SECTION 1.
INSTITUTION OF CRIMINAL ACTIONS made to sign a continuing surety agreement and a chattel mortgage on their Mitsubishi
G.R. No. 157163 June 25, 2014
BANK OF THE PHILIPPINE ISLANDS, Petitioner,
vs.
HON. JUDGE AGAPITO L. HONTANOSAS, JR., REGIONAL TRIAL COURT, BRANCH 16,
CEBU CITY, SILVERIO BORBON, SPOUSES XERXES AND ERLINDA FACULTAD, AND
XM FACULTAD & DEVELOPMENT CORPORATION, Respondents.
DECISION
BERSAMIN, J.:
Injunction should not issue except upon a clear showing that the applicant has a right in
esse to be protected, and that the acts sought to be enjoined are violative of such right.
A preliminary injunction should not determine the merits of a case, or decide
controverted facts, for, being a preventive remedy, it only seeks to prevent threatened
wrong, further injury, and irreparable harm or injustice until the rights of the parties
can be settled.
The Case
Under review at the instance of the defendant, now the petitioner herein, is the decision
promulgated on July 9, 2002,1 whereby the Court of Appeals (CA) upheld the order
issuedon July 5, 2001 in Civil Case No. CEB-26468 entitled Spouses Silverio & Zosima
Borbon, et al. v. Bank of the Philippine Islandsby the Regional Trial Court (RTC), Branch
16, in Cebu City, presided by Hon. Judge Agapito L. Hontanosas, Jr.
Antecedents
On May 22, 2001, respondents Spouses Silverio and Zosima Borbon, Spouses Xerxes
and Erlinda Facultad,and XM Facultad and Development Corporation commenced Civil
Case No. CEB-26468 to seek the declaration of the nullity of the promissory notes,real
estate and chattel mortgages and continuing surety agreement they had executed in
favor of the petitioner. They further sought damages and attorneys fees, and applied for
a temporary restraining order (TRO) orwrit of preliminary injunction to prevent the
petitioner from foreclosing on the mortgages against their properties.
The complaintalleged that the respondents had obtained a loan from the petitioner, and
had executed promissory notes binding themselves, jointly and severally, to pay the sum
borrowed; that as security for the payment of the loan, they had constituted real estate
mortgages on several parcels of land in favor of the petitioner; and that they had been
Pajero.
It appears that the respondentsobligation to the petitioner had reached
17,983,191.49, but they had only been able to pay 13 Million because they had been
adversely affected by the economic turmoil in Asia in 1997. The petitioner required
them to issue postdated checks to cover the loan under threat of foreclosing on the
mortgages. Thus, the complaint sought a TRO or a writ of preliminary injunction to stay
the threatened foreclosure.
On June 6, 2001, the petitioner filed its answer with affirmative defenses and
counterclaim, as well as its oppositionto the issuance of the writ of preliminary
injunction, contending that the foreclosure of the mortgages was within itslegal right to
do.2
Also on June 6, 2001 the petitioner filed a motion to dismiss reiterating its affirmative
defenses, to wit:
I) THAT THE COMPLAINT SHOULD BE DISMISSED BECAUSE VENUE IS
IMPROPERLYLAID. (RULE 16, SECITON 1, PARAGRAPH (C);
II) THAT THE COURT HAS NOTACQUIRED JURISDICTION OVER THE SUBJECT
MATTER OFTHE CLAIM BECAUSE THE PROPER LEGAL FEES HAS NOT BEEN
PAID IN ACCORDANCE WITH RULE 14, OF THE RULES OF COURT AND
CIRCULAR NO. 7 OF THE SUPREME COURT, SERIES OF 1988;
III) THAT ZOSIMA BORBONS COMPLAINT SHOULD BE DISMISSED BECAUSE
PLAINTIFF ZOSIMA BORBON HAS NO LEGAL PERSONALITY TO SUE BEING
DECEASED, SPOUSE OF PLAINTIFF SILVERIO BORBON. (RULE 16, SECTION
1(d);
IV) THAT THE ESTATE OF ZOSIMA BORBON BEING AN INDISPENSABLE
PARTY, THE COMPLAINT SHOULD BE AMENDED TO INCLUDE THE ESTATE OF
ZOSIMA BORBON. (RULE 16, SECTION 1(j);
V) THAT THE COMPLAINT OFPLAINTIFF XM FACULTAD AND DEVELOPMENT
CORPORATION, SHOULD BE DISMISSED BECAUSE THERE IS NO BOARD
RESOLUTION AUTHORIZING THE FILING OF THIS CASE. [RULE 16, SECTION 1
(d)];
VI) THAT THE PLEADING ASSERTING THE CLAIM STATES NO CAUSE OF
ACTION.3
On July 5, 2001, the RTC denied the petitioners motion to dismissfor being
unmeritorious,4 but granted the respondents application for preliminary injunction, 5 to
wit:
WHEREFORE, premises considered, the application for preliminary injunction is
GRANTED. Upon filing by the plaintiffapplicants of a bond in the amount of 2,000,000
in favor of defendant to the effect that applicants will pay to adverse party all damages
which it may sustain by reason of the injunction, let a writ of preliminary injunction be
issued directing the defendant and its agents or representatives, to cease and desist
from commencing foreclosure and sale proceedings of the mortgaged properties; from
taking possession of the Mitsubishi Pajero subject of the chattel mortgage; and from
using the questioned post-dated checks as evidence for the filing of complaint against
plaintiffs Facultad for violation of Batas Pambansa Blg. 22, while the present case is
pending litigation.
This writ of preliminary injunction shall continue until further orders from the Court.
Notify the parties of this Order.
SO ORDERED.6
The RTC later denied the petitioners motion for reconsideration through its order 7 of
August 22, 2001.
Ruling of the CA
Dissatisfied, the petitioner assailed the orders of the RTC by petition for certiorariin the
CA, submitting the lone issue of:
WHETHER OR NOT THE PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF
DISCRETION WHEN IT ISSUED AN ORDER DENYING THE MOTION TO DISMISS AND
GRANTING THE WRIT OF PRELIMINARY MANDATORY INJUNCTION.
On July 9, 2002, however, the CArendered the adverse decision under review, to wit:
WHEREFORE, premises considered, the assailed order of the Regional Trial Court (RTC)
of Cebu City, Branch 16 dated July 5, 2001 and August 22, 2001 are hereby AFFIRMED.
Let the original records of this case be remanded immediately to the court a quo for
further proceedings. SO ORDERED.8
The CA held that the petitioners averment of non-payment of the proper docket fee by
the respondents asthe plaintiffs in Civil Case No. CEB-26468 was not substantiated; that
even if the correct docket fee was not in fact paid, the strict application of the rule
thereon could be mitigated in the interest of justice;9 and that Civil Case No. CEB-26468,
being a personal action, was properly filed in Cebu City where respondent XM Facultad
and Development Corporations principal office was located.10
The CA further held that ZosimaBorbons death rendered respondent Silverio Borbon,
her surviving spouse, the successor to her estate; that although there was a valid
transfer of interest pending the litigation, the dismissal of the complaintwould not be in
order because it was permissible under the rules to continue the action in the name of
the original party;11 and that the RTC did not commit grave abuse of discretion in
issuing the writ of preliminary injunction because it thereby only applied the pertinent
law and jurisprudence.12
The CA denied the petitioners motion for reconsiderationthrough its resolution of
February 12, 2003.13
Issues
Hence, this appeal, with the petitioner positing as follows:
1. Whether or not Civil Case No. CEB-26468 should be dismissed for (a) non-
payment of the correct amount of docket fee; and (b) improper venue; 14
2. Whether or not the issuance of the writ of preliminary injunction against the
petitioner, its agents and representatives, was in order.
Ruling of the Court
The appeal is partly meritorious.
1. Civil Case No. CEB-26468 was a personal action; hence, venue was properly laid
The CA and the RTC held that Civil Case No. CEB-26468, being for the declaration of the
nullity of a contract of loan and its accompanying continuing surety agreement, and the
real estate and chattel mortgages, was a personal action; hence, its filing in Cebu City,
the place of business of one of the plaintiffs, was correct under Section 2, Rule 4 of the
Rules of Court.
The petitioner contends, however, that Civil Case No. CEB-26468 was a real action that
should be commenced and tried in the proper court having jurisdiction over the area
wherein the real property involved, or a portion thereof, was situated; and
thatconsequently the filing and docket fees for the complaintshould be based on the
value of the property as stated in the certificate of sale attached thereto.
We sustain the lower courts holdings.
The determinants of whether an action is of a real or a personal nature have been fixed
by the Rules of Courtand relevant jurisprudence. According to Section 1, Rule 4 of the
Rules of Court, a real action is one that affects title to or possession of real property, or
an interest therein. Such action is to be commenced and tried in the proper court
having jurisdiction over the area wherein the real property involved, ora portion
thereof, is situated, which explains why the action is also referred to as a localaction. In
contrast, the Rules of Courtdeclares all other actionsas personal actions. 15 Such actions
may include those brought for the recovery of personal property, or for the enforcement
of some contract or recovery of damages for its breach, or for the recovery of damages
for the commission of an injury to the person or property. 16 The venue of a personal
action isthe place where the plaintiff or any of the principal plaintiffs resides,or where
the defendant or any of the principal defendants resides, or in the case of a non-
resident defendant where he may be found, at the election of the plaintiff, 17 for which
reason the action is considered a transitory one.
The complaintin Civil Case No. CEB-26468 pertinently alleged as follows: 18
xxxx
3.1 Plaintiffs signed blank pre-printed forms of promissory note no. 501253-
000, continuing surety agreement, real estate mortgages, chattel mortgage
which violates the principle of mutuality of contracts. These contracts are in
the nature of contracts of adhesion with provisions favouring defendant bank
and plaintiffs had nothing to do except to sign the unjust stipulations which
should be declared as NULL AND VOID. These contracts do not reflect the real
agreement of the parties and the stipulations are tilted infavor of defendant
bank.
3.2 Moreover, these real estate mortgages, chattel mortgages and continuing
surety agreement are securing specific amounts of obligation and upon the
payment of 13,000,000 to defendant bank, automatically, these became
functus de oficioand should be released immediately without the encumbrance.
3.3 As the chattel mortgage involving the Mitsubishi Pajero secured only
600,000.00, upon liquidation of more than 800,000.00 principal payment,
the same became null and void, and defendant bank should be ordered to
cancel the mortgage and to be directed not to take any appropriate action to
take possession.
3.4 In addition, Penbank Checks Nos. 11237 to 11242 with amounts of
200,000.00 each and BPI Check Nos. 019098 & 019099 with amounts of
400,000.00 each, issued against the will of plaintiffs Facultad and without any
consideration, should be declared null and void. Defendant bank should be
directed not to deposit the samefor collection with the drawee bank.
xxxx
3.6 Furthermore, the total obligation of plaintiffs is void and baseless because it
is based on illegal impositions of exorbitant interest and excessive charges.
Interest was converted into principal which in turn earns interest. These illegal
impositions are considered by law and jurisprudence as null and void. These
excessive interest and charges should be applied to the principal unless there
isapplication, defendant bank is enriching itself at the expense of plaintiffs. x x
xx
Based on the aforequoted allegations of the complaintin Civil Case No. CEB-26468, the
respondents seek the nullification of the promissory notes, continuing surety
agreement, checks and mortgage agreements for being executed against their will and
vitiated by irregularities, not the recovery of the possession or title to the properties
burdened by the mortgages. There was no allegation that the possession of the
properties under the mortgages had already been transferred to the petitioner in the
meantime. Applying the determinants, Civil Case No. CEB-26468 was unquestionably a
personal action, for, as ruled in Chua v. Total Office Products and Services
(Topros),Inc.:19
Well-settled is the rule that an action to annul a contract of loan and its accessory real
estate mortgageis a personal action. In a personal action, the plaintiff seeks the
recovery of personal property, the enforcement of a contractor the recovery of damages.
In contrast, in a real action, the plaintiff seeks the recovery of real property, or, as
indicated in Section 2 (a), Rule 4 of the then Rules of Court, a real action is an action
affecting title to real property or for the recovery of possession, or for partition or
condemnation of, or foreclosure of mortgage on, real property.
In the Pascual case, relied upon by petitioner, the contract of sale of the fishpond was
assailed as fictitious for lack of consideration. We held that there being no contract to
begin with, there is nothing to annul. Hence, we deemed the action for annulment of the
said fictitious contract therein as one constituting a real action for the recovery of the
fishpond subject thereof.
We cannot, however, apply the foregoing doctrine to the instant case. Note that in
Pascual, title to and possession of the subject fishpond had already passed to the
vendee. There was, therefore, a need to recover the said fishpond. But in the instant
case, ownership of the parcels of land subject of the questioned real estatemortgage
was never transferred to petitioner, but remained with TOPROS. Thus, no real action for
the recovery of real property is involved. This being the case, TOPROS action for
annulment of the contracts of loan and real estate mortgage remains a personal action.
xxxx
The Court of Appeals finds that Hernandez v. Rural Bank of Lucena, Inc.provides the
proper precedent in this case. In Hernandez, appellants contended that the action of the
Hernandez spouses for the cancellation of the mortgage on their lots was a real action
affecting title to real property, which should have been filed in the place where the
mortgaged lots were situated. Rule 4, Section 2 (a), of the then Rules of Court, was
applied, to wit:
SEC. 2. Venue in Courts of First Instance. (a) Real actions. Actions affecting title to, or
for recovery of possession, or for partition or condemnation of, or foreclosure of
mortgage on, real property, shall be commenced and tried in the province where the
property or any part thereof lies.
The Court pointed out in the Hernandezcase that with respect to mortgage, the rule on
real actions only mentions an action for foreclosure of a real estate mortgage. It does
not include an action for the cancellation of a real estate mortgage. Exclusio unios est
inclusio alterius. The latter thus falls under the catch-all provision on personal actions
under paragraph (b) of the above-cited section, to wit:
SEC. 2 (b) Personal actions. All other actions may be commenced and tried where the
defendant or any of the defendants resides or may be found, or where the plaintiff or
any of the plaintiffs resides, at the election of the plaintiff.
In the same vein, the action for annulment of a real estate mortgage in the present case
must fall under Section 2 of Rule 4, to wit:
SEC. 2. Venue of personal actions. All other actions may be commenced and tried
where the plaintiff or any of the principal plaintiffs resides, orwhere the defendant or
any of the principal defendants resides, or in the case of a nonresident defendant where
he may be found, at the election of the plaintiff.
Thus, Pasig City, where the parties reside, is the proper venue of the action to nullify the
subject loan and real estate mortgage contracts. The Court of Appeals committed no
reversible error in upholding the orders of the Regional Trial Court denying petitioners
motion to dismiss the case on the ground of improper venue.
Being a personal action, therefore, Civil Case No. CEB-26468 was properly brought in
the RTC in Cebu City, where respondent XM Facultad and Development Corporation, a
principal plaintiff, had its address.
Upon the same consideration, the petitioners contention that the filing and docket fees
for the complaintshould be based on the assessed values of the mortgaged real
properties due to Civil Case No. CEB-26468 being a real action cannot be upheld for
lack of factual and legal bases.
2. Respondents were not entitled to the writ of preliminary injunction
In their application for the issuance of the writ of preliminary injunction, the
respondents averred that the nullity of the loan and mortgage agreements entitled
them to the relief of enjoining the petitioner from: (a) foreclosing the real estateand
chattel mortgages; (b)taking possession, by replevin, of the Mitsubishi Pajero; and (c)
depositing the postdated checks; that respondents Spouses Facultad would suffer
injustice and irreparable injury should the petitioner foreclose the mortgages and file
criminal complaints for violation of Batas Pambansa Blg.22 against them; and that such
threatened acts, if done, would render ineffectual the judgment of the trial court. 20 They
prayed that the petitioner be enjoined from doing acts that would disturb their material
possession of the mortgaged properties, manifesting their willingness to post a bond
for the issuance of the writ of preliminary injunction. 21
As mentioned, the RTC issued the writ of preliminary injunction on July 16, 2001 based
on the foregoing allegations of the respondents application, 22 and the CA upheld the
issuance in its assailed July 9, 2002 decision.23
The petitioner submits that the issuance of the writ of preliminary injunction
constituted a violation of Administrative Circular (AC) No. 07-99 dated June 25, 1999,
and thus subjected respondent Judge to administrative sanction;24that injunction could
not issue to enjoin the prosecution of the criminal offenses because such prosecution
was imbued with public interest;25 and that the petitioner, as the mortgagee, could not
be prohibited from exercising its legal right to foreclose the mortgages because
foreclosure of the mortgages was its proper remedy under the law. 26
AC No. 07-99 was issued as a guideline for lower court judges in the issuance of TROs
and writs of preliminary injunctions to prevent the implementation of infrastructure
projects, or the seizure and forfeiture proceedings by the Bureau of Customs, viz:
ADMINISTRATIVE CIRCULAR NO. 07-99 June 25, 1999
TO: ALL JUDGES OF LOWER COURTS RE: EXERCISE OF UTMOST CAUTION, PRUDENCE,
AND JUDICIOUSNESS IN ISSUANCE OF TEMPORARY RESTRAINING ORDERS AND
WRITS OF PRELIMINARY INJUNCTIONS
Despite well-entrenched jurisprudence and circulars regarding exercise of
judiciousness and care in the issuance of temporary restraining orders (TRO) or grant
of writs ofpreliminary injunction, reports or complaints on abuses committed by trial
judges in connection therewith persist. Some even intimated thatirregularities,
including corruption, might have influenced the issuance ofthe TRO or the writ of
preliminary injunction.
No less than the President of the Philippines has requested this Court to issue a circular
reminding judges to respect P.D. No. 1818, which prohibits the issuance of TROs in
cases involving implementation of government infrastructure projects. The Office of the
President has likewise brought to the attention of this Court orders of judges releasing
imported articles under seizure and forfeiture proceedings by the Bureau of Customs.
Judges are thus enjoined to observe utmost caution, prudence and judiciousness in the
issuance of TRO and in the grant of writs of preliminary injunction to avoid any
suspicion that its issuance or grant was for considerations other than the strict merits
of the case.
Judges should bear in mind that in Garcia v. Burgos(291 SCRA 546, 571-572 [1998]),
this Court explicitly stated:
Sec. 1 of PD 1818 distinctly provides that "[n]o court in the Philippines shall have
jurisdiction to issue any restraining order, preliminary injunction, or preliminary
mandatory injunction in any case, dispute, orcontroversy involvingan infrastructure
project . . . of the government, . . . to prohibit any person or persons, entity or
government official from proceeding with, or continuing the execution or
implementation of any such project . . . or pursuing any lawful activity necessary for
such execution, implementation or operation." At the risk of being repetitious, we stress
that the foregoing statutory provision expressly deprives courts of jurisdiction to issue
injunctive writs against the implementation or execution of an infrastructure project.
Their attention is further invited to Circular No. 68-94, issued on 3 November 1994 by
the OCA OIC Deputy Court Administrator Reynaldo L. Suarez, on the subject "Strict
Observance of Section 1 of P.D. 1818 Envisioned by Circular No. 13-93 dated March 5,
1993, and Circular No. 20-92 dated March 24, 1992.
Finally, judges should never forget what the Court categorically declared in Mison v.
Natividad(213 SCRA 734, 742 [1992] that "[b]y express provision of law, amply
supported by well-settled jurisprudence, the Collector of Customs has exclusive
jurisdiction over seizure and forfeiture proceedings, and regular courts cannot interfere
with his exercise thereof or stifleor put it to naught."
The Office of the Court Administrator shall see to it that this circular is immediately
disseminated and shall monitor implementation thereof.
STRICT OBSERVANCE AND COMPLIANCE of this Circular is hereby enjoined.
AC No. 07-99 was irrelevant herein, however, because Civil Case No. CEB-26468 did not
involve the implementation of infrastructure projects, or the seizure and forfeiture
proceedings by the Bureau of Customs. Consequently, the petitioners urging that
respondent Judge be held administratively liable for violating AC No. 07-99 was
misplaced.
