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Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. Nos. 118757 & 121571
19, 2004

October

ROBERTO BRILLANTE, petitioner,


vs.
COURT OF APPEALS and THE PEOPLE OF
THE PHILIPPINES, respondents.
DECISION
TINGA, J.:
Good name in man and woman, dear my Lord,
Is the immediate jewel of their souls:
Who steals my purse steals trash; tis
Something, nothing;
But he that filches from me my good name
Robs me of that which not enriches him,
And makes me poor indeed.
- Shakespeare: Othello, III, iii, 155.
Every man has a right to build, keep and be
favored with a good name. This right is protected
by law with the recognition of slander and libel
as actionable wrongs, whether as criminal
offenses or tortious conduct.
In these consolidated petitions for review on
certiorari,1 petitioner Roberto Brillante (Brillante),
also known as Bobby Brillante, questions his
convictions for libel for writing and causing to be
published in 1988 an open letter addressed to
then President of the Republic of the Philippines
Corazon C. Aquino discussing the alleged
participation of Atty. Jejomar Binay (Binay), then
the "OIC Mayor"2 and a candidate for the
position of Mayor in the Municipality (now City)
of Makati, and Dr. Nemesio Prudente
(Prudente), then President of the Polytechnic
University of the Philippines, in an assassination
plot against Augusto Syjuco (Syjuco), another
candidate for Mayor of Makati at that time.
On January 7, 1988, Brillante, then a candidate
for the position of Councilor in Makati, held a
press conference at the Makati Sports Club
which was attended by some 50 journalists. In
the course of the press conference, Brillante
accused Binay of plotting the assassination of
Syjuco. He further accused Binay of terrorism,
intimidation and harassment of the Makati
electorate. Brillante also circulated among the
journalists copies of an open letter to President
Aquino which discussed in detail his charges
against Binay.3

Several journalists who attended the press


conference wrote news articles about the same.
Angel Gonong, a writer for the Peoples
Journal, wrote a news article entitled "Binay
Accused of Plotting Slays of Rivals." It was
cleared for publication by Max Buan, Jr. (Buan),
and Luis Camino (Camino), Editor-in-Chief and
News Editor, respectively, of the Peoples
Journal. Gloria Hernandez (Hernandez) wrote a
similar article entitled "Binay Slay Plan on
Syjuco" which was cleared for publication by
Augusto Villanueva (Villanueva) and Virgilio
Manuel (Manuel), Editor-in-Chief and News
Editor, respectively, of the News Today.4
The open letter was subsequently published
under the title "Plea to Cory--Save Makati" in
newspapers such as the Peoples Journal,
Balita, Malaya and Philippine Daily
Inquirer.5 The pertinent portions of the open
letter read:
4. We have received reports that Atty. Binay and
his group are plotting the assassination of Mr.
Augusto "Bobby" Syjuco, now frontrunner in the
Makati mayoralty race.
These reports are:
1. On December 14, 1987, Atty. Binay and Dr.
Nemesio Prudente, president of the Polytechnic
University of the Philippines (PUP), met at
Puerto Azul in Cavite with, among others, a
Commander Luming, a Major Rafael Nieva, and
a commander Francis Baloloy. Subject of the
meeting was "Winning the Election at all Costs."
xxx

xxx

xxx

3. On December 17, 1987, Dr. Prudente, Atty.


Binay and others including some unidentified
government officials discussed operation "Dirty
Fingers" after the ASEAN Summit Meeting. The
operation involves terrorism, the use of public
school teachers, the threat to kill or hurt political
ward and precinct leaders not supporting or
opposed to Atty. Binay, and to use these as
samples to show rivals that his group is capable
of doing so, the planting of his squads in places
close to potential targets, the mobilization of
"marshals" who will bring firearms and to ferry
hitmen to target points. The "marshals" will also
be used as "pointers" and to shelter the hitmen
after accomplishing or performing their missions.
xxx

xxx

xxx

4. On December 8, 1987, a certain Emilio


Anecito, tagged as a hitman in the group of Dr.
Prudente, has been specifically assigned to
assassinate Mr. Syjuco, Aniceto has been
described as Iranian mestizo looking, about five

(5) feet in height, fair complexioned curly haired,


sporting a mustache, and fairly built bodily. He is
said to be a silent person and supposedly has a
perfect score in hit missions assigned to him.
xxx

xxx

xxx

5. On December 10, 1987, it was reported that


Major Rafael Nieva had been assigned to work
with Mr. Aniceto, Nievas background report is
that he:
xxx

xxx

Public Relations Officer and Quimlat, Publisher


and Editor-in-Chief of Balita.15
Buan was not included in the trial of the cases in
the RTC-Manila because he eluded arrest and
was not arraigned. The charges against Pascual
and Quimlat were dropped upon motion of the
Assistant Prosecutor. The charges against
Macasaet and Albano were also eventually
dismissed upon motion of the prosecution. Only
Brillante and Sison remained as accused.16 Both
pleaded not guilty to the charges against them.

xxx

c. Was hired by Dr. Prudente as security officer


and personal bodyguard.
d. Is a notorious killer used by the PUP forces
and only his employer can control or stop him.6
As a result of the publication of the open letter,
Binay filed with the Makati fiscals office four
complaints for libel against Brillante, as the
author of the letter; Gonong, Buan and Camino
for writing and publishing the news article on
Brillantes accusations against him in
the Peoples Journal;7 Hernandez, Villanueva
and Manuel for writing and publishing a similar
news article in the News Today;8 and for
publishing the open letter, Buan and Camino of
thePeoples Journal;9 and Arcadio A. Sison
(Sison) as President of A. Sison and Associates,
an advertising agency.10
Francisco Baloloy (Baloloy), who was identified
in the open letter as among the persons who
attended the meeting organized by Binay and
Prudente to plan the assassination of Syjuco,
likewise filed a criminal complaint for libel
against Brillante, Domingo Quimlat (Quimlat),
Publisher and Editor-in-Chief of Balita, and
Sison as President of A. Sison and Associates.11
Subsequently, five Informations for libel against
Brillante were filed with the Regional Trial Court
(RTC) of Makati.
Similarly, on January 15, 1988, Prudente filed
four complaints for libel against Brillante and the
editors and publishers of the newspapers where
the open letter was published. On January 16,
1989, four Informations for libel were filed
against Brillante and several co-accused with
the RTC of Manila. Brillantes co-accused in
these cases were: (i) Buan, Editor-in-Chief of
the Peoples Journal;12 (ii) Amado P. Macasaet
(Macasaet), Publisher, and Noel Albano
(Albano), Editor, of the Malaya;13 (iii) Sison,
Public Relations Officer and Federico D. Pascual
(Pascual), Publisher and Executive Editor of
the Philippine Daily Inquirer;14 and (iv) Sison,

On January 25, 1993, the RTC-Manila acquitted


Sison but found Brillante guilty of libel on four
counts. The dispositive portion of the trial
courts Decision in the consolidated cases
reads:
WHEREFORE, judgment is rendered
pronouncing accused Bobby Brillante, also
known as Roberto Brillante, guilty beyond
reasonable doubt on four (4) counts, as author
or writer, of LIBEL defined under Article 353 of
the Revised Penal Code and penalized under
Article 355 of the same code, and sentencing
him in each count to the indeterminate penalty of
FOUR (4) MONTHS of arresto mayor, as
minimum, to TWO (2) YEARS of prision mayor,
as maximum, and to pay a fine of P2,000.00
with subsidiary imprisonment in case of
insolvency at the rate of ONE (1) DAY for
every P8.00 that he is unable to pay, but which
subsidiary imprisonment shall not exceed
EIGHT (8) months.
Accused Bobby Brillante is ordered to pay the
private offended party, Dr. Nemesio Prudente,
the total sum of P1,000,000.00 in these four (4)
cases for moral damages which the latter
suffered.
Accused Arcadio Sison is acquitted in the two
cases against him, his guilt of the charges
against him not having been established beyond
reasonable [doubt].
Two-third (2/3) of the costs is assessed against
accused Bobby Brillante while the remaining
one-third (1/3) is charged de oficio.17
Subsequently, Brillante appealed the Decision of
the RTC-Manila to the Court of
Appeals.18 Brillante contended that when
the Informations in Criminal Cases No. 8969614 to 17 were filed by the prosecutor on
January 16, 1989, the offense had already
prescribed because more than one year had
elapsed since the publication of the open letter
on January 10, 11 and 12, 1988. He also
averred that the open letter which he wrote and
caused to be published was not defamatory and

was without malice. Brillante also claimed that


the publication is considered privileged
communication. Finally, he argued that he is
entitled to equal protection of the laws and
should be acquitted of the offenses charged like
his co-accused.19

overruled by the appellate court. It held that


each and every publication of the same libel
constitutes a separate distinct offense and the
charge for one instance of publication shall not
bar a charge for subsequent and separate
publications.24

On September 27, 1994, the Court of Appeals


promulgated its Decision in CA-G.R. No.
14475 affirming the decision of the RTC-Manila.
The appellate court held that the offense of libel
had not yet prescribed because the one-year
prescription period should be reckoned from the
time that the private complainant Prudente filed
his complaint with the fiscals office on January
15, 1988 and not when the Informations were
filed by the prosecutor on January 16, 1989. The
Court of Appeals added that under Section 1,
Rule 110, which took effect during the pendency
of the cases against Brillante, the institution of
the complaint before the fiscals office or the
courts for preliminary investigation interrupts the
prescriptive period of the offense charged. It
held that being a procedural rule, Section 1,
Rule 110, applies to the cases against
Brillante.20

Brillante filed a Motion for Reconsideration of the


decision of the Court of Appeals, but the motion
was denied in aResolution dated January 19,
1995.25

The Court of Appeals further held that the RTCManila did not err in finding that Brillante had
committed libel against Prudente. It explained
that the open letter, when read in its entirety,
gives the impression that Prudente is part of a
purported criminal conspiracy to kill Syjuco.
According to the appellate court, the open letter
is a malicious defamation which produced in the
minds of the readers Brillantes intent and
purpose to injure the reputation of Prudente,
thereby exposing him to public hatred, contempt
and ridicule.21 The Court of Appeals rejected
Brillantes argument that the open letter may be
considered privileged communication because
the evidence does not show that Brillante wrote
and published it out of a legal, moral or social
duty.22
The appellate court also debunked Brillantes
allegation that he was denied the equal
protection of the laws because while the charges
against his co-accused were dropped, those
against him were not. According to the appellate
court, he and his co-accused are not similarly
situated because he was convicted of libel upon
a finding that there existed evidence beyond
reasonable doubt to sustain his conviction. In
contrast, the charges against his co-accused
were dismissed and their guilt was not proven
beyond reasonable doubt.23
Brillantes contention that his conviction for libel
on four counts gave rise to double jeopardy
because under our jurisdiction protection against
double jeopardy may be invoked only for the
same offense or identical offenses was also

In the meantime, Brillante was likewise


convicted for libel on five counts by the RTCMakati in Criminal Cases Nos. 88-1410, 881411, 88-1412, 88-3060 and 89-721. The
dispositive portion of the Decision dated March
22, 1993 of the RTC-Makati reads:
WHEREFORE, premises considered, judgment
is hereby rendered as follows:
1. In Criminal Cases Nos. 88-1410, 88-1411, 881412, 88-3060 and 89-721, finding accused
Bobby Brillante, also known as Roberto
Brillante, GUILTY beyond reasonable doubt of
the offense of libel charged in each of these five
(5) cases, and sentencing him in each of the
cases to suffer imprisonment of FOUR (4)
MONTHS of arresto mayor, as minimum, to
TWO (2) YEARS prision correccional, as
maximum, and to pay fine, likewise in each of
these (5) cases, of Four Thousand (P4,000.00)
Pesos, Philippine Currency, with subsidiary
imprisonment in case of insolvency pursuant to
Article 39, paragraph 1, of the Revised Penal
Code.
2. As to moral damages, said accused is also
ordered to pay complainant, Jejomar C. Binay,
the sum of One Million Pesos (P1,000,000.00),
Philippine Currency, in all the four (4) charges
(Crim. Cases Nos. 88-410, 88-1411, 88-1412
and 89-721), considering the latters
professional and political standing in society, he
being a lawyer and former Governor of the
Metro Manila Commission as well as director of
various government agencies.
3. As to moral damages, said accused is also
ordered to pay complainant, Francisco Baloloy,
the sum of Fifty Thousand Pesos (P50,000.00),
Philippine Currency, in Criminal Case No. 883060.
4. In Criminal Cases Nos. 88-1410 and 88-1412,
ACQUITTING accused Max Buan, Jr., Angel
Gonong and Louie Camino, of the two charges
against them on the ground that their guilt has
not been proven beyond reasonable doubt.

5. In Criminal Case No. 88-1411 (except for


accused Brillante) ordering the same
ARCHIVED on the ground that the other
accused herein, Gloria Hernandez, Augusto
Villanueva and Virgilio Manuel, have not been
brought to the jurisdiction of this Court; let alias
warrant issue for their arrest.
6. In Criminal Cases Nos. 88-3060 and 89-721,
likewise ordering the same ARCHIVED ONLY
WITH RESPECT TO accused Arcadio Sison,
who has not been brought to the jurisdiction of
this Court; let alias warrant issue for his arrest.
7. In all these cases, ordering accused Bobby
Brillante, also known as Roberto Brillante, to pay
the proportionate costs.
SO ORDERED.26
Brillante appealed the Decision of the RTCMakati to the Court of Appeals,27 raising
essentially the same arguments in his appeal in
CA-G.R. CR No. 14475.
On February 28, 1995, the Court of Appeals
rendered its Decision in CA-G.R. CR No. 15174
affirming the decision of the RTC-Makati. It held
that the filing of the complaint before the fiscals
office interrupts the period of prescription
because Article 91 of the Revised Penal Code
did not make any distinction whether the
complaint is filed in court for preliminary
investigation or for trial on the merits, because
the filing of the complaint for preliminary
investigation is the initial step of criminal
proceedings. It added that it would be unfair to
deprive the injured party of the right to obtain
vindication on account of delays which are not
within his control.28
The appellate court also ruled that the open
letter cannot be considered privileged
communication because it contains libelous
matter and was circulated to the public.
Citing U.S. v. Galeza,29 it held that while it is the
right and duty of a citizen to file a complaint
regarding a misconduct on the part of a public
official, such complaint must be addressed
solely to the officials having jurisdiction to inquire
into the charges.30
Lastly, the Court of Appeals sustained the trial
courts observation that unlike Brillante, his coaccused editors and publishers could not be
held liable for libel because the news reports
regarding the January 7, 1988 press conference
which were published in their respective
newspapers sufficiently informed the readers
that the reference to Binays involvement in the
assassination plot were allegations made by
Brillante during the press conference and that

said allegations were reported for the sole


purpose of informing the public of the news
regarding the candidates adverted to in the
report.31
Brillante filed a Motion for Reconsideration of the
appellate courts decision, but the motion was
denied in aResolution dated August 17, 1995.32
Thereafter, Brillante filed the present Petitions
for Review on March 13, 1995 in G.R. No.
118757 and on October 10, 1995 in G.R. No.
121571. In G.R. No. 118757, he raises the
following arguments:
I
THE OFFENSE OF LIBEL CHARGED IN THE
INFORMATION (sic) HAD ALREADY
PRESCRIBED WHEN THE SAID
INFORMATION (sic) WAS FILED.
II
HE IS NOT GUILTY OF LIBEL HE IS CHARGED
WITH, BECAUSE THE LETTER HE CAUSED
TO BE PUBLISHED WAS WRITTEN AND
PUBLISHED WITHOUT ANY MALICE [N]OR
MALICIOUS INTENT TO MALIGN THE
PERSON, HONOR AND REPUTATION OF THE
COMPLAINANT [PRUDENTE/BINAY] BUT
SOLELY FOR THE JUSTIFIED AND HONEST
PURPOSE OF BRINGING TO THE ATTENTION
OF ALL AUTHORITIES CONCERNED THE
REPORTS THEREIN MENTIONED FOR
APPROPRIATE ACTION. WHERE THERE IS
NO MALICE, THERE IS NO LIBEL.
III
IN TRUTH, PUBLICLY KNOWN PARAMILITARY
ACTIVITIES OF COMPLAINANT, DR.
NEMESIO PRUDENTE, ALREADY IN
OPERATION LONG BEFORE JANUARY 12,
1988, INDICATE THAT HE WAS NOT
INCAPABLE OF NOURISHING VIOLENT
INTENTIONS AGAINST THE POLITICAL
OPPONENTS OF MAYOR BINAY.
IV
MOREOVER, CONSIDERING THAT THE
MATTER REFERRED TO IN THE LETTER
INDUBITABLY RELATES TO THE ELECTION
CAMPAIGN THEN GOING ON AS WELL AS
THE PARTICIPATION OF PETITIONER AND
COMPLAINANT THEREIN, WHATEVER IS
CONTAINED IN SAID LETTER CAN AT MOST
BE NO MORE THAN A POLITICAL LIBEL,
WHICH IS NOT PUNISHABLE.

WE EARNESTLY URGE THAT THIS


PROPOSITION BE ENUNCIATED AS A
FUNDAMENTAL PRINCIPLE IN THE LAW ON
LIBEL.
V
IN THE REMOTE POSSIBILITY THAT THIS
HONORABLE COURT MAY PERCEIVE ANY
CRIMINAL LIBEL IN THIS CASE, THE
PENALTY IMPOSED UPON PETITIONER IS
CRUEL AND EXCESSIVE, PARTICULARLY, AS
TO THE AMOUNT OF DAMAGES AWARDED
TO COMPLAINANT.33
In G.R. No. 121571, he makes the following
assignments of error:
I
THE OFFENSE HAD PRESCRIBED
II
THE PUBLICATION WAS A PRIVILEGED
COMMUNICATION
III
THE PUBLICATION WAS MADE WITHOUT
MALICE
IV
IT MAY, AT MOST, ALSO BE CONSIDERED A
POLITICAL LIBEL WHICH IS NOT
PUNISHABLE
V
THE DECISION VIOLATES PETITIONERS
RIGHT TO EQUAL PROTECTION OF THE
LAWS
VI
THE PENALTY IS CRUEL AND EXCESSIVE34
With respect to the issue of prescription,
Brillante anchors his claim on the Courts ruling
in People v. Tayco35 that the prescriptive period
of a crime is interrupted only upon the filing of
the complaint in court and not the filing thereof
with the fiscals office. According to Brillante, the
ruling in People v. Olarte36 did not modify the
doctrine inTayco because in Olarte, the Court
referred to a complaint filed "in court," not in the
"fiscals office." The ruling inFrancisco v. Court
of Appeals37 that a complaint filed with the
fiscals office also interrupts the prescriptive
period of a criminal offense allegedly cannot
overturn the ruling in Olarte because the latter

was decided by the Court En


Banc while Francisco was decided by a mere
division of the Court.38
It is further asserted by Brillante that the rule in
the 1985 Rules on Criminal Procedure that the
filing of the criminal complaint with the fiscals
office interrupts the prescriptive period, cannot
be applied retroactively to the cases against him
because it impairs his vested right to have the
cases against him dismissed on the ground of
prescription.39 In addition, he claims that Section
6(b), Rule 3 of the 1985 Rules on Criminal
Procedure which states that "[t]he pendency of a
petition for suspension of the criminal action still
undergoing preliminary investigation in the
fiscals office shall interrupt the prescriptive
period for filing the corresponding complaint of
information" supports his position that prior to
the amendment of the Rules on Criminal
Procedure in 1985, the prevailing rule was that
only the filing of the complaint or information in
court tolls the prescriptive period for a criminal
offense.40
Brillante denies that he is liable for libel for
causing to be published his open letter
implicating Binay, Prudente and their associates
in a planned assassination of Syjuco as well as
election-related terrorism, and in uttering
remarks against Binay and his associates during
the January 7, 1988 press conference.
According to Brillante, his statements and
utterances were privileged communication
because he made them public out of a legal,
moral and social duty to safeguard the sanctity
of the elections to be held on January 18, 1988,
and to avoid the unnecessary loss of life.41 Since
his statements were privileged communication,
malice cannot be presumed from
them.42 Brillante adds that at the time he made
the statements, he honestly believed that they
were true. Citing an American case, Bays v.
Hunt,43 he contends that where there is an
honest belief in the truth of the charges made,
and the publication is in good faith, one is not
responsible even for publishing an untruth.44
It is further asserted by Brillante that since Binay,
the subject of the allegedly defamatory
statements is a public figure, his (Brillantes)
comments affecting Binays reputation is
constitutionally protected speech.45
Brillante also urges the Court to reverse his
convictions, reasoning that at most, what he
may have committed is "political libel" which
should exempt him form criminal liability,
considering that election campaigns can
become very heated and candidates from rival
camps often make charges and countercharges
which are offensive to the name, honor and
prestige of their opponents. He contends that

statements made by a candidate against his


rivals, although derogatory, are for the purpose
of convincing the electorate to prevent
suspicious characters from holding public office.
In essence, he posits the view that "political
libel" should be deemed constitutionally
protected speech.46
Brillante likewise argues that the multiple
publication rule, i.e., that each publication
constitutes one offense of libel, should not have
been applied to him, considering the factual
background of the open letter and the
statements uttered by him during the press
conference.47
Anent the issue of equal protection, Brillante
contends that he should have been acquitted
like his co-accused Angel Gonong who wrote the
news article in the Peoples Journal regarding
the January 7, 1988 press conference and Buan
and Camino who were the editors of that
publication.48
The Solicitor General filed a Comment on each
of the petitions.
The Solicitor General insists that the one-year
prescriptive period for libel should be reckoned
from the date of filing of the complaints with the
office of the prosecutor as clarified by the Court
in Olarte and Francisco and as stated in the
1985 Rules on Criminal Procedure, as amended
in 1988, which applies to the complaints filed
against Brillante as of October 1988.49
On the issue of libel, the Solicitor General insists
that Brillantes statements in the open letter
clearly impute upon Prudente and Binay a
criminal conspiracy to assassinate Syjuco.50 The
Solicitor General also maintains that contrary to
Brillantes claims, the open letter cannot be
considered privileged communication because it
was published without justifiable motives and it
was circulated for the information of the general
public instead of addressing the letter solely to
the authorities who had the power to curb the
dangers alleged by Brillante in the letter.51

statements were "political libel." Brillantes claim,


the Solicitor General asserts, has no basis in law
or jurisprudence.53
With respect to the issue of equal protection, the
Solicitor General avers that Brillante cannot be
acquitted like his co-accused publishers, editors
and writers because their alleged participation in
the commission of the libel are different from
Brillante who is the author of the libelous
statements. The writers of the news reports were
only narrating what took place during the
January 7, 1988 press conference, and wrote
the news articles to inform the public of
Brillantes statements. In the case of the editors
and publishers who published the open letter,
they indicated in their respective publications
that the open letter was a paid advertisement.
The publication of the news reports in the
newspapers was also done to inform the public
of what transpired during the January 7, 1988
press conference.54
The Solicitor General further argues that the
penalty imposed upon Brillante is not excessive
but is in accordance with law, which considers
one publication of a libelous statement as a
distinct offense from another publication of the
same statement.55
Thus, the Solicitor General prays that Brillantes
petitions be denied.56
Brillante thereafter filed a Reply to each of the
Solicitor Generals Comments. The replies
reiterate Brillantes arguments in his petitions.57
The Court is tasked to resolve the following
issues: (1) whether the offense of libel had
already prescribed when the Informations were
filed with the RTC-Manila and RTC-Makati; (2)
whether Brillante is guilty beyond reasonable
doubt of libel; (3) whether Brillante was denied
the equal protection of the laws; and (4) whether
the penalty imposed upon him is excessive.
Save for the issue on the amount of moral
damages, there is no merit in the petitions.

The Solicitor General disagrees with Brillantes


contention that his statements are
constitutionally protected because they are
criticisms of official conduct and deal with public
figures. According to the Solicitor General, the
record shows that Brillante did not have enough
basis to pass off his accusations as true
considering that he admitted to relying on
unnamed "intelligence sources."52

With respect to the issue of prescription, the


fourth paragraph of Article 90 of the Revised
Penal Code provides that the "crime of libel or
other similar offenses shall prescribe in one
year." In determining when the one-year
prescriptive period should be reckoned,
reference must be made to Article 91 of the
same code which sets forth the rule on the
computation of prescriptive periods of offenses:

It is also argued by the Solicitor General that


Brillantes statements cannot be exempt from
criminal liability on the ground that such

Computation of prescription of offenses.The


period of prescription shall commence to run
from the day on which the crime is discovered

by the offended party, the authorities, or their


agents, and shall be interrupted by the filing of
the complaint or information, and shall
commence to run again when such proceedings
terminate without the accused being convicted
or acquitted, or are unjustifiably stopped for any
reason not imputable to him.
The aforequoted provision expressly states that
prescriptive period shall be interrupted by the
filing of the complaint or information. The
meaning of the phrase "shall be interrupted by
the filing of the complaint or information" in
Article 91 has been settled in the landmark case
of People v. Olarte,58 where the Court settled
divergent views as to the effect of filing a
complaint with the Municipal Trial Court for
purposes of preliminary investigation on the
prescriptive period of the offense. The Court
therein held that the filing of the complaint for
purposes of preliminary investigation interrupts
the period of prescription of criminal
responsibility. It explained thus:
the filing of the complaint with the Municipal
Court, even if it be merely for purposes of
preliminary examination or investigation, should,
and does, interrupt the period of prescription of
the criminal responsibility, even if the court
where the complaint or information is filed can
not try the case on its merits. Several reasons
buttress this conclusion: first, the text of Article
91 of the Revised Penal Code, in declaring that
the period of prescription "shall be interrupted by
the filing of the complaint or information" without
distinguishing whether the complaint is filed in
the court for preliminary examination or
investigation merely, or for action on the merits.
Second, even if the court where the complaint or
information is filed may only proceed to
investigate the case, its actuations already
represent the initial step of the proceedings
against the offender. Third, it is unjust to deprive
the injured party the right to obtain vindication on
account of delays that are not under his control.
All that the victim of the offense may do on his
part to initiate the prosecution is to file the
requisite complaint.
And it is no argument that Article 91 also
expresses that the interrupted prescription "shall
commence to run again when such proceedings
terminate without the accused being convicted
or acquitted," thereby indicating that the court in
which the complaint or information is filed must
have the power to convict or acquit the accused.
Precisely, the trial on the merits usually
terminates in conviction or acquittal, not
otherwise. But it is in the court conducting a
preliminary investigation where the proceedings
may terminate without conviction or acquittal, if
the court should discharge the accused because
no prima facie case had been shown.59

Thereafter, the Court in Francisco v. Court of


Appeals60 clarified that the filing of the complaint
with the fiscals office also suspends the running
of the prescriptive period of a crime:
As is a well-known fact, like the proceedings in
the court conducting a preliminary investigation,
a proceeding in the Fiscal's Office may terminate
without conviction or acquittal.
As Justice Claudio Teehankee has observed:
To the writer's mind, these reasons logically call
with equal force, for the express overruling also
of the doctrine in People vs. Tayco, 73 Phil. 509,
(1941) that the filing of a complaint or denuncia
by the offended party with the City Fiscal's Office
which is required by law to conduct the
preliminary investigation does not interrupt the
period of prescription. In chartered cities,
criminal prosecution is generally initiated by the
filing of the complaint or denuncia with the city
fiscal for preliminary investigation. In the case of
provincial fiscals, besides being empowered like
municipal judges to conduct preliminary
investigations, they may even reverse actions of
municipal judges with respect to charges triable
by Courts of First instance . . ..61
There is no conflict in the pronouncements of
the Court in Olarte and Francisco as Brillante
erroneously suggests.Olarte laid down the
doctrine that a complaint filed for purposes of
preliminary investigation tolls the running of the
prescriptive period of a criminal offense. The
criminal complaint for libel in that case was filed,
for the purpose of preliminary investigation, with
the Justice of the Peace Court in Pozorrubio,
Pangasinan. Hence, in setting the doctrine, the
Court referred to the "filing of the complaint in
the Municipal Court."62 The question of whether
the doctrine laid down in Olarte also applies to
criminal complaints filed with the prosecutors
office was settled inFrancisco. Specifically, the
Court in Francisco amplified the Olarte doctrine
when it categorically ruled that the filing of a
complaint with the fiscals office suspends the
running of the prescriptive period of a criminal
offense.
Thus, the Court of Appeals committed no
reversible error in ruling that the offense of libel
had not yet prescribed when the informations
against Brillante and his co-accused were filed
in the RTC-Manila and RTC-Makati.
Neither did the appellate court err in sustaining
Brillantes conviction for libel.
Libel is defined under Article 353 of the Revised
Penal Code as "a public and malicious
imputation of a crime, or of a vice or defect, real

or imaginary, or any act, omission, condition,


status, or circumstance tending to cause the
dishonor, discredit or contempt of a natural or
juridical person, or to blacken the memory of
one who is dead."

unjustifiable harm.66 It is present when it is


shown that the author of the libelous remarks
made such remarks with knowledge that it was
false or with reckless disregard as to the truth or
falsity thereof.67

To be liable for libel, the following elements must


be shown to exist: (a) the allegation of a
discreditable act or condition concerning
another; (b) publication of the charge; (c) identity
of the person defamed; and (d) existence of
malice.63

Article 354 of the Revised Penal Code states, as


a general rule, that every defamatory imputation
is presumed to be malicious, even if true, if no
good intention and justifiable motive is shown. 68

There could be no dispute as to the existence of


the first three elements of libel in the cases at
bar.
An allegation made by a person against another
is considered defamatory if it ascribes to the
latter the commission of a crime; the possession
of a vice or defect, whether real or imaginary; or
any act, omission, condition, status or
circumstance which tends to dishonor or
discredit or put him in contempt, or which tends
to blacken the memory of one who is
dead.64 Brillantes statements during the January
7, 1988 press conference and in the open letter
explicitly referred to reprehensible acts allegedly
committed by Binay, Prudente and their
associates, such as the use of goons to threaten
Binays opponents in the election and the
plotting of Syjucos assassination.
The element of publication was likewise
established. There is publication if the
defamatory material is communicated to a third
person, i.e., a person other than the person to
whom the defamatory statement refers.65In the
cases at bar, it was proven that Brillante uttered
defamatory statements during the press
conference attended by some fifty journalists
and caused the open letter to be published in
several newspapers, namely,News Today,
Peoples Journal, Balita, Malaya and Philippine
Daily Inquirer.
Further, Brillante himself admitted that he named
Binay, Prudente and their associates as the
persons who participated in the planning of the
election-related terrorism and the assassination
of Syjuco not only in his open letter but also
during the press conference.
Thus, the determination of Brillantes culpability
for libel hinges on the question of whether his
statements were made with malice.
Malice is a term used to indicate the fact that the
offender is prompted by personal ill-will or spite
and speaks not in response to duty, but merely
to injure the reputation of the person defamed; it
implies an intention to do ulterior and

As an exception to the rule, the presumption of


malice is done away with when the defamatory
imputation qualifies as privileged
communication.69
Privileged communication may either be
absolutely privileged or conditionally privileged.
The Court in Orfanel v. People of the
Philippines70 differentiated absolutely privileged
communication from conditionally privileged
communication in this manner:
A communication is said to be absolutely
privileged when it is not actionable, even if its
author acted in bad faith. This class includes
statements made by members of Congress in
the discharge of their functions as such, official
communications made by public officers in the
performance of their duties, and allegations or
statements made by the parties or their counsel
in their pleadings or motions or during the
hearing of judicial proceedings, as well as the
answers given by witnesses in reply to questions
propounded to them, in the course of said
proceedings, provided that said allegations or
statements are relevant to the issues, and the
answers are responsive or pertinent to the
questions propounded to said witnesses. Upon
the other hand, conditionally or qualifiedly
privileged communications are those which,
although containing defamatory imputations,
would not be actionable unless made with
malice or bad faith.71(Emphasis supplied.)
Conditionally or qualifiedly privileged
communications are those mentioned in, Article
354 of the Revised Penal Code, to wit:
1. A private communication made by a person to
another in the performance of any legal, moral,
or social duty; and
2. A fair and true report, made in good faith,
without any comments or remarks, of any
judicial, legislative, or other official proceedings
which are not of confidential nature, or of any
statement, report, or speech delivered in said
proceedings, or of any act performed by public
officers in the exercise of their functions.72

Brillante claims that he wrote the open letter and


uttered the statement complained of during the
January 7, 1988 press conference out of a social
duty to disclose to all concerned the dangers to
which he and his fellow candidate Syjuco were
exposed in view of the concerted actions of
Binay and Prudente.73 In effect, he argues that
his defamatory statements and utterances fall
under Article 354, No. 1 and are in the nature of
privileged communication; hence, malice cannot
be presumed but must be established beyond
reasonable doubt.
The Court is not convinced.
In order to prove that a statement falls within the
purview of a qualifiedly privileged
communication under Article 354, No. 1, the
following requisites must concur: (1) the person
who made the communication had a legal,
moral, or social duty to make the
communication, or at least, had an interest to
protect, which interest may either be his own or
of the one to whom it is made; (2) the
communication is addressed to an officer or a
board, or superior, having some interest or duty
in the matter, and who has the power to furnish
the protection sought; and (3) the statements in
the communication are made in good faith and
without malice.74
With respect to the first requisite, the Court
in U.S. v. Caete75 clarified that the interest
sought to be protected by the person making the
communication need not be his own, but may
refer to an interest shared by the other members
of society.
It may therefore be argued that Brillantes
statements, which according to him were made
in order to protect himself and Syjuco as Binays
rivals in the 1988 elections, as well as to protect
the electorate from possible acts of terrorism by
Binay, Prudente and their associates and from
casting their votes for undeserving candidates,
satisfy the first requisite.
However, as the Solicitor General noted,
Brillantes statements were based merely on
unconfirmed intelligence reports. His belief in
such intelligence reports hardly justifies the
publication of such serious imputations against
his political rivals. As a journalist and as a
candidate for public office, Brillante should have
known that it is necessary to further verify the
truth or at least the reliability of the intelligence
reports before making them public. His hasty
publication thereof negates the existence of
good faith and justifiable motives.
The pronouncement of the Court in U.S. v.
Galeza76 is enlightening:

Every communication is privileged which is


made in good faith with a view to obtain redress
for some injury received or to prevent or punish
some public abuse. The privilege should not be
abused. If such communication be made
maliciously and without probable cause, the
pretense under which it is made, instead of
furnishing a defense, will aggravate the case of
the defendant. And a party will be taken to have
acted maliciously if he eagerly seizes on some
slight and frivolous matter, and without any
inquiry into the merits, without even satisfying
himself that the account of the matter that has
reached him is correct, hastily concludes that a
great public scandal has been brought to light
which calls for the immediate intervention of the
people. (Citations omitted.)77
It is, however, the absence of the second
element of a privileged communication that
unequivocally negates the characterization of
Brillantes statements as privileged
communication. The law requires that for a
defamatory imputation made out of a legal,
moral or social duty to be privileged, such
statement must be communicated only to the
person or persons who have some interest or
duty in the matter alleged, and who have the
power to furnish the protection sought by the
author of the statement.
In the cases at bar, although the open letter was
primarily addressed to then President Aquino,
the communication thereof was not limited to her
alone. It was also published in several
newspapers of general circulation and was thus
made known to the general public. Even if the
interest sought to be protected belongs not just
to Brillante but to the public in general, certainly,
the general public does not have the power to
remedy the alleged dangers sought to be
prevented by Brillante in publishing the open
letter or in uttering similar statements during the
January 7, 1988 press conference. Brillante
employed the shotgun approach to disseminate
the information which essentially destroyed the
reputations of the complainants. His lack of
selectivity is indicative of malice and is
anathema to his claim of privileged
communication.
In Daez v. Court of Appeals,78 Daez was charged
with libel for publishing a letter which accused
the Mayor of Meycauayan, Bulacan of
corruption. The letter addressed to the Mayor
was sent not only to him but also to the
Municipal Court, Municipal Council and Chief of
Police of Meycauayan, Bulacan. Daez
contended therein that he was not guilty of libel
because he was not motivated by malice or illwill in publishing the letter, but rather, he did it
out of good intentions and a social duty to bring
about reforms in the administration of the

municipal government of Meycauayan, Bulacan.


The Court affirmed his conviction for libel and
held:
The goodness of the intention is not always
sufficient by itself to justify the publication of an
injurious fact; thus the goodness of the end is
not a sufficient motive to warrant the
employment of illicit means to obtain it. The
existence of justifiable motives is a question
which has to be decided by taking into
consideration not only the intention of the author
of the publication but all the other circumstances
of each particular case. A communication
made bona fide upon any subject matter in
which the party communicating has an interest,
or in reference to which he has a duty, is
privileged, if made to a person having a
corresponding interest or duty, although it
contained criminatory matter which without this
privilege would be slanderous and actionable.
However, a written letter containing libelous
matter cannot be classified as privileged when it
is published and circulated among the
public.As a rule, it is the right and duty of a
citizen to make a complaint of any misconduct
on the part of public officials, which comes to his
notice, to those charged with supervision over
them. Such a communication is qualifiedly
privileged and the author is not guilty of libel.
The rule on privilege, however, imposes an
additional requirement. Such complaints should
be addressed solely to some official having
jurisdiction to inquire into the charges, or power
to redress the grievance or has some duty to
perform or interest in connection therewith. In
the instant case, none of the persons to whom
the letter was sent, was vested with the power of
supervision over the mayor or the authority to
investigate the charges made against the latter.
(Citations omitted.)79
Thus, the Court agrees with the finding of the
Court of Appeals that the statements made by
Brillante during the press conference and in the
open letter do not qualify as privileged
communication.
Indeed, the purpose of affording protection to
privileged communication is to permit all
interested persons or citizens with grievances to
freely communicate, with immunity, to the
persons who could furnish the protection asked
for. However, to shield such privilege from
abuse, the law itself requires at all times that
such petitions or communications shall be made
in good faith or with justifiable motives. If it is
established that the communication was made
maliciously or to persons who could not furnish
the protection sought, then the author thereof
cannot seek protection under the law.80 As was
explained by the Court in Caete:

The plainest principles of natural right and sound


public policy require that the utmost possible
freedom should be accorded every citizen to
complain to the supervising, removing and
appointing authorities of the misconduct of the
public officials with whom he comes into contact,
and like considerations make it equally proper
that members of a religious organization should
enjoy equal freedom in bringing to the attention
of the church authorities the misbehavior of their
spiritual leaders or of fellow-members.
Manifestly, the right must be exercised in good
faith, and may not with impunity be made the
occasion for the venting of private spite. It is
subject to the limitation and restriction that such
complaints must be made to a functionary
having authority to redress the evils complained
of; that they must be made in good faith and that
they must not be actuated by malice.81
The Court in Lu Chu Sing v. Lu Tiong
Gui82 clarified that the fact that a communication
is privileged does not mean that it is not
actionable; the privileged character of the
communication simply does away with the
presumption of malice, and the plaintiff has to
prove the fact of malice in such case.
However, since the open letter and the
statements uttered by Brillante during the
January 7, 1988 press conference are
defamatory and do not qualify as conditionally
privileged communication, malice is presumed
and need not be proven separately from the
existence of the defamatory statement.83
Considering that all the elements of libel are
present in the cases against Brillante, the Court
finds that no reversible error was committed by
the Court of Appeals in affirming his convictions
by the RTC-Manila and RTC-Makati.
Neither does the Court find any basis in law to
uphold Brillantes proposition that his statements
made during the January 7, 1988 press
conference and those in his open letter
constitute "political libel" and should thus be
exempt from liability. Unfounded and malicious
statements made by one against another in the
course of an election campaign, or by reason of
differences in political views are not per
se constitutionally protected speech. Our laws
on defamation84 provide for sanctions against
unjustified and malicious injury to a persons
reputation and honor. Although wider latitude is
given to defamatory utterances against public
officials in connection with or relevant to their
performance of official duties,85 or against public
figures in relation to matters of public interest
involving them,86 such defamatory utterances do
not automatically fall within the ambit of
constitutionally protected speech. If the
utterances are false, malicious or unrelated to a

public officers performance of his duties, the


same may give rise to criminal and civil liability.
With respect to the third issue, the Court agrees
with the appellate court that Brillantes right to
equal protection of the laws was not violated
when he was convicted of libel while his coaccused were acquitted.
The equal protection clause is not absolute;
rather, it permits of reasonable classification. If
the classification is characterized by real and
substantial differences, one class may be
treated differently from another.87 It is sufficient
that the law operates equally and uniformly on
all persons under similar circumstances or that
all persons are treated in the same manner, the
conditions not being different, both in the
privileges conferred and the liabilities imposed.88
As mentioned earlier, the cases against some of
some of Brillantes co-accused were dismissed
during the pendency of the cases before the trial
courts.89 Still, some of his co-accused remained
at large,90 leaving the trial courts with no option
but to archive the case as against them.
Brillantes other co-accused were acquitted
since, unlike Brillante, their guilt was not proven
beyond reasonable doubt.91
The foregoing clearly shows that Brillante was in
a situation different from his co-accused. The
prosecution was able to prove beyond
reasonable doubt his liability for libel, as the
author of the open letter and the source of the
defamatory statements uttered against Binay, et
al. during the January 7, 1988 press conference.
As such, his conviction for libel was not violative
of the equal protection clause.
The Court likewise finds no error on the part of
the Court of Appeals in affirming the penalties
imposed upon him by the trial courts of Manila
and Makati.
The penalty for libel by means of writing or
similar means is prision correccional in its
minimum and medium periods, or a fine ranging
from 200 to 6,000 pesos, or both, in addition to
the civil action which may be brought by the
offended party.92 It is likewise settled that a
single defamatory statement, if published
several times, gives rise to as many offenses as
there are publications. This is the "multiple
publication rule" which is followed in our
jurisdiction, as explained in Soriano v.
Intermediate Appellate Court:93
We follow the "multiple publication" rule in the
Philippines. Thus, in the cases of Montinola D.
Montalvo (34 Phil. 662, [1916]) and United

States v. Sotto (36 Phil. 389 [1917]), this Court


ruled that each and every publication of the
same libel constitutes a distinct offense. Stated
more succinctly for purposes of ascertaining
jurisdiction under Art. 360 of the Revised Penal
Code, as amended, every time the same written
matter is communicated such communication is
considered a distinct and separate publication of
the libel.
We explained this as follows:
"The common law as to causes of action for tort
arising out of a single publication was to the
effect that each communication of a written or
printed matter was a distinct and separate
publication of a libel contained therein, giving
rise to a separate cause of action. This rule
('multiple publication' rule) is still followed in
several American jurisdictions, and seems to be
favored by the American Law Institute. Other
jurisdictions have adopted the 'single publication'
rule which originated in New York, under which
any single integrated publication, such as one
edition of a newspaper, book, or magazine, or
one broadcast, is treated as a unit, giving rise to
only one cause of action, regardless of the
number of times it is exposed to different
people.. .(50 Am. Jur. 2d 659 cited in Time, Inc.
v. Reyes)" (39 SCRA 301, 313 [1971]).94
There is therefore no legal basis for Brillantes
claim that the penalties imposed upon him are
excessive.
The Court however agrees with Brillante that the
awards of moral damages in the two cases to
private complainants Binay, Prudente and
Baloloy are excessive considering the
circumstances surrounding the making and the
publication of the defamatory statements.
Accordingly, the award of moral damages in
favor of private complainant Prudente is reduced
to a total of Five Hundred Thousand Pesos
(P500,000.00) in Criminal Cases No. 89-69614,
89-69615, 89-69616 and 89-69617; and the
award of moral damages to private complainant
Binay is reduced to Five Hundred Thousand
Pesos (P500,000.00) in Criminal Cases No. 881410, 88-1411, 88-1412 and 89-721. The award
of moral damages to private complainant
Baloloy in Criminal Case No. 88-3060 is likewise
reduced to Twenty Five Thousand Pesos
(P25,000.00).
WHEREFORE, in view of the foregoing, the
petitions are GRANTED in part.
The Decision of the Court of Appeals in CA-G.R.
CR No. 14475 is AFFIRMED with
the MODIFICATION that the award of moral
damages to private complainant Dr. Nemesio
Prudente in Criminal Cases No. 89-69614, 89-

69615, 89-69616 is reduced to Five Hundred


Thousand Pesos (P500,000.00).
The Decision of the Court of Appeals in CA G.R.
CR No. 15174 is likewise AFFIRMED with
the MODIFICATION that the award of moral
damages to private complainants Atty. Jejomar
Binay and Francisco Baloloy is reduced to Five
Hundred Thousand Pesos (P500,000.00) in
Criminal Cases No. 88-1410, 88-1411, 88-1412
and 89-721, and Twenty Five Thousand Pesos
(P25,000.00) in Criminal Case No. 88-3060,
respectively.

eluded arrest and was not arraigned. Criminal


Case No. 88-1411 filed with the RTC-Makati was
archived with respect to Hernandez, Villanueva
and Manuel who had not been brought to the
jurisdiction of the trial court. Similarly, Criminal
Cases No. 88-3060 and 89-721 were archived
with respect to Sison who also had not been
brought to the jurisdiction of the RTC-Makati.

SO ORDERED.

Republic of the Philippines


SUPREME COURT
Baguio City

Footnotes
1

In G.R. No. 118757, petitioner


Roberto Brillante assails the Decision ([penned
by Associate Justice (now Associate Justice of
the Supreme Court) Consuelo Ynares-Santiago
and concurred in by Associate Justices Emeterio
C. Cui and Conchita Carpio Morales (now
Associate Justice of the Supreme Court)] dated
September 27, 1994 of the Court of Appeals in
CA-G.R. CR No. 14475 which affirmed his
conviction for libel on three counts by the
Regional Trial Court of Manila, Branch 35, as
well as the Resolution dated January 19, 1995
which dismissed his motion for reconsideration.
In G.R. No. 121571, petitioner Roberto Brillante
challenges the Decision ([penned by Associate
Justice Jaimal D. Rasul and concurred in by
Associate Justices Fidel P. Purisima (who later
became an Associate Justice of the Supreme
Court) and B.A. Adefuin-De la Cruz]) dated
February 28, 1995 of the Court of Appeals in CA
G.R. CR No. 15174 which affirmed his
conviction for libel on five counts by the
Regional Trial Court of Makati, Metro Manila,
Branch 145, as well as the Resolution dated
August 17, 1995 which denied his motion for
reconsideration.
4

Decision of the Regional Trial Court (RTC) of


Manila in Criminal Cases Nos. 88-1410-12, 883060 and 89-721, CA-G.R. CR No. 15174,
Rollo, p. 37
18

The case was docketed as CA-G.R. CR No.


14475 entitled People of the Philippines,
Plaintiff-Appellee v. Bobby Brillante @ Roberto
Brillante, Accused-Appellant.
89

In the cases before the RTC-Manila, the


charges against Pascual, Quimlat, Macasaet
and Albano were dismissed upon motion of the
prosecution.
90

Criminal Case No. 89-69614 filed with the


RTC-Manila was archived as to Buan who

91

Sison was acquitted by the RTC-Manila in the


two cases against him. Buan, Gonong and
Camino were also acquitted by the RTC-Makati.

THIRD DIVISION
G.R. No. 168641

April 27, 2007

PEOPLE OF THE PHILIPPINES, Petitioner,


vs.
CLEMENTE BAUTISTA, Respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
Before us is a Petition for Review
on Certiorari filed by the People of the
Philippines assailing the Decision1 of the Court
of Appeals (CA) dated June 22, 2005 in CA-G.R.
SP No. 72784, reversing the Order of the
Regional Trial Court (RTC), Branch 19, Manila
and dismissing the criminal case for slight
physical injuries against respondent on the
ground that the offense charged had already
prescribed.
The undisputed facts are as follows.
On June 12, 1999, a dispute arose between
respondent and his co-accused Leonida
Bautista, on one hand, and private complainant
Felipe Goyena, Jr., on the other.
Private complainant filed a Complaint with the
Office of the Barangay of Malate, Manila, but no
settlement was reached.
The barangay chairman then issued a
Certification to file action dated August 11,
1999.2
On August 16, 1999, private complainant filed
with the Office of the City Prosecutor (OCP) a
Complaint for slight physical injuries against
herein respondent and his co-accused. After
conducting the preliminary investigation,
Prosecutor Jessica Junsay-Ong issued a Joint
Resolution dated November 8, 1999
recommending the filing of an Information
against herein respondent. Such
recommendation was approved by the City
Prosecutor, represented by First Assistant City
Prosecutor Eufrocino A. Sulla, but the date of
such approval cannot be found in the records.
The Information was, however, filed with the

Metropolitan Trial Court (MeTC) of Manila,


Branch 28 only on June 20, 2000.
Respondent sought the dismissal of the case
against him on the ground that by the time the
Information was filed, the 60-day period of
prescription from the date of the commission of
the crime, that is, on June 12, 1999 had already
elapsed. The MeTC ruled that the offense had
not yet prescribed.
Respondent elevated the issue to the RTC via a
Petition for Certiorari, but the RTC denied said
petition and concurred with the opinion of the
MeTC.
Respondent then filed a Petition
for Certiorari with the CA. On June 22, 2005, the
CA rendered its Decision wherein it held that,
indeed, the 60-day prescriptive period was
interrupted when the offended party filed a
Complaint with the OCP of Manila on August 16,
1999. Nevertheless, the CA concluded that the
offense had prescribed by the time the
Information was filed with the MeTC, reasoning
as follows:
In the case on hand, although the approval of
the Joint Resolution of ACP Junsay-Ong bears
no date, it effectively terminated the proceedings
at the OCP. Hence, even if the 10-day period for
the CP or ACP Sulla, his designated alter ego, to
act on the resolution is extended up to the
utmost limit, it ought not have been taken as late
as the last day of the year 1999. Yet, the
information was filed with the MeTC only on
June 20, 2000, or already nearly six (6) months
into the next year. To use once again the
language of Article 91 of the RPC, the
proceedings at the CPO was "unjustifiably
stopped for any reason not imputable to him
(the accused)" for a time very much more
than the prescriptive period of only two (2)
months. The offense charged had, therefore,
already prescribed when filed with the court on
June 20, 2000. x x x3 (Emphasis supplied)
The dispositive portion of the assailed CA
Decision reads as follows:
WHEREFORE, we hereby REVERSE and SET
ASIDE the appealed Orders of both courts
below and Criminal Case No. 344030-CR,
entitled: "People of the Philippines, Plaintiff,
-versus- Clemente Bautista and Leonida
Bautista, Accused," is ordered DISMISSED.
Costs de oficio.
SO ORDERED.4
Petitioner now comes before this Court seeking
the reversal of the foregoing CA Decision. The
Court gives due course to the petition
notwithstanding the fact that petitioner did not
file a Motion for Reconsideration of the decision
of the CA before the filing of herein petition. It is
not a condition sine qua non for the filing of a
petition for review under Rule 45 of the Rules of
Court.5

The Court finds merit in the petition.


It is not disputed that the filing of the Complaint
with the OCP effectively interrupted the running
of the 60-day prescriptive period for instituting
the criminal action for slight physical injuries.
However, the sole issue for resolution in this
case is whether the prescriptive period began to
run anew after the investigating prosecutors
recommendation to file the proper criminal
information against respondent was approved by
the City Prosecutor.
The answer is in the negative.
Article 91 of the Revised Penal Code provides
thus:
Art. 91. Computation of prescription of offenses.
- The period of prescription shall commence to
run from the day on which the crime is
discovered by the offended party, the authorities,
or their agents, and shall be interrupted by the
filing of the complaint or information, and shall
commence to run again when such
proceedings terminate without the accused
being convicted or acquitted, or are
unjustifiably stopped for any reason not
imputable to him.
The term of prescription shall not run when the
offender is absent from the Philipppine
Archipelago. (Emphasis supplied)
The CA and respondent are of the view that
upon approval of the investigating prosecutor's
recommendation for the filing of an information
against respondent, the period of prescription
began to run again. The Court does not agree. It
is a well-settled rule that the filing of the
complaint with the fiscals office suspends the
running of the prescriptive period.6
The proceedings against respondent was not
terminated upon the City Prosecutor's approval
of the investigating prosecutor's
recommendation that an information be filed with
the court. The prescriptive period remains tolled
from the time the complaint was filed with the
Office of the Prosecutor until such time that
respondent is either convicted or acquitted by
the proper court.
The Office of the Prosecutor miserably incurred
some delay in filing the information but such
mistake or negligence should not unduly
prejudice the interests of the State and the
offended party. As held in People v. Olarte,7 it is
unjust to deprive the injured party of the right to
obtain vindication on account of delays that are
not under his control. All that the victim of the
offense may do on his part to initiate the
prosecution is to file the requisite complaint.8
The constitutional right of the accused to a
speedy trial cannot be invoked by the petitioner
in the present petition considering that the delay
occurred not in the conduct of preliminary
investigation or trial in court but in the filing of
the Information after the City Prosecutor had

approved the recommendation of the


investigating prosecutor to file the information.
The Office of the Solicitor General does not offer
any explanation as to the delay in the filing of
the information. The Court will not be made as
an unwitting tool in the deprivation of the right of
the offended party to vindicate a wrong
purportedly inflicted on him by the mere
expediency of a prosecutor not filing the proper
information in due time.
The Court will not tolerate the prosecutors
apparent lack of a sense of urgency in fulfilling
their mandate. Under the circumstances, the
more appropriate course of action should be the
filing of an administrative disciplinary action
against the erring public officials.
WHEREFORE, the Petition is
hereby GRANTED. The Decision of the Court of
Appeals in CA-G.R. SP No. 72784 is
hereby REVERSED and SET ASIDE and the
Decision of the Regional Trial Court of Manila in
Civil Case No. 02-103990 is
hereby REINSTATED.
Let the Secretary of the Department of Justice
be furnished a copy of herein Decision for
appropriate action against the erring officials.
SO ORDERED.
Footnotes

CORONA, J.:
This petition for review on certiorari1 seeks to set
aside the decision of the Court of Appeals (CA)
in CA-G.R. CV No. 746602 and its
resolution3 denying reconsideration.
Petitioner Sanrio Company Limited, a Japanese
corporation, owns the copyright of various
animated characters such as "Hello Kitty," "Little
Twin Stars," "My Melody," "Tuxedo Sam" and
"Zashikibuta" among others.4 While it is not
engaged in business in the Philippines, its
products are sold locally by its exclusive
distributor, Gift Gate Incorporated (GGI).5
As such exclusive distributor, GGI entered into
licensing agreements with JC Lucas Creative
Products, Inc., Paper Line Graphics, Inc. and
Melawares Manufacturing Corporation.6 These
local entities were allowed to manufacture
certain products (bearing petitioner's copyrighted
animated characters) for the local market.
Sometime in 2001, due to the deluge of
counterfeit Sanrio products, GGI asked IP
Manila Associates (IPMA) to conduct a market
research. The research's objective was to
identify those factories, department stores and
retail outlets manufacturing and/or selling fake
Sanrio items.7 After conducting several test-buys
in various commercial areas, IPMA confirmed
that respondent's Orignamura Trading in
Tutuban Center, Manila was selling imitations of
petitioner's products.8

Section 410 (c), Republic Act No. 7160,


otherwise known as Local Government Code
provides:
Section 410. (c) Suspension of prescriptive
periods of offense While the dispute is under
mediation, conciliation, or arbitration the
prescriptive periods for offenses and cause of
action under existing laws shall be interrupted
upon filing the complaint with the punong
barangay. The prescriptive periods shall resume
upon receipt by the complainant of the complaint
or the certificate of repudiation or of the
certification to file action issued by
the lupon or pangkat secretary: Provided,
however, That such interruption shall not exceed
sixty (60) days from the filing of the complaint
with the punong barangay.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 168662

February 19, 2008

SANRIO COMPANY LIMITED, petitioner,


vs.
EDGAR C. LIM, doing business as
ORIGNAMURA TRADING, respondent.
DECISION

Consequently, on May 29, 2000, IPMA agents


Lea A. Carmona and Arnel P. Dausan executed
a joint affidavit attesting to the aforementioned
facts.9 IPMA forwarded the said affidavit to the
National Bureau of Investigation (NBI) which
thereafter filed an application for the issuance of
a search warrant in the office of the Executive
Judge of the Regional Trial Court of Manila.10
After conducting the requisite searching inquiry,
the executive judge issued a search warrant on
May 30, 2000.11On the same day, agents of the
NBI searched the premises of Orignamura
Trading. As a result thereof, they were able to
seize various Sanrio products.12
On April 4, 2002, petitioner, through its attorneyin-fact Teodoro Y. Kalaw IV of the Quisumbing
Torres law firm, filed a complaint-affidavit13 with
the Task-Force on Anti-Intellectual Property
Piracy (TAPP) of the Department of Justice
(DOJ) against respondent for violation of Section
217 (in relation to Sections 17714 and 17815) of
the Intellectual Property Code (IPC) which
states:
Section 217. Criminal Penalties. - 217.1. Any
person infringing any right secured by provisions
of Part IV of this Act or aiding or abetting such
infringement shall be guilty of a crime
punishable by:
(a) Imprisonment of one (1) year to three (3)
years plus a fine ranging from Fifty thousand

pesos (P50,000) to One hundred fifty thousand


pesos (P150,000) for the first offense.
(b) Imprisonment of three (3) years and one (1)
day to six (6) years plus a fine ranging from One
hundred fifty thousand pesos (P150,000) to Five
hundred thousand pesos (P500,000) for the
second offense.
(c) Imprisonment of six (6) years and one (1)
day to nine (9) years plus a fine ranging from
Five hundred thousand pesos (P500,000) to
One million five hundred thousand pesos
(P1,500,000) for the third and subsequent
offenses.
(d) In all cases, subsidiary imprisonment in
cases of insolvency.
217.2. In determining the number of years of
imprisonment and the amount of fine, the court
shall consider the value of the infringing
materials that the defendant has produced or
manufactured and the damage that the copyright
owner has suffered by reason of infringement.
217.3. Any person who at the time when
copyright subsists in a work has in his
possession an article which he knows, or
ought to know, to be an infringing copy of
the work for the purpose of:
(a) Selling, letting for hire, or by way of trade
offering or exposing for sale, or hire, the
article;
(b) Distributing the article for purpose of
trade or any other purpose to an extent that
will prejudice the rights of the copyright of
the owner in the work; or
(c) Trade exhibit of the article in public, shall be
guilty of an offense and shall be liable on
conviction to imprisonment and fine as above
mentioned. (emphasis supplied)
Respondent asserted in his counteraffidavit16 that he committed no violation of the
provisions of the IPC because he was only a
retailer.17 Respondent neither reproduced nor
manufactured any of petitioner's copyrighted
item; thus, he did not transgress the economic
rights of petitioner.18 Moreover, he obtained his
merchandise from authorized manufacturers of
petitioner's products.19
On September 25, 2002, the TAPP found that:
Evidence on record would show that respondent
bought his merchandise from legitimate sources,
as shown by official receipts issued by JC Lucas
Creative Products, Inc., Paper Line Graphics,
Inc. and Melawares Manufacturing Corporation.
In fact, in her letter dated May 23, 2002, Ms. Ma.
Angela S. Garcia certified that JC Lucas
Creative Products, Inc., Paper Line Graphics,
Inc. and Melawares Manufacturing Corporation
are authorized to produce certain Sanrio
products. While it appears that some of the
items seized during the search are not

among those products


which [GGI] authorized these establishments
to produce, the fact remains that respondent
bought these from the abovecited legitimate
sources. At this juncture, it bears stressing
that respondent relied on the representations
of these manufacturers and distributors that
the items they sold were genuine. As such, it
is not incumbent upon respondent to verify from
these sources what items [GGI] only authorized
them to produce. Thus, as far as respondent
is concerned, the items in his possession are
not infringing copies of the
original [petitioner's] products. (emphasis
supplied)20
Thus, in a resolution dated September 25, 2002,
it dismissed the complaint due to insufficiency of
evidence.21
Petitioner moved for reconsideration but it was
denied.22 Hence, it filed a petition for review in
the Office of the Chief State Prosecutor of the
DOJ.23 In a resolution dated August 29,
2003,24 the Office of the Chief State Prosecutor
affirmed the TAPP resolution. The petition was
dismissed for lack of reversible error.
Aggrieved, petitioner filed a petition for certiorari
in the CA. On May 3, 2005, the appellate court
dismissed the petition on the ground of
prescription. It based its action on Act 3326
which states:
Section 1. Violations penalized by special acts
shall, unless otherwise provided in such acts,
prescribe in accordance with the following rules:
(a) after a year for offenses punished only by a
fine or by imprisonment for not more than one
month, or both; (b) after four years for those
punished by imprisonment for more than one
month, but less than two years; (c) after eight
years for those punished by imprisonment
for two years or more, but less than six
years; and (d) after twelve years for any other
offense punished by imprisonment for six years
or more, except the crime of treason, which shall
prescribe after twenty years; Provided,
however, That all offenses against any law or
part of law administered by the Bureau of
Internal Revenue shall prescribe after five years.
Violations penalized by municipal ordinances
shall prescribe after two months.
Section 2. Prescription shall begin to run
from the day of the commission of the
violation of the law, and if the same may not
be known at the time, from the discovery thereof
and the institution of judicial proceedings for its
investigation and punishment.
The prescription shall be interrupted when
proceedings are instituted against the guilty
person, and shall begin to run again if the
proceedings are dismissed for reasons not
constituting jeopardy. (emphasis supplied)
According to the CA, because no complaint was
filed in court within two years after the
commission of the alleged violation, the offense
had already prescribed.25

On the merits of the case, the CA concluded that


the DOJ did not commit grave abuse of
discretion in dismissing the petition for
review.26 To be criminally liable for violation of
Section 217.3 of the IPC, the following requisites
must be present:
1. possession of the infringing copy and
2. knowledge or suspicion that the copy is an
infringement of the genuine article.
The CA agreed with the DOJ that petitioner
failed to prove that respondent knew that the
merchandise he sold was counterfeit.
Respondent, on the other hand, was able to
show that he obtained these goods from
legitimate sources.27
Petitioner moved for reconsideration but it was
denied. Hence, this petition.
Petitioner now essentially avers that the CA
erred in concluding that the alleged violations of
the IPC had prescribed. Recent jurisprudence
holds that the pendency of a preliminary
investigation suspends the running of the
prescriptive period.28 Moreover, the CA erred in
finding that the DOJ did not commit grave abuse
of discretion in dismissing the complaint.
Respondent is liable for copyright infringement
(even if he obtained his merchandise from
legitimate sources) because he sold counterfeit
goods.29
Although we do not agree wholly with the CA,
we deny the petition.
Filing Of The Complaint In the DOJ Tolled
The Prescriptive Period
Section 2 of Act 3326 provides that the
prescriptive period for violation of special laws
starts on the day such offense was committed
and is interrupted by the institution of
proceedings against respondent (i.e., the
accused).

