Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No.

L-14628 September 30, 1960

FRANCISCO HERMOSISIMA, petitioner, vs. THE HON. COURT OF APPEALS, ET AL., respondents. Regino Hermosisima for petitioner. F.P. Gabriel, Jr. for respondents. CONCEPCION, J.: An appeal by certiorari, taken by petitioner Francisco Hermosisima, from a decision of Court of Appeals modifying that of the Court of First Instance of Cebu. On October 4, 1954, Soledad Cagigas, hereinafter referred to as complaint, filed with said of her child, Chris Hermosisima, as natural child and moral damages for alleged breach of promise. Petitioner admitted the paternity of child and expressed willingness to support the latter, but denied having ever promised to marry the complainant. Upon her motion, said court ordered petitioner, on October 27, 1954, to pay, by way of alimony pendente lite, P50.00 a month, which was, on February 16, 1955, reduced to P30.00 a month. In due course, later on, said court rendered a decision the dispositive part of which reads: WHEREFORE, judgment is hereby rendered, declaring the child, Chris Hermosisima, as the natural daughter of defendant, and confirming the order pendente lite, ordering defendant to pay to the said child, through plaintiff, the sum of thirty pesos (P30.00), payable on or before the fifth day of every month sentencing defendant to pay to plaintiff the sum of FOUR THOUSAND FIVE HUNDRED PESOS (P4,500.00) for actual and compensatory damages; the sum of FIVE THOUSAND PESOS (P5,000.00) as moral damages; and the further sum of FIVE HUNDRED PESOS (P500.00) as attorney's fees for plaintiff, with costs against defendant. On appeal taken by petitioner, the Court of Appeals affirmed this decision, except as to the actual and compensatory damages and the moral damages, which were increased to P5,614.25 and P7,000.00, respectively. The main issue before us is whether moral damages are recoverable, under our laws, for breach of promise to marry. The pertinent facts are: Complainant Soledad Cagigas, was born in July 1917. Since 1950, Soledad then a teacher in the Sibonga Provincial High School in Cebu, and petitioner, who was almost ten (10) years younger than she, used to go around together and were regarded as engaged, although he had made no promise of marriage prior thereto. In 1951, she gave up teaching and became a life insurance underwriter in the City of Cebu, where intimacy developed among her and the petitioner, since one evening in 1953, when after coming from the movies, they had sexual intercourse in his cabin on board M/V "Escao," to which he was then attached as apprentice pilot. In February 1954, Soledad advised petitioner that she was in the family way, whereupon he promised to marry her. Their child, Chris Hermosisima, was born on June 17, 1954, in a private maternity and clinic. However, subsequently, or on July 24, 1954, defendant married one Romanita Perez. Hence, the present action, which was commenced on or about October 4, 1954. Referring now to the issue above referred to, it will be noted that the Civil Code of Spain permitted the recovery of damages for breach to marry. Article 43 and 44 of said Code provides: ART. 43. A mutual promise of marriage shall not give rise to an obligation to contract marriage. No court shall entertain any complaint by which the enforcement of such promise is sought.