However, the RTCs issuance of the writ of preliminary injunction to enjoin the
petitioner from proceeding withthe foreclosure of the mortgages was plainly erroneous
and unwarranted.
A preliminary injunction is an order granted at any stage of an action prior to the
judgment or final order requiring a party or a court, agency or a person to refrain from
a particular act or acts.27 It is the "strong arm of equity," an extraordinary peremptory
remedy that must be used with extreme caution, affecting as it does the respective
rights of the parties.28 The requirements for the issuance of a writ of preliminary
injunction or TRO are enumerated in Section 3, Rule 58 of the Rules of Court, to wit:
Section 3. Grounds for issuance of preliminary injunction. - A preliminary injunction
may be granted when it is established:
(a) That the applicant is entitled to the relief demanded, and the whole or part
of such relief consists in restraining the commission or continuance of the act
or acts complained of, or in requiring the performance of an act or acts,
eitherfor a limited period or perpetually;
(b) That the commission, continuance or non-performance of the act or acts
complained of during the litigation would probably work injustice to the
applicant; or
(c) That a party, court, agency or a person is doing, threatening, or is
attempting to do, or is procuring or suffering to be done, some act or acts
probably in violation of the rights of the applicant respecting the subject of the
action or proceeding, and tending to render the judgment ineffectual.
In City Government of Butuan v. Consolidated Broadcasting System (CBS), Inc., 29 the
Court restated the nature and concept of a writ of preliminary injunction, as follows:
A preliminary injunction is an order granted at any stage of an action or proceeding
prior to the judgment orfinal order requiring a party or a court, an agency, or a person
to refrain from a particular act or acts. It may also require the performance of a
particular act or acts, in which case it is known as a preliminary mandatory injunction.
Thus, a prohibitory injunction is one that commands a party to refrain from doing a
particular act, while a mandatory injunction commands the performance of some
positive act to correct a wrong in the past.
As with all equitable remedies, injunction must be issued only at the instance of a party
who possesses sufficient interest in or title to the right or the property sought to be
protected. It is proper only when the applicant appears to be entitled to the relief
demanded in the complaint, which must aver the existence of the right and the violation
of the right, or whose averments must in the minimum constitute a prima facieshowing
of a right to the final relief sought. Accordingly, the conditions for the issuance of the
injunctive writ are: (a) that the right to be protected exists prima facie; (b) that the act
sought to be enjoined is violative of that right; and (c) that there is an urgent and
paramount necessity for the writ to prevent serious damage. An injunction will not
issue to protect a right not in esse, or a right which is merely contingent and may never
arise; or to restrain an act which does not give rise to a cause of action; or to prevent the
perpetration of an act prohibited bystatute. Indeed, a right, to be protected by
injunction, means a right clearly founded on or granted by law or is enforceable as a
matter of law. (Bold emphasis supplied)
Under the circumstances averred in the complaintin Civil Case No. CEB-26468, the
issuance ofthe writ of preliminary injunction upon the application of the respondents
was improper. They had admittedly constituted the real estate and chattel mortgages to
secure the performance of their loan obligation to the petitioner, and, as such, they were
fully aware of the consequences on their rights in the properties given as collaterals
should the loan secured be unpaid. The foreclosure of the mortgages would be the
remedy provided by law for the mortgagee to exact payment.30 In fact, they did not
dispute the petitionersallegations that they had not fully paid their obligation, and that
Civil Case No. CEB-26468 was precisely brought by them in order to stave off the
impending foreclosure of the mortgages based on their claim that they had been
compelled to sign pre-printed standard bank loan forms and mortgage agreements.
It is true that the trial courts are given generous latitude to act on applications for the
injunctive writ for the reason that conflicting claims in an application for the writ more
often than not involve a factual determination that is not the function of the appellate
courts;31 and that the exercise of sound discretion by the issuing courts in injunctive
matters ought not to be interfered with exceptwhen there is manifest
abuse.32 Nonetheless, the exercise of such discretion must be sound, that is, the issuance
of the writ, though discretionary, should be upon the grounds and in the manner
provided by law.33 Judges should always bear in mind that the writ of preliminary
injunction is issued uponthe satisfaction of two requisite conditions, namely: (1) the
right to be protected exists prima facie; and (2) the acts sought to be enjoined are
violative of that right. According toSaulog v. Court of Appeals,34 the applicant must have
a sufficient interest or right to be protected, but it is enough that:-
x x x for the court to act, there must be an existing basis of facts affording a present
right which is directly threatened by an act sought to be enjoined. And while a clear
showing ofthe right claimed is necessary, its existence need not be conclusively
established. In fact, the evidence to be submitted to justify preliminary injunction at the
hearing thereon need not be conclusive or complete but need only be a "sampling"
intended merely to give the court an idea of the justification for the preliminary
injunction pending the decision of the case on the merits. This should really be so since
our concern here involves only the propriety of the preliminary injunction and not the
merits of the case still pending with the trial court.
Thus, to be entitled to the writ ofpreliminary injunction, the private respondent needs
only to show that it has the ostensible right to the final relief prayed for in its complaint
x x x.
It is also basic that the power to issue a writ of injunction is to be exercised only where
the reason and necessity therefor are clearly established, and only in cases reasonably
free from doubt.35 For, truly, a preliminary injunction should not determine the merits
of a case,36 or decide controverted facts.37 As a preventive remedy, injunction only seeks
to prevent threatened wrong,38 further injury,39 and irreparable harm40 or
injustice41 until the rights of the parties can be settled.1wphi1 As an ancillary and
preventive remedy, it may be resorted to by a party to protect or preserve his rights
during the pendency of the principal action, and for no other purpose. 42 Such relief will
accordingly protect the ability of the court to render a meaningful decision; 43 it will
further serve to guard against a change of circumstances that will hamper orprevent
the granting of proper relief after a trial on the merits. 44 Verily, its essential function is
to preserve the status quo between the parties until the merits of the case can be
heard.45
Moreover, the applicant must prove that the violation sought to be prevented would
cause an irreparable injustice.46But the respondents failed to establish the irreparable
injury they would suffer should the writ of preliminary injunction not be issued.
Theyprincipally feared the loss of their possession and ownership of the mortgaged
properties, and faced the possibility of a criminal prosecution for the post-dated checks
they issued. But such fear of potential loss ofpossession and ownership, or facing a
criminal prosecution did not constitute the requisite irreparable injury that could have
warranted the issuance of the writ of injunction. "An injury is considered irreparable," emergency demands it,50 for no power exists whose exercise is more delicate, which
according to Philippine National Bank v. Castalloy Technology Corporation, 47 requires greater caution and deliberation, or is more dangerous in a doubtful case, than
the issuance of an injunction.51
x x x if it is of such constant and frequent recurrence that no fair or reasonable redress
can be had therefor ina court of law, or where there is no standard by which their In view of the foregoing, the CA grossly erred in not declaring that the RTC committed
amount canbe measured with reasonable accuracy, that is, it is not susceptible of grave abuse of discretion in granting the application of the respondents as the plaintiffs
mathematical computation. The provisional remedy of preliminary injunction may only in Civil Case No. CEB-26468. The RTC apparently disregarded the aforecited well-
be resorted to when there is a pressing necessity to avoid injurious consequences known norms and guidelines governing the issuance of the writ of injunction. Thereby,
which cannot be remedied under any standard of compensation. the RTC acted capriciously and arbitrarily. Grave abuse of discretion means either that
the judicial or quasi-judicial power was exercised in an arbitrary or despotic manner by
The injury being fearedby the herein respondents is not of such nature. Ultimately, the reason of passion or personal hostility, or that the respondent judge, tribunal or board
amount to which the mortgagee-bank shall be entitled will be determined by the evaded a positive duty, or virtually refused to perform the duty enjoined or to act in
disposition of the trial court in the main issue of the case. We have explained in contemplation of law, such as when such judge, tribunal or board exercising judicial or
Equitable PCI Bank, Inc. v. OJMark Trading, Inc.that all is not lost for defaulting quasi-judicial powers acted in a capricious or whimsical manner as to be equivalent to
mortgagors whose properties were foreclosed by creditors-mortgagees. The lack of jurisdiction.52
respondents will not be deprived outrightly of their property, given the right of
redemption granted to them under the law. Moreover, in extrajudicial foreclosures, WHEREFORE, the Court PARTIALLY GRANTS the petition for review on certiorari;
mortgagors have the right toreceive any surplus in the selling price. Thus, if the MODIFIES the decision promulgated on July 9, 2002 by annulling and setting aside the
mortgagee is retaining more of the proceeds of the sale than he is entitled to, this fact writ of preliminary injunction in Civil Case No. CEB-26468 issued by the Regional Trial
alone will not affect the validity of the sale but will give the mortgagor a cause of action Court, Branch 16, in Cebu City for being devoid of factual and legal bases; ORDERS the
to recover such surplus. Regional Trial Court, Branch 16, in Cebu City to proceed with dispatch in Civil Case No.
CEB-26468; and DIRECTS the respondents to pay the costs of suit.
As a general rule, the courts will not issue writs of prohibition or injunction whether
preliminary or final in order to enjoin or restrain any criminal prosecution. 48 But SO ORDERED.
there are extreme cases in which exceptions to the general rule have been recognized,
including: (1) when the injunction is necessary to afford adequate protection to the
constitutional rights of the accused; (2) when it is necessary for the orderly
administration of justice or to avoid oppression or multiplicity of actions; (3) when
there is a prejudicial question that is sub judice; (4) when the acts of the officer are
without or in excess of authority; (5) when the prosecution is under an invalid law,
ordinance or regulation; (6) when double jeopardy is clearly apparent; (7) when the
court has no jurisdiction over the offense; (8) when it is a case of persecution rather
than prosecution; (9) when the charges are manifestly false and motivated by the lust
for vengeance; and (10) when there is clearly no prima faciecase against the accused
and a motion to quash on that ground has been denied.49 However, the respondents did
not sufficiently show that Civil Case No. CEB-26468 came under any of the foregoing
exceptions. Hence, the issuance by the RTC of the writ of preliminary injunction to HEIRS OF FEDERICO GONZALES VS. LUISITO GONZALES
enjoin the petitioner from instituting criminal complaints for violation of BP No. 22 G.R. NO. 184337, AUGUST 7, 2009
against the respondents was unwarranted.

Every court should remember that an injunction should not be granted lightly or DECISION
precipitately because it isa limitation upon the freedom of the defendant's action. It
should be granted only when the court is fully satisfied that the law permits it and the CARPIO, J.:
The Case
Before the Court is a petition for review on certiorari [1] assailing the Amended
Decision[2] dated 29 August 2008 of the Court of Appeals Former Special Seventh
Division, which reversed the Original Decision[3] dated 18 March 2008 of the Court of
Appeals Seventh Division, in CA-G.R. SP No. 101196.
The Antecedent Facts
O11 March 2007, the police found the dead body of Federico C. Delgado (Delgado) at his
residence in Mayflower Building, 2515 Leon Guinto corner Estrada Streets, Malate,
Manila. The police was alerted by Annalisa D. Pesico (Pesico), who allegedly was
present at the time of the commission of the crime and was likewise injured in the
incident.[4]
On 1 June 2007, on behalf of Pesico and the heirs of Delgado (petitioners), [5] the Manila
Police District (MPD), represented by Alejandro B. Yanquiling Jr., Chief of the Homicide
Section, filed a complaint-affidavit[6] with the Office of the City Prosecutor of
Manila. The MPD charged respondents Luisito Q. Gonzalez (Gonzalez) and Antonio T.
Buenaflor (Buenaflor) with the murder of Delgado and frustrated murder of
Pesico. Gonzalez is the stepbrother of the deceased and Buenaflor was a former driver
for 15 years of Citadel Corporation, owned by the Delgado family.
Together with the complaint-affidavit, the police presented the following documents:
1. Sworn Statement (Sinumpaang Salaysay) of Pesico dated 11 March
2007;[7]
2. Supplemental Sworn Statement (Karagdagang Sinumpaang Salaysay)
of Pesico dated 15 March 2007;[8] and
3. Crime and Progress Reports of Senior Police Officer 2
(SPO2) Virgo Ban Villareal dated 23 March 2007.[9]
At petitioners request, the case was transferred to the Department of Justice (DOJ) for
preliminary investigation.[10] On 20 June 2007, the MPD filed a Supplemental Complaint-
Affidavit[11] and attached the following additional documents:
1. Scene of the Crime Operation (SOCO) Report dated 11 March 2007;[12]
2. Medical Certificate of Pesico from the Ospital ng Maynila dated 7 June 2007;
[13]
3. Cartographic Sketch of one of the suspects dated 13 March 2007, drawn by an artist
sketcher of the MPD, as described by Pesico;[14]
4. Photographs of criminals and Delgados family members, relatives, friends and
employees, shown to Pesico, where she recognized Gonzalez and Buenaflor as the ones
who mauled her and murdered Delgado;[15]
5. Affidavit of SPO2 Virgo Ban Villareal dated 15 June 2007 attesting to the
identification made by Pesico after viewing said photographs; [16]
6. Affidavit of Retired Police Superintendent Leonito Manipol Cantollas, the forensic
document examiner who analyzed the questioned handwritten word FRANCO, the
inscription on a wall found at the crime scene;[17]
7. Questioned Document Examination Report No. 004-07 of Leonito Manipol Cantollas;
[18]
8. Curriculum Vitae of Leonito Manipol Cantollas;[19]
9. Complaint-Affidavit for Robbery filed by Jose Mari C. Delgado, stepbrother of
Gonzalez, against Ruby Q. Gonzalez-Meyer, sister of Gonzalez; [20]
10. Letter via electronic mail dated 4 July 2003 written by Ruby Q. Gonzalez-
Meyer to her and Gonzalezs mother, Vicky Quirino Gonzalez-Delgado; [21]
11. Newspaper clipping taken from the Philippine Daily Inquirer dated 26 March
2007, where Gonzalezs wife, Kuh Ledesma, talked about him, their
relationship and the accusations that her husband was facing; [22]
12. Newspaper clipping taken from the Philippine Daily Inquirer dated 22 March
2007, referring to the family feud between the Delgado and Gonzalez
siblings;[23] and
13. Police Blotter dated 16 March 2007 reported by Atty. Augusto M. Perez, Jr.,
lawyer of Francisco Franco Delgado III, regarding a threatening phone call
by an unknown caller made on 15 March 2007 at the latters residence. [24]
Gonzalez and Buenaflor filed their Counter-Affidavits, respectively. [25] Together with his
counter-affidavit, Gonzalez attached relevant documents[26] establishing his
confinement at the Neuro-Psychiatric Unit of the Makati Medical Center from 7 March
2007 until 18 March 2007 and the corroborative affidavits of 29 impartial and
independent witnesses composed of physicians, nurses and personnel of said hospital.
[27]
On the other hand, Buenaflor presented the affidavit of his employer, who attested
that Buenaflor was on duty and driving for him at the time of Delgados death. [28]
Acting City Prosecutor of Manila Cielitolindo A. Luyun (Investigating Prosecutor)
conducted the preliminary investigation and evaluated the evidence submitted by the
MPD, as well as respondents Counter-Affidavits, corroborating affidavits of 29
witnesses, and supporting documentary evidence. In a Resolution dated 10 September
2007, the Investigating Prosecutor dismissed the complaint for lack of probable cause
that respondents committed the crimes of murder and frustrated murder. [29]
On 18 September 2007, petitioners filed a Petition for Review with the Secretary of
Justice. On 15 October 2007, then Acting Secretary of Justice Agnes VST Devanadera
(Acting Secretary Devanadera) reversed the finding of the Investigating Prosecutor and
directed the filing of separate informations for murder and less serious physical injuries
against respondents.[30]
On 18 October 2007, respondents filed a Motion for Reconsideration which was denied
by Acting Secretary Devanadera in a Resolution dated 26 October 2007. [31]
On 30 October 2007, the corresponding Informations were filed. The charge for the
crime of murder was filed before the Regional Trial Court (RTC) of Manila, Branch 32,
docketed as Criminal Case No. 07-257487. The charge of less serious physical injuries
was filed before the Metropolitan Trial Court of Manila, Branch 9, docketed as Criminal
Case No. 441878.[32]
Thereafter, respondents filed with the Court of Appeals a petition for certiorari and
prohibition under Rule 65, docketed as CA-G.R. SP No. 101196, assailing the Resolutions
of Acting Secretary Devanadera dated 15 October 2007 and 26 October 2007. [33]
The Ruling of the Court of Appeals
On 18 March 2008, the Court of Appeals, in its Original Decision, dismissed the petition
and denied respondents application for preliminary and/or permanent injunctive
writ.The appellate court found no grave abuse of discretion on the part of Acting
Secretary Devanadera in issuing the Resolutions dated 15 October 2007 and 26 October
2007. It affirmed the existence of probable cause when Pesico, the lone eyewitness of
the commission of the crime, positively identified respondents as the perpetrators. The
relevant portion of the Original Decision states:
As held by public respondent, probable cause was met, and rightly so,
when Pesico, the lone eyewitness of the commission of the crime
positively identified petitioners as the authors of the bestial act. To cast
doubt on Pesicos positive identification of petitioners, the latter
pointed to the alleged inconsistencies in the two affidavits that the
former has executed and such other circumstances surrounding the
commission of the crime showing the improbability of
identification. But as correctly ruled by public respondent, these are
minor inconsistencies and matters which are not enough, at that stage
in time, to overthrow the possibility and credibility of identification.
On the one hand are the following facts, established by the complaints: (1) That Pesico,
who was likewise injured, witnessed the commission of the crime; (2) Her condition,
despite the injury caused by the blunt object that was used to maul her, with swollen
eyes, tied in the arms and legs, does not totally forestall the possibility that she could
have seen and identified the assailants; (3) Pesico identified petitioners as the authors
of the complained acts; and (4) No evidence to show that Pesico and petitioners know
each other as to entertain any possibility that her identification may have been
prompted by ill-motive. On the other, are petitioners defense of alibi and denial which
they assert were not considered by public respondent.
In order to overthrow the jurisprudential injunction of giving superior regard to
positive identification over the defenses of alibi and denial, these defenses should be
clearly established and must not leave any room for doubt as to its plausibility and
verity. It (alibi) cannot prevail over the positive testimonies of the prosecution
witnesses who have no motive to testify falsely against the accused.
The burden of evidence, thus, shifts on the respondents to show that their defenses of
alibi and denial are strong enough to defeat probable cause, which was engendered by
the prosecutions alleged eyewitness positive identification of them as the assailants to
the crime under investigation. Moreover, for alibi to prosper, there must be proof that it
was physically impossible for the accused to be at the scene of the crime at the time it
was committed. At this juncture, We note the undisputed fact, concerning the
accessibility of the distance between the crime scene and the hospital where petitioner
Gonzale[z] alleged to have been detailed/admitted. The same is true with petitioner
Buenaflor who was only in the vicinity of Roxas Boulevard. Considering the distance of
the locus criminis and the places petitioners alleged they were at the time of the
commission of the crime, neither their arguments nor the affidavits of their witnesses
draw out the possibility, nay create physical impossibility, that they may have been at
the scene of the crime when it was committed.
xxx
IN VIEW OF THE FOREGOING, We find no grave abuse of discretion on the part of the
Acting Secretary of Justice in issuing the Resolutions dated 15 October 2007 and 26
October 2007.
ACCORDINGLY, the present Petition is hereby DISMISSED and petitioners application
for preliminary (and/or permanent) injunctive writ is necessarily denied.
SO ORDERED.[34]
Respondents then filed a Motion for Reconsideration with the Court of Appeals on 27
March 2008.[35]
Meanwhile, on 3 July 2008, the RTC ordered that warrants of arrest be issued against
respondents.[36] On 16 and 21 July 2008, Gonzalez and Buenaflor, respectively,
surrendered voluntarily to the police.[37] On 28 July 2008, respondents filed with the
RTC a Motion for Reconsideration (of the Order dated 3 July 2008).