In a preliminary investigation, a public


prosecutor determines whether a crime has
been committed and whether there is probable
cause that the accused is guilty
thereof.33 Probable cause is defined as such
facts and circumstances that will engender a
well-founded belief that a crime has been
committed and that the respondent is probably
guilty thereof and should be held for
trial.34 Because a public prosecutor is the one
conducting a preliminary investigation, he
determines the existence of probable
cause.35 Consequently, the decision to file a
criminal information in court or to dismiss a
complaint depends on his sound discretion.36
As a general rule, a public prosecutor is afforded
a wide latitude of discretion in the conduct of a
preliminary investigation. For this reason, courts
generally do not interfere with the results of such
proceedings. A prosecutor alone determines the
sufficiency of evidence that will establish
probable cause justifying the filing of a criminal
information against the respondent.37 By way of
exception, however, judicial review is allowed
where respondent has clearly established that
the prosecutor committed grave abuse of
discretion.38 Otherwise stated, such review is
appropriate only when the prosecutor has
exercised his discretion in an arbitrary,
capricious, whimsical or despotic manner by
reason of passion or personal hostility, patent
and gross enough to amount to an evasion of a
positive duty or virtual refusal to perform a duty
enjoined by law.39
The prosecutors in this case consistently found
that no probable cause existed against
respondent for violation of the IPC. They were in
the best position to determine whether or not
there was probable cause. We find that they
arrived at their findings after carefully evaluating
the respective evidence of petitioner and
respondent. Their conclusion was not tainted
with grave abuse of discretion.
WHEREFORE, the petition is hereby DENIED.
Costs against petitioner.

Petitioner in this instance filed its complaintaffidavit on April 4, 2002 or one year, ten months
and four days after the NBI searched
respondent's premises and seized Sanrio
merchandise therefrom. Although no information
was immediately filed in court, respondent's
alleged violation had not yet prescribed.30

SO ORDERED.
Footnotes
14

Intellectual Property Code, Sec. 177 provides:

In the recent case of Brillantes v. Court of


Appeals,31 we affirmed that the filing of the
complaint for purposes of preliminary
investigation interrupts the period of prescription
of criminal responsibility.32 Thus, the prescriptive
period for the prosecution of the alleged violation
of the IPC was tolled by petitioner's timely filing
of the complaint-affidavit before the TAPP.

Section 177. Copy or Economic Rights.-Subject to the provisions of Chapter VIII,


copyright or economic rights shall consist of the
exclusive right to carry out, authorize or prevent
the following acts:

In The Absence Of Grave Abuse Of


Discretion, The Factual Findings Of The DOJ
In Preliminary Investigations Will Not Be
Disturbed

xxx xxx xxx

177.1. Reproduction of the work or substantial


portion of the work;

177.3. The first public distribution of the original


and each copy of the work by sale or other
forms of transfer of ownership;

xxx xxx xxx


15

G.R. Nos. 170609-13


2009

January 30,

Intellectual Property Code, Sec. 178 provides:

Section 178. Rules on Copyright Ownership.


Copyright ownership shall be governed by the
following rules:
178.1. Subject to the provisions of this section,
in the case of original literary or artistic works,
copyright shall belong to the author of the work;
xxx xxx xxx
178.3. In the case of work created by an author
during and in the course of his employment, the
copyright shall belong to:
(a) The employee, if the creation of the object of
copyright is not a part of his regular duties even
if the employee uses the time, facilities and
materials of the employer.
(b) The employer, if the work is the result of the
performance of his regularly-assigned duties,
unless there is an agreement, express or
implied, to the contrary.
178.4. In the case of a work commissioned by a
person other than an employer of the author and
who pays for it and the work is made in
pursuance of the commission, the person who
so commissioned the work shall have ownership
of the work, but the copyright thereto shall
remain with the creator, unless there is a written
stipulation to the contrary;
xxx xxx xxx
19

Id. To support his claim, respondent submitted


photocopies of the receipts issued to him by JC
Lucas Creative Products, Inc. and Melawares
Manufacturing Corporation as evidence.
33

Rules of Court, Rule 112, Sec. 1. The section


provides:
Section 1. Preliminary investigation defined;
when required. Preliminary investigation is an
inquiry or proceeding to determine whether
there is sufficient ground to engender a wellfounded belief that a crime has been
committed and the respondent is probably
guilty thereof, and should be held for trial.
Except as provided in section 6 of this Rule, a
preliminary investigation is required to be
conducted before the filing of a complaint or
information for an offense where the penalty
prescribed is at least four (4) years, two (2)
months and one (1) day without regard to the
fine. (emphasis supplied)
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION

BERNIE G. MIAQUE, Petitioner


vs.
HON. VIRGILIO M. PATAG, in his capacity as
Presiding Judge of the Regional Trial Court
of Iloilo City, Branch 33,
VICENTE C. ARAGONA, and PEOPLE OF
THE PHILIPPINES, Respondents.
RESOLUTION
CORONA, J.:
This is a special civil action for
certiorari1 assailing the orders of the Regional
Trial Court (RTC) of Iloilo City, Branch 33 dated
August 25, 20052 and September 19, 20053 in
Criminal Case Nos. 05-61407 to 05-61411
captioned People of the Philippines versus
Bernie Miaque, et al.
On January 31, 2000, five Informations for
libel4 were filed in the RTC of Iloilo City, Branch
26, against petitioner Bernie G. Miaque and
three others.5 In an order dated February 17,
2005,6 these Informations were quashed for lack
of jurisdiction over the offenses charged.
Specifically, said Informations failed to allege
either that private respondent (therein private
complainant) Vicente Aragona actually held
office in Iloilo City at the time of the commission
of the offenses or that the alleged libelous
remarks were printed or first published in Iloilo
City.7
On June 22, 2005, Assistant Provincial
Prosecutor Jerry Maraon issued a resolution
recommending the filing of Informations for libel
against petitioner and his co-accused.
Accordingly, five new Informations for libel
docketed as Criminal Case Nos. 05-61407 to
05-61411 were filed against petitioner and his
co-accused in the RTC of Iloilo City, Branch 33,
presided by respondent Judge Virgilio M. Patag.
The new Informations were similarly worded as
those previously quashed but with these added
allegations: (1) Aragona, Regional State
Prosecutor VI of the Department of Justice, held
office at the Hall of Justice, Iloilo City or (2) the
alleged libelous remarks were written, printed
and published in Iloilo City (on the pertinent
dates thereof). Said Informations were likewise
signed and filed by Assistant Provincial
Prosecutor Maraon.
In view of the filing of the new Informations,
petitioner filed his motions (dated August 8,
2005) not to issue warrants of arrest and, if
already issued, to recall them and remand the
Informations to the Provincial Prosecutors
Office for preliminary investigation.8 In an order
dated August 25, 2005, respondent judge denied
petitioners motions on the ground that petitioner
was beyond the courts jurisdiction as he was
not under the custody of the court.9 Petitioners
motion for reconsideration was denied in an

order dated September 19, 2005. Hence, this


petition.
Petitioner challenges the August 25, 2005 and
September 19, 2005 orders of respondent judge
for being contrary to law and for having been
issued with grave abuse of discretion. He
contends that the Informations were filed without
the mandatory preliminary investigation.
Moreover, the new Informations were filed by
one who had no authority to do so because
these were filed by the Iloilo Provincial
Prosecutors Office and not the Iloilo City
Prosecutors Office. Jurisdiction over the subject
matter supposedly belonged to the latter.
Petitioner likewise assails the refusal of
respondent judge to recall the warrants of arrest
issued against him.
The Office of the Solicitor General (OSG),
representing the People of the Philippines,
contends that the quashed Informations were
merely amended to include the allegations that
Aragona actually held office in Iloilo City at the
time of the commission of the offenses or that
the libelous remarks were printed and first
published in Iloilo City. A new preliminary
investigation was therefore unnecessary. On the
warrant of arrest, the OSG alleges that the trial
court acquired jurisdiction over petitioner in view
of the filing of his August 8, 2005 motions. The
filing of the motions supposedly was tantamount
to voluntarily submitting to the jurisdiction of the
court.
Generally, a direct resort to us in a petition for
certiorari is incorrect for it violates the hierarchy
of courts.10 A regard for judicial hierarchy most
certainly indicates that petitions for the issuance
of extraordinary writs against first level courts
should be filed in the RTC and those against the
latter should be filed in the Court of
Appeals.11This rule, however, may be relaxed
when pure questions of law12 are raised as in
this case.
We grant the petition. The Informations must be
quashed.
One of the issues raised in the petition is the
authority of the Iloilo Provincial Prosecutors
Office to file and sign the new Informations
against petitioner. The offenses charged in each
of the new Informations were alleged to have
been committed in Iloilo City but said
Informations were filed by the Iloilo Provincial
Prosecutors Office.
Sections 9 and 11 of Presidential Decree No.
127513 provide:
SEC. 9. Offices of Provincial Fiscals and City
Fiscals Staffing. -- There shall be in each
province and each subprovince; one provincial
fiscal and such number of assistant provincial
fiscals as may hereinafter be provided for.
There shall be in each city one city fiscals and
such number of assistant city fiscals as may
hereinafter be provided.

xxx
SEC. 11. Provincial Fiscals and City Fiscals;
Duties and Functions. The provincial fiscal or
the city fiscal shall:
a) xxx
b) Investigate and/or cause to be investigated all
charges of crimes, misdemeanors and violations
of all penal laws and ordinances within their
respective jurisdictions and have the
necessary information or complaint prepared or
made against the persons accused. xxx
(emphasis supplied)
It is undisputed that the alleged acts of libel were
committed in Iloilo City. Who then had the
authority to file and sign the new informations
against petitioner and his co-accused? The
Charter of the City of Iloilo provides:14
[The City Fiscal, now City Prosecutor] shall also
have charge of the prosecution of all crimes,
misdemeanors and violations of city ordinances,
in the Court of First Instance (now RTC) and in
the Municipal Trial Court of the city, and shall
discharge all the duties in respect to criminal
prosecutions enjoined by law upon provincial
fiscals.
The city fiscal shall cause to be investigated all
charges of crimes, misdemeanors, and
violations of ordinances, and have the
necessary informations or complaints prepared
against the persons accused. xxx15
The authority to sign and file the new
Informations is properly lodged with the Iloilo
City Prosecutors Office. The Iloilo Provincial
Prosecutors Office was clearly bereft of
authority to file the new Informations against
petitioner. An Information, when required by law
to be filed by a public prosecuting officer, cannot
be filed by another.16 The court does not acquire
jurisdiction over the case because there is a
defect in the Information. We held in People v.
Hon. Garfin:17
It is a valid information signed by a competent
officer which, among other requisites, confers
jurisdiction on the court over the person of the
accused and the subject matter thereof. xxx
Questions relating to lack of jurisdiction may be
raised at any stage of the proceeding. An
infirmity in the information, such as lack of
authority of the officer signing it, cannot be cured
by silence, acquiescence, or even by express
consent.
The foregoing considered, the Informations
corresponding to Criminal Case Nos. 05-61407
to 05-61411 were fatally defective. The common
infirmity in the Informations constituted a
jurisdictional defect that could not be
cured.18 There was no point in proceeding under
a defective Information that could never be the
basis of a valid conviction.19

WHEREFORE, the petition is


hereby GRANTED. The orders of the Regional
Trial Court of Iloilo City, Branch 33 dated August
25, 2005 and September 19, 2005 are
hereby REVERSED AND SET ASIDE. Criminal
Case Nos. 05-61407 to 05-61411
are DISMISSED WITHOUT PREJUDICE to the
filing of new Informations by an authorized
officer. The warrants of arrest issued are
likewise QUASHED.

such number of Assistant Provincial/City


Prosecutors as fixed and/or authorized by law.
The position titles of Provincial and City Fiscal
and Assistant Provincial and City Fiscal are
hereby abolished. xxx"
14

Commonwealth Act No. 57, otherwise known


as "An Act Establishing a Form of Government
for the City of Iloilo." Section 1 thereof states:
"SECTION 1. This Act shall be known as the
Charter of the City of Iloilo."

SO ORDERED.
Footnotes
1

Under Rule 65 of the Rules of Court. The


petition was accompanied by a prayer for the
issuance of a temporary restraining order and/or
writ of preliminary injunction which was denied
for lack of merit by the Court in a resolution
dated December 6, 2006. Rollo, pp. 3-18.
9

Id., p. 19. The relevant portion of the order


read:
"The records indicate that the aforenamed
accused are beyond the jurisdiction of this Court
because they are not in custodia legis and/or
under the custody of this Court. By reason of the
fact that We do not possess jurisdiction over the
three aforenamed accused, We are likewise
without jurisdiction over the subject matter of the
instant motion.
Based on the foregoing, We hereby deny the
aforecited motion for lack of merit.
SO ORDERED."
12

A question of law exists when the doubt or


difference centers on what the law is on a
certain state of facts. There is a question of law
if the issue raised is capable of being resolved
without need of reviewing the probative value of
the evidence. The resolution of the issue must
rest solely on what the law provides on the given
set of circumstances. Morales v. Skills
International Company, G.R. No. 149285, 30
August 2006, 500 SCRA 186, 194
citing Microsoft Corporation v. Maxicorp, Inc.,
G.R. No. 140946, 13 September 2004, 438
SCRA 224.
13

Reorganizing the Prosecution Staff of the


Department of Justice and the Offices of the
Provincialand City Fiscals, Regionalizing the
Prosecution Service, and Creating the National
Prosecution Service. This took effect on April 11,
1978. Provincial and City Fiscals are now known
as Provincial and City Prosecutors by virtue of
Section 9, Chapter 2, Title III, Book IV of the
Administrative Code of 1987 which provides:
"SEC. 9. Provincial/City Prosecution Offices.
The Provincial and City Fiscals Office
established in each of the provinces and cities
pursuant to law, is retained and renamed
Provincial/City Prosecution Service. It shall be
headed by a Provincial Prosecutor or City
Prosecutor, as the case may be, assisted by

Republic of the Philippines


SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 163797

April 24, 2007

WILSON CHUA, RENITA CHUA, THE


SECRETARY OF JUSTICE and THE CITY
PROSECUTOR OF LUCENA CITY, Petitioners,
vs.
RODRIGO PADILLO and MARIETTA
PADILLO, Respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
For our resolution is the instant Petition for
Review on Certiorari assailing the Amended
Decision1 of the Court of Appeals dated May 15,
2003 reversing its Decision2 dated January 24,
2001 in CA-G.R. SP No. 62401, entitled
"Rodrigo Padillo and Marietta Padillo,
Complainants-Petitioners, versus The Secretary
of Justice, et al., Respondents."
The facts as found by the Court of Appeals are:
Rodrigo Padillo and Marietta Padillo,
respondents, are the owners of Padillo Lending
Investor engaged in the money lending business
in Lucena City. Their niece, Marissa PadilloChua, served as the firms manager. Marissa is
married to Wilson Chua, brother of Renita Chua,
herein petitioners.
One of Marissas functions was to evaluate and
recommend loan applications for approval by
respondents. Once a loan application had been
approved, respondents would authorize the
release of a check signed by them or their
authorized signatory, a certain Mila Manalo.
Sometime in September 1999, a post-audit was
conducted. It was found that Marissa was
engaged in illegal activities. Some of the
borrowers whose loan applications she
recommended for approval were fictitious and
their signatures on the checks were spurious.

Marissas modus operandi was to alter the name


of the payee appearing on the check by adding
another name as an alternative payee. This
alternative payee would then personally encash
the check with the drawee bank. The cash
amounts received were turned over to Marissa
or her husband Wilson for deposit in their
personal accounts. To facilitate encashment,
Marissa would sign the check to signify to the
bank that she personally knew the alternative
payee. The alternative payees included
employees of Wilson or his friends. The total
amount embezzled reached P7 million.
Respondents filed complaints against petitioners
and several others with the National Bureau of
Investigation (NBI) in Lucena City. In turn, the
NBI forwarded their complaints to the Office of
the City Prosecutor, same city, for preliminary
investigation, docketed as I.S. Nos. 98-1487, 981621, 98-1629, and 98-1605.
In a Resolution dated March 18, 1999, Lucena
City Prosecutor Romeo A. Datu (now retired),
disposed of the complaints as follows:
WHEREFORE, after preliminary investigation,
finding sufficient evidence to warrant a finding of
a prima facie case of Estafa Thru Falsification of
Commercial Documents, let an Information be
filed against Marissa Padillo-Chua, Wilson
Chua, Renita Chua, and several John Does, the
same to be filed with the Regional Trial Court.
The case against the other respondents, namely,
Perla Correa, Giovani Guia, Emmanuel Garcia,
Zenaida Nantes, Cherrylyn Mendoza, Rosalie
Mazo, Fernando Loreto, Cesar Salamat, Antonio
Bana, Isidro Manalo, Jr., Ramon Villanueva,
Alexander Asiado, Peter Tan, Jun Tan, Flaviano
Evaso, Edgar Sebastian, Crisencio Asi, Roberto
Ong and Gregorio Flancia is provisionally
dismissed.
Forthwith, the City Prosecutor filed an
Information for estafa against Marissa, Wilson,
and Renita with the Regional Trial Court of
Lucena City, docketed therein as Criminal Cse
No. 99-182. It was raffled of to Branch 59.
Believing that a more serious offense should
have been charged against petitioners,
respondents interposed an appeal to the
Secretary of Justice who issued a Resolution
dated January 3, 2000, the dispositive portion of
which reads:
WHEREFORE, the appealed resolution is
modified. The City Prosecution Office of Lucena
City is hereby directed to file the Information of
the complex crime of estafa through falsification
of commercial documents defined and penalized

under Article 315 par. 1(b) in relation to Articles


171 and 172 (58 counts) against respondent
Marissa Padillo-Chua and to cause the
withdrawal of the Information of estafa through
falsification of commercial documents against
respondents Wilson Chua and Renita Chua.
Report to us the action taken within ten (10)
days from receipt hereof.
The Secretary of Justice found that the
participation of Wilson Chua in the commission
of the crime was not clearly established by the
evidence. There was no showing that he abused
the trust and confidence of respondents when
two (2) of the questioned checks were deposited
in his bank account. As to Renita Chua, the
Secretary of Justice found no proof of
conspiracy between her and Marissa.
Respondents filed a motion for reconsideration,
but it was denied with finality by the Secretary of
Justice on November 6, 2000.
Respondents then filed a Petition for Certiorari
with the Court of Appeals, docketed as CA-G.R.
SP No. 62401. They alleged that in issuing the
Resolution dated January 3, 2000 directing the
Prosecutors Office of Lucena City to file the
corresponding Information only against Marissa,
the Secretary of Justice committed grave abuse
of discretion. They prayed that the Court of
Appeals order the Lucena City Prosecutor to
withdraw the Information in Criminal Case No.
99-182 and instead, file several Informations
against petitioners.
On January 24, 2001, the Court of Appeals
rendered its Decision dismissing the petition,
holding that there was no conspiracy among the
petitioners.
Respondents seasonably filed a motion for
reconsideration. Revisiting its Decision, the
Court of Appeals, on May 15, 2003, promulgated
its Amended Decision granting respondents
motion, thus:
WHEREFORE, the Motion for Reconsideration
is hereby GRANTED. ACCORDINGLY, the Court
orders the DOJ, City Prosecutor, Lucena City to
include Wilson Chua and Renita Chua as
accused in the said case.
SO ORDERED.
In reversing itself, the Court of Appeals found
that it overlooked certain facts and
circumstances which, if considered, would
establish probable cause against Wilson and
Renita. The Court of Appeals identified these
facts to be: (1) Marissas consistent practice of
depositing checks with altered names of payees

to the respective accounts of Wilson Chua and


Renita Chua; (2) considering that Wilson and
Marissa are husband and wife, it can be inferred
that one knows the transactions of the other;
and (3) Wilson had full knowledge of the
unlawful activities of Marissa. This is supported
by the affidavit of Ernesto Alcantara dated
November 26, 1998.
Wilson Chua and Renita Chua filed their motion
for reconsideration of the Amended Decision,
but the Court of Appeals denied the same on
May 28, 2004.
Hence, the instant petition. Petitioners contend
that the Court of Appeals erred in compelling the
Secretary of Justice to include in the Information
Wilson and Renita.
Section 5, Rule 110 of the 200 Rules of Criminal
Procedure, as amended, partly provides that "All
criminal actions either commenced by a
complaint or information shall be prosecuted
under the direction and control of a public
prosecutor." The rationale for this rule is that
since a criminal offense is an outrage to the
sovereignty of the State, it necessarily follows
that a representative of the State shall direct and
control the prosecution thereof.3 In Suarez v.
Platon,4 this Court described the prosecuting
officer as:
[T]he representative not of an ordinary party to a
controversy, but of a sovereignty whose
obligation to govern impartially is as compelling
as its obligation to govern at all; and whose
interest, therefore, in a criminal prosecution is
not that it shall win a case, but that justice shall
be done. As such, he is in a peculiar and very
definite sense a servant of the law, the twofold
aim of which is that guilt shall not escape or
innocence suffer.
Having been vested by law with the control of
the prosecution of criminal cases, the public
prosecutor, in the exercise of his functions, has
the power and discretion to: (a) determine
whether a prima facie case exists;5 (b) decide
which of the conflicting testimonies should be
believed free from the interference or control of
the offended party;6 and (c) subject only to the
right against self-incrimination, determine which
witnesses to present in court.7Given his
discretionary powers, a public prosecutor cannot
be compelled to file an Information where he is
not convinced that the evidence before him
would warrant the filing of an action in court. For
while he is bound by his oath of office to
prosecute persons who, according to
complainants evidence, are shown to be guilty
of a crime, he is likewise duty-bound to protect
innocent persons from groundless, false, or
malicious prosecution.8

We must stress, however, that the public


prosecutors exercise of his discretionary powers
is not absolute.
First, the resolution of the investigating
prosecutor is subject to appeal to the Secretary
of Justice who, under the Administrative Code of
1987, as amended, exercises control and
supervision over the investigating prosecutor.
Thus, the Secretary of Justice may affirm, nullify,
reverse, or modify the ruling of said prosecutor."
In special cases, the public prosecutors
decision may even be reversed or modified by
the Office of the President.9
Second, the Court of Appeals may review the
resolution of the Secretary of Justice on a
petition for certiorari under Rule 65 of the 1997
Rules of Civil Procedure, as amended, on the
ground that he committed grave abuse of
discretion amounting to excess or lack of
jurisdiction.10
Here, we note that the Court of Appeals, on
motion for reconsideration by respondents, ruled
that the Secretary of Justice committed grave
abuse of discretion in resolving that only Marissa
should be charged.
We agree.
Grave abuse of discretion implies a capricious
and whimsical exercise of judgment that is
equivalent to lack of jurisdiction.11 We have
carefully examined the Resolution of the
Secretary of Justice dated January 3, 2000
wherein he ruled that there was no probable
cause to hold Wilson Chua and Renita Chua
for estafa through falsification of commercial
documents. As found by the Court of Appeals,
the Secretary of Justice either overlooked or
patently ignored the following circumstances: (1)
Marissas practice of depositing checks, with
altered names of payees, in the respective
accounts of Wilson and Renita Chua; (2) the fact
that Wilson and Marissa are husband and wife
makes it difficult to believe that one has no idea
of the transactions entered into by the other; and
(3) the affidavit of Ernesto Alcantara dated
November 26, 1998 confirming that Wilson had
knowledge of Marissas illegal activities.
Indeed, as we ruled in Sanchez v.
Demetriou,12 not even the Supreme Court can
order the prosecution of a person against whom
the prosecutor does not find sufficient evidence
to support at least a prima facie case. The only
possible exception to this rule is where there is
an unmistakable showing of grave abuse of
discretion on the part of the prosecutor, as in this
case.

Verily, the Court of Appeals did not err in


directing the City Prosecutor of Lucena City to
include Wilson and Renita Chua in the
Information for the complex crime
of estafa through falsification of commercial
documents.
WHEREFORE, we DENY the petition and
AFFIRM the Amended Decision of the Court of
Appeals in CA-G.R. SP No. 62401. Costs
against petitioner.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 160610

August 14, 2009

JUDELIO COBARRUBIAS, Petitioner,


vs.
PEOPLE OF THE PHILIPPINES, THE
HONORABLE COURT OF APPEALS SPECIAL
FORMER SECOND DIVISION, and HON.
BONIFACIO SANZ MACEDA, Acting Judge of
the Regional Trial Court of Las Pias City,
Branch 255, Respondents.
DECISION
CARPIO, J.:
The Case
This is a petition for review1 of the Resolutions
dated 10 March 2003 and 9 October 2003 of the
Court of Appeals in CA-G.R. SP No. 72315.
The Facts
In 1994, petitioner Judelio Cobarrubias was
charged with Frustrated Homicide (Criminal
Case No. 94-5036), Homicide (Criminal Case
No. 94-5038), Violation of Section 261(Q) of the
Omnibus Election Code in relation to Section 32
of Republic Act No. 7166 (Criminal Case No. 24392), and Illegal Possession of Firearms under
Presidential Decree No. 1866 (Criminal Case
No. 94-5037). Petitioner pleaded not guilty to all
the charges and trial followed.
On 20 March 2001, Presiding Judge Florentino
M. Alumbres of the Regional Trial Court of Las
Pias City, Branch 255 (trial court), issued an
Order,2 the dispositive portion of which reads:
WHEREFORE, in the light of the foregoing, the
Court rules that the prosecution failed to
establish the guilt of the accused beyond
reasonable doubt in Criminal Cases Nos. 945036 and 94-5037, and these cases are ordered
DISMISSED.
Criminal Cases Nos. 94-5038 and 24392 should
be set for further trial.

SO ORDERED.3
The prosecution did not appeal the trial courts
Order. On 5 July 2001, petitioner filed with the
trial court a Motion for Correction of Clerical
Error,4 alleging that in the dispositive portion of
the Order, Criminal Case No. 94-5038 should
have been dismissed instead of Criminal Case
No. 94-5037, which should have been the case
set for further trial. Petitioner maintained that
there was a typographical error in the dispositive
portion considering that in the body of the Order,
the trial court ruled that the prosecution failed to
prove beyond reasonable doubt the guilt of
petitioner in the charges for Homicide and
Frustrated Homicide.
On 26 February 2002, respondent Acting Judge
Bonifacio Sanz Maceda5 denied the motion,
holding that the alleged error was substantial in
nature which affected the very merit of the case.
Petitioner moved for reconsideration, which
respondent Judge denied on 23 July 2002.
On 21 August 2002, petitioner filed with the
Court of Appeals a Petition for Certiorari and
Prohibition with Prayer for a Temporary
Restraining Order or Writ of Preliminary
Injunction. Petitioner sought to set aside the
Orders dated 26 February 2002 and 23 July
2002 of respondent Judge.
On 23 August 2002, the Court of Appeals
dismissed the petition for failure to submit with
the petition a clear duplicate original or a
certified true copy of the assailed Order dated
23 July 2002, and for failure of petitioners
counsel to indicate his current official receipt
number and date of payment of the current
Integrated Bar of the Philippines membership
dues, pursuant to SC Bar Matter No. 287.6
Petitioner moved for reconsideration, which the
Court of Appeals granted. In a Resolution dated
11 December 2002, the Court of Appeals
directed petitioner to implead the People of the
Philippines as respondent. On 10 March 2003,
the Court of Appeals dismissed the petition for
failure of petitioner to comply with the
resolution.7 On 19 March 2003, petitioner filed
an Omnibus Motion for Reconsideration and
Motion to Admit Amended Petition, which the
Court of Appeals dismissed. Hence, this petition.
The Issues
Petitioner contends that:
1. THE COURT OF APPEALS COMMITTED
SERIOUS AND REVERSIBLE ERROR IN
DISMISSING THE PETITION ON THE
GROUND OF A TECHNICALITY, DESPITE THE
PETITIONERS COMPLIANCE WITH ITS
RESOLUTION DATED 11 DECEMBER 2002.
2. THE COURT OF APPEALS COMMITTED
SERIOUS REVERSIBLE ERROR IN NOT
GIVING DUE COURSE TO THE PETITION
CONSIDERING THE MERITS THEREOF AND

THE SUBSTANTIVE RIGHTS OF THE


PETITIONER.8
The Ruling of the Court
We find the petition meritorious.
Compliance with the Formal Requirements
The Court of Appeals dismissed the petition for
failure of petitioner to comply with the resolution
directing him to implead the People of the
Philippines as respondent . The Court of
Appeals held that the petition was prosecuted
manifestly for delay, which is a ground for
dismissal under Section 8, Rule 65 of the Rules
of Court.9
However, Section 6, Rule 1 of the Rules of Court
also provides that rules shall be liberally
construed in order to promote their objective of
securing a just, speedy and inexpensive
disposition of every action and proceeding.
Thus, in several cases, the Court has ruled
against the dismissal of petitions or appeals
based solely on technicalities especially when
there was subsequent substantial compliance
with the formal requirements.10
In this case, the Court finds the petitioners
failure to implead the People of the Philippines
as respondent not so grave as to warrant
dismissal of the petition. After all, petitioner
rectified his error by moving for reconsideration
and filing an Amended Petition, impleading the
People of the Philippines as respondent.
In Vda.de Manguerra v. Risos,11 where the
petition for certiorari filed with the Court of
Appeals failed to implead the People of the
Philippines as an indispensable party, the Court
held:
It is undisputed that in their petition for certiorari
before the CA, respondents failed to implead the
People of the Philippines as a party thereto.
Because of this, the petition was obviously
defective. As provided in Section 5, Rule 110 of
the Revised Rules of Criminal Procedure, all
criminal actions are prosecuted under the
direction and control of the public prosecutor.
Therefore, it behooved the petitioners
(respondents herein) to implead the People of
the Philippines as respondent in the CA case to
enable the Solicitor General to comment on the
petition.
However, this Court has repeatedly declared
that the failure to implead an indispensable party
is not a ground for the dismissal of an action. In
such a case, the remedy is to implead the nonparty claimed to be indispensable. Parties may
be added by order of the court, on motion of the
party or on its own initiative at any stage of the
action and/or such times as are just. If the
petitioner/plaintiff refuses to implead an
indispensable party despite the order of the
court, the latter may dismiss the
complaint/petition for petitioners/plaintiffs failure
to comply.12(Emphasis supplied)

In this case, the Court of Appeals should have


granted petitioners motion for reconsideration
and given due course to the petition in view of
petitioners subsequent compliance by filing an
Amended Petition, impleading the People of the
Philippines as respondent. Technicalities may be
set aside when the strict and rigid application of
the rules will frustrate rather than promote
justice.13
Conflict Between the Fallo and the Body of
the Order
Instead of remanding the case to the Court of
Appeals, the Court will resolve the issue raised
by petitioner in order to prevent further delay in
the resolution of the case.
Petitioners main contention is that there is a
clerical error in the fallo or the dispositive
portion of Judge Alumbres Order dated 20
March 2001, which should have dismissed
Criminal Case No. 94-5038 instead of
Criminal Case No. 94-5037, considering that
in the body of the order, the trial court ruled
that the prosecution failed to prove beyond
reasonable doubt the guilt of petitioner in the
charges for Frustrated Homicide (Criminal
Case No. 94-5036) and Homicide (Criminal
Case No. 94-5038). However, respondent
Acting Judge Maceda, who was assigned to
the trial court after Judge Alumbres retired,
denied petitioners motion for correction,
holding that the alleged error was
substantial in nature.
For a clearer understanding of the issue, the
pertinent portions of the Order dated 20 March
2001 are hereunder quoted:
On the first and second charges of Homicide
(Criminal Case No. 94-5038) and Frustrated
Homicide (Criminal Case No. 94-5036), did the
prosecution prove the guilt of the accused
beyond reasonable doubt in killing Edwin S.
Martinez and the wounding of Decampong
"without any just motive"?
To the mind of the Court, the prosecution failed
in this regard.
What is derogatory to the cases of the
prosecution is the Resolution dated July 7, 1994
of the Department of Justice issued after a
thorough preliminary investigation conducted by
an investigating panel composed of State
Prosecutor Philip I. Kimpo and Prosecution
Attorney Emelie Fe M. delos Santos, duly
approved by then Chief State Prosecutor
Jovencito R. Zuo.
The pertinent portions of the said Resolution is
quoted as follows:
xxx
xxx
"After hitting SI Martinez, respondent
Cobarrubias, still seated, pointed his gun

towards agent Decampong and an exchange of


gun fire ensued leaving both of them wounded.
Agent Decampong was hit on his right shoulder
while respondent suffered wound on his "left
thigh". (p. 4 Resolution).
It is, therefore, very clear that it was Decampong
who first fired at the accused from outside when
he (accused) was seated inside his car. It is very
difficult to believe the story of the prosecution
that the exchange of fire between the accused
and the NBI agents happened while the accused
was seated inside the car.
In fact, the Resolution of the Department of
Justice attest to the fact that the accused was
not the aggressor.
Pertinent portion of the Resolution (Exh. 2, 2-A &
2-B, 7/13/95 session) is quoted, thus:
"There is no treachery in the instant case as
respondent was not the aggressor. Respondent
did not attack the victim (Martinez) but only fired
at the latter upon seeing him approaching his
car with a gun in his hand, while announcing
their being NBI agents and advising respondent
and his companion not to move. Hence, it
cannot be said that respondent employed
means, methods or forms in the execution of the
crime which tend directly and specially to insure
its execution without risk to himself arising from
the defense which the offended party might
make (RPC, Art. 14, par. 16). In other words, for
alevosia to apply, the killer must be the
aggressor and he must deliberately and
consciously adopt and employ a non-risky mode
of execution that would insure the successful
consummation of his criminal act. As ruled by
the High Court, there is no treachery if the killing
was committed at the moment (People vs.
Gutierrez, 113 SCRA 155; People vs. de Castro,
L-38989, Oct. 29, 1982, 117 SCRA 1014; People
vs. Magaddatu, L-36446, Sept. 9, 1983, 124
SCRA 594; or if the attack cannot be sudden
and unprovoked or unexpected (People v.
Atienza, 115 SCRA 379 (1982); If no time was
left for the accused to deliberate on the mode of
attack or to prepare for the manner by which he
could kill the deceased with the full assurance
that it would be improbable or hard for the latter
to defend himself or retaliate (People vs. De
Jesus, L-58505, Nov. 19, 1982, 18 SCRA 516;
Or the attack is unplanned (People vs.
Manalang, L-471-36-37, July 28, 1983, 123
SCRA 583).
Neither is there evident premeditation in this
case for the same reason that herein respondent
was not the aggressor or attacker in the
shooting incident or "encounter." Under the facts
of the case, it is clear that respondent never
planned in killing the victim.
Therefore, he could not have cling to a
supposed determination as there was no
determination at all to speak of."
(P. 8 & 9 Resolution dated
July 7, 1994, DOJ Emphasis
Supplied)

"Not being the aggressor," it is apropos that the


accused did not incite, much less, provoke the
shooting. Decampong admitted while being
cross examined that the accused "withdrew" or
"ran away" after being hit on the left thigh, which
will fortify the conclusion that there was no
unlawful aggression on the part of the accused.
The elements of self-defense are (1) unlawful
aggression on the part of the victim; (2)
reasonable necessity of the means employed to
prevent or repel it; and (3) lack of sufficient
provocation on the part of the person defending
himself. (People vs. Hubilla, Jr., 252 SCRA 471).
The unlawful aggression, by way of the sudden
blocking of the car of the accused, and the
unexpected shot hitting the accused on the left
thigh, came from the agents. There was no
sufficient provocation on the part of the accused
as he was merely inside his car when he was
shot.
In People versus Mallari, 212 SCRA 777, the
Supreme Court ruled that there can be no
evident pre-meditation without proof of planning.
Evident pre-meditation must be established
beyond reasonable doubt and must be based on
external acts which are evident, not merely
suspected, and which indicate deliberate
planning. (People vs. Florida, 214 SCRA 227).
Witness: (Norman Decampong)
"Together with Special Investigation [sic] Edwin
Martinez, we ran towards Doa Manuela
Subdivision while the accused together with . . . I
was not able to notice the two companions ran
away."
(P. 44 TSN, Nov. 3, 1994)
With respect to the charges of Illegal Possession
of Firearms (P.D. 1866) and Violation of Election
Code on Comelec Gun Ban (Sec. 261(q)
Election Code), the Court needs these charges
to be disputed by countervailing evidence of the
accused. It is premature to rule on these
charges at the moment without any evidence to
the contrary. Thus, Criminal Cases Nos. 94-5038
and 24392 should be set for the reception of the
defense evidence.
xxx
It is aciomatic [sic] that the evidence for the
prosecution must stand or fall on its own merits
and cannot be allowed to draw strength from the
weakness of the evidence for the defense
(People vs. Lapinoso, G.R. No. 122507, Feb.
25, 1999). Proof beyond reasonable doubt is
that degree of proof which produces conviction
in an unprecedented mind. In criminal cases, the
accused is entitled to an acquittal unless his guilt
is shown beyond doubt. Proof beyond
reasonable doubt does not mean such a degree
of proof, as excluding possibility of error,
produces absolute certainty (People vs. Datukon
Bansil, G.R. No. 120163, March 10, 1999).

On the whole, the meager evidence for the


prosecution casts serious doubts as to the guilt
of the accused. It does not pass the test of moral
certainty and is inefficient to rebut the
constitutional presumption of innocence.
WHEREFORE, in the light of the foregoing, the
Court rules that the prosecution failed to
establish the guilt of the accused beyond
reasonable doubt in Criminal Cases Nos. 945036 and 94-5037, and these cases are ordered
DISMISSED.
Criminal Cases Nos. 94-5038 and 24392 should
be set for further trial.
SO ORDERED.14 (Emphasis supplied)
It is clearly stated in the body of the assailed
Order that the trial court held that the
prosecution failed to prove beyond reasonable
doubt the guilt of petitioner for Homicide
(Criminal Case No. 94-5038) and Frustrated
Homicide (Criminal Case No. 94-5036), thus:
On the first and second charges of Homicide
(Criminal Case No. 94-5038) and Frustrated
Homicide (Criminal Case No. 94-5036), did the
prosecution prove the guilt of the accused
beyond reasonable doubt in killing Edwin S.
Martinez and the wounding of Decampong
"without any just motive"?
To the mind of the Court, the prosecution failed
in this regard.15 (Emphasis supplied)
The trial court then proceeded to discuss the
basis for such ruling.
As regards the two other charges for Illegal
Possession of Firearms under Presidential
Decree No. 1866 (Criminal Case No. 94-5037)
and Violation of Section 261(Q) of the Omnibus
Election Code in relation to Section 32 of
Republic Act No. 7166 (Criminal Case No. 24392), the trial court held that it was still
premature to rule on these charges and that
further evidence was needed, thus:
With respect to the charges of Illegal Possession
of Firearms (P.D. 1866) and Violation of Election
Code on Comelec Gun Ban (Sec. 261(q)
Election Code), the Court needs these charges
to be disputed by countervailing evidence of the
accused. It is premature to rule on these
charges at the moment without any evidence to
the contrary. Thus, Criminal Cases Nos. 94-5038
and 24392 should be set for the reception of the
defense evidence.16 (Emphasis
supplied)1avvphi1
However, the trial court inadvertently designated
the wrong criminal case number to the charge
for Illegal Possession of Firearms. Instead of
Criminal Case No. 94-5037, the trial court
erroneously wrote Criminal Case No. 94-5038,
which is the criminal case number of the charge
for Homicide.

Unfortunately, this error was repeated in the


dispositive portion of the Order, thus:
WHEREFORE, in the light of the foregoing, the
Court rules that the prosecution failed to
establish the guilt of the accused beyond
reasonable doubt in Criminal Cases Nos. 945036 and 94-5037, and these cases are ordered
DISMISSED.
Criminal Cases Nos. 94-5038 and 24392 should
be set for further trial.

the body of the Order by dismissing Criminal


Case No. 94-5036 (Frustrated Homicide) and
Criminal Case No. 94-5038 (Homicide), and
setting for further trial Criminal Case No. 945037 (Illegal Possession of Firearms under
Presidential Decree No. 1866) and Criminal
Case No. 24-392 (Violation of Section 261(Q) of
the Omnibus Election Code in relation to Section
32 of Republic Act No. 7166).
SO ORDERED.
Footnotes

SO ORDERED.17 (Emphasis supplied)


5

In the dispositive portion, the trial court


erroneously dismissed Criminal Case No. 945037 which refers to the charge for Illegal
Possession of Firearms under Presidential
Decree No. 1866, while Criminal Case No. 945038 which refers to the charge for Homicide
was set for further trial.
The general rule is that where there is a conflict
between the fallo, or the dispositive part, and the
body of the decision or order, the fallo prevails
on the theory that the fallo is the final order and
becomes the subject of execution, while the
body of the decision merely contains the
reasons or conclusions of the court ordering
nothing.18 However, where one can clearly and
unquestionably conclude from the body of the
decision that there was a mistake in the
dispositive portion, the body of the decision will
prevail.19 Thus, in Spouses Rebuldea v.
Intermediate Appellate Court,20 the Court held
that the trial court did not gravely abuse its
discretion when it corrected the dispositive
portion of its decision to make it conform to the
body of the decision, and to rectify the clerical
errors which interchanged the mortgagors and
the mortgagee.
In this case, considering the clear finding of the
trial court that the prosecution failed to prove
beyond reasonable doubt the guilt of petitioner
in the charges for Homicide and Frustrated
Homicide, while the two other charges for Illegal
Possession of Firearms and Violation of the
Omnibus Election Code require further
evidence, it is only just and proper to correct the
dispositive portion to reflect the exact findings
and conclusions of the trial court. Thus, in
accordance with the findings of the trial court,
Criminal Case No. 94-5036 (Frustrated
Homicide) and Criminal Case No. 94-5038
(Homicide) should be dismissed, while Criminal
Case No. 94-5037 (Illegal Possession of
Firearms under Presidential Decree No. 1866)
and Criminal Case No. 24-392 (Violation of
Section 261(Q) of the Omnibus Election Code in
relation to Section 32 of Republic Act No. 7166)
should be set for further trial.
WHEREFORE, we GRANT the petition. The
Resolutions dated 10 March 2003 and 9 October
2003 of the Court of Appeals in CA-G.R. SP No.
72315 are REVERSED and SET ASIDE. The
dispositive portion of the Order dated 20 March
2001, of the Regional Trial Court of Las Pias
City, Branch 255, is CORRECTED to conform to

It appears that Judge Florentino M. Alumbres,


who issued the Order dated 20 March 2001,
already retired and was substituted by Judge
Bonifacio Sanz Maceda.
9

Section 8 of Rule 65, as amended by A.M. No.


07-7-12-SC, reads:
SEC. 8.Proceedings after comment is filed.
After the comment or other pleadings required
by the court is filed, or the time for the filing
thereof has expired, the court may hear the case
or require the parties to submit memoranda. If,
after such hearing or filing of memoranda or
upon the expiration of the period for filing, the
court finds that the allegations of the petition are
true, it shall render judgment for such relief to
which the petitioner is entitled.
However, the court may dismiss the petition if it
finds the same without merit or prosecuted
manifestly for delay, or if the questions raised
therein are too unsubstantial to require
consideration. In such event, the court may
award in favor of the respondent treble costs
solidarily against the petitioner and counsel, in
addition to subjecting counsel to administrative
sanctions under Rules 139 and 139-B of the
Rules of Court.
The Court may impose motu proprio, based on
res ipsa loquitur, other disciplinary sanctions or
measures on erring lawyers for patently dilatory
and unmeritorious petitions for certiorari.
(Emphasis supplied)

Republic of the Philippines


SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 147923

October 26, 2007

JIMMY T. GO, petitioner,


vs.
ALBERTO T. LOOYUKO, respondent.
x-------------------------------------------x
G.R. No. 147962

October 26, 2007

JIMMY T. GO, petitioner,


vs.
ALBERTO T. LOOYUKO and COURT OF
APPEALS, respondent.
x-------------------------------------------x
G.R. No. 154035

October 26, 2007

JIMMY T. GO, petitioner,


vs.
ALBERTO T. LOOYUKO, respondent.
DECISION
VELASCO, JR., J.:
The Case
Before us are three (3) petitions. The first,1 G.R.
No. 147962, is for certiorari under Rule 65. It
assails the February 12, 2001 Resolution2 of the
Court of Appeals (CA) in CA-G.R. SP No. 62438,
which granted a Writ of Preliminary Injunction in
favor of respondent Looyuko restraining the
Orders of the Pasig City Regional Trial Court
(RTC), Branch 69, from enforcing the Orders
dated September 25, 2000,3 December 19,
2000,4 and December 29, 20005 in Civil Case
No. 67921 entitled Jimmy T. Go v. Alberto T.
Looyuko for Specific Performance, Accounting,
Inventory of Assets and Damages; also
questioned is the April 24, 2001 CA
Resolution6 which rejected petitioners plea for
reconsideration.
G.R. No. 1479237 assails the September 11,
2000 CA Decision8 in CA-G.R. SP No. 58639,

which upheld the December 16, 19999 Makati


City RTC Order denying the requested inhibition
of RTC Judge Nemesio Felix (now retired) and
the March 8, 2000 Order10 which denied the
recall of the December 16, 1999 Order and
which likewise required the prosecution to make
a formal offer of evidence. Also challenged is the
March 27, 2001 CA Resolution11 denying
petitioners Motion for Reconsideration.
The third, G.R. No. 154035,12 assails the
January 31, 2002 CA Decision13 in CA-G.R. SP
No. 62296, which affirmed the Makati City RTC
May 9, 2000 Order14 in Criminal Case No. 981643, denying petitioners prayer to defer
submission of the formal offer of evidence and at
the same time granting leave to respondent to
file demurrer to evidence, and the September
22, 2000 Order15 denying reconsideration of the
May 9, 2000 Order. Likewise challenged is the
June 3, 2002 CA Resolution16 of the CA
disallowing petitioners Motion for
Reconsideration.
The second, G.R. No. 147923, and third, G.R.
No. 154035, petitions under Rule 45 of the
Rules of Court arose from Criminal Case No. 981643 entitled People of the Philippines v. Alberto
T. Looyuko for Estafa under Article 315,
paragraph 1 (b) of the Revised Penal Code
before the Makati City RTC, Branch 56.
In G.R. No. 154035, we consolidated the three
petitions having originated from the same
criminal case involving the same parties with
interrelated issues. Although the latter petition
raises the issue of the existence of a business
partnership and propriety of the conduct of the
inventory of assets and properties of Noahs Ark
Sugar Refinery in Civil Case No. 67921, all the
foregoing actions trace their beginnings from the
same factual milieu.17
The Facts
Petitioner Go and respondent Looyuko were
business associates. Respondent is the
registered owner of Noahs Ark Merchandising, a
sole proprietorship, which includes Noahs Ark
International, Noahs Ark Sugar Carriers, Noahs
Ark Sugar Truckers, Noahs Ark Sugar
Repacker, Noahs Ark Sugar Insurers, Noahs
Ark Sugar Terminal, Noahs Ark Sugar Building
and the land on which the building stood, and
Noahs Ark Sugar Refinery, and the
plant/building/machinery in the compound and
the land on which the refinery is situated. These
businesses are collectively known as the Noahs
Ark Group of Companies. Go was the business
manager or chief operating officer of the group
of companies.
Sometime in 1997, the business associates had
a falling out that spawned numerous civil
lawsuits. Among these actions are Civil Case
No. 67921 and Criminal Case No. 98-1643 from
which arose several incidents which eventually
became subject of these consolidated petitions.
Criminal Case No. 98-1643

On May 21, 1998, petitioner filed People of the


Philippines v. Alberto T. Looyuko, an Affidavit
Complaint18 before the Makati City RTC, Branch
56, charging respondent with Estafa under
Article 315, paragraph 1 (b) of the Revised
Penal Code. The case was docketed as Criminal
Case No. 98-1643. Petitioner alleged that
respondent misappropriated and converted in
his name petitioners 41,376 China Banking
Corporation (CBC) shares of stock. Petitioner
averred that he entrusted the stock certificates
to respondent for the latter to sell. The
Information reads:
That sometime during the month of May, 1997 or
prior thereto, in the City of Makati, Philippines
and within the jurisdiction of this Honorable
Court, the above-named accused, received in
trust from complainant Jimmy T. Go China
Banking Corporation stock certificates numbers
25447, 25449, 25450, 26481, 28418, 30916,
32501, 34697 and 36713 representing the
41,376 shares of stocks of the complainant with
China Banking Corporation, with a market value
of P1,400.00 per share, more or less, with the
obligation on the part of the accused to sell the
same and remit the proceeds thereof to the
complainant, but the accused, once in
possession of said stock certificates, far from
complying with his aforesaid obligation, with
intent to gain and abuse of confidence, did then
and there willfully, unlawfully and feloniously
misappropriated, misapply and convert the said
shares of stocks to his own personal benefit by
causing the transfer of said stock certificates to
his name considering that the same were
endorsed in blank by the complainant out of the
latters trust to the accused, and the accused
never paid the market value of said shares of
stocks, which is P1,400.00 per share, more or
less, or a total market value of P57,926,400.00
for the 41,376 shares of stocks, to the damage
and prejudice of the complainant in the amount
of P7,926,400.00.
CONTRARY TO LAW.19
After respondent pleaded "Not Guilty," and after
the testimonies of the prosecution witnesses
among them, Go and Amalia de Leon, an
employee of CBC, who testified that certificates
of stocks in Gos name were cancelled and new
certificates were issued in Looyukos name.
Earlier, subpoena ad
testificandum and subpoena duces tecum were
issued to Peter Dee, President of CBC, Atty.
Arsenio Lim, Corporate Secretary of CBC, and
Gloria Padecio. The trial court also felt no need
for the testimonies of Dee, Lim, and Padecio
and ordered the prosecution to offer its
evidence.
Petitioner filed a Motion for Reconsideration and
asked that the prosecution be allowed to present
its last witness from Amsteel Securities, Inc.,
Bohn Bernard J. Briones. The RTC granted the
motion. However, at the conclusion of Briones
testimony, the prosecution moved to subpoena
Alvin Padecio which was vehemently objected to
by the defense. The trial court denied the
motion. The prosecution thereafter opted to ask

for ten (10) days to formally offer its


documentary evidence. The trial court granted
the request.
Instead of filing its formal offer of evidence, the
prosecution filed an Urgent Motion for
Reconsideration,20 then a Supplemental Motion
with Manifestation, and a Second Supplemental
Motion with Manifestation,21 all praying that the
testimony of Alvin Padecio be allowed.
For his part, respondent filed a Motion to
Declare the Prosecution as Having Waived its
Right to Make a Formal Offer of
Evidence.22 Hence, petitioner filed an Omnibus
Motion to Withdraw the Urgent Motion for
Reconsideration with Motion for Inhibition.23

and allowing respondent to file a demurrer to


evidence.
While these motions were being considered by
the trial court, petitioner filed an administrative
case docketed as OCA I.P.I. No. 00-971-RTJ
against the trial court Presiding Judge Nemesio
S. Felix. It charged Judge Felix withPartiality,
relative to Criminal Case No. 98-1643.
Citing the administrative case he filed against
Judge Felix, petitioner filed a Second Motion for
Voluntary Inhibition31 before the trial court. The
trial court denied the second motion.32 His
Motion for Reconsideration was opposed33 by
respondent.
Civil Case No. 67921

On December 16, 1999, the trial court denied


petitioners motion for inhibition;24 petitioners
motion to declare the prosecution to have
waived its right to file formal offer of evidence;
and gave the prosecution a last chance to
submit its formal offer of documentary evidence
within ten (10) days from notice.25
Petitioner moved to defer compliance with the
submission of its formal offer of documentary
evidence pending petitioners motion for
reconsideration of the trial courts December 16,
1999 Order denying petitioners motion for
inhibition.26 The RTC denied petitioners motion
and granted the prosecution a last opportunity to
submit its formal offer of documentary evidence
within five (5) days from notice.27
Frustrated, petitioner adamantly reiterated his
motion for inhibition in a
Manifestation/Motion28 praying that the trial court
reconsider its Order directing the prosecution to
formally offer its documentary evidence in
deference to the petition for certiorari it intends
to file with the CA, where it would assail the
December 16, 1999 and March 8, 2000 Orders
denying the inhibition of the judge.
Subsequently, petitioner filed a Petition for
Certiorari29 under Rule 65 before the CA. It again
sought the reversal of the orders denying his
motion for inhibition. The petition was docketed
as CA-G.R. SP No. 58639.
Meanwhile, before the RTC hearing the criminal
case, respondent filed an Omnibus
Motion30 dated March 20, 2000 to declare
petitioner to have rested his case on the basis of
the prosecutions testimonial evidence and to
grant respondent leave to file his demurrer to
evidence. The RTC denied the Omnibus Motion.
Petitioner timely filed a Motion for
Reconsideration/Manifestation, which was
denied. Respondent filed his demurrer to
evidence incorporating in it his offer of evidence.
Petitioner filed another petition for certiorari
before the CA, docketed as CA-G.R. SP No.
62296. It sought to reverse the orders of the trial
court declaring petitioner to have waived his
right to formally offer his documentary evidence

Meanwhile, during the pendency of Crim. Case


No. 98-1643, on May 23, 2000, petitioner filed a
Complaint34docketed as Civil Case No. 67921
entitled Jimmy T. Go v. Alberto T. Looyuko for
Specific Performance, Accounting, Inventory of
Assets and Damages against respondent before
the Pasig City RTC. Petitioner claimed that in
two (2) Agreements executed on February 9,
198235 and October 10, 1986,36 respondent and
petitioner agreed to have their venture
registered with the Department of Trade and
Industry (DTI) in the name of Looyuko as sole
proprietor, and both agreed to be equally entitled
to 50% of the business, goodwill, profits, and
real and personal properties owned by the group
of companies. Petitioner alleged that respondent
had committed and continued to commit
insidious acts to oust him from the ownership of
half of the assets of the firms under Noahs Ark
Group of Companies in breach of their
agreements. Thus, petitioners action for specific
performance, accounting, and inventory of
assets and damages was instituted against
respondent.
Respondent filed a motion to dismiss on the
grounds of forum shopping, litis pendentia, and
abandonment or laches. The motion to dismiss
was denied.37 The trial court likewise denied
respondents Motion for Reconsideration.38 The
trial court nevertheless granted petitioners
motion to conduct an inventory of the assets of
the group of companies but under the direct
supervision and control of the Branch Clerk of
Court.39
On January 2, 2001, respondent filed before the
CA a Petition for Certiorari40 with application for
a temporary restraining order (TRO) and
preliminary injunction assailing the trial courts
orders denying respondents motion to dismiss
and grant of the motion of petitioner to conduct
an inventory.
Respondent also filed a Manifestation and
Motion for Reconsideration of the grant of the
motion to inventory before the trial court.
Therein, respondent informed the trial court of
his intention to elevate the denial of his motion
to dismiss before the CA, praying that no further
proceedings be conducted in view thereof.
Apparently, respondents petition for certiorari

before the CA did not mention the fact of the


Manifestation and Motion for Reconsideration
filed and pending before the trial court.
After filing the petition for certiorari, respondent
filed an Urgent Ex-Parte Motion to Admit
Additional Annexes to Petition.41 In the
meantime, on January 5, 2001, the inventory of
assets in the Noahs Ark Sugar Refinery was
completed.
Three days after the CA issued a
Resolution42 enjoining the trial court from
enforcing its orders denying the motion to
dismiss and grant of motion to inventory, it set
the hearing for the application of the injunctive
writ on January 29, 2001.
On February 9, 2001, petitioner filed his
opposition43 to respondents urgent motion to
admit additional annexes to petition which was
replied44 by respondent with additional annexes
appended thereto.
The Ruling of the Court of Appeals in
CA-G.R. SP No. 58639 (Criminal Case No. 981643)
On September 11, 2000, the CA rendered the
assailed Decision dismissing the petition.
The CA explained that the petition was initiated
solely by petitioner and was dismissible for it did
not implead nor have the participation of the
Office of the Solicitor General. And, on the
merits, the appellate court ruled that the
voluntary inhibition prayed by petitioner had no
legal and factual basis. The appellate court
found that three (3) alleged grounds of partiality
raised by petitioner were not badges of partiality.
The appellate court ruled that the denial of the
testimony of three (3) witnesses and that of Alvin
Padecio was an exercise of sound discretion by
the judge. Besides, the CA added, Alvin
Padecio, son of respondent, was entitled to the
testimonial privilege set forth in Section
25,45 Rule 130 of the Rules of Court. Moreover,
the appellate court found baseless the other two
(2) grounds of partiality. In fine, the CA held that
mere allegation of partiality and bias will not
suffice for a judge to voluntarily inhibit himself
and shirk from responsibility of hearing the case.
On March 27, 2001, the appellate court likewise
denied petitioners Motion for Reconsideration.
Thus, petitioner assails the above Decision and
Resolution of the appellate court in CA-G.R. SP
No. 58639 through a Petition for Review on
Certiorari before us docketed as G.R. No.
147923.
The Ruling of the Court of Appeals in
CA-G.R. SP No. 62296 (Criminal Case No. 981643)
On January 31, 2002, the appellate court in CAG.R. SP No. 62296 rendered the assailed
Decision. The CA in dismissing the petition ruled
that the trial court did not commit grave abuse of

discretion in finding that the petitioner had


waived his right to file a formal offer of
documentary evidence and in allowing
respondent to file a demurrer to evidence. It
ratiocinated that the pendency of the issue of
inhibition before the appellate court absent a
TRO did not suspend the proceedings in the trial
court. The CA pointed out that petitioner should
have pursued his plea for injunctive relief before
it or to file with the trial court his Formal Offer of
Evidence Ex Abundantia Cautelam. Since
petitioner pursued neither, he cannot fault the
trial court from issuing the assailed orders.
Finally, on the issue of the demurrer to evidence,
the CA held that such was seasonably filed by
respondent. It ruled in this wise:
In the case before the Respondent Court, the
Petitioner had presented its witnesses but had
no documentary evidence to formally offer as it
was considered to have waived the same by his
intractable refusal to file its "Formal Offer of
Evidence." Hence, the "Demurrer to
Evidence," filed by the Private Respondent, was
seasonably filed with the Respondent Court.46
Petitioners Motion for Reconsideration was also
denied. Hence, petitioner assails the above
Decision and Resolution of the appellate court in
CA-G.R. SP No. 62296 through a Petition for
Review on Certiorari before us docketed as G.R.
No. 154035.
The Ruling of the Court of Appeals in
CA-G.R. SP No. 62438 (Civil Case No. 67921)
On February 12, 2001, the CA issued the
assailed Resolution, granting a writ of
preliminary injunction conditioned on the filing of
a PhP 50,000 bond. The CA ruled that the
requisites for an injunctive writ were present and
that the status quo at the inception of the case
on May 23, 2000 must be observed. Thus, the
appellate court enjoined the trial court from
enforcing its Orders dated September 25, 2000,
December 19, 2000, and December 29, 2000,
and from conducting further proceedings in the
case pending resolution of the certiorari case.
Petitioners Motion for Reconsideration was
denied through the appellate courts April 24,
2001 Resolution. Thus, petitioner assails the
above Resolutions of the appellate court in CAG.R. SP No. 62438 through a petition for
certiorari under Rule 65 before us docketed
as G.R. No. 147962.
The Issues
In G.R. No. 147923, petitioner Go raises the
sole issue:
Whether the Honorable Court of Appeals
committed reversible errors when it failed to
apply the law and established jurisprudence on
the matter by issuing the questioned Resolutions
(sic) thereby affirming the questioned Orders of
the Court a quo which were issued with grave
abuse of discretion.

