G.R. No.

96356 June 27, 1991

NONILLON A. BAGALIHOG, petitioner,

vs.
HON. JUDGE GIL P. FERNANDEZ, Presiding Judge of Br. 45, RTC of Masbate; and MAJOR
JULITO ROXAS, respondents.

Jolly T. Fernandez for petitioner.

Antonio Llacer for private respondent.

CRUZ, J.:

We are asked once again to rule on the validity of a search and seizure as tested by the requirements
of the Bill of Rights and to balance the demands of an orderly society with the imperatives of
individual liberty.

On March 17, 1989, Rep. Moises Espinosa was shot to death shortly after disembarking at the
Masbate Airport. Witnesses said one of the gunmen fled on a motorcycle. On the same day, the
petitioner's house, which was near the airport, was searched with his consent to see if the killers had
sought refuge there. The search proved fruitless.

Two days later, Capt. Julito Roxas and his men from the Philippine Constabulary seized the
petitioner's motorcycle and took it to the PC headquarters in Masbate. They had no search warrant.
The motorcycle was impounded on the suspicion that it was one of the vehicles used by the killers.

After investigation, the petitioner and several others were charged with multiple murder and frustrated
murder for the killing of Espinosa and three of his bodyguards and the wounding of another person.

On June 21, 1989, the petitioner filed a complaint against Capt. Roxas for the recovery of the
motorcycle with an application for a writ of replevin, plus damages in the total amount of P55,000.001
This was docketed as Civil Case No. 3878 in Branch 48 of the Regional Trial Court of Masbate.

On November 7, 1989, the petitioner filed an urgent manifestation for the deposit of the motorcycle
with the clerk of court of the Regional Trial Court of Masbate, on the ground that PC soldiers were
using the vehicle without authority. The motion was granted on November 10, 1989, by Judge
Ricardo Butalid.

Judge Butalid later inhibited himself and Civil Case No. 3878 was transferred to Branch 45, presided
by Judge Gil Fernandez. In the criminal cases, a change of venue was ordered by this Court from
Branch 45 of the Regional Trial Court of Masbate to Branch 56 of the Regional Trial Court of Makati.

On October 12, 1990, Judge Fernandez dismissed Civil Case No. 3878, in an order holding in part as
follows:

The question to be resolved is whether Replevin is proper to recover the possession of said
motorcycle.

It is admitted that the motorcycle in question, now in the possession of the Clerk of Court of Masbate,
is to be used as evidence in Criminal Case Nos. 5811-5814, now pending trial before Branch 56 of
the Regional Trial Court of Makati, Metro Manila. This Court opined that it has no jurisdiction to
release evidence impounded or surrendered to the PC-CIS Task Force Espinosa.
Property seized in enforcing criminal laws is in the custody of the law and cannot be replevied until
such custody is ended. (77 C.J.S. 28.)

Granting as claimed by plaintiff that said motorcycle was illegally seized, he can raise the issue when
presented during the trial.

The proper Court to order its release, the motorcycle in question, is the Presiding Judge of Branch 56
of the Regional Trial Court of Makati, Metro Manila.

WHEREFORE, this case is hereby ordered DISMISSED for lack of jurisdiction.

Reconsideration having been denied, the petitioner now asks this Court to reverse the said order.

His contention is that the motorcycle was invalidly seized and that therefore he has a right to its
return.1awp++i1 The proper remedy for this purpose is his complaint for recovery and the issuance of
a writ of replevin as authorized by the Rules of Court. In refusing to grant him relief and dismissing
the case instead on the ground of lack of jurisdiction, the respondent court committed reversible error
that he prays this Court will correct.

In his comment, the private respondent admits the absence of a search warrant when the motorcycle
was seized but stresses that the crime perpetrated is a heinous offense. Espinosa was a man of
consequence. The motorcycle in question is an extremely mobile vehicle and can be easily
dismantled or hidden, and the unique situation existing at that time required him to place it in the
custody of the PC-CIS Task Force Espinosa without first securing a search warrant. In doing so, he
merely complied with the orders of his superior to preserve the vehicle for use as evidence in the
criminal cases.

We share Captain Roxas's concern for the apprehension of the killers but cannot agree with his
methods. While recognizing the need for the punishment of crime, we must remind him that in our
system of criminal justice, the end does not justify the means. For all his strong conviction about the
guilt of the petitioner, the private respondent must still abide by the Constitution and observe the
requirements of the Bill of Rights. Article III, Section 2, provides:

The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and
no search warrant or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched and the persons or
things to be seized.

This guaranty is one of the greatest of individual liberties and was already recognized even during the
days of the absolute monarchies, when the king could do no wrong. On this right, Cooley wrote: "Awe
surrounded and majesty clothed the King, but the humblest subject might shut the door of his cottage
against him and defend from intrusion that privacy which was as sacred as the kingly prerogatives."2

The provision protects not only those who appear to be innocent but also those who appear to be
guilty but are nevertheless to be presumed innocent until the contrary is proved. The mere fact that in
the private respondent's view the crime involved is "heinous" and the victim was "a man of
consequence" did not authorize disregard of the constitutional guaranty. Neither did "superior orders"
condone the omission for they could not in any case be superior to the Constitution.
We do not find that the importance of the motorcycle in the prosecution of the criminal cases excused
its seizure without a warrant. The authorities had enough time to comply with the required procedure
but they did not do so, preferring the unconstitutional shortcut. The crime was committed on March
17, 1989, and the motorcycle was seized only on March 19, 1989, or two days later. During that
period, the private respondent had all the opportunity to apply for a search warrant and establish
probable cause in accordance with the Bill of Rights and the Rules of Court. He did not.

The following observation in Alih v. Castro3 is an appropriate reminder:

The respondents cannot even plead the urgency of the raid because it was in fact not urgent. They
knew where the petitioners were. They had every opportunity to get a search warrant before making
the raid. If they were worried that the weapons inside the compound would be spirited away, they
could have surrounded the premises in the meantime, as a preventive measure. There was
absolutely no reason at all why they should disregard the orderly processes required by the
Constitution and instead insist on arbitrarily forcing their way into the petitioner's premises with all the
menace of a military invasion.
xxx xxx xxx
When the respondents could have easily obtained a search warrant from any of the TEN civil courts
then open and functioning in Zamboanga City, they instead simply barged into the beleaguered
premises on the verbal order of their superior officers. One cannot just force his way into any man's
house on the illegal orders of a superior, however lofty his rank. Indeed, even the humblest hovel is
protected from official intrusion because of the ancient rule, revered in all free regimes, that a man's
house is his castle.

The mere mobility of the motorcycle did not make the search warrant redundant for it is not denied
that the vehicle remained with the petitioner until it was forcibly taken from him. The fear that it would
be dismantled or hidden was mere speculation that was not borne out by the facts. The extraordinary
events cited in People v. Court of First Instance of Rizal4 are not present in the case now before us.
The necessity for the immediate seizure of the motorcycle without the prior obtention of a warrant has
not been established.