To address the motion for reconsideration filed by respondents, the Court of Appeals
held oral arguments on 17 July 2008. After said hearing, the appellate court issued an
Amended Decision dated 29 August 2008. In the Amended Decision, the Court of
Appeals granted the motion for reconsideration and ordered that the Informations
charging petitioners with murder and less serious physical injuries be quashed and
dismissed. The relevant portion of the Amended Decision states:
This Court has carefully evaluated the evidence of the parties once
more, and its reassessment of the evidence compels it to reconsider its
previous affirmation of public respondent Acting Secretary of Justices
finding of probably cause. The Courts incisive scrutiny of the evidence
 led it to the conclusion that there was really insufficient evidence to
support public respondent Acting Secretary of Justices finding of
probable cause. It is significant to stress at this point that while
probable guilt and evidence less than sufficient for conviction is the
threshold in probable cause determinations, it is also important nay
indispensable that there be sufficient and credible evidence to
demonstrate the existence of probable cause.
xxx
Public respondent Acting Secretary of Justices finding of probable
cause against the petitioners is based solely on the account of the
prosecutions lone eyewitness, private respondent Annalisa Pesico. x x
x time between the crime and the identification; and
It is once apparent that public respondent Acting Secretary of Justice did not really
dwell on the essential facts of the case, much less dig through the crucial details of
private respondent Pesicos account.Curiously, a close reading of public respondent
Acting Secretary of Justices assailed resolution reveals that except for the rather
sweeping finding that private respondent Pesico positively identified the petitioners,
most of it were re-statements, without more, of broad principles and presumptions in
criminal law, such as the doctrines on alibi, denial, and positive identification. Such
disposition utterly falls short of the admonitions enunciated in Salonga and reiterated
in Allado. Indeed, while probable cause should be determined in a summary manner,
there is a need to examine the evidence with care to prevent material damage to a
potential accuseds constitutional right to liberty and the guarantees of freedom and fair
play, and to protect the State from the burden of unnecessary expenses in prosecuting
alleged offenses and holding trials arising from false, fraudulent or groundless charges.
xxx
The pivotal question then is, was there really positive identification of the petitioners?
In People vs. Teehankee, Jr., the Supreme Court explained the procedure for out-of-court
identification and the test to determine the admissibility of such identification, thus:
x x x Out-of-court identification is conducted by the
police in various ways. It is done thru show-ups where
the suspect alone is brought face to face with the
witness for identification. It is done thru mug
shots where photographs are shown to the witness to
identify the suspect. It is also done thru line-ups
where a witness identifies the suspect from a group
of persons lined up for the purpose. Since corruption
of out-of-court identification contaminates the
integrity of in-court identification during the trial of
the case, courts have fashioned out rules to assure its
fairness and its compliance with the requirements of
constitutional due process. In resolving the
admissibility of and relying on out-of-court
identification of suspects, courts have adopted
the totality of circumstances test where they consider
the following factors, viz: (1) the witness opportunity
to view the criminal at the time of the crime; (2) the
witness degree of attention at that time; (3) the
accuracy of any prior description given by the
witness; (4) the level of certainty demonstrated by
the witness at the identification; (5) the length of
(6) the suggestiveness of the identification
procedure.
Taking into consideration the foregoing test, this Court finds sufficient reasons to
seriously doubt the identification made by private respondent Pesico pointing to the
petitioners as the culprits.
First, a careful analysis of private respondent Pesicos account would reveal that she did
not really have sufficient opportunity to view the assailants at the time of the
commission of the crime. By her own account, private respondent Pesico narrated that
as they were about to enter Federicos room, two (2) men suddenly came out from the
room and immediately stabbed Federico, while she was also hit with a hard object on
her head and body. Considering the suddenness of the attack plus the fact that the
assailants had covers or masks on their faces, it was certainly not possible, at that
instance, that she could have seen their faces. In a later statement which she executed
four (4) days after, she nonetheless repaired her account by explaining that while
petitioners had covers on their faces and while her own face was covered with towel
and some pieces of clothing, she nevertheless, can still see through them, as in fact, she
saw the face of petitioner Luisito Gonzale[z] when the latter allegedly removed the
cover in his face because of the humidity inside the room. At this point, private
respondent Pesico was obviously referring at that particular instance when she was
lying down on the floor inside the dressing room. This Court entertains nagging doubts
in this respect. x x x
Second, private respondent Pesico utterly missed out important details in her first
narration of the events that transpired during the commission of the crime. Significant
details such as the covers or masks on the faces of the assailants, the strong Visayan
accent of one of the assailant, that the television was turned on, that the assailants
removed their masks because of the heat in the room, that her face was covered with
towel and some pieces of clothing, etc., were entirely lacking in her first sworn
statement, and were only supplied later in her second sworn statement. While her first
sworn statement undoubtedly counts as a fresh account of the incident, there are valid
reasons to suspect that the second sworn statement could have been tainted, if not
supplied or suggested, considering the intervening time between the execution of the
first and second statements.
Third, there was little certainty in private respondent Pesicos identification. There was
no mention at all of any distinguishing characteristics like the height, weight, built,
complexion, hair, moles, mustache, etc. of the assailants, not to mention the attire or the
color of their clothing, individual mannerisms or gestures, accessories, if any, that could
perhaps specifically identify the petitioners as the assailants. There was of course
private respondent Pesicos account that one of the assailants had a strong Visayan
accent, fierce eyes and pointed face but such was rather too general a description to
discriminate petitioners against a thousand and one suspects who would similarly
possess such description. Furthermore, while private respondent Pesico claimed to
have seen the faces of both the assailant, there was only one cartographic sketch of one
suspect. Oddly enough, the cartographic sketch does not even strike any close
resemblance to the facial features of anyone of the petitioners.
Fourth, there was sufficient lapse of time between the time of the commission of the
crimes when private respondent Pesico allegedly saw the assailants and the time she
made her identification. The intervening period, i.e., four (4) days to be exact, was more
than sufficient to have exposed what was otherwise accurate and honest perception of
the assailants to extraneous influences, which more or less leads this Court to conclude
that private respondent Pesicos identification of the petitioners could not have been
uncontaminated. This, in light of the fact that prior to the identification, private
respondent Pesico was part of the joint inspection of the crime scene conducted by the
police investigators with the members of the Delgado family, who, at that time floated
the family feud theory of the case.
Fifth, this Court finds the photo line-up identification conducted by the police
investigators to be totally unreliable and particularly dangerous, the same being
impermissibly suggestive. The pictures shown to private respondent Pesico consisted
mainly of the members of the Delgado family, employees and close associates, let alone
the fact that in the particular picture from which petitioner Luisito Gonzale[z] was
identified by private respondent Pesico as one of the assailants, he was the only male
individual. Juxtaposed with the family feud angle of the case, there is compelling reason
to believe that petitioner Luisito Gonzale[z] was isolated and suggested, wittingly or
unwittingly, by the police investigators as a prime suspect in the case.
In sum, this Court is of the view that petitioner Luisito Gonzale[z]s identification was
less than trustworthy and could not have been positive but merely derivative.
xxx
In light of the significant improbabilities, uncertainties and inconsistencies in private
respondent Pesicos account, as well as the total unreliability of the identification she
made, the petitioners alibi and denial thus assume commensurate strength. Their alibi
and denial assume particular importance in this case as the same are corroborated by
no less than twenty-nine (29) impartial and disinterested witnesses. x x x Thus taking
into account these 29 sworn statements, it was certainly impossible for the petitioners
to have been at the locus criminis. x x x Alibi is not always undeserving of credit, for
there are times when the accused has no other possible defense for what could really be
the truth as to his whereabouts at the crucial time, and such defense may in fact tilt the
scales of justice in his favor.[38]
The Solicitor General, who is now Agnes VST Devanadera, did not appeal the appellate
courts Amended Decision which reversed her Resolutions of 15 October 2007 and 26
October 2007 when she was Acting Secretary of Justice. In G.R. No. 184507, the Solicitor
General filed a Motion for Extension of Time to file a Petition for Review under Rule 45
before this Court. However, the 30 day extension given had lapsed without the filing of
said petition. Thus, the Court, in a Resolution dated 8 December 2008, declared G.R. No.
184507 closed and terminated.
On 10 September 2008, respondents filed with the Court of Appeals an Urgent Motion
to Order the Amended Decision dated 29 August 2008 as Immediately Executory. [39]
On 18 September 2008, petitioners filed a Petition for Review under Rule 45 before this
Court.[40] Respondents, in connection with the Petition for Review, filed a Motion for the
Release (On Bond, If Required).
On 2 October 2008, the Court of Appeals issued a Resolution denying the motion filed
on 10 September 2008.[41] Thereafter, respondents filed a Motion for Reconsideration.
Meanwhile, on 7 October 2008, the RTC issued an Order suspending the proceedings in
Criminal Case No. 07-257487 and effectively deferred the resolution of respondents
Motion for Reconsideration (of the Order dated 3 July 2008) pending a decision by this
Court on the Petition for Review filed by petitioners. The RTC also ordered that both
respondents remain in custody. [42]
On 5 November 2008, the Court of Appeals issued another Resolution denying the
motion for reconsideration of its 2 October 2008 Resolution, stating that with due
deference to the Supreme Court as the final arbiter of all controversies, the Court of
Appeals forbids itself from declaring the 29 August 2008 Amended Decision as
immediately executory. It held further that since an appeal by certiorari to the Supreme
Court had already been filed by petitioners, any motion for execution pending appeal
should now be filed with the Supreme Court. [43]
Hence, this petition.
On 10 December 2008, this Court conducted oral arguments to hear the respective
parties sides. In a Resolution dated 17 December 2008, this Court, acting upon the
Motion for the Release (On Bond, If Required) filed by respondents, ordered the RTC of
Manila, Branch 32, to hear respondents application for bail with deliberate dispatch,
since this Court is not in a position to grant bail to respondents as such grant requires
evidentiary hearing that should be conducted by the trial court where the murder case
is pending.
On 5 January 2009, respondents filed a Motion for Reconsideration of this Courts
Resolution dated 17 December 2008. On 16 March 2009, this Court denied the motion
for reconsideration and directed the RTC of Manila, Branch 32, to conduct a summary
hearing on bail and to resolve the same within thirty (30) days from receipt of the
resolution.
The RTC of Manila, Branch 32, issued an Order dated 27 March 2009 setting a hearing
on bail on 2 April 2009. On 7 April 2009, respondents filed with this Court a
Manifestation Waiving the Motion for the Release (On Bond, If Required) dated 17
November 2008. Respondents manifested that they waive and abandon their motion for
bail.
The Issues
Petitioners submit the following issues for our consideration:
1. Whether petitioners possess the legal standing to sue and whether
petitioners can be considered as the real parties in interest; that the DOJ
Secretary as represented by the Solicitor General is a mere nominal party;
that the People as represented by the City Prosecutor of Manila was not an
impleaded party before the Court of Appeals; that, unnotified of, and
unserved with the amended decision of the Court of Appeals, the People is
not bound thereby; and that, therefore, neither the Secretary of Justice nor
the People were called upon to appeal to the Supreme Court. [44]
2. Whether the amended decision of the Court of Appeals is final and can
be the subject of execution pending appeal.[45]
3. Whether the Court of Appeals committed reversible and whimsical
errors of law in the amended decision warranting reversal of the
same[46] in view of the following reasons:
a. There were plain, speedy and adequate remedies available to
respondents prior to their filing of certiorari before the Court of Appeals.
[47]
b. The Secretary of Justice did not commit grave abuse of discretion in her
determination of probable cause.[48]
c. The Court of Appeals strayed from the determination of grave abuse of
discretion and instead evaluated the evidence de novo, and erroneously
increased the quantum of evidence required for determining probable
cause.[49]
d. The Court of Appeals erroneously substituted its judgment for the Secretary of
Justice.[50]
e. The Court of Appeals undermined the jurisdiction of the RTC over the criminal
proceedings by virtue of the filing of the Information therein. [51]
The Courts Ruling
On petitioners standing to file the petition and
the finality of the Amended Decision
Petitioners contend that the parties impleaded in the Petition for Certiorari filed by
respondents before the Court of Appeals in CA-G.R. SP No. 101196 were Acting
Secretary Devanadera, Heirs of Federico C. Delgado and Annalisa D. Pesico. The People
of the Philippines was never made as one of the parties and neither was it notified
through the City Prosecutor of Manila.[52] Petitioners claim that in criminal proceedings
where the only issue is probable cause or grave abuse of discretion in relation thereto,
the private complainant and the private respondent are the parties. In such
proceedings, the People of the Philippines is not yet involved as it becomes a party to
the main criminal proceedings only when the Information is filed with the trial court. [53]
Petitioners allege that although Informations were filed before the lower courts after
respondents filed a Petition for Review with the Court of Appeals, it does not change the
reality that all the proceedings before the DOJ, Court of Appeals and this Court involve
only the issues on (1) probable cause, (2) the alleged grave abuse of discretion by the
Acting Secretary of Justice, and (3) the reversible errors of law and grave abuse of
discretion on the part of the Court of Appeals in promulgating the assailed Amended
Decision.
It is petitioners contention that while the Acting Secretary of Justice is a public
respondent, she is at best a nominal or pro forma party. Hence, the Solicitor General had
no obligation to appeal the case to this Court to represent the Secretary of Justice as a
nominal party.[54] Further, the Solicitor Generals non-participation in this case is not a
fatal defect that jeopardizes petitioners legal standing as complainants in the
preliminary investigation proceedings, appellants before the Secretary of Justice,
respondents in the Court of Appeals and petitioners before this Court. [55]
Petitioners state that they are the real parties in interest who can naturally be expected
to file a case for the death of their brother. Citing Narciso v. Sta. Romana-Cruz,
[56]
petitioners claim that a sister of the deceased is a proper party-litigant who is akin to
the offended party.
Respondents argue that petitioners cannot claim that the instant proceeding is not part
of the criminal case proper because the preliminary investigation has already been
concluded.[57] Quoting Section 9 of the 2000 National Prosecution Service Rule on
Appeal,[58] respondents claim that an information may be filed even if the review of the
resolution by the Secretary of Justice is still available. The preliminary investigation,
having been concluded, the private offended parties no longer have the personality to
participate by themselves in the succeeding proceedings. Respondents insist that when
petitioners asserted their right to prosecute a person for a crime, through the filing of
an information, the State, through its prosecutorial arm, is from that point on, the only
real party in interest.[59]
Respondents maintain that only the Solicitor General may represent the State in
appellate proceedings of a criminal case.[60] The Acting Secretary of Justice cannot be
properly characterized as a nominal party because it is the real party in interest, whose
right to prosecute offenses is at stake. The Acting Secretary of Justice, in issuing a
resolution that there is probable cause to charge a person with an offense, asserts the
right of the State to prosecute a person for the commission of a crime. [61] Thus, the
participation of the private offended parties before the Court of Appeals is not
necessary for complete relief to be had, and it is certainly not indispensable for a final
determination of the case.[62]
Section 35, Chapter 12, Title III, Book IV of the Administrative Code of 1987 states that
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. Likewise, the Solicitor General shall represent the Government in the Supreme
Court and the Court of Appeals in all criminal proceedings, thus:
Section 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. When authorized by the President or head of the office
concerned, it shall also represent government owned or controlled
corporations. The Office of the Solicitor General shall constitute the
law office of the Government and, as such, shall discharge duties
requiring the services of lawyers. 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, the 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)
The law clearly requires the Office of the Solicitor General to represent the Government
in the Supreme Court in all criminal proceedings before this Court. As in every case of
statutory construction, we begin our analysis by looking at the plain and literal
language of the term criminal proceeding. Criminal proceeding is defined as a
proceeding instituted to determine a persons guilt or innocence or to set a convicted
persons punishment.[63] Proceeding is defined as any procedural means for seeking
redress from a tribunal or agency. It is the business conducted by a court or other
official body.[64]
Section 1(a) of Rule 110 of the Rules of Court provides:
Section 1. Institution of criminal actions. Criminal actions shall be
instituted as follows:
(a) For offenses where a preliminary investigation is required pursuant to section 1 of
Rule 112, by filing the complaint with the proper officer for the purpose of conducting
the requisite preliminary investigation.
It should be observed that a criminal action shall be instituted by filing the complaint
with the proper officer for the purpose of conducting the preliminary investigation. In
this case, the criminal action was instituted when Alejandro Yanquiling, Jr., Chief of the
Homicide Section of the MPD filed the Complaint-Affidavit with the Office of the City
Prosecutor of Manila.[65] The Complaint-Affidavit was supported by Pesicos sworn
statement, affidavit of consent from the heirs of Delgado, crime report, progress report,
SOCO report, and cartographic sketch.[66]
Preliminary investigation, although an executive function, is part of a criminal
proceeding. In fact, no criminal proceeding under the jurisdiction of the Regional Trial
Court is brought to trial unless a preliminary investigation is conducted. We explained,
thus:
[T]he right to have a preliminary investigation conducted before being
bound over for trial for a criminal offense, and hence formally at risk
of incarceration or some other penalty, is not a mere formal or
 technical right; it is a substantive right. A preliminary investigation
should therefore be scrupulously conducted so that the constitutional
right to liberty of a potential accused can be protected from any
material damage.[67]
In Ricafort v. Fernan,[68] this Court had the occasion to rule:
As stated by counsel for the respondents, the petition herein is an
offshoot, an incident of said criminal case for qualified theft. For all
purposes, therefore, it is a continuation of that case and partakes of
the nature of a criminal proceeding. This being so, the party defeated
by the order of the respondent Judge dismissing the information in
Criminal Case No. 2819 of the court of First Instance of Davao must be
the People of the Philippines and not the petitioner, the complaining
witness. Consequently, the proper party to bring this petition is the
State and the proper legal representation should be the Solicitor
General and not the attorney for the complaining witness who was the
private prosecutor in said Criminal Case No. 2819. It is true that under
the Rules of Court the offended party may take part in the prosecution
of criminal cases and even appeal in certain instances from the order
or judgment of the courts, but this is only so in cases where the party
injured has to protect his pecuniary interest in connection with the
civil liability of the accused. Petitioner did not institute the case at bar
for the purpose of protecting his pecuniary interest as supposed
offended party of the crime charged in the information that was
dismissed, but to cause the restoration of the case and to have it tried
as if nothing had happened. This, certainly, falls within the province of
the representative of the People who in this case has not appealed nor
joined the private prosecutor in bringing this case before Us.
Based on the above discussion, the term criminal proceeding includes preliminary
investigation. In any event, this issue is academic because on 30 October 2007, the
Informations against respondents were filed with the trial court. Petitioners admit that
the People of the Philippines becomes a party in interest in a criminal proceeding when
an information is filed with the trial court.
We have ruled in a number of cases[69] that only the Solicitor General may bring or
defend actions in behalf of the Republic of the Philippines, or represent the People or
State in criminal proceedings before the Supreme Court and the Court of
Appeals. However, jurisprudence lays down two exceptions where a private
complainant or offended party in a criminal case may file a petition directly with this
Court. The two exceptions are: (1) when there is denial of due process of law to the
prosecution and the State or its agents refuse to act on the case to the prejudice of the
State and the private offended party,[70] and (2) when the private offended party
questions the civil aspect of a decision of a lower court. [71]
The first exception contemplates a situation where the State and the offended party are
deprived of due process because the prosecution is remiss in its duty to protect the
interest of the State and the offended party. This Court recognizes the right of the
offended party to appeal an order of the trial court which denied him and the State of
due process of law.