In G.R. No. 154035, petitioner Go raises the


sole issue:
Whether the Honorable Court of Appeals
committed reversible errors when it failed to
apply the law and established jurisprudence on
the matter by issuing the questioned Resolutions
thereby affirming the questioned Orders of the
Court a quo which were issued with grave abuse
of discretion.
In G.R. No. 147962, petitioner Go alleges that
the respondent CA acted with grave abuse of
discretion and in excess of its jurisdiction in
rendering the questioned Resolutions when:
1) It failed to dismiss the questioned Petition
notwithstanding the fatal error committed by
Looyuko in intentionally failing to await the
resolution of his Motion for Reconsideration filed
in the Court a quo before filing his Petition with
the Court of Appeals.
2) It failed to dismiss the questioned Petition on
the ground of Looyukos failure to attach all
relevant and pertinent documents to his Petition.
3) It failed to dismiss the questioned Petition
notwithstanding the fact that Looyuko violated
the rule against forum-shopping.
4) It failed to apply the rule that consummated
acts could no longer be restrained by injunction.
5) It granted Looyukos prayer for injunction.
Injunction should have been denied. Looyuko
has unclean hands and he seeks equity without
"doing equity." No irreparable damage exists and
a plain and adequatelegal remedy is available to
him.
6) It fixed the amount of the injunction bond in
the measly amount of P50,000.00.
Meanwhile, during the pendency of these
petitions, respondent Looyuko died on October
29, 2004.47
The Courts Ruling
The petitions are partly meritorious.
G.R. Nos. 147923 and 154035
We will tackle G.R. Nos. 147923 and 154035
jointly since the issues raised are closely
interwoven as the pending incidents arose from
the same Crim. Case No. 98-1643.
Voluntary Inhibition: Not a remedy absent
valid grounds
In G.R. No. 147923, petitioner strongly asserts
that Presiding Judge Nemesio Felix has
displayed manifest bias and partiality in favor of
respondent by disallowing the presentation of
the testimonies of the prosecutions vital
witnesses, namely, Dee, Lim, Gloria Padecio,
and Alvin Padecio, without any valid reason and

in utter bad faith. Petitioner also foists the


alleged badges of partiality in the conduct and
attitude of the trial court judge during the
proceedings; and that it is revealing that the
respondent and his counsel knew the judge
beforehand. Finally, petitioner points to the
apparent animosity and enmity of Judge Felix in
his Comment to the administrative case (OCA
I.P.I. No. 00-971-RTJ) filed by petitioner against
him.
We have ploughed through the records and we
are constrained to agree with the findings of the
appellate court.First, we find no manifest
partiality. Indeed, the adverse rulings on the
denial of the proposed testimonies of the
prosecutions witnesses are judicial in nature.
Absent proof that the trial court judge had acted
in a wanton, whimsical or oppressive manner or
for an illegal consideration, and similar reasons,
in giving undue advantage to respondent,
inhibition is not a remedy to oust the judge from
sitting on the case.
Second, the other two (2) grounds raised by
petitioner are also baseless. We reiterate the
age-old rule in civil cases that one who alleges a
fact has the burden of proving it and a mere
allegation is not evidence.48 Verily, petitioner has
not shown substantial proof to bolster these
allegations. It is quite revealing what was
pointed out by Judge Felix in his December 16,
1999 Order, as quoted by the appellate court,
that the allegation of respondents counsel
saying to petitioner that "Amin na si Judge" first
came out only in petitioners second
supplemental motion with manifestation dated
September 7, 1999. If it was indeed uttered by
respondents counsel, such would have been
immediately stated in the prior pleadings of
petitioner: the urgent motion for reconsideration
dated August 26, 1999 and supplemental motion
with manifestation dated August 31, 1999.
Besides, in a string of cases, this Court has said
that bias and prejudice, to be considered valid
reasons for the voluntary inhibition of judges,
must be proved with clear and convincing
evidence. Bare allegations of partiality and
prejudgment will not suffice.49
Third, on June 26, 2002, we dismissed the
administrative case filed by petitioner against
Judge Felix in OCA I.P.I. No. 00-971-RTJ.
Therein, we found no basis to administratively
discipline respondent judge for manifest
partiality. Verily, the assailed orders were issued
with judicial discretion and no administrative
liability attaches absent showing of illegal
consideration or giving undue advantage to a
party, and much less can we compel the trial
court judge to inhibit himself absent valid
grounds therefor.
Fourth, since the grounds raised by petitioner in
his motion to inhibit are not among those
expressly mentioned in Section 1, Rule 137 of
the Revised Rules of Court, the decision to
inhibit himself lies within the sound discretion of
Judge Felix. Grounds raised outside the five (5)
mandatory disqualification of judges enumerated
in the first paragraph of Sec. 1 of Rule 137 are

properly addressed to the sound discretion of


the trial court judge hearing a case as pertinently
provided for in the second paragraph of Sec. 1,
Rule 137, thus:
SECTION 1. Disqualification of judges. x x x
A judge may, in the exercise of his sound
discretion, disqualify himself from sitting in a
case, for just or valid reasons other than those
mentioned above.
Thus, it is clearly within the discretion of the
judge to voluntarily inhibit himself from sitting in
a case or not.
Fifth, we fail to appreciate petitioners contention
that the harsh language in the comment of
Judge Felix shows his apparent animosity and
enmity against petitioner. We have gone over
the 2nd Indorsement (Comment) of Judge Felix
and we failed to find such animosity against
petitioner. Be that as it may, the tenor of the
comment is usual given the indignation and the
bother that judges, and other court employees
for that matter, have to go through when faced
with an administrative case.
Finally, this issue has been mooted as Judge
Nemesio Felix had compulsorily retired on
December 19, 2004.
Grave abuse of discretion in the denial of
additional witnesses
At this juncture, we come to the issue of denial
of additional witnesses. Petitioner contends that
the prosecution should have been given the
opportunity to present four witnesses, namely,
Dee, the President of CBC; Lim, Corporate
Secretary of CBC; Gloria Padecio and Alvin
Padecio, whom petitioner strongly avers are vital
witnesses to prove the allegations in the
Information as set out in the issues embodied in
the Pre-Trial Order.
The contention of petitioner is well-taken.
It is basic that the case of the prosecution in a
criminal case depends on the strength of its
evidence and not on the weakness of the
defense. This is so as proof beyond reasonable
doubt is required in criminal cases. Thus, the
prosecution must be afforded ample opportunity
to present testimonial and documentary
evidence to prove its case. A close perusal of
the antecedent facts in the instant case shows
that the prosecution had not been given this
opportunity.
The Pre-Trial Order50 of January 19, 1999 shows
that the prosecution will present seven (7)
witnesses and to resolve the issues on whether
petitioner is only a mere employee of or a "5050" partner of respondent. The prosecution was
allowed to present only three (3) witnesses,
namely, petitioner Jimmy T. Go, Amalia de Leon,
representative of CBC, Bohn Briones,
representative of and Credit Comptroller of
Amsteel Securities, Inc.

It must be noted that after petitioner and de


Leon presented their testimonies, the trial court
ruled that the testimonies of Dee and Lim of the
CBC, who were ready to testify, and that of
Gloria Padecio, the common-law wife of
respondent, were superfluous. Moreover, after
much wrangling with the prosecution conceding
the non-presentation of the three (3) witnesses,
the testimony of Briones was allowed as final
witness for the prosecution. But Briones
testimony left much to be desired as he was not
able to testify on some points the prosecution
considered vital to its case. Thus, the
prosecution requested for the presentation of
Alvin Padecio, the son of respondent and Gloria
Padecio, the alleged stock agent of Amsteel
Securities, Inc. who handled the transaction
involving the subject shares of stock of CBC.
This was likewise denied by the trial court, which
led to the motion for inhibition and administrative
case against Judge Felix, and the adamant
stand of petitioner not to rest his case by filing
his formal offer of evidence until the testimony of
Padecio is had.
It must be emphasized that in a catena of cases
we have reiterated the principle that the matter
of deciding who to present as a witness for the
prosecution is not for the defendant or the trial
court to decide, as it is the prerogative of the
prosecutor.51 It cannot be overemphasized that
the trial court must accord full opportunity for the
prosecution, more so in criminal cases, to
adduce evidence to prove its case and to
properly ventilate the issues absent patent
showing of dilatory or delaying tactics. The
reason is obvious: it is tasked to produce and
adduce evidence beyond a reasonable doubt.
Sans such evidence, a dismissal of the criminal
case on a demurrer to the evidence is proper. In
the case at bar, there was no showing that the
presentation of the three (3) witnesses
previously approved by the trial court would be
dilatory and manifestly for delay.
The trial court anchored its ruling on the denial
of the three (3) witnesses on the fact that the
Pre-Trial Order already stipulated the fact that
the certificates were issued in the name of
petitioner Go, were indorsed in blank and
delivered to respondent, and the certificates
were subsequently transferred to respondents
name. The trial court ruled that these facts were
already testified to by petitioner and de Leon.
Moreover, the trial court also ruled that the
testimony of Gloria Padecio was a superfluity as
petitioner already testified to the alleged
partnership between petitioner and respondent.
We cannot agree with the trial court and neither
can we give imprimatur on the appellate courts
affirmance thereof. We find that the trial court
gravely abused its discretion in denying
petitioner and the prosecution to present their
witnesses.
Grave abuse of discretion implies such
capricious and whimsical exercise of judgment
as is equivalent to lack of jurisdiction. It is wellsettled that an act of a court or tribunal may only
be considered to have been done in grave

abuse of discretion when the act was performed


in a capricious or whimsical exercise of
judgment which is equivalent to lack of
jurisdiction. The abuse of discretion must be so
patent and gross as to amount to an evasion of
positive duty or to a virtual refusal to perform a
duty enjoined or to act at all in contemplation of
law, as where the power is exercised in an
arbitrary and despotic manner by reason of
passion or personal hostility.52 An error of
judgment committed in the exercise of its
legitimate jurisdiction is not the same as "grave
abuse of discretion." An abuse of discretion is
not sufficient by itself to justify the issuance of a
writ of certiorari.

beyond reasonable doubt is required for the


conviction of the accused.

We find that the trial court gravely abused its


discretion in patently and arbitrarily denying the
prosecution the opportunity to present four (4)
witnesses in the instant criminal case. First, the
testimonies of Dee and Lim from CBC would
bolster and tend to prove whatever fact the
prosecution is trying to establish. Truth to tell,
only the testimony of de Leon corroborates
petitioners testimony on the alleged transfer
from petitioners name to that of respondent of
the certificates of stock. More light can be shed
on the transaction with the additional testimony
of Dee and Lim.

Likewise, the trial court gravely abused its


discretion in denying the prosecution to present
the testimony of Alvin Padecio considering that
Briones of Amsteel Securities, Inc. did not
provide some details on the transfer. Alvin
Padecio, petitioner claims, is the person who
can shed light on these matters, more
particularly if one considers the fact that he is
the son of respondent Looyuko.

Second, the superfluity of a testimony vis--vis


what has already been proven can be
determined with certainty only after it has been
adduced. Verily, the testimonies of petitioner Go
and de Leon on the issue of the transfer cannot
be said to have truly proven and been
corroborated with certainty as they are.
Third, the trial court cannot invoke its discretion
under Sec. 6 of Rule 134, Rules of Court given
that only two (2) witnesses were presented
when it denied the testimony of the three (3)
witnesses. Sec. 6 of Rule 134 pertinently
provides:
SEC. 6. Power of the court to stop further
evidence. The court may stop the introduction
of further testimony upon any particular point
when the evidence upon it is already so full that
more witnesses to the same point cannot be
reasonably expected to be additionally
persuasive. But this power should be exercised
with caution.
The above proviso clearly grants the trial court
the authority and discretion to stop further
testimonial evidence on the ground
that additional corroborative testimony has
no more persuasive value as the evidence on
that particular point is already so full. Indeed,
it was only petitioner Go, whose testimony may
be considered self-serving who testified on the
issue of the transfer. Certainly, the additional
testimony of de Leon on the issue of the transfer
cannot be considered as so adequate that
additional corroborative testimony has no more
persuasive value. Besides, the discretion
granted by the above proviso has the clear
caveat that this power should be exercised with
caution, more so in criminal cases where proof

Fourth, in consonance with the immediate


preceding discussion, petitioner Gos testimony
on the alleged partnership is not confirmed and
supported by any other proof with the exclusion
of the testimony of Gloria Padecio. Certainly, it is
imperative for the prosecution to prove by clear
and strong evidence that the alleged partnership
exists; otherwise, respondent Looyuko is entitled
to exoneration as the element of trust is
important inestafa by abuse of confidence.
Corroborative testimony is a necessity given the
nature of the criminal case.

Based on the foregoing findings, we hold that


the trial court whimsically, arbitrarily, and gravely
abused its discretion amounting to a denial of
the prosecution of its day in court.
Death of respondent extinguished criminal
liability
Respondent Looyuko died on October 29, 2004.
It is an established principle that the death of the
accused pending final adjudication of the
criminal case extinguishes the accuseds
criminal liability. If the civil liabilitydirectly arose
from and is based solely on the offense
committed, then the civil liability is also
extinguished.53
In the case at bar, the civil liability for the
recovery of the CBC stock certificates covering
41,376 shares of stock or their value does not
directly result from or based solely on the crime
of estafa but on an agreement or arrangement
between the parties that petitioner Go would
endorse in blank said stock certificates and give
said certificates to respondent Looyuko in trust
for petitioner for said respondent to sell the
stocks covered by the certificates. In such a
case, the civil liability survives and an action for
recovery therefor in a separate civil action can
be instituted either against the executor or
administrator or the estate of the accused.
The case law on the matter reads:
1. Corollarily, the claim for civil liability survives
notwithstanding the death of the accused, if the
same may also be predicated on a source of
obligation other than delict. Article 1157of the
Civil Code enumerates these other sources of
obligation from which the civil liability may arise
as a result of the same act or omission:
a.) Law

b.) Contracts

Looyuko, these procedural matters are now


mooted and rendered insignificant.

c.) Quasi-contracts
G.R. No. 147962
d.) x x x
e.) Quasi-delicts

Appellate courts discretion to give due


course to petition

2. Where the civil liability survives, as


explained in Number 2 above, an action for
recover therefore may be pursued but only
by way of filing a separate civil action and
subject to Section 1, Rule 111 of the 1985 Rules
on Criminal Procedure as amended. This
separate civil action may be enforced either
against the executor/administrator or the estate
of the accused, depending on the source of
obligation upon which the same is based as
explained above.54 (Emphasis supplied.)

Petitioner strongly asserts that the CA gravely


abused its discretion in failing to dismiss the
petition in CA-G.R. SP No. 62438 on the ground
of respondents failure to attach all relevant and
pertinent documents to his petition, and it
erroneously ruled that such procedural defect
was cured by admitting respondents motion to
admit additional annexes. Petitioner relies
on Manila Midtown Hotels and Land Corp., et al.
v. NLRC57 and contends that Director of Lands v.
Court of Appeals58 cited by the CA is
inapplicable.

On the other hand, Sec. 4, Rule 111 of the Rules


on Criminal Procedure provides:

We cannot agree with petitioner.

SEC. 4. Effect of death on civil actions. The


death of the accused after arraignment and
during the pendency of the criminal action shall
extinguish the civil liability arising from the delict.
However, the independent civil action instituted
under section 3 of this Rule or which thereafter
is instituted to enforce liability arising from
other sources of obligation may be
continued against the estate or legal
representative of the accused after proper
substitution or against said estate, as the
case may be. The heirs of the accused may be
substituted for the deceased without requiring
the appointment of an executor or administrator
and the court may appoint a guardian ad
litem for the minor heirs. (Emphasis supplied.)
In the light of the foregoing provision, Crim.
Case No. 98-1643 has to be dismissed by
reason of the death of respondent Looyuko
without prejudice to the filing of a separate civil
action.
One last point. Petitioner Go filed the two
petitions before the CA docketed as CA-G.R. SP
No. 58639 and CA-G.R. SP No. 62296 involving
incidents arising from the proceedings in Crim.
Case No. 98-1643. It can be observed from the
two petitions that they do not reflect the
conformity of the trial prosecutor assigned to
said criminal case. This is in breach of Sec. 5,
Rule 110 of the Rules of Court that requires that
all criminal actions shall be prosecuted "under
the direction and control of a public prosecutor."
Although in rare occasions, the offended party
as a "person aggrieved" was allowed to file a
petition under Rule 65 before the CA without the
intervention of the Solicitor General,55 the instant
petitions before the CA, as a general rule,
should be filed by the Solicitor General on behalf
of the State and not solely by the offended
party.56
For non-compliance with the rules, the twin
petitions could have been rejected outright.
However, in view of the death of respondent

Sec. 1 of Rule 65 pertinently provides:


SECTION 1. Petition for certiorari. When any
tribunal, board or officer exercising judicial or
quasi-judicial functions has acted without or in
excess of its or his jurisdiction, or with grave
abuse of discretion amounting to lack or excess
of jurisdiction, and there is no appeal, nor any
plain, speedy, and adequate remedy in the
ordinary course of law, a person aggrieved
thereby may file a verified petition in the proper
court, alleging the facts with certainty and
praying that judgment be rendered annulling or
modifying the proceedings of such tribunal,
board or officer, and granting such incidental
reliefs as law and justice may require.
The petition shall be accompanied by a certified
true copy of the judgment, order or resolution
subject thereof, copies of all pleadings and
documents relevant and pertinent thereto, and a
sworn certification of non-forum shopping as
provided in the third paragraph of Section 3,
Rule 46.
The above proviso clearly vests the appellate
court the authority and discretion to give due
course to the petitions before it or to dismiss the
same when it is not sufficient in form and
substance, the required pleadings and
documents are not attached thereto, and no
sworn certificate on non-forum shopping is
submitted. And such must be exercised, not
arbitrarily or oppressively, but in a reasonable
manner in consonance with the spirit of the law.
The appellate court should always see to it that
justice is served in exercising such discretion.
In the case at bar, the appellate court exercised
its discretion in giving due course to respondent
Looyukos petition in view of the policy of
liberality in the application of the rules. Verily,
petitioner has not shown that the appellate court
abused its discretion in an arbitrary or
oppressive manner in not dismissing the petition
due to the non-attachment of some relevant
pleadings to the petition. The miscue was cured

when respondent submitted additional annexes


to the petition. Neither has petitioner shown any
manifest bias, fraud, or illegal consideration on
the part of the appellate court to merit
reconsideration for the grant of due course.
Respondent guilty of forum shopping
There was still a pending Motion for
Reconsideration (to the Order of denial of
Looyukos Motion to Dismiss) filed by Looyuko in
the court a quo when he instituted the petition
before the CA on January 2, 2001. It is
aggravated by the fact that the Motion for
Reconsideration to the denial Order was filed on
the same day or simultaneously with the filing of
the Petition for Certiorari; hence, the petition is
in the nature of forum shopping. The issues
brought before the CA are similar to the issues
raised in Looyukos Motion for Reconsideration
involving similar cause of action and reliefs
sought, that is, to dismiss the basic complaint of
petitioner Go. This Court in a catenaof cases
resolved that a Motion for Reconsideration is an
adequate remedy in itself, and is a
condition sine qua non to the prosecution of the
independent, original, and extra ordinary special
civil action of certiorari.59 We must not lose sight
of the fact that a Motion for Reconsideration
(subsequently denied) is a pre-requisite before a
Petition for Certiorari may properly be filed.60
Considering, that the Motion for Reconsideration
has not been resolved by the court a quo, the
petition (CA-G.R. SP No. 62438) was
prematurely filed; hence, it should have been
outrightly denied due course. Looyuko was
remiss of his duty to inform the appellate court in
his petition that there was a pending Motion for
Reconsideration in the court a quo.
Consummated acts not restrained by
injunctive writ
A close review of the antecedent facts bears out
that, indeed, petitioner did not know of the
petition for certiorari before the CA until he
received a copy of the CAs January 8, 2001
Resolution on January 12, 2001. It is undisputed
that petitioner received a copy of respondents
December 29, 2000 petition only on January 19,
2001.
Clearly, petitioner did not yet know of the
pendency of the petition for certiorari before the
CA when the inventory of the assets in Noahs
Ark Sugar Refinery was completed on January
5, 2001. Thus, the appellate court committed
reversible error when it held that petitioner
proceeded at his own peril the conduct of the
inventory in view of the pendency of the
certiorari case in which the appellate court
enjoined the trial court from proceeding with its
January 8, 2001 Resolution. Verily, even before
the CA granted the TRO and issued its January
8, 2001 Resolution, the proceeding to be
enjoined, that is, the conduct of the inventory,
had already been done. Thus, we agree with
petitioner that Verzosa v. Court of
Appeals61 relied upon by the appellate court is
not applicable.

The established principle is that when the events


sought to be prevented by injunction or
prohibition have already happened, nothing
more could be enjoined or prohibited.62 Indeed, it
is a universal principle of law that an injunction
will not issue to restrain the performance of an
act already done. This is so, for the simple
reason that nothing more can be done in
reference thereto.63 A writ of injunction becomes
moot and academic after the act sought to be
enjoined has already been consummated.64
In the case at bar, it is manifest that the
inventory has already been conducted when the
January 8, 2001 TRO and February 12, 2001
Writ of Injunction were issued. Thus, the issue of
injunction has been mooted, and the injunctive
writ must be nullified and lifted.
Inventory of assets does not prejudice the
parties
Moreover, it must be noted that the inventory of
assets granted by the trial court on December
29, 2000, which was completed on January 5,
2001, does not prejudice respondent Looyukos
right. Certainly, the rights of respondent over the
inventoried assets in Noahs Ark Sugar Refinery
have not been transgressed, set aside,
diminished, or militated upon by the conduct of
the inventory.
An inventory does not confer any rights. Thus,
by conducting the inventory, petitioner had not
been conferred any rights over the assets
absent a final determination by the court on the
main action for specific performance,
accounting, and damages, as the inventory is
only an ancillary remedy preparatory for the
party to an action to institute other legal
remedies for the protection of whatever right the
party may have over the subject of the inventory.
Injunction, therefore, against the inventory of the
assets covered by the December 29, 2000
Order should be lifted since the inventory has
been completed and there is nothing to enjoin or
restrain. Consequently, the February 12, 2001
CA Resolution on this matter will have to be
modified.
Lower court to proceed absent any TRO or
injunctive writ from this Court
With regard to the injunction on the September
25, 2000 and December 19, 2000 Orders which
denied respondents motion to dismiss and
motion for reconsideration, respectively, which
effectively prohibited the Pasig City RTC from
conducting further proceedings in Civil Case No.
67921 until CA-G.R. SP No. 62438 is resolved, it
is clear that more than six (6) years had elapsed
since the April 24, 2001 CA Resolution was
issued and still the CA petition of petitioner has
not yet been resolved on the merits. It is
observed that this Court did not issue a TRO or
a writ of preliminary injunction against the CA
from proceeding in CA-G.R. SP No. 62438. The
CA should have proceeded to resolve the
petition notwithstanding the pendency of G.R.
No. 147962 before this Court. This is

unequivocal from Sec. 7 of Rule 65 which


provides that the "petition shall not interrupt the
course of the principal case unless a TRO or a
writ of preliminary injunction has been issued
against the public respondent from further
proceeding in the case." This rule must be
strictly adhered to by the lower court
notwithstanding the possibility that the
proceedings undertaken by the lower court tend
to or would render nugatory the pending petition
before this Court. As long as there is no directive
from this Court for the lower court to defer action
in the case, the latter would not be faulted if it
continues with the proceedings in said case.
Given the more than six (6) years that CA-G.R.
SP No. 62438 has been pending with the CA,
we deem it better to resolve the issue of the
propriety of the denial by the trial court of
respondents motion to dismiss than remanding
it to the CA.
Issue of denial of motion to dismiss
Respondent Looyuko anchored his motion to
dismiss on the ground of forum shopping, litis
pendentia, and abandonment or laches.
Respondent anchors his grounds of litis
pendentia and forum shopping on the fact of the
pendency of Civil Case No. 98-91153
entitled Alberto T. Looyuko v. Jimmy T. Go a.k.a.
Jaime Gaisano and the Register of Deeds of
Manila before the Manila RTC, Branch 36, and
in Civil Case No. MC 98-038 entitled Alberto T.
Looyuko v. Jimmy T. Go a.k.a. Jaime Gaisano
and the Register of Deeds of Mandaluyong
City before Mandaluyong City RTC, Branch 213.
Civil Case No. 98-91153 involves an action to
amend Transfer Certificate of Title (TCT) Nos.
160277 and 160284 by deleting the name of
petitioner Jimmy T. Go as co-owner. While Civil
Case No. MC 98-038 is a petition to cancel the
adverse claims annotated by petitioner in TCT
No. 64070 in the name of respondent Alberto T.
Looyuko and in TCT No. 3325 in the name of
Noahs Ark Sugar Refinery. In both civil cases,
petitioner has anchored his defense and
adverse claims on the Agreements executed on
February 9, 1982 and October 10, 1986,
wherein the parties allegedly entered into and
embodied in said agreements their true intent
and relationship with respect to their business
ventures in Noahs Ark Group of Companies,
that is, for convenience and expediency, the
parties agreed to have their ventures registered
with the DTI in the name of respondent Looyuko
only as sole proprietor while they are both
equally entitled to 50% of the business, goodwill,
profits, real and personal properties owned by
the group of companies.
Respondent pointed out that that petitioner has
prayed in Civil Case No. 98-91153 that the
parties agreement dated February 9, 1982 and
October 10, 1986 be declared valid and binding,
and in Civil Case No. MC 98-038 to order the
Register of Deeds of Mandaluyong City to
register petitioner Gos name as co-owner of the
properties covered by TCT Nos. 64070 and

3325 by virtue of the February 9, 1982 and


October 10, 1986 agreements.
Thus, respondent strongly argues that the issue
regarding the validity and binding effect of the
alleged partnership agreements dated February
9, 1982 and October 10, 1986 on which
petitioner anchors his claim of co-ownership in
the Noahs Ark Group of Companies has been
squarely raised not only as a defense but also
as basis of his prayer for positive relief.
Respondent now contends that petitioner is
barred by litis pendentia in filing Civil Case No.
67921 for Specific Performance, Accounting,
Inventory of Assets and Damages anchored on
the same issue of the disputed partnership
agreements. Moreover, such filing duly
recognized by the trial court constitutes forum
shopping.
We cannot agree with respondent.
Litis pendentia and forum shopping not
present
There is no basis for respondents claim based
on litis pendentia and forum shopping. For litis
pendentia to be a ground for the dismissal of an
action there must be: (1) identity of the parties or
at least such as to represent the same interest in
both actions; (2) identity of rights asserted and
relief prayed for, the relief being founded on the
same acts; and (3) the identity in the two cases
should be such that the judgment which may be
rendered in one would, regardless of which party
is successful, amount to res judicata in the
other.65 On the other hand, forum shopping
exists where the elements of litis pendentia are
present, and where a final judgment in one case
will amount to res judicata in the other.66
A brief perusal of the cause of action in Civil
Case No. 67921 vis--vis those of Civil Case
Nos. 98-91153 and MC 98-038 reveals that
there is neither identity of rights asserted and
reliefs prayed for, nor are the reliefs founded on
the same acts. In this case, Civil Case No.
67921, the relief sought before the Pasig City
RTC where the complaint for specific
performance was filed by petitioner, was the
enforcement of the disputed partnership
agreements, whereas, in the Makati City and
Mandaluyong City RTCs, the reliefs sought by
petitioner who is a defendant and respondent,
respectively, were merely as defense for his coownership over subject parcels of land and as
defense for the adverse claims he had
annotated in the titles of subject properties.
Such defenses cannot be equated with seeking
relief for the enforcement of the disputed
partnership agreements. Indeed, the complaint
and petition filed by respondent in the Makati
City and Mandaluyong City RTCs had different
causes of action and sought different reliefs
which did not stem from nor are founded from
the same acts complained of. There is no basis,
therefore, for petitioners contention that
respondent is guilty of forum shopping nor the
instant complaint barred by litis pendentia.

Anent abandonment or laches, we fully agree


with the trial court that there is no basis to
dismiss the complaint in Civil Case No. 67921
on the grounds of laches and abandonment.
Laches, being controlled by equitable
considerations and addressed to the sound
discretion of the trial court, is evidentiary in
nature and thus can not be resolved in a motion
to dismiss, as we have held in the fairly recent
case of Felix Gochan and Sons Realty
Corporation v. Heirs of Raymundo Baba.67
WHEREFORE, the petition in G.R. No.
147962 is GRANTED. The February 12, 2001
and April 24, 2001 Resolutions of the CA in CAG.R. SP No. 62438 are REVERSED and SET
ASIDE, and the Writ of Preliminary Injunction
is LIFTED. The Petition for Certiorari of
respondent Looyuko in CA-G.R. SP No. 62438
is DISMISSEDfor lack of merit, and the Orders
dated September 25, 2000, December 19, 2000,
and December 29, 2000 of the Pasig City RTC,
Branch 69 are AFFIRMED. The Pasig City RTC,
Branch 69 is hereby ordered to proceed with the
case with dispatch.

PEOPLE OF THE PHILIPPINES,


Petitioner,

- versus -

ARTURO F. DUCA,
Respondent.

x-----------------------------------------------------------------------------------------x
DECISION

The petition in G.R. No. 147923 is DENIED and


the September 11, 2000 Decision and March 27,
2001 Resolution of the CA in CA-G.R. SP No.
58639 are AFFIRMED.

LEONARDO-DE CASTRO, J.:

The petition in G.R. No. 154035 is GRANTED.


The January 31, 2002 Decision and June 3,
2002 Resolution of the CA in CA-G.R. SP No.
62296 are REVERSED and SET ASIDE.
Likewise, the Orders dated May 9, 2000 and
September 22, 2000 of the Makati City RTC in
Crim. Case No. 98-1643
are REVERSED and SET ASIDE.

which seeks to set aside and annul the

However, in view of the demise of respondent


Looyuko on October 29, 2004, the Makati City
RTC is ordered to dismiss Crim. Case No. 981643 without prejudice to the filing of a separate
civil action by petitioner Go.

Regional Trial Court (RTC) of Dagupan City,

No pronouncement as to costs.

Jacinto, Pangasinan, convicting respondent

SO ORDERED.

Before this Court is a petition for certiorari under


Rule 65 of the 1997 Rules of Civil Procedure
Decision[1] dated November 23, 2005 rendered
by the Court of Appeals (CA) in CA-G.R. CR No.
28312.
The CA decision reversed the decision[2] of the
Branch 44, in Criminal Case No. 2003-0194D[3] which affirmed an earlier decision[4] of the
Municipal Circuit Trial Court of San Fabian-San
Arturo Duca of the crime of falsification under
Article 171 of the Revised Penal Code.

Footnotes
45

SEC. 25. Parental and filial privilege. No


person may be compelled to testify against his
parents, other direct ascendants, children or
other direct descendants.
67

Though laches applies even to imprescriptible


actions, its elements must be proved
positively.Laches is evidentiary in
nature which could not be established by mere
allegations in the pleadings and can not be
resolved in a motion to dismiss. (Emphasis
supplied.)

FIRST DIVISION

The facts as found by the CA are quoted as


follows:
It appears that Arturo Duca, together
with his mother, Cecilia Duca, were
charged of the crime of Falsification of
Official Document defined and penalized
under Article 172, in relation to Article
171, paragraph 2 of the Revised Penal
Code in an Information which reads:
That on or about December 10,
2001 in the Municipality of San
Fabian, Province of
Pangasinan, Philippines, within
the jurisdiction of this Honorable
Court, the said accused
confederating together and

mutually abiding each other,


with intent to cause damage, did
then and there, willfully,
unlawfully and feloniously cause
the preparation of a Declaration
of Real Property over a
bungalow type residential house
covered by Property Index No.
013-32-027-01-116131 of the
Municipal Assessors Office of
San Fabian, Pangasinan by
making it appear that the
signature appearing on the
sworn statement of owner is that
of Aldrin F. Duca when the truth
of the matter is not because the
latter was abroad at that time
having arrived in the Philippines
only on December 12, 2001,
and it was accused Arturo F.
Duca who affixed his own
signature thereon to the
damage and prejudice of the
undersigned private
complainant Pedro Calanayan.
Upon being arraigned, both the accused
pleaded not guilty. Then trial on the
merits ensued.
The evidence for the prosecution shows
that sometime in 1999, Pedro
Calanayan (hereinafter Calanayan),
private complainant herein, filed an
action for ejectment and damages
against Cecilia F. Duca, Ruel F. Duca,
Arsenio F. Duca and Vangie F. Duca
before the 4th Municipal Circuit Trial
Court (MCTC) of San Fabian-San
Jacinto, Pangasinan, docketed as Civil
Case No. 960 (SF-99). The case was
decided in favor of Calanayan. There
being no appeal interposed by the
aforesaid defendants, the said decision
became final and executory. On
November 22, 1999, a writ of execution
was issued by the MCTC to enforce the
decision. On February 29, 2000, the
money judgment was likewise satisfied
with the public auction of the lot owned
by Cecilia Duca covered by TCT No.
233647. On March 1, 2000, a certificate
of sale was issued in favor of Jocelyn
Barque, the highest bidder in the auction
sale.
On October 19, 2001, Cecilia Duca filed
an action for the Declaration of Nullity of
Execution and Damages with prayer for
Writ of Injunction and Temporary
Restraining order against Sheriff IV
Vinez Hortaleza and Police Officers
Roberto Vical, Alejandre Arevalo,
Emilio Austria, Victor Quitales,
Crisostomo Bonavente and
Calanayan. The case was docketed as
Civil Case No. 2000-0304-D.
When the said case was heard, Cecilia
Duca testified to the effect that the
house erected on the lot subject of the
ejectment case is owned by her son

Aldrin Duca. In support of such claim


she presented Property Index No. 01332-027-01-116131 (Exhibit B). At the
back of the said exhibit is a sworn
statement showing that the current and
fair market value of the property, which
is a bungalow, is P70,000.00 with the
signature affixed on top of the
typewritten name Aldrin F. Duca and
subscribed and sworn to before Engr.
Reynante Baltazar, the Municipal
Assessor of San Fabian, Pangasinan,
on December 10, 2001. The signature
on top of the typewritten name Aldrin F.
Duca is that of Arturo Duca. According
to the prosecution, Arturo made it
appear that the signature is that of his
brother Aldrin who was out of the
country at that time. Aldrin arrived in
the Philippines only on December 12,
2001, as evidenced by a certification
from the Bureau of
Immigration, Manila. Arturo even made
it appear that his Community Tax
Certificate (CTC) No. 03841661 issued
on December 10, 2001 is that of his
brother Aldrin. That because of the
misrepresentation, Cecilia and Arturo
were able to mislead the RTC such that
they were able to get a TRO against
Sheriff Hortaleza and the policemen
ordering them to stop from evicting the
plaintiffs from the property in question.
Both accused denied that they falsified
the signature of Aldrin Duca. Cecilia
testified that she had no participation in
the execution as she was in Manila at
that time.
On the other hand, Arturo testified that
the signature atop the name Aldrin Duca
was his. However, he intersposed the
defense that he was duly authorized by
the latter to procure the said tax
declaration.
On April 3, 2003, the MCTC of San
Fabian-San Jacinto rendered a decision,
dispositive portion of which reads as
follows:
WHEREFORE, the Court finds
the accused Arturo F. Duca
guilty beyond reasonable doubt
of the crime of falsification
defined and penalized under
Article 171 of the Revised Penal
Code and hereby imposes upon
said accused a prison term of
two years, four months and one
day to six (6) years of Prision
Correccional and a fine of
P2,000.00.Accused Cecilia is
acquitted for lack of evidence.
The accused Arturo F. Duca is
hereby ordered to pay to the
complaining witness actual
damages in the amount of
P60,000.00 moral damages of
P150,000.00 plus exemplary

damages in the amount of


P100,000.00 plus cost.
SO ORDERED.
Dissatisfied with the decision, Arturo
Duca appealed. On March 24, 2004, the
RTC of Dagupan City, Branch 44,
rendered a decision, disposing the case
as follows:
WHEREFORE, the decision
dated April 3, 2003 of the
4th Municipal Circuit Trial Court,
San Fabian-San Jacinto,
Pangasinan convicting accused
Arturo F. Duca of the crime of
Falsification defined and
penalized under Article 171 of
the Revised Penal Code and
imposing upon said accused an
imprisonment of two years, four
months and one day to six (6)
years of Prision Correccional
and a fine of P2,000.00, and
ordering him to pay to the
complaining witness actual
damages in the amount of
P60,000.00, moral damages in
the amount of P150,000.00 plus
exemplary damages in the
amount of P100,000.00 plus
cost, is AFFIRMED.

2001, Arturo has already been


authorized by Aldrin; albeit verbally, to
register the house in the latters name as
he cannot do it personally as he was
abroad. This authority of Arturo was
confirmed by the latters execution of an
Affidavit dated January 19, 2002
confirming the procurement of the said
tax declaration (Exhibit 6) as well as a
Special Power of attorney executed on
June 17, 2002 (Exhibit 7). Thus, what
appeared to be defective from the
beginning had already been cured so
much so that the said document
became valid and binding as an official
act of Arturo.
If Arturo did not state in the Tax
Declaration in what capacity he was
signing, this deficiency was cured by
Aldrins subsequent execution of Exhibits
6 and 7.
The RTCs conclusion that the special
power of attorney executed by Aldrin
was a mere afterthought designed to
extricate Arturo from any criminal liability
has no basis since from the very start, it
has been duly established by the
defense that Aldrin had verbally
instructed Arturo to cause the execution
of Exhibit B for the purpose of
registering his house constructed on his
mothers lot for taxation purposes.[6]

x x x.
SO ORDERED.[5]

Hence, the instant petition anchored on


this sole ground:

Aggrieved with the ruling of the RTC, Duca

PUBLIC RESPONDENT COURT OF


APPEALS GRAVELY ABUSED ITS
DISCRETION AND HAD ACTED
WITHOUT JURISDICTION WHEN IT
RESOLVED PRIVATE RESPONDENT
ARTURO F. DUCAS APPEAL
WITHOUT GIVING THE PEOPLE OF
THE PHILIPPINES THROUGH THE
OFFICE OF THE SOLICITOR
GENERAL THEOPPORTUNITY TO BE
HEARD THEREON.[7]

elevated the case to the CA via a petition for


review. On November 23, 2005, the CA
promulgated its assailed decision acquitting
Duca of the crime charged and reversing the
RTC decision. The CA held:
However, the prosecution failed to
establish the fact that Arturo was not
duly authorized by Aldrin in procuring
the tax declaration. On the contrary, the
defense was able to establish that
Arturo Duca was duly authorized by his
brother Aldrin to secure a tax declaration
on the house erected on the land
registered under their mothers name.
xxx xxx xxx
From the foregoing testimony, it can be
deduced that Arturo could not have
falsified the Tax Declaration of Real
Property under Property Index No. 01332-027-01-116B1 (Exhibit B) by making
it appear that Aldrin Duca, his brother,
participated in the accomplishment of
the said document since he was actually
acting for and in behalf of the latter. It
must be noted that as early as June

Petitioner argues that the prosecution was


denied due process when the CA resolved the
respondents appeal without notifying the People
of the Philippines, through the Solicitor General,
of the pendency of the same and without
requiring the Solicitor General to file his
comment. Petitioner contends that once the
case is elevated to the CA or this Court, it is only
the Solicitor General who is authorized to bring
or defend actions on behalf of the People. Thus,
the CA gravely abused its discretion when it
acted on respondents appeal without affording

the prosecution the opportunity to be

Jurisprudence has been consistent on this

heard. Consequently, the decision of the CA

point. In the recent case of Cario v. De Castro,

acquitting respondent should be considered void

[9]

it was held:

for being violative of due process.

by the Provincial Prosecutor had not been

In criminal proceedings on appeal in the


Court of Appeals or in the Supreme
Court, the authority to represent the
People is vested solely in the Solicitor
General. Under Presidential Decree No.
478, among the specific powers and
functions of the OSG was to represent
the government in the Supreme Court
and the Court of Appeals in all criminal
proceedings. This provision has been
carried over to the Revised
Administrative Code particularly in Book
IV, Title III, Chapter 12 thereof. Without
doubt, the OSG is the appellate counsel
of the People of the Philippines in all
criminal cases.[10]

withdrawn, the Solicitor General could not claim

Likewise, in City Fiscal of Tacloban v. Espina,

In his Comment,[8] respondent argues that there


was no denial of due process because the
prosecution was properly represented by the
Office of the Provincial Prosecutor and a private
prosecutor who handled the presentation of
evidence under the control and supervision of
the Provincial Prosecutor. Since the control and
supervision conferred on the private prosecutor

that the prosecution was not afforded a chance

[11]

the Court made the following pronouncement:

to be heard in the CA. According to the


respondent, he should not be prejudiced by the
Provincial Prosecutors failure to inform the
Solicitor General of the pendency of the appeal.
The petition is impressed with merit.
The authority to represent the State in appeals
of criminal cases before the CA and the
Supreme Court is solely vested in the Office of
the Solicitor General (OSG). Section 35(1),
Chapter 12, Title III of Book IV of the 1987
Administrative Code explicitly provides, viz.:
SEC. 35. Powers and Functions. The
Office of the Solicitor General shall
represent the Government of
the Philippines, its agencies and
instrumentalities and its officials and
agents in any litigation, proceeding,
investigation or matter requiring the
services of lawyers. x x x It shall have
the following specific powers and
functions:
(1) Represent the Government in the
Supreme Court and the Court of
Appeals in all criminal proceedings;
represent the Government and its
officers in the Supreme Court and Court
of Appeals, and all other courts or
tribunals in all civil actions and special
proceedings in which the Government or
any officer thereof in his official capacity
is a party. (emphasis supplied)

Under Section 5, Rule 110 of the Rules


of Court all criminal actions commenced
by complaint or information shall be
prosecuted under the direction and
control of the fiscal. The fiscal
represents the People of
the Philippines in the prosecution of
offenses before the trial courts at the
metropolitan trial courts, municipal trial
courts, municipal circuit trial courts and
the regional trial courts. However, when
such criminal actions are brought to the
Court of Appeals or this Court, it is the
Solicitor General who must
represent the People of
the Philippines not the fiscal.[12]
And in Labaro v. Panay,[13] the Court held:
The OSG is the law office of the
Government authorized by law to
represent the Government or the People
of the Philippines before us and before
the Court of Appeals in all criminal
proceedings, or before any court,
tribunal, body, or commission in any
matter, action, or proceeding which, in
the opinion of the Solicitor General,
affects the welfare of the people as the
ends of justice may require.[14]
Indeed, in criminal cases, as in the instant case,
the Solicitor General is regarded as the
appellate counsel of the People of
the Philippines and as such, should have been
given the opportunity to be heard on behalf of
the People. The records show that the CA failed
to require the Solicitor General to file his
Comment on Ducas petition. A copy of the CA

Resolution[15] dated May 26, 2004 which required

process if, as a result, a party is deprived of the

the filing of Comment was served upon Atty.

opportunity to be heard.[18]

Jaime Dojillo, Sr. (counsel for Duca), Atty.


Villamor Tolete (counsel for private complainant

The assailed decision of the CA acquitting the

Calanayan) and RTC Judge Crispin

respondent without giving the Solicitor General

Laron. Nowhere was it shown that the Solicitor

the chance to file his comment on the petition for

General had ever been furnished a copy of the

review clearly deprived the State of its right to

said Resolution. The failure of the CA to require

refute the material allegations of the said petition

the Solicitor General to file his Comment

filed before the CA. The said decision is,

deprived the prosecution of a fair opportunity to

therefore, a nullity. In Dimatulac v. Villon,[19] we

prosecute and prove its case.

held:

Pertinently, Saldana v. Court of Appeals, et al.


[16]

ruled as follows:

When the prosecution is deprived of a


fair opportunity to prosecute and prove
its case, its right to due process is
thereby violated (Uy vs. Genato, L37399, 57 SCRA 123 [May 29,
1974];Serino vs. Zoa, L-33116, 40
SCRA 433 [Aug. 31, 1971]; People vs.
Gomez, L-22345, 20 SCRA 293 [May
29, 1967]; People vs. Balisacan, L26376, 17 SCRA 1119 [Aug. 31, 1966]).
The cardinal precept is that where there
is a violation of basic constitutional
rights, courts are ousted of their
jurisdiction. Thus, the violation of the
States right to due process raises a
serious jurisdiction issue (Gumabon vs.
Director of the Bureau of Prisons, L300026, 37 SCRA 420 [Jan. 30, 1971])
which cannot be glossed over or
disregarded at will. Where the denial of
the fundamental right of due process is
apparent, a decision rendered in
disregard of that right is void for lack of
jurisdiction (Aducayen vs. Flores, L30370, [May 25, 1973] 51 SCRA
78; Shell Co. vs. Enage, L-30111-12, 49
SCRA 416 [Feb. 27, 1973]). Any
judgment or decision rendered
notwithstanding such violation may be
regarded as a lawless thing, which can
be treated as an outlaw and slain at
sight, or ignored wherever it exhibits its
head (Aducayen vs. Flores, supra).[17]

The State, like the accused, is entitled to due


process in criminal cases, that is, it must be
given the opportunity to present its evidence in
support of the charge. The doctrine consistently
adhered to by this Court is that a decision
rendered without due process is void ab
initio and may be attacked directly or
collaterally. A decision is void for lack of due

Indeed, for justice to prevail, the scales


must balance; justice is not to be
dispensed for the accused alone. The
interests of society and the offended
parties which have been wronged must
be equally considered. Verily, a verdict
of conviction is not necessarily a denial
of justice; and an acquittal is not
necessarily a triumph of justice; for, to
the society offended and the party
wronged, it could also mean
injustice. Justice then must be rendered
even-handedly to both the accused, on
one hand, and the State and offended
party, on the other.[20]

Further, the CA should have been guided by the


following provisions of Sections 1 and 3 of Rule
42 of the 1997 Rules of Court:
Sec. 1. How appeal taken; time for filing.
A party desiring to appeal from a
decision of the Regional Trial Court
rendered in the exercise of its appellate
jurisdiction may file a verified petition for
review with the Court of Appeals, paying
at the same time to the clerk of said
court the corresponding docket and
other lawful fees, depositing the amount
of P500.00 for costs, andfurnishing the
Regional Trial Court and the adverse
party with a copy of the petition. The
petition shall be filed and served within
fifteen (15) days from notice of the
decision sought to be reviewed or of the
denial of petitioners motion for new trial
or reconsideration filed in due time after
judgment. Upon proper motion and the
payment of the full amount of the docket
and other lawful fees and the deposit for
costs before the expiration of the
reglementary period, the Court of
Appeals may grant an additional period
of fifteen (15) days only within which to
file the petition for review. No further
extension shall be granted except for the
most compelling reason and in no case
to extend fifteen (15) days.
Sec. 3. Effect of failure to comply with
requirements. The failure of the

petitioner to comply with any of the


foregoing requirements regarding the
payment of the docket and other lawful
fees, the deposit for costs, proof of
service of the petition, and the contents
of and the documents which should
accompany the petition shall be
sufficient ground for the dismissal
thereof. (emphasis supplied)

before the tribunal, board, or officer against


whom the writ of certiorari is sought. Ordinarily,
certiorari as a special civil action will not lie
unless a motion for reconsideration is first filed
before the respondent tribunal, to allow it an
opportunity to correct its assigned errors.[22] This
rule, however, is not without

Respondent appealed to the CA from the

exceptions. In National Housing v. Court of

decision of the RTC via a petition for review

Appeals,[23] we held:
However, in Progressive Development
Corporation v. Court of Appeals, we held
that while generally a motion for
reconsideration must first be filed before
resorting to certiorari in order to give the
lower court an opportunity to rectify its
errors, this rule admits of exceptions
and is not intended to be applied without
considering the circumstances of the
case. The filing of a motion for
reconsideration is not a condition sine
qua non when the issue raised is purely
one of law, or where the error is
patent or the disputed order is void,
or the questions raised on certiorari are
the same as those already squarely
presented to and passed upon by the
lower court.[24] (emphasis supplied)

under Rule 42 of the 1997 Rules of Court. The


respondent was mandated under Section 1,
Rule 42 of the Rules of Court to serve copies of
his petition for review upon the adverse party, in
this case, the People of the Philippines through
the OSG. Respondent failed to serve a copy of
his petition on the OSG and instead served a
copy upon the Assistant City Prosecutor of
Dagupan City.[21] The service of a copy of the
petition on the People of the Philippines, through
the Prosecutor would be inefficacious for the
reason that the Solicitor General is the sole
representative of the People of the Philippines in
appeals before the CA and the Supreme

The CA decision being void for lack of due

Court. The respondents failure to have a copy of

process, the filing of the instant petition for

his petition served on the People of the

certiorari without a motion for reconsideration is

Philippines, through the OSG, is a sufficient

justified.

ground for the dismissal of the petition as


provided in Section 3, Rule 42 of the Rules of

WHEREFORE, the petition for certiorari is

Court. Thus, the CA has no other recourse but to

hereby GRANTED. The assailed decision of the

dismiss the petition. However, the CA, instead of

CA in CA-G.R. CR No. 28312 is hereby SET

dismissing respondents petition, proceeded to


resolve the petition and even acquitted
respondent without the Solicitor Generals
comment. We, thus, find that the CA committed

ASIDE and the case isREMANDED to the CA


for further proceedings. The CA is ordered to
decide the case with dispatch.

grave abuse of discretion amounting to lack or


excess of jurisdiction in rendering its assailed
decision.
On a procedural matter, the Court notes
that petitioner filed the instant petition for
certiorari under Rule 65 without filing a motion
for reconsideration with the CA. It is settled that
the writ of certiorari lies only when petitioner has
no other plain, speedy, and adequate remedy in
the ordinary course of law. Thus, a motion for
reconsideration, as a general rule, must be filed

SO ORDERED.

Republic of the Philippines


SUPREME COURT
Manila
G.R. No. 179319

September 18, 2009

EUGENE C. FIRAZA, Petitioner,


vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
CARPIO MORALES, J.:
Petitioner, appointed as a confidential agent of
the National Bureau of Investigation (NBI),
Caraga Regional Office on August 18, 1999, was
issued a firearm and a mission to gather and
report to the NBI such information as may be
relevant to investigations undertaken by it.
In his private capacity, petitioner served as
manager for RF Communications in connection
with which he dealt with Christopher Rivas,
Provincial Auditor of Surigao del Sur, for the
establishment of a Public Calling Office in the
Municipality of Lianga, Surigao del Sur.
On August 11, 2000, in the course of a meeting
between petitioner and Rivas at the latters
restaurant regarding the delivery of a defective
machine for the Public Calling Office, a heated
exchange ensued during which petitioner is
alleged to have pointed a gun at Rivas.
Petitioner was thereupon accosted by P/Insp.
Alberto A. Mullanida, Acting Chief of Police of
Lianga, Surigao del Sur and PO2 Nilo Ronquillo,
who discovered that his permit to carry firearm
outside residence had expired more than a
month earlier or on July 5, 2000.
Hence, a criminal complaint was filed against
petitioner before the 6th Municipal Circuit Trial
Court (MCTC) of Barobo-Lianga, Barobo,
Surigao del Sur for "UNATHORIZED
CARRYING OF LICENCE [sic] FIREARM
OUTSIDE RESIDENCE," the accusatory portion
of which reads:
That on or about the 11th day of August 2000 at
about 4:00 oclock in the afternoon more or less
in Poblacion, Municipality of Lianga, Province of
Surigao del Sur Philippines and within the
jurisdiction of this Honorable Court the above
named accused, willfully, unlawfully, and
feloniously possess [sic] one (1) unit Pistol
Caliber 45 with serial number 670320 entered
inside the residence of Christopher Rivas at
Lianga, Surigao del Sur with expired license or
permit to carry outside residence
renewed [sic] from the government authority
concerned.

CONTRARY TO LAW. (Violation of RA 8294 as


amended).1 (Emphasis and underscoring
supplied)

On petition for review, the Court of Appeals, by


Decision of April 20, 2007,3 affirmed petitioners
conviction.

Petitioner, denying that any argument occurred


between him and Rivas, claimed that while he
was explaining to Rivas the defect in the
machine subject of their meeting, P/Insp.
Mullaneda and PO2 Ronquillo apprehended him
and seized his firearm tucked inside his shirt,
even as he identified himself as an NBI agent;
and that he was prevented from presenting a
Mission Order dated July 26, 2000 issued to him
by the NBI, to prove his authority to carry
firearms outside of his residence, due to the
coercive manner by which the two approached
him.