The private respondent himself emphasizes that the petitioner had promised in the morning of March
19, 1989, to present the motorcycle in case it was needed during the investigation of the killings.5
There was no reason to fear that it would be concealed by the petitioner, who presumably was under
police surveillance at the time as one of the suspected killers. He could not have had that much
opportunity to hide the vehicle even if he wanted to.

The private respondent maintains that by the petitioner's promise, he effectively waived the right to a
search warrant and so can no longer complain that the motorcycle had been invalidly seized. There
was no such waiver. The petitioner merely agreed to cooperate with the investigators and to produce
the vehicle when needed, but he did not agree to have it impounded. The record shows that he
expressed reservations when this was suggested and said he needed the motorcycle for his official
duties as a member of the Sangguniang Panlalawigan and in his private business.6 At any rate, it has
been shown that he was unwilling to surrender it at the time it was taken without warrant, and that
made the taking unlawful.

In Roan v. Gonzales,7 the Court said:

It is true that are certain instances when a search when a search may be taken validly made without
warrant and articles may be taken validly as a result of that search. For example, a warrantless
search may be made incidental to a lawful arrest, as when the person being arrested is frisked for
weapons he may otherwise be able to use against the arresting officer. Motor cars may be inspected
at borders to prevent smuggling of aliens and contraband and even in the interior upon a showing of
probable cause. Vessels and aircraft are also traditionally removed from the operation of the rule
because of their mobility and their relative ease in fleeing the state's jurisdiction. The individual may
knowingly agree to be searched or waive objections to an illegal search. And it has also been held
that prohibited articles may be taken without warrant if they are open to eye and hand and the peace
officer comes upon them inadvertently.

The case at bar does not come under any of the above specified exceptions. The warrantless seizure
of the motorcycle was unquestionably violative of "the right to be let alone" by the authorities as
guaranteed by the Constitution. The vehicle cannot even be detained on the ground that it is a
prohibited article the mere possession of which is unlawful.

In dismissing Civil Case No. 3878, the respondent judge said he had no jurisdiction over the
motorcycle because it was in custodia legis and only the judge trying the criminal cases against the
petitioner and his co-accused could order its release. He cited the general doctrine that:

Property seized in enforcing criminal laws is in the custody of the law and cannot be replevied, until
such custody is ended.8

It is true that property held as evidence in a criminal case cannot be replevied. But the rule applies
only where the property is lawfully held, that is, seized in accordance with the rule against warrantless
searches and seizures or its accepted exceptions. Property subject of litigation is not by that fact
alone in custodia legis.9 As the Court said in Tamisin v. Odejar10 "A thing is in custodia legis when it
is shown that it has been and is subjected to the official custody of a judicial executive officer in
pursuance of his execution of a legal writ." Only when property is lawfully taken by virtue of legal
process is it considered in the custody of the law, and not otherwise.11

The circumstance that Judge Fernandez ordered the motorcycle to be deposited with the clerk of
court on motion of the petitioner did not place the vehicle in custodia legis. The respondent judge had
no authority over it because it had not been lawfully seized nor had it been voluntarily surrendered to
the court by the petitioner. The private respondent observed in his comment that "it is only when the
exhibits are offered in evidence and admitted by the court that they are submitted to the custody of
the Court, and, before that, "they are usually in the possession of the prosecution." Even he agrees
therefore that the motorcycle is not in custodia legis.

At that, the vehicle in the case at bar is not admissible as an exhibit even if offered as such because it
is "the fruit of the poisonous tree." Under Article III, Sec. 3(2) "any evidence obtained in violation" of
the rule against unreasonable searches and seizure "shall be inadmissible for any purpose in any
proceeding."

Our finding is that the action to recover the motorcycle in the Regional Trial Court of Masbate will not
constitute interference with the processes of the Regional Trial Court of Makati and that,
consequently, the complaint should not have been dismissed by the respondent judge.

The Judiciary is as anxious as the rest of the government that crime be prevented and, if committed,
redressed.1wphi1 There is no question that the person who violates the law deserves to be
punished to the full extent that the attendant circumstances will allow. But the prosecution of the
suspected criminal cannot be done with high-handedness or prejudgment, in disregard of the very
laws we are supposed to uphold. Zeal in the pursuit of criminals cannot ennoble the use of arbitrary
methods that the Constitution itself abhors.

WHEREFORE, the order of the respondent judge dated October 12, 1990, is SET ASIDE and Civil
Case No. 3878 is REINSTATED for further proceedings. No costs.
G.R. Nos. 111771-77 November 9, 1993

ANTONIO L. SANCHEZ, petitioner,

vs. The Honorable HARRIET O. DEMETRIOU (in her capacity as Presiding Judge of Regional
Trial Court, NCR, Branch 70, Pasig), The Honorable FRANKLIN DRILON (in his capacity as
Secretary of Justice), JOVENCITO R. ZUO, LEONARDO C. GUIYAB, CARLOS L. DE LEON,
RAMONCITO C. MISON, REYNALDO J. LUGTU, and RODRIGO P. LORENZO, the last six
respondents in their official capacities as members of the State Prosecutor's Office),
respondents.

CRUZ, J.:

There is probably no more notorious person in the country today than Mayor Antonio L. Sanchez of
Calauan, Laguna, who stands accused of an unspeakable crime. On him, the verdict has already
been rendered by many outraged persons who would immediately impose on him an angry sentence.
Yet, for all the prejudgments against him, he is under our Constitution presumed innocent as long as
the contrary has not been proved. Like any other person accused of an offense, he is entitled to the
full and vigilant protection of the Bill of Rights.

Sanchez has brought this petition to challenge the order of the respondent judge denying his motion
to quash the informations for rape with homicide filed against him and six other persons. We shall
treat it as we would any other suit filed by any litigant hoping to obtain a just and impartial judgment
from this Court.

The pertinent facts are as follows:

On July 28, 1993, the Presidential Anti-Crime Commission requested the filing of appropriate charges
against several persons, including the petitioner, in connection with the rape-slay of Mary Eileen
Sarmenta and the killing of Allan Gomez.

Acting on this request, the Panel of State Prosecutors of the Department of Justice conducted a
preliminary investigation on August 9, 1993. Petitioner Sanchez was not present but was represented
by his counsel, Atty. Marciano Brion, Jr.

On August 12, 1993, PNP Commander Rex Piad issued an "invitation" to the petitioner requesting
him to appear for investigation at Camp Vicente Lim in Canlubang, Laguna. It was served on
Sanchez in the morning of August 13,1993, and he was immediately taken to the said camp.

At a confrontation that same day, Sanchez was positively identified by Aurelio Centeno, and SPO III
Vivencio Malabanan, who both executed confessions implicating him as a principal in the rape-slay of
Sarmenta and the killing of Gomez. The petitioner was then placed on "arrest status" and taken to the
Department of Justice in Manila.