ART. 44. If the promise has been in a public or private instrument by an adult, or by a minor with the concurrence of the person whose consent is necessary for the celebration of the marriage, or if the banns have been published, the one who without just cause refuses to marry shall be obliged to reimburse the other for the expenses which he or she may have incurred by reason of the promised marriage. The action for reimbursement of expenses to which the foregoing article refers must be brought within one year, computed from the day of the refusal to celebrate the marriage. Inasmuch as these articles were never in force in the Philippines, this Court ruled in De Jesus vs. Syquia (58 Phil., 866), that "the action for breach of promises to marry has no standing in the civil law, apart from the right to recover money or property advanced . . . upon the faith of such promise". The Code Commission charged with the drafting of the Proposed Civil Code of the Philippines deem it best, however, to change the law thereon. We quote from the report of the Code Commission on said Proposed Civil Code: Articles 43 and 44 the Civil Code of 1889 refer to the promise of marriage. But these articles are not enforced in the Philippines. The subject is regulated in the Proposed Civil Code not only as to the aspect treated of in said articles but also in other particulars. It is advisable to furnish legislative solutions to some questions that might arise relative to betrothal. Among the provisions proposed are: That authorizing the adjudication of moral damages, in case of breach of promise of marriage, and that creating liability for causing a marriage engagement to be broken.1awphl.nt Accordingly, the following provisions were inserted in said Proposed Civil Code, under Chapter I, Title III, Book I thereof: Art. 56. A mutual promise to marry may be made expressly or impliedly. Art. 57. An engagement to be married must be agreed directly by the future spouses. Art. 58. A contract for a future marriage cannot, without the consent of the parent or guardian, be entered into by a male between the ages of sixteen and twenty years or by a female between the ages of sixteen and eighteen years. Without such consent of the parents or guardian, the engagement to marry cannot be the basis of a civil action for damages in case of breach of the promise. Art. 59. A promise to marry when made by a female under the age of fourteen years is not civilly actionable, even though approved by the parent or guardian. Art. 60. In cases referred to in the proceeding articles, the criminal and civil responsibility of a male for seduction shall not be affected. Art. 61. No action for specific performance of a mutual promise to marry may be brought. Art. 62. An action for breach of promise to marry may be brought by the aggrieved party even though a minor without the assistance of his parent or guardian. Should the minor refuse to bring suit, the parent or guardian may institute the action. Art. 63. Damages for breach of promise to marry shall include not only material and pecuniary losses but also compensation for mental and moral suffering. Art. 64. Any person, other than a rival, the parents, guardians and grandparents, of the affianced parties, who cause a marriage engagement to be broken shall be liable for damages, both material and moral, to the engaged person who is rejected. Art. 65. In case of breach of promise to marry, the party breaking the engagement shall be obliged to return what he or she has received from the other as gift on account of the promise of the marriage.

These article were, however, eliminated in Congress. The reason therefor are set forth in the report of the corresponding Senate Committee, from which we quote: The elimination of this Chapter is proposed. That breach of promise to marry is not actionable has been definitely decide in the case of De Jesus vs. Syquia, 58 Phil., 866. The history of breach of promise suit in the United States and in England has shown that no other action lends itself more readily to abuse by designing women and unscrupulous men. It is this experience which has led to the abolition of the rights of action in the so-called Balm suit in many of the American States. See statutes of: Florida 1945 pp. 1342 1344 Maryland 1945 pp. 1759 1762 Nevada 1943 p. 75 Maine 1941 pp. 140 141 New Hampshire 1941 p. 223 California 1939 p. 1245 Massachusetts 1938 p. 326 Indiana 1936 p. 1009 Michigan 1935 p. 201 New York 1935 Pennsylvania p. 450 The Commission perhaps though that it has followed the more progression trend in legislation when it provided for breach of promise to marry suits. But it is clear that the creation of such causes of action at a time when so many States, in consequence of years of experience are doing away with them, may well prove to be a step in the wrong direction. (Congressional Record, Vol. IV, No. 79, Thursday, May 19, 1949, p. 2352.) The views thus expressed were accepted by both houses of Congress. In the light of the clear and manifest intent of our law making body not to sanction actions for breach of promise to marry, the award of moral damages made by the lower courts is, accordingly, untenable. The Court of Appeals said award: Moreover, it appearing that because of defendant-appellant's seduction power, plaintiff-appellee, overwhelmed by her love for him finally yielded to his sexual desires in spite of her age and self-control, she being a woman after all, we hold that said defendant-appellant is liable for seduction and, therefore, moral damages may be recovered from him under the provision of Article 2219, paragraph 3, of the new Civil Code. Apart from the fact that the general tenor of said Article 2219, particularly the paragraphs preceding and those following the one cited by the Court of Appeals, and the language used in said paragraph strongly indicates that the "seduction" therein contemplated is the crime punished as such in Article as such in Article 337 and 338 of the Revised Penal Code, which admittedly does not exist in the present case, we find ourselves unable to say that petitioner is morally guilty of seduction, not only because he is approximately ten (10) years younger than the complainant who around thirty-six (36) years of age, and as highly enlightened as a former high school teacher and a life insurance agent are supposed to be when she became intimate with petitioner, then a mere apprentice pilot, but, also, because, the court of first instance found that, complainant "surrendered herself" to petitioner because, "overwhelmed by her love" for him, she "wanted to bind" "by having a fruit of their engagement even before they had the benefit of clergy ." The court of first instance sentenced petitioner to pay the following: (1) a monthly pension of P30.00 for the support of the child: (2) P4,500, representing the income that complainant had allegedly failed to earn during her pregnancy and shortly after the birth of the child, as actual and compensation damages; (3) P5,000, as moral damages; and (4) P500.00, as attorney's fees. The Court of Appeals added to the second item the sum of P1,114.25 consisting of P144.20, for hospitalization and medical attendance, in connection with the parturiation, and the balance representing expenses incurred to support the child and increased the moral damages to P7,000.00. With the elimination of this award for damages, the decision of the Court of Appeals is hereby affirmed, therefore, in all other respects, without special pronouncement as to cost in this instance. It is so ordered.

Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador, Reyes, J.B.L., Barrera, Gutierrez David, Paredes and Dizon, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-20089 December 26, 1964

BEATRIZ P. WASSMER, plaintiff-appellee, vs. FRANCISCO X. VELEZ, defendant-appellant. Jalandoni & Jamir for defendant-appellant. Samson S. Alcantara for plaintiff-appellee. BENGZON, J.P., J.: The facts that culminated in this case started with dreams and hopes, followed by appropriate planning and serious endeavors, but terminated in frustration and, what is worse, complete public humiliation. Francisco X. Velez and Beatriz P. Wassmer, following their mutual promise of love, decided to get married and set September 4, 1954 as the big day. On September 2, 1954 Velez left this note for his bride-to-be: Dear Bet Will have to postpone wedding My mother opposes it. Am leaving on the Convair today. Please do not ask too many people about the reason why That would only create a scandal. Paquing But the next day, September 3, he sent her the following telegram: NOTHING CHANGED REST ASSURED RETURNING VERY SOON APOLOGIZE MAMA PAPA LOVE . PAKING Thereafter Velez did not appear nor was he heard from again. Sued by Beatriz for damages, Velez filed no answer and was declared in default. Plaintiff adduced evidence before the clerk of court as commissioner, and on April 29, 1955, judgment was rendered ordering defendant to pay plaintiff P2,000.00 as actual damages; P25,000.00 as moral and exemplary damages; P2,500.00 as attorney's fees; and the costs. On June 21, 1955 defendant filed a "petition for relief from orders, judgment and proceedings and motion for new trial and reconsideration." Plaintiff moved to strike it cut. But the court, on August 2, 1955, ordered the parties and their attorneys to appear before it on August 23, 1955 "to explore at this stage of the proceedings the possibility of arriving at an amicable settlement." It added that should any of them fail to appear "the petition for relief and the opposition thereto will be deemed submitted for resolution." On August 23, 1955 defendant failed to appear before court. Instead, on the following day his counsel filed a motion to defer for two weeks the resolution on defendants petition for relief. The counsel stated that he would confer with defendant in Cagayan de Oro City the latter's residence on the possibility of an amicable element. The court granted two weeks counted from August 25, 1955.

