time, he was sleeping in his house, which was near the locus criminis. Alibi is always considered with suspicion and received with caution, not only because it is inherently weak and unreliable, but also because it is easily fabricated and concocted. 85 It is therefore incumbent upon the appellant to prove that he was at another place when the felony was committed, and that it was physically impossibie for him to have been at the scene of the crime at the time it was committed. 86 This he failed to prove. Seventh Issue: Conspiracy The trial court correctly appreciated the presence of conspiracy. Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Direct proof of conspiracy is rarely found, for criminals do not write down their lawless plans and plots. The agreement to commit a crime, however, may be deduced from the mode and manner of the commission of the offense or inferred from acts that point to a joint purpose and design, concerted action, and community of intent. 87 It does not matter who inflicted the mortal wound, as the act of one is the act of all, and each incurs the same criminal liability. 88 We concur with the trial court's elucidation: All of the accused chased the victim and his brother; four (4) of whom blocked their ways, first, to their elder brother Nelson Elisan's house and, second, to their elder sister Imelda Elisan Tumbagahon's house. Having changed course by proceeding to the ricefield in their desperate attempt to evade the accused, all the six (6) armed accused continued their pursuit.

Their victim, having fallen on the rice paddy, and rising and kneeling on it with raised hands, all the said accused with their flashlights beamed on their victim, in a united and concerted manner, shot him. After Ronie Elisan had fallen down, co-accused Mayor Cawaling was even heard as saying "(Y)ou left [sic] him, he is already dead." . . . . 89 Eighth Issue: Equipoise Rule We reject appellants' position that the equipoise rule should apply to this case. 90 In People vs. Lagnas, 91 the Court, through Mr. Justice Florenz D. Regalado, described this rule as follows: Once again, albeit in effect a supportive and cumulative consideration in view of the preceding disquisition, the equipoise rule finds application in this case, that is, if the inculpatory facts and circumstances are capable of two or more explanations, one of which is consistent with the innocence of the accused and the other consistent with his guilt, then the evidence does not fulfill the test of moral certainty, and is not sufficient to support a conviction. In this case, the inculpatory facts point to only one conclusion: appellants are guilty. As amplified in the discussion above, the Court agrees with the trial court that the guilt of the appellants was proven beyond reasonable doubt. Ninth Issue: Murder or Homicide? The Information alleges three qualifying circumstances: treachery, evident premeditation and taking advantage of superior strength. If appreciated, any one of these will qualify the killing to murder. However, Appellants Tumbagahan and Cajilo posit that there was no treachery, reasoning that Ronie was not an unsuspecting victim, as he had been forewarned by Diosdado Venus of the presence of the appellants inside the restaurant, and there had been a chase prior to the killing. Further, they contend that abuse of superior strength is deemed absorbed in treachery, and that "the addition of abuse of superior strength to qualify the case to murder is nothing more than mere repetition a legal chicanery, so to say. Similarly, where treachery is not proved, there can be no abuse of superior strength, vice-versa." 92 We partly agree. Treachery exists when the malefactors employ means and methods that tend directly and especially to insure their execution without risk to themselves arising from the defense which the victims might make. The essence of treachery is the sudden and

unexpected attack without the slightest provocation on the part of the person attacked. 93 While we do not disregard the fact that the victim, together with his brother Vicente, was able to run towards a rice field, we still believe that treachery attended the killing. In People vs. Landicho, 94 we ruled that treachery might still be appreciated even when the victim was warned of danger to his person, for "what is decisive is that the execution of the attack made it impossible for the victim to defend himself or to retaliate." The appellants waited for Ronie to come out of the restaurant. All of them chased the victim and prevented him from seeking refuge either in the house of his sister Imelda or that of his brother Nelson. All of them carried firearms and flashlights. They fired their guns at the victim while he was on his knees with arms raised, manifesting his intention not to fight back. We cannot appreciate the aggravating circumstance of abuse of superior strength, however, as we have consistently ruled that it is deemed absorbed in treachery. 95 We also affirm the finding of the trial court that the prosecution failed to prove the attending circumstance of evident premeditation. To prove this aggravating circumstance, the prosecution must show the following: (1) the time when the offender determined to commit the crime; (2) an act manifestly indicating that the offender clung to his determination; and (3) a lapse of time, between the determination to commit the crime and the execution thereof, sufficient to allow the offender to reflect upon the consequences of his act. 96 Nothing in the records shows how and when the plan to kill was hatched, or how much time had elapsed before it was carried out. Tenth Issue: Damages The trial court awarded the following: (a) P50,000.00, as civil indemnity; (b) P6,000.00, as actual damages; and (c) P116,666.66, for lost earnings. In computing the latter, the trial court used the following formula: Total annual net income = 10% x total annual gross income = .10 x P25,000.00 = P2,500.00. xxx xxx xxx Loss of earning capacity of Ronie Elisan = 2/3 (90-20) x P2,500.00 = P116,666.66. 97