Before this Court, petitioner raises the following


issues:

By Decision of February 20, 2003, the MCTC


convicted petitioner, disposing as follows:
WHEREFORE, Court finds accused Eugene C.
Firaza GUILTY beyond reasonable doubt of the
crime "Unauthorized Carrying of Licensed
Firearm Outside Residence," penalized under
Section 1 of Republic Act 8294.
Accused Eugene C. Firaza is hereby sentenced
to an imprisonment of one (1) month and ten
days of Arresto Mayor.
SO ORDERED.
In convicting petitioner, the trial court noted the
following facts:
1. That accuseds permit to carry firearms
outside residence, has already expired when he
was apprehended on August 11, 2000;
2. That the "Mission Order" (Exhibit "4") was not
presented or shown to the apprehending
policemen on August 11, 2000;
3. That accuseds "Mission Order" was not
issued by the NBI Director or Assistant/Deputy
Director or by Regional Director of Caraga
Region;
4. That accused is only a confidential agent and
as such is not included in the regular plantilla of
the NBI, nor is receiving regular compensation
for the services he is rendering;
5. When apprehended, accused was not in
actual performance of alleged mission but on
business trip.2(Underscoring supplied)
On appeal, the Regional Trial Court upheld
petitioners conviction.

a. Whether or not Petitioner can be convicted of


an offense different from that charged in the
Complaint.
b. Whether or not the burden of proving a
negative element of an offense lies with the
prosecution; and
c. Whether or not the firearm seized from
petitioner after an unlawful search without a
warrant is inadmissible in evidence.
(Underscoring supplied)
Petitioner prefaces his arguments in support of
his appeal by claiming that the Complaint
charged him with "illegal possession of
firearms," hence, he cannot be convicted
of carrying firearms outside of residence, the
phrase in the Complaint reading "with expired
license or permit to carry outside residence . . ."
being "merely descriptive of the alleged
unlicensed nature of the firearm."
Petitioner concludes that since he had authority
to carry firearm, it was error to convict him. He
cites the appellate courts following disquisition
as crediting his defense that he had authority to
carry firearms, viz:
It must be stated at the outset that petitioner was
charged of violation of RA 8294 or Unauthorized
Carrying of Licensed Firearm Outside of
Residence. His conviction by the courts below is
based on their finding that although petitioner
had a mission order which authorized him to
carry the firearm issued to him, the same
already expired as of July 26, 2000.1avvph!1
We qualify.
The courts below committed an error when they
said that the authority of petitioner to carry
firearm outside residence expired on July 26,
2000, hence when petitioner carried his issued
firearm on 18 August 2000, he did so without
authority. Mission Order No. 00352000 dated
July 26, 2000 issued to petitioner allowed
him tocarry his issued firearm Pistol Cal. 45
with him, which mission order is good for
sixty (60) days from issuance thereof.4 x x x
(Italics in the original, emphasis and
underscoring supplied)
Petitioners argument fails.

Section 6, Rule 110 of the Rules of Court


provides:
SEC. 6.Sufficiency of complaint or information.
A complaint or information is sufficient if it states
the name of the accused; the designation of the
offense given by the statute; the acts or
omissions complained of as constituting the
offense; the name of the offended party; the
approximate date of the commission of the
offense; and the place where the offense was
committed.
When an offense is committed by more than one
person, all of them shall be included in the
complaint or information. (Emphasis and
underscoring supplied)
The allegations in a Complaint or Information
determine what offense is charged. The alleged
acts or omissions complained of constituting the
offense need not be in the terms of the statute
determining the offense, but in such form as is
sufficient to enable a person of common
understanding to know what offense is being
charged as well as the qualifying and
aggravating circumstances and for the court to
pronounce judgment.5
The earlier-quoted Complaint alleged that the
"accused willfully, unlawfully and feloniously
possess [sic] one (1) unit Pistol Cal. 45 with
serial number 670320 [and] entered . . . the
residence of Christopher Rivas at Lianga,
Surigao del Sur with expired license or permit to
carry outside residence."6 The words used to
indicate or describe the offense charged that
petitioner unlawfully carried his
firearm outside his residence because he had no
permit for the purpose are clear. They are
self-explanatory.
Petitioner cannot seriously claim that his
constitutional right to be informed of the nature
and cause of the accusation against him was
violated. For the transcript of stenographic notes
of the proceedings before the trial court shows
that he, through his counsel, was duly informed
of the nature of the case against him:

Atty. Cadiz:
On the ground that based on the evidence that
we presented, Your Honor, like counter-affidavit,
it seems to be the ground for the further
proceedings of this case because the case
filed against the accused is merely
unauthorized(d) carrying of firearms outside
the residence, and the accused is covered by
mission order and the evidence submitted, Your
Honor, which we take that it is not necessary to
prosecute this case, because this case is
summary in nature, Your Honor. We will submit a
necessary motion for reinvestigation of this
case.7 (Emphasis and underscoring supplied)
It bears noting that petitioner does not challenge
his having been found guilty of violating Section
1 of P.D. No. 1866 (DECREE CODIFYING THE
LAWS ON ILLEGAL/UNLAWFUL
POSSESSION, MANUFACTURE, DEALING IN,
ACQUISITION OR DISPOSITION, OF
FIREARMS, AMMUNITION OR EXPLOSIVES)
as amended by R.A. No. 8294 which provides:
SECTION 1. Unlawful Manufacture, Sale,
Acquisition, Disposition or Possession of
Firearms or Ammunition or Instruments Used or
Intended to be Used in the Manufacture of
Firearms or Ammunition. The penalty
of prision correccional in its maximum period
and a fine of not less than Fifteen thousand
pesos (P15,000) shall be imposed upon any
person who shall unlawfully manufacture, deal
in, acquire, dispose or possess any low powered
firearm, such as rimfire handgun, .380 or .32
and other firearm of similar firepower, part of
firearm or ammunition, or machinery, tool or
instrument used or intended to be used in the
manufacture of any firearm or
ammunition: Provided, That no other crime was
committed.
xxxx
The penalty of arresto mayor shall be imposed
upon any person who shall carry any licensed
firearm outside his residence without legal
authority therefor. (Italics in the original;
emphasis and underscoring supplied)

Court:
You intend to file a motion for investigation?
Atty. Cadiz: [herein petitioners counsel]
Yes, Your Honor.
Court:
On what ground?

Petitioner, however, justifies, his carrying of the


firearm outside his residence with the 60-day
July 26, 2000 Mission Order issued to him by
the NBI.
Petitioner is mistaken. Permit to carry firearm is
not the same as permit to carry licensed firearm
outside ones residence. Under the
Implementing Rules and Regulations of P.D. No.
1866, a Mission Order is defined as "a written
directive or order issued by government

authority as enumerated in Section 5 hereof to


persons who are under his supervision and
control for a definite purpose or objective during
a specified period and to such place or places
as therein mentioned which may entitle the
bearer thereof to carry his duly issued or
licensed firearmsoutside of residence when so
specified therein."

officers in petitioners and Rivas heated


arguments in the course of which they noticed
the suspicious bulging object on petitioners
waist to draw them to check what it was.
WHEREFORE, the Petition for Review
is DENIED.
SO ORDERED.

The Mission Order issued to petitioner


authorized him to carry firearms "in connection
with confidential (illegible) cases assigned to
[him]." Admittedly, petitioner was at Rivas
restaurant in connection with a private business
transaction. Additionally, the Mission Order did
not authorize petitioner to carry his duly issued
firearm outside of his residence.
At all events, Sayco v. People,8 citing Section
6(a) of The Implementing Rules and Regulations
of P.D. No. 1866 and Memorandum Circular No.
8 dated October 16, 1986 issued by the
Department (then Ministry) of Justice, should put
to rest any nagging doubts on the liability of
petitioner, a confidential civilian agent who was
not shown to be in the regular plantilla of the
NBI.
First, special or confidential civilian agents who
are not included in the regular plantilla of any
government agency involved in law enforcement
or receiving regular compensation for services
rendered are not exempt from the requirement
under P.D. No. 1866, as amended by R.A. No.
8294, of a regular license to possess firearms
and a permit to carry the same outside of
residence.
xxxx
Third, said special or confidential civilian agents
do not qualify for mission orders to carry
firearms (whether private-owned or governmentowned) outside of their residence.
x x x x (Italics in the original; underscoring
supplied)
As for petitioners claim that he was searched
without a warrant to thus render the firearm
seized inadmissible in evidence, the same fails.
For even assuming arguendo that, as claimed
by petitioner, his firearm was tucked inside his
shirt, the plain view doctrine, of which the
following requirements which must concur, viz:
(1) the law enforcement officer has a prior
justification for the intrusion, (2) the discovery of
the evidence in plain view is inadvertent, and,
(3) the illegality of the evidence observed in
plain view is apparent to the apprehending
officer,9 justified the intervention by the police

Republic of the Philippines


SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 164733

September 21, 2007

MICHAEL JOHN Z. MALTO, Petitioner,


vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
CORONA, J.:
Whereas, mankind owes to the child the best it
has to give. (Final preambular clause of the
Declaration of the Rights of the Child)

This is a petition for review1 of the


decision2 dated July 30, 2004 of the Court of
Appeals (CA) in CA-G.R. CR No. 25925
affirming with modification the decision3 of
Branch 109 of the Regional Trial Court of Pasay
City in Criminal Case No. 00-0691 which found
petitioner Michael John Z. Malto guilty for
violation of paragraph 3, Section 5(a), Article III
of RA 7610,4 as amended.
Petitioner was originally charged in an
information which read:
The undersigned Assistant City Prosecutor
accuses MICHAEL JOHN Z. MALTO of
VIOLATION OF SECTION 5(b), ARTICLE III,
REPUBLIC ACT 7610, AS AMENDED,
committed as follows:
That on or about and sometime during the
month of November 1997 up to 1998, in Pasay
City, Metro Manila, Philippines and within the
jurisdiction of this Honorable Court, the abovenamed accused, Michael John. Z. Malto, a
professor, did then and there willfully, unlawfully
and feloniously induce and/or seduce his
student at Assumption College, complainant,
AAA, a minor of 17 years old, to indulge in
sexual intercourse for several times with him as
in fact said accused had carnal knowledge.
Contrary to law.5
This was subsequently amended as follows:
The undersigned Assistant City Prosecutor
accuses MICHAEL JOHN Z. MALTO of
VIOLATION OF SECTION 5(a), ARTICLE III,
REPUBLIC ACT 7610, AS AMENDED,
committed as follows:
That on or about and sometime during the
month of November 1997 up to 1998, in Pasay
City, Metro Manila, Philippines and within the
jurisdiction of this Honorable Court, the abovenamed accused, Michael John. Z. Malto, a
professor, did then and there willfully, unlawfully
and feloniously take advantage and exert
influence, relationship and moral ascendancy
and induce and/or seduce his student at
Assumption College, complainant, AAA, a minor
of 17 years old, to indulge in sexual intercourse
and lascivious conduct for several times with
him as in fact said accused has carnal
knowledge.
6

Contrary to law.

Petitioner did not make a plea when arraigned;


hence, the trial court entered for him a plea of
"not guilty." After the mandatory pre-trial, trial on
the merits proceeded.
The prosecution established the following:
At the time of the incident, private complainant
AAA was 17 years old.7 She was a college
student at the Assumption College in San
Lorenzo Village, Makati City. Petitioner, then 28,
was her professor in her Philosophy II class in

the first semester of the school year 1997 to


1998.
On July 18, 1997, AAA was having lunch with
her friends when petitioner joined their group.
He told them to address him simply as "Mike."
He handed them his organizer and asked them
to list down their names and contact numbers.
On October 3, 1997, while AAA and her friends
were discussing the movie Kama Sutra,
petitioner butted in and bragged that it was
nothing compared to his collection of xxx-rated
films. To the shock of AAAs group, he lectured
on and demonstrated sexual acts he had
already experienced. He then invited the group
to view his collection.
On October 10, 1997, petitioner reiterated his
invitation to AAA and her friends to watch his
collection of pornographic films. Afraid of
offending petitioner, AAA and two of her friends
went with him. They rode in his car and he
brought them to the Anito Lodge on Harrison St.
in Pasay City. They checked in at a "calesa
room." Petitioner was disappointed when he
found out there was neither a video cassette
player (on which he could play his video tapes)
nor an x-rated show on the closed-circuit
television. He suggested that they just cuddle up
together. AAA and her friends ignored him but he
pulled each of them towards him to lie with him
in bed. They resisted until he relented.
AAA and her friends regretted having accepted
petitioners invitation. For fear of embarrassment
in case their classmates got wind of what
happened, they agreed to keep things a secret.
Meanwhile, petitioner apologized for his
actuations.
Thereafter, petitioner started to show AAA
amorous attention. He called her on the phone
and paged8 her romantic messages at least
thrice a day. When semestral break came, his
calls and messages became more frequent.
Their conversation always started innocently but
he had a way of veering the subject to sex.
Young, naive and coming from a broken family,
AAA was soon overwhelmed by petitioners
persistence and slowly got attracted to him. He
was the first person to court her. Soon, they had
a "mutual understanding" and became
sweethearts.
When AAA secured her class card in Philosophy
II at the start of the second semester, petitioner
told her that he gave her a final grade of "3."
She protested, stating that her mid-term grade
was "1.2." He gave her a grade of "1.5" when
she promised not to disclose his intimate
messages to her to anyone. He also cautioned
her not to tell anyone about their affair as it could
jeopardize his job.
On November 19, 1997, at around 11:00 a.m.,
AAA agreed to have lunch with petitioner outside
the premises of the college. Since she was not
feeling well at that time, he asked her to lie down
in the backseat of his car. She was surprised
when he brought her to Queensland Lodge9 on

Harrison St. in Pasay City. Once inside the motel


room, he kissed her at the back and neck,
touched her breasts and placed his hand inside
her blouse. She resisted his advances but he
was too strong for her. He stopped only when
she got angry at him.
On November 26, 1997, petitioner asked AAA to
come with him so that they could talk in private.
He again brought her to Queensland Lodge. As
soon as they were inside the room, he took off
his shirt, lay down in bed and told her, "halika
na, dito na tayo mag-usap." She refused but he
dragged her towards the bed, kissed her lips,
neck and breasts and unsnapped her brassiere.
She struggled to stop him but he overpowered
her. He went on top of her, lowered her pants
and touched her private part. He tried to
penetrate her but she pushed him away
forcefully and she sat up in bed. He hugged her
tightly saying, "Sige na, AAA, pumayag ka na, I
wont hurt you." She refused and said,
"Mike, ayoko." He angrily stood up saying,
"Fine, hindi na tayo mag-uusap. Dont come to
the faculty room anymore. You know I need this
and if you will not give in or give it to me, let us
end this." She replied, "Mike, hindi pa ako ready
and it was you who said it will be after my debut"
on December 3, 1997. He insisted that there
was no difference between having sex then and
after her debut. He told her, "kung hindi ko
makukuha ngayon, tapusin na natin ngayon."
Pressured and afraid of his threat to end their
relationship, she hesitantly replied "Fine." On
hearing this, he quickly undressed while
commenting "ibibigay mo rin pala, pinahirapan
mo pa ako" and laughed. They had sexual
intercourse.
In July 1999, AAA ended her relationship with
petitioner. She learned that he was either
intimately involved with or was sexually
harassing his students in Assumption College
and in other colleges where he taught. In
particular, he was dismissed from the De La
Salle University-Aguinaldo for having sexual
relations with a student and sexually harassing
three other students. His employment was also
terminated by Assumption College for sexually
harassing two of his students. It was then that
AAA realized that she was actually abused by
petitioner. Depressed and distressed, she
confided all that happened between her and
petitioner to her mother, BBB.
On learning what her daughter underwent in the
hands of petitioner, BBB filed an administrative
complaint in Assumption College against him.
She also lodged a complaint in the Office of the
City Prosecutor of Pasay City which led to the
filing of Criminal Case No. 00-0691.
In his defense, petitioner proffered denial and
alibi. He claimed that the alleged incidents on
October 3, 1997 and October 10, 1997 did not
happen. He spent October 3, 1997 with his
colleagues Joseph Hipolito and AJ Lagaso while
he was busy checking papers and computing
grades on October 10, 1997. The last time he
saw AAA during the first semester was when she
submitted her final paper on October 18, 1997.

On November 19, 1997, between 10:30 a.m.


and 1:00 p.m., he sorted out conflicts of class
schedules for the second semester at the
Assumption College. On November 26, 1997, he
was at St. Scholasticas College (where he was
also teaching) preparing a faculty concert slated
on December 12, 1997. At lunch time, he
attended the birthday treat of a colleague,
Evelyn Bancoro.
On November 29, 1997, he attended AAAs 18th
birthday party. That was the last time he saw
her.
According to petitioner, AAA became his
sweetheart when she was already 19 years old
and after he was dismissed from Assumption
College. On December 27 and 28, 1998, they
spent time together, shared their worries,
problems and dreams and kissed each other. On
January 3, 1999, he brought her to Queensland
Lodge where they had sexual intercourse for the
first time. It was repeated for at least 20 times
from January 1999 until they broke up in July
1999, some of which were done at either his or
her house when no one was around.
The trial court found the evidence for the
prosecution sufficient to sustain petitioners
conviction. On March 7, 2001, it rendered a
decision finding petitioner guilty.10 The
dispositive portion read:
In view of the foregoing, the Court finds the
accused Michael John Malto y Zarsadias guilty
beyond reasonable doubt for violation of Article
III, Section 5(a)[,] paragraph 3 of RA 7610[,] as
amended and hereby sentences him
to reclusion temporal in its medium period or an
imprisonment of seventeen (17) years, four (4)
months and one (1) day to twenty (20) years and
to pay civil indemnity in the amount of Php
75,000.00 and moral and exemplary damages of
Php 50,000.00 to minor complainant with
subsidiary imprisonment in case of insolvency.11
Petitioner questioned the trial courts decision in
the CA. In a decision dated July 30, 2004,12 the
appellate court affirmed his conviction even if it
found that his acts were not covered by
paragraph (a) but by paragraph (b) of Section 5,
Article III of RA 7610. It further observed that the
trial court failed to fix the minimum term of
indeterminate sentence imposed on him. It also
ruled that the trial court erred in
awarding P75,000 civil indemnity in favor of AAA
as it was proper only in a conviction for rape
committed under the circumstances under which
the death penalty was authorized by
law.13 Hence, the CA modified the decision of the
trial court as follows:
WHEREFORE, the appealed Decision of
conviction is AFFIRMED, with
the MODIFICATION that (1) appellant MICHAEL
JOHN MALTO y ZARSADIAS is hereby
sentenced to an indeterminate penalty of Eight
(8) Years and One (1) Day of prision mayor as
minimum, to Seventeen (17) Years, Four (4)
Months and One (1) Day ofreclusion temporal as

maximum; and (2) the sum of P75,000.00 as


civil indemnity is DELETED.14

(a) Those who engage in or promote, facilitate or


induce child prostitution which include, but are
not limited to, the following:

Hence, this petition.


1. Acting as a procurer of a child prostitute;
Petitioner contends that the CA erred in
sustaining his conviction although it found that
he did not rape AAA. For him, he should have
been acquitted since there was no rape. He also
claims that he and AAA were sweethearts and
their sexual intercourse was consensual.

2. Inducing a person to be a client of a child


prostitute by means of written or oral
advertisements or other similar means;
3. Taking advantage of influence or relationship
to procure a child as a prostitute;

Petitioner is wrong.
The Offense Stated in the Information Was
Wrongly Designated
In all criminal prosecutions, the accused is
entitled to be informed of the nature and cause
of the accusation against him.15 Pursuant
thereto, the complaint or information against him
should be sufficient in form and substance. A
complaint or information is sufficient if it states
the name of the accused; the designation of the
offense by the statute; the acts or omissions
complained of as constituting the offense; the
name of the offended party; the approximate
date of the commission of the offense and the
place where the offense was committed.16
The complaint or information shall state the
designation of the offense given by the statute,
aver the acts or omissions constituting the
offense and specify its qualifying and
aggravating circumstances.17 If there is no
designation of the offense, reference shall be
made to the section or subsection of the statute
punishing it.18 The acts or omissions constituting
the offense and the qualifying and aggravating
circumstances must be stated in ordinary and
concise language and not necessarily in the
language used in the statute but in terms
sufficient to enable a person of common
understanding to know what offense is being
charged as well as its qualifying and aggravating
circumstances and for the court to pronounce
judgment.19
The designation of the offense in the information
against petitioner was changed from "violation of
Section 5(b), Article III" of RA 7610 to "violation
of Section 5(a), Article III" thereof. Paragraphs
(a) and (b) of Section 5, Article III of RA 7610
provide:
Section 5. Child Prostitution and Other Sexual
Abuse. - Children, whether male or female, who,
for money, profit, or any other consideration
or due to the coercion or influence of any
adult, syndicate or group, indulge in sexual
intercourse or lascivious conduct, are
deemed to be children exploited in prostitution
and other sexual abuse.
The penalty of reclusion temporal in its medium
period to reclusion perpetua shall be imposed
upon the following:

4. Threatening or using violence towards a child


to engage him as a prostitute; or
5. Giving monetary consideration, goods or
other pecuniary benefit to a child with intent to
engage such child in prostitution.
(b) Those who commit the act of sexual
intercourse or lascivious conduct with a
child exploited in prostitution or subjected to
other sexual abuse: Provided, That when the
victim is under twelve (12) years of age, the
perpetrators shall be prosecuted under Article
335, paragraph 3, for rape and Article 336 of Act
No. 3815, as amended, the Revised Penal
Code, for rape or lascivious conduct, as the
case may be:Provided, that the penalty for
lascivious conduct when the victim is under
twelve (12) years of age shall bereclusion
temporal in its medium period; and
xxx

xxx

x x x(emphasis supplied)

The elements of paragraph (a) are:


1. the accused engages in, promotes, facilitates
or induces child prostitution;
2. the act is done through, but not limited to, the
following means:
a. acting as a procurer of a child prostitute;
b. inducing a person to be a client of a child
prostitute by means of written or oral
advertisements or other similar means;
c. taking advantage of influence or relationship
to procure a child as a prostitute;
d. threatening or using violence towards a child
to engage him as a prostitute or
e. giving monetary consideration, goods or other
pecuniary benefit to a child with intent to engage
such child in prostitution;
3. the child is exploited or intended to be
exploited in prostitution and
4. the child, whether male or female, is below 18
years of age.
On the other hand, the elements of paragraph
(b) are:

1. the accused commits the act of sexual


intercourse or lascivious conduct;

Petitioner violated Section 5(b), Article III of


RA 7610, as amended

2. the act is performed with a child exploited in


prostitution or subjected to other sexual abuse
and

The first element of Section 5(b), Article III of RA


7610 pertains to the act or acts committed by
the accused. The second element refers to the
state or condition of the offended party. The third
element corresponds to the minority or age of
the offended party.

3. the child, whether male or female, is below 18


years of age.
Paragraph (a) essentially punishes acts
pertaining to or connected with child prostitution.
It contemplates sexual abuse of a child exploited
in prostitution. In other words, under paragraph
(a), the child is abused primarily for profit.
On the other hand, paragraph (b) punishes
sexual intercourse or lascivious conduct not only
with a child exploited in prostitution but also with
a child subjected to other sexual abuse. It
covers not only a situation where a child is
abused for profit but also one in which a child,
through coercion, intimidation or influence,
engages in sexual intercourse or lascivious
conduct.20
The information against petitioner did not allege
anything pertaining to or connected with child
prostitution. It did not aver that AAA was abused
for profit. What it charged was that petitioner had
carnal knowledge or committed sexual
intercourse and lascivious conduct with AAA;
AAA was induced and/or seduced by petitioner
who was her professor to indulge in sexual
intercourse and lascivious conduct and AAA was
a 17-year old minor. These allegations support a
charge for violation of paragraph (b), not
paragraph (a), of Section 5, Article III, RA 7610.
The Real Nature of the Offense is Determined
by Facts Alleged in the Information, Not By
the Designation
The designation in the information of the specific
statute violated is imperative to avoid surprise
on the accused and to afford him the opportunity
to prepare his defense accordingly. However, the
failure to designate the offense by statute,21 or to
mention the specific provision penalizing the
act,22 or an erroneous specification of the law
violated23 does not vitiate the information if the
facts alleged clearly recite the facts constituting
the crime charged.24 What controls is not the title
of the information or the designation of the
offense but the actual facts recited in the
information.25 In other words, it is the recital of
facts of the commission of the offense, not the
nomenclature of the offense, that determines the
crime being charged in the information.26
The facts stated in the amended information
against petitioner correctly made out a charge
for violation of Section 5(b), Article III, RA 7610.
Thus, even if the trial and appellate courts
followed the wrong designation of the offense,
petitioner could be convicted of the offense on
the basis of the facts recited in the information
and duly proven during trial.

The first element was present in this case.


Petitioner committed lascivious conduct against
and had sexual intercourse with AAA in the
following instances: (1) on November 19, 1997,
when he kissed her at the back and neck,
touched her breasts and placed his hand inside
her blouse to gratify his lust; (2) on November
26, 1997, when, with lewd designs, he dragged
her towards the bed of the motel room and
forcibly kissed her on the lips, neck and breasts
and (3) when he exerted moral influence on her
and pressured her until she surrendered herself
to him on November 26, 1997. His acts were
covered by the definitions of sexual abuse and
lascivious conduct under Section 2(g) and (h) of
the Rules and Regulations on the Reporting and
Investigation of Child Abuse Cases promulgated
to implement the provisions of RA 7610,
particularly on child abuse:
(g) "Sexual abuse" includes the employment,
use, persuasion, inducement, enticement or
coercion of a child to engage in, or assist
another person to engage in, sexual
intercourse or lascivious conductor the
molestation, prostitution, or incest with
children;
(h) "Lascivious conduct" means the
intentional touching, either directly or
through clothing, of the genitalia, anus,
groin, breast, inner thigh, or buttocks, or the
introduction of any object into the genitalia, anus
or mouth, of any person, whether of the same
or opposite sex, with an intent to abuse,
humiliate, harass, degrade, or arouse or gratify
the sexual desire of any person, bestiality,
masturbation, lascivious exhibition of the
genitals or public area of a person. (emphasis
supplied)
The second element was likewise present here.
The following pronouncement in People v.
Larin27 is significant:
A child is deemed exploited in prostitution
or subjected to other sexual abuse, when the
child indulges in sexual intercourse or
lascivious conduct (a) for money, profit, or any
other consideration; or (b) under thecoercion
or influence of any adult, syndicate or group.
(emphasis supplied)
On November 19, 1997, due to the influence of
petitioner, AAA indulged in lascivious acts with or
allowed him to commit lascivious acts on her.
This was repeated on November 26, 1997 on
which date AAA also indulged in sexual
intercourse with petitioner as a result of the
latters influence and moral ascendancy. Thus,
she was deemed to be a "child subjected to

other sexual abuse" as the concept is defined in


the opening paragraph of Section 5, Article III of
RA 7610 and in Larin.
The third element of the offense was also
satisfied. Section 3 (a), Article I of RA 7610
provides:
SECTION 3. Definition of Terms.
(a) "Children" refers [to] persons below
eighteen (18) years of age or those over but
are unable to fully take care of themselves or
protect themselves from abuse, neglect, cruelty,
exploitation or discrimination because of a
physical or mental disability or condition;
(emphasis supplied)
On November 19, 2007 and November 26,
2007, AAA was a child as she was below 18
years of age. She was therefore within the
protective mantle of the law.
Since all three elements of the crime were
present, the conviction of petitioner was proper.
Violation of Section 5(b), Article III of RA 7610
and Rape are Separate and Distinct Crimes
Petitioner was charged and convicted for
violation of Section 5(b), Article III of RA 7610,
not rape. The offense for which he was
convicted is punished by a special law while
rape is a felony under the Revised Penal
Code.28 They have different elements.29 The two
are separate and distinct crimes. Thus, petitioner
can be held liable for violation of Section 5(b),
Article III of RA 7610 despite a finding that he
did not commit rape.
Consent of the Child is Immaterial in
Criminal Cases Involving Violation of Section
5, Article III of RA 7610
Petitioner claims that AAA welcomed his kisses
and touches and consented to have sexual
intercourse with him. They engaged in these
acts out of mutual love and affection. But may
the "sweetheart theory" be invoked in cases of
child prostitution and other sexual abuse
prosecuted under Section 5, Article III of RA
7610? No.
The sweetheart theory applies in acts of
lasciviousness and rape, felonies committed
against or without the consent of the victim. It
operates on the theory that the sexual act was
consensual. It requires proof that the accused
and the victim were lovers and that she
consented to the sexual relations.30
For purposes of sexual intercourse and
lascivious conduct in child abuse cases under
RA 7610, the sweetheart defense is
unacceptable. A child exploited in prostitution or
subjected to other sexual abuse cannot validly
give consent to sexual intercourse with another
person.

The language of the law is clear: it seeks to


punish
[t]hose who commit the act of sexual intercourse
or lascivious conduct with a child exploited in
prostitution or subjected to other sexual abuse.
Unlike rape, therefore, consent is immaterial in
cases involving violation of Section 5, Article III
of RA 7610. The mere act of having sexual
intercourse or committing lascivious conduct
with a child who is exploited in prostitution or
subjected to sexual abuse constitutes the
offense. It is a malum prohibitum, an evil that is
proscribed.
A child cannot give consent to a contract under
our civil laws.31 This is on the rationale that she
can easily be the victim of fraud as she is not
capable of fully understanding or knowing the
nature or import of her actions. The State,
as parens patriae, is under the obligation to
minimize the risk of harm to those who, because
of their minority, are as yet unable to take care of
themselves fully.32 Those of tender years
deserve its protection.33
The harm which results from a childs bad
decision in a sexual encounter may be infinitely
more damaging to her than a bad business deal.
Thus, the law should protect her from the
harmful consequences34 of her attempts at adult
sexual behavior.35 For this reason, a child should
not be deemed to have validly consented to
adult sexual activity and to surrender herself in
the act of ultimate physical intimacy under a law
which seeks to afford her special protection
against abuse, exploitation and discrimination.
(Otherwise, sexual predators like petitioner will
be justified, or even unwittingly tempted by the
law, to view her as fair game and vulnerable
prey.) In other words, a child is presumed by law
to be incapable of giving rational consent to any
lascivious act or sexual intercourse.361wphi1
This must be so if we are to be true to the
constitutionally enshrined State policy to
promote the physical, moral, spiritual, intellectual
and social well-being of the youth.37 This is
consistent with the declared policy of the State
[T]o provide special protection to children
from all forms of abuse, neglect,
cruelty, exploitation and discrimination, and
other conditions prejudicial to their
development; provide sanctions for their
commission and carry out a program for
prevention and deterrence of and crisis
intervention in situations of child abuse,
exploitation, and discrimination.38 (emphasis
supplied)
as well as to
intervene on behalf of the child when the
parents, guardian, teacher or person having
care or custody of the child fails or is unable to
protect the child against abuse, exploitation, and
discrimination or when such acts against the
child are committed by the said parent,

guardian, teacher or person having care and


custody of the same.39 (emphasis supplied)
This is also in harmony with the foremost
consideration of the childs best interests in all
actions concerning him or her.
The best interest of children shall be the
paramount consideration in all actions
concerning them, whether undertaken by
public or private social welfare institutions,
courts of law, administrative authorities, and
legislative bodies, consistent with the principles
of First Call for Children as enunciated in the
United Nations Convention on the Rights of the
Child. Every effort shall be exerted to
promote the welfare of children and enhance
their opportunities for a useful and happy
life.40 (emphasis supplied)
Petitioner May Enjoy the Benefits of the
Indeterminate Sentence Law
The penalty prescribed for violation of the
provisions of Section 5, Article III of RA 7610
is reclusion temporal in its medium period
to reclusion perpetua. In the absence of any
mitigating or aggravating circumstance, the
proper imposable penalty is reclusion
temporal in its maximum period, the medium of
the penalty prescribed by the
law.41 Notwithstanding that RA 7610 is a special
law, petitioner may enjoy the benefits of the
Indeterminate Sentence Law.42 Since the penalty
provided in RA 7610 is taken from the range of
penalties in the Revised Penal Code, it is
covered by the first clause of Section 1 of the
Indeterminate Sentence Law.43 Thus, he is
entitled to a maximum term which should be
within the range of the proper imposable penalty
of reclusion temporal in its maximum period
(ranging from 17 years, 4 months and 1 day to
20 years) and a minimum term to be taken
within the range of the penalty next lower to that
prescribed by the law: prision mayor in its
medium period to reclusion temporal in its
minimum period (ranging from 8 years and 1 day
to 14 years and 8 months).
The Award of Damages Should Be Modified
The trial court awarded AAA P75,000 as civil
indemnity, P50,000 as moral and exemplary
damages. The CA deleted the award for civil
indemnity. It correctly reasoned that the award
was proper only in a conviction for rape
committed under the circumstances under which
the death penalty is authorized by law.
Consistent, however, with the objective of RA
7610 to afford children special protection against
abuse, exploitation and discrimination and with
the principle that every person who contrary to
law, willfully or negligently causes damage to
another shall indemnify the latter for the
same,44 civil indemnity to the child is proper in a
case involving violation of Section 5(b), Article III
of RA 7610. Every person criminally liable is
civilly liable.45 The rule is that, in crimes and
quasi-delicts, the defendant shall be liable for all
damages which are the natural and probable
consequences of the act or omission

complained of.46 Thus, P50,000 civil


indemnity ex delicto shall be awarded in cases
of violation of Section 5(b), Article III of RA
7610.47
Moreover, the CA erred in affirming the grant
of P50,000 as "moral and exemplary damages."
The rule is that, in every case, trial courts must
specify the award of each item of damages and
make a finding thereon in the body of the
decision.48 Thus, moral damages and exemplary
damages should be separate items of award.
AAA testified that she was "emotionally
devastated" and "lost touch of her inner self" as
a result of what petitioner did to her. Because of
the mental anxiety and wounded feelings
caused by petitioner to her, she had several
sessions with the dean for student affairs 49 and
the guidance counselor of Assumption College
as well as with a psychiatrist. This was
corroborated by her mother and the dean of
student affairs of Assumption College. Thus, she
is entitled to moral damages of P50,000.
However, in the absence of an aggravating
circumstance, the grant of exemplary damages
is unwarranted.50
Accordingly, the petition is hereby DENIED.
Petitioner Michael John Z. Malto is hereby found
guilty of violating Section 5(b), Article III of RA
7610, as amended, for which he is sentenced to
14 years and 8 months of reclusion temporal as
minimum to 20 years of reclusion temporal as
maximum. He is further ordered to pay
AAA P50,000 as civil indemnity and P50,000 for
moral damages.
Costs against petitioner.
SO ORDERED.
Footnotes
7

Her birth certificate (Exhibit "H") showed that she


was born on December 3, 1979. Id., p. 229.
8
Before cellular phones and text messaging came in
vogue, the status symbol werepagers/beepers used
for paging/beeping messages.
9
Queensland Motel in some parts of the records.
13
RA 9346 ("An Act Prohibiting the Imposition of
Death Penalty" enacted on June 24, 2006)
subsequently repealed the death penalty.
28
At the time of the commission of the offense, rape
was still classified as a crime against chastity
punished under Article 335 of the Revised Penal
Code. It is now a crime against persons defined and
penalized under Article 266-A of the Revised Penal
Code.
29
In contrast to the offense punished under Section
5(b), Article III of RA 7610, the crime of rape has the
following elements: (1) the offender is a man who had
carnal knowledge of a woman and (2) such act was
accomplished through force or intimidation; or when
the victim is deprived of reason or otherwise
unconscious; or by means of fraudulent machination
or grave abuse of authority; or when the victim is
under 12 years of age or is demented. (People v.
Padilla, G.R. No. 142899, 31 March 2004, 426 SCRA
648)
31
Article 1327, Civil Code. A contract between a child
and another person who is of legal age is voidable at
the instance of the child. The rule is, however, subject
to the following exceptions: (a) upon reaching the age

of majority, the contract is ratified by the party who


was a child when he entered into it, (b) the contract
was entered into thru a guardian and approved by a
CA competent jurisdiction, (c) it is a contract for
necessities, such as food, but the person legally
bound to give them support should pay therefor and
(e) the child misrepresented his age and pretended to
be of majority age and is thus in estoppel.
It should also be noted that under our present criminal
laws, the age of exemption from criminal liability was
raised from 9 years old to 15 years old. (RA 9344)
Thus, a child 15 years of age or under at the time of
the commission of the offense is exempt from criminal
liability. A child above 15 but below 18 years of age is
presumed not to have acted with discernment and will
be criminally liable only upon rebuttal of that
presumption by proof that he acted with discernment.
Thus, there is a presumption of lack of discernment
on the part of a child (which presumption is conclusive
if she is 15 years of age and below and disputable if
she is over 15 but below 18 years of age).
34
These harmful consequences include teenage
pregnancy, mothering or fathering an illegitimate child
and contracting sexually transmitted disease(s).
35
The recognition that copulation is an adult activity is
reflected in the way films or shows are classified as
rated "R" or "R-18." Under the Guidelines of the Movie
and Television Review and Classification Board
(MTRCB), a movie or show classified as "Restricted
18" ("R-18") may be viewed only by those who are 18
years old and above. As to its sexual content, the
movie may portray sexual activity. (Section 1(D),
Chapter IV, 2004 Guidelines of the MTRCB)
Moreover, Section 9 of PD 1986 (Creating the
MTRCB) makes it unlawful for (a) any person below
18 years of age to enter, to misrepresent or make use
of any false evidence about his or her age in order to
gain admission into a movie house or theater showing
a motion picture classified as "Restricted" or "For
Adults Only" by the MTRCB and (b) for any employee
of a movie house or theater to sell to, or receive from,
another person known to the former to be below 18
years of age any admission ticket to the exhibition of
motion pictures classified as "Restricted" or "For
Adults Only."
37
Section 13, Article II, Constitution. The Constitution
also provides that the State shall defend "the right of
children to assistance, including proper care and
nutrition, and special protection from all forms of
neglect, abuse, cruelty, exploitation, and other
conditions prejudicial to their development."(Section
3, Article XV)
43
Cadua v. Court of Appeals, G.R. No. 123123, 19
August 1999, 312 SCRA 703 citing People v. Simon,
234 SCRA 555 (1994). Section 1 of the Indeterminate
Sentence Law provides:
SECTION 1. Hereafter, in imposing a prison
sentence for an offense punished by the Revised
Penal Code, or its amendments, the court shall
sentence the accused to an indeterminate
sentence the maximum term of which shall be that
which, in view of the attending circumstances,
could be properly imposed under the rules of the
said Code, and the minimum of which shall be
within the range of the penalty next lower to that
prescribed by the Code for the offense; and if the
offense is punished by any other law, the court shall
sentence the accused to an indeterminate sentence,
the maximum term of which shall not exceed the
maximum fixed by said law and the minimum shall not
be less than the minimum term prescribed by the
same. (emphasis supplied)
Simon ruled:
It is true that Section 1 of said law, after providing for
indeterminate sentence for an offense under the
Revised Penal Code, states that if the offense is
punished by any other law, the court shall sentence
the accused to an indeterminate sentence, the
maximum term of which shall not exceed the
maximum fixed by said law and the minimum shall not

be less than the minimum term prescribed by the


same. We hold that this quoted portion of the
section indubitably refers to an offense under a
special law wherein the penalty imposed was not
taken from and is without reference to the
Revised Penal Code, as discussed in the preceding
illustrations, such that it may be said that the
offense is punished under that law. (emphasis
supplied)
Cadua applied this rule by analogy and extension.
45
Article 100, Revised Penal Code. It provides:
Art. 100. Civil liability of a person guilty of a felony.
Every person criminally liable for a felony is also civilly
liable.
It may be applied in this case pursuant to Article 10 of
the Revised Penal Code which states that the Code
shall be supplementary to special laws unless the
latter should specially provide the contrary.
[See People v. Moreno, 60 Phil. 712 (1934).]
46
Article 2202, Civil Code.
47
This rule does not apply where, pursuant to the
proviso of Section 5(b), Article III of RA 7610, the
accused is prosecuted under Article 266-A of the
Revised Penal Code and a higher civil indemnity is
warranted under the circumstances.
50
Article 2230, Civil Code. It provides:
ART. 2230. In criminal offenses, exemplary damages
as a part of the civil liability may be imposed when the
crime was committed with one or more aggravating
circumstances. Such damages are separate and
distinct from fines and shall be paid to the offended
party.

Republic of the Philippines


SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 175881

August 28, 2007

PEOPLE OF THE PHILIPPINES, PlaintiffAppellee,


vs.
ARMANDO RODAS1 and JOSE RODAS,
SR.,2 Accused-Appellants.
DECISION
CHICO-NAZARIO, J.:
Assailed before Us is the Decision3 of the Court
of Appeals in CA-G.R. CR-HC No. 00289 which

affirmed in toto the decision4 of the Regional


Trial Court (RTC) of Sindangan, Zamboanga del
Norte, Branch XI, convicting accused-appellants
Armando Rodas and Jose Rodas, Sr. of the
crime of Murder.
For the death of one Titing Asenda, accusedappellant Jose Rodas, Sr., together with his
sons Charlito, Armando, and Jose Jr., all
surnamed Rodas, were charged with murder in
an information which reads:
That, in the evening, on or about the 9th day of
August, 1996, in the municipality of Siayan,
Zamboanga del Norte, within the jurisdiction of
this Honorable Court, the above-named
accused, armed with a hunting knife, firearm,
chako and bolo, conspiring, confederating
together and mutually helping one another, with
intent to kill, by means of treachery and evident
premeditation, did then and there willfully,
unlawfully and feloniously attack, assault, beat,
stab and hack one TITING ASENDA, thereby
inflicting upon him multiple wounds on the vital
parts of his body which caused his death shortly
thereafter; that as a result of the commission of
the said crime the heirs of the herein victim
suffered the following damages, viz:
a) Indemnity for victims death .
P50,000.00
..
b) Loss of earning
capacity . . . . . . .

P30,000.00

P80,000.00
CONTRARY TO LAW (Viol. of Art. 248, Revised
Penal Code), with the aggravating
circumstances of nocturnity and abuse of
superior strength.5
When arraigned on 22 November 1996, the four
accused, assisted by counsel de oficio, pleaded
not guilty to the crime charged.6
By agreement of the parties, pre-trial conference
was terminated on 6 December
1996.7 Thereafter, trial on the merits
commenced.
The prosecution presented five witnesses,
namely: Alberto Asonda, Danilo Asenda, Ernie
Anggot, Blessie Antiquina and PO1 Pablo
Yosores.
Before the prosecution could rest its case,
accused Charlito Rodas8 and Jose Rodas,
Jr. 9 withdrew their previous pleas of "NOT
GUILTY" and entered their respective pleas of
"GUILTY" for the lesser crime of Homicide. Both
were sentenced to suffer the indeterminate
penalty of 17 years, 4 months and 1 day to 20
years and were each ordered to indemnify the
heirs of the victim in the amount of P12,500.00
as damages.10
The prosecution formally offered Exhibits "A" to
"H," inclusive, with sub-markings.11

From the evidence adduced, the prosecutions


version of the killing is as follows:
On 9 August 1996, Titing Asenda, a resident of
Boyos, Sindangan, Zamboanga del Norte, was
at Milaub, Denoyan, Zamboanga del Norte, to
help his brother, Danilo Asenda, in the
harvesting of the latters corn.
On the same day, at around 8:00 in the evening,
a benefit dance at Milaub, which was sponsored
by Boboy Raquilme,12 was being held. Among
those roaming in the vicinity of the dance hall
were Alberto Asonda and Ernie Anggot. They
stopped and hung out near the fence to watch
the affair. Titing Asenda was standing near them.
They saw Charlito Rodas, Armando Rodas, Jose
Rodas, Jr., and Jose Rodas, Sr. surround Titing
Asenda. Suddenly, without a word, Charlito
Rodas, armed with a hunting knife, stabbed
Titing at the back. Armando Rodas then clubbed
Titing with a chako hitting him at the left side of
the nape causing him to fall. Thereafter, Jose
Rodas, Sr. handed to Jose Rodas, Jr.
a bolo which the latter used in hacking Titing,
hitting him on the left elbow. Alberto Asonda and
Ernie Anggot tried to help Titing but Armando
Rodas prevented them by pointing a gun at
them and firing it towards the sky.
After the assailants left, Alberto Asonda and
Ernie Anggot approached Titing Asenda who
was already dead. They informed Danilo Asenda
that his brother was killed. The police arrived the
following day after being informed of the
incident.
On the part of the defense, accused-appellants
Armando Rodas and Jose Rodas, Sr., and Vilma
Rodas, the formers wife, took the witness stand.
The defense rested its case without marking and
offering any documentary evidence.
Defense evidence showed that only Charlito
Rodas and Jose Rodas, Jr. killed Titing Asenda.
Appellant Jose Rodas, Sr. denied any
participation in the killing of Titing Asenda
claiming he was not present in the benefit dance
and that he was in his home with his wife and
infant granddaughter when the killing happened.
He revealed that on the night of the killing, his
son, Charlito Rodas, who was carrying a hunting
knife, arrived and told him he killed somebody.
He then brought his son to the municipal
building of Siayan to surrender him to the police
authorities.
Appellant Armando Rodas likewise denied he
was one of those who killed Titing Asenda. He
claimed that at the time of the killing, he was in
his house sleeping with his children. He denied
using a chako and firing a gun. He insisted it
was his brothers, Charlito and Jose Jr., who
killed Titing Asenda because they pleaded guilty.
To bolster the testimony of the appellants, Vilma
Rodas testified that she was at the benefit dance
when the killing happened. Armando and Jose
Sr., she claimed, did not participate in the killing.
She said Charlito stabbed Titing while Jose Jr.
merely punched the victim.

On 9 July 1998, the trial court promulgated its


decision finding accused-appellants Armando
Rodas and Jose Rodas, Sr. guilty of the crime of
Murder. The decretal portion of the decision
reads:
WHEREFORE, the Court finds the accused
Jose Rodas, Sr. and Armando Rodas guilty
beyond reasonable doubt of MURDER as
defined and penalized under the Revised Penal
Code, as amended under Section 6 of Republic
Act No. 7659 and hereby sentenced them to
RECLUSION PERPETUA each and to indemnify
the heirs of the deceased, Titing
Asenda, P12,500.00 each or a total
of P25,000.00.
COST de oficio.13
In finding accused-appellants guilty, the trial
court gave credence to the testimonies of
eyewitnesses Alberto Asonda and Ernie Anggot.
It found accused-appellants and the other two
accused conspired in the killing of the victim and
that treachery attended the same. It gave no
weight to accused-appellants defense of alibi
and denial arguing that they were positively
identified as the perpetrators and that they failed
to adduce evidence that it was physically
impossible for them to be present at the crime
scene when the killing happened. It added that
their unsubstantiated denial will not be given
greater evidentiary value over the testimonies of
credible witnesses who testified on affirmative
matters.
With a Notice of Appeal14 filed by accusedappellants, the trial court forwarded the entire
records of the case to this Court.15 However,
pursuant to our ruling in People v. Mateo,16 the
case was remanded to the Court of Appeals for
appropriate action and disposition.
In its decision dated 28 July 2006, the Court of
Appeals affirmed in toto the RTCs decision.17
With the Court of Appeals affirmance of their
convictions, accused-appellants are now before
this Court via a notice of appeal. With the appeal
being timely filed, the records of the case were
elevated to this Court.
In our Resolution18 dated 19 February 2007, the
parties were required to file their respective
supplemental briefs, if they so desired, within 30
days from notice. Accused-appellants
manifested that since they had already filed the
Appellants Brief, as well as Reply and
Supplemental Reply Brief, they are dispensing
with the filing of the Supplemental Brief because
the latter will merely contain a reiteration of the
arguments substantially discussed in the
former.19 On the part of the Office of the Solicitor
General, it manifested that considering that the
guilt of the appellants had already been
discussed in the Appellees Brief, it was waiving
its right to file a Supplemental Brief.20
Accused-Appellants assign as errors the
following:

I
THE TRIAL COURT ERRED IN FINDING THAT
ACCUSED-APPELLANTS WERE ALSO
PRESENT AT THE DANCE AND
PARTICIPATED IN ATTACKING THE VICTIM.
II
ASSUMING ARGUENDO THAT THE ACCUSED
ARE GUILTY, THEY ARE ONLY LIABLE FOR
THE CRIME OF HOMICIDE.
On the first assigned error, appellants contend
that the testimonies of prosecution witnesses
Alberto Asonda and Ernie Anggot should not be
believed because they did not see the start of
the assault on Titing, and all they saw was him
injured and lying down on the floor. They insist
that Asonda and Anggot could not have seen the
killing because only a Petromax lighted the
place.
After a careful and meticulous review of the
records of the case, we find no reason to
reverse the findings of the trial court, as affirmed
by the Court of Appeals. We affirm appellants
conviction.
We find the evidence of the prosecution to be
more credible than that adduced by appellants.
When it comes to credibility, the trial courts
assessment deserves great weight, and is even
conclusive and binding, if not tainted with
arbitrariness or oversight of some fact or
circumstance of weight and influence. The
reason is obvious. Having the full opportunity to
observe directly the witnesses deportment and
manner of testifying, the trial court is in a better
position than the appellate court to evaluate
properly testimonial evidence.21
It is to be noted that the Court of Appeals
affirmed the findings of the RTC. In this regard, it
is settled that when the trial courts findings have
been affirmed by the appellate court, said
findings are generally conclusive and binding
upon this Court.22 We find no compelling reason
to deviate from their findings.
The Court finds that Alberto Asonda and Ernie
Anggot witnessed the killing of Titing Asenda by
Charlito Rodas, Armando Rodas, Jose Rodas,
Jr. and Jose Rodas, Sr. When Titing was killed,
Asonda and Anggot were near him. Contrary to
the claim of the defense that the place where the
killing occurred was not lighted enough for the
assailants to be identified, the place was
sufficiently lighted by a Petromax as testified to
by Vilma Rodas.23
Appellants make a big issue about the absence
of a medical examination. Should they be
exonerated because of this? The answer is no.
A medical examination or a medical certificate is
not indispensable in the case at bar. Its absence
will not prove that appellants did not commit the
cime charged. They can still be convicted by
mere testimonial evidence, if the same is

convincing. In the case at bar, the testimonies of


the two eyewitnesses, which the Court found to
be credible, are sufficient to prove the crime and
its perpetrators.
Appellants defense of denial and alibi must
likewise fail. Mere denial, if unsubstantiated by
clear and convincing evidence, has no weight in
law and cannot be given greater evidentiary
value than the positive testimony of a
victim.24 Denial is intrinsically weak, being a
negative and self-serving assertion.25
Denial cannot prevail over the positive
testimonies of prosecution witnesses who were
not shown to have any ill motive to testify
against appellants. Absence of improper motive
makes the testimony worthy of full faith and
credence.26 In this case, appellants, who were
positively identified, testified that Asonda and
Anggot had no ill motive to testify against
them.27 Moreover, ill motive has no bearing when
accused were positively identified by credible
eyewitnesses. Motive gains importance only
when the identity of the culprit is doubtful.28
Appellants also interposed the defense of alibi.
No jurisprudence in criminal law is more settled
than that alibi is the weakest of all defenses for it
is easy to contrive and difficult to disprove, and
for which reason it is generally rejected.29 For
the defense of alibi to prosper, it is imperative
that the accused establish two elements: (1) he
was not at the locus criminis at the time the
offense was committed; and (2) it was physically
impossible for him to be at the scene at the time
of its commission.30 Appellants failed to do so.
In the case at bar, both appellants claimed that
on the night Titing Asenda was killed, they were
one kilometer away. Thus, it was not possible for
them to have been at the scene of the crime
when the crime was committed. The defense
witnesses, however, gave conflicting
testimonies. Appellant Armando said his
residence was more or less one kilometer away
from the crime scene31 but Jose Sr. said it was
only 50 meters away.32 Jose Sr.33 said the house
of Charlito was only 50 meters away from the
crime scene but Armando said it was one
kilometer away.34 Armando said his wife was in
Dipolog City when the killing happened,35 but his
wife said she witnessed the killing. 36 Armando
said he and all the other accused lived in
separate houses,37 but his wife revealed that
Charlito lives with Jose Sr.38 Vilma Rodas said
after the killing, she immediately went home and
told Armando that his brothers killed
somebody39 but her husband said he only
learned of it the next morning. 40 What is more
incredible is the fact that despite the testimony
of Vilma Rodas that she informed Armando of
the killing, the latter never testified to this effect.
All these negate appellants claim that they were
not at the crime scene when the killing took
place.
The information alleged that appellants, together
with Charlito and Jose Jr., conspired in killing
Titing Asenda. Article 8 of the Revised Penal
Code provides that there is conspiracy when two

or more persons agree to commit a crime and


decide to commit it. It is hornbook doctrine that
conspiracy must be proved by positive and
convincing evidence, the same quantum of
evidence as the crime itself.41 Indeed, proof of
previous agreement among the malefactors to
commit the crime is not essential to prove
conspiracy. It is not necessary to show that all
the conspirators actually hit and killed the victim;
what is primordial is that all the participants
performed specific acts with such closeness and
coordination as to indicate a common purpose
or design to bring about the victims
death.42 Once conspiracy is established, all the
conspirators are answerable as co-principals
regardless of their degree of participation. In the
contemplation of the law, the act of one
becomes the act of all, and it matters not who
among the accused inflicted the fatal blow on
the victim.43
In this case, conspiracy was convincingly proven
beyond reasonable doubt. All the accused had
the same purpose and acted in unison when
they assaulted the victim. Surrounding the
victim, Charlito stabbed Titing Asenda at the
back with a hunting knife. Armando next clubbed
the victim with a chako, hitting him on the left
side of the nape, causing him to fall to the
ground. Jose Sr. then handed a bolo to Jose Jr.
who used it in hacking the victim.
On the second assigned error, appellants argue
that assuming arguendo they are guilty, they are
liable only for the crime of homicide, not murder.
They contend that treachery was absent since
they, together with Charlito and Jose Jr., met the
victim casually in the dance hall.
The qualifying circumstance of treachery
attended the killing. The essence of treachery is
the sudden and unexpected attack by the
aggressor on an unsuspecting victim, depriving
the latter of any real chance to defend himself,
thereby ensuring its commission without risk to
the aggressor, and without the slightest
provocation on the part of the victim.44 In People
v. Villonez,45 we ruled that treachery may still be
appreciated even when the victim was
forewarned of danger to his person. What is
decisive is that the execution of the attack made
it impossible for the victim to defend himself or
to retaliate.
In the case under review, the victim was
completely unaware that he was going to be
attacked.46 He was not forewarned of any
danger to himself as there was no altercation or
disagreement between the accused and the
victim. If treachery may be appreciated even
when the victim was forewarned, more so
should it be appreciated when the victim was
not, as in the case at bar. The suddenness of the
attack, the number of the accused and their use
of weapons against the unarmed victim prevent
the possibility of any defense or retaliation by
the victim. The fact that the victim was already
sprawled on the ground and still Jose Jr. hacked
him with a bolo clearly constitutes treachery.

The information also alleged that evident


premeditation, nocturnity and abuse of superior
strength attended the killing.
For evident premeditation to be appreciated, the
following elements must be established: (1) the
time when the accused decided to commit the
crime; (2) an overt act manifestly indicating that
he has clung to his determination; and (3)
sufficient lapse of time between decision and
execution to allow the accused to reflect upon
the consequences of his act.47 Like any other
circumstance that qualifies a killing as murder,
evident premeditation must be established by
clear and positive proof; that is, by proof beyond
reasonable doubt.48 The essence of
premeditation is that the execution of the
criminal act was preceded by cool thought and
reflection upon the resolution to carry out the
criminal intent during a space of time sufficient to
arrive at a calm judgment.49 In the case at bar,
the prosecution failed to show the presence of
any of these elements.
The aggravating circumstance of nocturnity
cannot be considered against appellants. This
circumstance is considered aggravating only
when it facilitated the commission of the crime,
or was especially sought or taken advantage of
by the accused for the purpose of impunity. The
essence of this aggravating circumstance is the
obscuridad afforded by, and not merely the
chronological onset of, nighttime. Although the
offense was committed at night, nocturnity does
not become a modifying factor when the place is
adequately lighted and, thus, could no longer
insure the offenders immunity from identification
or capture.50 In the instant case, the prosecution
failed to show that nighttime facilitated the
commission of the crime, or was especially
sought or taken advantage of by the accused for
the purpose of impunity. The crime scene was
sufficiently lighted by a Petromax which led to
the identification of all the accused.
The aggravating circumstance of abuse of
superior strength attended the killing. There was
glaring disparity of strength between the victim
and the four accused. The victim was unarmed
while the accused were armed with a hunting
knife, chako and bolo. It is evident that the
accused took advantage of their combined
strength to consummate the offense. This
aggravating circumstance, though, cannot be
separately appreciated because it is absorbed in
treachery. In People v. Parreno,51 we decreed:
As regards the aggravating circumstance of
abuse of superior strength, what should be
considered is not that there were three, four, or
more assailants as against one victim, but
whether the aggressors took advantage of their
combined strength in order to consummate the
offense. While it is true that superiority in
number does notper se mean superiority in
strength, the appellants in this case did not only
enjoy superiority in number, but were armed with
a weapon, while the victim had no means with
which to defend himself. Thus, there was
obvious physical disparity between the
protagonists and abuse of superior strength on

the part of the appellants. Abuse of superior


strength attended the killing when the offenders
took advantage of their combined strength in
order to consummate the offense. However, the
circumstance of abuse of superior strength
cannot be appreciated separately, it being
necessarily absorbed in treachery.
As a final attempt to lower their conviction to
Homicide, appellants, citing People v.
Alba,52 argue that although treachery was
alleged in the Information and proven according
to the trial court, the same was not specified as
a qualifying circumstance. Such argument fails.
In People v. Aquino,53 we have held that even
after the recent amendments to the Rules of
Criminal Procedure, qualifying circumstances
need not be preceded by descriptive words such
as "qualifying" or "qualified by" to properly
qualify an offense. We explained:
Section 8 of Rule 110 requires that the
Information shall "state the designation of the
offense given by the statute, aver the acts or
omissions constituting the offense, and specify
its qualifying and aggravating circumstances."
Section 8 merely requires the Information to
specify the circumstances. Section 8 does not
require the use of the words "qualifying" or
"qualified by" to refer to the circumstances which
raise the category of an offense. It is not the use
of the words "qualifying" or "qualified by" that
raises a crime to a higher category, but the
specific allegation of an attendant circumstance
which adds the essential element raising the
crime to a higher category.1avvphi1
In the instant case, the attendant circumstances
of minority and relationship were specifically
alleged in the Information precisely to qualify the
offense of simple rape to qualified rape. The
absence of the words "qualifying" or "qualified
by" cannot prevent the rape from qualifying as a
heinous crime provided these two circumstances
are specifically alleged in the Information and
proved beyond reasonable doubt.
We therefore reiterate that Sections 8 and 9 of
Rule 110 merely require that the Information
allege, specify or enumerate the attendant
circumstances mentioned in the law to qualify
the offense. These circumstances need not be
preceded by the words "aggravating/qualifying,"
"qualifying," or "qualified by" to be considered as
qualifying circumstances. It is sufficient that
these circumstances be specified in the
Information to apprise the accused of the
charges against him to enable him to prepare
fully for his defense, thus precluding surprises
during the trial. When the prosecution
specifically alleges in the Information the
circumstances mentioned in the law as
qualifying the crime, and succeeds in proving
them beyond reasonable doubt, the Court is
constrained to impose the higher penalty
mandated by law. This includes the death
penalty in proper cases.
xxxx

To guide the bench and the bar, this Resolution


clarifies and resolves the issue of how to allege
or specify qualifying or aggravating
circumstances in the Information. The words
"aggravating/qualifying," "qualifying," "qualified
by," "aggravating," or "aggravated by" need not
be expressly stated as long as the particular
attendant circumstances are specified in the
Information.54
Under Article 248 of the Revised Penal Code, as
amended by Republic Act No. 7659,55 murder is
punishable byreclusion perpetua to death. There
being neither mitigating nor aggravating
circumstance in the commission of the felony,
appellants should be sentenced to reclusion
perpetua, conformably to Article 63(2) of the
Revised Penal Code.

and Jose Rodas, Sr. are found GUILTY beyond


reasonable doubt of murder as defined in Article
248 of the Revised Penal Code, as amended by
Republic Act No. 7659, qualified by treachery.
There being no aggravating or mitigating
circumstance in the commission of the crime,
they are hereby sentenced to suffer the penalty
of reclusion perpetua. The appellants are
ORDERED to pay, jointly and severally, the heirs
of Titing Asenda the amount of P25,000.00 as
civil indemnity, P50,000.00 as moral
damages, P25,000.00 as temperate damages
and P25,000.00 as exemplary damages. Costs
against the appellants.
SO ORDERED.