The respondent prosecutors immediately conducted an inquest upon his arrival, with Atty. Salvador
Panelo as his counsel.

After the hearing, a warrant of arrest was served on Sanchez. This warrant was issued on August 13,
1993, by Judge Enrico A. Lanzanas of the Regional Trial Court of Manila, Branch 7, in connection
with Criminal Cases Nos. 93-124634 to 93-124637 for violation of Section 8, in relation to Section 1,
of R.A. No. 6713. Sanchez was forthwith taken to the CIS Detention Center, Camp Crame, where he
remains confined.
On August 16, 1993, the respondent prosecutors filed with the Regional Trial Court of Calamba,
Laguna, seven informations charging Antonio L. Sanchez, Luis Corcolon, Rogelio Corcolon, Pepito
Kawit, Baldwin Brion, Jr., George Medialdea and Zoilo Ama with the rape and killing of Mary Eileen
Sarmenta.

On August 26, 1993, Judge Eustaquio P. Sto. Domingo of that court issued a warrant for the arrest of
all the accused, including the petitioner, in connection with the said crime.

The respondent Secretary of Justice subsequently expressed his apprehension that the trial of the
said cases might result in a miscarriage of justice because of the tense and partisan atmosphere in
Laguna in favor of the petitioner and the relationship of an employee, in the trial court with one of the
accused. This Court thereupon ordered the transfer of the venue of the seven cases to Pasig, Metro
Manila, where they were raffled to respondent Judge Harriet Demetriou.

On September 10, 1993, the seven informations were amended to include the killing of Allan Gomez
as an aggravating circumstance.

On that same date, the petitioner filed a motion to quash the informations substantially on the
grounds now raised in this petition. On September 13, 1993, after oral arguments, the respondent
judge denied the motion. Sanchez then filed with this Court the instant petition for certiorari and
prohibition with prayer for a temporary restraining order/writ of injunction.

The petitioner argues that the seven informations filed against him should be quashed because: 1) he
was denied the right to present evidence at the preliminary investigation; 2) only the Ombudsman had
the competence to conduct the investigation; 3) his warrantless arrest is illegal and the court has
therefore not acquired jurisdiction over him, 4) he is being charged with seven homicides arising from
the death of only two persons; 5) the informations are discriminatory because they do not include
Teofilo Alqueza and Edgardo Lavadia; and 6) as a public officer, he can be tried for the offense only
by the Sandiganbayan.

The respondents submitted a Comment on the petition, to which we required a Reply from the
petitioner within a non-extendible period of five days. 1 The Reply was filed five days late. 2 The
Court may consider his non-compliance an implied admission of the respondents' arguments or a loss
of interest in prosecuting his petition, which is a ground for its dismissal. Nevertheless, we shall
disregard this procedural lapse and proceed to discuss his petition on the basis of the arguments
before us.

The Preliminary Investigation.

The records of the hearings held on August 9 and 13, 1993, belie the petitioner's contention that he
was not accorded the right to present counter-affidavits.

During the preliminary investigation on August 9, 1993, the petitioner's counsel, Atty. Marciano Brion,
manifested that his client was waiving the presentation of a counter-affidavit, thus:

Atty. Brion, Jr.:

[W]e manifest that after reviewing them there is nothing to rebut or countermand all these statements
as far as Mayor Sanchez is concerned, We are not going to submit any counter-affidavit.

ACSP Zuo to Atty. Brion:

xxx xxx xxx

Q. So far, there are no other statements.

A. If there is none then, we will not submit any counter-affidavit because we believe there is nothing
to rebut or countermand with all these statements.

Q. So, you are waiving your submission of counter-affidavit?

A. Yes, your honor, unless there are other witnesses who will come up soon. 3

Nonetheless, the head of the Panel of Prosecutors, respondent Jovencito Zuo, told Atty. Brion that
he could still file a counter-affidavit up to August 27, 1993. No such counter-affidavit was filed.

During the hearing on August 1'3, 1993, respondent Zuo furnished the petitioner's counsel, this time
Atty. Salvador Panelo, with copies of the sworn statements of Centeno and Malabanan, and told him
he could submit counter-affidavits on or before August 27, 1993. The following exchange ensued:

ACSP Zuo:

For the record, we are furnishing to you the sworn statement of witness Aurelio Centeno y Roxas and
the sworn statement of SPO3 Vivencio Malabanan y Angeles.

Do I understand from you that you are again waiving the submission of counter-affidavit?

Atty. Panelo:

Yes.

ACSP Zuo:

So, insofar as the respondent, Mayor Antonio Sanchez is concerned, this case is submitted for
resolution. 4

On the other hand, there is no support for the petitioner's subsequent manifestation that his counsel,
Atty. Brion, was not notified of the inquest held on August 13, 1993, and that he was not furnished
with the affidavits sworn to on that date by Vivencio Malabanan and Aurelio Centeno, or with their
supplemental affidavits dated August 15, 1993. Moreover, the above-quoted excerpt shows that the
petitioner's counsel at the hearing held on August 13, 1993, was not Atty. Brion but Atty. Panelo.

The petitioner was present at that hearing and he never disowned Atty. Panelo as his counsel. During
the entire proceedings, he remained quiet and let this counsel speak and argue on his behalf. It was
only in his tardy Reply that he has suddenly bestirred himself and would now question his
representation by this lawyer as unauthorized and inofficious.

Section 3, Paragraph (d), Rule 112 of the Rules of Court, provides that if the respondent cannot be
subpoenaed or, if subpoenaed, does not submit counter-affidavits, the investigating officer shall base
his resolution on the evidence presented by the complainant.

Just as the accused may renounce the right to be present at the preliminary investigation 5, so may
he waive the right to present counter-affidavits or any other evidence in his defense.
At any rate, it is settled that the absence of a preliminary investigation does not impair the validity of
the information or otherwise render the same defective and neither does it affect the jurisdiction of the
court over the case or constitute a ground for quashing the information. 6

If no preliminary investigation has been held, or if it is flawed, the trial court may, on motion of the
accused, order an investigation or reinvestigation and hold the proceedings in the criminal case in
abeyance. 7 In the case at bar, however, the respondent judge saw no reason or need for such a
step. Finding no arbitrariness in her factual conclusions, we shall defer to her judgment.

Jurisdiction of the Ombudsman

Invoking the case of Deloso v. Domingo, 8 the petitioner submits that the proceedings conducted by
the Department of Justice are null and void because it had no jurisdiction over the case. His claim is
that it is the Office of the Ombudsman that is vested with the power to conduct the investigation of all
cases involving public officers like him, as the municipal mayor of Calauan, Laguna.