In Merciales v. Court of Appeals,[72] this Court granted the petition of the offended party
and ruled as invalid the dismissal of the case in the trial court for lack of a fundamental
prerequisite, that is, due process. The public prosecutor who handled the case
deliberately failed to present an available witness which led the trial court to declare
that the prosecution had rested its case. In this sense, the public prosecutor was remiss
in his duty to protect the interest of the offended party. As a result, the public
prosecutor was found guilty of blatant error and abuse of discretion, causing prejudice
to the offended party. The trial court was likewise found guilty for serious nonfeasance
for passively watching the public prosecutor bungle the case notwithstanding its
knowledge that the evidence for the prosecution was insufficient to convict and it could
have, motu proprio, called for additional witnesses. Thus, petitioner, who was the
mother of the private offended party in the criminal cases for rape with homicide, had
been deprived of her day in court. She could do nothing during the proceedings, having
entrusted the conduct of the case in the hands of the public prosecutor. All she could do
was helplessly watch as the public prosecutor, who was under legal obligation to pursue
the action on the familys behalf, renege on that obligation and refuse to perform his
sworn duty. This Court explained that it is not only the State, but also the offended
party, that is entitled to due process in criminal cases. The issue on whether private
complainant can bring an action was, however, rendered moot when the Solicitor
General, in representation of the People, changed his position and joined the cause of
petitioner, thus fulfilling the requirement that all criminal actions shall be prosecuted
under the direction and control of the public prosecutor.
Likewise, in People v. Nano,[73] this Court took cognizance of the offended partys petition
because of the gravity of the error committed by the judge against the
prosecution resulting in denial of due process. Aside from the denial of due process,
the Solicitor General also manifested to adopt the petition as if filed by his office. Thus,
we ruled in Nano:
The petition being defective in form, the Court could have summarily
dismissed the case for having been filed merely by private counsel for
the offended parties, though with the conformity of the provincial
prosecutor, and not by the Solicitor General. While it is the public
prosecutor who represents the People in criminal cases before the
trial courts, it is only the Solicitor General that is authorized to bring
or defend actions in behalf of the People or Republic of the Philippines
once the case is brought up before this Court or the Court of Appeals
 (People v. Calo, 186 SCRA 620 [1990]; citing Republic v. Partisala, 118
SCRA 320 [1982]; City Fiscal of Tacloban v. Espina, 166 SCRA 614
[1988]). Defective as it is, the Court, nevertheless, took cognizance
of the petition in view of the gravity of the error allegedly
committed by the respondent judge against the prosecution
denial of due process as well as the manifestation and motion
filed by the Office of the Solicitor General praying that the instant
petition be treated as if filed by the said office. In view thereof, We
now consider the People as the sole petitioner in the case duly
represented by the Solicitor General. Payment of legal fees is therefore
no longer necessary in accordance with Sec. 16, Rule 141 of the Rules
of Court. (Emphasis supplied)
In the second exception, it is assumed that a decision on the merits had already been
rendered by the lower court and it is the civil aspect of the case which the offended
party is appealing. The offended party, who is not satisfied with the outcome of the
case, may question the amount of the grant or denial of damages made by the court
below even without the participation of the Solicitor General.
In Mobilia Products, Inc. v. Umezawa,[74] we ruled that in criminal cases, the State is the
offended party. Private complainants interest is limited to the civil liability arising
therefrom. We explained:
Hence, if a criminal case is dismissed by the trial court or if there is an
acquittal, a reconsideration of the order of dismissal or acquittal may
be undertaken, whenever legally feasible, insofar as the criminal aspect
thereof is concerned and may be made only by the public prosecutor;
or in the case of an appeal, by the State only, through the OSG. The
private complainant or offended party may not undertake such motion
for reconsideration or appeal on the criminal aspect of the case.
However, the offended party or private complainant may file a motion
for reconsideration of such dismissal or acquittal or appeal therefrom
but only insofar as the civil aspect thereof is concerned.
In De la Rosa v. Court of Appeals,[75] citing People v. Santiago,[76] we held:
In a special civil action for certiorari filed under Section 1, Rule 65 of
the Rules of Court wherein it is alleged that the trial court committed a
grave abuse of discretion amounting to lack of jurisdiction or on other
jurisdictional grounds, the rules state that the petition may be filed by
the person aggrieved. In such case, the aggrieved parties are the State
and the private offended party or complainant. The complainant has
an interest in the civil aspect of the case so he may file such special
civil action questioning the decision or action of the respondent court
on jurisdictional grounds. In so doing, complainant should not bring
the action in the name of the People of the Philippines. The action may
be prosecuted in (the) name of said complainant.
These two exceptions do not apply in this case.
In the Memorandum, petitioners allege that the Court of Appeals committed reversible
and whimsical errors of law in the Amended Decision. Petitioners raised the following
errors:
a. There were plain, speedy and adequate remedies available to
respondents prior to their filing of certiorari before the Court of
Appeals.[77]
b. The Secretary of Justice did not commit grave abuse of discretion in her
determination of probable cause.[78]
c. The Court of Appeals strayed from the determination of grave abuse of discretion and
instead evaluated the evidence de novo, and erroneously increased the quantum of
evidence required for determining probable cause.[79]
d. The Court of Appeals erroneously substituted its judgment for the Secretary of
Justice.[80]
e. The Court of Appeals undermined the jurisdiction of the RTC over
the criminal proceedings by virtue of the filing of the Information
therein.[81]
Petitioners do not claim that the failure of the Solicitor General to appeal the Court of
Appeals decision before this Court resulted in the denial of due process to the State and
the petitioners. Petitioners do not assert that the prosecution and the Solicitor General
were remiss in their duty to protect the interest of the State and the offended
party. Neither do petitioners claim that the Solicitor General is guilty of blatant error or
abuse of discretion in not appealing the Court of Appeals decision.
The Solicitor General did not manifest to adopt petitioners appeal before this Court. On
the contrary, the Solicitor General manifested on 3 December 2008 its refusal to
participate in the oral arguments of this case held on 10 December 2008. This Court
cannot take cognizance of the petition because there is clearly no denial of due process
to the State and the petitioners. In short, the first exception does not apply because
petitioners do not claim, and neither is there any showing in the records, that the
State and the petitioners have been denied due process in the prosecution of the
criminal cases.
The Solicitor General, on 19 September 2008, had filed before this Court a Motion for
Extension of Time to file a Petition for Review under Rule 45, docketed as G.R. No.
184507. However, the 30-day extension given had lapsed without the filing of the
petition.[82] Consequently, this Court, in a Resolution dated 8 December 2008, declared
G.R. No. 184507 closed and terminated.
Petitioners are also not appealing the civil aspect of the criminal case since the lower
courts had not yet decided the merits of the case. In People v. Santiago,[83] this Court
explained that in criminal cases where the offended party is the State, the interest of the WHEREFORE, we DENY the petition. We AFFIRM the 29 August 2008 Amended
private offended party is limited to the civil liability. If a criminal case is dismissed by Decision of the Court of Appeals in CA-G.R. SP No. 101196. No pronouncement as to
the trial court or if there is an acquittal, an appeal from the criminal aspect may be costs.
undertaken only by the State through the Solicitor General. Only the Solicitor General
may represent the People of the Philippines on appeal. The private complainant or SO ORDERED.
offended party may not appeal the criminal, but only the civil, aspect of the case.
Here, since there was no decision promulgated on the merits by the lower court and the
Informations had been quashed, petitioners have nothing to appeal on the civil aspect
that is deemed impliedly instituted with the criminal cases. There is no longer any
criminal case on which a civil case can be impliedly instituted. Petitioners recourse is to
file an independent civil action on their own.

On 31 March 2009, the Solicitor General filed a Motion for Leave to Admit Attached
Comment in G.R. No. 184337.[84] The Solicitor General reasoned that she opted not to
file a petition for review in G.R. No. 184507 because she learned that a similar petition
was filed before she could prepare the intended petition for review. In her comment,
the Solicitor General stated that she is not a direct party to the case. However, the
Solicitor General alleged that she would file a comment as it is undeniable that she
issued the Resolutions of the Department of Justice at the time she held the position of
Acting Secretary of Justice concurrent with her being the Solicitor General. The Solicitor
General submitted that her position on the issue of probable cause should be heard.

On 17 April 2009, respondents filed an Opposition and Motion to Strike Motion for
Leave to Admit Attached Comment and Comment. Respondents contended that the
Solicitor General is not a party to the case and has no personality to participate in any
manner. Respondents claimed that the Solicitor General failed to file a Petition for
Review on Certiorari within the prescribed period and she cannot now use a Comment
as a substitute for a lapsed appeal.
In a Resolution dated 1 June 2009, this Court expunged from the records the motion for
leave to admit attached comment and the aforesaid comment filed by the Solicitor
General. The Court ruled that the Solicitor General is not a party in G.R. No. 184337.
We reiterate that it is only the Solicitor General who may bring or defend actions on
behalf of the State in all criminal proceedings before the appellate courts. Hence, the
Solicitor Generals non-filing of a petition within the reglementary period before this
Court rendered the assailed decision of the Court of Appeals final and executory with
respect to the criminal aspect of the case. The Solicitor General cannot trifle with court
proceedings by refusing to file a petition for review only to subsequently, after the lapse
of the reglementary period and finality of the Amended Decision, file a comment.
In view of our holding that petitioners have no standing to file the present petition, we
shall no longer discuss the other issues raised in this petition.
PROSECUTORJAIMEE.CONTRERAS, complainant, vs. JUDGE EDDIE P. MONSERATE,
MCTC-Magarao, Camarines Sur, respondent.
DECISION
QUISUMBING, J.:
Charges of gross ignorance of the law and gross neglect of duty were filed by the
Provincial Prosecution Office of Camarines Sur, signed by 2nd Asst. Provincial Prosecutor
and approved by the Provincial Prosecutor, against respondent Judge Eddie P.
Monserate, of the Municipal Circuit Trial Court of Magarao-Canaman, Camarines Sur.
Specifically, respondent is charged of forwarding Criminal Case No. 3222,
entitled People of the Philippines v. Mario Zabaldica y Morandarte, to the Office of the
Provincial Prosecutor without first conducting the requisite preliminary investigation.
It appears that on November 27, 2000, SPO4 Prudente A. Belleza of Philippine
National Police (PNP) filed a criminal complaint for frustrated homicide, docketed as
Criminal Case No. 3222, against one Mario Zabaldica with the MCTC of Magarao-
Canaman. The next day, accused through counsel, filed an Ex Parte Motion to Fix Bail,
which the respondent judge granted.
 On December 5, 2000, Judge Monserate ordered the release of Zabaldica from PNP
custody for having posted corporate bond. That same day he also issued the following
order:
It appearing from the complaint that the accused was lawfully arrested without a
warrant for an offense cognizable by the Regional Trial Court, and that accused failed to
avail of his right to a preliminary investigation pursuant to Sec. 7 of Rule 112 of the
Rules of Court, the information may now be filed with the proper court.
Send the records of this case to the Provincial Prosecutors Office for the filing of
information.[1]
Complainant laments that said order of respondent judge violated Section 3,
[2]
Rule 112 of the 1985 Rules on Criminal Procedure, which requires that in all criminal
cases cognizable by the Regional Trial Court (RTC), but filed before the Municipal Trial
Court (MTC), the latter must always conduct a preliminary investigation to determine
probable cause. According to complainant, respondents failure to conduct a preliminary
investigation manifests his gross ignorance of the law and is a willful abdication of a
duty imposed by law. Complainant further avers that Judge Monserate erred in relying
upon Section 7,[3] Rule 112 of the 1985 Rules on Criminal Procedure as said provision
applies only to cases where it is the offended party, peace-officer, or the prosecutor who
files a case before a court of competent jurisdiction, i.e., the RTC. Hence, according to
complainant, said rule does not apply to cases filed before the MTC for the sole purpose
of conducting a preliminary investigation, the results of which shall then be forwarded
to the prosecutor who will then determine whether or not an information must be filed
with the RTC.
In his Letter-Comment dated July 17, 2001, respondent judge vehemently denies
the material allegations in the complaint. In justifying his actions, respondent judge
insists that what really happened in Criminal Case No. 3222 is as follows:
The stabbing incident occurred November 25, 2000 at around 10:00 P.M. Several hours
after, the accused voluntarily gave himself up to the police at their residence. Since
November 25, was a Saturday, the following day (Sunday) a complaint for frustrated
homicide was made duly subscribed on that day but was officially filed [i]n Court on
November 27, 2000. On November 28, 2000 the accused filed a motion to fix bail which
the Court granted the very same day. On December 5, 2000, the records of the case was
forwarded to Provincial Prosecution Office for the filing of an information without the
Court conducting the preliminary investigation for failure of the accused to avail of his
right pursuant to Sec. 7, Rule 112 of the Rules of Court. On January 19, 2001, the
records of the case was returned to the Court with an Order from Prosecutor Contreras
[for Judge Eddie P. Monserate] to conduct a preliminary investigation and at the same
time threatening the Presiding Judge that he will file an administrative charge for gross
ignorance of the law if he will refuse. In spite of the threat, [Judge Monserate] returned
the records of the case to the Provincial Prosecution Office for reason that preliminary
investigation is not necessary under the rules and that accused himself has not
requested for a preliminary investigation despite his knowledge that a complaint was
filed against him....[4]
Relying on the above narration, respondent judge contends that he committed no
error since pursuant to Section 7, Rule 112, an accuseds failure to avail of his right to
preliminary investigation could be deemed a waiver thereof. In view of said waiver,
respondent judge concluded, it was but logical that he should forward the records of the
case to the Office of the Provincial Prosecutor for the filing of the necessary
information.
In its Evaluation, Report and Recommendation dated April 11, 2002, the Office of
the Court Administrator found that respondent judge erred in invoking Section 7, Rule
112 of the 1985 Rules on Criminal Procedure. According to the OCA, despite an
accuseds failure to insist on his right to preliminary investigation, the respondent judge
was still mandated to examine the complainant and his witnesses under oath to
determine whether they had voluntarily appeared before him. If statements were given
to a police investigator, he should examine the affiants personally to determine whether
the evidence presented sufficed to engender a well-founded belief as to the fact of the
commission of the crime, and that the accused is probably guilty thereof. After the
conclusion of the preliminary investigation, the municipal judge is tasked with
preparing a resolution, stating briefly the findings of facts and the law supporting his
action, which together with the entire records should then be forwarded to the
prosecutorial arm, according to OCA.
We agree with the OCAs findings and observations. Respondent judges reliance on
Section 7, Rule 112 of the 1985 Rules on Criminal Procedure [5] to justify his refusal to
conduct a preliminary investigation is misplaced. Under the similarly entitled section
now of Rule 112 already effective December 1, 2000, just before the December 5, 2000
Order of respondent judge was issued[6], the only instance where an information for an
offense which requires a preliminary investigation may be filed directly with the court
is when an accused is lawfully detained without a warrant and he expressly refuses to
waive in writing the provisions of Art. 125[7] of the Revised Penal Code.[8] If the accused
refuses or fails to sign the requisite waiver, an information shall forthwith be filed
against him, subject to his right to move for reinvestigation within five (5) days from the
time he learns of the filing of said information. The right to have a preliminary
investigation conducted before being bound over for trial for a criminal offense and
hence at the risk of incarceration or some other penalty is not a mere formal or
technical right but a substantive right. [9] Hence, any exception to the enjoyment of said
right must be strictly construed. In the instant case, nowhere is it shown or indicated in
the assailed order that the accused in Criminal Case No. 3222 refused to waive,
expressly and in writing, the provisions of Art. 125. Moreover, that said accused did not
resist arrest is immaterial, as voluntary surrender is not among the exceptions to the
mandatory requirement of preliminary investigation in criminal prosecution.
Respondent judge, therefore, had no valid reason to refuse conducting the preliminary
investigation.
Respondent judge asserts that the Provincial Prosecution Office has no authority
to order him to conduct a preliminary investigation inasmuch as the courts primary
duty is to hold trial and render decisions, and not to conduct preliminary investigations.
His assertion is far from accurate. Respondent judge must be reminded of the duty
imposed upon him by Section 1(a),[10] Rule 110 of the Revised Rules on Criminal
Procedure. Said provision speaks of the proper officer who shall conduct the requisite
preliminary investigation. Under Section 2[11], Rule 112 of the Revised Rules on Criminal
Procedure, a municipal court judge, like herein respondent, is a proper officer
authorized to conduct a preliminary investigation. Further, a preliminary investigation
is not a judicial function, and as such the findings of the investigating judge are subject
to the oversight powers of the public prosecutor. Thus, in Cabarloc v. Cabusora,[12] we
held that:
When a municipal judge conducts a preliminary investigation, he performs a non-
judicial function. His function is merely executive in nature. As such, the findings of an
investigating judge are subject to review by the Provincial Fiscal whose findings in turn
may also be reviewed by the Secretary of Justice in appropriate cases.
Clearly, therefore, Provincial Prosecutor Agapito B. Rosales, through his Second
[13]
Asst. Provincial Prosecutor, had the authority to compel respondent judge to conduct a
preliminary investigation in Criminal Case No. 3222.
Respondents failure to conduct a preliminary hearing is further compounded by
his order granting bail to the accused in Criminal Case No. 3222, without the requisite
hearing. In this jurisdiction, an application for bail requires that a reasonable notice of
hearing be given to the public prosecutor or, at least, he must be asked for his
recommendation.[14] As a judge, respondent is expected to comply with this elementary
requirement.
Gross ignorance of the law, incompetence, and inefficiency are characteristics
impermissible in a judge.[15] This Court has exhorted judges to possess more than a
cursory knowledge of the rules on preliminary investigation, on bail, and the law
governing the jurisdiction of the court. [16] Failure to observe the basic laws and rules is
not only inexcusable, but also renders a judge susceptible to administrative sanction for
gross ignorance of the law. In Arcilla v. Palaypayon,[17] we imposed a fine upon
respondent judge for conducting a preliminary investigation and for issuing a warrant
of arrest without notifying the accused. In Padua v. Molina,[18] a judge was fined by this
Court for flouting the laws and rules governing preliminary investigation. And, in Dizon
v. Calimag,[19] the respondent judge was found liable for gross ignorance of the law and
fined in the amount of P2,000.00
As to the penalty, the OCA recommends that Judge Monserate be reprimanded
with a warning that the commission of a similar act would be dealt with more
severely. We note that the administrative offense took place before the amendment of
Rule 140, Rules of Court, by A.M. No. 01-8-10-SC on September 11, 2001. However, in
view of the nature of respondents infraction which prejudiced the prosecution as well
as the accused, and considering further his disregard of a legally mandated duty, a fine
of P2,000.00 is appropriate.
WHEREFORE, respondent JUDGE EDDIE P. MONSERATE of the Municipal Circuit
Trial Court of Magarao-Canaman, Camarines Sur, is found LIABLE for manifest gross
ignorance of the law and neglect of duty. He is hereby ORDERED to pay a FINE of Two
Thousand (P2,000.00) Pesos, with a WARNING that a repetition of the same or a similar
act shall be dealt with more severely.
SO ORDERED.
Bellosillo, (Chairman), Austria-Martinez, and Tinga, JJ., concur.
Callejo, Sr., J., on leave.
[1]
Rollo, p. 12.
[2]
Sec. 3. Procedure. Except as provided for in Section 7 hereof, no complaint or
information for an offense cognizable by the Regional Trial Court shall be filed
without a preliminary investigation having been first conducted in the
following manner:
(a) The complaint shall state the known address of the respondent and be accompanied
by affidavits of the complainant and his witnesses as well as other supporting
documents, in such number of copies as there are respondents, plus two (2)
copies for the official file. The said affidavits shall be sworn to before any fiscal,
state prosecutor or government official authorized to administer oath, or, in
their absence or unavailability, a notary public, who must certify that he has
personally examined the affiants and that he is satisfied that they voluntarily
executed and understood their affidavits.
(b) If the investigating officer finds no ground to continue with the inquiry, he shall
dismiss the complaint. Otherwise, he shall issue a subpoena to the respondent,
attaching thereto a copy of the complaint, affidavits and other supporting
documents and granting him ten (10) days from receipt within which he may
submit counter-affidavits and other supporting documents. The respondent
shall have the right to examine all other evidence submitted by the
complainant.