We now go to the award of damages. When


death occurs due to a crime, the following
damages may be awarded: (1) civil indemnity ex
delicto for the death of the victim; (2) actual or
compensatory damages; (3) moral damages; (4)
exemplary damages; and (5) temperate
damages.56
Civil indemnity is mandatory and granted to the
heirs of the victim without need of proof other
than the commission of the crime.57 We affirm
the award of civil indemnity given by the trial
court and the Court of Appeals. Under prevailing
jurisprudence,58 the award of P50,000.00 to the
heirs of the victim as civil indemnity is in order.
Both the trial court and the Court of Appeals
awarded P25,000.00 as civil indemnity because
the two accused who pleaded guilty to the lower
offense of homicide were ordered to
pay P25,000.00 or half of theP50,000.00 civil
indemnity. Considering that half of
the P50,000.00 was already paid, appellants
should therefore pay only the difference.
As to actual damages, the heirs of the victim are
not entitled thereto because said damages were
not duly proved with reasonable degree of
certainty.59 However, the award of P25,000.00 in
temperate damages in homicide or murder
cases is proper when no evidence of burial and
funeral expenses is presented in the trial
court.60 Under Article 2224 of the Civil Code,
temperate damages may be recovered as it
cannot be denied that the heirs of the victim
suffered pecuniary loss although the exact
amount was not proved.61

Republic of the Philippines


SUPREME COURT
Manila

Anent moral damages, the same is mandatory in


cases of murder and homicide, without need of
allegation and proof other than the death of the
victim.62 The award of P50,000.00 as moral
damages is in order.

DECISION

The heirs of the victim are likewise entitled to


exemplary damages in the amount
of P25,000.00 since the qualifying circumstance
of treachery was firmly established.63
WHEREFORE, all the foregoing considered, the
decision of the Court of Appeals in CA-G.R. CRHC No. 00289 is AFFIRMED WITH
MODIFICATION. Appellants Armando Rodas

FIRST DIVISION
G.R. No. 175528

September 30, 2009

PO3 BENITO SOMBILON, JR., Petitioner,


vs.
PEOPLE OF THE PHILIPPINES, Respondent.

LEONARDO-DE CASTRO, J.:


This resolves the petition for review which seeks
to annul and set aside the following rulings of
the Court of Appeals (CA) in C.A. C.R. No.
27729: a) the Decision1 dated July 28, 2005
which affirmed with modification the
decision2 dated May 13, 2003 of the Regional
Trial Court of Davao City (RTC), convicting
petitioner of acts of lasciviousness; and b) the
Resolution3 dated September 22, 2006 denying

petitioners Motion for Reconsideration of the


aforesaid Decision.
The facts found during trial, as succinctly stated
by the CA, are as follows:
The facts found during the trial reveal that on or
about August 15, 1998, AAA, a fifteen (15)-year
old minor, was investigated by Appellant at the
Calinan Police Station, Davao City in connection
with a complaint for Theft filed by a certain
Aileen Dagoc.
AAA alleged that Appellant, in conducting the
investigation, took her inside a room and locked
it. She testified that the room had no window but
had a cot, a table, and a clothesline where some
clothes were hanged. She claimed that
Appellant pointed a gun at her, with the end of
the barrel touching her forehead and pushed her
with it, causing her head to violently bang
against the wall, and asked her: "Did you steal
the necklace?" She answered that she did not.
Appellant then took an electric wire from a
drawer and inserted its male plug to a socket.
She was ordered to place her two hands on top
of the table where her fingers were electrocuted
with the end of the wire. She was again asked
the same question, which she kept answering in
the negative. Subsequently, she was asked:
"Dalaga ka na ba? (Are you a woman now?),
and was told: "I am single too." Simultaneously,
she was touched all over her body including her
breasts, her belly, and her private parts. She
was also kissed on her cheek. She struggled to
resist the sexual advances but Appellant
prevailed. She claimed that they were inside the
room for more than one (1) hour.
Thereafter, they went out of the room where
Appellant announced to P03 Danilo Mendez and
Aileen Dagoc that she had already admitted
having stolen the necklace. Pale, AAA was
trembling and crying; her hair disheveled, her
dress wet. She also had bruises on her
forehead.
The police officers allowed AAA and her mother
to go home on the condition that they would pay
the value of the necklace. Because of AAAs
condition, AAAs mother brought her daughter to
the Medical Clinic of St. Luke where AAA was
examined by Dr. Manuel Garcia, Sr.4 Dr. Garcia
gave AAA a tranquilizer to calm down the latter
who was trembling and incoherent.5 At first, AAA
could not answer the doctor when she was
asked what happened to her. Later, upon
regaining her composure, she revealed that she
was electrocuted and sexually molested by
petitioner.6 The Medical Certificate7 issued by Dr.
Garcia disclosed the following injuries:
1. Slight contusion over occiput region.

2. Slight contusion over center area of forehead.


3. Multiple slight contusions of fingers of bilateral
hands.
4. Multiple slight contusions of bilateral breast
areas.
5. Slight body tremors.
Diagnosis: Slight Physical Injuries
In an Information8 dated August 23, 1999,
petitioner was charged with the crime of Acts of
Lasciviousness committed as follows:
The undersigned accuses the above-named
accused of the crime of Acts of Lasciviousness,
under Art. 336, in relation to Art. 344 of the
Revised Penal Code, upon the instance of the
complainant AAA, who is 15 years old, whose
affidavit is hereto attached to form part of this
Information. The crime is committed as follows:
That on or about August 14, 1998, in the City of
Davao, Philippines, and within the jurisdiction of
this Honorable Court, the above-mentioned
accused, motivated by lewd design, willfully,
unlawfully, and feloniously upon the person of
AAA, by then and there embracing, mashing the
breast, and touching the private part, against her
will.
CONTRARY TO LAW.
Upon arraignment, petitioner pleaded "not
guilty." Trial ensued thereafter.
On May 13, 2003, after trial on the merits, the
RTC rendered a decision finding petitioner guilty
of acts of lasciviousness with the aggravating
circumstance of petitioners taking advantage of
his public position and sentenced him to six (6)
months of arresto mayor, as minimum, to five (5)
years, four (4) months and twenty-one (21) days
of prision correccional, as maximum. The
dispositive portion of the Decision reads:
For the foregoing judgment is hereby rendered,
finding accused P03 Benito Sombilon, GUILTY
beyond reasonable doubt of the crime of Acts of
Lasciviousness, under Article 366 of the Revised
Penal Code, and is hereby sentenced to suffer
imprisonment under the Indeterminate Sentence
Law from Six (6) months of Arresto Mayor, as
minimum to Five (5) years, Four (4) months and
Twenty-one (21) days of Prision Correccional, as
maximum and directed to pay private
complainant AAA the following:
a.) by way of moral Damages, the amount of Ten
Thousand Pesos (PhP10,000.00); and

b.) by way of Exemplary Damages, the amount


of ten Thousand Pesos (Php10,000.00).9
From the above decision, petitioner interposed
an appeal to the CA, which was docketed as
CA-G.R. CV No. 40419.
On July 28, 2005, the CA rendered the herein
challenged Decision affirming with modification
the RTCs judgment of conviction. Appreciating
the aggravating circumstance of taking
advantage of public position which was
adequately established during the trial, the CA
increased the maximum penalty imposed
against petitioner to its maximum period of six
years of prision correccional. The dispositive
portion of the Decision reads:
WHEREFORE, the Decision of the Regional
Trial Court, Br. 8, Davao City in Criminal Case
No. 43, 810-99 is hereby AFFIRMED with
MODIFICATION. Appellant P03 Benito
Sombilon, as found guilty beyond reasonable
doubt of the crime of acts of lasciviousness,
defined and penalized under article 336 of the
Revised Penal Code, is hereby sentenced to
suffer the indeterminate penalty of 6 months of
arresto mayor as minimum, to 6 years of prision
correccional, as maximum. Appellant is likewise
ordered to pay the victim, AAA, the amount of
Php10,000.00 as moral damages and another
Php10,000.00 as exemplary damages.
With costs.
SO ORDERED.10
Thus, petitioner filed the instant petition, with the
following allegations:

Petitioner contends that the CA erred in affirming


his conviction for acts of lasciviousness. Even as
he admits having merely touched the victim,
petitioner argues that the act of touching did not
constitute lewdness. At most, he could only be
convicted of unjust vexation. Petitioner likewise
asserts that while the victim was being touched,
the latter tried to cover her body with her arms.
Lastly petitioner posits that the police station
does not favor the perpetration of the crime of
acts of lasciviousness.
Petitioners contention deserves scant
consideration.
The crime of acts of lasciviousness as punished
under Article 336 of the Revised Penal Code
provides:
ART. 336. Acts of lasciviousness.- Any person
who shall commit any act of lasciviousness upon
other persons of either sex, under any of the
circumstances mentioned in the preceding
article, shall be punished by prision correccional.
For an accused to be convicted of acts of
lasciviousness under the foregoing provision,
the prosecution is burdened to prove the
confluence of the following essential elements:
(1) that the offender commits any act of
lasciviousness or lewdness; and (2) that it is
done under any of the following circumstances:
(a) by using force or intimidation; (b) when the
offended woman is deprived of reason or
otherwise unconscious; or (c) when the offended
party is under twelve (12) years of age.12
In the case of Amployo v. People,13 the Court
expounded on the definition of the term lewd,
thus:

I
THE HONORABLE COURT OF APPEALS
ERRED IN AFFIRMING THE TRIAL COURT
THAT THE ACCUSED IS GUILTY OF THE
CRIME CHARGED BEYOND REASONABLE
DOUBT;
II
ASSUMING BUT NOT ADMITTING, THE
HONORABLE COURT OF APPEALS ERRED IN
AFFIRMING THE APPRECIATION OF THE
AGGRAVATING CIRCUMSTANCE OF TAKING
ADVANTAGE OF HIS PUBLIC POSITION FOR
FAILURE TO ALLEGE IN THE INFORMATION;
III
THE HONORABLE COURT OF APPEALS
ERRED IN AFFIRMING THE AWARD OF
DAMAGES.11

The term "lewd" is commonly defined as


something indecent or obscene; it is
characterized by or intended to excite crude
sexual desire. That an accused is entertaining a
lewd or unchaste design is necessarily a mental
process the existence of which can be inferred
by overt acts carrying out such intention, i.e., by
conduct that can only be interpreted as lewd or
lascivious. The presence or absence of lewd
designs is inferred from the nature of the acts
themselves and the environmental
circumstances. What is or what is not lewd
conduct, by its very nature, cannot be
pigeonholed into a precise definition. As early as
U.S. v. Gomez we had already lamented that
It would be somewhat difficult to lay down any
rule specifically establishing just what conduct
makes one amenable to the provisions of article
439 of the Penal Code. What constitutes lewd or
lascivious conduct must be determined from the

circumstances of each case. It may be quite


easy to determine in a particular case that
certain acts are lewd and lascivious, and it may
be extremely difficult in another case to say just
where the line of demarcation lies between such
conduct and the amorous advances of an ardent
lover.
Undoubtedly, petitioner committed acts which fall
within the above described lascivious conduct. It
cannot be viewed as mere unjust vexation as
petitioner would have the Court do. The intention
of petitioner was intended neither to merely
annoy or irritate the victim nor to force her to
confess the theft. He could have easily achieved
that when he electrocuted the latter. Petitioner
intended to gratify his sexual desires.
As found by the RTC and affirmed by the CA,
petitioners acts of kissing the victim, fondling
her breasts and touching her private parts
constitute lascivious conduct intended to quench
his salacious desire. Petitioners lewd intent was
betrayed when he asked AAA, "Dalaga ka na
ba?" as a prelude to his lustful advances on the
victim, and thereafter conveyed to her that "I am
single too." We quote with approval the CAs
ratiocination:
Undeniably, appellant committed lewd acts
against AAA. "Lewd" is defined as obscene,
lustful, indecent, and lecherous. It signifies that
form of immorality which has relation to moral
impurity; or that which is carried on a wanton
manner. The evidence shows that appellant
committed lewd acts against AAA when he
touched her "all over her body" which includes
mashing her breasts, touching her private parts,
and kissing her on the cheek. These acts were
clearly done with lewd designs as appellant
even previously asked AAA, as if it was a
prelude for things to come, "Dalaga ka na ba?"
and thereafter conveyed to her that "he is single
too."14
The fact that the victim tried to cover her body
with her arms does not negate petitioners
lascivious conduct. Petitioner succeeded in
fondling the victims breasts intense enough to
cause multiple slight contusions of bilateral
breast areas.
As aptly observed by the CA, petitioner
employed force and intimidation against AAA:
Moreover, appellant employed force and
intimidation when he committed these acts on
AAA. In fact, as found by the trial court,
appellant pointed a gun at the forehead of AAA
as evidenced by the bruises on her forehead.
Further, the medical Certificate shows that AAA
suffered slight physical injuries which include

"multiple slight contusion of bilateral breast


areas" which supports AAAs claim.15
In People v. Victor,16 the Court held that in cases
of acts of lasciviousness, it is not necessary that
intimidation be irresistible. It being sufficient that
some compulsion equivalent to intimidation
annuls or subdues the free exercise of the will of
the offended party. Here, the victim was locked
inside a windowless room together with her
aggressor who poked a gun at her forehead.
Even a grown man would be paralyzed with fear
if threatened at gunpoint, what more the hapless
victim who was only 15 years old when she was
subjected to such atrocity.
Petitioners assertion that the locus criminis i.e.,
the police station makes it unlikely for him to
commit the crime of acts of lasciviousness is
specious. The presence of other policemen on
duty and of the victims mother outside the room
where the incident took place does not render
commission of the offense impossible. It has
been shown that there was a room in the
precinct which, except for two doors which could
be locked, was totally enclosed.17During the
commission of the acts of lasciviousness,
petitioner and AAA were the only persons inside
the room. Lust, as we have often held, is no
respecter of either place or time.18
As to the appreciation of the aggravating
circumstance of taking advantage of public
position, petitioner points out that said
circumstance was not alleged in the information.
The Solicitor General shares the same view.
Sections 8 and 9 of Rule 110 of the Revised
Rules of Criminal Procedure, which took effect
on December 1, 2000, provide:
Sec. 8.Designation of the offense. The
complaint or information shall state the
designation of the offense given by the statute,
aver the acts or omissions constituting the
offense, and specify its qualifying and
aggravating circumstances. If there is no
designation of the offense, reference shall be
made to the section or subsection of the statute
punishing it.
Sec. 9. Cause of the accusations. The acts or
omissions complained of as constituting the
offense and the qualifying and aggravating
circumstances must be stated in ordinary and
concise language and not necessarily in the
language used in the statute but in terms
sufficient to enable a person of common
understanding to know what offense is being
charged as well as its qualifying and aggravating
circumstances and for the court to pronounce
judgment.

Clearly, it is now a requirement that the


aggravating as well as the qualifying
circumstances be expressly and specifically
alleged in the complaint or information.
Otherwise, they cannot be considered by the
trial court in its judgment, even, if they are
subsequently proved during trial.19 A reading of
the Information shows that there was no
allegation of any aggravating circumstance.

the commission of the offense in this case, the


penalty should be applied in its medium period,
the duration of which is two (2) years, four (4)
months and one (1) day to four (4) years and
two months, as maximum. The minimum shall
be within the range of the penalty next lower in
degree which is arresto mayor, with the duration
of one (1) month and one (1) day to six (6)
months.1avvphi1

In People v. Buayaban,20 the crime was


committed and the Information was filed in 1990.
Still, the Court gave the 2000 Rules of Criminal
Procedure retroactive application since it
benefited the accused and disregarded the
generic aggravating circumstance of band
because it was not alleged in the Information.
The Court explained, viz:

Applying the ISL, the proper penalty would be


imprisonment of six (6) months of arresto mayor
as minimum to four (4) years and two (2) months
of prision correccional as maximum.22

Section 8 simply provides that the information or


complaint must state the designation of the
offense given by the statute and specify its
qualifying and generic aggravating
circumstances. With regard to Section 9, we
held in People vs. Nerio Suela that the use of
the word "must" in said Section 9 indicates that
the requirement is mandatory and therefore, the
failure to comply with sec. 9, Rule 110, means
that generic aggravating circumstances,
although proven at the trial, cannot be
appreciated against the accused if such
circumstances are not stated in the information.
In this case, we cannot properly appreciate the
ordinary aggravating circumstance of band in
the commission of the crime since there was no
allegation in the information that "more than
three armed malefactors acted together in the
commission of the crime.
Here, the crime was committed in 1998, the
generic aggravating circumstance of taking
advantage of public position was not alleged in
the information. As such, it cannot be
appreciated as an aggravating circumstance.
Consequently, the penalty imposed must be
modified.
Section 1 of the Indeterminate Sentence
Law21 (ISL) states that (i)n imposing a prison
sentence for an offense punished by the
Revised Penal Code, or its amendments, the
court shall sentence the accused to an
indeterminate sentence the maximum term of
which shall be that which, in view of the
attending circumstances, could be properly
imposed under the rules of the said Code, and
the minimum which shall be within the range of
the penalty next lower to that prescribed by the
Code for the offense. Under Article 366 of the
Revised Penal Code, the penalty for acts of
lasciviousness is prision correccional. Since no
aggravating or mitigating circumstance attended

As to the damages awarded, Article 2230 of the


Civil Code provides that in criminal offenses,
exemplary damages as part of the civil liability
may be imposed when the crime was committed
with one or more aggravating circumstances.
Since the generic aggravating circumstance of
taking advantage of public position was not
alleged in the Information against petitioner it
cannot be appreciated in the imposition of the
penalty. But as regards the award of exemplary
damages, in the case of People v. Catubig, 23 the
Court declined retroactive application of the
2000 Rules of Criminal Procedure, to wit:
The retroactive application of procedural rules,
nevertheless, cannot adversely affect the rights
of the private offended party that have become
vested prior to the effectivity of said rules. Thus,
in the case at bar, although relationship has not
been alleged in the information, the offense
having been committed, however, prior to the
effectivity of the new rules, the civil liability
already incurred by appellant remains unaffected
thereby.
Thus, in accordance with the foregoing
pronouncement, the Court affirms the CAs
award of exemplary damages to the victim in the
amount of P10,000.00.
With regard to the awarded moral damages in
the amount of P10,000.00, the same should be
increased toP30,000.00. In People v.
Solmoro24 we declared that upon a finding of
guilt of the accused for acts of lasciviousness,
the amount of P30,000.00 as moral damages
may be further awarded to the victim in the
same way that moral damages are awarded to
victims of rape even without need of proof
because it is assumed that they suffered moral
injury. Considering the immeasurable pain and
anguish that the victim had to suffer in the hands
of the petitioner; the trauma that she had to
endure even after the incident; and the sexual
perversity of petitioner, who is a police officer,
the award of moral damages in the amount
of P30,000.00 is proper.

WHEREFORE, the petition is hereby denied and


the Decision dated July 28, 2005 of the Court of
Appeals finding petitioner P03 Benito Sombilon
GUILTY of the crime of acts of lasciviousness
under Article 336 of the Revised Penal Code is
AFFIRMED with Modification that he is
sentenced to suffer an indeterminate penalty of
imprisonment of six (6) months of arresto mayor
as minimum to four (4) years and two (2) months
of prision correccional as maximum, and to pay
the victim the amount of P30,000 as moral
damages and P10,000.00 as exemplary
damages.
SO ORDERED.

and intimidation, to wit: by then and there,


willfully, unlawfully and feloniously drag said
AAA, his own daughter, 12 years of age, minor,
inside a bedroom and undressed her and put
himself on top of her and thereafter have carnal
knowledge with said AAA against her will and
without her consent.
CRIMINAL CASE NO. Q-99-87054
That in or about the month of May, 1998, in XXX,
Philippines, the said accused by means of force
and intimidation, to wit: by then and there,
willfully, unlawfully and feloniously drag said
AAA, his own daughter, 12 years of age, minor,
inside a bedroom and undressed her and put
himself on top of her and thereafter have carnal
knowledge with said AAA against her will and
without her consent.
CRIMINAL CASE NO. Q-99-87055

Republic of the Philippines


SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 177150

November 22, 2007

PEOPLE OF THE PHILIPPINES, plaintiffappellee,


vs.
WILLIAM CHING, accused-appellant.
DECISION
CHICO-NAZARIO, J.:
For review is the Decision of the Court of
Appeals in CA-G.R. CR-HC No. 01798 dated 3
August 2006,1 affirming with modifications the
Decision of the Quezon City Regional Trial Court
(RTC), Branch 107, in Criminal Cases No. Q-9987053, Q-99-87054, and Q-99-87055 dated 4
August 2004,2 convicting accused-appellant
William Ching of three counts of rape committed
against his minor daughter, AAA.3
The factual antecedents are as follows:
On 1 October 1999, three separate
informations4 were filed with the RTC against
appellant for qualified rape allegedly committed
as follows:
CRIMINAL CASE NO. Q-99-87053
That in or about the month of May, 1998, in XXX,
Philippines, the said accused by means of force

That in or about the year of 1996, in XXX,


Philippines, the said accused by means of force
and intimidation, to wit: by then and there,
willfully, unlawfully and feloniously drag said
AAA, his own daughter, 12 years of age, minor,
inside a bedroom and undressed her and put
himself on top of her and thereafter have carnal
knowledge with said AAA against her will and
without her consent.
Subsequently, these informations were
consolidated for joint trial. When arraigned on 6
March 2000, appellant, with the assistance of
counsel de oficio, pleaded "Not Guilty" to each
of the charges in the informations.5Thereafter,
trial on the merits ensued.
The prosecution presented as witnesses AAA,
AAAs mother, BBB, PO3 Jesus Deduque (PO3
Deduque), PO3 Melba Baldeswis (PO3
Baldeswis), and Dr. Angel Cordero (Dr.
Cordero). Their testimonies, taken together,
present the following narrative:
AAA is the third child in a brood of eight children
born to appellant and BBB. She was 12 years of
age in the year 1996 when the alleged incidents
of rape took place.
Sometime in the year 1996, at around 5:00 in
the afternoon, she and her younger siblings,
namely, CCC, DDD, EEE and FFF, were left at
their house with appellant, while BBB was at the
market buying food. Appellant told CCC, DDD
and EEE to play outside the house. AAA was
then cooking rice when appellant instructed her
to go inside the bedroom.
When AAA was already inside the room,
appellant ordered her to lie down on the
cemented floor. When she did, appellant placed
himself on top of her and removed her shorts
and panty. She screamed "Tulungan po ninyo
ako!" and resisted, but to no avail because
appellant pressed his feet against hers.
Appellant then removed his shorts and brief and
thereafter inserted his penis into her vagina.
AAA felt pain but she could not move because

appellant held both her hands above her head.


Appellant told her, "Wag kang maingay,
papatayin kita."
After satisfying his lust, appellant stood up and
left the bedroom. AAA proceeded to the house of
BBBs kumare, Aling Leony, to forget and
recover from the incident. She did not inform
BBB of the incident because of her fear that
appellant would make good his threats to kill her.
For the second time, one evening of May 1998,
AAA and her younger siblings were sleeping on
the cemented floor inside the bedroom when
appellant entered and lay down beside her.
Appellant pulled her left arm and made her lie in
a straight body position. He removed his shorts
and placed himself on top of her. He then pulled
down her shorts and panty, and again inserted
his penis into her vagina. Despite the pain, AAA
did not shout because appellant threatened to
kill her. Subsequently, appellant stood up and
reiterated his threat to kill her if she would tell
anyone what happened.
For the third time, in the evening of May 1998,
while AAA and her younger siblings were
sleeping inside the bedroom, appellant lay down
beside her. Appellant pulled her left arm and
made her face him. Appellant placed himself on
top of her and removed her shorts and panty.
Thereafter, he had carnal knowledge of her. She
did not shout out of fear. Afterwards, appellant
stood up and warned her not to tell anyone of
the incident or he would kill her.
From June 1998 to February 1999, appellant
was arrested and detained for drug pushing. In
the meantime, AAA was employed as a house
helper. After his release from jail, appellant
would go to see AAA at her employers house
demanding money and creating a scene when
AAA refused to give him any. Fed up, AAA
sneaked out of her employers house and
proceeded to the nearby barangay hall to report,
not just the commotion caused by appellant in
front of her employers house when she did not
give him money, but also that appellant
previously raped her several times. Hence,
appellant was arrested by PO3
Deduque and PO3 Baldeswis, and charged
with rape.6
BBB was not able to accompany AAA in filing
the instant case against appellant because she
was also detained for drug pushing and was
released only on 5 December 1999. Upon her
release from jail, she immediately sought AAA
and, when informed of the incident, she fully
supported AAA in the instant case against
appellant.7
Dr. James Belgira (Dr. Belgira), a physician of
the Philippine National Police (PNP) Crime
Laboratory, personally examined AAA. His
findings, as stated in the medico-legal report,
are as follows:
FINDINGS:

GENERAL AND EXTRAGENITAL:


Fairly developed, fairly nourished and coherent
female subject. Breasts are conical with dark
brown areola and nipple from which no
secretions could be pressed out. Abdomen is flat
and soft.
GENITAL:
There is scanty growth of pubic hair. Labia
majora are full, convex and slightly gaping with
an area of erythematous at the middle of the left
labium and the dark brown labia minora
presenting in between. On separating the same
disclosed an elastic, fleshy-type hymen with
shallow healed lacerations at 5 and 9 oclock
position. External vaginal orifice offers moderate
resistance to the introduction of the examining
index finger. Vaginal canal is narrow with
prominent rugosities. Cervix is firm and closed.
CONCLUSION: Subject is in non-virgin state
physically.
There are no external signs of application of any
form of physical trauma.8
However, in view of the unavailability of Dr.
Belgira to personally appear before the trial
court, it was Dr. Cordero, another physician at
the PNP crime laboratory, who appeared in court
for the purpose of producing and interpreting the
medical records of AAA and confirming that the
same was conducted in accordance with the
protocol of the PNP.9
The prosecution also presented documentary
evidence to bolster its version of the events, to
wit: (1) Sinumpaang Salaysay of AAA10; (2)
marriage contract of BBB and appellant11; (3) the
baptismal certificate of AAA with her date of birth
entered as 12 August 198312; (4) letter referral
of Police Station 4, Novaliches, Quezon City, of
the instant case to the Office of the City
Prosecutor13; (5) joint sworn affidavit of the
arresting officers14; (6) the medico-legal report
with regard to AAA issued and signed by Dr.
Belgira as the medico-legal officer of the PNP
Crime Laboratory15; (7) the routing slip from the
PNP Crime Laboratory16; (8) request for
laboratory examination forwarded by Police
Station 4 to the PNP Crime Laboratory17; (9) the
initial laboratory report issued by the PNP Crime
Laboratory18; (10) the sexual crime narrative
report based on the narration of AAA19; and (11)
manifestation of consent executed by AAA as
accompanied by PO3 Baldeswis.20
Appellant singly testified in his own behalf and
denied the foregoing accusations. He admitted
that AAA is his daughter and third child with his
wife, BBB. From 1992 to 1996, he worked as a
driver, but he was detained for selling drugs in
1997. He was released on 29 March 1998, but
he was again imprisoned for robbery and drug
cases. While he was in jail, he learned that BBB
asked AAA to find a job and that BBB was
subsequently detained for drugs. Upon his
release from jail in February 1999, appellant

immediately went home and found his eldest


son taking care of his other children. On several
occasions, he would see AAA at her employers
house to ask for money. This purportedly irked
AAA and the latters employer. It was AAAs
employer and BBB who coached AAA to file
rape charges against appellant.21
On 27 July 2004, the RTC rendered a Decision
convicting appellant of three counts of rape. In
Criminal Case No. Q-99-87055, the Court
imposed on appellant the penalty of reclusion
perpetua. In Criminal Cases No. Q-9987053 and Q-99-87054, appellant was
sentenced to death. The dispositive portion of
the decision reads:
WHEREFORE, IN VIEW OF THE FOREGOING,
this Court finds that the prosecution established
the guilt of the accused beyond reasonable
doubt and is therefore found guilty of the
offenses charged. The accused is hereby
sentenced:
1. In Crim. Case No. Q-99-87055:
a. To suffer the penalty of reclusion perpetua;
b. To indemnify the private complainant AAA the
amount of P50,000.00 by way of civil indemnity;
c. To pay the private complainant AAA the
amount of P50,000.00 for exemplary damages;
d. To pay the private complainant AAA the
amount of P50,000.00 for moral damages;
e. To pay the costs of the suit;
2. In Crim. Case No. Q-99-87053:
a. To suffer the penalty of DEATH;
b. To indemnify the private complainant AAA the
amount of P75,000.00;
c. To pay the private complainant AAA the
amount of P75,000.00 for exemplary damages;
d. To pay the private complainant AAA the
amount of P75,000.00 for moral damages;
f. To pay the costs of the suit; and
3. In Crim. Case No. Q-99-87054:
a. To suffer the penalty of DEATH;
b. To indemnify the private complainant AAA the
amount of P75,000.00;
c. To pay the private complainant AAA the
amount of P75,000.00 for exemplary damages;
d. To pay the private complainant AAA the
amount of P75,000.00 for moral damages; and
e. To pay the costs of the suit.

In the event, however, that the accused shall be


pardoned by the President, he is, however,
forever barred from showing himself to the
private complainant. He must not approach the
private complainant; he shall never contact the
private complainant directly or indirectly either
by letters, telephone, cellphone or send text
messages or with the use of any electrical
devices.22
In view of the penalty imposed upon appellant,
the RTC elevated the records of the case
directly to the Court of Appeals for review
pursuant to our ruling in People v. Mateo.23
On 3 August 2006, the Court of Appeals
promulgated its Decision, affirming with
modifications the Decision of the RTC, thus:
WHEREFORE, premises considered, the
Decision dated 27 July 2004, promulgated on 04
August 2004, of the Regional Trial Court of
Quezon City, Branch 107 convicting accusedappellant William Ching of three (3) counts of
qualified rape in Crim. Cases Nos. Q-99-87053,
Q-99-87054, Q-99-87055 is AFFIRMED with the
MODIFICATION that the sentence imposed on
appellant is reduced to reclusion perpetua for
each count of qualified rape, in lieu of death
penalty, by reason of Republic Act No. 9346, and
that pursuant to said law, accused-appellant
shall not be eligible for parole under Act No.
4103, otherwise known as the Indeterminate
Sentence Law, as amended. Further, accusedappellant is ordered to pay the victim AAA the
amounts of P75,000.00 for civil indemnity,
another P75,000.00 for moral damages
and P25,000.00 for exemplary damages for
each count of qualified rape.24
Before us, appellant assigns a single error, to
wit:
THE TRIAL COURT ERRED IN NOT
CONSIDERING THE INFORMATIONS
CHARGING THE ACCUSED-APPELLANT OF
THE CRIME OF RAPE INSUFFICIENT TO
SUPPORT A JUDGMENT OF CONVICTION
FOR FAILURE OF THE PROSECUTION TO
STATE WITH PARTICULARITY THE
APPROXIMATE DATE OF THE COMMISSION
OF THE ALLEGED RAPES.25
Appellant maintains that the approximate time of
the commission of the offense must be stated in
the complaint or information; that the
informations in the instant case do not state the
approximate time of the alleged rapes; that the
informations are fatally defective; that the date
and time of the alleged rapes are so indefinite
thereby depriving appellant of the opportunity to
prepare for his defense; and that appellants
constitutional right to be informed of the nature
and cause of accusation against him was
violated.26
The contentions are devoid of merit.
An information is an accusation in writing
charging a person with an offense, subscribed

by the prosecutor and filed with the court.27 To


be considered as valid and sufficient, an
information must state the name of the accused;
the designation of the offense given by the
statute; the acts or omissions complained of as
constituting the offense; the name of the
offended party; the approximate date of the
commission of the offense; and the place where
the offense was committed.28 The purpose of the
requirement for the informations validity and
sufficiency is to enable the accused to suitably
prepare for his defense since he is presumed to
have no independent knowledge of the facts that
constitute the offense.29
With respect to the date of the commission of
the offense, Section 11, Rule 110 of the Revised
Rules of Criminal Procedure specifically
provides that it is not necessary to state in the
information the precise date the offense was
committed except when it is a material
ingredient of the offense, and that the offense
may be alleged to have been committed on a
date as near as possible to the actual date of its
commission.
In rape cases, failure to specify the exact dates
or times when the rapes occurred does not ipso
facto make the information defective on its face.
The reason is obvious. The date or time of the
commission of rape is not a material ingredient
of the said crime because the gravamen of rape
is carnal knowledge of a woman through force
and intimidation. The precise time when the rape
took place has no substantial bearing on its
commission. As such, the date or time need not
be stated with absolute accuracy. It is sufficient
that the complaint or information states that the
crime has been committed at any time as near
as possible to the date of its actual
commission.30 In sustaining the view that the
exact date of commission of the rape is
immaterial, we held inPeople v. Purazo31 that:
We have ruled, time and again that the date is
not an essential element of the crime of rape, for
the gravamen of the offense is carnal knowledge
of a woman. As such, the time or place of
commission in rape cases need not be
accurately stated. As early as 1908, we already
held that where the time or place or any other
fact alleged is not an essential element of the
crime charged, conviction may be had on proof
of the commission of the crime, even if it
appears that the crime was not committed at the
precise time or place alleged, or if the proof fails
to sustain the existence of some immaterial fact
set out in the complaint, provided it appears that
the specific crime charged was in fact committed
prior to the date of the filing of the complaint or
information within the period of the statute of
limitations and at a place within the jurisdiction
of the court.
This Court has upheld complaints and
informations in prosecutions for rape which
merely alleged the month and year of its
commission.32 In People v. Magbanua,33 we
sustained the validity of the information for rape
which merely alleged the year of its commission,
thus:

Although the information did not state with


particularity the dates when the sexual attacks
took place, we believe that the allegations
therein that the acts were committed "on (sic)
the year 1991 and the days thereafter"
substantially apprised appellant of the crime he
was charged with since all the essential
elements of the crime of rape were stated in the
information. As such, appellant cannot complain
that he was deprived of the right to be informed
of the nature of the case filed against him. An
information can withstand the test of judicial
scrutiny as long as it distinctly states the
statutory designation of the offense and the acts
or omissions constitutive thereof.
There is no cogent reason to deviate from these
precedents especially so that all the essential
elements of rape were also stated in the
informations. Hence, the allegations in the
informations which stated that the three
incidents of rape were committed in the year
1996 and in May 1998 are sufficient to affirm the
conviction of appellant in the instant case.
Since the sole issue raised by appellant was
resolved by this Court in favor of the validity of
the informations filed against him, then the
subsequent trial court proceedings and the
resulting judgment of conviction against
appellant should likewise be affirmed, there
being no other questions raised by appellant as
to them. We further uphold the penalty imposed
on appellant by the Court of Appeals.
Article 335 of the Revised Penal Code, as
amended by Republic Act No. 7659, was the law
applicable in the year1996, the time the first
rape was committed. On the other hand,
Republic Act No. 8353, otherwise known as the
Anti-Rape Law of 1997, was the law pertinent to
the two rapes committed in May 1998. Both laws
state that the death penalty shall be imposed if
the rape victim is a minor and the offender is a
parent. The qualifying circumstances of minority
of the victim and the latters relationship with the
offender must be alleged in the complaint or
information and proved during the trial to warrant
the imposition of the death penalty.34
The informations in Criminal Cases No. Q-9987053, Q-99-87054 and Q-99-87055 specifically
alleged that AAA was a minor at the time she
was raped and that the offender, herein
appellant, is her father. The prosecution also
proved during the trial the presence of the
qualifying circumstances of minority and
relationship through documentary and
testimonial evidence.
As a rule, the best evidence to prove the age of
the offended party for the purpose of
appreciating the qualifying circumstance of
minority is an original or certified true copy of the
certificate of live birth of such party. However, in
the absence of a certificate of live birth, similar
authentic documents, such as a baptismal
certificate, which show the date of birth of the
victim would suffice to prove age.35

In the case at bar, the prosecution was not able


to present the birth certificate of AAA because,
according to BBB, the birth of AAA was not
registered with the appropriate government
agencies. BBB testified during the trial that at
the time she gave birth to AAA through the
assistance of a comadrona, the latter told her
that a neighbor known only
as comadre volunteered and suggested to
register the birth of AAA together with the
registration of birth ofcomadres child; that to the
best of her knowledge, comadre registered the
birth of AAA; that when AAA was about to enroll
in school, she went to the Quezon City Hall to
secure a birth certificate of AAA but she was told
therein that there are no records of birth of AAA;
that she talked with comadre because the latter
took all the necessary papers relevant to the
birth of AAA; and that comadre told her that such
papers were lost.36
Nonetheless, BBB submitted AAAs baptismal
certificate dated 23 August 2001 issued by Rev.
Fr. Romeo M. Castro, SVD, Parish Priest of
Sacred Heart Parish, Kamuning, Quezon
City.37 The baptismal certificate states that AAA
was born on 12 August 1983. This implies that
AAA was about 13 years old at the time she was
raped by appellant in 1996, and that she was
barely 14 years and 9 months old when she was
twice raped by appellant in May 1998. The
baptismal certificate also states that appellant is
the father of AAA.
Further, the prosecution adduced the marriage
contract of appellant and BBB showing that they
were married on 29 February 1980.38 Appellant
admitted that AAA is his daughter and BBB is his
wife.39
Given the foregoing considerations, the penalty
of death for each of the three counts of rape
committed against AAA is proper.
However, in view of the effectivity of Republic
Act No. 9346 prohibiting the imposition of the
death penalty, the penalty to be meted to
appellant shall be reclusion perpetua in
accordance with Section 2 thereof which reads:
SECTION 2. In lieu of the death penalty, the
following shall be imposed:
a) the penalty of reclusion perpetua, when the
law violated makes use of the nomenclature of
the penalties of the Revised Penal Code; or
b) the penalty of life imprisonment, when the law
violated does not make use of the nomenclature
of the penalties of the Revised Penal Code.
Notwithstanding the reduction of the penalty
imposed on appellant, he is not eligible for
parole following Section 3 of said law which
provides:
SECTION 3. Persons convicted of offenses
punished with reclusion perpetua, or whose
sentences will be reduced to reclusion perpetua,
by reason of this Act, shall not be eligible for

parole under Act No. 4103, otherwise known as


the Indeterminate Sentence Law, as amended.
We also sustain the award of damages made by
the Court of Appeals in favor of AAA for each of
the three rapes. The award of civil indemnity in
the amount of P75,000.00 is the correct amount
to be awarded if the crime is qualified by
circumstances that warrant the imposition of the
death penalty. With respect to moral damages,
the amount of P75,000.00 is fitting even though
it was not pleaded or its basis established by
evidence, pursuant to prevailing
jurisprudence.40 Further, the award of exemplary
damages in the amount of P25,000.00 is
authorized due to the presence of the qualifying
circumstances of minority and relationship.41
WHEREFORE, after due deliberation, the
Decision of the Court of Appeals in CA-G.R.
C.R.-H.C. No. 01798 dated 3 August 2006 is
hereby AFFIRMED in toto. No costs.
SO ORDERED.
Footnotes
3

Pursuant to Republic Act No. 9262, otherwise


known as the "Anti-Violence Against Women and
Their Children Act of 2004" and its implementing
rules, the real name of the victim, together with
the real names of her immediate family
members, is withheld and fictitious initials
instead are used to represent her, both to
protect her privacy. (People v. Cabalquinto, G.R.
No. 167693, 19 September 2006, 502 SCRA
419, 421-426.)

That during the period January to December


1998, in xxx, Cavite, Philippines, and within the
jurisdiction of this Honorable Court, abovenamed accused, with lewd designs and by
taking advantage of his moral ascendancy over
his own daughter, AAA, then thirteen (13) years
old and by means of force, threat and
intimidation, did, then and there, wilfully,
unlawfully and feloniously lie and have sexual
intercourse with AAA, a minor, against her will
and consent.
CONTRARY TO LAW.2
CRIMINAL CASE NO. 7199-99
That sometime in April 1999, in xxx, Cavite,
Philippines, and within the jurisdiction of this
Honorable Court, above-named accused, with
lewd designs and by taking advantage of his
moral ascendancy over his own daughter, AAA,
[then] fourteen (14) years old and by means of
force, threat and intimidation, did, then and
there, wilfully, unlawfully and feloniously lie and
have sexual intercourse with AAA, a minor,
against her will and consent.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. 174656
May 11, 2007
[Formerly G.R. Nos. 155271-73]
PEOPLE OF THE PHILIPPINES, Appellee,
vs.
ZALDY IBAEZ y FRANCISCO, Appellant.
DECISION
QUISUMBING, J.:
Appellant Zaldy Ibaez y Francisco was charged
with three counts of Rape under three
informations, docketed as Criminal Cases Nos.
7197-99, 7198-99 and 7199-99, before the
Regional Trial Court (RTC), xxx, Cavite, Branch
21. The informations read:
CRIMINAL CASE NO. 7197-99
That sometime in June 1997, in xxx, Cavite,
Philippines, and within the jurisdiction of this
Honorable Court, above-named accused, with
lewd designs and by taking advantage of his
moral ascendancy over his own daughter, AAA,
then twelve (12) years old and by means of
force, threat and intimidation, did, then and
there, wilfully, unlawfully and feloniously lie and
have sexual intercourse with AAA, a minor,
against her will and consent.
CONTRARY TO LAW.1
CRIMINAL CASE NO. 7198-99

CONTRARY TO LAW.3
When arraigned, appellant entered pleas of not
guilty. Whereupon, trial on the merits ensued.
On the first charge of rape, AAA testified that
she was in their home at xxx, Cavite in June
1997.1awphi1.nt Her mother was in Isabela at
the time. Her youngest sibling, BBB, and she
were sleeping inside her parents room when her
father carried BBB and placed BBB on the floor.
He told her to be quiet as he undressed her,
kissed her lips, her breasts, then inserted his
penis in her vagina. He was on top of her for
around 10 minutes. She kept still because she
was afraid of him, as she had always been
because he was a drug dependent. Though he
did not threaten her, she told no one of the
incident.4
On the second charge of rape, AAA testified that
appellant raped her eight times from January to
December 1998 in their home and she did not
tell her mother because she was afraid of
appellant.5
AAA testified that the third rape happened
sometime in the morning of April 1999 in their
house while her mother was at work. Appellant
called her to come in her parents room. When
she refused, he came out, took her by the arms
and dragged her into the room. Inside, he
undressed her, kissed her body and raped her.
After the incident, she told a cousin what
happened and the latter brought her to the
National Bureau of Investigation (NBI) where her
complaint-affidavit was executed.6
The NBIs medical examination in Living Case
No. MG-99-477 revealed that AAAs hymen had
an old-healed laceration at the four oclock
position and that the hymenal orifice admitted a
tube 2.5 cm. in diameter.7

Appellant denied raping his daughter. As alibi,


he claimed that he was often away from home
and usually returned only four days after
because he was hooked on gambling and drugs.
He would usually return home in the morning
after his wife had gone to work to avoid quarrels.
By then, AAA would already be in school. He
admitted being in a rehabilitation center for
sometime, but continued to take drugs upon his
release. He also admitted that he would beat
and threaten his wife if she did not give him
money for drugs. He testified further that in
January 1999, he left the house, stayed in Pasig
and returned home only to steal his wifes car.
His wife threatened to have him arrested if he
did not return the car. He asked his cousin to
return it minus the stereo. When he returned
home, his family had gone and he started to sell
their things to buy shabu.8
After trial, the lower court found appellant guilty
beyond reasonable doubt of the crime of
qualified rape in Criminal Cases Nos. 7197-99
and 7199-99. Appellant was acquitted in
Criminal Case No. 7198-99. The dispositive
portion of the Decision9 dated July 17, 2002
reads:
WHEREFORE, finding the accused guilty
beyond reasonable doubt of the felony of rape
as charged in the informations in criminal cases
nos. 7197-99 and 7199-99, said accused is
hereby sentenced to die by lethal injection and
to pay the private complainant the amount of
P50,000.00 as indemnity, another sum of
P50,000.00 as moral damages, P25,000.00 as
exemplary damages and the cost of this suit.
The accused however is hereby acquitted of the
felony of rape as charged in the information in
criminal case no. 7198-99.
SO ORDERED.10
Hence, the instant resort to automatic review of
appellants conviction.1awphi1.nt
Following People v. Mateo,11 the case was
transferred and referred to the Court of Appeals.
Upon review, the Court of Appeals rendered its
Decision12 dated May 31, 2006, affirming with
modification the decision of the lower court.
The fallo of the decision reads:
WHEREFORE, appeal is
hereby DISMISSED and the assailed July 17,
2002 Decision of the Regional Trial Court of xxx,
Cavite, Branch 21, is hereby AFFIRMED with
the MODIFICATION that accused-appellant
Zaldy Ibaez is sentenced to DEATH for each
conviction in Criminal Cases Nos. 7197-99 [and]
7199-99 and accused-appellant Zaldy Ibaez is
hereby ORDERED to pay private complainant
AAA P150,000.00 as civil indemnity and
P100,000.00 as moral damages.
Pursuant to Section 13 (a), Rule 124 of the 2000
Rules of Criminal Procedure as amended by
A.M. No. 00-5-03-SC dated September 28,
2004, which became effective on October 15,

2004, the Court of Appeals, after rendering


judgment, hereby refrains from making an entry
of judgment and forthwith certifies the case and
elevates the entire record of this case to the
Supreme Court for review.
SO ORDERED.13
Before us, appellant raises this issue for our
resolution:
THE TRIAL COURT GRAVELY ERRED IN NOT
CONSIDERING THE INFORMATIONS IN
CRIMINAL CASES NOS. 7197-99 AND 7199-99
INSUFFICIENT TO SUPPORT A JUDGMENT
OF CONVICTION FOR FAILURE OF THE
PROSECUTION TO STATE THE PRECISE
DATES OF THE COMMISSION OF THE
ALLEGED RAPES, IT BEING AN ESSENTIAL
ELEMENT OF THE CRIME CHARGED.14
Simply stated, should the precise dates of the
commission of the rape be alleged in the
information?
In his brief, appellant contends that he should
have been acquitted in Criminal Cases Nos.
7197-99 and 7199-99. He avers that the
informations are not explicit and certain as to the
dates of the rape. He argues that such
uncertainties run afoul of the constitutionally
protected right of the accused to be informed of
the nature and cause of the accusation against
him.
On the other hand, the Office of the Solicitor
General (OSG) submits that the two criminal
informations filed against appellant are sufficient
to inform appellant of the accusations against
him. The OSG contends that Section 6, Rule
11015 of the Rules of Court merely requires that
the information state "the approximate time of
the commission of the offense." Further, Section
1116 of the same rule provides that the precise
date of the commission of the offense needs to
be alleged in the information only when "it is a
material ingredient of the offense."
After considering the submissions of the parties,
we find appellants contention devoid of merit.
An information is valid as long as it distinctly
states the elements of the offense and the acts
or omissions constitutive thereof. The exact date
of the commission of a crime is not an essential
element of the crime charged. Thus, in a
prosecution for rape, the material fact or
circumstance to be considered is the occurrence
of the rape, not the time of its commission.17 The
gravamen of the offense is carnal knowledge of
a woman. The precise time of the crime has no
substantial bearing on its commission.
Therefore, it is not essential that it be alleged in
the information with ultimate precision.18
Also, it cannot be seriously asserted that
appellant was deprived of his constitutional right
to be informed of the nature and cause of the
accusation against him when the prosecution
failed to state the exact date of the commission

of the offense. This Court has previously upheld


complaints and informations in prosecutions for
rape which merely alleged that a rape has been
committed "sometime in the month of April
1993," for a rape which was committed in 1993;
"on or about May 1998," for a rape committed
sometime in the first week of May 1998; and
"sometime in the month of September 1998," for
a rape committed on an evening in September
1998.19 The allegation in the informations that
the appellant committed the rape "sometime in
June 1997"20 and "sometime in April 1999"21 was
sufficient to inform appellant that he was being
charged of qualified rape committed against his
daughter. The allegation adequately afforded
appellant an opportunity to prepare his defense.
Thus, appellant cannot complain that he was
deprived of his right to be informed of the nature
and cause of the accusation against him.
At any rate, it is now too late for appellant to
question the sufficiency of the criminal
informations regarding the dates of the
commission of the offense. Appellant could have
filed a motion for a bill of particulars before his
arraignment22 or a motion to quash on the
ground that the informations alleged erroneous
dates prior to his entry of plea.23 However, he did
not. Instead, he had himself arraigned and
entered a plea of not guilty to the crime of rape.
Such being the case, appellant has waived his
right to object to the informations on the ground
of an error as to the time of the alleged rape.
Appellant also alleged that AAA filed the rape
cases to have him imprisoned because of his
failure to fulfill his paternal obligations.
We are not persuaded by his allegation. When a
woman, more so if she is a minor, says that she
has been raped, she says in effect all that is
necessary to constitute the commission of the
crime that has been inflicted on her. This
doctrine applies with more vigor when the culprit
is a close relative of the victim, and her father at
that.24Besides, no woman, least of all a minor,
would concoct a story of defloration, allow an
examination of her private parts and subject
herself to public trial or ridicule if she has not, in
truth, been a victim of rape and impelled to seek
justice for the wrong done to her.25
Withal, we are in agreement with the submission
of the Court of Appeals and the OSG that the
RTC erred in the imposition of the appropriate
penalty because it imposed only one penalty of
death for two convictions of rape. The penalty
imposed on the appellant should be modified so
that in each case, the conviction of rape should
separately be penalized by death. However, in
view of the enactment of Republic Act No.
934626 on June 24, 2006 prohibiting the
imposition of the death penalty, the penalty in
each case to be meted on appellant is reclusion
perpetua in accordance with Section 2 thereof
which reads:
SEC. 2. In lieu of the death penalty, the following
shall be imposed:

(a) the penalty of reclusion perpetua, when the


law violated makes use of the nomenclature of
the penalties of the Revised Penal Code; or
(b) the penalty of life imprisonment, when the
law violated does not make use of the
nomenclature of the penalties of the Revised
Penal Code. (Emphasis supplied.)
Further, this Court upholds the Court of Appeals
ruling that the award of damages be modified.
Pursuant to prevailing jurisprudence,27 the civil
indemnity and moral damages to be awarded
are P75,000 and P75,000, respectively, for each
conviction of rape which is qualified by
circumstances warranting the imposition of the
death penalty, and P25,000 as exemplary
damages in light of the presence of the
qualifying circumstances of minority and
relationship. Hence, appellant should pay AAA
P150,000 as civil indemnity, P150,000 as moral
damages and P50,000 as exemplary damages.
WHEREFORE, the Decision dated May 31,
2006 of the Court of Appeals finding appellant
Zaldy Ibaez y Francisco guilty beyond
reasonable doubt of the crime of qualified rape
is AFFIRMED with the following
MODIFICATIONS:
(1) the penalty of death meted out on the
appellant is reduced to RECLUSION
PERPETUA, for each count of rape, without
eligibility for parole as provided under Rep. Act
No. 9346; and
(2) the awards of civil indemnity, moral
damages, and exemplary damages against
appellant are set at P75,000, P75,000, and
P25,000, respectively, for each count of rape, or
a total of P150,000 as civil indemnity, another
P150,000 as moral damages, and P50,000 as
exemplary damages, for the two counts of rape,
consistent with prevailing jurisprudence.
SO ORDERED.
Footnotes
15
SEC. 6. Sufficiency of complaint or
information.-A complaint or information is
sufficient if it states the name of the accused; the
designation of the offense given by the statute;
the acts or omissions complained of as
constituting the offense; the name of the
offended party; the approximate date of the
commission of the offense; and the place where
the offense was committed.
When an offense is committed by more than one
person, all of them shall be included in the
complaint or information.
16
SEC. 11. Date of commission of the offense.It is not necessary to state in the complaint or
information the precise date the offense was
committed except when it is a material
ingredient of the offense. The offense may be
alleged to have been committed on a date as
near as possible to the actual date of its
commission.
22
Rules of Court, Rule 116, Sec. 9.
SEC. 9.Bill of particulars. The accused may,
before arraignment, move for a bill of particulars

to enable him properly to plead and prepare for


trial. The motion shall specify the alleged defects
of the complaint or information and the details
desired.
23
Rules of Court, Rule 117, Sec. 3, par. (e).
SEC. 3. Grounds.- The accused may move to
quash the complaint or information on any of the
following grounds:
xxxx
(e) That it does not conform substantially to the
prescribed form;
xxxx
26
An Act Prohibiting the Imposition of Death
Penalty in the Philippines. Section 1, thereof
reads:
SECTION 1. The imposition of the penalty of
death is hereby prohibited. Accordingly, Republic
Act No.Eight Thousand One Hundred SeventySeven (R. A. No. 8177), otherwise known as the
Act Designating Death by Lethal Injection is
hereby repealed.Republic Act No. Seven
Thousand Six Hundred Fifty-Nine (R. A. No.
7659), otherwise known as the Death Penalty
Law, and all other laws, executive orders and
decrees, insofar as they impose the death
penalty are hereby repealed or amended
accordingly.
Republic of the Philippines
SUPREME COURT
Manila

The incident was repeated on two other


occasions, the last of which was in the morning
and witnessed by her uncle CCC while accusedappellant was on top of her.
CCC reported what he saw to AAAs grandfather
who merely advised her to avoid her father, to
an aunt, as well as to her mother BBB who
refused to believe it.5
AAA later mustered enough courage to narrate
her ordeals to two classmates who reported
them to their teacher, who in turn reported and
brought her to the school principal.6
On September 12, 1996, Dr. Marilyn Salumbides
examined AAA and reduced her findings to
writing as follows:
P.P.E.: Normal Looking External Genitalia
Internal Exam admits tip of finger with difficulty
Hymen intact

EN BANC
G.R. No. 171163

was in bed, pulled down her underwear, placed


himself on top of her, and inserted his penis in
her vagina. She was warned not to report the
incident to anyone; otherwise, something bad
would occur to her.4

July 4, 2007

PEOPLE OF THE PHILIPPINES, Appellee,


vs.
MELITON JALBUENA y TADIOSA, Appellant.
DECISION
CARPIO MORALES, J.:
Accused-appellant Meliton Jalbuena y Tadiosa
was charged with rape of a daughter, a
minor,1 in an Information, docketed as Criminal
Case No. 96-601 before the Lucena City
Regional Trial Court, which reads:
xxxx
That on or about the month of August 1996, at
Barangay Ilayang Nangka, in the Municipality of
Tayabas, Province of Quezon, Philippines[,] and
within the jurisdiction of this Honorable Court,
the above-named accused, with lewd design, by
means of force, threats and intimidation, did
then and there[,] willfully, unlawfully and
feloniously have carnal knowledge of one [AAA],
his own daughter, a minor, 11 years of
age,2 against her will.3
x x x x (Underscoring supplied)
From the evidence for the prosecution, the
following version is culled:
In the morning of August 19, 1996, while her
mother BBB was out of the house, her fatheraccused-appellant approached AAA while she

Vaginal Smear taken for Spermatozoa NONE


SEEN
x x x x7 (Emphasis supplied)
Hence, accused-appellants indictment.
Accused-appellant denied the accusation and
gave his side of the case as follows:
He could not have raped AAA as his job as a
canvasser of plastic wares required him to be
out of the house most of the time, except on
Saturdays, albeit he would return home in the
afternoon or evening.8
Appellants wife BBB corroborated his claim.
Branch 58 of the RTC of Lucena City, however,
found the testimony of AAA "clear, consistent,
direct and without any hesitation when
confronted by the presence of her own
abuser."9 It discredited appellants defense of
alibi, there being no proof that it was physically
impossible for him to be at the place, date and
time of the commission of the offense.
The trial court thus disposed in its Judgment of
September 11, 2003:10
WHEREFORE, accused MELITON JALBUENA
y TADIOSA of Bgy. Ilayang Nangka, Tayabas,
Quezon, is hereby found guilty beyond
reasonable doubt of the crime of statutory rape,
defined and punished under Article 335 of the
Revised Penal Code, as amended by R.A. 7659;
and in the absence of any mitigating
circumstance and with the special aggravating

circumstances of minority and relationship


alleged and duly proven by the prosecution,
Meliton Jalbuena y Tadiosa is hereby sentenced
to suffer the extreme penalty of DEATH.
Further, accused is hereby ordered to pay to the
offended party, [AAA] the amounts
of P75,000.00, as civil indemnity, P50,000.00, as
moral damages, and P25,000.00, as exemplary
damages.
The Jail Warden, Quezon Provincial Jail, Lucena
City, is hereby ordered to immediately deliver the
person of Meliton Jalbuena y Tadiosa to the
National Bilibid Prisons, Muntinlupa City, and to
remain thereat until the penalty imposed upon
him may be served.
The Branch Clerk of Court is hereby directed to
forward the entire records of this case to the
Supreme Court, Manila, for automatic review of
the case pursuant to the provision of Article 47
of the Revised Penal Code, as
amended.11 (Emphasis in the original;
underscoring supplied)
This case was forwarded to this Court for
automatic review in view of the death penalty
imposed. Per People v. Mateo,12 however, this
Court referred the case to the Court of Appeals
by Resolution of July 26, 2005.13
The appellate court, finding that the testimony of
AAA is credible and free from material
inconsistencies and contradictions, affirmed the
Judgment of the trial court by Decision of
November 18, 2005,14 disposing as follows:
WHEREFORE, premises considered, the
appealed judgment dated September 11, 2003
of the Regional Trial Court of Lucena City,
Branch 58 in Criminal Case No. 96-601 finding
MELITON JALBUENA y TADIOSA guilty of
Statutory Rape and sentencing him to suffer the
supreme penalty of DEATH is hereby
AFFIRMED.
In accordance with A.M. No. 00-5-03-SC which
took effect on October 15, 2004, amending
Section 13, Rule 124 of the Revised Rules of
Criminal Procedure, let the entire records of this
case be elevated to the Supreme Court for
review.15 (Emphasis in the original)
Hence, the present review of the case.
By Resolution of February 21, 2006, this Court
required the parties to submit Supplemental
Briefs within 30 days from notice if they so
desire.16 Both parties filed their respective
Manifestations that they are no longer filing any
Supplemental Briefs.17
In his Brief filed before the appellate court,
accused-appellant faulted the trial court (1) for
convicting him despite the failure of the
prosecution to prove his guilt beyond reasonable
doubt and (2) in not considering the information
insufficient to support a judgment of conviction

for failure to state the precise date of the


commission of the rape.18
The second assigned error shall, for obvious
reasons, first be resolved.
Appellant questions as fatally defective the
information for failure to allege the date and time
of the commission of the offense charged, thus
violating his constitutionally protected right to be
informed of the nature and cause of the
accusation against him and depriving him of the
opportunity to prepare for his defense.
Prior to its substantial incorporation in the
Revised Rules of Court in 2000, Section 11,
Rule 110 of the Rules of Court, reads:
Sec. 11. Time of the commission of the
offense. It is not necessary to state in the
complaint or information the precise time at
which the offense was committed except when
the time is a material ingredient of the offense,
but the act may be alleged to have been
committed at any time as near to the actual date
at which offense was committed as the
information or complaint will permit.19 (Emphasis
and underscoring supplied)
In rape, the gravamen of the offense, being the
carnal knowledge of a woman, the date is not an
essential element, hence, the specification of the
exact date or time of its commission is not
important. 20
In statutory rape, like in this case, what matters
most is that the information alleges that the
victim is a minor under twelve years of age and
that the accused had carnal knowledge of her.21
If accused-appellant found the information
defective as it bears only the month and year of
the incident complained of, he should have filed
a Motion for Bill of Particulars, as provided for
under Rule 116,22 before he entered a plea. His
failure to do so amounted to a waiver of the
defect or detail desired in the information.23
Indeed, in the case at bar, the criminal complaint
states that the rape was committed "on or about
the month of August 1996." Such an allegation in
the criminal complaint as to the time of the
offense was committed is sufficient compliance
with the provisions of Section 11, Rule 110 of the
Revised Rules of Criminal Procedure. Besides, if
the appellant was of the belief that the criminal
complaint was defective, he should have filed a
motion for a bill of particulars with the trial court
before his arraignment. The appellant failed to
do so. It was only when the case was brought to
this Court on automatic review that he raised the
question of the supposed insufficiency of the
criminal complaint, which is now too late by any
reckoning.24
At all events, accused-appellant participated in
the trial and never objected to the presentation
of evidence by the prosecution that the rape was
committed "on or about the month of August
1996."