Plaintiff manifested on June 15, 1956 that the two weeks given by the court had expired on September 8, 1955 but that defendant and his counsel had failed to appear. Another chance for amicable settlement was given by the court in its order of July 6, 1956 calling the parties and their attorneys to appear on July 13, 1956. This time. however, defendant's counsel informed the court that chances of settling the case amicably were nil. On July 20, 1956 the court issued an order denying defendant's aforesaid petition. Defendant has appealed to this Court. In his petition of June 21, 1955 in the court a quo defendant alleged excusable negligence as ground to set aside the judgment by default. Specifically, it was stated that defendant filed no answer in the belief that an amicable settlement was being negotiated. A petition for relief from judgment on grounds of fraud, accident, mistake or excusable negligence, must be duly supported by an affidavit of merits stating facts constituting a valid defense. (Sec. 3, Rule 38, Rules of Court.) Defendant's affidavit of merits attached to his petition of June 21, 1955 stated: "That he has a good and valid defense against plaintiff's cause of action, his failure to marry the plaintiff as scheduled having been due to fortuitous event and/or circumstances beyond his control." An affidavit of merits like this stating mere conclusions or opinions instead of facts is not valid. (Cortes vs. Co Bun Kim, L-3926, Oct. 10, 1951; Vaswani vs. P. Tarrachand Bros., L-15800, December 29, 1960.) Defendant, however, would contend that the affidavit of merits was in fact unnecessary, or a mere surplusage, because the judgment sought to be set aside was null and void, it having been based on evidence adduced before the clerk of court. In Province of Pangasinan vs. Palisoc, L-16519, October 30, 1962, this Court pointed out that the procedure of designating the clerk of court as commissioner to receive evidence is sanctioned by Rule 34 (now Rule 33) of the Rules of Court. Now as to defendant's consent to said procedure, the same did not have to be obtained for he was declared in default and thus had no standing in court (Velez vs. Ramas, 40 Phil. 787; Alano vs. Court of First Instance, L-14557, October 30, 1959). In support of his "motion for new trial and reconsideration," defendant asserts that the judgment is contrary to law. The reason given is that "there is no provision of the Civil Code authorizing" an action for breach of promise to marry. Indeed, our ruling in Hermosisima vs. Court of Appeals (L-14628, Sept. 30, 1960), as reiterated in Estopa vs. Biansay (L-14733, Sept. 30, 1960), is that "mere breach of a promise to marry" is not an actionable wrong. We pointed out that Congress deliberately eliminated from the draft of the new Civil Code the provisions that would have it so. It must not be overlooked, however, that the extent to which acts not contrary to law may be perpetrated with impunity, is not limitless for Article 21 of said Code provides that "any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage." The record reveals that on August 23, 1954 plaintiff and defendant applied for a license to contract marriage, which was subsequently issued (Exhs. A, A-1). Their wedding was set for September 4, 1954. Invitations were printed and distributed to relatives, friends and acquaintances (Tsn., 5; Exh. C). The bride-to-be's trousseau, party drsrses and other apparel for the important occasion were purchased (Tsn., 7-8). Dresses for the maid of honor and the flower girl were prepared. A matrimonial bed, with accessories, was bought. Bridal showers were given and gifts received (Tsn., 6; Exh. E). And then, with but two days before the wedding, defendant, who was then 28 years old,: simply left a note for plaintiff stating: "Will have to postpone wedding My mother opposes it ... " He enplaned to his home city in Mindanao, and the next day, the day before the wedding, he wired plaintiff: "Nothing changed rest assured returning soon." But he never returned and was never heard from again. Surely this is not a case of mere breach of promise to marry. As stated, mere breach of promise to marry is not an actionable wrong. But to formally set a wedding and go through all the above-described preparation and publicity, only to walk out of it when the matrimony is about to be solemnized, is quite different. This is palpably and unjustifiably contrary to good customs for which defendant must be held answerable in damages in accordance with Article 21 aforesaid.

Defendant urges in his afore-stated petition that the damages awarded were excessive. No question is raised as to the award of actual damages. What defendant would really assert hereunder is that the award of moral and exemplary damages, in the amount of P25,000.00, should be totally eliminated. Per express provision of Article 2219 (10) of the New Civil Code, moral damages are recoverable in the cases mentioned in Article 21 of said Code. As to exemplary damages, defendant contends that the same could not be adjudged against him because under Article 2232 of the New Civil Code the condition precedent is that "the defendant acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner." The argument is devoid of merit as under the abovenarrated circumstances of this case defendant clearly acted in a "wanton ... , reckless [and] oppressive manner." This Court's opinion, however, is that considering the particular circumstances of this case, P15,000.00 as moral and exemplary damages is deemed to be a reasonable award. PREMISES CONSIDERED, with the above-indicated modification, the lower court's judgment is hereby affirmed, with costs. Bengzon, C.J., Bautista Angelo, Reyes, J.B.L., Barrera, Paredes, Dizon, Regala, Makalintal, and Zaldivar, JJ., concur.

Case on Prejudicial Question Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 124498 October 5, 2001

EDDIE B. SABANDAL, petitioner, vs. HON. FELIPE S. TONGCO, Presiding Judge, Regional Trial Court, Manila, Branch 42, and PHILIPPINES TODAY, respondents. PARDO, J.: The Case The case is a petition to suspend the criminal proceedings in the Regional Trial Court, Manila, Branch 42, 1 where petitioner Eddie B. Sabandal is charged with eleven counts of violation of Batas Pambansa Bilang 22. 2 The Facts On February 18, 1989, Eddie B. Sabandal entered into a memorandum of agreement on dealership with respondent Philippines Today, Inc. for the distribution of the newspaper Philippines Today, (now Philippine Star) in Bacolod City and in designated towns in Negros Occidental.3 Under the agreement, petitioner shall pay for an equivalent amount of one month of deliveries in advance within the first seven days of the succeeding month. Petitioner's allowable percentage of return shall be 10% and be entitled to a rebate of P0.15 per copy sold. After execution of the agreement, respondent Philippines Today, Inc. made regular deliveries of the agreed copies of the newspaper to petitioner. In order to make partial payments for the deliveries, on December 18, 1990 to April 15, 1991, petitioner issued to respondent several checks amounting to ninety thousand (P90,000.00) pesos. When respondent presented petitioner's checks to the drawee banks for payment, the bank dishonored the checks for insufficiency of funds and/or account closed. Consequently, respondent made oral and written demands for petitioner to make good the checks. However, petitioner failed to pay despite demands. In December 1992, on the basis of a complaint-affidavit filed by respondent Philippines Today, Inc., assistant city prosecutor of Manila Jacinto A. de los Reyes, Jr. filed with the Regional Trial Court, Manila eleven informations for violation of Batas Pambansa Bilang 22 against petitioner. 4 Three years later, or on October 11, 1995, petitioner filed with the Regional Trial Court, Negros Occidental at Himamaylan, a complaint against Philippines Today, Inc. for specific performance, recovery of overpayment and damages.5 On October 11, 1995, petitioner also filed with the Regional Trial Court, Manila, Branch 42, a motion to suspend trial in the criminal cases against him based on a prejudicial question. 6 On November 27, 1995, the trial court denied petitioner's motion to suspend trial based on a prejudicial question. 7