(c) Such counter-affidavits and other supporting evidence submitted by the respondent
shall also be sworn to and certified as prescribed in paragraph (a) hereof and
copies thereof shall be furnished by him to the complainant.
(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit
counter-affidavits within the ten (10) day period, the investigating officer shall
base his resolution on the evidence presented by the complainant.
(e) If the investigating officer believes that there are matters to be clarified, he may set a
hearing to propound clarificatory questions to the parties or their witnesses,
during which the parties shall be afforded an opportunity to be present but
without the right to examine or cross-examine. If the parties so desire, they
may submit questions to the investigating officer which the latter may
propound to the parties or witnesses concerned.
(f) Thereafter, the investigation shall be deemed concluded and the investigating officer
shall resolve the case within ten (10) days therefrom. Upon the evidence thus
adduced the investigating officer shall determine whether or not there is
sufficient ground to hold the respondent for trial.
[3]
Sec. 7. When accused lawfully arrested without warrant. When a person is lawfully
arrested without a warrant for an offense cognizable by the Regional Trial
Court the complaint or information may be filed by the offended party, peace
officer or fiscal without a preliminary investigation having been first conducted,
on the basis of the affidavit of the offended party or arresting officer or person.
However, before the filing of such complaint or information, the person arrested may
ask for a preliminary investigation by a proper officer in accordance with this
Rule, but he must sign a waiver of the provisions of Article 125 of the Revised
Penal Code, as amended, with the assistance of a lawyer and in case of non-
availability of a lawyer, a responsible person of his choice. Notwithstanding
such waiver, he may apply for bail as provided in the corresponding rule and
the investigation must be terminated within fifteen (15) days from its
inception.
If the case has been filed in court without a preliminary investigation having been first
conducted, the accused may within five (5) days from the time he learns of the
filing of the information, ask for a preliminary investigation with the same right
to adduce evidence in his favor in the manner prescribed in this Rule.
[4]
Rollo, pp. 1-2.
[5]
Superseded by Section 7, Rule 112 of the Revised Rules of Criminal Procedure
effective December 1, 2000, which now reads:
SEC. 7. When accused lawfully arrested without warrant.When a person is lawfully
arrested without a warrant involving an offense which requires a preliminary
investigation, the complaint or information may be filed by a prosecutor
without need of such investigation provided an inquest has been conducted in
accordance with existing rules. In the absence or unavailability of an inquest
prosecutor, the complaint may be filed by the offended party or a peace officer
directly with the proper court on the basis of the affidavit of the offended party
or arresting officer or person.
Before the complaint or information is filed, the person arrested may ask for a
preliminary investigation in accordance with this Rule, but he must sign a
waiver of the provision of Article 125 of the Revised Penal Code, as amended, in
the presence of his counsel. Notwithstanding the waiver, he may apply for bail
and the investigation must be terminated within fifteen (15) days from its
inception.
After the filing of the complaint or information in court without a preliminary
investigation, the accused may, within five (5) days from the time he learns of
its filing, ask for a preliminary investigation with the same right to adduce
evidence in his defense as provided in this Rule.
[6]
Rollo, p. 21.
[7]
ART. 125. Delay in the delivery of detained persons to the proper judicial authorities.
The penalties provided in the next preceding article shall be imposed upon the
public officer or employee who shall detain any person for some legal ground
and shall fail to deliver such person to the proper judicial authorities within the
period of: twelve (12) hours, for crimes or offenses punishable by light
penalties, or their equivalent; eighteen (18) hours, for crimes or offenses
punishable by correctional penalties, or their equivalent; and thirty-six (36)
hours, for crimes or offenses punishable by afflictive or capital penalties, or
their equivalent.
In every case, the person detained shall be informed of the cause of his detention and
shall be allowed, upon his request, to communicate and confer at any time with
his attorney or counsel.
[8]
REGALADO, REMEDIAL LAW COMPENDIUM II, 7th Ed., p. 312.
[9]
Sales v. Sandiganbayan, G.R. No. 143802, 16 November 2001, 369 SCRA 293,
301; Mondia, Jr. v. Deputy Ombudsman/Visayas Area, G.R. No. 132977, 29
November 2000, 346 SCRA 365, 370-371.
[10]
SEC. 1. Institution of criminal actions.Criminal actions shall be instituted as follows:
(a) For offenses where a preliminary investigation is required pursuant to section 1 of
Rule 112, by filing the complaint with the proper officer for the purpose of
conducting the requisite preliminary investigation.
xxx
[11]
SEC. 2. Officers authorized to conduct preliminary investigation.
The following may conduct a preliminary investigation:
(a) Provincial or City Prosecutors and their assistants;
(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts;
(c) National and Regional State Prosecutors; and
(d) Other officers as may be authorized by law.
Their authority to conduct preliminary investigations shall include all crimes
cognizable by the proper court in their respective territorial jurisdictions.
(Emphasis supplied.)
SECTION 2. THE COMPLAINT OR INFORMATION
G.R. No. 197291 April 3, 2013
DATU ANDAL AMPATUAN JR., Petitioner,
vs.
SEC. LEILA DE LIMA, as Secretary of the Department of Justice, CSP CLARO
ARELLANO, as Chief State Prosecutor, National Prosecution Service, and PANEL OF
PROSECUTORS OF THE MAGUINDANAO MASSACRE, headed by RSP PETER
MEDALLE, Respondents.
DECISION
BERSAMIN, J.:
In matters involving the exercise of judgment and discretion, mandamus cannot be used
to direct the manner or the particular way the judgment and discretion are to be
exercised. Consequently, the Secretary of Justice may be compelled by writ of
mandamus to act on a letter-request or a motion to include a person in the information,
but may not be compelled by writ of mandamus to act in a certain way, i.e., to grant or
deny such letter-request or motion.
The Case
This direct appeal by petition for review on certiorari has been taken from the final
order issued on June 27, 2011 in Civil Case No. 10-1247771 by the Regional Trial Court
(RTC), Branch 26, in Manila, dismissing petitioners petition for mandamus. 2
Antecedents
History will never forget the atrocities perpetrated on November 23, 2009, when 57
innocent civilians were massacred in Sitio Masalay, Municipality of Ampatuan,
Maguindanao Province. Among the principal suspects was petitioner, then the Mayor of
the Municipality of Datu Unsay, Maguindanao Province. Inquest proceedings were
conducted against petitioner on November 26, 2009 at the General Santos (Tambler)
Airport Lounge, before he was flown to Manila and detained at the main office of the
National Bureau of Investigation (NBI). The NBI and the Philippine National Police
(PNP) charged other suspects, numbering more than a hundred, for what became aptly
known as the Maguindanao massacre.3
Through Department Order No. 948, then Secretary of Justice Agnes Devanadera
constituted a Special Panel of Prosecutors to conduct the preliminary investigation.
On November 27, 2009, the Department of Justice (DOJ) resolved to file the
corresponding informations for murder against petitioner, and to issue subpoenae to
several persons.4 On December 1, 2009, 25 informations for murder were also filed
against petitioner in the Regional Trial Court, 12th Judicial Region, in Cotabato City. 5
On December 3, 2009, Secretary of Justice Devanadera transmitted her letter to Chief
Justice Puno requesting the transfer of the venue of the trial of the Maguindanao
massacre from Cotabato City to Metro Manila, either in Quezon City or in Manila, to
prevent a miscarriage of justice.6 On December 8, 2009, the Court granted the request
for the transfer of venue.7 However, on December 9, 2009, but prior to the transfer of
the venue of the trial to Metro Manila, the Prosecution filed a manifestation regarding
the filing of 15 additional informations for murder against petitioner in Branch 15 of
the Cotabato City RTC.8 Later on, additional informations for murder were filed against
petitioner in the RTC in Quezon City, Branch 211, the new venue of the trial pursuant to
the resolution of the Court.9
The records show that petitioner pleaded not guilty to each of the 41 informations for
murder when he was arraigned on January 5, 2010, 10 February 3, 2010,11 and July 28,
2010.12
In the joint resolution issued on February 5, 2010, the Panel of Prosecutors charged 196
individuals with multiple murder in relation to the Maguindanao massacre. 13 It appears
that in issuing the joint resolution of February 5, 2010 the Panel of Prosecutors partly
relied on the twin affidavits of one Kenny Dalandag, both dated December 7, 2009. 14
On August 13, 2010, Dalandag was admitted into the Witness Protection Program of the
DOJ.15 On September 7, 2010, the QC RTC issued its amended pre-trial order, 16 wherein
Dalandag was listed as one of the Prosecution witnesses. 17
On October 14, 2010, petitioner, through counsel, wrote to respondent Secretary of
Justice Leila De Lima and Assistant Chief State Prosecutor Richard Fadullon to request
the inclusion of Dalandag in the informations for murder considering that Dalandag had
already confessed his participation in the massacre through his two sworn
declarations.18 Petitioner reiterated the request twice more on October 22, 2010 19 and
November 2, 2010.20
By her letter dated November 2, 2010, however, Secretary De Lima denied petitioners
21
request.
Accordingly, on December 7, 2010, petitioner brought a petition for mandamus in the
RTC in Manila (Civil Case No. 10-124777),22 seeking to compel respondents to charge
Dalandag as another accused in the various murder cases undergoing trial in the QC
RTC.
On January 19, 2011,23 the RTC in Manila set a pre-trial conference on January 24, 2011
in Civil Case No. 10-124777. At the close of the pre-trial, the RTC in Manila issued a pre-
trial order.
In their manifestation and motion dated February 15, 2011 24 and February 18,
2011,25 respondents questioned the propriety of the conduct of a trial in a proceeding
for mandamus. Petitioner opposed.
On February 15, 2011, petitioner filed a motion for the production of
documents,26 which the RTC in Manila granted on March 21, 2011 after respondents did
not file either a comment or an opposition.
Respondents then sought the reconsideration of the order of March 21, 2011.
On March 21, 2011,27 the RTC in Manila issued a subpoena to Dalandag, care of the
Witness Protection Program of the DOJ, requiring him to appear and testify on April 4,
2011 in Civil Case No. 10-124777.
On April 4, 2011, respondents moved to quash the subpoena. 28 Petitioner opposed the
motion to quash the subpoena on April 15, 2011. 29 The parties filed other papers,
specifically, respondents their reply dated April 26, 2011; 30 petitioner an opposition on
May 12, 2011;31 and respondents another reply dated May 20, 2011. 32
On June 27, 2011,33 the RTC of Manila issued the assailed order in Civil Case No. 10-
124777 dismissing the petition for mandamus.34
Hence, this appeal by petition for review on certiorari.
Issues
Petitioner raises the following issues, to wit:
1. WHETHER THE PUBLIC RESPONDENTS MAY BE COMPELLED BY MANDAMUS TO
INVESTIGATE AND PROSECUTE KENNY DALANDAG AS AN ACCUSED IN THE
INFORMATIONS FOR MULTIPLE MURDER IN THE MAGUINADANAO MASSACRE CASES
IN LIGHT OF HIS ADMITTED PARTICIPATION THEREAT IN AFFIDAVITS AND OFFICIAL
RECORDS FILED WITH THE PROSECUTOR AND THE QC RTC; and,
2. WHETHER THE SUBSEQUENT INCLUSION OF KENNY DALANDAG IN THE WITNESS
PROTECTION PROGRAM JUSTIFIES EXCLUSION AS AN ACCUSED AND HIS NON-
INDICTMENT FOR HIS COMPLICITY IN THE MAGUINDANAO MASSACRE
NOTWITHSTANDING ADMISSIONS MADE THAT HE TOOK PART IN ITS PLANNING AND
EXECUTION.35
The crucial issue is whether respondents may be compelled by writ of mandamus to
charge Dalandag as an accused for multiple murder in relation to the Maguindanao
massacre despite his admission to the Witness Protection Program of the DOJ.
Ruling The appeal lacks merit.
The prosecution of crimes pertains to the Executive Department of the Government
whose principal power and responsibility are to see to it that our laws are faithfully
executed. A necessary component of the power to execute our laws is the right to
prosecute their violators. The right to prosecute vests the public prosecutors with a
wide range of discretion the discretion of what and whom to charge, the exercise of
which depends on a smorgasbord of factors that are best appreciated by the public
prosecutors.36
The public prosecutors are solely responsible for the determination of the amount of
evidence sufficient to establish probable cause to justify the filing of appropriate
criminal charges against a respondent. Theirs is also the quasi-judicial discretion to
determine whether or not criminal cases should be filed in court. 37
Consistent with the principle of separation of powers enshrined in the Constitution, the
Court deems it a sound judicial policy not to interfere in the conduct of preliminary
investigations, and to allow the Executive Department, through the Department of
Justice, exclusively to determine what constitutes sufficient evidence to establish
probable cause for the prosecution of supposed offenders. By way of exception,
however, judicial review may be allowed where it is clearly established that the public
prosecutor committed grave abuse of discretion, that is, when he has exercised his
discretion "in an arbitrary, capricious, whimsical or despotic manner by reason of
passion or personal hostility, patent and gross enough as to amount to an evasion of a
positive duty or virtual refusal to perform a duty enjoined by law." 38
The records herein are bereft of any showing that the Panel of Prosecutors committed
grave abuse of discretion in identifying the 196 individuals to be indicted for the
Maguindanao massacre. It is notable in this regard that petitioner does not assail the
joint resolution recommending such number of individuals to be charged with multiple
murder, but only seeks to have Dalandag be also investigated and charged as one of the
accused based because of his own admissions in his sworn declarations. However, his
exclusion as an accused from the informations did not at all amount to grave abuse of
discretion on the part of the Panel of Prosecutors whose procedure in excluding
Dalandag as an accused was far from arbitrary, capricious, whimsical or despotic.
Section 2, Rule 110 of the Rules of Court, which requires that "the complaint or
information shall be xxx against all persons who appear to be responsible for the
offense involved," albeit a mandatory provision, may be subject of some exceptions, one
of which is when a participant in the commission of a crime becomes a state witness.
The two modes by which a participant in the commission of a crime may become a state
witness are, namely: (a) by discharge from the criminal case pursuant to Section 17 of
Rule 119 of the Rules of Court; and (b) by the approval of his application for admission
into the Witness Protection Program of the DOJ in accordance with Republic Act No.
6981 (The Witness Protection, Security and Benefit Act).39 These modes are intended to
encourage a person who has witnessed a crime or who has knowledge of its
commission to come forward and testify in court or quasi-judicial body, or before an
investigating authority, by protecting him from reprisals, and shielding him from
economic dislocation.
These modes, while seemingly alike, are distinct and separate from each other.
Under Section 17, Rule 119 of the Rules of Court, the discharge by the trial court of one
or more of several accused with their consent so that they can be witnesses for the
State is made upon motion by the Prosecution before resting its case. The trial court
shall require the Prosecution to present evidence and the sworn statements of the
proposed witnesses at a hearing in support of the discharge. The trial court must
ascertain if the following conditions fixed by Section 17 of Rule 119 are complied with,
namely: (a) there is absolute necessity for the testimony of the accused whose
discharge is requested; (b) there is no other direct evidence available for the proper
prosecution of the offense committed, except the testimony of said accused; (c) the
testimony of said accused can be substantially corroborated in its material points; (d)
said accused does not appear to be most guilty; and (e) said accused has not at any time
been convicted of any offense involving moral turpitude.
On the other hand, Section 10 of Republic Act No. 6981 provides:
Section 10. State Witness. Any person who has participated in the commission of a
crime and desires to be a witness for the State, can apply and, if qualified as determined
in this Act and by the Department, shall be admitted into the Program whenever the
following circumstances are present:
a. the offense in which his testimony will be used is a grave felony as defined under the
Revised Penal Code or its equivalent under special laws;
b. there is absolute necessity for his testimony;
c. there is no other direct evidence available for the proper prosecution of the offense
committed;
d. his testimony can be substantially corroborated on its material points;
e. he does not appear to be most guilty; and
f. he has not at any time been convicted of any crime involving moral turpitude.
An accused discharged from an information or criminal complaint by the court in order
that he may be a State Witness pursuant to Section 9 and 10 of Rule 119 of the Revised
Rules of Court may upon his petition be admitted to the Program if he complies with the
other requirements of this Act. Nothing in this Act shall prevent the discharge of an
accused, so that he can be used as a State Witness under Rule 119 of the Revised Rules
of Court.
Save for the circumstance covered by paragraph (a) of Section 10, supra, the requisites
under both rules are essentially the same. Also worth noting is that an accused
discharged from an information by the trial court pursuant to Section 17 of Rule 119
may also be admitted to the Witness Protection Program of the DOJ provided he
complies with the requirements of Republic Act No. 6981.
A participant in the commission of the crime, to be discharged to become a state
witness pursuant to Rule 119, must be one charged as an accused in the criminal case.
The discharge operates as an acquittal of the discharged accused and shall be a bar to
his future prosecution for the same offense, unless he fails or refuses to testify against
his co-accused in accordance with his sworn statement constituting the basis for his
discharge.40 The discharge is expressly left to the sound discretion of the trial court,
which has the exclusive responsibility to see to it that the conditions prescribed by the
rules for that purpose exist.41
While it is true that, as a general rule, the discharge or exclusion of a co-accused from
the information in order that he may be utilized as a Prosecution witness rests upon the
sound discretion of the trial court, 42 such discretion is not absolute and may not be
exercised arbitrarily, but with due regard to the proper administration of
justice.43 Anent the requisite that there must be an absolute necessity for the testimony
of the accused whose discharge is sought, the trial court has to rely on the suggestions
of and the information provided by the public prosecutor. The reason is obvious the
public prosecutor should know better than the trial court, and the Defense for that
matter, which of the several accused would best qualify to be discharged in order to
become a state witness. The public prosecutor is also supposed to know the evidence in
his possession and whomever he needs to establish his case, 44 as well as the availability
or non-availability of other direct or corroborative evidence, which of the accused is the
most guilty one, and the like.45
On the other hand, there is no requirement under Republic Act No. 6981 for the
Prosecution to first charge a person in court as one of the accused in order for him to
qualify for admission into the Witness Protection Program. The admission as a state
witness under Republic Act No. 6981 also operates as an acquittal, and said witness
cannot subsequently be included in the criminal information except when he fails or
refuses to testify. The immunity for the state witness is granted by the DOJ, not by the
trial court. Should such witness be meanwhile charged in court as an accused, the
public prosecutor, upon presentation to him of the certification of admission into the
Witness Protection Program, shall petition the trial court for the discharge of the
witness.46 The Court shall then order the discharge and exclusion of said accused from
the information.47
The admission of Dalandag into the Witness Protection Program of the Government as a
state witness since August 13, 2010 was warranted by the absolute necessity of his
testimony to the successful prosecution of the criminal charges. Apparently, all the
conditions prescribed by Republic Act No. 6981 were met in his case. That he admitted
his participation in the commission of the Maguindanao massacre was no hindrance to
his admission into the Witness Protection Program as a state witness, for all that was
necessary was for him to appear not the most guilty. Accordingly, he could not anymore
be charged for his participation in the Maguindanao massacre, as to which his
admission operated as an acquittal, unless he later on refuses or fails to testify in
accordance with the sworn statement that became the basis for his discharge against
those now charged for the crimes.
Mandamus shall issue when any tribunal, corporation, board, officer or person
unlawfully neglects the performance of an act that the law specifically enjoins as a duty
resulting from an office, trust, or station. It is proper when the act against which it is
directed is one addressed to the discretion of the tribunal or officer. In matters
involving the exercise of judgment and discretion, mandamus may only be resorted to
in order to compel respondent tribunal, corporation, board, officer or person to take
action, but it cannot be used to direct the manner or the particular way discretion is to
be exercised,48or to compel the retraction or reversal of an action already taken in the
exercise of judgment or discretion.49
As such, respondent Secretary of Justice may be compelled to act on the letter-request
of petitioner, but may not be compelled to act in a certain way, i.e., to grant or deny such
letter-request. Considering that respondent Secretary of Justice already denied the
letter-request, mandamus was no longer available as petitioner's recourse.