Appellant likewise never objected to the


presentation of evidence by the prosecution to
prove that the offenses were committed "on or
about sometime (sic) 1987, prior and
subsequent thereto." He cannot now pretend
that he was unable to defend himself in view of
the vagueness of the allegation in
the Information as to when the crimes were
committed, as it was shown to the contrary that
he participated in the trial and was even able to
give an alibi in his defense.25 (Italics in the
original)
On the merits, accused-appellant assails the
credibility of AAAs testimony that she was raped
three times, in light of the finding of Dr.
Salumbides that her hymen was intact.
And accused-appellant questions the
prosecutions failure to present as witness AAAs
uncle CCC who allegedly saw him on top of
AAA, which failure amounts to, so he claims,
willful suppression of evidence.
In rape cases, the credibility of the victim is
almost always the single most important
issue.26 If the testimony of the victim passes the
test of credibility, the accused may be convicted
solely on that basis.27 Significantly, the trial court,
passing on AAAs credibility, noted:
The credibility of the testimony of the offended
party is put to a stringent test in order that it
could be said as credible to sustain a conviction.
The Court finds [AAAs] testimony to have
passed said test. Her testimony given in open
court is clear, consistent, direct and without any
hesitation when confronted by the presence of
her own abuser.
It is noted that [AAA] had to tell her story several
times to her two classmates, to the teacher,
the principal, the police, the doctor, the
Municipal Trial Court Judge who conducted the
preliminary investigation, to the prosecutor, to
the social worker and to this Court, in the
presence of the public and her father. Her
testimony is one and the same her father
sexually abused her not once, but thrice, and
that every time she was subjected to this
maltreatment, her mother was out of their home,
her father would pull down her panty, laid on top
of her, placed his sexual organ into her own
private part and made push and pull, or rubbing
motions (binubundol-bundol o ikinikiskis).
Worse, she was always warned not to tell
anyone about the incidents or her father would
kill her.28(Underscoring supplied)
Apropos is this Courts taking stock of the fact
that when one accuses a close relative of having
raped her, as in this case where AAA accused
her very own father,29 her testimony is entitled to
greater weight.
x x x [A] daughter would not accuse her own
father of a serious offense like rape, had she
really not been aggrieved. Her testimony against
him is entitled to greater weight, since reverence
and respect for elders is too deeply ingrained in
Filipino children and is even recognized by law.

x x x That she would accuse her own father of


this heinous crime had she not been aggrieved
would be absurd.30 (Underscoring supplied)
Accused-appellants claim that AAA charged him
with rape because he would scold her very often
does not impress. People v. Bidoc instructs:
x x x In previous cases, this Court held
that parental punishment or disciplinary
chastisement is not enough for a daughter in a
Filipino family to falsely accuse her father of
rape. She would not subject herself to an
examination of her private parts, undergo the
trauma and humiliation of public trial, and
embarrass herself with the need to narrate in
detail how she was raped if she was not in fact
raped. It takes depravity for a young girl to
concoct a tale of defloration, which would put
her own father on death row, drag herself and
the rest of her family to a lifetime of shame, and
make them the object of gossip among their
classmates and friends.31 (Underscoring
supplied)
That AAAs hymen remained intact despite the
claim of three occasions of rape is not
impossible and does not negate a finding that
they were committed.32 A torn or broken hymen
is not an essential element of rape, not even
when the victim is an innocent child.33 Dr.
Salumbides, on cross- examination, testified that
there are several classes of hymen; some are
elastic and flexible that even in cases of several
deliveries, the hymen remains intact.34
As to the failure of the prosecution to present
AAAs uncle CCC and to proffer a plausible
explanation therefor, a prosecutor has the
discretion, the prerogative to determine the
witnesses he is going to present.35
In any event, the records show that on the
request of the prosecution,36 several
subpoenas37 for, as well as bench
warrants38 against, CCC were issued. CCC,
however, had ceased to reside in Barangay
Ilayang Nangka and his whereabouts could not
be ascertained. The trial court in fact even
reprimanded on one occasion SPO2 Edilberto
Conjares, the subpoena/warrant officer of the
Philippine National Police in Tayabas, Quezon,
for failure to serve the subpoena.39
On accused-appellants alibi, the rule is settled
that for it to prosper, it must be established with
clear and convincing evidence not only that he
was somewhere else when the crime was
committed, but also that it was physically
impossible for him to have been at the scene of
the crime at the time of its
commission.40 This, accused-appellant failed to
do. As reflected above, he admitted that after
work, he goes home in the afternoon or early
evening.41
The qualifying circumstances of minority and
relationship were alleged and established.
Hence, the death penalty imposed by the trial

court and affirmed by the Court of Appeals is


proper. In view, however, of the subsequent
enactment on June 24, 2006 of Republic Act No.
9346, "An Act Prohibiting the Imposition of Death
Penalty in the Philippines," accused-appellant
must be sentenced to suffer the penalty
of reclusion perpetua without eligibility for
parole.42

Supreme Court in cases where the penalty


imposed is death, reclusion perpetua or life
imprisonment and allowed intermediate review
by the Court of Appeals before such cases are
elevated to the Supreme Court.

A word on the award of moral damages. In


accordance with prevailing jurisprudence, the
amount of P50,000 which was awarded by the
trial court and affirmed by the appellate court, is
increased to P75,000.43

Sec. 11. Date of commission of the offense. It


is not necessary to state in the complaint or
information the precise date the offense was
committed except when it is a material
ingredient of the offense. The offense may be
alleged to have been committed on a date as
near as possible to the actual date of its
commission.

WHEREFORE, the assailed November 18, 2005


Decision of the Court of Appeals in CA-G.R. CRH.C. No. 01496 is AFFIRMED with
MODIFICATION in that in lieu of death penalty,
accused-appellant, Meliton Jalbuena y Tadiosa,
is
sentenced to suffer reclusion perpetua without
eligibility for parole, and the award of P50,000
for moral damages, is increased to P75,000.
SO ORDERED.
1

Committed under the then Article 335 of the


Revised Penal Code, as amended by RA 7659,
which states:
ART. 335. When and how rape is committed.
Rape is committed by having carnal knowledge
of a woman under any of the following
circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or
otherwise unconscious; and
3. When the woman is under twelve years of
age or is demented;
The crime of rape shall be punished
by reclusion perpetua.
xxxx
The death penalty shall also be imposed if the
crime of rape is committed with any of the
following attendant circumstances:
1. when the victim is under eighteen (18) years
of age and the offender is a parent, ascendant,
stepparent, guardian, relative by consanguinity
or affinity within the third civil degree, or the
common-law spouse of the parent of the victim.
xxxx
12

G.R. Nos. 147678-87, July 7, 2004, 433 SCRA


640. The case modified the 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 insofar as they provide for direct
appeals from the Regional Trial Courts to the

19

Section 11, Rule 110 of the 2000 Revised


Rules of Criminal Procedure now states:

22

Section 10, Rule 116 of the 1985 Rules of


Criminal Procedure, now Section 9, Rule 116 of
the 2000 Revised Rules of Criminal Procedure,
states:
Section 10. Bill of Particulars. Accused may, at
or before arraignment, move for a bill of
particulars to enable him properly to plead and
to prepare for trial. The motion shall specify the
alleged defects and the details desired.

Criminal Case No. 6694-G


That sometime in the year 1998, at Barangay x x
x, Municipality of x x x, Province of Quezon,
Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused,
with lewd designs, by means of force, threats
and intimidation, did then and there willfully,
unlawfully and feloniously have carnal
knowledge of one [AAA], his own daughter, a
minor, 15 years of age, against her will.
CONTRARY TO LAW.8
Appellant pleaded not guilty on arraignment.
Forthwith, trial ensued which culminated in the
guilty verdict. The dispositive portion of the
judgment reads, thus:

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. 169059

September 5, 2007

THE PEOPLE OF THE


PHILIPPINES, appellee,
vs.
LAMBERTO RAFON, appellant.
DECISION
TINGA, J.:
This treats of the appeal from the
Decision1 dated 5 May 2005 of the Court of
Appeals (CA) in CA-G.R. CR-H.C. No. 00115
affirming the Decision2 dated 8 July 2002 of the
Regional Trial Court (RTC) of Gumaca, Quezon,
Branch 61 in Criminal Case Nos. 6204-G and
6694-G where appellant Lamberto Rafon was
found guilty of raping his minor daughter and
sentenced to suffer the penalty of death.
In two (2) separate Informations3 filed on 5
March 1999, appellant was charged, the
accusatory portions of which read, thus:
Criminal Case No. 6204-G
That sometime in the year 1994, at Barangay x x
x,4 Municipality of x x x,5 Province of Quezon,
Philippines, within the jurisdiction of this
Honorable Court, the above-named accused,
with lewd designs, by means of force, threats
and intimidation, did then and there willfully,
unlawfully and feloniously have carnal
knowledge with one [AAA],6 his own daughter, a
minor, 11 years of age, against her will.
CONTRARY TO LAW.7

WHEREFORE, based on the foregoing


premises, accused LAMBERTO RAFON is
hereby found GUILTY beyond reasonable doubt
of two (2) counts of rape defined and penalized
under Art. 335 of the Revised Penal Code[,] as
amended by R.A. [No.] 7659[,] and is hereby
imposed the penalty of DEATH for each crime of
rape. He is further ordered to indemnify [AAA]
the amount of P75,000.00 for each act
orP150,000.00. In addition, accused shall pay
her likewise P20,000.00 as moral damages
and P10,000.00 as exemplary damages for each
count of rape or the total amount of P60,000.00.
Costs against the accused.
SO ORDERED.9
The case was thereafter elevated to this Court
on automatic review and the parties were
directed to file their respective Briefs.10 The
parties complied. However, the Court issued a
Resolution11 on 21 September 2004, transferring
the case to the CA for intermediate review
conformably with the ruling in People v. Mateo.12
The appellate court affirmed the judgment of the
trial court with the following modification:
WHEREFORE, premises considered, the appeal
is DENIED. The assailed Decision dated 8 July
2002 isAFFIRMED with MODIFICATION.
Appellant is ordered to pay [AAA] P50,000.00 as
moral damages andP25,000.00 as exemplary
damages for each count of rape.13
The case is again before us for our final
disposition.
The evidence for the prosecution consists
mainly of the testimonies of private complainant,
AAA, and Dr. Cheres Daquilanea, a resident
physician of the Doa Marta District Hospital,
Atimonan, Quezon.
AAA testified that she was born on 3 November
1983 as evidenced by her birth certificate.14 She
is one of five children born to appellant and
BBB.15 She recounted that appellant first raped
her in their house sometime in 1994 when she
was in grade five and while her mother was
working overseas. Her two younger brothers

were at a neighbor's house watching television


while her two sisters were studying in the
poblacion. Appellant who was drunk allegedly
forced her to lie down on the papag and remove
her clothes. He then warned her not to make
any noise or he would kill her and her siblings.
Appellant started kissing her then she felt pain
when he inserted his penis inside her vagina
and proceeded to have sexual intercourse with
her. She tried to cross her legs but was
overpowered by her father and she could not do
anything but cry silently. She did not report the
harrowing experience to anyone for fear that
appellant would make good his threats.16

sustain the conviction of her father. No one


indeed would want to go through the troubles
and humiliation of a trial for a much debasing
offense unless she was really raped and her
motive was solely to seek justice. (People v.
Gaban, 262 SCRA 598; People v. Campesino,
131 SCRA 56). In fact, it is entitled to greater
weight since her accusing words are directed
against a close relative, her own father (People
v. Lao, 249 SCRA 137). It is indeed extremely
difficult to believe that the complainant Arlene,
young as she was, could have guile and craft to
accuse her father of such heinous crime.
xxxx

Appellant allegedly raped her several more


times thereafter until she was in second year
high school, the last incident being sometime in
1998. AAA recalled that the last incident was
similar to the first, with the appellant forcing her
to lie down and to remove her clothes, and
successfully having his way with her. Afraid of
what appellant might do to her and her family,
AAA did not dare tell her mother BBB of her
sufferings in the hands of her father. It was at the
instance of her boyfriend to whom she first
revealed the truth about her father that she
eventually had the courage to tell BBB. When
BBB arrived home in January 1999, AAA relayed
the rape incidents to her and they both went to
the police to report the matter.17
Dr. Daquilanea testified that AAA went to see her
on 4 January 1999 at the Doa Marta District
Hospital to have herself examined because she
was raped.18 Dr. Daquilanea found healed
hymenal lacerations in AAA at the 3 o'clock, 6
o'clock, and 9 o'clock positions that according to
her could have been caused by sexual
intercourse.19
As the lone witness for his defense, appellant
denied the charges against him. He testified that
AAA is his daughter and he is legally married to
BBB. From 1994 to 1998, he worked as a
laborer so that he sometimes went to Lopez,
Quezon to haul coco lumber.20 Averring that BBB
never left their house during the said period,
appellant wondered why AAA would file a
criminal case against him as he had very cordial
relations with her. On cross-examination,
however, he testified that BBB had been working
as a beautician in Saudi Arabia since 1995 and
came home for a vacation every two years.21 His
parents allegedly stayed with them in their
house while BBB was away. He claimed that it
was his brother-in-law, CCC,22 who had a grudge
against him because the latter wanted a share in
the money sent to him by his wife. CCC
allegedly initiated the instant case because he
owed appellant P10,000.00 and was angry at
him.23
In finding the appellant guilty, the RTC made the
following findings, thus:
Certainly, the innocent but natural and
straightforward testimony of [AAA] alone on [sic]
the detailed narration of a pretty girl on [sic] her
teens on how she was repeatedly violated by
her own father from 1994 to 1998 is sufficient to

Verily, [AAA] is a credible witness. Her testimony


deserves the highest credence. She would not
have admitted in public that she was deflowered
by her own father unless she was telling the
truth for in doing so, she was compromising her
family. (People v. Esquila, 254 SCRA 140).
The age of [AAA] has been established beyond
cavil by her birth certificate (Exh. "B") indicating
that she was born on March24 [sic] 3, 1983 and
that her name [AAA] as Exh. "B-1" and the name
of Lamberto Rafon as her father was marked as
Exh. "B-3." Computing her age based on
November 3, 1983, her age in 1994 was 11
years old and in 1998 is 15 years old.
The relation that exists between the complainant
and the accused as daughter and father is
established beyond cavil not only as shown in
the birth certificate (Exh. "B") but by the
testimony of both complainant and the accused.
x x x x25
Like the lower court, the appellate court gave full
faith and credence to AAA's positive and
straightforward testimony as against appellant's
bare denial. It stressed that although there were
inconsistencies in her testimony as to who
removed her clothes and as regards the
whereabouts of her siblings at the time of the
rape incidents, these are trivial and do not impair
her credibility as "a rape victim is not expected
to mechanically keep memory details of the rape
incident and then when called to testify
automatically give an accurate account of the
traumatic experience she suffered."26 It further
held that AAA's testimony is corroborated by
physical evidence, she having sustained
hymenal lacerations. According great respect to
the findings and conclusions of the trial court on
the credibility of witnesses, the CA affirmed the
RTC's decision, modifying it only to increase the
award of moral damages from P20,000.00
to P50,000.00 for each count, and similarly
increasing the award of exemplary damages
from P10,000.00 to P20,000.00 for each count in
accordance with jurisprudence.
In his brief,27 appellant avers that the court a
quo erred: (1) in giving credence to the
testimony of AAA, which according to him was
unreliable and unbelievable; and (2) in finding
him guilty beyond reasonable doubt despite the
uncertainty of the commission of the crime
charged.

Appellant insists that he cannot be convicted


based on AAA's incredible testimony. The
absence of a struggle or an outcry during the
rape plus the long delay in reporting the
incidents defy a woman's natural instinct for selfpreservation, he argues. He claims that there
was no imminent danger to AAA's life and she
had every opportunity to report the incident and
to prevent a recurrence but she failed to do so.
Questioning the truthfulness of AAA's testimony,
he asserted that it reeked of inconsistencies. He
maintains that all these cast doubt on the
prosecution's evidence which, as a
consequence, cannot result in a judgment of
guilt.
Appellant also challenges the two Informations
filed against him for being ambiguous as they
did not specify the date or at the very least the
month as to when the rape incidents allegedly
took place. This, so he stresses, is a denial of
due process as no less than the Constitution
guarantees that the accused must be informed
of the nature and cause of the accusation
against him. The allegations that he committed
two counts of rape, one in 1994 and another in
1998, deprived him of the chance to interpose
the defense of alibi, he concludes.
In its brief,28 the Office of the Solicitor General
(OSG) maintains that appellant's guilt has been
proven beyond reasonable doubt by the positive
and credible testimony of AAA. The OSG points
out that AAA resisted her father's bestial acts but
to no avail and that his moral ascendancy also
cowed her to submission. Addressing the
inconsistencies in her testimony, the OSG notes
that the same are minor and inconsequential
and seem more apparent than real. As regards
AAA's failure to recall the exact time and date of
the commission of the offenses, it observes that
the time of commission is not a material
ingredient of rape. The OSG adds that appellant
did not object to the sufficiency of the
Informations before he entered his plea and it is
now too late for him to complain.
A careful examination of the records as well as
the transcripts of stenographic notes of the
instant case lead us to affirm appellant's guilt.
We shall first address the issue of the
insufficiency of the Informations.
Appellant argues that the statement only of the
year of commission of the offense is too vague
so that he was deprived of his constitutional right
to be informed of the accusation against him and
to fully prepare for his defense. We disagree.
It is unnecessary to state in the information the
precise date that the offense was committed,
except when it is an essential element of the
offense.29 The date of commission is not an
element of the offense of rape.30 The gravamen
of rape is carnal knowledge of a woman under
any of the circumstances provided by law.
In People v. Bugayong,31 we held that "when the
time given in the complaint is not of the essence
of the offense, it need not be proven as alleged

and x x x the complaint will be sustained if the


proof shows that the offense was committed at
any time within the period of the statute of
limitations and before the commencement of the
action."32 In said case, accused therein was
charged with raping his stepdaughter several
times before and until 15 October 1994 but was
convicted of his dastardly acts committed in
1993. The Court therein held that the victim's
Sworn Statement which categorically stated that
she had been raped by the accused in 1993
when she was in grade three substantially cured
the vagueness in the information and considered
accused to have been sufficiently informed
thereby. Thus, a statement of the year of the
commission of the offense, as in the instant
case, would suffice.
Furthermore, it is too late in the day for appellant
to raise this issue. He should have made his
objection before he was arraigned. Section 9,
Rule 117 of the Rules of Criminal Procedure
provides, to wit:
The failure of the accused to assert any ground
of a motion to quash before he pleads to the
complaint or information, either because he did
not file a motion to quash or failed to allege the
same in said motion, shall be deemed a waiver
of any objections except those based on the
grounds provided for in paragraphs (a), (b), (g),
and (i) of section 3 of this Rule.
As was held in Bugayong, appellant herein
cannot be said to have been deprived of his right
to be informed. He did not timely object to the
alleged defects in the Informations and he
actively participated in the trial, defending
himself and confronting the witnesses against
him. Hence, there was no denial of due process.
We now go into the crux of the controversy.
We note that appellant was charged with two
counts of rape. The first which was committed in
1994 is governed by Art. 335 of the Revised
Penal Code (RPC) before the enactment of R.A.
No. 8353 or the Anti-Rape Law of 1997.33 As
regards the rape incident in 1998, the applicable
provisions are Arts. 266-A and 266-B of the
RPC,34as introduced by the Anti-Rape Law of
1997.
As to the 1994 rape incident, it was alleged that
AAA was only 11 years old at that time. The
applicable law then already considered carnal
knowledge with a woman under 12 years of age
as rape. The offense being statutory rape, what
essentially had to be established was simply the
fact of having sexual intercourse with AAA. Proof
of the use of force in committing the sexual act
was unnecessary and superfluous.
As regards the rape that occurred in 1998, AAA
was already 15 years old at that time. Thus, the
offense falls under paragraph 1 (a) of Art. 266-A
of the RPC, as amended. This time, the
prosecution must prove beyond reasonable
doubt that the carnal knowledge occurred
through the use of force, threat, or intimidation.

In both cases, the offense of rape is qualified


when the victim is under eighteen (18) years of
age and the offender is a parent, ascendant,
step-parent, guardian, relative by consanguinity
or affinity within the third civil degree, or the
common-law spouse of the parent of the victim.
Under the new rape law the imposable penalty
in that instance is death.
As to the 1994 rape incident, AAA categorically
testified that appellant had sexual intercourse
with her, thus:
Q: When was the first time that you were raped
by your father [sic], what year?
A: 1994, Ma'am.
xxxx
Q: Now, you said it was nighttime when you
were first raped in 1994 by your father. How did
you[r] father rape you?
A: He laid me down in our papag and there he
raped me, Ma'am.
Q: After he laid you in the papag, what else did
he do if he did any?

A: He raped me, Ma'am.


Q: You said you were hinalay. How did he do
that? Can you explain to us? You were both
naked. What else did he do?
A: He placed himself on top of me. Ma'am.
Q; When he was on top of you, what did he do?
By the way, when your father laid on top of you,
where were you?
A: In [sic] the papag, Ma'am.
Q: And while on top of you, what did your father
do? (No answer)You said that you were raped,
what did you feel when you were raped as you
said?
A: I got afraid and I felt that my vagina was
painful, Ma'am.
Q: Why was your vagina painful[,] Miss
Witness?
A: Because the penis of my father was
inserted, Ma'am.
Q: Where was it inserted?

A: He removed his clothes, Ma'am.

A: To [sic] my vagina, Ma'am.

Q: And after he removed his clothes, what else


did he do?

Q: And when he inserted his penis to [sic]


your vagina, what did you feel, if any?

A: He told me not to make noise, Ma'am.

A: It was painful, Ma'am.

Q: Were you wearing clothes at that time or no


clothes at all?

Q: What [sic] that your first experience?

A: I still have clothes, Ma'am.


Q: And after he warned you not to make noise,
what else did he do?
A: Then he told me to remove my clothes,
Ma'am.
Q: What did you do when he ordered you to
remove your clothes?
A: I was forced to remove my clothes, Ma'am.
Q: Why were you fo[r]ced to remove your
clothes?
A: Because he told me that if I would not do that,
he will kill all of us, Ma'am.
Q: And where were your brothers at that time?
A: Watching TV in the house of our neighbor,
Ma'am.
Q: And after he [sic] removed your clothes as
ordered by your father, what did he do next?

A: Yes, Ma'am.
Q; And after his penis was inserted on [sic]
your vagina, was he moving or not?
A: He was moving, Ma'am.
Q: He was moving. How long did he stay on
top of you?
A: I do not know how long he was on top of
me but he stayed long, Ma'am.
Q: And after he left you, what did you do, if
any?
A: I cried, Ma'am.35 [Emphasis supplied]
As regards the rape episode in 1998, AAA
testified in a clear-cut manner on the coercion or
intimidation exerted by appellant that forced her
into sexual intercourse with him. Thus:

Q: And how did your father rape you in 1998


last raped you in 1998?

A: The same thing was done to me, Ma'am.

A: Yes, sir.

Q: What is that same thing? What did he do?

xxxx

A: He laid me down and I was told to lay [sic]


down and I was ordered to remove my clothes,
Ma'am.

Q: Was he under the influence of liquor


during that time?
A: Yes, sir.

Q: When you were ordered to lay [sic] down,


was he wearing clothes or none?
A: No more, Ma'am.

xxxx
Q: And when your father placed himself on
your top, what did you do?

Q: And after you removed your clothes, what did


he do next?

A: I was just crying, sir.

A: He laid on top of me, Ma'am.

xxxx

Q: Then?

Q: You did not box him?

A: He was touching my breast, Ma'am.

A: No, sir.

Q: Aside from touching your breast, what


else did he do?

Q: You did not push him away?

A: He again inserted his penis to [sic] my


vagina, Ma'am.
Q: And what did you feel while your father
was doing that to you?
A: I was angry and afraid, Ma'am.
Q: Why galit at takot?
A: I was angry at myself because I could not
defend myself, Ma'am.
Q: And why were you afraid?
A: Because he might do what he was telling
me that he will kill us, Ma'am.
xxxx
Q: When your mother left for abroad, did your
father engage in drinking liquor?
A: Yes, sir.
xxxx
Q: Can you tell this Court in what place does
your father used to drink?
A: In our house, sir.
xxxx
Q: Now, on what time of the day do they have
drinking session[s] in your house?
A: Sometimes in the afternoon, sir.
Q: Do they drink in the evening?

A: I pinched him, sir.


Q: You did not bite him?
A: No, sir.
Q: Did you not cross your two legs?
A: I was trying to do that, sir.
Q: What did your father do when you were
trying to close your two legs?
A: He was trying to separate my legs, sir.
xxxx
Q: But you did not shout?
A: No, sir, I was just crying.36 [Emphasis
supplied]
At the core of almost all rape cases is the issue
of credibility of witnesses,37 and the trial court is
in the best position to resolve the question,
having heard the witnesses and observed their
demeanor during trial.38 In assessing the
credibility of witnesses, this Court has laid down
the following parameters, thus:
First, the appellate court will not disturb the
factual findings of the lower court unless there is
a showing that it had overlooked,
misunderstood, or misapplied some fact or
circumstance of weight and substance that
would have affected the result of the case;
Second, the findings of the trial court pertaining
to the credibility of witnesses are entitled to
great weight and respect since it had the
opportunity to examine their demeanor as they
testified on the witness stand; and

Third, a witness who testified in a categorical,


straightforward, spontaneous and frank manner
and remained consistent on cross-examination
is a credible witness. 39
The lower court and the appellate court found
appellant guilty of rape on both counts. The
courts below similarly gave full faith and
credence to AAA's testimony. We find no cogent
reason to disturb their findings.
Appellant's attempt to damage the credibility of
AAA is futile. He challenged the truthfulness of
her testimony given the following
inconsistencies: (1) on direct examination, she
stated that she removed her clothes but on
cross-examination, she testified that it was her
father who undressed her; (2) she narrated that
her brothers were watching television at their
neighbor's house when her father first raped her
but when asked again later, she answered that
they were sleeping; and (3) she claimed that her
mother was abroad when the rape incidents
transpired but her mother never left their house
in the years 1994 to 1998 according to
appellant.
The appellate court correctly held that the
adverted inconsistencies are minor and
inconsequential. They are plainly insufficient to
render complainant's testimony doubtful, more
they do not negate the commission of rape.
Moreover, the testimony of a witness must be
considered and calibrated in its entirety and not
in truncated portions or isolated passages.40 If at
all, it is appellant who was inconsistent when he
first testified that his wife never left the house
from 1994 to 1998 and then later stated on
cross-examination that he received money from
her while she worked as a beautician in Saudi
Arabia during those years. Thus, AAA's clear
and categorical narration of the sexual assaults
against her, free from material inconsistency,
deserves full faith and credence especially when
set against appellant's bare denial. That she
would falsely accuse her own father of
committing so grave a crime as rape only to fuel
a grudge harbored by her uncle is hardly
believable. There is no other conclusion than
that her declarations bear the ring of truth.
That appellant had sexual intercourse with his
daughter in 1994 was sufficiently proven. That
he forced her into sexual congress in 1998 was
likewise proven. The courts below correctly
found that appellant had indeed employed
threats and intimidation in order to subject AAA
to his evil desires. Threats to kill her and her
siblings who lived with a drunkard of a father
under one roof coupled with his moral
ascendancy and influence over her are sufficient
factors to build a climate of psychological terror.
It was observed in People v. Melivo,41 that in
incestuous rapes, "[t]he rapist perverts whatever
moral ascendancy and influence he has over his
victim in order to intimidate and force the latter
to submit to repeated acts of rape over a period
of time. In many instances, he succeeds and the
crime is forever kept on a lid. In a few cases, the
victim suddenly finds the will to summon
unknown sources of courage to cry out for help

and bring her depraved malefactor to


justice."42 That ascendancy or influence flows
from the father's parental authority over his
children and from the latter's correlative duty of
reverence and respect towards the
former.43 Although we have subsequently held
that the moral ascendancy of the accused in
incestuous rapes, alone, does not lead to the
conclusion that sufficient intimidation was
present,44it may be considered a contributing
factor when coupled with other threatening
circumstances such as those in this case.
Considering the foregoing, we thus find
appellant guilty of rape on both counts. The age
of AAA at the time of the rape incidents as well
as her relationship with appellant were
sufficiently established by the prosecution and
admitted by appellant. Thus, the lower court
correctly meted out to appellant the penalty of
death on both counts. However, R.A. No. 9346,
entitled an "An Act Prohibiting the Imposition of
Death Penalty in the Philippines," signed into
law on 24 June 2006, prohibits the imposition of
the death penalty. Appellant thus shall suffer
only the penalty of reclusion perpetua.
We sustain the awards of P75,000.00
and P25,000.00 as civil indemnity and
exemplary damages, respectively, for each
count of rape but increase the award of moral
damages from P50,000.00 to P75,000.00 for
each count in line with prevailing jurisprudence.45
WHEREFORE, premises considered, the
appealed decision is hereby AFFIRMED with
MODIFICATION. Appellant Lamberto Rafon is
GUILTY beyond reasonable doubt of two counts
of qualified rape and is sentenced to suffer the
penalty of reclusion perpetua for each count. For
each count of rape, he is hereby ordered to pay
private complainant P75,000.00 as civil
indemnity, P75,000.00 as moral damages,
and P25,000.00 as exemplary damages. Costs
against appellant.
SO ORDERED.
Footnotes
24
There seems to have been a typographical error.
AAA's birth certificate indicates 3 November 1983 as
her birth date and not 3 March 1983.
33
Art. 335. When and how rape is committed. Rape
is committed by having carnal knowledge of a woman
under any of the following circumstances.
1. By using force or intimidation;
2. When the woman is deprived of reason or
otherwise unconscious; and
3. When the woman is under twelve years of age or is
demented.
The crime of rape shall be punished by reclusion
perpetua.
x x x x The death penalty shall also be imposed if the
crime of rape is committed with any of the following
attendant circumstances:
1. When the victim is under eighteen (18) years of
age and the offender is a parent, ascendant, stepparent, guardian, relative by consanguinity or affinity
within the third civil degree, or the common-law
spouse of the parent of the victim.
xxxx
34
Article 266-A. Rape; When and How Committed.
Rape is committed

1) By a man who shall have carnal knowledge of a


woman under any of the following circumstances:
a. Through force, threat, or intimidation;
b. When the offended party is deprived of reason or
otherwise unconscious;
c. By means of fraudulent machination or grave abuse
of authority; and
d. When the offended party is under twelve (12) years
of age or is demented, even though none of the
circumstances mentioned above be present.
xxxx
Article 266-B. Penalties. Rape under paragraph 1
of the next preceding article shall be punished
byreclusion perpetua.
x x x x The death penalty shall also be imposed if the
crime of rape is committed with any of the following
aggravating/qualifying circumstances:
1) When the victim is under eighteen (18) years of
age and the offender is a parent, ascendant, stepparent, guardian, relative by consanguinity or affinity
within the third civil degree, or the common-law
spouse of the parent of the victim.
xxxx

Republic of the Philippines


SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 160451

February 9, 2007

EDUARDO G. RICARZE, Petitioner,


vs.
COURT OF APPEALS, PEOPLE OF THE
PHILIPPINES, CALTEX PHILIPPINES, INC.,
PHILIPPINE COMMERCIAL AND INDUSTRIAL
BANK (PCIBANK), Respondents.

unknown to the department, a company check,


Check No. 74001 dated October 13, 1997 in the
amount of P5,790,570.25 payable to Dante R.
Gutierrez, had been cleared through PCIB on
October 15, 1997. An investigation also revealed
that two other checks (Check Nos. 73999 and
74000) were also missing and that in Check No.
74001, his signature and that of another
signatory, Victor S. Goquinco, were forgeries.
Another check, Check No. 72922 dated
September 15, 1997 in the amount
ofP1,790,757.25 likewise payable to Dante R.
Gutierrez, was also cleared through the same
bank on September 24, 1997; this check was
likewise not issued by Caltex, and the signatures
appearing thereon had also been forged. Upon
verification, it was uncovered that Check Nos.
74001 and 72922 were deposited at the Banco
de Oros SM Makati Branch under Savings
Account No. S/A 2004-0047245-7, in the name
of a regular customer of Caltex, Dante R.
Gutierrez.
Gutierrez, however, disowned the savings
account as well as his signatures on the dorsal
portions thereof. He also denied having
withdrawn any amount from said savings
account. Further investigation revealed that said
savings account had actually been opened by
petitioner; the forged checks were deposited and
endorsed by him under Gutierrezs name. A
bank teller from the Banco de Oro, Winnie P.
Donable Dela Cruz, positively identified
petitioner as the person who opened the savings
account using Gutierrezs name.4

Before the Court is a petition for review on


certiorari of the Decision1 of the Court of Appeals
in CA-G.R. SP No. 68492, and its
Resolution2 which denied the Motion for
Reconsideration and the Supplemental Motion
for Reconsideration thereof.

In the meantime, the PCIB credited the amount


of P581,229.00 to Caltex on March 29, 1998.
However, the City Prosecutor of Makati City was
not informed of this development. After the
requisite preliminary investigation, the City
Prosecutor filed two (2) Informations for estafa
through falsification of commercial documents
on June 29, 1998 against petitioner before the
Regional Trial Court (RTC) of Makati City,
Branch 63. The Informations are worded as
follows:

The Antecedents

Criminal Case No. 98-1611

Petitioner Eduardo G. Ricarze was employed as


a collector-messenger by City Service
Corporation, a domestic corporation engaged in
messengerial services. He was assigned to the
main office of Caltex Philippines, Inc. (Caltex) in
Makati City. His primary task was to collect
checks payable to Caltex and deliver them to the
cashier. He also delivered invoices to Caltexs
customers.3

That on or about the 24th day of September


1997 in the City of Makati, Metro Manila,
Philippines, a place within the jurisdiction of this
Honorable Court, the above-named accused, a
private individual, with intent to defraud and
intent to gain, without the knowledge and
consent of Caltex Philippines, Inc. through its
duly authorized officers/representatives, and by
means of falsification of commercial document,
did then and there willfully, unlawfully and
feloniously defraud Caltex Phils., Inc., in the
following manner, to wit: said accused, having
obtained possession of PCIBank check no.
72922 dated September 15, 1997 payable to
Dante R. Gutierrez, in the amount of
Php1,790,757.50 with intent to defraud or cause
damage to complainant Caltex Phils., Inc.,
willfully, unlawfully and feloniously affixed or
caused to be affixed signatures purporting to be
those of Ramon Romano and Victor Goquingco,
Caltex authorized officers/signatories, and of

DECISION
CALLEJO, SR., J.:

On November 6, 1997, Caltex, through its


Banking and Insurance Department Manager
Ramon Romano, filed a criminal complaint
against petitioner before the Office of the City
Prosecutor of Makati City for estafa through
falsification of commercial documents. Romano
alleged that, on October 16, 1997, while his
department was conducting a daily electronic
report from Philippine Commercial & Industrial
Bank (PCIB) Dela Rosa, Makati Branch, one of
its depositary banks, it was discovered that

payee Dante R. Gutierrez, causing it to appear


that Ramon Romano and Victor Goquingco have
participated in the issuance of PCIBank check
no. 72922 and that Dante R. Gutierrez had
endorsed it, when in truth and in fact, as said
accused well knew, such was not the case,
since said check previously stolen from
Payables Section of CALTEX, was neither duly
signed by Ramon Romano and Victor
Goquingco nor endorsed by Dante R. Gutierrez,
after the check, a commercial document, was
falsified in the manner above set forth, the said
accused purporting himself to be the payee,
Dante R. Gutierrez, deposited the check with
Banco De Oro under Account No. 20040047245-7, thereby appropriating the proceeds
of the falsified but cleared check, to the damage
and prejudice of complainant herein represented
by Ramon Romano, in the amount of
Php1,790,757.50.
Criminal Case No. 98-1612
That on or about the 15th day of October 1997
in the City of Makati, Metro Manila, Philippines,
a place within the jurisdiction of this Honorable
Court, the above-named accused, a private
individual, with intent to defraud and intent to
gain, without the knowledge and consent of
Caltex Philippines, Inc. through its duly
authorized officers/representatives, and by
means of falsification of commercial document,
did then and there willfully, unlawfully and
feloniously defraud Caltex Phils., Inc., in the
following manner, to wit: said accused, having
obtained possession of PCIBank check no.
74001 dated October 13, 1997 payable to Dante
R. Gutierrez, in the amount of Php5,790,570.25
with intent to defraud or cause damage to
complainant Caltex Phils., Inc., willfully,
unlawfully and feloniously affixed or caused to
be affixed signatures purporting to be those of
Ramon Romano and Victor Goquingco, Caltex
authorized officers/signatories, and of payee
Dante R. Gutierrez, causing it to appear that
Ramon Romano and Victor Goquingco have
participated in the issuance of PCIBank check
no. 74001 and that Dante R. Gutierrez had
endorsed it, when in truth and in fact, as said
accused well knew, such was not the case,
since said check previously stolen from
Payables Section of CALTEX, was neither duly
signed by Ramon Romano and Victor
Goquingco nor endorsed by Dante R. Gutierrez,
after the check, a commercial document, was
falsified in the manner above set forth, the said
accused purporting himself to be the payee,
Dante R. Gutierrez, deposited the check with
Banco De Oro under Account No. 20040047245-7, thereby appropriating the proceeds
of the falsified but cleared check, to the damage
and prejudice of complainant herein represented
by Ramon Romano, in the amount of
Php5,790,570.25.5
Petitioner was arraigned on August 18, 1998,
and pleaded not guilty to both charges.6 Pre-trial
ensued and the cases were jointly tried. The
prosecution presented its witnesses, after which
the Siguion Reyna, Montecillio and Ongsiako
Law Offices (SRMO) as private prosecutor filed

a Formal Offer of Evidence.7 Petitioner opposed


the pleading, contending that the private
complainant was represented by the ACCRA
Law Offices and the Balgos and Perez Law
Office during trial, and it was only after the
prosecution had rested its case that SRMO
entered its appearance as private prosecutor
representing the PCIB. Since the ACCRA and
Balgos and Perez Law Offices had not
withdrawn their appearance, SRMO had no
personality to appear as private prosecutor.
Under the Informations, the private complainant
is Caltex and not PCIB; hence, the Formal Offer
of Evidence filed by SRMO should be stricken
from the records.
Petitioner further averred that unless the
Informations were amended to change the
private complainant to PCIB, his right as
accused would be prejudiced. He pointed out,
however, that the Informations can no longer be
amended because he had already been
arraigned under the original Informations.8 He
insisted that the amendments of the
Informations to substitute PCIB as the offended
party for Caltex would place him in double
jeopardy.
PCIB, through SRMO, opposed the motion. It
contended that the PCIB had re-credited the
amount to Caltex to the extent of the indemnity;
hence, the PCIB had been subrogated to the
rights and interests of Caltex as private
complainant. Consequently, the PCIB is entitled
to receive any civil indemnity which the trial
court would adjudge against the accused.
Moreover, the re-credited amount was brought
out on cross-examination by Ramon Romano
who testified for the Prosecution. PCIB pointed
out that petitioner had marked in evidence the
letter of the ACCRA Law Office to PCIBank
dated October 10, 1997 and the credit memo
sent by PCIB to Caltex.9
Petitioner filed a Motion to Expunge the
Opposition of SRMO.10 In his Rejoinder, he
averred that the substitution of PCIB as private
complainant cannot be made by mere oral
motion; the Information must be amended to
allege that the private complainant was PCIB
and not Caltex after the preliminary investigation
of the appropriate complaint of PCIB before the
Makati City Prosecutor.
In response, the PCIB, through SRMO, averred
that as provided in Section 2, Rule 110 of the
Revised Rules of Criminal Procedure, the
erroneous designation of the name of the
offended party is a mere formal defect which can
be cured by inserting the name of the offended
party in the Information. To support its claim,
PCIB cited the ruling of this Court in Sayson v.
People.11
On July 18, 2001, the RTC issued an Order
granting the motion of the private prosecutor for
the substitution of PCIB as private complainant
for Caltex. It however denied petitioners motion
to have the formal offer of evidence of SRMO
expunged from the record.12 Petitioner filed a

motion for reconsideration which the RTC


denied on November 14, 2001.13
Petitioner filed a Petition for Certiorari under
Rule 65 of the Rules of Court with Urgent
Application for Temporary Restraining Order with
the Court of Appeals (CA,) praying for the
annulment of the RTCs Orders of July 18, 2001
and November 14, 2001. The petitioner averred
that:

properly identified. The appellate court cited the


rulings of this Court in People v. Ho16 and People
v. Reyes.17
On October 17, 2003, the CA issued a
Resolution denying petitioners Motion for
Reconsideration and Supplemental Motion for
Reconsideration.18
Hence, petitioner filed the instant petition which
is anchored on the following grounds:

I
RESPONDENT JUDGE GRIEVEOUSLY (SIC)
ERRED IN RENDERING ITS ORDER ISSUED
WITH GRAVE ABUSE OF DISCRETION
TANTAMOUNT TO LACK OF OR IN EXCESS
OF JURISDICTION BY ALLOWING THE
SUBSTITUTION OF PRIVATE COMPLAINANT,
AFTER THE ACUSED WAS ALREADY
ARRAIGNED AND PROSECUTION HAS
ALREADY TERMINATED PRESENTING ITS
EVIDENCE THEREBY PATENTLY VIOLATING
THE STRICT CONDITION IMPOSED UPON BY
RULE 110 SEC. 14 RULES ON CRIMINAL
ROCEDURE.
II
AND AS A COROLLARY GROUND
RESPONDENT JUDGE COMMITTED GRAVE
ABUSE OF DISCRETION IN EXCESS OF
JURISDICTION IN RENDERING AN ORDER
RECOGNIZING THE APPEARANCE OF A NEW
PROSECUTOR WITHOUT WRITTEN OR EVEN
ORAL WITHDRAWAL OF THE COUNSEL ON
RECORD.14
According to petitioner, damage or injury to the
offended party is an essential element of estafa.
The amendment of the Informations substituting
the PCIBank for Caltex as the offended party
would prejudice his rights since he is deprived of
a defense available before the amendment, and
which would be unavailable if the Informations
are amended. Petitioner further insisted that the
ruling in the Sayson case did not apply to this
case.
On November 5, 2002, the appellate court
rendered judgment dismissing the petition. The
fallo reads:
WHEREFORE, premises considered, the
petition to annul the orders dated July 18, 2001
and November 14, 2001 of the Regional Trial
Court, Branch 63, Makati City in Criminal Case
Nos. 98-1611 and 98-1612 is hereby DENIED
and consequently DISMISSED.
SO ORDERED.15
The appellate court declared that when PCIB
restored the amount of the checks to Caltex, it
was subrogated to the latters right against
petitioner. It further declared that in offenses
against property, the designation of the name of
the offended party is not absolutely
indispensable for as long as the criminal act
charged in the complaint or information can be

I. THE PEOPLE V. YU CHAI HO 53


PHILIPPINES 874 IS INAPPLICABLE TO THE
CASE AT BAR CONSIDERING THE PACTS
ARE SUBSTANTIALLY DIFFERENT.
II. LIKEWISE, THE CASE OF PEOPLE VS.
REYES CA, 50 (2) OG 665, NOVEMBER 11,
1953 HAS NO MATERIAL BEARING TO THE
PRESENT CASE.
III. THE SUBSTITUTION OF PCIBANK WILL
SUBSTANTIALLY PREJUDICE THE RIGHTS
OF THE PETITIONER HENCE, IT IS
PROHIBITED BY SEC. 14 OF RULE 110.
IV. THERE IS NO VALID SUBROGATION
BETWEEN CALTEX AND PCIBANK.
ASSUMING THERE IS, THE CIVIL CASE
SHOULD BE DISMISSED TO PROSECUTE.
V. THE TWIN INFORMATIONS UPON WHICH
PETITIONER WAS INDICTED, ARRAIGNED,
PRE-TRIAL HELD AND PUBLIC
PROSECUTOR TERMINATED THE
PRESENTATION OF ITS EVIDENCE IN CHIEF
ARE DEFECTIVE AND VOID, HENCE THE
DISMISSAL IS IN ORDER.
VI. PETITIONER TIMELY OBJECTED TO THE
APPEARANCE OF PRIVATE PROSECUTOR
FOR PCIBANK.
VII. THE FINDINGS OF MATERIAL FACTS ARE
NOT SUPORTED BY THE RECORD NOR
EVIDENCE AND BASED ON
MISAPPRECIATION OF FACTS.
VIII. PETITIONERS SUPPLEMENTAL MOTION
FOR RECONSIDERATION DID NOT VIOLATE
THE OMNIBUS MOTION RULE UNDER SEC.
8, RULE 15 OF THE 1997 RULES OF CIVIL
PROCEDURE.19
The Courts Ruling
Petitioner argues that the substitution of Caltex
by PCIB as private complainant at this late stage
of the trial is prejudicial to his defense. He
argues that the substitution is tantamount to a
substantial amendment of the Informations
which is prohibited under Section 14, Rule 110
of the Rules of Court.
Under Section 5, Rule 11020 of the Revised
Rules of Rules, all criminal actions covered by a
complaint or information shall be prosecuted
under the direct supervision and control of the

public prosecutor. Thus, even if the felonies or


delictual acts of the accused result in damage or
injury to another, the civil action for the recovery
of civil liability based on the said criminal acts is
impliedly instituted, and the offended party has
not waived the civil action, reserved the right to
institute it separately or instituted the civil action
prior to the criminal action, the prosecution of
the action (including the civil) remains under the
control and supervision of the public prosecutor.
The prosecution of offenses is a public function.
Under Section 16, Rule 110 of the Rules of
Criminal Procedure, the offended party may
intervene in the criminal action personally or by
counsel, who will act as private prosecutor for
the protection of his interests and in the interest
of the speedy and inexpensive administration of
justice. A separate action for the purpose would
only prove to be costly, burdensome and timeconsuming for both parties and further delay the
final disposition of the case. The multiplicity of
suits must be avoided. With the implied
institution of the civil action in the criminal action,
the two actions are merged into one composite
proceeding, with the criminal action
predominating the civil. The prime purpose of
the criminal action is to punish the offender in
order to deter him and others from committing
the same or similar offense, to isolate him from
society, reform and rehabilitate him or, in
general, to maintain social order.21
On the other hand, the sole purpose of the civil
action is for the resolution, reparation or
indemnification of the private offended party for
the damage or injury he sustained by reason of
the delictual or felonious act of the
accused.22 Under Article 104 of the Revised
Penal Code, the following are the civil liabilities
of the accused:
ART. 104. What is included in civil liability. The
civil liability established in Articles 100, 101, 102
and 103 of this Code includes:
1. Restitution;
2. Reparation of the damage caused;
3. Indemnification for consequential damages.
On the other hand, Section 14, Rule 110 of the
Revised Rules of Criminal Procedure states:
Section 14.Amendment or substitution. A
complaint or information may be amended, in
form or in substance, without leave of court, at
any time before the accused enters his plea.
After the plea and during the trial, a formal
amendment may only be made with leave of
court and when it can be done without causing
prejudice to the rights of the accused.
However, any amendment before plea, which
downgrades the nature of the offense charged in
or excludes any accused from the complaint or
information, can be made only upon motion by
the prosecutor, with notice to the offended party
and with leave of court. The court shall state its
reasons in resolving the motion and copies of its

order shall be furnished all parties, especially


the offended party.
Thus, before the accused enters his plea, a
formal or substantial amendment of the
complaint or information may be made without
leave of court. After the entry of a plea, only a
formal amendment may be made but with leave
of court and if it does not prejudice the rights of
the accused. After arraignment, a substantial
amendment is proscribed except if the same is
beneficial to the accused.23
A substantial amendment consists of the recital
of facts constituting the offense charged and
determinative of the jurisdiction of the court. All
other matters are merely of form.24 The following
have been held to be mere formal amendments:
(1) new allegations which relate only to the
range of the penalty that the court might impose
in the event of conviction; (2) an amendment
which does not charge another offense different
or distinct from that charged in the original one;
(3) additional allegations which do not alter the
prosecutions theory of the case so as to cause
surprise to the accused and affect the form of
defense he has or will assume; (4) an
amendment which does not adversely affect any
substantial right of the accused; and (5) an
amendment that merely adds specifications to
eliminate vagueness in the information and not
to introduce new and material facts, and merely
states with additional precision something which
is already contained in the original information
and which adds nothing essential for conviction
for the crime charged.25
The test as to whether a defendant is prejudiced
by the amendment is whether a defense under
the information as it originally stood would be
available after the amendment is made, and
whether any evidence defendant might have
would be equally applicable to the information in
the one form as in the other. An amendment to
an information which does not change the
nature of the crime alleged therein does not
affect the essence of the offense or cause
surprise or deprive the accused of an
opportunity to meet the new averment had each
been held to be one of form and not of
substance.26
In the case at bar, the substitution of Caltex by
PCIB as private complaint is not a substantial
amendment. The substitution did not alter the
basis of the charge in both Informations, nor did
it result in any prejudice to petitioner. The
documentary evidence in the form of the forged
checks remained the same, and all such
evidence was available to petitioner well before
the trial. Thus, he cannot claim any surprise by
virtue of the substitution.
Petitioner next argues that in no way was PCIB
subrogated to the rights of Caltex, considering
that he has no knowledge of the subrogation
much less gave his consent to it. Alternatively,
he posits that if subrogation was proper, then the
charges against him should be dismissed, the
two Informations being "defective and void due
to false allegations."

Petitioner was charged of the crime of estafa


complex with falsification document. In estafa
one of the essential elements "to prejudice of
another" as mandated by article 315 of the
Revise Penal Code.
The element of "to the prejudice of another"
being as essential element of the felony should
be clearly indicated and charged in the
information with TRUTH AND LEGAL
PRECISION.
This is not so in the case of petitioner, the twin
information filed against him alleged the felony
committed " to the damage and prejudice of
Caltex." This allegation is UNTRUE and FALSE
for there is no question that as early as March
24, 1998 or THREE (3) LONG MONTHS before
the twin information were filed on June 29, 1998,
the prejudice party is already PCIBank since the
latter Re-Credit the value of the checks to Caltex
as early as March 24, 1998. In effect, assuming
there is valid subrogation as the subject decision
concluded, the subrogation took place an
occurred on March 24, 1998 THREE (3)
MONTHS before the twin information were filed.
The phrase "to the prejudice to another" as
element of the felony is limited to the person
DEFRAUDED in the very act of embezzlement.
It should not be expanded to other persons
which the loss may ultimately fall as a result of a
contract which contract herein petitioner is total
stranger.
In this case, there is no question that the very
act of commission of the offense of September
24, 1997 and October 15, 1997 respectively,
Caltex was the one defrauded by the act of the
felony.
In the light of these facts, petitioner submits that
the twin information are DEFECTIVE AND VOID
due to the FALSE ALLEGATIONS that the
offense was committed to the prejudice of Caltex
when it truth and in fact the one prejudiced here
was PCIBank.
The twin information being DEFECTIVE AND
VOID, the same should be dismissed without
prejudice to the filing of another information
which should state the offense was committed to
the prejudice of PCIBank if it still legally possible
without prejudicing substantial and statutory
rights of the petitioner.27
Petitioners argument on subrogation is
misplaced. The Court agrees with respondent
PCIBs comment that petitioner failed to make a
distinction between legal and conventional
subrogation. Subrogation is the transfer of all the
rights of the creditor to a third person, who
substitutes him in all his rights.28 It may either be
legal or conventional. Legal subrogation is that
which takes place without agreement but by
operation of law because of certain
acts.29 Instances of legal subrogation are those
provided in Article 130230 of the Civil Code.
Conventional subrogation, on the other hand, is
that which takes place by agreement of the
parties.31 Thus, petitioners acquiescence is not

necessary for subrogation to take place because


the instant case is one of legal subrogation that
occurs by operation of law, and without need of
the debtors knowledge.
Contrary to petitioners asseverations, the case
of People v. Yu Chai Ho32 relied upon by the
appellate court is in point. The Court declared
We do not however, think that the fiscal erred in
alleging that the commission of the crime
resulted to the prejudice of Wm. H. Anderson &
Co. It is true that originally the International
Banking Corporation was the prejudiced party,
but Wm. H. Anderson & Co. compensated it for
its loss and thus became subrogated to all its
rights against the defendant (article 1839, Civil
Code). Wm. H. Anderson & Co., therefore, stood
exactly in the shoes of the International Banking
Corporation in relation to the defendant's acts,
and the commission of the crime resulted to the
prejudice of the firm previously to the filing of the
information in the case. The loss suffered by the
firm was the ultimate result of the defendant's
unlawful acts, and we see no valid reason why
this fact should not be stated in the information;
it stands to reason that, in the crime of estafa,
the damage resulting therefrom need not
necessarily occur simultaneously with the acts
constituting the other essential elements of the
crime.
Thus, being subrogated to the right of Caltex,
PCIB, through counsel, has the right to intervene
in the proceedings, and under substantive laws
is entitled to restitution of its properties or funds,
reparation, or indemnification.
Petitioners gripe that the charges against him
should be dismissed because the allegations in
both Informations failed to name PCIB as true
offended party does not hold water.
Section 6, Rule 110 of the Rules on Criminal
Procedure states:
Sec. 6.Sufficiency of complaint or information.
A complaint or information is sufficient if it states
the name of the accused; the designation of the
offense by the statute; the acts or omissions
complained of as constituting the offense; the
name of the offended party; the approximate
time of the commission of the offense; and the
place wherein the offense was committed.
When the offense is committed by more than
one person, all of them shall be included in the
complaint or information.
On the other hand, Section 12 of the same Rule
provides:
Section. 12. Name of the offended party. The
complaint or information must state the name
and surname of the person against whom or
against whose property the offense was
committed, or any appellation or nickname by
which such person has been or is known. If
there is no better way of identifying him, he must
be described under a fictitious name.

(a) In offenses against property, if the name of


the offended party is unknown, the property
must be described with such particularity as to
properly identify the offense charged.
(b) If the true name of the person against whom
or against whose property the offense was
committed is thereafter disclosed or ascertained,
the court must cause such true name to be
inserted in the complaint or information and the
record.
(c) If the offended party is a juridical person, it is
sufficient to state its name, or any name or
designation by which it is known or by which it
may be identified, without need of averring that it
is a juridical person or that it is organized in
accordance with law. (12a)
In Sayson v. People,33 the Court held that in
case of offenses against property, the
designation of the name of the offended party is
not absolutely indispensable for as long as the
criminal act charged in the complaint or
information can be properly identified:
The rules on criminal procedure require the
complaint or information to state the name and
surname of the person against whom or against
whose property the offense was committed or
any appellation or nickname by which such
person has been or is known and if there is no
better way of Identifying him, he must be
described under a fictitious name (Rule 110,
Section 11, Revised Rules of Court; now Rule
110, Section 12 of the 1985 Rules on Criminal
Procedure.] In case of offenses against property,
the designation of the name of the offended
party is not absolutely indispensable for as long
as the criminal act charged in the complaint or
information can be properly identified. Thus,
Rule 110, Section 11 of the Rules of Court
provides that:
Section 11. Name of the offended party-

prejudice any substantial right of the defendant.