Consistent with jurisprudence, we affirm the ruling of the trial court awarding the amount of P50,000 as civil indemnity to the heirs of the victim. 98 We cannot do the same to the award of actual damages and lost earnings, however. The award of actual damages has no basis, as no receipts were presented to substantiate the expenses allegedly incurred. An alleged pecuniary loss must be established by credible evidence before actual damages may be awarded. 99 Similarly erroneous is the award for loss of earning capacity, which should be computed as follows: 100 2/3 x [80 age of victim at the time of death] x [reasonable portion of the annual net income which would have been received as support by heirs] As testified to by Nelson Ilisan, the deceased had been earning an average of P100 daily or P3,000 monthly. 101From this monthly income must be deducted the reasonable amount of P1,000 representing the living and other necessary expenses of the deceased. Hence, the lost earnings of the deceased should be computed as follows: = 2/3 x [80 - 22] x [P24,000] = 2/3 x [58] x [P24,000] = 2[P1,392,000] 3 = P2,784,000 3 = P928,000. Eleventh Issue: Aggravating and Mitigating Circumstances Prior to the amendment of Section 248 of the Revised Penal Code, 102 the imposable penalty for murder wasreclusion temporal in its maximum period to death. In their Brief, Appellants Cajilo and Tumbagahan argue for the imposition of the lower penalty of reclusion temporal, contending that their filing of bail bonds/property bonds, before the order for their arrest was issued, should be treated as voluntary surrender. 103 We cannot accept this contention. In the first place, it has no factual basis. The warrant for the arrest of herein appellants was issued on August 18, 1987, 104 but appellants' counsel filed the Urgent Motion for Bail only thereafter, on September 2, 1987. 105 In the second place, appellants failed to prove the requisites for voluntary surrender, which

are: (1) the offender has not been actually arrested; (2) the offender surrenders himself to a person in authority or to the latter's agent; and (3) the surrender is voluntary. 106 The records reveal that a warrant of arrest was actually served on Tumbagahan and Cajilo 107 on September 2, 1987 and that they were in fact detained. 108 In view of the absence of any other aggravating or mitigating circumstance, the trial court correctly imposedreclusion perpetua. WHEREFORE, the appeal is hereby DENIED and the assailed Decision is AFFIRMED with the following MODIFICATIONS: (1) the award of P6,000 as actual damages is DELETED, and (2) the award for loss of earning capacity is INCREASED to P928,000. Costs against appellant. SO ORDERED. G.R. No. 133289 December 23, 1999 LICERIO A. ANTIPORDA, JR., ELITERIO RUBIACO, VICTOR GASCON and CAESAR TALIA petitioners, vs. HON. FRANCIS E. GARCHITORENA, HON. EDILBERTO G. SANDOVAL, HON. CATALINO CASTAEDA, JR. in their capacity as Presiding Justice and Associate Justices of the Sandiganbayan, respondents.

BUENA, J.: This is a Petition for Certiorari and Prohibition with Preliminary Injunction and/or Temporary Restraining Order to restrain the respondent Justices of the First Division of the Sandiganbayan from further proceeding with Crim. Case No. 24339 and from enforcing the warrants for the arrest of the accused named therein (herein petitioners) or to maintain the status quo until further orders from this Court. The antecedent facts of the case are as follows: Accused Licerio A. Antiporda, Jr., Eliterio Rubiaco, Victor Gascon, and Caesar Talla were charged with the crime of kidnapping one Elmer Ramos in an Information dated September 18, 1997. It was filed with the First Division of the Sandiganbayan comprised of the Honorable Francis E. Garchitorena, Edilberto E. Sandoval, and Catalino Castaeda, Jr. The Information reads as follows: That on or about September 1, 1995, in the Municipality of Sanchez Mira, Province of Cagayan and within the jurisdiction of this Honorable Court, the said accused Eliterio Rubiaco, Caesar Talla, Vicente Gascon and

Licerio Antiporda, Jr., armed with guns, conspiring together and helping one another, by means of force, violence and intimidation and without legal grounds or any authority of law, did then and there willfully, unlawfully and feloniously kidnap and carry away one Elmer Ramos from his residence in Marzan, Sanchez Mira, Cagayan against his will with the use of a Maroon Tamaraw FX motor vehicle. CONTRARY TO LAW. 1 On November 10, 1997, the Court issued an order giving the prosecution represented by Prosecutor Evelyn T. Lucero Agcaoili thirty (30) days within which to submit the amendment to the Information. The said order is quoted in full as follows: ORDER This morning, the prosecution represented by Prosecutor Evelyn T. Lucero Agcaoili appeared in response to this Court's Order of clarification on the propriety of proceeding with the Information as it stands. On her own, Prosecutor Agcaoili informed the Court that were inadequacies in the allegations in the Information for which reason she would beg leave to amend the same. The Court for its part expressed anxiety as to the Court's jurisdiction over the case considering that it was not clear whether or not the subject matter of the accusation was office related. For this purpose, Prosecutor Agcaoili is given thirty (30) days within which to submit the amendment embodying whatever changes she believes are appropriate or necessary in order for the Information to effectively describe the offense herein charged. Within the same period, Prosecutor Agcaoili shall submit an expansion of the recommendation to file the instant Information against the accused before this Court indicating thereon the office related character of the accusation herein so that the Court might effectively exercise its jurisdiction over the same. SO ORDERED. 2 The prosecution on even date complied with the said order and filed an Amended Information, which was admitted by the Sandiganbayan in a resolution dated November 24, 1997. 3 The Amended Information thus reads: That on or about September 10, 1997, at Sanchez Mira, Cagayan and within the jurisdiction of this Honorable Court, the accused Licerio Antiporda, Jr., being the Municipal Mayor of Buguey, Cagayan in the exercise of his official duties as such and taking advantage of his position, ordered, confederated and conspired with Juan Gallardo, Barangay