On December 20, 1995, petitioner filed with the trial court a motion for reconsideration of the denial. 8 On January 9, 1996, the trial court denied the motion for reconsideration. 9 Hence, this petition.10 The Issue The issue raised is whether a prejudicial question exists to warrant the suspension of the trial of the criminal cases for violation of Batas Pambansa Bilang 22 against petitioner until after the resolution of the civil action for specific performance, recovery of overpayment, and damages. The Court's Ruling The petition has no merit. The two (2) essential elements of a prejudicial question are: (a) the civil action involves an issue similar or intimately related to the issue raised in the criminal action; and (b) the resolution of such issue determines whether or not the criminal action may proceed.11 "A prejudicial question is defined as that which arises in a case the resolution of which is a logical antecedent of the issue involved therein, and the cognizance of which pertains to another tribunal. The prejudicial question must be determinative of the case before the court but the jurisdiction to try and resolve the question must be lodged in another court or tribunal. It is a question based on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or innocence of the accused." 12 "For a civil action to be considered prejudicial to a criminal case as to cause the suspension of the criminal proceedings until the final resolution of the civil, the following requisites must be present: (1) the civil case involves facts intimately related to those upon which the criminal prosecution would be based; (2) in the resolution of the issue or issues raised in the civil action, the guilt or innocence of the accused would necessarily be determined; and (3) jurisdiction to try said question must be lodged in another tribunal." 13 If both civil and criminal cases have similar issues or the issue in one is intimately related to the issues raised in the other, then a prejudicial question would likely exist, provided the other element or characteristic is satisfied. 14 It must appear not only that the civil case involves the same facts upon which the criminal prosecution would be based, but also that the resolution of the issues raised in the civil action would be necessarily determinative of the guilt or innocence of the accused.15 If the resolution of the issue in the civil action will not determine the criminal responsibility of the accused in the criminal action based on the same facts, or there is no necessity "that the civil case be determined first before taking up the criminal case," therefore, the civil case does not involve a prejudicial question.16 Neither is there a prejudicial question if the civil and the criminal action can, according to law, proceed independently of each other.17 In this case, the issue in the criminal cases for violation of Batas Pambansa Bilang 22 is whether the accused knowingly issued worthless checks. The issue in the civil action for specific performance, overpayment, and damages is whether complainant Sabandal overpaid his obligations to Philippines Today, Inc. If, after trial in the civil case, petitioner is shown to have overpaid respondent, it does not follow that he cannot be held liable for the bouncing checks he issued, for the mere issuance of worthless checks with knowledge of the insufficiency of funds to support the checks is itself an offense.18 The lower court, therefore, did not err in ruling that the pendency of a civil action for specific performance, overpayment, and damages did not pose a prejudicial question in the criminal cases for violation of Batas Pambansa Bilang 22. Furthermore, the peculiar circumstances of the case clearly indicate that the filing of the civil case was a ploy to delay the resolution of the criminal cases. Petitioner filed the civil case three years after the institution of the criminal

charges against him. Apparently, the civil action was instituted as an afterthought to delay the proceedings in the criminal cases. Petitioner's claim of overpayment to respondent may be raised as a defense during the trial of the cases for violation of Batas Pambansa Bilang 22 charged against him. The civil action for recovery of civil liability is impliedly instituted with the filing of the criminal action.19 Hence, petitioner may invoke all defenses pertaining to his civil liability in the criminal action.20 The Fallo WHEREFORE, the Court hereby DISMISSES the petition for lack of merit. The Court directs the Regional Trial Court, Manila to proceed with the trial of the criminal cases against petitioner with all judicious dispatch in accordance with the Speedy Trial Act of 1998.21 No costs. SO ORDERED. Davide, Jr., C.J., (Chairman), Puno, and Ynares-Santiago, JJ., concur. Kapunan, J., on official leave.