The Ombudsman is indeed empowered under Section 15, paragraph (1) of R.A. 6770 to investigate
and prosecute, any illegal act or omission of any public official. However, as we held only two years
ago in the case of Aguinaldo v. Domagas, 9 this authority "is not an exclusive authority but rather a
shared or concurrent authority in. respect of the offense charged."

Petitioners finally assert that the information and amended information filed in this case needed the
approval of the Ombudsman. It is not disputed that the information and amended information here did
not have the approval of the Ombudsman. However, we do not believe that such approval was
necessary at all. In Deloso v. Domingo, 191 SCRA. 545 (1990), the Court held that the Ombudsman
has authority to investigate charges of illegal or omissions on the part of any public official, i.e., any
crime imputed to a public official. It must, however, be pointed out that the authority of the
Ombudsman to investigate "any [illegal] act or omission of any public official" (191 SCRA at 550) is
not an exclusive authority but rather a shared or concurrent authority in respect of the offense here
charged, i.e., the crime of sedition. Thus, the non-involvement of the office of the Ombudsman in the
present case does not have any adverse legal consequence upon the authority the panel of
prosecutors to file and prosecute the information or amended information.

In fact, other investigatory agencies, of the government such as the Department of Justice, in
connection with the charge of sedition, 10 and the Presidential Commission on Good Government, in
ill-gotten wealth cases, 11 may conduct the investigation,

The Arrest

Was petitioner Sanchez arrested on August 13, 1993?

"Arrest" is defined under Section 1, Rule 113 of the Rules of Court as the taking of a person into
custody in order that he may be bound to answer for the commission of an offense. Under Section 2
of the same Rule, an arrest is effected by an actual restraint of the person to be arrested or by his
voluntary submission to the custody of the person making the arrest.

Application of actual force, manual touching of the body, physical restraint or a formal declaration of
arrest is not, required. It is enough that there be an intent on the part of one of the parties to arrest the
other and an intent onthe part of the other to submit, under the belief and impression that submission
is necessary. 12
The petitioner was taken to Camp Vicente Lim, Canlubang, Laguna, by virtue of a letter-invitation
issued by PNP Commander Rex Piad requesting him to appear at the said camp for investigation.

In Babst v. National Intelligence Board 13 this Court declared:

Be that as it may, it is not idle to note that ordinarily, an invitation to attend a hearing and answer
some questions, which the person invited may heed or refuse at his pleasure, is not illegal or
constitutionally objectionable. Under certain circumstances, however, such an invitation can easily
assume a different appearance. Thus, where the invitation comes from a powerful group composed
predominantly of ranking military officers issued at a time when the country has just emerged from
martial rule and when the suspension of the privilege of the writ of habeas corpus has not entirely
been lifted, and the designated interrogation site is a military camp, the same can be easily taken, not
as a strictly voluntary invitation which it purports to be, but as an authoritative command which one
can only defy at his peril. . . . (Emphasis supplied)

In the case at bar, the invitation came from a high-ranking military official and the investigation of
Sanchez was to be made at a military camp. Although in the guise of a request, it was obviously a
command or an order of arrest that the petitioner could hardly he expected to defy. In fact, apparently
cowed by the "invitation," he went without protest (and in informal clothes and slippers only) with the
officers who had come to fetch him.

It may not be amiss to observe that under R.A. No. 7438, the requisites of a "custodial investigation"
are applicable even to a person not formally arrested but merely "invited" for questioning.

It should likewise be noted that at Camp Vicente Lim, the petitioner was placed on "arrest status"
after he was pointed to by Centeno and Malabanan as the person who first raped Mary Eileen
Sarmenta. Respondent Zuo himself acknowledged during the August 13, 1993 hearing that, on the
basis of the sworn statements of the two state witnesses, petitioner had been "arrested."

We agree with the petitioner that his arrest did not come under Section 5, Rule 113 of the Rules of
Court, providing as follows:

Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person may, without
a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense;

(b) When an offense has in fact just been committed and he has personal knowledge of facts
indicating that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escapes from a penal establishment or
place where he is serving final judgment or temporarily confined while his case is pending, or has
escaped while being transferred from one confinement to another.

It is not denied that the arresting officers were not present when the petitioner allegedly participated in
the killing of Allan Gomez and the rape-slay of Mary Eileen Sarmenta. Neither did they have any
personal knowledge that the petitioner was responsible therefor because the basis of the arrest was
the sworn statements of Centeno and Malabanan. Moreover, as the rape and killing of Sarmenta
allegedly took place on June 28-June 29, 1993, or forty-six days before the date of the arrest, it
cannot be said that the offense had "in fact just been committed" when the petitioner was arrested.
The original warrantless arrest of the petitioner was doubtless illegal. Nevertheless, the Regional Trial
Court lawfully acquired jurisdiction over the person of the petitioner by virtue of the warrant of arrest it
issued on August 26, 1993 against him and the other accused in connection with the rape-slay cases.
It was belated, to be sure, but it was nonetheless legal.

Even on the assumption that no warrant was issued at all, we find that the trial court still lawfully
acquired jurisdiction over the person of the petitioner. The rule is that if the accused objects to the
jurisdiction of the court over his person, he may move to quash the information, but only on that
ground. If, as in this case, the accused raises other grounds in the motion to quash, he is deemed to
have waived that objection and to have submitted his person to the jurisdiction of that court. 14

The Court notes that on August 13, 1993, after the petitioner was unlawfully arrested, Judge
Lanzanas issued a warrant of arrest against Antonio L. Sanchez in connection with Criminal Cases
Nos. 93-124634 to 93-124637 for violation of R.A No. 6713. 15 Pending the issuance of the warrant
of arrest for the rape-slay cases, this first warrant served as the initial justification for his detention.

The Court also adverts to its uniform ruling that the filing of charges, and the issuance of the
corresponding warrant of arrest, against a person invalidly detained will cure the defect of that
detention or at least deny him the right to be released because of such defect. * Applicable by
analogy to the case at bar is Rule 102 Section 4 of the Rules of Court that:

Sec, 4. When writ is not allowed or discharge authorized. If it appears that the person
alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or
judge or by virtue of a judgment or order of a court of record, and that the court or judge had
jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed;
or if the jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of
any informality or defect in the process, judgment, or order. Nor shall, anything in this rule be held to
authorize the discharge of a person charged with or convicted of an offense in the Philippines or of a
person suffering imprisonment under lawful judgment.

In one case, 16 the petitioner, sued on habeas corpus on the ground that she had been arrested by
virtue of a John Doe warrant. In their return, the respondents declared that a new warrant specifically
naming her had been issued, thus validating her detention. While frowning at the tactics of the
respondents, the Court said:

The, case has, indeed, become moot and academic inasmuch as the new warrant of arrest complies
with the requirements of the Constitution and the Rules of Court regarding the particular description of
the person to be arrested. While the first warrant was unquestionably void, being a general warrant,
release of the petitioner for that reason will be a futile act as it will be followed by her immediate re-
arrest pursuant to the new and valid warrant, returning her to the same prison she will just have left.
This Court will not participate in such a meaningless charade.