Captain of San Lorenzo, Buguey, Cagayan (now deceased) and accused Eliterio Rubiaco, barangay councilman of San Lorenzo, Buguey, Cagayan, Vicente Gascon and Caesar Talla with the use of firearms, force, violence and intimidation, did then and there willfully, unlawfully and feloniously kidnap and abduct the victim Elmer Ramos without any authority of law from his residence at Marzan, Sanchez Mira, Cagayan against his will, with the use of a Maroon Tamaraw FX motor vehicle and subsequently bring and detain him illegally at the residence of accused Mayor Licerio Antiporda, Jr. for more than five (5) days. CONTRARY TO LAW. 4 Accused then filed an Urgent Omnibus Motion dated November 16, 1997 praying that a reinvestigation of the case be conducted and the issuance of warrants of arrest be deferred. 5 An order dated November 26, 1997 was penned by Prosecutor Evelyn T. LuceroAgcaoili recommending the denial of the accused's Urgent Omnibus Motion 6 was approved by Ombudsman Aniano A. Desierto on January 9, 1998. 7 The accused thereafter filed on March 5, 1998 a Motion for New Preliminary Investigation and to Hold in Abeyance and/or Recall Warrant of Arrest Issued. 8 The same was denied in an order given in open court dated March 12, 1998 "on the ground that there was nothing in the Amended Information that was added to the original Information so that the accused could not claim a right to be heard separately in an investigation in the Amended Information. Additionally, the Court ruled that "since none of the accused have submitted themselves to the jurisdiction of the Court, the accused are not in a position to be heard on this matter at this time" (p. 245, Record)." 9 Subsequently, the accused filed on March 24, 1998 a Motion to Quash the Amended Information for lack of jurisdiction over the offense charged. 10 On March 27, 1998, the Sandiganbayan issued an Order, to wit: The Motion to Quash filed in behalf of the accused by Atty. Orlando B. Consigna is ignored, it appearing that the accused have continually refused or otherwise failed to submit themselves to the jurisdiction of this Court. At all events there is an Amended Information here which makes an adequate description of the position of the accused thus vesting this Court with the office related character of the offense of the accused. SO ORDERED. 11 A motion for reconsideration was filed on April 3, 1998 by the accused wherein it was alleged that the filing of the Motion to Quash and the appearance of their counsel during

the scheduled hearing thereof amounted to their voluntary appearance and invested the court with jurisdiction over their persons. 12 The Sandiganbayan denied the motion for reconsideration filed by the accused in its resolution dated April 24, 1998. 13 Hence, this petition filed by Licerio A. Antiporda, Jr., Eliterio Rubiaco, Victor Gascon, and Caesar Talla. The petitioners pose the following questions for the resolution of this Court. a) CAN THE SANDIGANBAYAN, WHICH HAS NO JURISDICTION OVER THE OFFENSE CHARGED IN THE ORIGINAL INFORMATION, SUBSEQUENTLY ACQUIRE SUCH JURISDICTION BY THE SIMPLE EXPEDIENT OF AMENDING THE INFORMATION TO SUPPLY, FOR THE FIRST TIME, JURISDICTIONAL FACTS NOT PREVIOUSLY AVERRED IN THE ORIGINAL INFORMATION? and b) COROLLARILY, CAN THE AMENDED INFORMATION BE ALLOWED WITHOUT CONDUCTING ANEW A PRELIMINARY INVESTIGATION FOR THE GRAVER OFFENSE CHARGED THEREIN? The petition is devoid of merit. Jurisdiction is the power with which courts are invested for administering justice, that is, for hearing and deciding cases. In order for the court to have authority to dispose of the case on the merits, it must acquire jurisdiction over the subject matter and the parties. 14 Sec. 4, paragraph (a) of P.D. No. 1606, as amended by P.D. No. 1861 provides for the jurisdiction of the Sandiganbayan: Sec. 4. Jurisdiction. The Sandiganbayan shall exercise: (a) Exclusive original jurisdiction in all cases involving: xxx xxx xxx (2) Other offenses or felonies committed by public officers and employees in relation to their office, including those employed in government-owned or controlled corporations, whether simple or complexed with other crimes, where the penalty prescribed by law is higher than prision correccionalor imprisonment for six (6) years, or a fine of P6,000.00. Provided, however, That offenses or felonies mentioned in this paragraph where the penalty prescribed by law does not exceed prision correccional or imprisonment