Footnotes
1

In Criminal Cases Nos. 92-113446-56, Judge Felipe S. Tongco, presiding. Otherwise known as the Bouncing Checks Law. Petition, Annex "A", Rollo, p. 34. Petition, Annexes "B", "C", "D", "E", "F", "G", "H", "I", "J", "K", "L", Rollo, pp. 35-45. Peittion, Annex "M", Rollo, pp. 46-52. Petition, Annex "N", Rollo, pp. 54-56. Petition, Annex "P", Rollo, pp. 61-62. Petition, Annex "Q", Rollo, pp. 63-73. Petition, Annex "R", Rollo, p. 74.

10

Filed on April 24, 1996, Rollo, pp. 17-32. On June 23, 1999, the Court gave due course to the petition (Rollo, pp. 176-177). The case was considered submitted for decision upon the filing of petitioner's memorandum on October 12, 1999 (Rollo, pp. 271-280).
11

Rule 111, Section 5, 1985 Rules of Criminal Procedure; Dichaves v. Apalit, 333 SCRA 54, 57 [2000]; Ching v. Court of Appeals, 331 SCRA 16, 27 [2000].
12

Donato v. Luna, 160 SCRA 441 [1988]; Quiambao v. Osorio, 158 SCRA 674 [1988]; Ras v. Rasul, 100 SCRA 125, 127 [1980].
13

Prado v. People, 218 Phil. 573, 577 [1984].

14

Alano v. Court of Appeals, 347 Phil. 549, 553 [1997], citing Benitez v. Concepcion, Jr., 112 Phil. 105 [1961]. Te v. Court of Appeals, G. R. No. 126746, November 29, 2000; Beltran v. People, 334 SCRA 106, 111 [2000]. Isip v. Gonzales, 148-A Phil. 212 [1971]. Rojas v. People, 156 Phil. 224, 229 [1974]. Lozano v. Martinez, 146 SCRA 323 [1986].

15

16

17

18

19

Rule 111, Section 1, 1985 Rules of Criminal Procedure; Garcia v. Court of Appeals, 334 Phil. 621, 632 [1997]; Manuel v. Alfeche, Jr., 328 Phil. 832, 840-841 [1996].
20

First Producers Holdings Corporation v. Co, 336 SCRA 551, 559 [2000]; Javier v. Intermediate Appellate Court, 171 SCRA 605 [1989].
21

R. A. No. 8493.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

GR. No. 101236 January 30, 1992 JULIANA P. YAP, petitioner, vs. MARTIN PARAS and ALFREDO D. BARCELONA, SR., Judge of the 3rd MTC of Glan Malapatan, South Cotabato, respondents. Mariano C. Alegarbes for petitioner. Public Attorney's Office for private respondent.

CRUZ, J.: This is still another dispute between brother and sister over a piece of property they inherited from their parents. The case is complicated by the circumstance that the private respondent's counsel in this petition is the son of the judge, the other respondent, whose action is being questioned. Petitioner Juliana P. Yap was the sister of private respondent Martin Paras. * On October 31, 1971, according to Yap, Paras sold to her his share in the intestate estate for P300.00. The sale was evidenced by a private document. Nineteen years later, on May 2, 1990, Paras sold the same property to Santiago Sayaang for P5,000.00. This was evidenced by a notarized Deed of Absolute Sale. When Yap learned of the second sale, she filed a complaint for estafa against Paras and Saya-ang with the Office of the Provincial Prosecutor of General Santos City. 1 On the same date, she filed a complaint for the nullification of the said sale with the Regional Trial Court of General Santos City. 2 After investigation, the Provincial Prosecutor instituted a criminal complaint for estafa against Paras with the Municipal Circuit Trial Court of Glan-Malapatan, South Cotabato, presided by Judge Alfredo D. Barcelona, Sr. On April 17, 1991, before arraignment of the accused, the trial judge motu proprio issued an order dismissing the criminal case on the ground that:
. . . after a careful scrutiny of the statements of complainant, Juliana P. Yap and of the respondent Martin Paras and his witnesses, the Court holds and maintained (sic) that there is a prejudicial question to a civil action, which must be ventilated in the proper civil court. In the case of Ras vs. Rasul, 100 SCRA 125, the Supreme Court had already made a pronouncement that "a criminal action for Estafa for alleged double sale of property is a prejudicial question to a civil action for nullity of the alleged Deed of Sale and defense of the alleged vendors of forgeries of their signatures to the Deed." 3

The Petitioner moved for reconsideration, which was denied on April 30, 1990. She then came to this Court for relief in this special civil action for certiorari. The Court could have referred this petition to the Court of Appeals, which has concurrent jurisdiction under BP 129, but decided to resolve the case directly in view of the peculiar circumstances involved.