WHEREFORE, the Court DENIES the petition for review on certiorari; AFFIRMS the final
order issued on June 27, 2011 in Civil Case No. 10-124777 by the Regional Trial Court
in Manila; and ORDERS petitioner to pay the costs of suit.
SO ORDERED.
SECTION 3. COMPLAINT DEFINED.
JOVENAL OPORTO, JR., complainant, vs. JUDGE EDDIE P. MONSERATE, respondent.
RESOLUTION
PARDO, J.:
The Case
The case is an administrative complaint[1] charging Judge Eddie P. Monserate
(hereafter, Judge Monserate), Municipal Circuit Trial Court, Magarao-Canaman,
Camarines Sur with ignorance of the law, harassment and grave abuse of discretion.
The Facts
On October 31, 1995, Ms. Lourdes A. Senar, the wife of the mayor of the town
where the sala of Judge Monserate was located, filed a complaint against Sonny Rada
and complainant, Jovenal Oporto, Jr. (hereafter, Rada and Oporto) for violation of Article
172[2] in relation to Article 173[3] of the Revised Penal Code. The complaint[4] was filed
with the Municipal Circuit Trial Court, Magarao-Canaman, Camarines Sur and was
docketed as Criminal Case No. 2811.[5] The complaint, however, was not under oath.[6]
On November 10, 1995, Judge Monserate issued a warrant for the arrest of Oporto
and co-accused Rada. He fixed bail at fourteen thousand pesos (P14,000.00) each. [7]
On January 26, 1996, on the mistaken notion that the case fell within the
jurisdiction of the Regional Trial Court, Judge Monserate conducted a preliminary
investigation, declared that there was probable cause and ordered that the records of
the case be forwarded to the Provincial Prosecutor Office, Camarines Sur, for
appropriate action.[8]
On February 28, 1996, the Provincial Prosecutor of Camarines Sur found that
[9]
the crime committed was not estafa but falsification, the penalty for which was prision
correccional in its medium and maximum periods and a fine of not more than five
thousand pesos (P5,000.00), and thus fell within the expanded jurisdiction of the
Municipal Trial Courts and Municipal Circuit Trial Courts. According to the Provincial
Prosecutor, there was no deceit, thus the crime was not estafa through falsification of
commercial documents but for falsification only. He remanded the case to the court of
origin for further proceedings.[10]
On July 9, 1996, complainant Oporto filed with the Executive Judge, Regional Trial
Court, Naga City, an administrative complaint charging Judge Monserate with ignorance
of the law, harassment and/or grave abuse of discretion.[11]
On July 18, 1996, Executive Judge David C. Naval (hereafter, Judge Naval) found the
complaint to be sufficient in form and substance and required Judge Monserate to file a
responsive pleading within fifteen (15) days from receipt of the order. [12]
On August 16, 1996, Deputy Court Administrator Reynaldo L. Suarez wrote Judge
Naval and requested him to forward to the Office of the Court Administrator, Supreme
Court, the original of the administrative complaint considering that he charges against
Judge Monserate appear to be serious or perhaps less serious in nature. [13]
On September 10, 1996, in compliance with the request, Clerk of Court Rosario B.
Torrecampo forwarded the entire record of the case against Judge Monserate to the
Office of the Court Administrator, Supreme Court. [14]
On November 18, 1996, Deputy Court Administrator Reynaldo L. Suarez submitted
the following recommendation to the Court:
WHEREFORE, premises considered, the undersigned respectfully recommends that the
above-entitled administrative case be given a regular docket number and respondent
Judge Eddie Monserate, be given a SEVERE REPRIMAND for his failure to keep abreast
with the latest laws, rulings and jurisprudence affecting his jurisdiction and for his
failure to be more circumspect of (sic) his duty as a judicial officer with warning that a
repetition of similar offense will be severely dealt with by the Court. [15]
On January 22, 1997, the Court resolved to refer the case to the Executive Judge,
Regional Trial Court, Naga City for investigation, report and recommendation. [16]
On July 7, 1997, Executive Judge Antonio N. Gerona submitted a report which
stated that the case against complainant Oporto was dismissed on June 10, 1997, due to
the prosecutions lack of interest and its failure to prosecute. [17]
On February 11, 1998, the Court required the Office of the Court Administrator to
submit its evaluation, report and recommendation with respect to the case against
Judge Monserate.[18]
On February 17, 1998, Deputy Court Administrator Reynaldo L. Suarez [19] again
submitted a report reiterating his recommendation of November 18, 1996. [20]
On March 29, 2000, the Court required the parties to manifest if they were willing
to submit the case for resolution based on the pleadings already filed. [21]
On April 14, 2000, Judge Monserate manifested that he was willing to submit the
case for resolution on the basis of the pleadings already filed. [22]
On June 28, 2000, the Court resolved to consider its resolution of March 29, 2000
as served upon complainant since it was returned unserved. [23]
Now, the merits.
The Courts Ruling
At the outset, we dismiss the charges against Judge Monserate for harassment.
There is no basis for the charge. Complainant Oporto alleged that he was harassed by
the clerk of court when the clerk referred him to a specific bonding company when he
inquired as to the amount of his bail. It was the clerk of court who referred him to the
bonding company, not Judge Monserate.
Complainant Oporto charged Judge Monserate with gross ignorance of the law for
issuing a warrant of arrest against him despite the fact that, First, the criminal
complaint against him was not under oath, and Second, the affidavits and sworn
statements of the prosecution witnesses were likewise not under oath and certified.
We agree with the Court Administrator that disciplinary action against Judge
Monserate on this ground is warranted. We quote pertinent portions of the report:[24]
"It has been held, however, that if the complaint is not sworn to, the defect is merely one
of form which cannot invalidate the judgment rendered thereon (U.S. vs. Bibal, 4 Phil.
369). However, respondent should have exercised diligent effort to read the complaint
so that this minor problem should have been remedied immediately by merely calling
the complainant and swearing said complaint to him.
Moreover, had he endeavored to exert simple effort to read the complaint and made
research on the latest jurisprudence and laws, he would not have gone through
conducting a preliminary investigation on the case for the same falls exclusively within
his courts jurisdiction under RA 7691 or the Expanded Jurisdiction of the MTCCs and
MCTCs.
xxx
Even granting for the sake of argument that the case falls within the jurisdiction of the
Regional Trial Court as a case for Estafa thru Falsification of Commercial document as
respondent alleged when the case was first returned by the Office of the Provincial
Prosecutor, he should have made the necessary corrections as to form to reflect the
proper offense thus violated, to avoid any guesswork and to apprise the accused of the
law he violated.
Rule 110, Section 3 of the Revised Rules of Criminal Procedure defines a complaint
as, a sworn written statement charging a person with an offense subscribed by the
offended party, any peace officer or other public officer charged with the enforcement
of the law violated. Rule 112, Section 3 (a) likewise requires that for purposes of
preliminary investigation, the complaint and its accompanying affidavits and
supporting documents be sworn to before any fiscal, state prosecutor or government
official authorized to administer oath, or in their absence or unavailability, a notary
public, who must certify that he personally examined the affiants and that he is
satisfied that they voluntarily executed and understood their affidavits (emphasis
ours). The requirement is mandatory. Judge Monserates oversight is deplorable.
We likewise deplore Judge Monserates referral of the case to the Provincial
Prosecutor on the mistaken opinion that the crime charged fell within the jurisdiction
of the Regional Trial Court. We cite the report of the Provincial Prosecutor, to wit:
In passing, while the Honorable Court believed that the crime committed was Estafa
Through Falsification of Commercial Document, however, it did not say so in its
Resolution relying that this Office will review the case anyway. Such action bespeaks of
its indecisiveness prejudicial to the right of the accused to be informed of the nature
and cause of accusation against him. (People v. Sarte, 130 SCRA 401). It must be
remembered that when a judge conducts preliminary investigation he becomes an
extension of the Provincial Prosecutor, thus he should make sure of the crime charged
to avoid any guessing game.[25]
Had Judge Monserate endeavored to exert a little more effort to read the
criminal complaint, he would not have conducted a preliminary investigation since the
charge falls squarely within the jurisdiction of his court.[26] The allegations in the
criminal complaint state that accused Oporto and his co-accused stole the blank
check. There was no deceit employed by them to induce Lourdes Senar to part with her
check. Clearly, the crime committed was not estafa.
Competence is a mark of a good judge. When a judge displays an utter lack of
familiarity with the Rules of Criminal Procedure, he erodes the publics confidence in
the competence of our courts. Such is gross ignorance of the law. Having accepted the
exalted position of a judge, Judge Monserate owes the public and the court the duty to
be proficient in the law.[27] As a judge, Judge Monserate is expected to keep abreast of
laws and prevailing jurisprudence.[28] Unfamiliarity with the Rules of Court is a sign of
incompetence. Basic rules must be at the palm of his hand. A judge must be acquainted
with legal norms and precepts as well as with procedural rules. [29]
The Fallo
WHEREFORE, we find respondent Judge Eddie P. Monserate guilty of gross
ignorance of the law and resolve to IMPOSE upon him a FINE in the amount of five
thousand pesos (P5,000.00), with warning that a repetition of the same or similar act
would be dealt with more severely.
SO ORDERED.
SECTION 4. INFORMATION DEFINED.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SALVADOR
ARROJADO, accused-appellant.
DECISION
MENDOZA, J.:
This is an appeal from the decision[1] of the Regional Trial Court, Branch 19, Roxas
City, finding accused-appellant Salvador Arrojado guilty of murder and sentencing him
to suffer the penalty of 30 years of reclusion perpetua and to pay the amounts
of P60,000.00 as civil indemnity, P80,000.00 as moral damages, and the costs to the
heirs of the victim Mary Ann Arrojado. [2]
The information against accused-appellant alleged:
That on or about the 1st day of June, 1996, in the City of Roxas, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, armed with a knife,
with intent to kill, with treachery and evident premeditation, did then and there
willfully, unlawfully, and feloniously attack, assault, and stab one Mary Ann Arrojado, on
the different parts of the body, to wit:
1. Stab wound, gaping, 1.5 cm. in length with a depth of 5 cm. located at the
supra sternal area;
 2. Stab wound, elongated, gaping, measuring 3 cm. in length, 10 cm. depth,
directed downward 5 cm. above the left nipple area at the level of
midclavicular line;
3. Stab wound, elongated, gaping, measuring 2.5 cm. in length, 5.5 cm. depth,
located 4 cm. above the left nipple area, midclavicular line;
4. Stab wound, elongated, gaping, measuring 3 cm. in length, 18.5[3] cm. in
depth, directed medially downward, located 3 cm. above the left nipple,
midclavicular line;
5. Stab wound, elongated, gaping, measuring 3 cm. in length, 5 cm. depth,
located 3 cm. medial to the left nipple;
6. Stab wound, elongated, gaping, measuring 4 cm. in length, 10.5 cm. in
depth, directed laterally downward, located 2 cm. medial to the left nipple;
7. Stab wound, elongated, gaping, measuring 3.5 cm. in length, 12 cm. in
depth, directed laterally, located 2 cm. medial to the left nipple;
8. Stab wound, elongated, gaping, measuring 3 cm. in length, 5.5 cm. in depth
directed downward, located at the xiphoid area;
9. Stab wound, elongated gaping, measuring 3 cm. in length, 4 cm. in depth,
directed medially, located 4 cm. below the left nipple;
10. Stab wound penetration, measuring 4 x 4 cm. in length with [e]visceration
of the small intestine;
thereby inflicting upon her serious and mortal wounds which were the direct and
immediate cause of her death.
That by reason of the death Mary Ann Arrojado, her heirs incurred actual and moral
damages which may be awarded under the Civil Code of the Philippines.
CONTRARY TO LAW.[4]
The information was read and explained to accused-appellant in his native dialect,
after which he pleaded not guilty.[5] Trial on the merits then ensued.
The evidence for the prosecution shows the following:
Accused-appellant Salvador Arrojado and the victim Mary Ann Arrojado are first
cousins, their fathers being brothers. The victims father, Alberto Arrojado, who was
living in Canada, suffered a stroke for which reason he decided to come home to Roxas
City and spend the remainder of his days there. The victim accompanied her father to
the Philippines. They eventually settled in a house in Barangay Tanque, Roxas City,
where they lived on the financial support of the victims sister Asuncion, who continued
to live in Canada, and her brother Buenaventura, who lived in Manila.
Starting February 15, 1996, accused-appellant lived with the victim and her
father. He helped care for the victims father, for which he was paid a P1,000.00 monthly
salary.[6]
In the early morning of June 1, 1996, accused-appellant went to the house of his
cousin, Erlinda Arrojado Magdaluyo, and reported that the victim had committed
suicide. In response, Erlinda, together with her husband Romulo Magdaluyo and her
father Teodorico Arrojado, went with accused-appellant to the house in Barangay
Tanque where they found the victim dead. The victim, who was bloodied, was lying on
her left side facing the bedroom door with her hands clasped together. On her bed was a
rosary and a crucifix. Near her was a knife (Exh. C).[7] Erlinda recognized it to be the
knife kept in the kitchen. Erlinda also noticed that the electric fan was turned on full
blast, while all the windows were closed except the window on the east side which was
slightly open. As he went to the other room, where the victims father stayed, accused-
appellant told Erlinda that he was afraid he might be suspected as the one responsible
for the victims death.[8]
The matter was reported to the police which noticed that the victims room was
very neat as if nothing happened. The police saw no signs of forcible entry. [9] They made
a sketch of the victims position in relation to the whole house (Exh. D)[10] and took
pictures of her (Exhs. EE-3).[11]
Dr. Ma. Lourdes Roldan, of the Roxas City Health Office, conducted the postmortem
examination of the victim at 1:30 p.m. of June 1, 1996. Her findings revealed that the
victim sustained the following stab wounds:
1. Stab wound, gaping, 1.5 cm. in length with a depth of 5 cm. located at the
supra sternal area;
2. Stab wound, elongated gaping, measuring 3 cm. in length, 10 cm. depth,
directed downward, located 5 cm. above the left nipple area at the level of
midclavicular line;
3. Stab wound, elongated, gaping, measuring 2.5 cm. in length, 10.5 cm. depth,
located 4 cm. above the left nipple area, midclavicular line;
4. Stab wound, elongated, gaping, measuring 3 cm. in length, 18.5 cm. in
depth directed medially downward located 3 cm. above the left nipple,
midclavicular line;
5. Stab wound, elongated, gaping, measuring 3 cm. in length, 5 cm. in depth,
located 3 cm. medial to the left nipple;
6. Stab wound, elongated, gaping, measuring 4 cm. in length, 10.5 cm. in
depth, directed laterally downward, located 2 cm. medial to the left nipple;
 7. Stab wound, elongated, gaping, measuring 3.5 cm. in length, 12 cm. in
depth, directed laterally, located 2 cm. medial to the left nipple;
8. Stab wound, elongated gaping measuring 3 cm. in length and 5.5 cm. in
depth, directed downward, located at the xiphoid area;
9. Stab wound, elongated, gaping, measuring 3 cm. in length, 4 cm. in depth,
directed medially, located 4 cm. below the left nipple;
10.Stab wound penetration, measuring 4 x 4 cm. in length with evisceration
of the small intestine;[12]
Dr. Roldan testified that the victim died at around midnight of May 31, 1996 from
wound nos. 2, 4, 6, 7, and 10, which she deemed fatal.[13] Thus, in the victims death
certificate (Exh. B),[14] she listed HEMORRHAGIC SHOCK as the victims immediate cause
of death and multiple stab wounds as the antecedent cause.
Erlinda Arrojado Magdaluyo testified that the relationship between the victim and
accused-appellant had been strained as the victim constantly picked on accused-
appellant even for the slightest mistake.Erlinda remembered the scolding that the
victim gave accused-appellant on May 27, 1996 over the loss of keys. Accused-appellant
was badly hurt by the victims tonguelashing, according to Erlinda, and complained to
the victim, Youre too much. Erlinda said she offered to take the victim in her house, but
the latter refused, saying that her place was with her father. The victim entrusted,
however, her jewelry and bank book with signed withdrawal slips to Erlinda. Three
days later, on May 30, 1996, Erlinda returned the same and told the victim that she
should not be afraid of accused-appellant because he was taking care of both her (the
victim) and her father. Erlinda said she again met the victim on May 31, 1996 when she
reminded the latter of their agreement to go out the following day, June 1, 1996. On that
day, however, the victim was found dead.[15]
Another relative of accused-appellant and the victim, Thelma Arrojado,
corroborated Erlindas testimony. The father of Thelmas husband, Roque Arrojado, is a
brother of the victims father and that of accused-appellant. Thelma said that she and
her husband lived at one time with the victim, and she knew the latter to be a snob
(suplada) and overly strict. Because they did not get along with the victim, Thelma and
her husband eventually left. She testified that accused-appellant was angry at the victim
and in fact passed by her store thrice (on May 27, 29, and 31, 1996), complaining to her
of the victims maltreatment of him.[16]
Accused-appellant testified in his behalf. He told the court that on June 1, 1996, at
around 6:00 a.m., Alberto Arrojado asked him for food, so accused-appellant went to
the kitchen to find out if the victim had already prepared breakfast. When accused-
appellant found that the victim was not in the kitchen, he proceeded to the victims
room. From the doorway, he saw the victim lying on her bed, bloodied. He thought that
the victim had committed suicide because the victim had told him that she felt tied
down taking care of her father. She in fact once remarked that It would be better that
my father and I commit suicide. Accused-appellant said that the victim scolded him only
once and that was for buying rotten cabbage.[17] He said that the victim was the one who
was constantly being scolded by her father who often found fault with her. When
presented with the knife found on the victims bed (Exh. C), accused-appellant admitted
he was familiar with the knife as he saw the victim using it in the kitchen.
On April 21, 1997, the trial court rendered its decision, the dispositive portion of
which reads:
WHEREFORE, in view of all the foregoing, this Court finds and declares accused
Salvador Arrojado GUILTY beyond reasonable doubt of the heinous crime of murder,
defined and penalized by Art. 248 of the Revised Penal Code, as amended by Section 6
of Republic Act 7659, and, there being no aggravating circumstance, hereby sentences
him to imprisonment of thirty (30) years of reclusion perpetua, and to indemnify the
heirs of the deceased Mary Ann Arrojado in the amount of P60,000.00, pay them moral
damages of P80,000.00, and pay the costs of this action.
In the service of his sentence consisting of deprivation of liberty, the accused, who is a
detention prisoner and not otherwise disqualified, shall be credited with the full time of
his confinement under preventive imprisonment, provided he voluntarily agrees in
writing to abide by the same disciplinary rules imposed on convicted prisoners,
pursuant to Art. 29 of the Revised Penal Code.
SO ORDERED.[18]
The trial court held that there was sufficient circumstantial evidence to convict
accused-appellant for the victims death. In its decision, the trial court said:
The accused was the only person in the world who had the strong motive to eliminate
from earthly existence the deceased, who had no known enemies, as he could no longer
endure the verbal abuse to which he was frequently subjected, even on trivial matters,
by the deceased whom he must have perceived as his evil tormentor. Being older [but]
every now and then scolded, insulted, and humiliated, he must have felt that the
deceased had no respect for him as a person and elder cousin. Suicide being physically
impossible and there being no shred of evidence showing that an intruder could have
surreptitiously entered the house as all doors and windows were securely closed, the
killing could have been done only by someone who was already inside the
house. Certainly it could not have been the deceaseds old and invalid father who could
not stand on his own, much less walk from his room to the kitchen, get the fatal
weapon, the kitchen knife, from where it was placed therein, walk to his daughters
room, and then stab her. As there were only the three of them inside the house, that
leaves no one else, by the process of elimination, who could have perpetrated the
dastardly act but the accused who had the only motive to do it and who was inside the
house at the time of the commission of the crime. Reinforcing this conclusion is the
admission of the accused that when he peeped into the room of the deceased and
allegedly saw for the first time the lifeless body of the victim, he was already sure, even
without going near or touching her body and asking aloud what happened to her, that
she was already dead because he himself killed her. He saw to it that she would die
because he stabbed her not only once, but ten (10) times, inflicting five (5) mortal
wounds. And he had the gall to attribute his cousins untimely death to suicide because
he could not concoct any other reason to save himself.[19]
Hence this appeal. Accused-appellants assigns the following errors as allegedly
having been committed by the trial court:
THE REGIONAL TRIAL COURT ERRED IN FINDING THAT MARY ANN ARROJADO
WAS STABBED TEN TIMES AT HER HOME.