for six (6) years or a fine of P6,000.00 shall be tried by the proper Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court and Municipal Circuit Trial Court. The Sandiganbayan exercises not only civil but also criminal jurisdiction. Criminal jurisdiction, as defined in the case of People vs. Mariano 15, is necessarily the authority to hear and try a particular offense and impose the punishment for it. The case of Arula vs. Espino 16 enumerates the requirements wherein a court acquires jurisdiction to try a criminal case, to wit: To paraphrase: beyond the pale of disagreement is the legal tenet that a court acquires jurisdiction to try a criminal case only when the following requisites concur: (1) the offense is one which the court is by law authorized to take cognizance of, (2) the offense must have been committed within its territorial jurisdiction, and (3) the person charged with the offense must have been brought in to its forum for trial, forcibly by warrant of arrest or upon his voluntary submission to the court. The petitioners argue that the Sandiganbayan had no jurisdiction to take cognizance of the case because the original information did not allege that one of the petitioners, Licerio A. Antiporda, Jr., took advantage of his position as mayor of Buguey, Cagayan to order the kidnapping of Elmer Ramos. They likewise assert that lacking jurisdiction a court can not order the amendment of the information. In the same breath, they contend however that the Sandiganbayan had jurisdiction over the persons of the accused. They question the assumption of jurisdiction by the Sandiganbayan over their case yet they insist that said court acquired jurisdiction over their motion to quash. The petitioner can not have their cake and eat it too. In the aforementioned case of Arula vs. Espino 17 it was quite clear that all three requisites, i.e., jurisdiction over the offense, territory and person, must concur before a court can acquire jurisdiction to try a case. It is undisputed that the Sandiganbayan had territorial jurisdiction over the case. And we are in accord with the petitioners when they contended that when they filed a motion to quash it was tantamount to a voluntary submission to the Court's authority. They cite the case of Layosa vs. Rodriguez 18 in support of their contention. For therein, it was ruled that the voluntary appearance of the accused at the pre-suspension hearing amounted to his submission to the court's jurisdiction even if no warrant of arrest has yet been issued. To counter this contention of the petitioners the prosecution adverted to case of de los Santos-Reyes vs.Montesa, Jr. 19 which was decided some 28 years after the Layosa case. In this more recent case, it was held that:

. . . the accused . . . have no right to invoke the processes of the court since they have not been placed in the custody of the law or otherwise deprived of their liberty by reason or as a consequence of the filling of the information. For the same reason, the court had no authority to act on the petition. We find that the case of Layosa and de los Santos-Reyes are not inconsistent with each other since both these cases discussed the rules on when a court acquires jurisdiction over the persons of the accused, i.e., either through the enforcement of warrants of arrest or their voluntary submission to the court. The only difference, we find, is that the de los Santos-Reyes case harped mainly on the warrant of arrest angle while the Layosa case dealt more on the issue of voluntary submission ruling, that the appearance at the hearing through a lawyer was a submission to the court's jurisdiction. Having discussed the third requirement we now come to the question of whether or not the Sandiganbayan had jurisdiction over the offense charged. We answer in the negative. The original Information filed with the Sandiganbayan did not mention that the offense committed by the accused is office-related. It was only after the same was filed that the prosecution belatedly remembered that a jurisdictional fact was omitted therein. However, we hold that the petitioners are estopped from assailing the jurisdiction of the Sandiganbayan for in the supplemental arguments to motion for reconsideration and/or reinvestigation dated June 10, 1997 20 filed with the same court, it was they who "challenged the jurisdiction of the Regional Trial Court over the case and clearly stated in their Motion for Reconsideration that the said crime is work connected, which is hereunder quoted, as follows: Respondents (petitioners herein) have thoroughly scanned the entire records of the instant case and no where is there any evidence to show that the Honorable Prosecution Office of the Province of Cagayan have been authorized by the Office of the Honorable Ombudsman to conduct the Preliminary Investigation much less had the former office been authorized to file the corresponding Information as the said case, if evidence warrants, fall exclusively with the jurisdiction of the Honorable Sandiganbayan notwithstanding the presence of other public officers whose salary range is below 27 and notwithstanding the presence of persons who are not public officers. It is a well-settled rule that a party cannot invoke the jurisdiction of a court to secure affirmative relief against his opponent, and after obtaining or failing to obtain such relief, repudiate or question that same jurisdiction. 21

We therefore hold that the Sandiganbayan has jurisdiction over the case because of estoppel and it was thus vested with the authority to order the amendment of the Information. Rule 110, Section 14 of the Rules of Court provides thus: Sec. 14. Amendment. The information or complaint may be amended, in substance or form, without leave of court, at any time before the accused pleads; and thereafter and during the trial as to all matters of form, by leave and at the discretion of the court, when the same can be done without prejudice to the rights of the accused. xxx xxx xxx Petitioner prayed that a reinvestigation be made in view of the Amended Information. We hold that the reinvestigation is not necessary anymore. A reinvestigation is proper only if the accused's substantial rights would be impaired. In the case at bar, we do not find that their rights would be unduly prejudiced if the Amended Information is filed without a reinvestigation taking place. The amendments made to the Information merely describe the public positions held by the accused/petitioners and stated where the victim was brought when he was kidnapped. It must here be stressed that a preliminary investigation is essentially inquisitorial, and it is often the only means of discovering the persons who may be reasonably charged with a crime, to enable the prosecutor to prepare his complaint or information. It is not a trial of the case on the merits and has no purpose except that of determining whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof, and it does not place the persons accused in jeopardy. It is not the occasion for the full and exhaustive display of the parties' evidence; it is for the presentation of such evidence only as may engender a well-grounded belief that an offense has been committed and that the accused is probably guilty thereof. 22 The purpose of a preliminary investigation has been achieved already and we see no cogent nor compelling reason why a reinvestigation should still be conducted. As an aside, an offense is considered committed in relation to office when it is intimately connected with their respective offices and was perpetrated while they were in the performance, though improper or irregular, of their official functions. 23 In the case of Cunanan vs. Arceo, it was held that: . . . the absence in the information filed on 5 April 1991 before Branch 46 of the RTC of San Fernando, Pampanga, of an allegation that petitioner had committed the offense charged in relation to his office is immaterial and easily remedied. Respondent RTC judges had forwarded petitioner's