Accordingly, in the aforementioned case, which
had a factual backdrop similar to the instant
case, where the defendant was charged with
estafa for the misappropriation of the proceeds
of a warrant which he had cashed without
authority, the erroneous allegation in the
complaint to the effect that the unlawful act was
to the prejudice of the owner of the cheque,
when in reality the bank which cashed it was the
one which suffered a loss, was held to be
immaterial on the ground that the subject matter
of the estafa, the warrant, was described in the
complaint with such particularity as to properly
Identify the particular offense charged. In the
instant suit for estafa which is a crime against
property under the Revised Penal Code, since
the check, which was the subject-matter of the
offense, was described with such particularity as
to properly identify the offense charged, it
becomes immaterial, for purposes of convicting
the accused, that it was established during the
trial that the offended party was actually Mever
Films and not Ernesto Rufino, Sr. nor Bank of
America as alleged in the information.
Lastly, on petitioners claim that he timely
objected to the appearance of SRMO 34 as
private prosecutor for PCIB, the Court agrees
with the observation of the CA that contrary to
his claim, petitioner did not question the said
entry of appearance even as the RTC
acknowledged the same on October 8,
1999.35 Thus, petitioner cannot feign ignorance
or surprise of the incident, which are "all water
under the bridge for [his] failure to make a timely
objection thereto."36
WHEREFORE, the petition is DENIED. The
assailed decision and resolution of the Court of
Appeals are AFFIRMED. This case is
REMANDED to the Regional Trial Court of
Makati City, Branch 63, for further proceedings.
SO ORDERED.
20

(a) In cases of offenses against property, if the


name of the offended party is unknown, the
property, subject matter of the offense, must be
described with such particularity as to properly
Identify the particular offense charged.
(b) If in the course of the trial, the true name of
the person against whom or against whose
property the offense was committed is disclosed
or ascertained, the court must cause the true
name to be inserted in the complaint or
information or record.

See SECTION 1. Institution of criminal and


civil actions. (a) When a criminal action is
instituted, the civil action for the recovery of civil
liability arising from the offense charged shall be
deemed instituted with the criminal action unless
the offended party waives the civil action,
reserves the right to institute it separately or
institute the civil action prior to the criminal
action.
The reservation of the right to institute
separately the civil action shall be made before
the prosecution starts presenting its evidence
and under circumstances affording the offended
party a reasonable opportunity to make such
reservation.
30

In U.S. v. Kepner [1 Phil. 519 (1902)], this Court


laid down the rule that when an offense shall
have been described in the complaint with
sufficient certainty as to Identify the act, an
erroneous allegation as to the person injured
shall be deemed immaterial as the same is a
mere formal defect which did not tend to

Art. 1302. It is presumed that there is legal


subrogation:
1. When a creditor pays another creditor who is
preferred, even without the debtor's knowledge;

2. When a third person, not interested in the


obligation, pays with the express or tacit
approval of the debtor;
3. When, even without the knowledge of the
debtor, a person interested in the fulfillment of
the obligation pays, without prejudice to the
effects of confusion as to the latter's share.
34

The Siguion Reyna Montecillo and Ongsiako


Law Office filed its formal entry of appearance in
behalf of PCIBank on October 5, 1999, and the
trial court duly noted such appearance in its
Order dated October 8, 1999. (see Rollo, pp.
406 and 408).

That on or about June 27, 1997 and thereafter,


and within the jurisdiction of this Honorable
Court, the said accused, in his capacity as
President of the Rural Bank of San Miguel
(Bulacan), Inc. did then and there, unlawfully,
feloniously, and indirectly borrow or secure a
loan with Rural Bank of San Miguel-San Miguel
Branch amounting to Php15 million, without the
consent and written approval of the majority of
the directors of the bank, by using the name of
one depositor VIRGILIO J. MALANG of San
Miguel Bulacan who have no knowledge of the
said loan, and once in possession of the said
amount of Php14,775,000.00, net of interest
converted the same to his own personal use and
benefit, in flagrant violation of the said law.2
On the same date, an information for estafa thru
falsification of commercial document was also
filed against Soriano and Ilagan, viz.:

Republic of the Philippines


SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 159517-18

337 (R.A. No. 337) or the General Banking Act,


as amended by Presidential Decree No. 1795,
or Violation of the Director, Officer, Stockholder
or Related Interest (DOSRI) Rules (DOSRI
Rules). The inculpatory portion of the
Information reads:

June 30, 2009

HILARIO P. SORIANO and ROSALINDA


ILAGAN, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES, BANGKO
SENTRAL NG PILIPINAS (BSP), and
PHILIPPINE DEPOSIT INSURANCE
CORPORATION (PDIC), Respondents.
DECISION
NACHURA, J.:
Petitioners Hilario P. Soriano and Rosalinda
Ilagan (petitioners) appeal by certiorari the
August 5, 2003 Decision1of the Court of Appeals
(CA) in the consolidated cases CA-G.R. SP.
Nos. 64648 and 64649.
The antecedents.
Hilario P. Soriano (Soriano) and Rosalinda
Ilagan (Ilagan) were the President and General
Manager, respectively, of the Rural Bank of San
Miguel (Bulacan), Inc. (RBSM). Allegedly, on
June 27, 1997 and August 21, 1997, during their
incumbency as president and manager of the
bank, petitioners indirectly obtained loans from
RBSM. They falsified the loan applications and
other bank records, and made it appear that
Virgilio J. Malang and Rogelio Maaol obtained
loans of P15,000,000.00 each, when in fact they
did not.
Accordingly, on May 4, 2000, State Prosecutor
Josefino A. Subia charged Soriano in the
Regional Trial Court (RTC) of Malolos, Bulacan,
with violation of Section 83 of Republic Act No.

That on or about June 27, 1997 and thereafter,


in San Miguel, Bulacan and within the
jurisdiction of this Honorable Court, the said
accused HILARIO P. SORIANO and
ROSALINDA ILAGAN, as principals by direct
participation, with unfaithfulness or abuse of
confidence and taking advantage of their
position as President of Rural Bank of San
Miguel (Bulacan), Inc. and Manager of Rural
Bank of San Miguel-San Miguel Branch, a duly
organized banking institutions under Philippine
Laws, conspiring, confederating and mutually
helping one another, did then and there, willfully
and feloniously falsify loan documents consisting
of loan application/information sheet, and
promissory note dated June 27, 1997, disclosure
statement on loan/credit transaction, credit
proposal report, managers check no. 06514
dated June 27, 1997 and undated RBSM-San
Miguel Branch check voucher, by making it
appear that one VIRGILIO J. MALANG filed the
aforementioned documents when in truth and in
fact, VIRGILIO J. MALANG did not participate in
the execution of said loan document and that by
virtue of said falsification and with deceit and
intent to cause damage, the accused credited
the loan proceeds of the loan amounting to
Php14,775,000.00, net of interest, to the
account of VIRGILIO J. MALANG with the
RBSM and thereafter converted the same
amount to their own personal gain and benefit,
to the damage and prejudice of the Rural Bank
of San Miguel-San Miguel Branch, its creditors
and the Bangko Sentral Ng Pilipinas in the
amount of Php14,775,000.00.
CONTRARY TO LAW.3
The informations were docketed as Criminal
Case Nos. 1719-M-2000 and 1720-M-2000,
respectively, and were raffled to Branch 14,
presided by Judge Petrita Braga Dime.

Another information for violation of Section 83 of


R.A. No. 337, as amended, was filed against
Soriano, this time, covering the P15,000,000.00
loan obtained in the name of Rogelio Maaol.
The information reads:
That on or about August 21, 1997 and thereafter,
and within the jurisdiction of this Honorable
Court, the said accused, in his capacity as
President of the Rural Bank of San Miguel
(Bulacan), Inc. did then and there, unlawfully,
feloniously, and indirectly borrow or secure a
loan with Rural Bank of San Miguel-San Miguel
Branch, a domestic rural ba[n]king institution
created, organized and existing under Philippine
laws, amounting to Php15.0 million, knowing
fully well that the same has been done by him
without the written approval of the majority of
[the] board of directors of the said bank and
which consent and approval the said accused
deliberately failed to obtain and enter the same
upon the record of said banking institution and to
transmit a copy of which to the supervising
department of the said bank, as required by the
General Banking Act, by using the name of one
depositor ROGELIO MAAOL of San Jose, San
Miguel Bulacan who have no knowledge of the
said loan, and once in possession of the said
amount of Php 15.0 million, converted the same
to his own personal use and benefit, in flagrant
violation of the said law.4
Soriano and Ilagan were also indicted for estafa
thru falsification of commercial document for
obtaining said loan. Thus:

That on or about August 21, 1997 and thereafter,


in San Miguel, Bulacan and within the
jurisdiction of this Honorable Court, the said
accused HILARIO P. SORIANO and
ROSALINDA ILAGAN, as principals by direct
participation, with unfaithfulness or abuse of
confidence and taking advantage of their
position as President of Rural Bank of San
Miguel (Bulacan), Inc. and Manager of Rural
Bank of San Miguel-San Miguel Branch, a duly
organized banking institutions under Philippine
Laws, conspiring confederating and mutually
helping one another, did then and there, willfully
and feloniously falsify loan documents consisting
of loan application/information sheet and
promissory note dated August 21, 1997, by
making it appear that one ROGELIO MAAOL
filled up the application/information sheet and
filed the aforementioned loan documents when
in truth and in fact, ROGELIO MAAOL did not
participate in the execution of said loan
document and that by virtue of said falsification
and with deceit and intent to cause damage, the
accused succeeded in securing a loan in the
amount of Php15.0 million, from Rural Bank of
San Miguel-San Miguel Branch in the name of
ROGELIO MAAOL, which amount of Php 15.0
million representing loan proceeds the accused
deposited to the account of ROGELIO MAAOL
maintained with Rural Bank of San Miguel and
thereafter converted the same amount to their
own personal gain and benefit, to the damage
and prejudice of the Rural Bank of San MiguelSan Miguel Branch, its creditors, the Bangko
Sentral Ng Pilipinas and the Philippine Deposit
Insurance Corporation in the amount of Php
15.0 million.
CONTRARY TO LAW.5
The cases were docketed as 1980-M-2000 and
1981-M-2000, respectively, and were raffled to
Branch 77, presided by Judge Aurora SantiagoLagman.
Petitioners moved to quash the informations in
Criminal Case Nos. 1719-M-2000 and 1720-M2000 (pending before Branch 14), and also in
Criminal Case Nos. 1980-M-2000 and 1981-M2000 (pending with Branch 77), on grounds that:
(i) more than one (1) offense is charged; and (ii)
the facts charged do not constitute an offense.
Specifically, petitioners argued that the
prosecutor charged more than one offense for a
single act. Soriano was charged with violation of
DOSRI rules and estafa thru falsification of
commercial document for allegedly securing
fictitious loans. They further argued that the facts
as alleged in the information do not constitute an
offense.
In an Order6 dated November 15, 2000, RTC
Branch 77 denied the motion to quash.
Rejecting petitioners arguments, it held:
Section 13 of Rule 110 of the Revised Rules of
Criminal Procedure provides that the complaint
or information must charge but only one offense,
except only in those cases in which existing laws
prescribe a single punishment for various
offenses. Under this Rule, the Information is

defective when it charges two (2) or more


offenses. The rule enjoining the charging of two
(2) or more offenses in one information has for
its aim to give the defendant the necessary
knowledge of the charge to enable him to prove
his defense (People vs. Ferrer, 101 Phil. 234,
cited in Herrera Remedial Law IV., p. 72). While
Section 3 (e) of Rule 117 of the Revised Rules of
Court provides as one of the grounds where the
accused may move to quash the complaint or
information, considering Sec. 13 of Rule 110 of
the Rules as aforestated, it is apparent that the
said ground refers to a situation where the
accused is being charged in one information or
criminal complaint for more than one offense.
The record shows that two (2) Informations were
filed against the herein accused, one in Criminal
Case No. 1980-M-2000 against accused Hilario
P. Soriano for Violation of Sec. 83 of R.A. No.
337, as amended by PD 1795, and another one
in Criminal Case No. 1981-M-2000 against
accused Hilario P. Soriano and Rosalinda Ilagan
for Estafa Thru Falsification of Commercial
Documents. Thus, each Information charges
only one offense.
Even assuming that the two (2) cases arose
from the same facts, if they violate two (2) or
more provisions of the law, a prosecution under
one will not bar a prosecution under another
(Pp. vs. Tac-an, 182 SCRA 601; Lamera v. Court
of Appeals, 198 SCRA 186, cited in Herrera
Criminal Procedure, Vol. 4, p. 453).
Upon the foregoing, this Court finds that there is
no basis to quash the Informations filed in these
two (2) cases as the accused are being charged
therein with only one offense in each
Information. As to the assertion of the accused
that the facts charged do not constitute an
offense, this Court finds that the allegations of
both parties are evidentiary and the same can
only be determined after a full blown trial on the
merits of these cases where both parties will be
given a chance to present their evidence in
support of their respective positions.
WHEREFORE, the instant motion is
DISMISSED and the arraignment of both
accused and the pre-trial of these cases
scheduled on December 4, 2000 at 10:00 o
clock in the morning, shall proceed as
scheduled.7
Petitioners motion to quash informations in
Criminal Case Nos. 1719-M-2000 and 1720-M2000 before Branch 14 likewise suffered the
same fate, as Judge Braga Dime denied the
same in an Order8 dated November 27, 2000,
holding that:
Duplicity in criminal pleading is the joinder of two
or more distinct and separate offenses in the
same court of an indictment or information. (41
Am. Jur. 2d 1011). Whether two offenses are
charged in an information, or otherwise, must
not be made to depend upon the evidence
presented at the trial court but upon the facts
alleged in the information (Provincial Fiscal of
Nueva Ecija vs. CFI, 79 Phil. 165). Where an
offense may be committed in any of the different

modes provided by law and the offense is


alleged to have been committed in two or more
modes specified, the indictment is sufficient. The
allegations in the information of the various ways
of committing the offense should be considered
as a description of only one offense and the
information cannot be dismissed on the ground
of multifariousness (Jurado v. Suy Yan, L-30714,
April 30, 1971)
A perusal of the criminal information filed in the
above-entitled cases indubitably show that each
information charges only but one offense. Thus,
in Criminal Case No. 1719-M-2000, Accused
Hilario P. Soriano is charged only with violation
of Sec. 83 of RA 337, as amended by PD 1796,
while in Criminal Case No. 1720-M-2000,
Accused Hilario P. Soriano and Rosalinda Ilagan
are charged only with Estafa thru falsification of
commercial document.
On the ground that the facts charged do not
constitute an offense xxx xxx xxx
[b]y simply reading the information filed against
the Accused Hilario P. Soriano, in Crim. Case
No. 1719-M-2000 it is clear that the allegations,
which is hypothetically admitted by said
accused, in the same information set out an
offense for violation of Sec. 83 of RA 337 as
amended by PD No. 1795.
Finally, Accused, in addition to the two (2)
grounds aforesaid, cited prematurity and lack of
probable cause which would warrant the
quashal of the two (2) informations.
These additional grounds relied upon by the
Accused for the quashal of the two (2)
informations must necessarily fail because they
are not one of the grounds enumerated in Sec.
3, Rule 117 of the Revised Rules of Court which
this Court shall not consider, in accordance with
Sec. 2, Rule 117 of the Revised Rules of Court.
WHEREFORE, premises considered, the Motion
to Quash, dated September 1, 2000 filed by both
Accused is hereby DENIED, for lack of merit.
SO ORDERED.9
Petitioners went up to the Court of Appeals via
certiorari, assailing the Orders of Branch 77 and
Branch 14. The petitions were docketed as CAG.R. SP. Nos. 64648 and 64649. By
decision10 of August 5, 2003, the CA, which
priorly consolidated the petitions, sustained the
denial of petitioners separate motions to quash:
WHEREFORE, FOREGOING PREMISES
CONSIDERED, these petitions are DENIED
DUE COURSE and accordingly DISMISSED.
The assailed Orders dated November 15, 2000
and February 12, 2001 of the Regional Trial
Court, Branch 77, Malolos, Bulacan in Criminal
Case Nos. 1980-M-2000 and 1981-M-2000,
entitled, "People of the Philippines vs. Hilario P.
Soriano and People of the Philippines vs. Hilario
P. Soriano and Rosalinda Ilagan", respectively,
in CA-G.R. SP. No. 64648 and the Orders dated

November 27, 2000 and March 9, 2001 of the


Regional Trial Court, Branch 14, Malolos,
Bulacan in Criminal Case Nos. 1719-M-2000
and 1720-M-2000, entitled "People of the
Philippines vs. Hilario P. Soriano and People of
the Philippines vs. Hilario P. Soriano and
Rosalinda Ilagan", respectively, in CA-G.R. SP.
No. 64649 are affirmed.11
Petitioners are now before this Court, submitting
for resolution the same matters argued before
the RTC and the CA. They insist that RTC
Branch 14 and Branch 77 abused their
discretion in denying their motions to quash
informations. Thus, they posit that the CA
committed reversible error in dismissing their
petitions for certiorari.
The appeal should be denied.
The term grave abuse of discretion, in its
juridical sense, connotes capricious, despotic,
oppressive or whimsical exercise of judgment as
is equivalent to lack of jurisdiction. The abuse
must be of such degree as to amount to an
evasion of positive duty or a virtual refusal to
perform a duty enjoined by law, as where the
power is exercised in an arbitrary and capricious
manner by reason of passion and hostility. The
word capricious, usually used in tandem with the
term arbitrary, conveys the notion of willful and
unreasoning action. Thus, when seeking the
corrective hand of certiorari, a clear showing of
caprice and arbitrariness in the exercise of
discretion is imperative.12
We reviewed the records before us, and we
discerned no caprice or arbitrariness on the part
of the RTC in denying the motions.
Petitioners assail the validity of the informations
against them on the ground that more than one
(1) offense is charged. They point that Soriano
was charged with violation of DOSRI Rules and
with estafa thru falsification of commercial
document for allegedly obtaining loans from
RBSM. Thus, they claim that the informations
were duplicitous; hence, they should be
quashed.1avvphi1
Indisputably, duplicity of offenses in a single
information is a ground to quash the Information
under Section 3(e), Rule 11713 of the 1985 Rules
of Criminal Procedure. The Rules prohibit the
filing of a duplicitous information to avoid
confusing the accused in preparing his
defense.14
By duplicity of charges is meant a single
complaint or information that charges more than
one offense.15 Section 13 of Rule 110 of the
1985 Rules on Criminal Procedure clearly
states:
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.

Otherwise stated, there is duplicity (or


multiplicity) of charges when a single Information
charges more than one offense.16
In this case, however, Soriano was faced not
with one information charging more than one
offense, but with more than one information,
each charging a different offense - violation of
DOSRI rules in one, and estafa thru falsification
of commercial documents in the others. Ilagan,
on the other hand, was charged with estafa thru
falsification of commercial documents in
separate informations. Thus, petitioners
erroneously invoke duplicity of charges as a
ground to quash the Informations.
Petitioners also contend that Soriano should be
charged with one offense only, because all the
charges filed against him proceed from and are
based on a single act of obtaining fictitious
loans. Thus, Soriano argues that he cannot be
charged with estafa thru falsification of
commercial document, considering that he is
already being prosecuted for obtaining a DOSRI
loan.
The contention has no merit.
Jurisprudence teems with pronouncements that
a single act or incident might offend two or more
entirely distinct and unrelated provisions
of law,17 thus justifying the filing of several
charges against the accused.
In Loney v. People,18 this Court, in upholding the
filing of multiple charges against the accused,
held:
As early as the start of the last century, this
Court had ruled that a single act or incident
might offend against two or more entirely distinct
and unrelated provisions of law thus justifying
the prosecution of the accused for more than
one offense. The only limit to this rule is the
Constitutional prohibition that no person shall be
twice put in jeopardy of punishment for "the
same offense." In People v. Doriquez, we held
that two (or more) offenses arising from the
same act are not "the same"
x x x if one provision [of law] requires proof of an
additional fact or element which the other does
not, x x x. Phrased elsewise, where two different
laws (or articles of the same code) define two
crimes, prior jeopardy as to one of them is no
obstacle to a prosecution of the other, although
both offenses arise from the same facts, if each
crime involves some important act which is not
an essential element of the other.
xxx xxx xxx
Consequently, the filing of the multiple charges
against petitioners, although based on the same
incident, is consistent with settled doctrine.
As aptly pointed out by the BSP in its
memorandum, there are differences between the
two (2) offenses. A DOSRI violation consists in

the failure to observe and comply with


procedural, reportorial or ceiling requirements
prescribed by law in the grant of a loan to a
director, officer, stockholder and other related
interests in the bank, i.e. lack of written approval
of the majority of the directors of the bank and
failure to enter such approval into corporate
records and to transmit a copy thereof to the
BSP supervising department. The elements of
abuse of confidence, deceit, fraud or false
pretenses, and damage, which are essential to
the prosecution for estafa, are not elements of a
DOSRI violation. The filing of several charges
against Soriano was, therefore, proper.
Petitioners next question the sufficiency of the
allegations in the informations, contending that
the same do not constitute an offense.
The fundamental test in considering a motion to
quash anchored on Section 3 (a),19 Rule 117 of
the1985 Rules on Criminal Procedure, is the
sufficiency of the averments in the information;
that is, whether the facts alleged, if
hypothetically admitted, would establish the
essential elements of the offense charged as
defined by law.20 The trial court may not consider
a situation contrary to that set forth in the
criminal complaint or information. Facts that
constitute the defense of the petitioners against
the charge under the information must be
proved by them during trial. Such facts or
circumstances do not constitute proper grounds
for a motion to quash the information on the
ground that the material averments do not
constitute the offense.21
We have reviewed the informations and find that
they contain material allegations charging
Soriano with violation of DOSRI rules and estafa
thru falsification of commercial documents.
In Criminal Case Nos. 1719 & 1980 for violation
of DOSRI rules, the informations alleged that
Soriano was the president of RBSMI, while
Ilagan was then its general manager; that during
their tenure, Soriano, with the direct participation
of Ilagan, and by using the names of Virgilio
Malang and Rogelio Maaol, was able to
indirectly obtain loans without complying with the
requisite board approval, reportorial and ceiling
requirements, in violation of Section 83 of R.A.
No. 37722 as amended.
Similarly, the informations in Criminal Case Nos.
1720 & 1981 charge petitioners with estafa thru
falsification of commercial document. They
allege that petitioners made it appear that
Virgilio J. Malang and Rogelio Maaol obtained
loans and received the proceeds thereof when
they did not in fact secure said loans or receive
the amounts reflected in the promissory notes
and other bank records.
The information in Criminal Case No. 1720
further alleges the elements of estafa under
Article 315 (1)(b)23 of the RPC to wit: (i) that
money, goods or other personal property be
received by the offender in trust, or on
commission, or for administration, or under any
other obligation involving the duty to make

delivery of or to return the same; (ii) that there


be misappropriation or conversion of such
money or property by the offender, or denial on
his part of such receipt; (iii) that such
misappropriation or conversion or denial is to the
prejudice of another; and (iv) that there is
demand made by the offended party to the
offender.
The information in Criminal Case No. 1981, on
the other hand, further alleged the following
essential elements of estafa under Article 315
(2) (a)24 of the RPC: (i) that there must be a false
pretense, fraudulent act or fraudulent means; (ii)
that such false pretense, fraudulent act or
fraudulent means must be made or executed
prior to or simultaneously with the commission of
the fraud; (iii) that the offended party must have
relied on the false pretense, fraudulent act, or
fraudulent meansthat is, he was induced to
part with his money or property because of the
false pretense, fraudulent act, or fraudulent
means; and (iv) that, as a result thereof, the
offended party suffered damage. The
informations in Criminal Case Nos. 1720 &
1981, thus, charge petitioners with the complex
crime of estafa thru falsification of commercial
documents.
Verily, there is no justification for the quashal of
the Information filed against petitioners. The
RTC committed no grave abuse of discretion in
denying the motions.
In fine, the Court has consistently held that a
special civil action for certiorari is not the proper
remedy to assail the denial of a motion to quash
an information. The proper procedure in such a
case is for the accused to enter a plea, go to trial
without prejudice on his part to present the
special defenses he had invoked in his motion to
quash and if after trial on the merits, an adverse
decision is rendered, to appeal therefrom in the
manner authorized by law.25 Thus, petitioners
should not have forthwith filed a special civil
action for certiorari with the CA and instead, they
should have gone to trial and reiterated the
special defenses contained in their motion to
quash. There are no special or exceptional
circumstances in the present case that would
justify immediate resort to a filing of a petition for
certiorari. Clearly, the CA did not commit any
reversible error, much less, grave abuse of
discretion in dismissing the petition.
WHEREFORE, the petition for review
is DENIED and the assailed Decision of the
Court of Appeals is AFFIRMED. Costs against
the petitioners.
SO ORDERED.
Footnotes
13
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 (1) offense is charged except
in those cases in which the existing laws prescribe a
single punishment for various offenses;
xxx xxx xxx

19

Section 3. Grounds. The accused may move to


quash the complaint or information on any of the
following grounds:
(a) That the facts charged do not constitute an
offense;
xxx xxx xxx
22
Sec. 83. No director or officer of any banking
institution shall, either directly or indirectly, for himself
or as the representative or agent of other, borrow any
of the deposits of funds of such banks, nor shall he
become a guarantor, indorser, or surety for loans from
such bank to others, or in any manner be an obligor
for money borrowed from the bank or loaned by it,
except with the written approval of the majority of the
directors of the bank, excluding the director
concerned. Any such approval shall be entered upon
the records of the corporation and a copy of such
entry shall be transmitted forthwith to the
Superintedent of Banks. The office of any director or
officer of a bank who violates the provisions of this
section shall immediately become vacant and the
director or officer shall be punished by imprisonment
of not less than one year nor more than ten years and
by a fine of not less than one thousand nor more than
ten thousand pesos.
The Monetary Board may regulate the amount of
credit accommodations that may be extended, directly
or indirectly, by banking institutions to their directors,
officers, or stockholders. However, the outstanding
credit accommodations which a bank may extend to
each of its stockholders owning two per cent (2%) or
more of the subscribed capital stock, its directors, or
its officers, shall be limited to an amount equivalent to
the respective outstanding deposits and book value of
the paid-in capital contribution in the bank: Provided,
however, That loans and advances to officers in the
form of fringe benefits granted in accordance with
rules and regulations as may be prescribed by the
Monetary Board shall not be subject to the preceding
limitation.
23
ART. 315. Swindling (estafa). Any person who
shall defraud another by any of the means mentioned
hereinbelow shall be punished by:
xxx xxx xxx
1. With unfaithfulness or abuse of confidence,
namely:
xxx xxx xxx (b) By misappropriating or converting, to
the prejudice of another, money, goods, or any
personal property received by the offender in trust or
on commission, or for administration, or under any
obligation involving the duty to make delivery of or to
return the same, even though such obligation be
totally or partially guaranteed by a bond; or by
denying having received such money, goods, or other
property. 24 ART. 315. Swindling (estafa). Any
person who shall defraud another by any of the
means mentioned hereinbelow shall be punished by:
xxx xxx xxx 2. By means of any of the following false
pretenses or fraudulent acts executed prior to or
simultaneously with the commission of the fraud:
(a) By using fictitious name, or falsely pretending to
possess, power, influence, qualifications, property,
credit, agency, business or imaginary transactions, or
by means of similar deceits.
xxx xxx xxx

Republic of the Philippines


SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 177583

February 27, 2009

LOURDES BALTAZAR and EDISON


BALTAZAR, Petitioners,
vs.
JAIME CHUA y IBARRA, Respondent.

DECISION
CHICO-NAZARIO, J.:
This Petition for Review on Certiorari under Rule
45 of the Rules of Court assails the Decision1 of
the Court of Appeals in CA-G.R. SP No. 92671,
which annulled the 7 December 2004 Order2 of
the Regional Trial Court (RTC) of Manila, Branch
37, directing the filing of Informations for Murder
and Frustrated Murder against Jaime Chua
(Jaime) and Jovito Armas, Jr. (Jovito).
Jaime and Jovito were charged before the RTC
Manila, Branch 27 with the crimes of homicide
and frustrated homicide for the death of
Ildefonso Baltazar and the wounding of Edison
Baltazar. The cases, which were docketed as
Criminal Cases No. 97-154966 and No. 97154967, were presided by Judge Edgardo P.
Cruz (Judge Cruz).3
On 13 February 1997, petitioners Lourdes
Baltazar (Lourdes) and Edison Baltazar
(Edison), through counsel, filed a motion for
reinvestigation of the cases, praying that Jaime
and Jovito be charged with the crimes of murder
and frustrated murder, instead of homicide and
frustrated homicide.
In a Resolution dated 2 July 1997, the City
Prosecutors Office, upon reinvestigation, found
that the appropriate charges against Jaime and
Jovito were murder and frustrated murder. With
this, the City Prosecutor filed a motion for
admission of amended Informations for Murder
and Frustrated Murder, which was granted by
Judge Cruz in an Order dated 9 September
1997.
Jaime and Jovito appealed the 2 July 1997
Resolution of the City Prosecutor to the
Department of Justice (DOJ).
The Secretary of the DOJ (Secretary of Justice),
in his Resolution dated 20 October 1997,
modified the 2 July 1997 resolution of the City
Prosecutor by directing the latter to amend the
Informations for Murder and Frustrated Murder
to Homicide and Frustrated Homicide against
Jovito and to drop Jaime from the charges. On
13 November 1997, Lourdes and Edison filed a
motion for reconsideration of the 20 October
1997 Resolution of the Secretary of Justice,
which was denied by the latter on 15 December
1997.
Meanwhile, on 11 November 1997, in obedience
to the directive of the Secretary of the DOJ, the
City Prosecutor filed with the RTC a
Manifestation and Motion for the Withdrawal of
the Informations for Murder and Frustrated
Murder and for the Admission of New
Informations for Homicide and Frustrated
Homicide.
Over the objections of Lourdes and Edison,
Judge Cruz granted the said manifestation and
motion in an Order dated 18 November 1997,

thereby leaving Jovito as the lone accused. The


Order partly provides:
Having been presented prior to arraignment, the
motion for withdrawal of the information for
murder and frustrated murder is granted
pursuant to Sec. 14, Rule 110 of the Revised
Rules of Court. Consequently, the amended
information for murder and frustrated murder in
Crim. Cases Nos. 97-154966 and 97-154967,
respectively, are considered withdrawn.4
Unconvinced of the correctness of the dismissal
of the charges against Jaime and the
downgrading of the charges against Jovito,
Lourdes and Edison moved for a
reconsideration. They asked the RTC to
maintain the informations for murder and
frustrated murder against Jovito and Jaime and
asked the RTC to determine the existence of
probable cause for these charges, pursuant to
the ruling in Crespo v. Mogul,5 which ruled that
once an information is filed in court, the
disposition of said case lies in the discretion of
the trial court.
In the meantime, the cases were re-raffled to
Branch 37 of the Manila RTC presided over by
Judge Vicente A. Hidalgo (Judge Hidalgo) and
docketed as Criminal Cases No. 97-161168 and
No. 97-161169.
Despite the transfer of the cases to the sala of
Judge Hidalgo, Judge Cruz, nonetheless, acted
on Lourdes and Edisons motion for
reconsideration of the Order dated 18 November
1997. In his order dated 16 February 1998,
Judge Cruz denied the said motion on the
ground that the proper motion to amend the
informations for homicide and frustrated
homicide to murder and frustrated murder
should be filed before Branch 37, presided by
Judge Hidalgo, where said cases were
transferred; and that the amendment of
informations was a matter of right of the
prosecution before arraignment, thus:
[T]he Court is in no position to favorably act on
the instant motion. If, indeed, there is probable
cause for indicting both accused for the crimes
of murder and frustrated murder, the appropriate
motion (e.g. amendment of the information)
should be filed in Criminal Cases Nos. 97161168 and 97-161169 and not in these cases.
To rule otherwise would sanction multiple
charges (murder and homicide; and frustrated
murder and frustrated homicide) for a single
offense, thereby places accused in double
jeopardy x x x.6 (Emphasis supplied.)
On 4 March 1998, Lourdes and Edison filed
before Judge Cruz a Motion to Maintain the
Amended Informations for Murder and
Frustrated Murder. This motion mainly reiterates
Lourdes and Edisons objection to the dismissal
of the charges against Jaime and the
downgrading of the charges against Jovito.
On 1 April 1998, Judge Cruz denied the
foregoing motion on the ground that the same
was, in effect, a second motion for

reconsideration of the Order dated 18 November


1997, and that to act on the said motion would
interfere with the prerogative of Judge Hidalgo of
RTC Branch 37, where the cases were
transferred. The 1 April 1998 Order partly reads:
[T]his branch cannot act on the motion to
dismiss or consider withdrawn the informations
for homicide and frustrated homicide, otherwise,
it would be interfering with the prerogatives of
the other branch of this Court where those
criminal actions are pending.7
On 30 April 1998, Lourdes and Edison filed this
time before Judge Hidalgo a Motion for the
Amendment of the Informations for Homicide
and Frustrated Homicide, which actually
contained arguments identical with those in the
Motion to Maintain the Amended Informations for
Murder and Frustrated Murder filed by them on 4
March 1998; i.e., that the RTC should assert its
authority over said cases, independently of the
opinion of the Secretary of Justice, and make its
own assessment whether there is sufficient
evidence to hold both Jaime and Jovito liable for
the crime of murder and frustrated murder.
In an Order dated 7 December 2004, Judge
Hidalgo, after making his own assessment of the
documents presented by both the prosecution
and the defense, granted the motion and
ordered the reinstatement of the informations for
murder and frustrated murder. The decretal
portion of the Order reads:
WHEREFORE, in view of the foregoing, the
Informations for Homicide and Frustrated
Homicide are considered withdrawn and the
Court hereby orders the reinstatement of the
Informations for murder and frustrated murder x
x x.8
On 26 April 2005, Jaime and Jovito filed a
motion for reconsideration. They argued that the
RTC had no authority to make its own
independent findings of facts to determine
probable cause against them, apart from the
findings made by the Secretary of Justice. Judge
Hidalgo denied the said motion, opining that the
RTC had the power and duty to make an
evaluation to determine the existence of
probable cause for the charges, independent of
the opinion of the Secretary of Justice. The
dispositive part of the Order provides:
Accordingly, the Motion for Reconsideration filed
by the accused is hereby DENIED for lack of
basis x x x. Asst. City Prosecutor Ronaldo
Hubilla is hereby directed within 10 days from
receipt hereof to file amended Informations for
Murder and Frustrated Murder against Jovito
Armas, Jr. and Jaime Chua, respectively.9
Jaime then filed a petition for certiorari and
prohibition with the Court of Appeals. Again,
Jaime contended that Judge Hidalgo had no
authority to order the amendment of the
informations and to include him as co-accused,
since such powers and prerogatives revolved
exclusively on the Department of Justice and the
City Prosecutor.

In a Decision dated 24 January 2007, the Court


of Appeals granted Jaimes petition and nullified
the 7 December 2004 Order of Judge Hidalgo,
ruling that the same were issued in grave abuse
of discretion amounting to excess of jurisdiction.
In nullifying Judge Hidalgos Order, the Court of
Appeals held that Crespo was not applicable to
the instant case, since Judge Hidalgo, unlike in
the Crespo case, was not confronted with a
motion to dismiss or tasked to convict or to
acquit an accused. It maintained that the trial
court could only exercise its sound discretion on
what to do with cases filed before it in line with
Crespo, when there was a pleading calling for
the dismissal, conviction or acquittal of the
accused. Since Lourdes and Edisons Motion for
the Amendment of the Informations for Homicide
and Frustrated Homicide filed on 30 April 1998
was not a motion to dismiss nor one aimed at
convicting or acquitting the accused, then
Crespo found no relevance.
The Court of Appeals likewise stressed that the
7 December 2004 Order of Judge Hidalgo was a
patent nullity since it revived the earlier 18
November 1997 Order of Judge Cruz
withdrawing the charges against Jaime, which
had already attained finality on 6 October 1998.
Aggrieved, Lourdes and Edison filed the instant
petition.
We grant the petition.
The basic issue at hand is whether Judge
Hidalgo may review the finding of the Secretary
of Justice on the existence or non-existence of
probable cause sufficient to hold Jaime for trial
and substitute his judgment for that of the
Secretary of Justice.
The rule is that once an information is filed in
court, any disposition of the case, be it
dismissal, conviction, or acquittal of the
accused, rests on the sound discretion of the
court. Crespo v. Mogul10 laid down this basic
precept in this wise:
The rule therefore in this jurisdiction is that once
a complaint or information is filed in Court any
disposition of the case as [to] its dismissal or the
conviction or acquittal of the accused rests in the
sound discretion of the court. Although the fiscal
retains the direction and control of the
prosecution of criminal cases even while the
case is already in court he cannot impose his
opinion on the trial court. The court is the best
and sole judge on what to do with the case
before it. The determination of the case is within
its exclusive jurisdiction and competence. A
motion to dismiss the case filed by the fiscal
should be addressed to the Court who has the
option to grant or deny the same.
In observance of the tenet spelled out in Crespo,
the Court in Martinez v. Court of
Appeals11 lamented the trial courts grant of the
motion to dismiss filed by the prosecution, upon
the recommendation of the Secretary of Justice,
as the judge merely relied on the conclusion of
the prosecution, thereby failing to perform his

function of making an independent evaluation or


assessment of the merits of the case.
Crespo and Martinez mandated the trial courts
to make an independent assessment of the
merits of the recommendation of the prosecution
dismissing or continuing a case. This evaluation
may be based on the affidavits and counteraffidavits, documents, or evidence appended to
the information; the records of the public
prosecutor which the court may order the latter
to produce before the court; or any evidence
already adduced before the court by the
accused at the time the motion is filed by the
public prosecutor.12 Reliance on the resolution of
the Secretary of Justice alone is considered an
abdication of the trial courts duty and jurisdiction
to determine a prima facie case. While the ruling
of the Justice Secretary is persuasive, it is not
binding on courts.13The trial court is not bound
by the Resolution of the Justice Secretary, but
must evaluate it before proceeding with the trial.
Considering that the trial court has the power
and duty to look into the propriety of the
prosecutions motion to dismiss, with much more
reason is it for the trial court to evaluate and to
make its own appreciation and conclusion,
whether the modification of the charges and the
dropping of one of the accused in the
information, as recommended by the Justice
Secretary, is substantiated by evidence. This
should be the state of affairs, since the
disposition of the case -- such as its continuation
or dismissal or exclusion of an accused -- is
reposed in the sound discretion of the trial
court.14
In the case under consideration, the City
Prosecutor indicted Jaime and Jovito for the
crimes of murder and frustrated murder.
However, upon review, the Secretary of Justice
downgraded the charges to homicide and
frustrated homicide. The Secretary also dropped
Jaime from the charges. This resolution
prompted the City Prosecutor to file a
Manifestation and Motion for the Withdrawal of
the Informations for Murder and Frustrated
Murder and for the Admission of New
Informations for Homicide and Frustrated
Homicide against Jovito only, which was granted
by Judge Cruz in his Order dated 18 November
1997. Judge Cruz, however, failed to make an
independent assessment of the merits of the
cases and the evidence on record or in the
possession of the public prosecutor. In granting
the motion of the public prosecutor to withdraw
the Informations, the trial court never made any
assessment whether the conclusions arrived at
by the Secretary of Justice was supported by
evidence. It did not even take a look at the
bases on which the Justice Secretary
downgraded the charges against Jovito and
excluded Jaime therefrom. The said order reads:
For resolution is the prosecutions motion to
withdraw the amended information for murder
and frustrated murder and to admit, in lieu
thereof, the information for homicide and
frustrated homicide. (Manifestation and Motion
dated November 6, 1997). The motion was filed

in compliance with the resolution of the


Secretary of Justice dated October 20, 1997
directing the City Prosecutor "to amend the
information from murder and frustrated murder
to homicide and frustrated homicide against
Jovito Armas, Jr. and to drop Jaime Chua from
the charges.
Having been presented prior to arraignment, the
motion for withdrawal of the information for
murder and frustrated murder is granted
pursuant to Sec. 14, Rule 110 of the Revised
Rules of Court. Consequently, the amended
information for murder and frustrated murder in
Crim. Cases Nos. 97-154966 and 97-154967,
respectively are considered withdrawn.15
In so doing, the trial court relinquished its judicial
power in contravention to the pronouncement of
the Court in Crespo and in Martinez.
Judge Cruz did not have a chance to correct his
error since, during the pendency of the motion
for reconsideration questioning his order dated
18 November 1997, the cases were
subsequently transferred to another branch
which was presided by Judge Hidalgo. Thus, in
his supposed order resolving the said motion for
reconsideration, Judge Cruz merely
recommended to the movants to go to Judge
Hidalgo, who now had jurisdiction over the
cases, and to question therein whether the
downgrading of the crimes charged against
Jovito and the exclusion of Jaime therefrom
were proper. Judge Cruz ruled in this wise:
[T]he Court is in no position to favorably act on
the instant motion. If, indeed, there is probable
cause for indicting both accused for the crimes
of murder and frustrated murder, the appropriate
motion (e.g. amendment of the information)
should be filed in Criminal Cases Nos. 97161168 and 97-161169 and not in these cases.
To rule otherwise would sanction multiple
charges (murder and homicide; and frustrated
murder and frustrated homicide) for a single
offense, thereby placing accused in double
jeopardy x x x.16 (Emphasis supplied.)
Heeding the advice of Judge Cruz, Lourdes and
Edison, went to Judge Hidalgo where they
questioned anew the downgrading by the
Justice Secretary of the charges against Jovito
and the exclusion of Jaime from the charges.
After a thorough evaluation of the evidence
available vis-a-vis the Resolution of the Justice
Secretary, Judge Hidalgo disagreed with those
findings. He found that the proper charges
against Jovito were murder and frustrated
murder and not homicide and frustrated
homicide. He, likewise, believed that Jaime was
involved in these crimes. The discussion of
Judge Hidalgos Order dated 7 December 2004
is as follows:
In the affidavit executed by the private
complainant Lourdes Baltazar, she positively
identified Jaime Chua, who was just outside the
door of the subject apartment, as the one who
handed the gun to Jovito Armas, Jr.
simultaneously directing the latter to fire the

same to the deceased by telling "iyan tirahin


mo." This was confirmed by Edison Baltazar, the
son of the deceased, who has a more vivid
recollection of the incident, he being present in
the scene when the incident occurred and more
so, a victim too, who was mortally wounded in
the crime complained of. He declared that his
father was shot while both his hands were
already raised as a manifestation that he has
(sic) no intention to fight Jaime Chua and Jovito
Armas, Jr. Ildefonso turned his back to back off
and leave the aggressors but despite thereof
Jovito Armas, Jr. proceeded to carry out the
commands of his boss Jaime Chua, resulting in
the death of helpless Ildefonso Baltazar.
When his father fell on the ground, he saw
Jovito Armas who was about to shoot again his
father. So, he surged to his father and covered
the latter with his own body as a shield causing
him to be shot in the process.
The summary of evidence demonstrates that
there is a prima facie facts showing the
presence of the element of treachery in the case
at bar. The circumstance shows that the
shooting was sudden and unexpected to the
deceased constituting the element of alevosia
necessary to raise homicide to murder, it
appearing that the aggressor adopted such
mode of attack to facilitate the perpetration of
the killing without risk to himself. This is evident
since Jovito Armas, Jr. could have fired the gun
to the anterior body of Ildefonso Baltazar while
the latter was still facing him. But to insure the
commission of the killing or to make it
impossible or difficult for Ildefonso to retaliate or
defend himself, Jovito did the shooting when
Ildefonso manifested to retreat. The postmortem
findings confirmed that he was shot at the right
side of his abdomen. The position of the victim,
and the part of his body where the bullet passed
through show that the sudden (sic) the act of
shooting made by Jovito Armas, Jr. was
purposely carried out without danger to himself
of any retaliation from the victim. Hence,
element of treachery apparently exist.
From the statements of the witnesses for the
prosecution, a prima facie evidence sufficient to
form a reasonable belief that Jaime Chua is
likewise criminally liable as principal by
induction.
In the incipiency, Jaime Chua appears to be the
only adversary of Clarita Tan and thereafter the
Baltazars whom Tan called up for intervention in
that afternoon. There was an admission that
Jaime Chua is the brother-in-law of Jovito
Armas, Jr. and the latter likewise work for the
former as bodyguard. Futhermore, Chua was
present when the incident happened being just a
few meters from Jovito Armas and from
Ildefonso who was at the door of Chuas
apartment when the altercation between him
and Ildefonso began. Edison who was beside
his father narrated that he saw Chua handed the
gun to Jovito Armas simultaneously
commanding the latter: "Tirahin mo iyan"
pointing at his father. Clearly, a prima facie
evidence shows that Jovito Armas could not

have shot the deceased had not Chua ordered


him to do so. Jovito Armas had no existing
animosity with the deceased nor with Clarita
Tan. Rather, it was Chua who apparently
infuriated to the Clarita Tan and the persons who
came to her assistance in that afternoon.

dismiss or to withdraw an information or to


exclude an accused from the charge (as
heretofore discussed) upon the behest of the
Secretary of Justice, the trial court has to
determine the merits of the same, and not be
subservient to the former.

The positive and direct testimony of victim


Edison Baltazar and other witnesses for the
prosecution indeed support a finding of probable
cause. Settled is the rule that the finding of
probable cause is based neither on clear and
convincing evidence of guilt nor evidence
establishing absolute certainty of guilt. It is
merely based on opinion and reasonable belief,
and so it is enough that there exists such state
of facts as would lead a person of ordinary
caution and prudence to believe or entertain an
honest or strong suspicion that the accused
committed the crime imputed.

The Court of Appeals insisted that the instant


case did not involve a disposal that would call
for the trial courts power to grant or deny the
same.

Upon the other hand, the version of the defense


that it was Ildefonso himself who shot his own
son is, at the stage of the proceeding, incredible
considering the close distance of the Ildefonso
from Jovito Armas and Jaime Chua. Had he
really willed to fire the gun, which the defense
alleges Ildefonso possessed, to Chua and
Armas there is a slim chance of missing them in
four successive shots. Besides, the statements
of the witnesses for the defense failed to provide
clear details on how the shooting transpired in
contract with the clear testimonies of the
witnesses for the prosecution. At most the
statements made for the defense are generally
summation of facts, the details of which is yet to
be supported by evidence to be presented and
which should properly be ventilated in the
course of the trial on the merits. Further, the
Court is of the opinion that discussing the merits
of the defense at this stage of the proceedings
would result on probable prejudgment of the
case.
WHEREFORE, in view of the foregoing, the
Informations for Homicide and Frustrated
Homicide are considered withdrawn and the
Court hereby orders the reinstatement of the
Informations for murder and frustrated murder in
Criminal Case Nos. 97454966 and 9745496,
respectively.17
In its questioned Decision, the Court of Appeals
held that Judge Hidalgo gravely abused his
discretion amounting to excess of jurisdiction in
issuing the foregoing order.
There is excess of jurisdiction where, being
clothed with the power to determine the case,
the tribunal, board or officer oversteps its/his
authority as determined by law.18 And there is
grave abuse of discretion where the capricious,
whimsical, arbitrary or despotic manner in which
the court, tribunal, board or officer exercises
its/his judgment is said to be equivalent to lack
of jurisdiction.191avvphi1
Judge Hidalgo is far from being abusive in
rendering his questioned Order. He was merely
following the injunctions of this Court that
whenever a court is presented with a motion to

This is inaccurate. Lourdes and Edisons Motion


for the Amendment of the Informations for
Homicide and Frustrated Homicide, filed on 30
April 1998, was questioning the dismissal of the
cases against Jaime and the downgrading of the
charges against Jovito. The exclusion of Jaime
from the charges was not only disposing the
cases against him, but also letting him free from
any criminal liabilities arising from the death of
Ildefonso Baltazar and the wounding of Edison.
As to the appellate courts holding that the 7
December 2004 Order of Judge Hidalgo revived
the final order of Judge Cruz dated 18
November 1997, the same needs clarification.
It must be noted that the 18 November 1997
Order of Judge Cruz granting the motion of the
prosecution to Withdraw the Information for
Murder and Frustrated Murder was in effect an
affirmation by the trial court of the Justice
Secretarys directive to downgrade the crimes
against Jovito and to exclude Jaime from these
crimes. As discussed earlier, such grant by
Judge Cruz, absent any independent evaluation
on his part of the merits of the resolution of the
Justice Secretary, constituted an abdication of
his power, rendering the said Order void. The
rule in this jurisdiction is that orders which are
void can never attain finality.20 Since the 18
November 1997 Order is void, the same has
never attained finality. Besides, assuming
arguendo that the 18 November 1997 Order was
valid, the same could not have an adverse effect
on the 7 December 2004 Order of Judge
Hidalgo. As has been noted, a timely motion for
reconsideration was filed on the 18 November
1997 Order and Judge Cruz merely stated
therein that he could not resolve the merits of
the dropping of Jaime from all the cases and the
downgrading of the crimes charged since the
subject cases were already transferred to Judge
Hidalgo. In the subject order of Judge Cruz, he
even stated that the said issues could only be
resolved by Judge Hidalgo, before whom the
cases were pending. In other words, since
Judge Cruz was divested of jurisdiction, the
issue of the dropping of Jaime from all charges
and the downgrading of the charges against
Jovito was not resolved by the 18 November
1997 Order. It was therefore proper for Judge
Hidalgo to resolve such issue since he had
jurisdiction over the cases.
WHEREFORE, the Decision of the Court of
Appeals dated 24 January 2007 nullifying the 7
December 2004 Order of the Regional Trial
Court of Manila, Branch 37 is hereby SET
ASIDE. The 7 December 2004 Order of RTC

Branch 37, directing the filing of Informations for


Murder and Frustrated Murder against Jovito
Armas, Jr. and Jaime Chua, is REINSTATED.

DECISION

SO ORDERED.

Petitioners Bienvenido Dio and Renato


Comparativo assail the Decision2 of the Court of
Appeals dated 28 September 2005 in CA-G.R.
SP No. 89230, nullifying the Orders3 dated 12
January 2005, 9 March 2005, and 31 March
2005 of Judge Fortunito L. Madrona of Branch
274 of the Regional Trial Court (RTC) of
Paraaque City, in Criminal Cases No. 04-1104
and No. 04-1105.

Footnotes
*

Per Special Order No. 564, dated 12 February


2009, signed by Chief Justice Reynato S. Puno,
designating Associate Justice Leonardo A.
Quisumbing to replace Associate Justice
Consuelo Ynares-Santiago, who is on official
leave under the Courts Wellness Program.
**

Per Special Order No. 568, dated 12 February


2009, signed by Chief Justice Reynato S. Puno,
designating Associate Justice Antonio T. Carpio
to replace Associate Justice Ma. Alicia AustriaMartinez, who is on official leave under the
Courts Wellness Program.

CHICO-NAZARIO, J.:

Petitioners instituted a complaint for vote buying


against respondent Pablo Olivarez. Based on
the finding of probable cause in the Joint
Resolution issued by Assistant City Prosecutor
Antonietta Pablo-Medina, with the approval of
the city prosecutor of Paraaque, two
Informations4 were filed before the RTC on 29
September 2004 charging respondent Pablo
Olivarez with Violation of Section 261,
paragraphs a, b and k of Article XXII of the
Omnibus Election Code, which read:
Criminal Case No. 04-1104
That on or about the 10th day of May 2004, in
the City of Paraaque, Philippines, and within
the jurisdiction of this Honorable Court, the
above-named accused, Remedios Malibiran and
Pablo Olivarez, conspiring and confederating
together and both of them mutually helping and
aiding one another, did then and there willfully,
unlawfully and feloniously, engage in vote buying
activities on election day of May 10, 2004, by
distributing or giving Uniwide gift certificates, a
thing of value, as consideration to induce or
influence the voters to vote for candidate Pablo
Olivarez, a candidate for the City Mayor of
Paraaque, in violation of Omnibus Election
Code.
Criminal Case No. 04-1105

Republic of the Philippines


SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 170447

June 23, 2009

BIENVENIDO DIO and RENATO


COMPARATIVO, Petitioners,
vs.
PABLO OLIVAREZ,1 Respondent.

That on or about the 10th day of May, 2004, in


the City of Paraaque, Philippines, and within
the jurisdiction of this Honorable Court, the
above-named accused, Carmelo Jaro and Pablo
Olivarez, conspiring and confederating together
and both of them mutually helping and aiding
one another, did then and there willfully,
unlawfully and feloniously, engage in vote buying
activities on election day of May 10, 2004, by
distributing or giving Uniwide gift certificates, a
thing of value, as consideration to induce or
influence the voters to vote for candidate Pablo
Olivarez, a candidate for the City Mayor of
Paraaque, in violation of the Omnibus Election
Code.
The arraignment of the respondent was initially
set on 18 October 2004.5
On 7 October 2004, respondent filed before the
Law Department of the Commission on
Elections (COMELEC) an "[a]ppeal of [the] Joint
Resolution of the City Prosecutor of Paraaque
City with Motion to Revoke Continuing Authority"

pursuant to Section 10, Rule 34 of the 1993


COMELEC Rules of Procedure. Respondent
argued that the pendency of the appeal of the
Joint Resolution before the COMELEC should
prevent the filing of the Informations before the
RTC as there could be no final finding of
probable cause until the COMELEC had
resolved the appeal. Moreover, he argued that
the charges made against him were
groundless.6
In a letter7 dated 11 October 2004, the Law
Department of the COMELEC directed the city
prosecutor to transmit or elevate the entire
records of the case and to suspend further
implementation of the Joint Resolution dated 20
September 2004 until final resolution of the said
appeal before the COMELEC en banc.
On 11 October 2004, respondent filed a Motion
to Quash the two criminal informations on the
ground that more than one offense was charged
therein, in violation of Section 3(f), Rule 117 of
the Rules of Court, in relation to Section 13,
Rule 110 of the Rules of Court.8 This caused the
resetting of the scheduled arraignment on 18
October 2004 to 13 December 2004.9
Before Judge Madrona could act on the motion
to quash, Assistant Prosecutor Pablo-Medina,
with the approval of the city prosecutor, filed on
28 October 2004 its "Opposition to the Motion to
Quash and Motion to Admit Amended
Informations.10 " The Amended Informations
sought to be admitted charged respondent with
violation of only paragraph a, in relation to
paragraph b, of Section 261, Article XXII of the
Omnibus Election Code.11
On 1 December 2004, Judge Madrona issued
an Order resetting the hearing scheduled on 13
December 2004 to 1 February 2005 on account
of the pending Motion to Quash of the
respondent and the Amended Informations of
the public prosecutor.12
On 14 December 2004, respondent filed an
"Opposition to the Admission of the Amended
Informations," arguing that no resolution was
issued to explain the changes therein,
particularly the deletion of paragraph k, Section
261, Article XXII of the Omnibus Election Code .
Moreover, he averred that the city prosecutor
was no longer empowered to amend the
informations, since the COMELEC had already
directed it to transmit the entire records of the
case and suspend the hearing of the cases
before the RTC until the resolution of the appeal
before the COMELEC en banc.13
On 12 January 2005, Judge Madrona issued an
order denying respondents Motion to Quash
dated 11 October 2004, and admitted the
Amended Informations dated 25 October
2004.14 Respondent filed an Urgent Motion for
Reconsideration dated 20 January 2005
thereon.15
On 1 February 2005, Judge Madrona reset the
arraignment to 9 March 2005, with a warning
that the arraignment would proceed without any

more delay, unless the Supreme Court would


issue an injunctive writ.16
On 9 March 2005, respondent failed to appear
before the RTC. Thereupon, Judge Madrona, in
open court, denied the Motion for
Reconsideration of the Order denying the Motion
to Quash and admitting the Amended
Informations, and ordered the arrest of
respondent and the confiscation of the cash
bond.17
On 11 March 2005, respondent filed an "Urgent
Motion for Reconsideration and/or to Lift the
Order of Arrest of Accused Dr. Pablo
Olivarez,"18 which was denied in an Order dated
31 March 2005. The Order directed that a bench
warrant be issued for the arrest of respondent to
ensure his presence at his arraignment.19
On 5 April 2005, the Law Department of the
COMELEC filed before the RTC a Manifestation
and Motion20wherein it alleged that pursuant to
the COMELECs powers to investigate and
prosecute election offense cases, it had the
power to revoke the delegation of its authority to
the city prosecutor. Pursuant to these powers,
the COMELEC promulgated Resolution No.
745721 dated 4 April 2005. The dispositive
portion of Resolution No. 7457 states:
Considering the foregoing, the Commission
RESOLVED, as it hereby RESOLVES, to
APPROVE and ADOPT the recommendation of
the Law Department as follows:
1. To revoke the deputation of the Office of the
City Prosecutor of Paraaque to investigate and
prosecute election offense cases insofar as I.S.
Nos. 04-2608 and 04-2774, entitled "Renato
Comparativo vs. Remedios Malabiran and Pablo
Olivarez" and "Bienvenido et. al. vs. Sally Rose
Saraos, et. al.," respectively, are concerned; and
2. To direct the Law Department to handle the
prosecution of these cases and file the
appropriate Motion and Manifestation before the
Regional Trial Court of Paraaque, Branch 274,
to hold in abeyance further proceedings on
Criminal Case Nos. 1104 and 1105 until the
Commission has acted on the appeal of
respondents.
Let the Law Department implement this
Resolution.
Thus, the Law Department of the COMELEC
moved (1) that the RTC hold in abeyance further
proceedings in Criminal Cases No. 04-1104 and
No. 04-1105 until the COMELEC has acted on
respondents appeal; and (2) to revoke the
authority of the city prosecutor of Paraaque to
prosecute the case, designating therein the
lawyers from the Law Department of the
COMELEC to prosecute Criminal Cases No. 041104 and No. 04-1105.
On 8 April 2005, respondent filed a Special Civil
Action for Certiorari before the Court of Appeals
docketed as CA-G.R. SP No. 89230, assailing

the Orders, dated 12 January 2005, 9 March


2005 and 31 March 2005 of the RTC. The
appellate court granted the appeal in a Decision
dated 28 September 2005 declaring that the
COMELEC had the authority to conduct the
preliminary investigation of election offenses and
to prosecute the same. As such, the COMELEC
may delegate such authority to the Chief State
Prosecutor, provincial prosecutors, and city
prosecutors. The COMELEC, however, has the
corresponding power, too, to revoke such
authority to delegate. Thus, the categorical order
of the COMELEC to suspend the prosecution of
the case before the RTC effectively deprived the
city prosecutor of the authority to amend the two
informations. The appellate court also
pronounced that Judge Madrona erred in
admitting the amended informations, since they
were made in excess of the delegated authority
of the public prosecutor, and his orders to arrest
the respondent and to confiscate the latters
cash bond were devoid of legal basis.22 The fallo
of the Decision reads:
UPON THE VIEW WE TAKE OF THIS CASE,
THUS, the petition at bench must be, as it
hereby is, GRANTED. The impugned Orders of
the public respondent Judge Fortunito L.
Madrona of Branch 274, Regional Trial Court of
Paraaque City dated 12 January 2005, 9 March
2005, and 31 March 2005 are hereby VACATED
and NULLIFIED. The Temporary Restraining
Order issued in the instant petition is made
PERMANENT. Without costs in this instance.23
Hence, the present petition under Rule 65 where
the petitioners enumerate the following
assignments of error, to wit:
I
THE HONORABLE COURT OF APPEALS
ERRED IN NULLIFYING THE ORDER OF THE
COURT A QUO AS IT BASICALLY ERRED IN
ITS APPRECIATION THAT THE TWO
AMENDED INFORMATIONS WERE FILED AT A
TIME WHEN THE PUBLIC PROSECUTOR HAD
NO MORE AUTHORITY TO DO SO;
II
THE HONORABLE COURT OF APPEALS
ERRED IN GIVING CREDENCE TO
ACCUSEDS ALLEGATION THAT COMELEC
RESOLUTION WAS RECEIVED BY THE
PROSECUTOR "DAYS BEFORE THE (sic)
FILED THE AMENDED INFORMATIONS;"
III
THE HONORABLE COURT OF APPEALS
ERRED IN DECLARING AS PERMANENT THE
TEMPORARY RESTRAINING ORDER
EARLIER ISSUED.24
This Court finds merit in the present petition.
At the outset, it should be noted that the
appropriate remedy for petitioners is to file a
petition for review on certiorari under Rule 45 of

the Rules of Court, and not a petition for


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

The Chief State Prosecutor, all Provincial and


City Fiscals, and/or their respective assistants
are herby given continuing authority, as deputies
of the Commission, to conduct preliminary
investigation of complaints involving election
offenses under the election laws which may be
filed directly with them, or which may be
indorsed to them by the Commission or its duly
authorized representative and to prosecute the
same. Such authority may be revoked or
withdrawn any time by the Commission
whenever in its judgment such revocation or
withdrawal is necessary to protect the integrity of
the Commission, promote the common good, or
when it believes that successful prosecution of
the case can be done by the Commission.
Furthermore, Section 10 of the COMELEC
Rules of Procedure provides that the COMELEC
is empowered to revise, modify and reverse the
resolution of the Chief State Prosecutor and/or
provincial/city prosecutors.
Section 10. Appeals from the Action of the State
Prosecutor, Provincial or City Fiscal.Appeals
from the resolution of the State Prosecutor or
Provincial or City Fiscal on the recommendation
or resolution of investigating officers may be
made only to the Commission within ten (10)
days from receipt of the resolution of said
officials, provided, however that this shall not
divest the Commission of its power to motu
proprio review, revise, modify or reverse the
resolution of the chief state prosecutor and/or
provincial/city prosecutors. The decision of the
Commission on said appeals shall be
immediately executory and final.
Be that as it may, this Court finds that the public
prosecutors, in filing the Amended Informations,
did not exceed the authority delegated by the
COMELEC. Resolution No. 7457, which
effectively revoked the deputation of the Office
of the City Prosecutor of Paraaque, was issued
on 4 April 2005, after the Amended Informations
were filed on 28 October 2004. The letter dated
11 October 2004, written by Director Alioden D.
Dalaig of the COMELEC Law Department, did
not revoke the continuing authority granted to
the City Prosecutor of Paraaque. It simply
reads:
In this connection, you are hereby directed to
transmit the entire records of the case to the
Law Department, Commission on Elections,
Intramuros, Manila by the fastest means
available. You are further directed to suspend
further implementation of the questioned
resolution until final resolution of said appeal by
the Comelec En Banc.26
The filing of the Amended Informations was not
made in defiance of these instructions by the
COMELEC; rather it was an act necessitated by
the developments of the case. Respondent filed
a Motion to Quash on 11 October 2004 on the
ground that more than one offense was charged
therein. Section 14, Rule 110 of the Rules on
Criminal Procedure, provides:

Section 14.Amendment or substitution. A


complaint or information may be amended, in
form or in substance, without leave of court, at
any time before the accused enters his plea.
After the plea and during the trial, a formal
amendment may only be made with leave of
court and when it can be done without causing
prejudice to the rights of the accused. x x x.
(Emphasis provided.)
Since the Rules of Court provided for a remedy
that would avert the dismissal of the complaints
on the ground that more than one offense was
charged, the public prosecutor filed the
Amended Informations. The instructions of the
COMELEC, in the letter dated 11 October 2004,
were clearly intended to allow sufficient time to
reconsider the merit of the Joint Resolution, not
to have the public prosecutor abandon the
prosecution of the case and negligently allow its
dismissal by not filing the Amended
Informations, thus, leaving the COMELEC in a
quandary should it later dismiss the appeal
before it. By filing the Amended Informations, the
public prosecutor had avoided such an
undesirable situation, which would have forced
the COMELEC to re-file the cases, waste
government resources, and delay the
administration of justice. Thus, the precautionary
measure taken by the public prosecutor was
clearly not intended to disobey the COMELEC,
or to flout its authority or diminish its powers to
review the appealed Joint Resolution. As such,
the filing of the Amended Informations cannot in
any way be considered improper. Consequently,
Judge Madrona acted in accordance with law
when he admitted these Informations and
dismissed the respondents Motion to Quash, as
the ground stated thereinthe informations
charged more than one offensecould no
longer be sustained.
Moreover, no abuse of discretion can be
attributed to Judge Madrona when he issued the
Orders, dated 9 March 2005 and 31 March
2005, for the arrest of the respondent due to his
failure to be present for his arraignment and for
the confiscation of his cash bond. These Orders
are consistent with criminal procedure.
The filing of an information in the trial court
initiates a criminal action. The trial court thereby
acquires jurisdiction over the case. After the
filing of the complaint or the information, a
warrant for the arrest of the accused is issued by
the trial court. When the accused voluntarily
submits himself to the court or is duly arrested,
the court then acquires jurisdiction over the
person of the accused.27 In this case, the trial
court acquired jurisdiction over the persons of
the accused Carmelo Jaro, Remedios
Malibaran, and the respondent, who posted bail
bonds after the trial court issued a Warrant of
Arrest on 4 October 2004. While it is true that
the fiscal has the quasi-judicial discretion to
determine whether or not a criminal case should
be filed in court, once the case has been
brought to court, whatever disposition the fiscal
may feel is proper in the case should be
addressed to the consideration of the trial
court.28

Thereafter, arraignment shall follow as a matter


of course. Section 11, Rule 116 of the Rules of
Criminal Procedure, enumerates the instances
that can suspend the arraignment of the
accused:
Section 11. Suspension of arraignment.Upon
motion of the proper party, the arraignment shall
be suspended in the following cases:
xxxx
(c) A petition for review of the resolution of the
prosecutor is pending at either the Department
of Justice, or the Office of the President;
Provided, That the period of suspension shall
not exceed sixty (60) days counted from the
filing of the petition with the reviewing office.