THE REGIONAL TRIAL COURT ERRED IN RULING THAT MARY ANN ARROJADO
COULD NOT HAVE COMMITTED SUICIDE.
THE REGIONAL TRIAL COURT ERRED IN FINDING THAT THE HOUSE OF MARY
ANN ARROJADO WAS TOTALLY CLOSED AND LOCKED AGAINST INTRUDERS.
THE REGIONAL TRIAL COURT ERRED IN FINDING THAT ACCUSED-APPELLANT
WAS ABUSED AND OPPRESSED BY MARY ANN ARROJADO THAT LED ACCUSED-
APPELLANT TO KILL MARY ANN ARROJADO.[20]
First. Accused-appellant claims that most of the victims wounds were inflicted
after she had already committed suicide to make it appear that she was murdered. He
says that he saw only one wound in the victims stomach,[21] while Erlinda Arrojado
Magdaluyo said she saw only two wounds, one on the victims neck and the other in her
abdomen. These are wound nos. 1 and 10 in the postmortem examination. [22] Of these
two, the stomach wound was fatal, according to Dr. Roldan.[23] Accused-appellant says
that the other wounds may have been inflicted on the victim between the time the body
was brought out of the house in the morning and the time Dr. Roldan examined the
same at around 1:30 oclock in the afternoon of June 1, 1996 at the De Jesus funeral
parlor.[24]
Accused-appellants contention has no merit. That accused-appellant only saw one
wound while Erlinda Magdaluyo saw two wounds on the victim does not necessarily
mean that the other wounds were inflicted upon the victim afterwards. The two might
have simply missed seeing the other wounds. In accused-appellants case, it may be
because he did not go inside the room but only viewed the body from a distance. [25] On
the other hand, while Erlinda Arrojado Magdaluyo went near the victim, she said she
did not see if there were wounds on the victims chest because the latter was dressed.
[26]
But Dr. Roldan, who conducted a postmortem examination, testified that the victim
actually sustained ten wounds. Between the cursory examination of the victim by
accused-appellant and Erlinda Arrojado Magdaluyo and Dr. Roldans exhaustive
examination, there is no doubt that the latters findings are entitled to credence.
Accused-appellant also argues that the varying depths of wound nos. 2, 4, 5, 8, and
9 (10 cm., 10.5 cm., 5 cm., 5.5 cm., and 4 cm.) despite the fact that they had the same
surface length of 3 cm. could only mean that after the victim was found dead, she was
again stabbed with a knife or knives other than the one (Exh. C) found beside her. [27]
The contention is without merit. The variance in depth does not necessarily mean
that more than one weapon was used. As has been stated:
[I]t is not possible to determine the depth of penetration of a stab wound with any
degree of accuracy, inasmuch as effusion of blood into the tissues, changes in the
position of the viscera, or numerous other circumstances may alter the conditions
existing at the time when the wound was inflicted. Consequently, the depth of the track
at autopsy may be different from the actual penetration of the instrument at the time of
the stabbing. Moreover, it is not always possible to correlate the depth of the wound
with the blade of the stabbing instrument. For example, a short blade of two inches can
penetrate four inches into a soft area like the thigh or through the anterior abdominal
wall because the force of the thrust may dent the tissues appreciably and thus deepen
the wound. Conversely, a long blade may not be thrust into its full length, and the
wound may be shorter than the blade. For these reasons attempts to correlate the depth
of the track and the length of the weapon should be made with caution. [28]
Dr. Roldan in fact testified that the kitchen knife, marked as Exh. C, could have caused all
the wounds sustained by the victim.[29] She also testified that the stab wounds could
have all been inflicted in the span of one minute.[30] Having examined no less than 100
victims of violence,[31] Dr. Roldans conclusions should be given credence.
Moreover, with the exception of wound no. 10, all the wounds were described by
Dr. Roldan as gaping. As stated in Forensic Medicine:
. . . An ante-mortem wound gapes; there is eversion of the edges; a large amount of
blood is present, this is coagulated and infiltrating the wound; and there is swelling and
signs of inflammation and repair. In a post-mortem wound there is no gaping. The
bleeding is slight, if any, and it does not infiltrate the wound. [32]
This belies accused-appellants theory that the victim committed suicide and that it
was only after she was found dead that she was again stabbed to make it appear that
she had been killed.
Nor were the bloodstains which PO2 Orly Baril[33] and Erlinda Arrojado
Magdaluyo[34] found on the victims hands necessarily evidence of the victims
suicide. The bloodstains could have come from the wounds sustained by her rather
than from her attempt to kill herself.
 Accused-appellant also insists the victim committed suicide because she was
feeling despondent over her remaining single, her lack of regular employment which
made her dependent on the support of her siblings, and the responsibility of taking care
of her father who had become an invalid. He cites Erlinda Arrojado Magdaluyos
testimony that the victim entrusted her jewelry and bank book to her four days before
she died.[35]
Erlinda, however, testified that the victim did this because she had a premonition
that accused-appellant might harm her, and not because of any intimation that she (the
victim) would kill herself.[36]
Contrary to the claim of accused-appellant that the victim was a depressed person
with a low sense of self-worth, Erlinda Arrojado Magdaluyo described the victim as a
jolly person who had many friends who go to her house. Moreover, according to Erlinda,
the victim, while not earning a fixed income, was not without means of livelihood. The
victim was good at cooking and took orders from neighbors.Erlinda also disclosed that
on the very day the victim was found dead, she and the victim had plans to go out for
relaxation.[37] This negates any theory that the victim committed suicide.
Second. Somewhat inconsistently with his claim that the victim was a suicide,
accused-appellant disputes the trial courts conclusion that only one of those residing in
the house could have killed the victim because the police found no sign of a break-
in. Accused-appellant says that in the morning of June 1, 1996, he found that the kitchen
door leading outside was open.[38]
Accused-appellants contention must fail. Accused-appellant admitted that it did
not occur to him that an intruder was in the house in the evening of May 31, 1996
because No person could get inside because the windows were closed and besides the
doors were closed.[39]
Significantly, Erlinda Arrojado Magdaluyo testified that accused-appellant also said
that no person could get inside the house because the doors and the windows were
closed.[40] Accused-appellant never told Erlinda that the kitchen door was open that
morning. Indeed, Erlinda testified that it is not possible that somebody would enter the
house as the doors were securely locked . . . with additional barrel bolts, and the
windows have grills.[41]
Third. Accused-appellant contends that Thelma Arrojados testimony does not
deserve consideration because, by her own admission, [42] the victims sister Asuncion
asked her to testify on accused-appellants complaints against the victims treatment of
him. He also claims that it was inconsistent for Erlinda to testify, on the one hand, that
the victim was loving, friendly, and reasonable and, on the other, to say that she was
strict and domineering. Accused-appellant cites the testimony of the victims brother,
Buenaventura Arrojado, that before her death the victim denied having any quarrel
with accused-appellant.[43]
To be sure, the evaluation of the trial court of the credibility of witnesses will not
be disturbed on appeal unless it is shown that it overlooked certain facts or
circumstances of substance that, if considered, could have affected the outcome of
case. This is because the trial court is in a better position to decide the question of
credibility having heard the witnesses and observed their deportment during the trial.
[44]
In this case, accused-appellants contention that the testimonies of Thelma Arrojado
and Erlinda Arrojado Magdaluyo are incredible is without merit. Thelma Arrojados
admission that the victims sister Asuncion had asked her to testify does not impair her
credibility. Thelma was candid enough to say that at first she was hesitant to testify
because accused-appellant is also her relative. But she denied having been coached on
what to say, stating that she only testified as to what Salvador Arrojado said to me
which is that he could not bear the victims maltreatment. [45]
As for Erlinda Arrojado Magdaluyo, she said that she suspected accused-appellant
but she did not want to say anything until she had proof.[46] She testified also that so far
as she knew, only accused-appellant harbored a grudge against the victim, and that
accused-appellant himself told her so.[47] With regard to Erlindas seemingly inconsistent
description of the victim, suffice it to say that the victims treatment of accused-
appellant does not necessarily reflect her attitude and behavior toward other people.
Anent the testimony of the victims brother, Buenaventura Arrojado, that the victim
denied having any quarrel with accused-appellant when he called her up two weeks
before her death,[48] it is possible that the victim did not want to bother her brother who
was after all too far (since he lived in Manila) to be of much help. It is only to be
expected that Erlinda Arrojado Magdaluyo and Thelma Arrojado, who lived near
accused-appellant and the victim, have a much more accurate assessment of the real
relationship between accused-appellant and the victim. Buenaventura Arrojado
testified that it was Erlinda Arrojado Magdaluyo who told him of the alleged quarrel
between the victim and accused-appellant.[49]
In sum, the following circumstances point to accused-appellant as the perpetrator
of the crime:
1. Accused-appellant, the victim, and the latters father were the only ones
living in the house in which the crime was committed in the evening of May
31, 1996.[50]
2. No one from the outside can gain entry since all doors of the house were
locked and the windows had grills.[51]
3. Accused-appellant had access to the victims bedroom because the
bedroom doors were left unlocked so that the victim could check on her
fathers condition during the night. Accused-appellant sleeps in the same
bedroom as the victims father.[52]
4. The murder weapon was a kitchen knife readily accessible to the occupants
of the house.[53] As the Solicitor General observed, common sense dictates
 that if an outsider entered the house with the intent to kill the victim, he
would have brought his own weapon to ensure the execution of his purpose.
[54]
5. None of the victims belongings was missing or disturbed, indicating that
the motive for the crime was not gain but revenge.[55]
6. Judging from the number and severity of the wounds (10 stab wounds, half
of which were fatal),[56] the killer felt deep-seated resentment and anger
toward the victim. Accused-appellant had admitted those feelings to Erlinda
Arrojado Magdaluyo and Thelma Arrojado.[57]
7. Aside from accused-appellant, no one was known to harbor a grudge
against the victim.[58]
8. As the Solicitor General also pointed out, accused-appellants behavior in
the morning of June 1, 1996 was inconsistent with someone who had just
found his cousin and employer, a person he claims to get along with, dead.
[59]
By his testimony, he did not even go inside the room to check on her
condition on the lame excuse that he was afraid. He also did not inform his
neighbors about the incident for the equally flimsy reason that he did not
know them nor did he go to the police.[60]
Under Rule 133, 4 of the Rules on Evidence, circumstantial evidence is sufficient
for conviction if (a) there is more than one circumstance; (b) the facts from which the
inference are derived are proven; and (c) the combination of all circumstances is such
as to produce a conviction beyond reasonable doubt. As the foregoing discussion shows,
these requisites have been established in this case.
Fourth. With respect to the circumstances attending the commission of the crime,
the trial court correctly appreciated the qualifying circumstance of treachery against
accused-appellant. To appreciate treachery, two conditions must be present: (1) the
employment of means of execution that gives the person attacked no opportunity to
defend himself or to retaliate and (2) the means of execution is deliberately or
consciously adopted.[61] Both requisites have been established in this case.
Anent the first requisite, Dr. Roldan testified that based on her findings, the victim
was not in a position to fight the assailant and that she might have been stabbed while
she was asleep.[62] As regards the second requisite, the number and nature of the
wounds sustained by the victim lead to no other conclusion than that accused-appellant
employed means in killing the victim which tended directly and specially to ensure its
execution without risk to himself arising from the defense which the victim might
take. Accused-appellant would not have inflicted so many wounds, a total of 10, half of
which were fatal, if he had not deliberately adopted such manner of attack. [63] Abuse of
superior strength also attended the killing since accused-appellant, a man and armed
with a knife, attacked the victim, an unarmed and defenseless woman. [64] However, since
abuse of superior strength is absorbed in treachery, there is no need to appreciate it
separately as an independent aggravating circumstance. [65]
The trial court correctly held that there was no proof of evident premeditation
since the requisites therefor, to wit, (a) the time when the accused determined to
commit the crime; (b) an act manifestly indicating that the accused had clung to his
determination; and (c) sufficient lapse of time between such determination and
execution to allow him to reflect upon the consequence of his act,[66] have not been
established in this case.
Nor can the generic aggravating circumstance of dwelling be appreciated against
accused-appellant since the latter and the victim lived in the same house. [67]
The aggravating circumstance of abuse of confidence, however, is present in this
case. For this aggravating circumstance to exist, it is essential to show that the
confidence between the parties must be immediate and personal such as would give the
accused some advantage or make it easier for him to commit the criminal act. The
confidence must be a means of facilitating the commission of the crime, the culprit
taking advantage of the offended partys belief that the former would not abuse said
confidence.[68] In this case, while the victim may have intimated her fear for her safety
for which reason she entrusted her jewelry and bank book to Erlinda Arrojado
Magdaluyo, her fears were subsequently allayed as shown by the fact that she took back
her personal effects from Erlinda.[69] Thinking that accused-appellant would not do her
any harm, because he was after all her first cousin, the victim allowed accused-
appellant to sleep in the same room with her father and left the bedroom doors
unlocked.[70]
The murder in this case took place after the effectivity of R.A. No. 7659 on
December 31, 1993 which increased the penalty for murder from reclusion
temporal maximum to death to reclusion perpetua to death. In view of the presence of
the aggravating circumstance of abuse of confidence and in accordance with Art. 63(1)
of the Revised Penal Code, the trial court should have imposed the penalty of death on
accused-appellant. However, on December 1, 2000, the Revised Rules of Criminal
Procedure took effect, requiring that every complaint or information state not only the
qualifying but also the aggravating circumstances. [71] This provision may be given
retroactive effect in the light of the well settled rule that statutes regulating the
procedure of the court will be construed as applicable to actions pending and
undetermined at the time of their passage. Procedural laws are retroactive in that sense
and to that extent.[72] The aggravating circumstance of abuse of confidence not having
been alleged in the information, the same therefore could not be appreciated to raise
accused-appellants sentence to death.
In accordance with the ruling in People v. Lucas[73] that the penalty of reclusion
perpetua remains indivisible notwithstanding the fixing of its duration from twenty
(20) years and one (1) day to forty (40) years,[74] the trial court erred in imposing on
accused-appellant the penalty of 30 years of reclusion perpetua. In line with the ruling
in Lucas, accused-appellant should suffer the entire extent of forty (40) years
of reclusion perpetua.[75]
Consistent with current case law,[76] the civil indemnity for the crime of murder
should be reduced from P60,000.00 to P50,000.00, while the award of moral damages
in the amount of P80,000.00 should be reduced to P50,000.00.
WHEREFORE, the decision of the Regional Trial Court, Branch 19, Roxas City, is
AFFIRMED with the MODIFICATION that accused-appellant Salvador Arrojado is
sentenced to suffer the penalty of reclusion perpetua in its entire duration and to its full
extent. Furthermore, he is ordered to pay the heirs of the victim Mary Ann Arrojado the
amount of P50,000.00 as civil indemnity and the further sum of P50,000.00 as moral
damages and the costs.
SO ORDERED.
SECTION 5. WHO MUST PROSECUTE CRIMINAL ACTION.
G.R. No. 161106 January 13, 2014
WORLDWIDE WEB CORPORATION and CHERRYLL L. YU, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES and PHILIPPINE LONG DISTANCE TELEPHONE
COMPANY, Respondents.
x-----------------------x
G.R. No. 161266
PLANET INTERNET CORP., Petitioner,
vs.
PHILIPPINE LONG DISTANCE TELEPHONE COMPANY, Respondent.
DECISION
SERENO, CJ:
Petitioners filed the present Petitions under Rule 45 of the Rules of Court to set aside
the Decision1 dated 20 August 2003 and the Resolution2 dated 27 November 2003 of
the Court of Appeals (CA) reversing the quashal of the search warrants previously
issued by the Regional Trial Court (RTC).
Police Chief Inspector Napoleon Villegas of the Regional Intelligence Special Operations
Office (RISOO) of the Philippine National Police filed applications for warrants 3 before
the RTC of Quezon City, Branch 78, to search the office premises of petitioner
Worldwide Web Corporation (WWC)4 located at the 11th floor, IBM Plaza Building, No.
188 Eastwood City, Libis, Quezon City, as well as the office premises of petitioner Planet
Internet Corporation (Planet Internet)5 located at UN 2103, 21/F Orient Square
Building, Emerald Avenue, Barangay San Antonio, Pasig City. The applications alleged
that petitioners were conducting illegal toll bypass operations, which amounted to theft
and violation of Presidential Decree No. 401 (Penalizing the Unauthorized Installation
of Water, Electrical or Telephone Connections, the Use of Tampered Water or Electrical
Meters and Other Acts), to the damage and prejudice of the Philippine Long Distance
Telephone Company (PLDT).6
On 25 September 2001, the trial court conducted a hearing on the applications for
search warrants. The applicant and Jose Enrico Rivera (Rivera) and Raymund Gali (Gali)
of the Alternative Calling Pattern Detection Division of PLDT testified as witnesses.
According to Rivera, a legitimate international long distance call should pass through
the local exchange or public switch telephone network (PSTN) on to the toll center of
one of the international gateway facilities (IGFs)7 in the Philippines.8 The call is then
transmitted to the other country through voice circuits, either via fiber optic submarine
cable or microwave radio using satellite facilities, and passes the toll center of one of
the IGFs in the destination country. The toll center would then meter the call, which will
pass through the PSTN of the called number to complete the circuit. In contrast,
petitioners were able to provide international long distance call services to any part of
the world by using PLDTs telephone lines, but bypassing its IGF. This scheme
constitutes toll bypass, a "method of routing and completing international long distance
calls using lines, cables, antenna and/or wave or frequency which connects directly to
the local or domestic exchange facilities of the originating country or the country where
the call is originated."9
On the other hand, Gali claimed that a phone number serviced by PLDT and registered
to WWC was used to provide a service called GlobalTalk, "an internet-based
international call service, which can be availed of via prepaid or billed/post-paid
accounts."10 During a test call using GlobalTalk, Gali dialed the local PLDT telephone
number 6891135, the given access line. After a voice prompt required him to enter the
user code and personal identification number (PIN) provided under a GlobalTalk pre-
paid account, he was then requested to enter the destination number, which included
the country code, phone number and a pound (#) sign. The call was completed to a
phone number in Taiwan. However, when he checked the records, it showed that the
call was only directed to the local number 6891135. This indicated that the
international test call using GlobalTalk bypassed PLDTs IGF.
Based on the records of PLDT, telephone number 6891135 is registered to WWC with
address at UN 2103, 21/F Orient Square Building, Emerald Avenue, Barangay San
Antonio, Pasig City.11 However, upon an ocular inspection conducted by Rivera at this
address, it was found that the occupant of the unit is Planet Internet, which also uses
the telephone lines registered to WWC.12 These telephone lines are interconnected to a
server and used as dial-up access lines/numbers of WWC.
Gali further alleged that because PLDT lines and equipment had been illegally
connected by petitioners to a piece of equipment that routed the international calls and
bypassed PLDTs IGF, they violated Presidential Decree (P.D.) No. 401 as amended, 13 on
unauthorized installation of telephone connections. Petitioners also committed theft,
because through their misuse of PLDT phone lines/numbers and equipment and with
clear intent to gain, they illegally stole business and revenues that rightly belong to
PLDT. Moreover, they acted contrary to the letter and intent of Republic Act (R.A.) No.