case to the Sandiganbayan, and the complete records transmitted thereto in accordance with the directions of this Court set out in the Asuncion case: ". . . As if it was originally filed with [the Sandiganbayan]." That Information may be amended at any time before arraignment before the Sandiganbayan, and indeed, by leave of court at any time before judgment is rendered by the Sandiganbayan considering that such an amendment would not affect the juridical nature of the offense charged (i.e. murder), the qualifying circumstances alleged in the information, or the defenses that petitioner may assert before the Sandiganbayan. In other words, the amendment may be made before the Sandiganbayan without surprising the petitioner or prejudicing his substantive rights. 24(Emphasis Supplied) WHEREFORE, IN VIEW OF THE FOREGOING, the petition is hereby DISMISSED. SO ORDERED. G.R. No. 116033 February 26, 1997 ALFREDO L. AZARCON, petitioner, vs. SANDIGANBAYAN, PEOPLE OF THE PHILIPPINES and JOSE C. BATAUSA, respondents.

PANGANIBAN, J.: Does the Sandiganbayan have jurisdiction over a private individual who is charged with malversation of public funds as a principal after the said individual had been designated by the Bureau of Internal Revenue as a custodian of distrained property? Did such accused become a public officer and therefore subject to the graft court's jurisdiction as a consequence of such designation by the BIR? These are the main questions in the instant petition for review of Respondent Sandiganbayan's Decision 1 in Criminal Case No. 14260 promulgated on March 8, 1994, convicting petitioner of malversation of public funds and property, and Resolution 2 dated June 20, 1994, denying his motion for new trial or reconsideration thereof. The Facts Petitioner Alfredo Azarcon owned and operated an earth-moving business, hauling "dirt and ore." 3 His services were contracted by the Paper Industries Corporation of the Philippines (PICOP) at its concession in Mangagoy, Surigao del Sur. Occasionally, he

engaged the services of sub-contractors like Jaime Ancla whose trucks were left at the former's premises. 4 From this set of circumstances arose the present controversy. . . . It appears that on May 25, 1983, a Warrant of Distraint of Personal Property was issued by the Main Office of the Bureau of Internal Revenue (BIR) addressed to the Regional Director (Jose Batausa) or his authorized representative of Revenue Region 10, Butuan City commanding the latter to distraint the goods, chattels or effects and other personal property of Jaime Ancla, a sub-contractor of accused Azarcon and, a delinquent taxpayer. The Warrant of Garnishment was issued to accused Alfredo Azarcon ordering him to transfer, surrender, transmit and/or remit to BIR the property in his possession owned by taxpayer Ancla. The Warrant of Garnishment was received by accused Azarcon on June 17, 1985. 5 Petitioner Azarcon, in signing the "Receipt for Goods, Articles, and Things Seized Under Authority of the National Internal Revenue," assumed the undertakings specified in the receipt the contents of which are reproduced as follows: (I), the undersigned, hereby acknowledge to have received from Amadeo V. San Diego, an Internal Revenue Officer, Bureau of Internal Revenue of the Philippines, the following described goods, articles, and things: Kind of property Isuzu dump truck Motor number E120-229598 Chassis No. SPZU50-1772440 Number of CXL 6 Color Blue Owned By Mr. Jaime Ancla the same having been this day seized and left in (my) possession pending investigation by the Commissioner of Internal Revenue or his duly authorized representative. (I) further promise that (I) will faithfully keep, preserve, and, to the best of (my) ability, protect said goods, articles, and things seized from defacement, demarcation, leakage, loss, or destruction in any manner; that (I) will neither alter nor remove, nor permit others to alter or remove or dispose of the same in any manner without the express authority of the Commissioner of Internal Revenue; and that (I) will produce and deliver all of said goods, articles, and things upon the order of any court of the Philippines, or upon demand of the Commissioner of Internal Revenue or any authorized officer or agent of the Bureau of Internal Revenue. 6 Subsequently, Alfredo Azarcon wrote a letter dated November 21, 1985 to the BIR's Regional Director for Revenue Region 10 B, Butuan City stating that