The same doctrine has been consistently followed by the Court, 17 more recently in the Umil case. 18

The Informations

The petitioner submits that the seven informations charging seven separate homicides are absurd
because the two victims in these cases could not have died seven times.

This argument was correctly refuted by the Solicitor General in this wise:
Thus, where there are two or more offenders who commit rape, the homicide committed on the
occasion or by reason of each rape, must be deemed as a constituent of the special complex crime of
rape with homicide. Therefore, there will be as many crimes of rape with homicide as there are rapes
committed.

In effect, the presence of homicide qualifies the crime of rape, thereby raising its penalty to the
highest degree. Thus, homicide committed on the occasion or by reason of rape, loses its character
as an independent offense, but assumes a new character, and functions like a qualifying
circumstance. However,by fiction of law, it merged with rape to constitute an constituent element of a
special complex crime of rape with homicide with a specific penalty which is in the highest degree, i.e.
death (reduced to reclusion perpetua with the suspension of the application of the death penalty by
the Constitution).

It is clearly provided in Rule 110 of the Rules of Court that:

Sec. 13. Duplicity of offense. A complaint or information must charge but one offense, except
only in those cases in which existing laws prescribe a simple punishment for various offenses.

Rape with homicide comes within the exception under R.A. 2632 and R.A. 4111, amending the
Revised Penal Code.

The petitioner and his six co-accused are not charged with only one rape committed by him in
conspiracy with the other six. Each one of the seven accused is charged with having himself raped
Sarmenta instead of simply helping Sanchez in committing only one rape. In other words, the
allegation of the prosecution is that the girl was raped seven times, with each of the seven accused
taking turns in abusing her with the assistance of the other six. Afterwards, their lust satisfied, all
seven of them decided to kill and thus silence Sarmenta.

Every one of the seven accused is being charged separately for actually raping Sarmenta and later
killing her instead of merely assisting the petitioner in raping and then slaying her. The separate
informations filed against each of them allege that each of the seven successive rapes is complexed
by the subsequent slaying of Sarmenta and aggravated by the killing of Allan Gomez by her seven
attackers. The separate rapes were committed in succession by the seven accused, culminating in
the slaying of Sarmenta.

It is of course absurd to suggest that Mary Eileen Sarmenta and Allan Gomez were killed seven
times, but the informations do not make such a suggestion. It is the petitioner who does so and is
thus hoist by his own petard.

The Alleged Discrimination

The charge of discrimination against the petitioner because of the non-inclusion of Teofilo Alqueza
and Edgardo Lavadia in the informations must also be dismissed.

While the prosecuting officer is required by law to charge all those who in his opinion, appear to be
guilty, he nevertheless cannot be compelled to include in the information a person against whom he
believes no sufficient evidence of guilt exists. 19 The appreciation of the evidence involves the use of
discretion on the part of the prosecutor, and we do not find in the case at bar a clear showing by the
petitioner of a grave abuse of such discretion. 20

The decision of the prosecutor may be reversed or modified by the Secretary of Justice or in special
cases by the President of the Philippines. 21 But even this Court cannot order the prosecution of a
person against whom the prosecutor does not find sufficient evidence to support at least a prima facie
case. The courts try and absolve or convict the accused but as a rule have no part in the initial
decision to prosecute him.

The possible exception is where there is an unmistakable showing of a grave abuse of discretion that
will justify judicial intrusion into the precincts of the executive. But in such a case the proper remedy
to call for such exception is a petition for mandamus, not certiorari or prohibition. 22 Moreover, before
resorting to this relief, the party seeking the inclusion of another person as a co-accused in the same
case must first avail itself of other adequate remedies such as the filing of a motion for such inclusion.
23

At any rate, it is a preposterous contention that because no charges have been filed against Alqueza
and Lavadia, the charges against the petitioner and his co-accused should also be dropped.

Jurisdiction of the Sandiganbayan

The petitioner argued earlier that since most of the accused were incumbent public officials or
employees at the time of the alleged commission of the crimes, the cases against them should come
under the jurisdiction of the Sandiganbayan and not of the regular courts. This contention was
withdrawn in his Reply but we shall discuss it just the same for the guidance of all those concerned.

Section 4, paragraph (a) of P.D. No, 1606, as amended by P.D. No.1861, provides:

Sec. 4. Jurisdiction. The Sandiganbayan shall exercise:

a) Exclusive original jurisdiction in all cases involving:

(1) Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and
Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII of the Revised
Penal Code:

(2) Other offenses or felonies committed by public officers and employees in relation to their
office, including those employed in government-owned or controlled corporations, whether simple or
complexed with other crimes, where the penalty prescribed by law is higher than prision correccional
or imprisonment for six (6) years, or a fine of P6,000.00. . . . (Emphasis supplied)

The crime of rape with homicide with which the petitioner stands charged obviously does not fall
under paragraph (1), which deals with graft and corruption cases. Neither is it covered by paragraph
(2) because it is not an offense committed in relation to the office of the petitioner.

In Montilla v, Hilario, 24 this Court described the "offense committed in relation to the office" as
follows:

[T]he relation between the crime and the office contemplated by the Constitution is, in our opinion,
direct and not accidental. To fall into the intent of the Constitution, the relation has to be such that, in
the legal sense, the offense cannot exist without the office. In other words, the office must be a
constituent element of the crime as defined in the statute, such as, for instance, the crimes defined
and punished in Chapter Two to Six, Title Seven, of the Revised Penal Code.

Public office is not of the essence of murder. The taking of human life is either murder or homicide
whether done by a private citizen or public servant, and the penalty is the same except when the
perpetrator. being a public functionary took advantage of his office, as alleged in this case, in which
event the penalty is increased.

But the use or abuse of office does not adhere to the crime as an element; and even as an
aggravating circumstance, its materiality arises not from the allegations but on the proof, not from the
fact that the criminals are public officials but from the manner of the commission of the crime

There is no direct relation between the commission of the crime of rape with homicide and the
petitioner's office as municipal mayor because public office is not an essential element of the crime
charged. The offense can stand independently of the office. Moreover, it is not even alleged in the
information that the commission of the crime charged was intimately connected with the performance
of the petitioner's official functions to make it fall under the exception laid down in People v. Montejo.
25

In that case, a city mayor and several detectives were charged with murder for the death of a suspect
as a result of a "third degree" investigation held at a police substation. The appearance of a senator
as their counsel was questioned by the prosecution on the ground that he was inhibited by the
Constitution from representing them because they were accused of an offense committed in relation
to their office. The Court agreed. It held that even if their position was not an essential ingredient of
the offense, there was nevertheless an intimate connection between the office and the offense, as
alleged in the information, that brought it within the definition of an offense "committed in relation to
the public office."