The petitioner's contention is that where there is a prejudicial question in a civil case, the criminal action may not be dismissed but only suspended. Moreover, this suspension may not be done motu proprio by the judge trying the criminal case but only upon petition of the defendant in accordance with the Rules of Court. It is also stressed that a reversal of the order of dismissal would not bar the prosecution of the accused under the double jeopardy rule because he has not yet been arraigned. The Court notes that the counsel for private respondent Paras who filed the comment in his behalf is the son and namesake of Judge Barcelona. Atty. Alfredo L. Barcelona, Jr. is employed in the Public Attorney's Office. He has made it of record that he was not the counsel of Paras at the time the questioned order of dismissal was issued by his father. He thus impliedly rejects the charge of bias against his father. Perhaps out of filial loyalty, Atty. Barcelona suggests there may have been a basis for the order in view of the alleged double sale of the property which was being litigated in the regional trial court. He concedes, however, that the order may have been premature and that it could not have been issued motu proprio. Agreeing that double jeopardy would not attach because of the lack of arraignment, he asks that his Comment be considered a motion for the suspension of the criminal action on the ground of prejudicial question. The Court has deliberated on the issues and finds that the respondent judge did indeed commit grave abuse of discretion in motu proprio issuing the order of dismissal. Section 6, Rule 111 of the 1985 Rules on Criminal Procedure as amended by this Court on July 7, 1988, provides as follows:
Sec. 6. Suspension by reason of prejudicial question. A petition for suspension of the criminal action based upon the pendency of a prejudicial question in a civil action may be filed in the office of the fiscal or the court conducting the preliminary investigation. When the criminal action has been filed in court for trial, the petition to suspend shall be filed in the same criminal action at any time before the prosecution rests.

Judge Barcelona's precipitate action is intriguing, to say the least, in light of the clear provision of the above-quoted rule. The rule is not even new, being only a rewording of the original provision in the Rules of Court before they were amended. It plainly says that the suspension may be made only upon petition and not at the instance of the judge alone, and it also says suspension, and not dismissal. One also wonders if the person who notarized the disputed second sale, Notary Public Alexander C. Barcelona, might be related to the respondent judge. But more important than the preceding considerations is the trial judge's misapprehension of the concept of a prejudicial question. Section 5, Rule 111 of the 1985 Rules on Criminal Procedure as amended provides:
Sec. 5. Elements of prejudicial question. The two (2) essential elements of a prejudicial question are: (a) the civil action involves an issue similar or intimately related to the issue raised in the criminal action; and (b) the resolution of such issue determines whether or not the criminal action may proceed.

A prejudicial question is defined as that which arises in a case the resolution of which is a logical antecedent of the issue involved therein, and the congnizance of which pertains to another tribunal. The prejudicial question must be determinative of the case before the court but the jurisdiction to try and resolve the question must be lodged in another court or tribunal. 4 It is a question based on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or innocence of the accused. 5 We have held that "for a civil case to be considered prejudicial to a criminal action as to cause the suspension of the criminal action pending the determination of the civil action, it must appear not only that the civil case involves the same facts upon which the criminal prosecution is based, but also that the resolution of the issues raised in said civil action would be necessarily determinative of the guilt or innocence of the accused". 6 It is the issue in the civil action that is prejudicial to the continuation of the criminal action, not the criminal action that is prejudicial to the civil action.