. . . while I have made representations to retain possession of the property and signed a receipt of the same, it appears now that Mr. Jaime Ancla intends to cease his operations with us. This is evidenced by the fact that sometime in August, 1985 he surreptitiously withdrew his equipment from my custody. . . . In this connection, may I therefore formally inform you that it is my desire to immediately relinquish whatever responsibilities I have over the above-mentioned property by virtue of the receipt I have signed. This cancellation shall take effect immediately. . . . 7 Incidentally, the petitioner reported the taking of the truck to the security manager of PICOP, Mr. Delfin Panelo, and requested him to prevent this truck from being taken out of the PICOP concession. By the time the order to bar the truck's exit was given, however, it was too late. 8 Regional Director Batausa responded in a letter dated May 27, 1986, to wit: An analysis of the documents executed by you reveals that while you are (sic) in possession of the dump truck owned by JAIME ANCLA, you voluntarily assumed the liabilities of safekeeping and preserving the unit in behalf of the Bureau of Internal Revenue. This is clearly indicated in the provisions of the Warrant of Garnishment which you have signed, obliged and committed to surrender and transfer to this office. Your failure therefore, to observe said provisions does not relieve you of your responsibility. 9 Thereafter, the Sandiganbayan found that On 11 June 1986, Mrs. Marilyn T. Calo, Revenue Document Processor of Revenue Region 10 B, Butuan City, sent a progress report to the Chief of the Collection Branch of the surreptitious taking of the dump truck and that Ancla was renting out the truck to a certain contractor by the name of Oscar Cueva at PICOP (Paper Industries Corporation of the Philippines, the same company which engaged petitioner's earth moving services), Mangagoy, Surigao del Sur. She also suggested that if the report were true, a warrant of garnishment be reissued against Mr. Cueva for whatever amount of rental is due from Ancla until such time as the latter's tax liabilities shall be deemed satisfied. . . However, instead of doing so, Director Batausa filed a letter-complaint against the (herein Petitioner) and Ancla on 22 January 1988, or after more than one year had elapsed from the time of Mrs. Calo's report. 10 Provincial Fiscal Pretextato Montenegro "forwarded the records of the complaint . . . to the Office of the Tanodbayan" on May 18, 1988. He was deputized Tanodbayan prosecutor and granted authority to conduct preliminary investigation on August 22, 1988, in a letter by Special Prosecutor Raul Gonzales approved by Ombudsman (Tanodbayan) Conrado Vasquez. 11

Along with his co-accused Jaime Ancla, Petitioner Azarcon was charged before the Sandiganbayan with the crime of malversation of public funds or property under Article 217 in relation to Article 222 of the Revised Penal Code (RPC) in the following Information 12 filed on January 12, 1990, by Special Prosecution Officer Victor Pascual: That on or about June 17, 1985, in the Municipality of Bislig, Province of Surigao del Sur, Philippines, and within the jurisdiction of this Honorable Court, accused Alfredo L. Azarcon, a private individual but who, in his capacity as depository/administrator of property seized or deposited by the Bureau of Internal Revenue, having voluntarily offered himself to act as custodian of one Isuzu Dumptruck (sic) with Motor No. E120-22958, Chasis No. SPZU 50-1772440, and number CXL-6 and was authorized to be such under the authority of the Bureau of Internal Revenue, has become a responsible and accountable officer and said motor vehicle having been seized from Jaime C. Ancla in satisfaction of his tax liability in the total sum of EIGHTY THOUSAND EIGHT HUNDRED THIRTY ONE PESOS and 59/100 (P80,831.59) became a public property and the value thereof as public fund, with grave abuse of confidence and conspiring and confederating with said Jaime C. Ancla, likewise, a private individual, did then and there wilfully, (sic) unlawfully and feloniously misappropriate, misapply and convert to his personal use and benefit the aforementioned motor vehicle or the value thereof in the aforestated amount, by then and there allowing accused Jaime C. Ancla to remove, retrieve, withdraw and tow away the said Isuzu Dumptruck (sic) with the authority, consent and knowledge of the Bureau of Internal Revenue, Butuan City, to the damage and prejudice of the government in the amount of P80,831.59 in a form of unsatisfied tax liability. CONTRARY TO LAW. The petitioner filed a motion for reinvestigation before the Sandiganbayan on May 14, 1991, alleging that: (1) the petitioner never appeared in the preliminary investigation; and (2) the petitioner was not a public officer, hence a doubt exists as to why he was being charged with malversation under Article 217 of the Revised Penal Code. 13The Sandiganbayan granted the motion for reinvestigation on May 22, 1991. 14 After the reinvestigation, Special Prosecution Officer Roger Berbano, Sr., recommended the "withdrawal of the information" 15 but was "overruled by the Ombudsman." 16 A motion to dismiss was filed by petitioner on March 25, 1992 on the ground that the Sandiganbayan did not have jurisdiction over the person of the petitioner since he was not a public officer. 17 On May 18, 1992; the Sandiganbayan denied the motion. 18 When the prosecution finished presenting its evidence, the petitioner then filed a motion for leave to file demurrer to evidence which was denied on November 16, 1992, "for being without merit." 19 The petitioner then commenced and finished presenting his evidence on February 15, 1993.

The Respondent Court's Decision On March 8, 1994, Respondent Sandiganbayan dispositive portion of which reads:
20

rendered a Decision, 21 the

WHEREFORE, the Court finds accused Alfredo Azarcon y Leva GUILTY beyond reasonable doubt as principal of Malversation of Public Funds defined and penalized under Article 217 in relation to Article 222 of the Revised Penal Code and, applying the Indeterminate Sentence Law, and in view of the mitigating circumstance of voluntary surrender, the Court hereby sentences the accused to suffer the penalty of imprisonment ranging from TEN (10) YEARS and ONE (1) DAY of prision mayor in its maximum period to SEVENTEEN (17) YEARS, FOUR (4) MONTHS and ONE (1) DAY of Reclusion Temporal. To indemnify the Bureau of Internal Revenue the amount of P80,831.59; to pay a fine in the same amount without subsidiary imprisonment in case of insolvency; to suffer special perpetual disqualification; and, to pay the costs. Considering that accused Jaime Ancla has not yet been brought within the jurisdiction of this Court up to this date, let this case be archived as against him without prejudice to its revival in the event of his arrest or voluntary submission to the jurisdiction of this Court. SO ORDERED. Petitioner, through new counsel, 22 filed a motion for new trial or reconsideration on March 23, 1994, which was denied by the Sandiganbayan in its Resolution 23 dated December 2, 1994. Hence, this petition. The Issues The petitioner submits the following reasons for the reversal of the Sandiganbayan's assailed Decision and Resolution: I. The Sandiganbayan does not have jurisdiction over crimes committed solely by private individuals. II. In any event, even assuming arguendo that the appointment of a private individual as a custodian or a depositary of distrained property is sufficient to convert such individual into a public officer, the petitioner cannot still be considered a public officer because: [A]