As Chief Justice Concepcion said:

It is apparent from these allegations that, although public office is not an element of the crime of
murder in abstract, as committed by the main respondents herein, according to the amended
information, the offense therein charged is intimately connected with their respective offices and was
perpetrated while they were in the performance, though improper or irregular, of their official
functions. Indeed they had no personal motive to commit the crime and they would not have
committed it had they not held their aforesaid offices. The co-defendants of respondent Leroy S.
Brown, obeyed his instructions because he was their superior officer, as Mayor of Basilan City.
(Emphasis supplied).

We have read the informations in the case at bar and find no allegation therein that the crime of rape
with homicide imputed to the petitioner was connected with the discharge of his functions as
municipal mayor or that there is an "intimate connection" between the offense and his office. It follows
that the said crime, being an ordinary offense, is triable by the regular courts and not the
Sandiganbayan.

Conclusion

As above demonstrated, all of the grounds invoked by the petitioner are not supported by the facts
and the applicable law and jurisprudence. They must, therefore, all be rejected. In consequence, the
respondent judge, who has started the trial of the criminal cases against the petitioner and his co-
accused, may proceed therewith without further hindrance.

It remains to stress that the decision we make today is not a decision on the merits of the criminal
cases being tried below. These will have to be decided by the respondent judge in accordance with
the evidence that is still being received. At this time, there is yet no basis for judgment, only
uninformed conjecture. The Court will caution against such irrelevant public speculations as they can
be based only on imperfect knowledge if not officious ignorance.
WHEREFORE, the petition is DISMISSED. The respondent judge is DIRECTED to continue with the
trial of Criminal Cases Nos. 101141, 101142, 101143, 101144, 101145, 101146 and 101147 and to
decide them with deliberate dispatch.

SO ORDERED.
G.R. No. 168539 March 25, 2014

PEOPLE OF THE PHILIPPINES, Petitioner,

vs.
HENRY T. GO, Respondent.

DECISION

PERALTA, J.:

Before the Court is a petition for review on certiorari assailing the Resolution1 of the Third Division2
of the Sandiganbayan (SB) dated June 2, 2005 which quashed the Information filed against herein
respondent for alleged violation of Section 3 (g) of Republic Act No. 3019 (R.A. 3019), otherwise
known as the Anti-Graft and Corrupt Practices Act.

The Information filed against respondent is an offshoot of this Court's Decision3 in Agan, Jr. v.
Philippine International Air Terminals Co., Inc. which nullified the various contracts awarded by the
Government, through the Department of Transportation and Communications (DOTC), to Philippine
Air Terminals, Co., Inc. (PIATCO) for the construction, operation and maintenance of the Ninoy
Aquino International Airport International Passenger Terminal III (NAIA IPT III). Subsequent to the
above Decision, a certain Ma. Cecilia L. Pesayco filed a complaint with the Office of the Ombudsman
against several individuals for alleged violation of R.A. 3019. Among those charged was herein
respondent, who was then the Chairman and President of PIATCO, for having supposedly conspired
with then DOTC Secretary Arturo Enrile (Secretary Enrile) in entering into a contract which is grossly
and manifestly disadvantageous to the government.

On September 16, 2004, the Office of the Deputy Ombudsman for Luzon found probable cause to
indict, among others, herein respondent for violation of Section 3(g) of R.A. 3019. While there was
likewise a finding of probable cause against Secretary Enrile, he was no longer indicted because he
died prior to the issuance of the resolution finding probable cause.

Thus, in an Information dated January 13, 2005, respondent was charged before the SB as follows:

On or about July 12, 1997, or sometime prior or subsequent thereto, in Pasay City, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the late ARTURO ENRILE, then
Secretary of the Department of Transportation and Communications (DOTC), committing the offense
in relation to his office and taking advantage of the same, in conspiracy with accused, HENRY T. GO,
Chairman and President of the Philippine International Air Terminals, Co., Inc. (PIATCO), did then
and there, willfully, unlawfully and criminally enter into a Concession Agreement, after the project for
the construction of the Ninoy Aquino International Airport International Passenger Terminal III (NAIA
IPT III) was awarded to Paircargo Consortium/PIATCO, which Concession Agreement substantially
amended the draft Concession Agreement covering the construction of the NAIA IPT III under
Republic Act 6957, as amended by Republic Act 7718 (BOT law), specifically the provision on Public
Utility Revenues, as well as the assumption by the government of the liabilities of PIATCO in the
event of the latter's default under Article IV, Section 4.04 (b) and (c) in relation to Article 1.06 of the
Concession Agreement, which terms are more beneficial to PIATCO while manifestly and grossly
disadvantageous to the government of the Republic of the Philippines.4

The case was docketed as Criminal Case No. 28090.

On March 10, 2005, the SB issued an Order, to wit:

The prosecution is given a period of ten (10) days from today within which to show cause why this
case should not be dismissed for lack of jurisdiction over the person of the accused considering that
the accused is a private person and the public official Arturo Enrile, his alleged co-conspirator, is
already deceased, and not an accused in this case.5

The prosecution complied with the above Order contending that the SB has already acquired
jurisdiction over the person of respondent by reason of his voluntary appearance, when he filed a
motion for consolidation and when he posted bail. The prosecution also argued that the SB has
exclusive jurisdiction over respondent's case, even if he is a private person, because he was alleged
to have conspired with a public officer.6

On April 28, 2005, respondent filed a Motion to Quash7 the Information filed against him on the
ground that the operative facts adduced therein do not constitute an offense under Section 3(g) of
R.A. 3019. Respondent, citing the show cause order of the SB, also contended that, independently of
the deceased Secretary Enrile, the public officer with whom he was alleged to have conspired,
respondent, who is not a public officer nor was capacitated by any official authority as a government
agent, may not be prosecuted for violation of Section 3(g) of R.A. 3019.

The prosecution filed its Opposition.8

On June 2, 2005, the SB issued its assailed Resolution, pertinent portions of which read thus:

Acting on the Motion to Quash filed by accused Henry T. Go dated April 22, 2005, and it appearing
that Henry T. Go, the lone accused in this case is a private person and his alleged co-conspirator-
public official was already deceased long before this case was filed in court, for lack of jurisdiction
over the person of the accused, the Court grants the Motion to Quash and the Information filed in this
case is hereby ordered quashed and dismissed.9

Hence, the instant petition raising the following issues, to wit:

WHETHER OR NOT THE COURT A QUO GRAVELY ERRED AND DECIDED A QUESTION OF
SUBSTANCE IN A MANNER NOT IN ACCORD WITH LAW OR APPLICABLE JURISPRUDENCE IN
GRANTING THE DEMURRER TO EVIDENCE AND IN DISMISSING CRIMINAL CASE NO. 28090
ON THE GROUND THAT IT HAS NO JURISDICTION OVER THE PERSON OF RESPONDENT GO.