The excerpt quoted by the respondent judge in his Order does not appear anywhere in the decision of Ras v. Rasul. 7 Worse, he has not only misquoted the decision but also wrongly applied it. The facts of that case are not analogous to those in the case at bar. In that case, Ras allegedly sold to Pichel a parcel of land which he later also sold to Martin. Pichel brought a civil action for nullification of the second sale and asked that the sale made by Ras in his favor be declared valid. Ras's defense was that he never sold the property to Pichel and his purported signatures appearing in the first deed of sale were forgeries. Later, an information for estafa was filed against Ras based on the same double sale that was the subject of the civil action. Ras filed a "Motion for Suspension of Action" (that is, the criminal case), claiming that the resolution of the issues in the civil case would necessarily be determinative of his guilt or innocence. Through then Associate Justice Claudio Teehankee, this Court ruled that a suspension of the criminal action was in order because:
On the basis of the issues raised in both the criminal and civil cases against petitioner and in the light of the foregoing concepts of a prejudicial question, there indeed appears to be a prejudicial question in the case at bar, considering that petitioner Alejandro Ras' defense (as defendant) in Civil Case No. 73 of the nullity and forgery of the alleged prior deed of sale in favor of Luis Pichel (plaintiff in the civil case and complaining witnesses in the criminal case) is based on the very same facts which would be necessarily determinative of petitioner Ras' guilt or innocence as accused in the criminal case. If the first alleged sale in favor of Pichel is void or fictitious, then there would be no double sale and petitioner would be innocent of the offense charged. A conviction in the criminal case (if it were allowed to proceed ahead) would be a gross injustice and would have to be set aside if it were finally decided in the civil action that indeed the alleged prior deed of sale was a forgery and spurious. xxx xxx xxx The petitioner Alejandro Ras claims in his answer to the complaint in Civil Case No. 73 that he had never sold the property in litigation to the plaintiff (Luis Pichel) and that his signatures in the alleged deed of sale and that of his wife were forged by the plaintiff. It is, therefore, necessary that the truth or falsity of such claim be first determined because if his claim is true, then he did not sell his property twice and no estafa was committed. The question of nullity of the sale is distinct and separate from the crime of estafa (alleged double sale) but so intimately connected with it that it determines the guilt or innocence of herein petitioner in the criminal action.

In the Ras case, there was a motion to suspend the criminal action on the ground that the defense in the civil case forgery of his signature in the first deed of sale had to be threshed out first. Resolution of that question would necessarily resolve the guilt or innocence of the accused in the criminal case. By contrast, there was no motion for suspension in the case at bar; and no less importantly, the respondent judge had not been informed of the defense Paras was raising in the civil action. Judge Barcelona could not have ascertained then if the issue raised in the civil action would determine the guilt or innocence of the accused in the criminal case. It is worth remarking that not every defense raised in the civil action will raise a prejudicial question to justify suspension of the criminal action. The defense must involve an issue similar or intimately related to the same issue raised in the criminal action and its resolution should determine whether or not the latter action may proceed. The order dismissing the criminal action without a motion for suspension in accordance with Rule 111, Section 6, of the 1985 Rules on Criminal Procedure as amended, and even without the accused indicating his defense in the civil case for the annulment of the second sale, suggests not only ignorance of the law but also bias on the part of the respondent judge. Judge Alfredo D. Barcelona, Sr. is sternly reminded that under the Code of Judicial Conduct, "a judge shall be faithful to the law and maintain professional competence" and "should administer justice impartially." He is hereby reprimanded for his questionable conduct in the case at bar, with the warning that commission of similar acts in the future will be dealt with more severely. WHEREFORE, the petition is GRANTED. The Order issued by Judge Alfredo D. Barcelona, Sr. dated April 17, 1991, dismissing Criminal Case No. 1902-G, and the Order dated April 30, 1991, denying the motion for reconsideration, are REVERSED and SET ASIDE. Criminal Case No. 1902-G is ordered REINSTATED for further proceedings, but to be assigned to a different judge. SO ORDERED.

Narvasa, C.J., Grio-Aquino and Medialdea, JJ., concur.

Footnotes
* She died pendente lite on September 2, 1991, and was by resolution of the Court dated January 13, 1991, substituted by her children, Ruperto, Rustico, Ignacio, Rogelio, Arsenio, Jr., all surnamed Yap, Rainilda Yap Breta, and the children of the deceased Teodora Yap Cuaycong. 1 Rollo, p. 8. 2 Ibid., p. 13. 3 Id., pp. 30-31. 4 People vs. Aragon, 94 Phil. 357; Merced vs. Diez, 109 Phil. 155; Zapanta vs. Montesa, 114 Phil. 428; Fortich-Celdran vs. Celdran, 19 SCRA 502. 5 De Leon vs. Mabanag, 70 Phil. 202; Mendiola vs. Macadaeg, 1 SCRA 593. 6 Ras vs. Rasul, 100 SCRA 125; Mendiola vs. Macadaeg, supra. 7 Supra.