There is no provision in the National Internal Revenue Code which authorizes the Bureau of Internal Revenue to constitute private individuals as depositaries of distrained properties. [B] His appointment as a depositary was not by virtue of a direct provision of law, or by election or by appointment by a competent authority. III. No proof was presented during trial to prove that the distrained vehicle was actually owned by the accused Jaime Ancla; consequently, the government's right to the subject property has not been established. IV. The procedure provided for in the National Internal Revenue Code concerning the disposition of distrained property was not followed by the B.I.R., hence the distraint of personal property belonging to Jaime C. Ancla and found allegedly to be in the possession of the petitioner is therefore invalid. V. The B.I.R. has only itself to blame for not promptly selling the distrained property of accused Jaime C. Ancla in order to realize the amount of back taxes owed by Jaime C. Ancla to the Bureau. 24 In fine, the fundamental issue is whether the Sandiganbayan had jurisdiction over the subject matter of the controversy. Corollary to this is the question of whether petitioner can be considered a public officer by reason of his being designated by the Bureau of Internal Revenue as a depositary of distrained property. The Court's Ruling The petition is meritorious. Jurisdiction of the Sandiganbayan It is hornbook doctrine that in order "(to) ascertain whether a court has jurisdiction or not, the provisions of the law should be inquired into." 25 Furthermore, "the jurisdiction of the court must appear clearly from the statute law or it will not be held to exist. It cannot be presumed or implied." 26 And for this purpose in criminal cases, "the jurisdiction of a court is determined by the law at the time of commencement of the action." 27

In this case, the action was instituted with the filing of this information on January 12, 1990; hence, the applicable statutory provisions are those of P.D. No. 1606, as amended by P.D. No. 1861 on March 23, 1983, but prior to their amendment by R.A. No. 7975 on May 16, 1995. At that time, Section 4 of P.D. No. 1606 provided that: Sec. 4. Jurisdiction. The Sandiganbayan shall exercise: (a) Exclusive original jurisdiction in all cases involving: (1) Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII of the Revised Penal Code; (2) Other offenses or felonies committed by public officers and employees in relation to their office, including those employed in government-owned or controlled corporations, whether simple or complexed with other crimes, where the penalty prescribed by law is higher than prision correccional or imprisonment for six (6) years, or a fine of P6,000.00: PROVIDED, HOWEVER, that offenses or felonies mentioned in this paragraph where the penalty prescribed by law does not exceed prision correccional or imprisonment for six (6) years or a fine of P6,000.00 shall be tried by the proper Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court and Municipal Circuit Trial Court. xxx xxx xxx In case private individuals are charged as co-principals, accomplices or accessories with the public officers or employees, including those employed in government-owned or controlled corporations, they shall be tried jointly with said public officers and employees. xxx xxx xxx The foregoing provisions unequivocally specify the only instances when the Sandiganbayan will have jurisdiction over a private individual, i.e. when the complaint charges the private individual either as a co-principal, accomplice or accessory of a public officer or employee who has been charged with a crime within its jurisdiction. Azarcon: A Public Officer or A Private Individual? The Information does not charge petitioner Azarcon of being a co-principal, accomplice or accessory to a public officer committing an offense under the Sandiganbayan's jurisdiction. Thus, unless petitioner be proven a public officer, the Sandiganbayan will

have no jurisdiction over the crime charged. Article 203 of the RPC determines who are public officers: Who are public officers. For the purpose of applying the provisions of this and the preceding titles of the book, any person who, by direct provision of the law, popular election, popular election or appointment by competent authority, shall take part in the performance of public functions in the Government of the Philippine Islands, or shall perform in said Government or in any of its branches public duties as an employee, agent, or subordinate official, of any rank or classes, shall be deemed to be a public officer. Thus, (to) be a public officer, one must be (1) Taking part in the performance of public functions in the government, or Performing in said Government or any of its branches public duties as an employee, agent, or subordinate official, of any rank or class; and (2) That his authority to take part in the performance of public functions or to perform public duties must be a. by direct provision of the law, or b. by popular election, or c. by appointment by competent authority.
28