II

WHETHER OR NOT THE COURT A QUO GRAVELY ERRED AND DECIDED A QUESTION OF
SUBSTANCE IN A MANNER NOT IN ACCORD WITH LAW OR APPLICABLE JURISPRUDENCE,
IN RULING THAT IT HAS NO JURISDICTION OVER THE PERSON OF RESPONDENT GO
DESPITE THE IRREFUTABLE FACT THAT HE HAS ALREADY POSTED BAIL FOR HIS
PROVISIONAL LIBERTY

III

WHETHER OR NOT THE COURT A QUO GRAVELY ERRED WHEN, IN COMPLETE DISREGARD
OF THE EQUAL PROTECTION CLAUSE OF THE CONSTITUTION, IT QUASHED THE
INFORMATION AND DISMISSED CRIMINAL CASE NO. 2809010

The Court finds the petition meritorious.

Section 3 (g) of R.A. 3019 provides:

Sec. 3. Corrupt practices of public officers. In addition to acts or omissions of public officers already
penalized by existing law, the following shall constitute corrupt practices of any public officer and are
hereby declared to be unlawful:

xxxx

(g) Entering, on behalf of the Government, into any contract or transaction manifestly and grossly
disadvantageous to the same, whether or not the public officer profited or will profit thereby.

The elements of the above provision are:

(1) that the accused is a public officer;

(2) that he entered into a contract or transaction on behalf of the government; and

(3) that such contract or transaction is grossly and manifestly disadvantageous to the government.11

At the outset, it bears to reiterate the settled rule that private persons, when acting in conspiracy with
public officers, may be indicted and, if found guilty, held liable for the pertinent offenses under Section
3 of R.A. 3019, in consonance with the avowed policy of the anti-graft law to repress certain acts of
public officers and private persons alike constituting graft or corrupt practices act or which may lead
thereto.12 This is the controlling doctrine as enunciated by this Court in previous cases, among which
is a case involving herein private respondent.13

The only question that needs to be settled in the present petition is whether herein respondent, a
private person, may be indicted for conspiracy in violating Section 3(g) of R.A. 3019 even if the public
officer, with whom he was alleged to have conspired, has died prior to the filing of the Information.

Respondent contends that by reason of the death of Secretary Enrile, there is no public officer who
was charged in the Information and, as such, prosecution against respondent may not prosper.

The Court is not persuaded.

It is true that by reason of Secretary Enrile's death, there is no longer any public officer with whom
respondent can be charged for violation of R.A. 3019. It does not mean, however, that the allegation
of conspiracy between them can no longer be proved or that their alleged conspiracy is already
expunged. The only thing extinguished by the death of Secretary Enrile is his criminal liability. His
death did not extinguish the crime nor did it remove the basis of the charge of conspiracy between
him and private respondent. Stated differently, the death of Secretary Enrile does not mean that there
was no public officer who allegedly violated Section 3 (g) of R.A. 3019. In fact, the Office of the
Deputy Ombudsman for Luzon found probable cause to indict Secretary Enrile for infringement of
Sections 3 (e) and (g) of R.A. 3019.14 Were it not for his death, he should have been charged.

The requirement before a private person may be indicted for violation of Section 3(g) of R.A. 3019,
among others, is that such private person must be alleged to have acted in conspiracy with a public
officer. The law, however, does not require that such person must, in all instances, be indicted
together with the public officer. If circumstances exist where the public officer may no longer be
charged in court, as in the present case where the public officer has already died, the private person
may be indicted alone.
Indeed, it is not necessary to join all alleged co-conspirators in an indictment for conspiracy.15 If two
or more persons enter into a conspiracy, any act done by any of them pursuant to the agreement is,
in contemplation of law, the act of each of them and they are jointly responsible therefor.16 This
means that everything said, written or done by any of the conspirators in execution or furtherance of
the common purpose is deemed to have been said, done, or written by each of them and it makes no
difference whether the actual actor is alive or dead, sane or insane at the time of trial.17 The death of
one of two or more conspirators does not prevent the conviction of the survivor or survivors.18 Thus,
this Court held that:

x x x [a] conspiracy is in its nature a joint offense. One person cannot conspire alone. The crime
depends upon the joint act or intent of two or more persons. Yet, it does not follow that one person
cannot be convicted of conspiracy. So long as the acquittal or death of a co-conspirator does not
remove the bases of a charge for conspiracy, one defendant may be found guilty of the offense.19

The Court agrees with petitioner's contention that, as alleged in the Information filed against
respondent, which is deemed hypothetically admitted in the latter's Motion to Quash, he (respondent)
conspired with Secretary Enrile in violating Section 3 (g) of R.A. 3019 and that in conspiracy, the act
of one is the act of all. Hence, the criminal liability incurred by a co-conspirator is also incurred by the
other co-conspirators.

Moreover, the Court agrees with petitioner that the avowed policy of the State and the legislative
intent to repress "acts of public officers and private persons alike, which constitute graft or corrupt
practices,"20 would be frustrated if the death of a public officer would bar the prosecution of a private
person who conspired with such public officer in violating the Anti-Graft Law.

In this regard, this Court's disquisition in the early case of People v. Peralta21 as to the nature of and
the principles governing conspiracy, as construed under Philippine jurisdiction, is instructive, to wit:

x x x A conspiracy exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it. Generally, conspiracy is not a crime except when the
law specifically provides a penalty therefor as in treason, rebellion and sedition. The crime of
conspiracy known to the common law is not an indictable offense in the Philippines. An agreement to
commit a crime is a reprehensible act from the view-point of morality, but as long as the conspirators
do not perform overt acts in furtherance of their malevolent design, the sovereignty of the State is not
outraged and the tranquility of the public remains undisturbed.

However, when in resolute execution of a common scheme, a felony is committed by two or more
malefactors, the existence of a conspiracy assumes pivotal importance in the determination of the
liability of the perpetrators. In stressing the significance of conspiracy in criminal law, this Court in
U.S. vs. Infante and Barreto opined that

While it is true that the penalties cannot be imposed for the mere act of conspiring to commit a crime
unless the statute specifically prescribes a penalty therefor, nevertheless the existence of a
conspiracy to commit a crime is in many cases a fact of vital importance, when considered together
with the other evidence of record, in establishing the existence, of the consummated crime and its
commission by the conspirators.