No. 12, dated 3 July 2000, which mandates that


the period for the disposition of appeals or
petitions for review shall be 75 days.31
WHEREFORE, the instant appeal is GRANTED.
The Decision of the Court of Appeals dated 28
September 2005 in CA-G.R. SP No. 89230 is
REVERSED. This Court orders the continuation
of the proceedings in Criminal Cases No. 041104 and No. 04-1105 before the RTC, the
prosecution of which shall be under the direction
of the Law Department of the COMELEC. No
costs.
SO ORDERED.
Footnotes
1

From the foregoing, it is clear that the


arraignment of the accused is not indefinitely
suspended by the pendency of an appeal before
the Department of Justice or, in this case, Law
Department of the COMELEC; rather, the
reviewing authority is allowed 60 days within
which to decide the appeal. In this case,
respondent filed his Appeal of the Joint
Resolution at the Office of the City Prosecutor of
Paraaque on 7 October 2004. Thus, the
arraignment that was scheduled on 11 October
2004 was re-scheduled to 13 December 2004,
approximately 60 days thereafter. On 1
December 2004, the arraignment scheduled on
13 December 2004 was reset to 1 February
2005 because of the pending Motion to Quash.
When the respondent failed to appear on the
scheduled arraignment, Judge Madrona
nonetheless reset the arraignment to 9 March
2005, with the warning that the court would
impose the appropriate sanctions, should
respondent still fail to appear therein. It was only
on 9 March 2005, or five months after the
respondent filed his appeal before the Law
Department of the COMELEC that Judge
Madrona held the arraignment and issued the
Bench Warrant of Arrest against
respondent.29 Five months, which far exceeded
the sixty days provided by the rules, was ample
time for the respondent to obtain from
COMELEC a reversal of the Joint Resolution.
In pronouncing that Judge Madrona acted in
grave abuse of discretion when he failed to defer
the arraignment of the respondent, the Court of
Appeals cited Solar Team Entertainment, Inc. v.
Judge How,30 wherein this Court cautioned
judges to refrain from precipitately arraigning the
accused to avoid any miscarriage of justice.
However, this case was decided before the
Rules of Criminal Procedure were revised on 1
December 2000; and the rule setting the 60-day
period for the suspension of the arraignment of
the accused pending an appeal or a petition for
review before a reviewing authority was not yet
applicable. Nevertheless, it should be noted that
even in Solar, this Court did not sanction an
indefinite suspension of the proceedings in the
trial court. Its reliance on the reviewing authority,
the Justice Secretary, to decide the appeal at the
soonest possible time was anchored on the rule
provided under Department Memorandum Order

Under Section 2, Rule 42 of the Rules of Court,


public respondents need not be included in the
title as either petitioners or respondents.
2

Penned by Associate Justice Renato C.


Dacudao with Associate Justices Lucas P.
Bersamin (now an Associate Justice of the
Supreme Court) and Celia C. Librea-Leagogo,
concurring; rollo, pp. 10-29.
8

Section 13, Rule 110 of the Rules of Court


reads:
Section 13. Duplicity of the offense.A
complaint or information must charge only one
offense, except when the law prescribes a single
punishment for various offenses.

PEOPLE OF THE PHILIPPINES, appellee,


vs.
MARLENE OLERMO @ Marlene
Tolentino, appellant.
AZCUNA, J.:
In separate informations filed before the
Regional Trial Court (RTC) of Valenzuela, Metro
Manila, Branch 172, Marlene Olermo a.k.a.
Marlene Tolentino was accused of illegal
recruitment in large scale and five counts of
estafa.
In Criminal Case No. 2860-V-93, a prosecution
for illegal recruitment in large scale, the
information reads:
That during the period of February to June 1993,
in Valenzuela, Metro Manila and within the
jurisdiction of this Honorable Court, the abovenamed accused, representing herself to have
the capacity to contract, enlist and recruit
workers for employment abroad, did then and
there wil[l]fully and unlawfully, for a fee, recruit
and promise employment/job placement in a
large scale to ARISTON B. VILLANUEVA,
MARY JANE AQUINO-VILLANUEVA, ALFRED
BRYANT BERADOR, FRENNIE MAJARUCON
and WILFREDO TUBALE, without said accused
having secured first the necessary license or
authority to engage in recruitment activity from
the Philippine Overseas Employment
Administration (POEA), in violation of the
aforementioned provision of Law.
Contrary to Law.1
The five informations for estafa, on the other
hand, docketed as Criminal Cases Nos. 2861-V93, 2862-V-93, 2863-V-93, 2864-V-93, and
2865-V-93, allege that the appellant violated
paragraph 2(a), Article 315 of the Revised Penal
Code, thus:
In Criminal Case No. 2861-V-93:

Republic of the Philippines


SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 127848

July 17, 2003

That sometime in the month of February 1993 or


thereabouts in Valenzuela, Metro Manila and
within the jurisdiction of this Honorable Court,
the above-named accused, defrauded and
deceived one NAPOLEON APARICIO y
CLEMENTE in the following manner to wit: said
accused, by means of false manifestations and
fraudulent representation made to the said
complainant to the effect that she has the
capacity and power to recruit and employ
complainant abroad and facilitate the necessary
amount to meet the requirements thereof,
knowing said manifestations and representation
to be false and fraudulent and made only to
induce said complainant to give, as in fact, the

latter did give and deliver to said accused cash


money amounting to P40,000, but said accused,
once in possession of the same, with intent to
defraud and deceive the herein complainant, did
then and there willfully, unlawfully and
feloniously misapply, misappropriate and convert
[the same] to her own personal use and benefit,
[and] despite demands made upon her to return
the said amount of P40,000, said accused failed
and refused and still fails and refuses to do so,
to the damage and prejudice of the complainant
in the aforementioned amount of P40,000.

complainant to give, as in fact, the latter did give


and deliver to said accused cash money
amounting to P35,000, but said accused, once
in possession of the same, with the intent to
defraud and deceive the herein complainant, did
then and there willfully, unlawfully and
feloniously misapply, misappropriate and convert
[the same] to her own personal use and benefit,
[and] despite demands made upon her to return
the said amount of P35,000, said accused failed
and refused and still fails and refuses to do so,
to the damage and prejudice of the complainant
in the aforementioned amount of P35,000.

Contrary to Law.2
Contrary to Law.4
In Criminal Case No. 2862-V-93:
In Criminal Case No. 2864-V-93:
That sometime in May 1993 or thereabouts in
Valenzuela, Metro Manila and within the
jurisdiction of this Honorable Court, the abovenamed accused, defrauded and deceived one
MARY JANE AQUINO-VILLANUEVA in the
following manner to wit: said accused, by means
of false manifestations and fraudulent
representation made to the said complainant to
the effect that she has the capacity and power to
recruit and employ complainant abroad and
facilitate the necessary amount to meet the
requirements thereof knowing said
manifestations and representation to be false
and fraudulent and made only to induce said
complainant to give, as in fact, the latter did give
and deliver to said accused cash money
amounting to P35,000, but said accused, once
in possession of the same, with intent to defraud
and deceive the herein complainant, did then
and there willfully, unlawfully and feloniously
misapply, misappropriate and convert [the same]
to her own personal use and benefit, [and]
despite demands made upon her to return the
said amount of P35,000, said accused failed and
refused and still fails and refuses to do so, to the
damage and prejudice of the complainant in the
aforementioned amount of P35,000.

That sometime in the month of March 1993 or


thereabouts in Valenzuela, Metro Manila and
within the jurisdiction of this Honorable Court,
the above-named accused, defrauded and
deceived one FRENNIE MAJARUCON y BACO
in the following manner to wit: said accused, by
means of false manifestations and fraudulent
representation made to the said complainant to
the effect that she has the capacity and power to
recruit and employ complainant abroad and
facilitate the necessary amount to meet the
requirements thereof, knowing said
manifestations and representation to be false
and fraudulent and made only to induce said
complainant to give, as in fact, the latter did give
and deliver to said accused, cash money
amounting to P20,000, but said accused, once
in possession of the same, with intent to defraud
and deceive the herein complainant, did then
and there willfully, unlawfully and feloniously
misapply, misappropriate and convert [the same]
to her own personal use and benefit, [and]
despite demands made upon her to return the
said amount of P20,000, said accused failed and
refused and still fails and refuses to do so, to the
damage and prejudice of the complainant in the
aforementioned amount of P20,000.

Contrary to Law.3
Contrary to Law.5
In Criminal Case No. 2863-V-93:
In Criminal Case No. 2865-V-93:
That sometime in May and June 1993 or
thereabouts in Valenzuela, Metro Manila and
within the jurisdiction of this Honorable Court,
the above-named accused, defrauded and
deceived one ARISTON B. VILLANUEVA in the
following manner to wit: said accused, by means
of false manifestations and fraudulent
representation made to the said complainant to
the effect that she has the capacity and power to
recruit and employ complainant abroad and
facilitate the necessary amount to meet the
requirement thereof, knowing said
manifestations and representation to be false
and fraudulent and made only to induce said

That sometime in the month of February 1993 or


thereabouts in Valenzuela, Metro Manila and
within the jurisdiction of this Honorable Court,
the above-named accused, defrauded and
deceived one ALFRED BRYANT BERADOR y
OCHOA in the following manner to wit: said
accused, by means of false manifestations and
fraudulent representation made to the said
complainant to the effect that she has the
capacity and power to recruit and employ
complainant abroad and facilitate the necessary
amount to meet the requirements thereof,
knowing said manifestations and representation

to be false and fraudulent and made only to


induce said complainant to give, as in fact, the
latter did give and deliver to said accused cash
money amounting to P25,350, but said accused,
once in possession of the same, with intent to
defraud and deceive the herein complainant, did
then and there willfully, unlawfully and
feloniously misapply, misappropriate and convert
[the same] to her own personal USC and
benefit, [and] despite demands made upon her
to return the said amount of P25,350, said
accused failed and refused and still fails and
refuses to do so, to the damage and prejudice of
the complainant in the aforementioned amount
of P25,350.
Contrary to Law.6
Complainant Napoleon C. Aparicio,7 jobless,
testified that he came to know appellant through
his sister in February 1993. He allegedly talked
with appellant Marlene Olermo a.k.a. Marlene
Tolentino regarding the latter's offer to give him a
job overseas. She informed complainant
Aparicio that he needed to pay her P40,000 for a
work permit and a plane ticket to Saipan where
he is allegedly to be employed. Aparicio agreed
to pay her the said amount. He made his first
payment of P20,000 on March 30, 1993.
Appellant allegedly called him up and instructed
him to deliver the money, which he did, to a
certain Jennifer Balduesa at Danding Building,
Municipal Site, Valenzuela, Metro Manila where
appellant's office, Jirk Manpower Services, is
located. Complainant Aparicio made his second
payment on April 21, 1993. Again, he delivered
the amount of P20,000 to Jennifer Balduesa in
appellant's office in Valenzuela upon the
instructions of appellant. He was issued a cash
voucher for each payment he made.8 Appellant
promised him that he would leave for Saipan on
May 3, 1993 and she even showed him his
plane ticket. However, he was not able to leave
on said date. The date of his departure was
moved several times by appellant until he began
to suspect something was amiss. Hence, he
reported the matter to the National Bureau of
Investigation (NBI). Appellant thereafter
pretended to refund the amounts he paid by
issuing him a check, which, however, bounced
when it was presented for payment.9 He later
learned that appellant was not a duly-licensed
recruiter.
Complainant Ariston Villanueva,10 jobless, is
married to another complainant Mary Jane
Aquino-Villanueva. They were not married yet
when they first encountered appellant. He
testified that he read the advertisement of
appellant in a newspaper, sometime in April
1993, offering assistance to those who would
like to work overseas.11He called the number
indicated therein and spoke to appellant. They

first agreed to meet in Greenbelt, Makati, but


during the appointed hour, appellant did not
show, up. The following day, they spoke again
on the telephone and agreed to meet in the
office of appellant in Valenzuela. When they met,
appellant informed him and complainant AquinoVillanueva that she can help them find work in
Hong Kong. However, they must pay her
P35,000 each for their plane fares and
placement fees. On May 3, 1993, complainant
Villanueva paid appellant an initial amount of
P40,000. On May 20, 1993, he gave appellant
P30,000. Appellant issued him a receipt for each
payment he made.12 Their departure, however,
kept on being postponed by appellant. Finally,
they asked for a refund of their payments.
Appellant issued three checks on different dates
amounting to P70,000. However, these checks
were dishonored when they were presented for
payment.13 In the end, appellant gave back only
P19,000. Complainants Villanueva and AquinoVillanueva subsequently inquired with the
Philippine Overseas Employment Agency
(POEA) whether or not appellant was licensed to
recruit persons for overseas employment. They
were informed that appellant is not a licensed
recruiter and they procured a certification to this
effect.14
Complainant Alfred Bryant Berador,15 a cook,
testified that on or about February 22, 1993, he
was introduced to appellant by one of her
partners in the agency. He met her in their office
in front of the Municipal Hall of Valenzuela. He
paid her a total amount of P24,000 as placement
and processing fees for his employment in
Japan. He was issued a receipt for each
payment made.16 He was not, however, allowed
to leave for Japan immediately. Complainant
Berador was first required by appellant to
undergo a seminar to learn Nippongo for one
week. However, on the fourth day of the
seminar, appellant was arrested by the
authorities. Complainant Berador subsequently
learned that appellant did not have a license to
recruit workers for overseas employment. He
went to the POEA and was issued a certification
stating this fact.17
Complainant Frennie Majarucon,18 jobless,
testified that she was introduced to appellant by
her kumadre named Elvie sometime in March
1993. They first met in the office of appellant in
front of the Municipal Hall of Valenzuela.
Appellant informed her that she had an available
job for her in Hong Kong and that she would
need P45,000 for placement and processing
fees and P2,000 for her passport. Complainant
Majarucon was only able to give P22,000, which
was evidenced by the receipts issued to her by
appellant.19 However, complainant Majarucon
never left for Hong Kong. She thus inquired from
the people in appellant's office whether the

amount she paid to appellant can be refunded.


She was promptly informed, however, that
appellant had been arrested and was already in
jail for illegal recruitment. Complainant
Majarucon then proceeded to the POEA where
she found out that the appellant was indeed not
a licensed recruiter.
For her part, appellant Olermo denied all the
charges against her.20 She alleged that she was
engaged only in visa assistance. She denied
ever having represented herself as possessing
authority to deploy workers for overseas
employment. She thus explained that she only
offered complainants Villanueva, AquinoVillanueva, Aparicio and Majarucon assistance
in processing their tourist visas. With respect to
the accusation of complainant Berador,
appellant alleged that she was only helping him
process his trainee's visa.
On August 23, 1996, the trial court rendered a
decision convicting appellant of the crimes
charged. The dispositive portion of the decision
reads:
WHEREFORE, judgment is hereby rendered as
follows:
(1) In Crim. Case No. 2860-V-93, the Court finds
accused Marlene Olermo @ Marlene Tolentino
guilty beyond reasonable doubt and as principal
of the crime of Illegal Recruitment in large scale
as defined and penalized under Article 38 in
relation to Article 39 (a) of the Labor Code, as
amended by P.D. 2018, without any attending
mitigating or aggravating circumstance and
hereby sentences her to a penalty of life
imprisonment and a fine of P100,000, without
subsidiary imprisonment in case of insolvency;
(2) In Crim. Case No. 2861-V-93, the Court finds
accused Marlene Olermo @ Marlene Tolentino
guilty beyond reasonable doubt and as principal
of the crime of Estafa as defined and penalized
under paragraph 2(a) in relation to the first
paragraph of Article 315 of the Revised Penal
Code without any attending mitigating or
aggravating circumstance and, applying the
Indeterminate Sentence Law, hereby sentences
her to a penalty of SIX (6) YEARS and TWO (2)
MONTHS of prision mayor as minimum to TEN
(10) YEARS and ONE (1) DAY of prision
mayor as maximum. The accused is further
sentenced to pay complaining witness Napoleon
Aparicio the amount of P40,000, without
subsidiary imprisonment in case of insolvency,
plus the costs of suit;
(3) In Crim. Case No. 2862-V-93, the Court finds
accused Marlene Olermo @ Marlene Tolentino
guilty beyond reasonable doubt and as principal
of the crime of Estafa as defined and penalized

under paragraph 2(a) in relation to the first


paragraph of Article 315 of the Revised Penal
Code without any attending mitigating or
aggravating circumstances and, applying the
Indeterminate Sentence Law, hereby sentences
her to a penalty of SIX (6) YEARS and TWO (2)
MONTHS of prision mayor as minimum to TEN
(10) YEARS and ONE (1) DAY of prision
mayor as maximum. The accused is further
sentenced to pay complaining witness Mary
Jane Aquino-Villanueva the amount of P35,000,
without subsidiary imprisonment in case of
insolvency, plus the costs of suit;
(4) In Crim. Case No. 2863-V-93, the Court finds
accused Marlene Olermo @ Marlene Tolentino
guilty beyond reasonable doubt and as principal
of the crime of Estafa as defined and penalized
under paragraph 2(a) in relation to the first
paragraph of Article 315 of the Revised Penal
Code without any attending mitigating or
aggravating circumstances and, applying the
Indeterminate Sentence Law, hereby sentences
her to a penalty of SIX (6) YEARS and TWO (2)
MONTHS of prision mayor as minimum to TEN
(10) YEARS and ONE (1) DAY of prision
mayor as maximum. The accused is further
sentenced to pay complaining witness Ariston B.
Villanueva the amount of P35,000, without
subsidiary imprisonment in case of insolvency,
plus the costs of suit;
(5) In Crim. Case No. 2864-V-93, the Court finds
accused Marlene Olermo @ Marlene Tolentino
guilty beyond reasonable doubt and as principal
of the crime of Estafa as defined and penalized
under paragraph 2(a) in relation to the first
paragraph of Article 315 of the Revised Penal
Code without any attending mitigating or
aggravating circumstances and, applying the
Indeterminate Sentence Law, hereby sentences
her to a penalty of TWO (2) YEARS, FOUR (4),
MONTHS and ONE (1) DAY of prision
correccional as minimum to SIX (6) YEARS and
ONE (1) DAY of prision mayor as maximum. The
accused is further sentenced to pay complaining
witness Frennie Majarucon y Baco the amount
of P20,000, without subsidiary imprisonment in
case of insolvency, plus the costs of suit.
(6) In Crim. Case No. 2865-V-93, the Court finds
accused Marlene Olermo @ Marlene Tolentino
guilty beyond reasonable doubt and as principal
of the crime of Estafa as defined and penalized
under paragraph 2(a) in relation to the first
paragraph of Article 315 of the Revised Penal
Code without any attending mitigating or
aggravating circumstance, and, applying the
Indeterminate Sentence Law, hereby sentences
her to a penalty of FOUR (4) YEARS and TWO
(2) MONTHS of prision correccional as minimum
to EIGHT (8) YEARS of prision mayor as
maximum. The accused is further sentenced to

pay complaining witness Alfred Bryant Berador y


Ochoa the amount of P25,350, without
subsidiary imprisonment in case of insolvency,
plus the costs of suit.
SO ORDERED.21
Appeal followed and the following are assigned
as errors:
I
The trial court gravely erred in giving full weight
and credence to the testimonies of the
prosecution witnesses and in not considering the
defense interposed by the accused-appellant.

persons was not sufficiently established by the


testimonies of the witnesses for the prosecution.
Article 13, paragraph (b) of the Labor Code
enumerates the acts that constitute recruitment
and placement:
(b) 'Recruitment and placement' refers to any act
of canvassing, enlisting, contracting,
transporting, utilizing, hiring, or procuring
workers, and includes referrals, contract
services, promising or advertising for
employment, locally or abroad, whether for profit
or not: Provided, That any person or entity
which, in any manner, offers or promises for a
fee employment to two or more persons shall be
deemed engaged in recruitment and placement.

II
The court a quo gravely erred in convicting
accused-appellant of the crimes charged despite
failure of the prosecution to prove her guilt
beyond reasonable doubt.
III
The court a quo gravely erred in finding the
accused-appellant guilty beyond reasonable
doubt of the crime of large-scale recruitment
despite its lack of jurisdiction.
IV
The court a quo gravely erred in disregarding
the right of the appellant to have a competent
and independent counsel.
V
The court a quo gravely erred in finding the
accused-appellant guilty beyond reasonable
doubt for the crime of estafa.
VI
The court a quo gravely erred in ordering the
payment of P35,000, to complainant Mary Jane
Aquino Villanueva; P35,000, to complainant
Napoleon Aparicio; P20,000, to complainant
Frennie Majarucon and P35,000, [sic] to
complainant Alfred Bryant Berador.22
First and Second Issues: Credibility of
Witnesses and Proof Beyond
Reasonable Doubt in Illegal Recruitment in
Large Scale
Appellant contends that the prosecution failed to
prove beyond reasonable doubt all the essential
elements of the crime of illegal recruitment in
large scale. Furthermore, she contends that her
alleged act of illegally recruiting at least three

Appellant's acts of promising, offering and


assuring employment overseas to complainants
fall squarely within the ambit of recruitment and
placement as defined above. The fact that she
did not sign nor issue some of the receipts for
amounts received from complainants has no
bearing on her culpability. The complainants
have shown through their respective testimonies
and evidence that she was indeed involved in
the prohibited recruitment. In fact, it was even
proven that appellant advertised her services in
a newspaper.
Article 38 of the Labor Code renders illegal
those recruitment activities without the
necessary license or authority from the POEA.
Article 38 provides:
Article 38.Illegal Recruitment. (a) Any
recruitment activities, including the prohibited
practices enumerated under Article 34 of this
Code, to be undertaken by non-licensees or
non-holders of authority shall be deemed illegal
and punishable under Article 39 of this Code.
The Department of Labor and Employment or
any law enforcement officer may initiate
complaints under this Article.
(b) Illegal Recruitment when committed by a
syndicate or in large scale shall be considered
an offense involving economic sabotage and
shall be penalized in accordance with Article 39
hereof.
Illegal recruitment is deemed committed by a
syndicate if carried out by a group of three (3) or
more persons conspiring and/or confederating
with one another in carrying out any unlawful or
illegal transaction, enterprise or scheme defined
under the first paragraph hereof. Illegal
recruitment is deemed committed in large scale
if committed against three (3) or more persons
individually or as a group, x x x.

Article 39 of the Labor Code, in turn, provides:


Article 38.Illegal Recruitment. (a) The penalty
of life imprisonment and a fine of One Hundred
Thousand Pesos (P100,000) shall be imposed if
illegal recruitment constitutes economic
sabotage as defined herein; x x x.
The elements of illegal recruitment in large scale
are: (1) the person undertakes any recruitment
activity defined under Article 13, paragraph (b),
or any prohibited practice enumerated under
Article 34 of the Labor Code; (2) said person
does not have a license or authority to engage in
the recruitment and placement of workers; and
(3) the act is committed against three or more
persons, individually or as a group.23
All these three elements were proven by the
prosecution beyond reasonable doubt. First, the
complaining witnesses have satisfactorily
established that appellant promised them
employment and assured them of placement
overseas. Appellant even had her services
advertised in a newspaper, undoubtedly to reach
more people seeking jobs abroad. Second,
appellant did not have any license to recruit
persons for overseas work. The Licensing
Division of the POEA issued a certification to this
effect. Third, appellant undertook the recruitment
of not less than three workers. The complainants
herein were recruited individually on different
occasions. The law applies whether the workers
were recruited individually or as a group.
It is not material that complainants Mary Jane
Aquino Villanueva and Wilfredo Tubale were not
presented in court to substantiate their claims
against appellant. The law applies if appellant
committed the illegal act against at least three
persons, individually or as a group. In the case
at bar, the prosecution proved beyond
reasonable doubt that at least three persons
were recruited by appellant: Ariston B.
Villanueva, Alfred Bryant Berador and Frennie
Majarucon.
With respect to the credibility of these witnesses,
it is settled that where the issue is on credibility,
the findings of the trial court will generally not be
disturbed. The trial court has the advantage of
hearing the witnesses and observing their
conduct during the trial, circumstances that carry
great weight in appreciating credibility.24 The trial
court is thus in a better position to settle such an
issue.
Third Issue: Jurisdiction or Venue
Appellant argues that she cannot be convicted
of illegal recruitment in large scale because the
alleged prohibited acts against complainants

were committed beyond the jurisdiction of the


Regional Trial Court of Valenzuela. She points
out that in complainant Villanueva's affidavit, he
stated that he first met appellant in her
residence in Quezon City. However, during
complainant Villanueva's testimony in court, he
stated that he first met appellant in her office in
Valenzuela.
The Rules of Court provide that in all criminal
prosecutions, the action shall be instituted and
tried in the court of the municipality or province
wherein the offense was committed or any of the
essential ingredients thereof took place.25 In the
case at bar, the prosecution proved that the
element of offering, promising, and advertising
overseas employment to the complainants took
place in appellant's office in Valenzuela.
Furthermore, it is elementary that jurisdiction in
criminal cases is determined by the allegations
in the information.26 In this case, the information
filed against appellant for illegal recruitment in
large scale clearly placed the locus criminis in
Valenzuela. As stated earlier, it was in
Valenzuela where the complainants were offered
or promised overseas employment by appellant.
Furthermore, based on the prosecutions
evidence, the Court is sufficiently convinced that
at least one element of the crime of illegal
recruitment in large scale took place in
Valenzuela. Where some acts material and
essential to the crime and requisite to its
consummation occur in one province or city and
some in another, the court of either province or
city has jurisdiction to try the case, it being
understood that the court first taking cognizance
of the case will exclude the others.27
Fourth Issue: Right to Competent Counsel
Appellant, next maintains that the court a
quo gravely erred in disregarding her right to a
competent and independent counsel. Appellant
notes that during the presentation of the
prosecutions first witness on August 11, 1993,
appellant was represented by Atty. Hortensio
Domingo, who was not her retained counsel for
the case. During the hearing, Atty. Domingo
manifested that appellant herself requested him
to represent her in that day's hearing since her
counsel, Atty. Yuseco, was still in Cagayan.
During the second, third, fourth and fifth
hearings, appellant was represented by another
counsel, a de officio one, a certain Atty. Ricardo
Perez, again because counsel for appellant was
not around. Because of these instances,
appellant claims that she was deprived of her
right to competent counsel because the lawyers
who represented her in the abovementioned
hearings were not familiar with her case and,
hence, were not able adequately to protect her
interests.

Article III, Section 12, paragraph (1) of the


Constitution provides:
"Any person under investigation for the
commission of an offense shall have the right x x
x to have competent and independent counsel
preferably of his own choice. x x x."
The right to counsel is intended to preclude the
slightest coercion as would lead the appellant to
admit something false.28 Moreover, the words
"preferably of his own choice" do not mean that
the choice of a lawyer by appellant is exclusive
as to preclude other equally competent and
independent attorneys from handling the
defense. If this were so, the tempo of justice
would be solely within the control of appellant
who could choose to impede the judicial process
by simply selecting a lawyer who, for one reason
or another, is not available to defend her.
Fifth and Sixth Issues: Proof Beyond
Reasonable Doubt in the Charges of Estafa, and
the Order of Payment
Five separate informations were filed against
appellant charging her of violating subdivision
2(a) of Article 315 of the Revised Penal Code.
Except for the names of the offended parties, the
dates of the commission of the crime, and the
amounts involved, all informations were similarly
worded:
"That sometime in the month of February 1993
or thereabouts in Valenzuela, Metro Manila and
within the jurisdiction of this Honorable Court,
the above-named accused, defrauded and
deceived one NAPOLEON APARICIO y
CLEMENTE in the following manner to wit: said
accused by means of false manifestations and
fraudulent representation made to the said
complainant to the effect that she has the
capacity and power to recruit and employ
complainant abroad and facilitate the necessary
amount to meet the requirements thereof,
knowing said manifestations and representation
to be false and fraudulent and made only to
induce said complainant to give, as in fact, the
latter did give and deliver to said appellant cash
money amounting to P40,000, but said accused,
once in possession of the same, with intent to
defraud and deceive the herein complainant, did
then and there wilfully, unlawfully and feloniously
misapply, misappropriate and convert [the same]
to her own personal use and benefit, [and]
despite demands made upon her to return the
said amount of P40,000, said accused failed and
refused and still fails and refuses to do so, to the
damage and prejudice of the complainant in the
aforementioned amount of P40,000."
Contrary to Law.29

Except in Criminal Case No. 2862-V093, the


prosecution was able to prove beyond
reasonable doubt appellant's guilt in the cases of
estafa.
Subdivision 2(a) of Article 315 of the Revised
Penal Code lists ways by which estafa may be
committed:
2. By means of any of the following pretenses or
fraudulent acts executed prior to or
simultaneously with the commission of the fraud:
(a) By using fictitious name, or falsely pretending
to possess power, influence, qualifications,
property, credit, agency, business or imaginary
transactions; or by means of other similar
deceits.
There are three ways of committing estafa under
this provision: (1) by using a fictitious name; (2)
by falsely pretending to possess power,
influence, qualifications, property, credit, agency,
business or imaginary transactions; and (3) by
means of other similar deceits. Under this class
of estafa, the element of deceit is indispensable.
Such deceit consists of the false statement or
fraudulent representation of the appellant, which
was made prior to, or at least simultaneously
with, the delivery of the thing by the
complainant, it being essential that such false
statement or fraudulent representation
constitutes the very cause or the only motive
that induces the complainant to part with the
thing of value. If there is no prior or
simultaneous false statement or fraudulent
representation, any subsequent act of appellant,
however fraudulent and suspicious it may
appear, cannot serve as a basis for prosecution
for this class of estafa.
The Solicitor General, correctly states in the
appellee's brief, that all the elements of the
abovementioned crime have been established
beyond reasonable doubt. Appellant represented
herself, personally and by way of the
advertisement in the newspaper, that she can
provide complainants with work abroad. Hence,
relying on her representations, complainants
parted with their money and delivered the same
to appellant. The truth, however, was that
appellant never had the license from the POEA
to recruit persons for overseas employment.
Complainants were never given any
employment abroad and thus they suffered
damage by reason of appellant's illegal acts.
We note, however, that in Criminal Case No.
2863-V-93, the trial court only ordered appellant
to pay complainant Ariston B. Villanueva a total
amount of P35,000 in actual damages. The
fundamental principle of the law on damages is
that one injured by a breach of contract or by a

wrongful or negligent act or omission shall have


a fair and just compensation, commensurate
with the loss sustained as a consequence of the
defendant's acts. Actual damages are such
compensation or damages for an injury that will
put the injured party in the position in which he
had been before he was injured. These pertain
to such injuries or losses that are actually
sustained and susceptible of measurement.30 To
justify an award of actual damages, there must
be competent proof of the actual amount of loss.
Credence can be given only to claims that are
duly supported by receipts.31 In this case, it was
duly proven by the receipts presented by
complainant Villanueva and his testimony during
trial that he handed appellant a total amount of
P70,000 and only got back P19,000. Hence,
correction of the trial court's award is called for.
Appellant should be ordered to pay complainant
Ariston B. Villanueva the total amount of
P51,000 in actual damages in Criminal Case No.
2863-V-93.
Correction of the trial court's penalty imposed
upon appellant in Criminal Case No. 2863-V-93
is therefore likewise called for. Article 315 of the
Revised Penal Code provides:
Article 38.Swindling (estafa). Any person who
shall defraud another by any of the means
mentioned hereinbelow shall be punished by:
1st. The penalty of prision correctional in its
maximum period to prision mayor in its minimum
period, if the amount of the fraud is over
P12,000 but does not exceed P22,000; and if
such amount exceeds the latter sum, the penalty
provided in this paragraph shall be imposed in
its maximum period, adding one year for each
additional P10,000; but the total penalty which
may be imposed shall not exceed twenty years.
In such cases, and in connection with the
accessory penalties which may be imposed and
for the purpose of the other provisions of this
Code, the penalty shall be termed prision
mayor or reclusion temporal, as the case may
be; x x x.
Hence, applying the Indeterminate Sentence
Law, the accused in Criminal Case No. 2863-V93 should be sentenced to a penalty of FOUR
(4) YEARS and TWO (2) MONTHS of prision
correccional as minimum to TEN (10) YEARS
of prision mayor as maximum.
With respect to Criminal Case No. 2862-V093,
the prosecution failed to fulfill its duty to produce
evidence showing appellant's guilt beyond
reasonable doubt of the charges of estafa
committed against Mary Jane Aquino-Villanueva.
Absolute certainty of guilt is not demanded by
the law to convict of any criminal charge but
moral certainty is required, and this certainty is

required as to every proposition of proof


requisite to constitute the offense.32 In the said
criminal case for estafa, no proof whatsoever
was adduced by the prosecution. The offended
party, Mary Jane Aquino-Villanueva, was not
even asked to testify in open court.
WHEREFORE, judgment is hereby rendered as
follows:
I. The judgment of the trial court in Criminal
Case No. 2860-V-93 finding appellant Marlene
Olermo a.k.a. Marlene Tolentino guilty of Illegal
Recruitment in Large Scale and sentencing her
to life imprisonment, as well as to pay a fine of
One Hundred Thousand Pesos (P100,000) is
AFFIRMED.
II. The judgments in Criminal Cases Nos. 2861V-93, 2864-V-93 and 2865-V-93, finding
appellant guilty beyond reasonable doubt of four
separate offenses of estafa are AFFIRMED in
toto.
III. The judgment in Criminal Case No. 2863-V93 finding appellant guilty beyond reasonable
doubt of estafa is MODIFIED, and appellant is
hereby sentenced to FOUR (4) YEARS and
TWO (2) MONTHS ofprision correccional as
minimum to TEN (10) YEARS of prision
mayor as maximum and appellant is further
ordered to pay complainant Ariston B. Villanueva
the amount of P51,000, without subsidiary
imprisonment in case of insolvency, plus costs of
suit.
IV. The judgment in Criminal Case No. 2862-V93 is REVERSED and appellant is ACQUITTED
from the charge of estafa.
Costs de officio.
SO ORDERED.

Section 3(e) of Republic Act No. 3019, by


causing undue injury to the government, reads:
The undersigned Graft Investigation Officer of
the Office of the Ombudsman-Visayas, accuses
QUINTIN B. SALUDAGA and SPO2 FIEL E.
GENIO, for VIOLATION OF SECTION 3(e) OF
REPUBLIC ACT NO. 3019, AS AMENDED (THE
ANTI-GRAFT AND CORRUPT PRACTICES
ACT), committed as follows:

Republic of the Philippines


SUPREME COURT
Baguio City
THIRD DIVISION
G.R. NO. 184537

April 23, 2010

QUINTIN B. SALUDAGA and SPO2 FIEL E.


GENIO, Petitioners,
vs.
The HONORABLE SANDIGANBAYAN, 4th
DIVISION and the PEOPLE OF THE
PHILIPPINES, Respondents.

That in or about the months of November and


December, 1997, at the Municipality of
Lavezares, Province of Northern Samar,
Philippines, and within the jurisdiction of this
Honorable Court, above-named accused, public
officials, being the Municipal Mayor and PNP
Member of Lavezares, Northern Samar in such
capacity and committing the offense in relation
to office, conniving, confederating and mutually
helping with one another, and with the late
Limpio Legua, a private individual, with
deliberate intent, with evident bad faith and
manifest partiality, did then and there willfully,
unlawfully and feloniously enter into a Pakyaw
Contract for the Construction of Barangay Day
Care Centers for Barangays Mac-arthur and
Urdaneta, Lavezares, Northern Samar, each in
the amount of FORTY-EIGHT THOUSAND FIVE
HUNDRED PESOS (P48,500.00), Philippine
Currency, or a total amount of NINETY-SEVEN
THOUSAND PESOS (P97,000.00), Philippine
Currency, without conducting a competitive
public bidding, thus depriving the government
the chance to obtain the best, if not, the most
reasonable price, and thereby awarding said
contracts to Olimpio Legua, a non-license
contractor and non-accredited NGO, in violation
of Sec. 356 of Republic Act No. 7160 (The Local
Government Code) and COA Circular No. 91368, to the damage and prejudice of the
government.
CONTRARY TO LAW.

DECISION
MENDOZA, J.:
This is a petition for certiorari, prohibition and
mandamus under Rule 65 of the 1997 Rules on
Civil Procedure with a prayer for the issuance of
a writ of preliminary injunction and temporary
restraining order assailing the July 14, 2008
Resolution1 of the Sandiganbayan in Criminal
Case No. SB-08 CRM 0263, denying the Motion
for Preliminary Investigation filed by the
petitioners who were charged with a violation of
Section 3(e) of Republic Act No. 3019, and the
denial of their Motion for Reconsideration done
in open court on August 13, 2008.
An Information2 dated September 13, 2000
charging both petitioners with having violated

This case was initially raffled to the Third


Division of Sandiganbayan and was docketed as
Criminal Case No. 26319.
In a Resolution3 promulgated on June 14, 2002,
the Third Division granted petitioners Motion to
Quash and dismissed the information "for failure
of the prosecution to allege and prove the
amount of actual damages caused the
government, an essential element of the crime
charged."
In a Memorandum4 dated July 1, 2003, the
Ombudsman directed the Office of the Special
Prosecutor (OSP) to study the possibility of
having the information amended and re-filed
with the Sandiganbayan.

Thus, the OSP re-filed the Information5 dated


August 17, 2007, this time, docketed as Criminal
Case No. SB-08 CRM 0263, with the Fourth
Division of the Sandiganbayan, charging the
petitioners for violation of Section 3(e) of R.A.
No. 3019, by giving unwarranted benefit to a
private person, to the prejudice of the
government.
The information, subject of the petition, now
reads:
The undersigned Prosecutor of the Office of the
Special Prosecutor/Office of the Ombudsman,
hereby accuses, MAYOR QUINTIN B.
SALUDAGA and SPO2 FIEL E. GENIO, for the
violation of Section 3(e) of Republic Act 3019, as
amended, otherwise known as the Anti-Graft
and Corrupt Practices Act, committed as follows:
That in or about the months of November and
December, 1997 at the Municipality of
Lavezares, Province of Northern Samar,
Philippines, and within the jurisdiction of this
Honorable Court, accused QUINTIN B.
SALUDAGA, a high ranking public official being
then the Mayor of Lavezares, Northern Samar,
and committing the crime herein charged while
in the discharge of his official administrative
function, conspiring and conniving with accused
SPO2 FIEL B. GENIO, a member of Lavezares
Police Force (PNP) and with the late OLIMPIO
LEGUA, a private individual, with deliberate
intent, did then and there willfully, unlawfully and
criminally give unwarranted benefit or advantage
to the late Olimpio Legua, a non-license
contractor and nonaccredited NGO, through evident bad faith and
manifest partiality by then and there entering
into a Pakyaw Contract with the latter for the
Construction of Barangay Day Care Centers for
barangays Mac-Arthur and Urdaneta,
Lavezares, Northern Samar, in the amount of
FORTY EIGHT THOUSAND FIVE HUNDRED
PESOS (P48,500.00) each or a total of NINETY
SEVEN THOUSAND PESOS (P97,000.00)
Philippine Currency, without the benefit of a
competitive public bidding to the prejudice of the
Government and public interest.
CONTRARY TO LAW.

because the latter charged a different offense


that is, violation of Section 3(e) by giving
unwarranted benefit to private parties. Hence,
there was a substitution of the first Information.
They argue that assuming that no substitution
took place, at the very least, there was a
substantial amendment in the new information
and that its submission should have been
preceded by a new preliminary investigation.
Further, they claim that newly discovered
evidence mandates re-examination of the finding
of a prima facie cause to file the case.
On July 14, 2008, the Sandiganbayan Fourth
Division issued the assailed Resolution denying
the petitioners motion for preliminary
investigation. The graft court found that there is
no substituted information or substantial
amendment that would warrant the conduct of a
new preliminary investigation. It gave the
following ratiocination:
The re-filed information did not change the
nature of the offense charged, but merely
modified the mode by which accused committed
the offense. The substance of such modification
is not such as to necessitate the conduct of
another preliminary investigation.
Moreover, no new allegations were made, nor
was the criminal liability of the accused
upgraded in the re-filed information. Thus, new
preliminary investigation is not in order.
The dispositive portion of the Resolution states:
Finding the arguments of accused-movants
indefensible, the sufficiency of the information
must be sustained.
WHEREFORE, having established the
sufficiency of the Information, the motion under
consideration is hereby DENIED for lack of
merit. Accordingly, the arraignment of both
accused shall proceed as scheduled.8
Petitioners filed a Motion for
Reconsideration9 dated August 6, 2008,
submitting that the two Informations substantially
charged different offenses, such that the present
information constituted a substitution that should
have been preceded by a new preliminary
investigation.

Petitioners filed a Motion for Preliminary


Investigation6 dated June 4, 2008 which was
strongly opposed by the prosecution in its
Opposition7 dated June 18, 2008.

On August 13, 2008, in a hearing for the


arraignment of petitioners, the Sandiganbayan
denied the Motion10 in open court.

Petitioners contend that the failure of the


prosecution to conduct a new preliminary
investigation before the filing of the second
Information constituted a violation of the law

Hence, petitioners interpose the present petition


for certiorari, prohibition and mandamus with
prayer for the issuance of a writ of preliminary
injunction and temporary restraining order under

Rule 65 of the Rules of Court anchored on the


following grounds:
I
The Honorable Sandiganbayan acted with grave
abuse of discretion amounting to lack or excess
of jurisdiction when it refused to order the
preliminary investigation of the case a quo,
when the second Information in the instant case
constituted substituted Information whose
submission required the conduct of preliminary
investigation.
II
The Honorable Sandiganbayan acted with grave
abuse of discretion amounting to lack or excess
of jurisdiction when it refused to order the
conduct of a preliminary investigation of the
case a quo, since the second Information therein
contained substantial amendments whose
submission required the conduct of preliminary
investigation.
III
The Honorable Sandiganbayan acted with grave
abuse of discretion amounting to lack or excess
of jurisdiction when it refused to order the
preliminary investigation of the case a quo,
although the newly discovered evidence
mandates due re-examination of the finding that
prima facie cause existed to file the case a
quo.11
From the arguments raised by petitioners, the
core issue is whether or not the two (2) ways of
violating section 3(e) of Republic Act 3019,
namely: (a) by causing undue injury to any party,
including the Government; or (b) by giving any
private party any unwarranted benefit,
advantage or preference constitute two distinct
and separate offenses that would warrant a new
or another preliminary investigation.
In its Comment12 dated January 12, 2009,
respondent People of the Philippines,
represented by the Office of the Special
Prosecutor, counters that there is no substituted
information in contemplation of law and
jurisprudence that would require the conduct of
another preliminary investigation. There is no
newly-discovered evidence that would lead to a
different determination should there be another
preliminary investigation conducted.
In their Reply,13 dated April 24, 2009, petitioners
insist that the offenses charged in the first and
second Information are not the same, and what
transpired was a substitution of Information that
required prior conduct of preliminary

investigation. Even assuming there was no


substitution, substantial amendments were
made in the second Information, and that its
submission should have been preceded by a
new preliminary investigation.
We find no merit in this petition.
Petitioners were charged with a violation of
Section 3(e) of R.A. No. 3019 or the Anti-Graft
and Corrupt Practices Act which reads:
Section 3. Corrupt practices of public officers.- In
addition to acts or omissions of public officers
already penalized by existing law, the following
shall constitute corrupt practices of any public
officer and are hereby declared to be 0unlawful:
xxx
(e) Causing any undue injury to any party,
including the Government, or giving any private
party any unwarranted benefits, advantage or
preference in the discharge of his official,
administrative or judicial functions through
manifest partiality, evident bad faith or gross
inexcusable negligence. This provision shall
apply to officers and employees charged with
the grant of licenses or permits or other
concessions.
The essential elements of the offense are as
follows:
1. The accused must be a public officer
discharging administrative, judicial or official
functions;
2. He must have acted with manifest partiality,
evident bad faith or inexcusable negligence; and
3. That his action caused any undue injury to
any party, including the government, or giving
any private party unwarranted benefits,
advantage or preference in the discharge of his
functions.14
In a string of decisions, the Court has
consistently ruled:
R.A. 3019, Section 3, paragraph (e), as
amended, provides as one of its elements that
the public officer should have acted by causing
any undue injury to any party, including the
Government, or by giving any private party
unwarranted benefits, advantage or preference
in the discharge of his functions. The use of the
disjunctive term "or" connotes that either act
qualifies as a violation of Section 3 paragraph
(e), or as aptly held in Santiago, as two (2)
different modes of committing the offense. This
does not however indicate that each mode

constitutes a distinct offense, but rather, that an


accused may be charged under either mode or
under both.15
The afore-stated ruling is consistent with the
well-entrenched principle of statutory
construction that "The word or is a disjunctive
term signifying disassociation and independence
of one thing from the other things enumerated; it
should, as a rule, be construed in the sense in
which it ordinarily implies, as a disjunctive
word."16
Contrary to the argument of petitioners, there is
no substituted information. The Information
dated August 17, 2007 filed in Criminal Case No.
SB-08 CRM 0263 charged the same offense,
that is, violation of Section 3(e) of Republic Act
No. 3019. Only the mode of commission was
modified. While jurisprudence, the most recent
being Talaga, Jr. v. Sandiganbayan,17 provides
that there are two (2) acts or modes of
committing the offense, thus: a) by causing any
undue injury to any party, including the
government; or b) by giving any private party
any unwarranted benefit, advantage or
preference, it does not mean that each act or
mode constitutes a distinct offense. An accused
may be charged under either mode18 or under
both should both modes concur.19
Petitioners reliance on the Teehankee v.
Madayag,20 ruling that, "in substitution of
information another preliminary investigation is
entailed and that the accused has to plead anew
to the new information" is not applicable to the
present case because, as already stated, there
is no substitution of information there being no
change in the nature of the offense charged.
Consequently, petitioners cannot invoke the
principle enunciated in Villaflor v. Vivar,21 that
failure to conduct a new preliminary investigation
is tantamount to a violation of their rights. While
it is true that preliminary investigation is a
statutory and substantive right accorded to the
accused before trial, the denial of petitioners
claim for a new investigation, however, did not
deprive them of their right to due process. An
examination of the records of the case discloses
that there was a full-blown preliminary
investigation wherein both petitioners actively
participated.
Anent the contention of petitioners that the
information contained substantial amendments
warranting a new preliminary investigation, the
same must likewise fail.1avvphi1
Petitioners erroneously concluded that giving
undue injury, as alleged in the first Information,
and conferring unwarranted benefits, alleged in
the second Information, are two distinct

violations of, or two distinct ways of violating


Section 3(e) of Republic Act No. 3019, and that
such shift from giving undue injury to conferring
unwarranted benefit constituted, at the very
least, a substantial amendment. It should be
noted that the Information is founded on the
same transaction as the first Information, that of
entering into a Pakyaw Contract for the
construction of barangay day care centers for
barangays Mac-Arthur and Urdaneta,
Lavezares, Northern Samar. Thus, the
evidentiary requirements for the prosecution and
defense remain the same.
To bolster their claim for a reinvestigation of the
offense, petitioners cited the case of Matalam v.
Sandiganbayan.22 The same is inapplicable to
petitioners case. In Matalam, there was indeed
a substantial amendment which entitled the
accused to another preliminary investigation.
The recital of facts constituting the offense
charged therein was definitely altered. In the
original information, the prohibited act allegedly
committed by the petitioner was the illegal and
unjustifiable refusal to pay the monetary claims
of the private complainants, whereas in the
amended information, it is the illegal dismissal
from the service of the private complainants. In
the case at bar, there is no substantial
amendment to speak of. As discussed
previously, the Information in Criminal Case No.
26319 was already dismissed by the Third
Division of the Sandiganbayan in view of the
petitioners Motion to Quash. As such, there is
nothing more to be amended.
The Court is not unaware of the case of People
v. Lacson,23 where it was written:
The case may be revived by the State within the
time-bar either by the refiling of the Information
or by the filing of a new Information for the same
offense or an offense necessarily included
therein. There would be no need of a new
preliminary investigation. However, in a case
wherein after the provisional dismissal of a
criminal case, the original witnesses of the
prosecution or some of them may have recanted
their testimonies or may have died or may no
longer be available and new witnesses for the
State have emerged, a new preliminary
investigation must be conducted before an
Information is refiled or a new Information is
filed. A new preliminary investigation is also
required if aside from the original accused, other
persons are charged under a new criminal
complaint for the same offense or necessarily
included therein; or if under a new criminal
complaint, the original charge has been
upgraded; or if under a new criminal complaint,
the criminal liability of the accused is upgraded
from that as an accessory to that as a principal.

The accused must be accorded the right to


submit counter-affidavits and evidence.
No such circumstance is obtaining in this case,
because there was no modification in the nature
of the charged offense.1avvphi1 Consequently,
a new preliminary investigation is unnecessary
and cannot be demanded by the petitioners.
Finally, the third assigned error, that newly
discovered evidence mandates due reexamination of the finding of prima facie cause
to file the case, deserves scant consideration.
For petitioners, it is necessary that a new
investigation be conducted to consider newly
discovered evidence, in particular, the Affidavit of
COA Auditor Carlos G. Pornelos, author of the
audit report. We are not convinced.
Under Section 2, Rule 121 of the Rules of Court,
the requisites for newly discovered evidence
are: (a) the evidence was discovered after trial
(in this case, after investigation); (b) such
evidence could not have been discovered and
produced at the trial with reasonable diligence;
and (c) that it is material, not merely cumulative,
corroborative or impeaching, and is of such
weight that, if admitted, will probably change the
judgment.24
The Pornelos affidavit, which petitioners claim as
newly-discovered, was executed by affiant way
back in November 29, 2000, as correctly found
by the Sandiganbayan. Clearly, it cannot be
considered as newly found evidence because it
was already in existence prior to the re-filing of
the case. In fact, such sworn affidavit was
among the documents considered during the
preliminary investigation. It was the sole
annexed document to petitioners Supplement to
Motion for Reinvestigation,25 offered to dispute
the charge that no public bidding was conducted
prior to the execution of the subject project.
More important is the prosecutions statement in
its Memorandum that, "after a careful reevaluation of the documentary evidence
available to the prosecution at the time of the
filing of the initial Information, and at the time of
the re-filing of the Information, the prosecution
insists on the finding of probable cause, an
exercise within the exclusive province of the
Office of the Ombudsman."26
Worthy of note is the case of Soriano v.
Marcelo,27 viz:
Case law has it that the determination of
probable cause against those in public office
during a preliminary investigation is a function
that belongs to the Office of the Ombudsman.
The Ombudsman has the discretion to

determine whether a criminal case, given its


attendant facts and circumstances, should be
filed or not. It is basically his call.
Without good and compelling reasons, the Court
cannot interfere in the exercise by the Office of
the Ombudsman of its investigatory and
prosecutory powers.28 The only ground upon
which it may entertain a review of the Office of
the Ombudsmans action is grave abuse of
discretion.29
Grave abuse of discretion is an evasion of a
positive duty or a virtual refusal to perform a
duty enjoined by law or to act in contemplation
of law as when the judgment rendered is not
based on law and evidence but on caprice, whim
and despotism.30
The special civil action for certiorari under Rule
65 of the Rules of Court is intended to correct
errors of jurisdiction or grave abuse of discretion
amounting to lack or excess of jurisdiction. The
writ of certiorari is directed against a tribunal,
board or officer exercising judicial or quasijudicial function that acted without or in excess
of its or his jurisdiction or with grave abuse of
discretion. Grave abuse of discretion means
such capricious or whimsical exercise of
judgment which is equivalent to lack of
jurisdiction. To justify the issuance of the writ of
certiorari, the abuse of discretion must be grave,
as when the power is exercised in an arbitrary or
despotic manner by reason of passion or
personal hostility, and it must be so patent and
gross as to amount to an evasion of a positive
duty or to a virtual refusal to perform the duty
enjoined, or to act at all, in contemplation of law,
as to be equivalent to having acted without
jurisdiction.31
The case at bench discloses no evident
indication that respondent Sandiganbayan acted
with arbitrariness, whim or caprice. It committed
no error in refusing to order the conduct of
another preliminary investigation. As sufficiently
explained by the prosecution, a new preliminary
investigation is not necessary as there was
neither a modification of the nature of the
offense charged nor a new allegation. Such
conduct of preliminary investigation anew will
only delay the resolution of the case and would
be an exercise in futility in as much as there was
a complete preliminary investigation actively
participated by both petitioners.
In view of the foregoing, we hold that the public
respondent committed no grave abuse of
discretion in issuing its Resolution of July 14,
2008, denying petitioners motion for preliminary
investigation in Criminal Case No. SB-08 CRM
0263.

WHEREFORE, the petition is DENIED.


SO ORDERED.