Granting arguendo that the petitioner, in signing the receipt for the truck constructively distrained by the BIR, commenced to take part in an activity constituting public functions, he obviously may not be deemed authorized by popular election. The next logical query is whether petitioner's designation by the BIR as a custodian of distrained property qualifies as appointment by direct provision of law, or by competent authority. 29 We answer in the negative. The Solicitor General contends that the BIR, in effecting constructive distraint over the truck allegedly owned by Jaime Ancla, and in requiring Petitioner Alfredo Azarcon who was in possession thereof to sign a pro forma receipt for it, effectively "designated" petitioner a depositary and, hence, citing U.S. vs. Rastrollo, 30 a public officer. 31This is based on the theory that (t)he power to designate a private person who has actual possession of a distrained property as a depository of distrained property is necessarily

implied in the BIR's power to place the property of a delinquent tax payer (sic) in distraint as provided for under Sections 206, 207 and 208 (formerly Sections 303, 304 and 305) of the National Internal Revenue Code, (NIRC) . . . . 32 We disagree. The case of U.S. vs. Rastrollo is not applicable to the case before us simply because the facts therein are not identical, similar or analogous to those obtaining here. While the cited case involved a judicialdeposit of the proceeds of the sale of attached property in the hands of the debtor, the case at bench dealt with the BIR's administrative act of effecting constructive distraint over alleged property of taxpayer Ancla in relation to his back taxes, property which was received by Petitioner Azarcon. In the cited case, it was clearly within the scope of that court's jurisdiction and judicial power to constitute the judicial deposit and give "the depositary a character equivalent to that of a public official." 33 However, in the instant case, while the BIR had authority to require Petitioner Azarcon to sign a receipt for the distrained truck, the NIRC did not grant it power to appoint Azarcon a public officer. It is axiomatic in our constitutional framework, which mandates a limited government, that its branches and administrative agencies exercise only that power delegated to them as "defined either in the Constitution or in legislation or in both." 34 Thus, although the "appointing power is the exclusive prerogative of the President, . . ." 35 the quantum of powers possessed by an administrative agency forming part of the executive branch will still be limited to that "conferred expressly or by necessary or fair implication" in its enabling act. Hence, "(a)n administrative officer, it has been held, has only such powers as are expressly granted to him and those necessarily implied in the exercise thereof." 36 Corollarily, implied powers "are those which are necessarily included in, and are therefore of lesser degree than the power granted. It cannot extend to other matters not embraced therein, nor are not incidental thereto." 37 For to so extend the statutory grant of power "would be an encroachment on powers expressly lodged in Congress by our Constitution." 38 It is true that Sec. 206 of the NIRC, as pointed out by the prosecution, authorizes the BIR to effect a constructive distraint by requiring "any person" to preserve a distrained property, thus: xxx xxx xxx The constructive distraint of personal property shall be effected by requiring the taxpayer or any person having possession or control of such property to sign a receipt covering the property distrained and obligate himself to preserve the same intact and unaltered and not to dispose of the same in any manner whatever without the express authority of the Commissioner. xxx xxx xxx However, we find no provision in the NIRC constituting such person a public officer by reason of such requirement. The BIR's power authorizing a private individual to act as a

depositary cannot be stretched to include the power to appoint him as a public officer. The prosecution argues that "Article 222 of the Revised Penal Code . . . defines the individuals covered by the term 'officers' under Article 217 39 . . ." of the same Code. 40 And accordingly, since Azarcon became "a depository of the truck seized by the BIR" he also became a public officer who can be prosecuted under Article 217 . . . ." 41 The Court is not persuaded. Article 222 of the RPC reads: Officers included in the preceding provisions. The provisions of this chapter shall apply to private individuals who, in any capacity whatever, have charge of any insular, provincial or municipal funds, revenues, or property and to any administrator or depository of funds or property attached, seized or deposited by public authority, even if such property belongs to a private individual. "Legislative intent is determined principally from the language of a statute. Where the language of a statute is clear and unambiguous, the law is applied according to its express terms, and interpretation would be resorted to only where a literal interpretation would be either impossible or absurd or would lead to an injustice." 42 This is particularly observed in the interpretation of penal statutes which "must be construed with such strictness as to carefully safeguard the rights of the defendant . . . ." 43 The language of the foregoing provision is clear. A private individual who has in his charge any of the public funds or property enumerated therein and commits any of the acts defined in any of the provisions of Chapter Four, Title Seven of the RPC, should likewise be penalized with the same penalty meted to erring public officers. Nowhere in this provision is it expressed or implied that a private individual falling under said Article 222 is to be deemed a public officer. After a thorough review of the case at bench, the Court thus finds Petitioner Alfredo Azarcon and his co-accused Jaime Ancla to be both private individuals erroneously charged before and convicted by Respondent Sandiganbayan which had no jurisdiction over them. The Sandiganbayan's taking cognizance of this case is of no moment since "(j)urisdiction cannot be conferred by . . . erroneous belief of the court that it had jurisdiction." 44 As aptly and correctly stated by the petitioner in his memorandum: From the foregoing discussion, it is evident that the petitioner did not cease to be a private individual when he agreed to act as depositary of the garnished dump truck. Therefore, when the information charged him and Jaime Ancla before the Sandiganbayan for malversation of public funds or property, the prosecution was in fact charging two private individuals without any public officer being similarly charged as a co-conspirator. Consequently, the Sandiganbayan had no jurisdiction over the controversy and therefore all the proceedings taken below as well as the Decision rendered by Respondent Sandiganbayan, are null and void for lack of jurisdiction. 45

WHEREFORE, the questioned Resolution and Decision of the Sandiganbayan are hereby SET ASIDE and declared NULL and VOID for lack of jurisdiction. No costs. SO ORDERED.