Once an express or implied conspiracy is proved, all of the conspirators are liable as co-principals
regardless of the extent and character of their respective active participation in the commission of the
crime or crimes perpetrated in furtherance of the conspiracy because in contemplation of law the act
of one is the act of all. The foregoing rule is anchored on the sound principle that "when two or more
persons unite to accomplish a criminal object, whether through the physical volition of one, or all,
proceeding severally or collectively, each individual whose evil will actively contributes to the wrong-
doing is in law responsible for the whole, the same as though performed by himself alone." Although it
is axiomatic that no one is liable for acts other than his own, "when two or more persons agree or
conspire to commit a crime, each is responsible for all the acts of the others, done in furtherance of
the agreement or conspiracy." The imposition of collective liability upon the conspirators is clearly
explained in one case where this Court held that x x x it is impossible to graduate the separate liability
of each (conspirator) without taking into consideration the close and inseparable relation of each of
them with the criminal act, for the commission of which they all acted by common agreement x x x.
The crime must therefore in view of the solidarity of the act and intent which existed between the x x x
accused, be regarded as the act of the band or party created by them, and they are all equally
responsible x x x

Verily, the moment it is established that the malefactors conspired and confederated in the
commission of the felony proved, collective liability of the accused conspirators attaches by reason of
the conspiracy, and the court shall not speculate nor even investigate as to the actual degree of
participation of each of the perpetrators present at the scene of the crime. Of course, as to any
conspirator who was remote from the situs of aggression, he could be drawn within the enveloping
ambit of the conspiracy if it be proved that through his moral ascendancy over the rest of the
conspirators the latter were moved or impelled to carry out the conspiracy.

In fine, the convergence of the wills of the conspirators in the scheming and execution of the crime
amply justifies the imputation to all of them the act of any one of them. It is in this light that conspiracy
is generally viewed not as a separate indictable offense, but a rule for collectivizing criminal liability.

xxxx

x x x A time-honored rule in the corpus of our jurisprudence is that once conspiracy is proved, all of
the conspirators who acted in furtherance of the common design are liable as co-principals. This rule
of collective criminal liability emanates from the ensnaring nature of conspiracy. The concerted action
of the conspirators in consummating their common purpose is a patent display of their evil
partnership, and for the consequences of such criminal enterprise they must be held solidarily
liable.22

This is not to say, however, that private respondent should be found guilty of conspiring with
Secretary Enrile. It is settled that the absence or presence of conspiracy is factual in nature and
involves evidentiary matters.23 Hence, the allegation of conspiracy against respondent is better left
ventilated before the trial court during trial, where respondent can adduce evidence to prove or
disprove its presence.

Respondent claims in his Manifestation and Motion24 as well as in his Urgent Motion to Resolve25
that in a different case, he was likewise indicted before the SB for conspiracy with the late Secretary
Enrile in violating the same Section 3 (g) of R.A. 3019 by allegedly entering into another agreement
(Side Agreement) which is separate from the Concession Agreement subject of the present case. The
case was docketed as Criminal Case No. 28091. Here, the SB, through a Resolution, granted
respondent's motion to quash the Information on the ground that the SB has no jurisdiction over the
person of respondent. The prosecution questioned the said SB Resolution before this Court via a
petition for review on certiorari. The petition was docketed as G.R. No. 168919. In a minute resolution
dated August 31, 2005, this Court denied the petition finding no reversible error on the part of the SB.
This Resolution became final and executory on January 11, 2006. Respondent now argues that this
Court's resolution in G.R. No. 168919 should be applied in the instant case.
The Court does not agree. Respondent should be reminded that prior to this Court's ruling in G.R. No.
168919, he already posted bail for his provisional liberty. In fact, he even filed a Motion for
Consolidation26 in Criminal Case No. 28091. The Court agrees with petitioner's contention that
private respondent's act of posting bail and filing his Motion for Consolidation vests the SB with
jurisdiction over his person. The rule is well settled that the act of an accused in posting bail or in filing
motions seeking affirmative relief is tantamount to submission of his person to the jurisdiction of the
court.27

Thus, it has been held that:

When a defendant in a criminal case is brought before a competent court by virtue of a warrant of
arrest or otherwise, in order to avoid the submission of his body to the jurisdiction of the court he must
raise the question of the courts jurisdiction over his person at the very earliest opportunity. If he gives
bail, demurs to the complaint or files any dilatory plea or pleads to the merits, he thereby gives the
court jurisdiction over his person. (State ex rel. John Brown vs. Fitzgerald, 51 Minn., 534)

xxxx

As ruled in La Naval Drug vs. CA [236 SCRA 78, 86]:

"[L]ack of jurisdiction over the person of the defendant may be waived either expressly or impliedly.
When a defendant voluntarily appears, he is deemed to have submitted himself to the jurisdiction of
the court. If he so wishes not to waive this defense, he must do so seasonably by motion for the
purpose of objecting to the jurisdiction of the court; otherwise, he shall be deemed to have submitted
himself to that jurisdiction."

Moreover, "[w]here the appearance is by motion for the purpose of objecting to the jurisdiction of the
court over the person, it must be for the sole and separate purpose of objecting to said jurisdiction. If
the appearance is for any other purpose, the defendant is deemed to have submitted himself to the
jurisdiction of the court. Such an appearance gives the court jurisdiction over the person."

Verily, petitioners participation in the proceedings before the Sandiganbayan was not confined to his
opposition to the issuance of a warrant of arrest but also covered other matters which called for
respondent courts exercise of its jurisdiction. Petitioner may not be heard now to deny said courts
jurisdiction over him. x x x.28

In the instant case, respondent did not make any special appearance to question the jurisdiction of
the SB over his person prior to his posting of bail and filing his Motion for Consolidation. In fact, his
Motion to Quash the Information in Criminal Case No. 28090 only came after the SB issued an Order
requiring the prosecution to show cause why the case should not be dismissed for lack of jurisdiction
over his person.

As a recapitulation, it would not be amiss to point out that the instant case involves a contract entered
into by public officers representing the government. More importantly, the SB is a special criminal
court which has exclusive original jurisdiction in all cases involving violations of R.A. 3019 committed
by certain public officers, as enumerated in P.D. 1606 as amended by R.A. 8249. This includes
private individuals who are charged as co-principals, accomplices or accessories with the said public
officers. In the instant case, respondent is being charged for violation of Section 3(g) of R.A. 3019, in
conspiracy with then Secretary Enrile. Ideally, under the law, both respondent and Secretary Enrile
should have been charged before and tried jointly by the Sandiganbayan. However, by reason of the
death of the latter, this can no longer be done. Nonetheless, for reasons already discussed, it does
not follow that the SB is already divested of its jurisdiction over the person of and the case involving
herein respondent. To rule otherwise would mean that the power of a court to decide a case would no
longer be based on the law defining its jurisdiction but on other factors, such as the death of one of
the alleged offenders.

Lastly, the issues raised in the present petition involve matters which are mere incidents in the main
case and the main case has already been pending for over nine (9) years. Thus, a referral of the case
to the Regional Trial Court would further delay the resolution of the main case and it would, by no
means, promote respondent's right to a speedy trial and a speedy disposition of his case.

WHEREFORE, the petition is GRANTED. The Resolution of the Sandiganbayan dated June 2, 2005,
granting respondent's Motion to Quash, is hereby REVERSED and SET ASIDE. The Sandiganbayan
is forthwith DIRECTED to proceed with deliberate dispatch in the disposition of Criminal Case No.
28090.