7925, because in bypassing the IGF of PLDT, they evaded the payment of access and
bypass charges in its favor while "piggy-backing" on its multi-million dollar facilities
and infrastructure, thus stealing its business revenues from international long distance
calls. Further, petitioners acted in gross violation of Memorandum Circular No. 6-2-92
of the National Telecommunications Commission (NTC) prohibiting the use of customs
premises equipment (CPE) without first securing type approval license from the latter.
Based on a five-day sampling of the phone line of petitioners, PLDT computed a
monthly revenue loss of 764,718.09. PLDT likewise alleged that petitioners deprived it
of foreign exchange revenues, and evaded the payment of taxes, license fees, and
charges, to the prejudice of the government.
During the hearing, the trial court required the identification of the office
premises/units to be searched, as well as their floor plans showing the location of
particular computers and servers that would be taken.14
On 26 September 2001, the RTC granted the application for search
warrants.15 Accordingly, the following warrants were issued against the office premises
of petitioners, authorizing police officers to seize various items:
1. Search Warrant No. Q-01-3856, issued for violation of paragraph one (1) of
16
Article 308 (theft) in relation to Article 309 of the Revised Penal Code against
WWC, Adriel S. Mirto, Kevin L. Tan, Cherryll L. Yu, Carmelo J. Canto, III,
Ferdinand B. Masi, Message One International Corporation, Adriel S. Mirto,
Nova Christine L. Dela Cruz, Robertson S. Chiang, and Nolan B. Sison with
business address at 11/F IBM Plaza Building, No. 188 Eastwood City,
Cyberpark Libis, Quezon City:
a) Computers or any equipment or device capable of accepting
information, applying the process of the information and supplying the
results of this process;
b) Software, Diskettes, Tapes or equipment or device used for
recording or storing information; and c) Manuals, application forms,
access codes, billing statements, receipts, contracts, communications
and documents relating to securing and using telephone lines and/or
equipment.
2. Search Warrant No. Q-01-3857,17 issued for violation of P.D. 401 against
Planet Internet Corporation/Mercury One, Robertson S. Chiang, Nikki S.
Chiang, Maria Sy Be Chiang, Ben C. Javellana, Carmelita Tuason with business
address at UN 2103, 21/F Orient Square Building, Emerald Avenue, Barangay
San Antonio, Pasig City:
a) Modems or Routers or any equipment or device that enables data
terminal equipment such as computers to communicate with other
data terminal equipment via a telephone line;
b) Computers or any equipment or device capable of accepting
information applying the prescribed process of the information and
supplying the results of this process;
c) Lines, Cables and Antennas or equipment or device capable of
transmitting air waves or frequency, such as an IPL and telephone lines
and equipment;
d) Multiplexers or any equipment or device that enables two or more
signals from different sources to pass through a common cable or
transmission line;
e) PABX or Switching Equipment, Tapes or equipment or device
capable of connecting telephone lines;
f) Software, Diskettes, Tapes or equipment or device used for
recording or storing information; and
g) Manuals, application forms, access codes, billing statement, receipts,
contracts, checks, orders, communications and documents, lease
and/or subscription agreements or contracts, communications and
 documents relating to securing and using telephone lines and/or
equipment.
3. Search Warrant No. Q-01-3858,18 issued for violation of paragraph one (1) of
Article 308 (theft) in relation to Article 309 of the Revised Penal Code against
Planet Internet Corporation/Mercury One, Robertson S. Chiang, Nikki S.
Chiang, Maria Sy Be Chiang, Ben C. Javellana, Carmelita Tuason with business
address at UN 2103, 21/F Orient Square Building, Emerald Avenue, Barangay
San Antonio, Pasig City:
a) Modems or Routers or any equipment or device that enables data
terminal equipment such as computers to communicate with other
data terminal equipment via a telephone line;
b) Computers or any equipment or device capable of accepting
information applying the prescribed process of the information and
supplying the results of this process;
c) Lines, Cables and Antennas or equipment or device capable of
transmitting air waves or frequency, such as an IPL and telephone lines
and equipment;
d) Multiplexers or any equipment or device that enables two or more
signals from different sources to pass through a common cable or
transmission line;
e) PABX or Switching Equipment, Tapes or equipment or device
capable of connecting telephone lines;
f) Software, Diskettes, Tapes or equipment or device used for
recording or storing information; and
g) Manuals, application forms, access codes, billing statement, receipts,
contracts, checks, orders, communications and documents, lease
and/or subscription agreements or contracts, communications and
documents relating to securing and using telephone lines and/or
equipment.
The warrants were implemented on the same day by RISOO operatives of the National
Capital Region Police Office.
Over a hundred items were seized,19 including 15 central processing units (CPUs), 10
monitors, numerous wires, cables, diskettes and files, and a laptop computer. 20 Planet
Internet notes that even personal diskettes of its employees were confiscated; and areas
not devoted to the transmission of international calls, such as the Presidents Office and
the Information Desk, were searched. Voltage regulators, as well as reserve and broken
computers, were also seized. Petitioners WWC and Cherryll Yu, 21 and Planet
Internet22 filed their respective motions to quash the search warrants, citing basically
the same grounds: (1) the search warrants were issued without probable cause, since
the acts complained of did not constitute theft; (2) toll bypass, the act complained of,
was not a crime; (3) the search warrants were general warrants; and (4) the objects
seized pursuant thereto were "fruits of the poisonous tree."
PLDT filed a Consolidated Opposition23 to the motions to quash.
In the hearing of the motions to quash on 19 October 2001, the test calls alluded to by
Gali in his Affidavit were shown to have passed the IGF of Eastern Telecommunications
(Philippines) Inc. (Eastern) and of Capital Wireless (Capwire). 24 Planet Internet
explained that Eastern and Capwire both provided international direct dialing services,
which Planet Internet marketed by virtue of a "Reseller Agreement." Planet Internet
used PLDT lines for the first phase of the call; but for the second phase, it used the IGF
of either Eastern or Capwire. Planet Internet religiously paid PLDT for its domestic
phone bills and Eastern and Capwire for its IGF usage. None of these contentions were
refuted by PLDT.
The RTC granted the motions to quash on the ground that the warrants issued were in
the nature of general warrants.25 Thus, the properties seized under the said warrants
were ordered released to petitioners.
PLDT moved for reconsideration,26 but its motion was denied27 on the ground that it
had failed to get the conformity of the City Prosecutor prior to filing the motion, as
required under Section 5, Rule 110 of the Rules on Criminal Procedure.
THE CA RULING
PLDT appealed to the CA, where the case was docketed as CA-G.R. No. 26190. The CA
reversed and set aside the assailed RTC Resolutions and declared the search warrants
valid and effective.28
Petitioners separately moved for reconsideration of the CA ruling. 29 Among the points
raised was that PLDT should have filed a petition for certiorari rather than an appeal
when it questioned the RTC Resolution before the CA. The appellate court denied the
Motions for Reconsideration.30
Rule 45 Petitions were separately filed by petitioners WWC and Cherryll Yu, 31 and
Planet Internet32 to assail the CA Decision and Resolution. The Court consolidated the
two Petitions.33
ISSUES
I. Whether the CA erred in giving due course to PLDTs appeal despite the following
procedural infirmities:
1. PLDT, without the conformity of the public prosecutor, had no personality to
question the quashal of the search warrants;
2. PLDT assailed the quashal orders via an appeal rather than a petition for
certiorari under Rule 65 of the Rules of Court.
II. Whether the assailed search warrants were issued upon probable cause, considering
that the acts complained of allegedly do not constitute theft.
III. Whether the CA seriously erred in holding that the assailed search warrants were
not general warrants.
OUR RULING
I 1. An application for a search warrant is not a criminal action; conformity of the public
prosecutor is not necessary to give the aggrieved party personality to question an order
quashing search warrants.
Petitioners contend that PLDT had no personality to question the quashal of the search
warrants without the conformity of the public prosecutor. They argue that it violated
Section 5, Rule 110 of the Rules of Criminal Procedure, to wit:
SEC. 5. Who must prosecute criminal actions. All criminal actions commenced by a
complaint or information shall be prosecuted under the direction and control of the
prosecutor.
The above provision states the general rule that the public prosecutor has direction and
control of the prosecution of "(a)ll criminal actions commenced by a complaint or
information." However, a search warrant is obtained, not by the filing of a complaint or
an information, but by the filing of an application therefor. 34
Furthermore, as we held in Malaloan v. Court of Appeals,35 an application for a search
warrant is a "special criminal process," rather than a criminal action:
The basic flaw in this reasoning is in erroneously equating the application for and the
obtention of a search warrant with the institution and prosecution of a criminal action
in a trial court. It would thus categorize what is only a special criminal process, the
power to issue which is inherent in all courts, as equivalent to a criminal action,
jurisdiction over which is reposed in specific courts of indicated competence. It ignores
the fact that the requisites, procedure and purpose for the issuance of a search warrant
are completely different from those for the institution of a criminal action.
For, indeed, a warrant, such as a warrant of arrest or a search warrant, merely
constitutes process. A search warrant is defined in our jurisdiction as an order in
writing issued in the name of the People of the Philippines signed by a judge and
directed to a peace officer, commanding him to search for personal property and bring
it before the court. A search warrant is in the nature of a criminal process akin to a writ
of discovery. It is a special and peculiar remedy, drastic in its nature, and made
necessary because of a public necessity.
In American jurisdictions, from which we have taken our jural concept and provisions
on search warrants, such warrant is definitively considered merely as a process,
generally issued by a court in the exercise of its ancillary jurisdiction, and not a criminal
action to be entertained by a court pursuant to its original jurisdiction. We emphasize
this fact for purposes of both issues as formulated in this opinion, with the catalogue of
authorities herein.36(Emphasis supplied)
Clearly then, an application for a search warrant is not a criminal action. Meanwhile, we
have consistently recognized the right of parties to question orders quashing those
warrants.37 Accordingly, we sustain the CAs ruling that the conformity of the public
prosecutor is not necessary before an aggrieved party moves for reconsideration of an
order granting a motion to quash search warrants.
2. An order quashing a search warrant, which was issued
independently prior to the filing of a criminal action, partakes
of a final order that can be the proper subject of an appeal.
Petitioners also claim that since the RTC ruling on the motions to quash was
interlocutory, it cannot be appealed under Rule 41 of the Rules of Court. PLDT should
have filed a Rule 65 petition instead. Petitioners cite, as authority for their position,
Marcelo v. de Guzman.38 The Court held therein as follows:
But is the order of Judge de Guzman denying the motion to quash the search warrant
and to return the properties seized thereunder final in character, or is it merely
interlocutory? In Cruz vs. Dinglasan, this Court, citing American jurisprudence, resolved
this issue thus:
Where accused in criminal proceeding has petitioned for the return of goods seized, the
order of restoration by an inferior court is interlocutory and hence, not appealable;
likewise, a denial, by the US District Court, of defendant's petition for the return of the
articles seized under a warrant is such an interlocutory order. (56 C.J. 1253).
A final order is defined as one which disposes of the whole subject matter or terminates
a particular proceeding or action, leaving nothing to be done but to enforce by
execution what has been determined; on the other hand an order is interlocutory if it
does not dispose of a case completely, but leaves something more to be done upon its
merits. Tested against this criterion, the search warrant issued in Criminal Case No. 558
is indisputably of interlocutory character because it leaves something more to be done
in the said criminal case, i.e., the determination of the guilt of the accused therein. 39
Petitioners reliance upon Marcelo is misplaced.
An application for a search warrant is a judicial process conducted either as an incident
in a main criminal case already filed in court or in anticipation of one yet to be
filed.40 Whether the criminal case (of which the search warrant is an incident) has
already been filed before the trial court is significant for the purpose of determining the
proper remedy from a grant or denial of a motion to quash a search warrant.
Where the search warrant is issued as an incident in a pending criminal case, as it was
in Marcelo, the quashal of a search warrant is merely interlocutory. There is still
"something more to be done in the said criminal case, i.e., the determination of the guilt
of the accused therein."41
In contrast, where a search warrant is applied for and issued in anticipation of a
criminal case yet to be filed, the order quashing the warrant (and denial of a motion for
reconsideration of the grant) ends the judicial process. There is nothing more to be
done thereafter.
Thus, the CA correctly ruled that Marcelo does not apply to this case. Here, the
applications for search warrants were instituted as principal proceedings and not as
incidents to pending criminal actions. When the search warrants issued were
subsequently quashed by the RTC, there was nothing left to be done by the trial court.
Thus, the quashal of the search warrants were final orders, not interlocutory, and an
appeal may be properly taken therefrom.
II.
Trial judges determine probable cause in the exercise of their judicial functions. A trial
judges finding of probable cause for the issuance of a search warrant is accorded
respect by reviewing courts when the finding has substantial basis.
Petitioners claim that no probable cause existed to justify the issuance of the search
warrants.
The rules pertaining to the issuance of search warrants are enshrined in Section 2,
Article III of the 1987 Constitution:
Section 2. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after examination
under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be seized.
(Emphasis supplied)
In the issuance of a search warrant, probable cause requires "such facts and
circumstances that would lead a reasonably prudent man to believe that an offense has
been committed and the objects sought in connection with that offense are in the place
to be searched."42
There is no exact test for the determination of probable cause 43 in the issuance of
search warrants. It is a matter wholly dependent on the finding of trial judges in the
process of exercising their judicial function.44 They determine probable cause based on
"evidence showing that, more likely than not, a crime has been committed and that it
was committed" by the offender.45
When a finding of probable cause for the issuance of a search warrant is made by a trial
judge, the finding is accorded respect by reviewing courts:
x x x. It is presumed that a judicial function has been regularly performed, absent a
showing to the contrary. A magistrates determination of probable cause for the
issuance of a search warrant is paid great deference by a reviewing court, as long as
there was substantial basis for that determination. Substantial basis means that the
questions of the examining judge brought out such facts and circumstances as would
lead a reasonably discreet and prudent man to believe that an offense has been
committed, and the objects in connection with the offense sought to be seized are in the
place sought to be searched.46
The transcript of stenographic notes during the hearing for the application for search
warrants on 25 September 2001 shows that Judge Percival Mandap Lopez asked
searching questions to the witnesses and particularly sought clarification on the alleged
illegal toll bypass operations of petitioners, as well as the pieces of evidence presented.
Thus, the Court will no longer disturb the finding of probable cause by the trial judge
during the hearing for the application for the search warrants.
However, petitioners insist that the determination of the existence of probable cause
necessitates the prior determination of whether a crime or an offense was committed in
the first place. In support of their contention that there was no probable cause for the
issuance of the search warrants, petitioners put forward the adage nullum crimen, nulla
poena sine lege there is no crime when there is no law punishing it. Petitioners argue
that there is no law punishing toll bypass, the act complained of by PLDT. Thus, no
offense was committed that would justify the issuance of the search warrants.
According to PLDT, toll bypass enables international calls to appear as local calls and
not overseas calls, thus effectively evading payment to the PLDT of access, termination
or bypass charges, and accounting rates; payment to the government of taxes; and
compliance with NTC regulatory requirements. PLDT concludes that toll bypass is
prohibited, because it deprives "legitimate telephone operators, like PLDT of the
compensation which it is entitled to had the call been properly routed through its
network."47 As such, toll bypass operations constitute theft, because all of the elements
of the crime are present therein.
On the other hand, petitioners WWC and Cherryll Yu argue that there is no theft to
speak of, because the properties allegedly taken from PLDT partake of the nature of
"future earnings and lost business opportunities" and, as such, are uncertain,
anticipative, speculative, contingent, and conditional. PLDT cannot be deprived of such
unrealized earnings and opportunities because these do not belong to it in the first
place.
Upon a review of the records of the case, we understand that the Affidavits of Rivera
and Gali that accompanied the applications for the search warrants charge petitioners
with the crime, not of toll bypass perse, but of theft of PLDTs international long
distance call business committed by means of the alleged toll bypass operations.
For theft to be committed in this case, the following elements must be shown to exist:
(1) the taking by petitioners (2) of PLDTs personal property (3) with intent to gain (4)
without the consent of PLDT (5) accomplished without the use of violence against or
intimidation of persons or the use of force upon things. 48
Petitioners WWC and Cherryll Yu only take issue with categorizing the earnings and
business as personal properties of PLDT. However, in Laurel v. Abrogar, 49 we have
already held that the use of PLDTs communications facilities without its consent
constitutes theft of its telephone services and business:
x x x "[I]nternational long distance calls," the matter alleged to be stolen in the instant
case, take the form of electrical energy, it cannot be said that such international long
distance calls were personal properties belonging to PLDT since the latter could not
have acquired ownership over such calls. PLDT merely encodes, augments, enhances,
decodes and transmits said calls using its complex communications infrastructure and
facilities. PLDT not being the owner of said telephone calls, then it could not validly
claim that such telephone calls were taken without its consent.
It is the use of these communications facilities without the consent of PLDT that
constitutes the crime of theft, which is the unlawful taking of the telephone services and
business.
Therefore, the business of providing telecommunication and the telephone service are
personal property under Article 308 of the Revised Penal Code, and the act of engaging
in ISR is an act of "subtraction" penalized under said article. However, the Amended
Information describes the thing taken as, "international long distance calls," and only
later mentions "stealing the business from PLDT" as the manner by which the gain was
derived by the accused. In order to correct this inaccuracy of description, this case must
be remanded to the trial court and the prosecution directed to amend the Amended
Information, to clearly state that the property subject of the theft are the services and
business of respondent PLDT. Parenthetically, this amendment is not necessitated by a
mistake in charging the proper offense, which would have called for the dismissal of the
information under Rule 110, Section 14 and Rule 119, Section 19 of the Revised Rules
on Criminal Procedure. To be sure, the crime is properly designated as one of theft. The
purpose of the amendment is simply to ensure that the accused is fully and sufficiently
apprised of the nature and cause of the charge against him, and thus guaranteed of his
rights under the Constitution. (Emphasis supplied)
In Laurel, we reviewed the existing laws and jurisprudence on the generally accepted
concept of personal property in civil law as "anything susceptible of appropriation." 50 It
includes ownership of telephone services, which are protected by the penal provisions
on theft. We therein upheld the Amended Information charging the petitioner with the
crime of theft against PLDT inasmuch as the allegation was that the former was
engaged in international simple resale (ISR) or "the unauthorized routing and
completing of international long distance calls using lines, cables, antennae, and/or air
wave frequency and connecting these calls directly to the local or domestic exchange
facilities of the country where destined."51 We reasoned that since PLDT encodes,
augments, enhances, decodes and transmits telephone calls using its complex
communications infrastructure and facilities, the use of these communications facilities
without its consent constitutes theft, which is the unlawful taking of telephone services
and business. We then concluded that the business of providing telecommunications
and telephone services is personal property under Article 308 of the Revised Penal
Code, and that the act of engaging in ISR is an act of "subtraction" penalized under said
article.
Furthermore, toll bypass operations could not have been accomplished without the
installation of telecommunications equipment to the PLDT telephone lines. Thus,
petitioners may also be held liable for violation of P.D. 401, to wit:
Section 1. Any person who installs any water, electrical, telephone or piped gas
connection without previous authority from the Metropolitan Waterworks and
Sewerage System, the Manila Electric Company, the Philippine Long Distance Telephone
Company , or the Manila Gas Corporation, as the case may be, tampers and/or uses
tampered water, electrical or gas meters, jumpers or other devices whereby water,
electricity or piped gas is stolen; steals or pilfers water, electric or piped gas meters, or
water, electric and/or telephone wires, or piped gas pipes or conduits; knowingly
possesses stolen or pilfered water, electrical or gas meters as well as stolen or pilfered
water, electrical and/or telephone wires, or piped gas pipes and conduits, shall, upon
conviction, be punished with prision correccional in its minimum period or a fine
ranging from two thousand to six thousand pesos, or both . (Emphasis supplied)
The peculiar circumstances attending the situation compel us to rule further on the
matter of probable cause. During the hearing of the motions to quash the search
warrants, the test calls conducted by witnesses for PLDT were shown to have connected
to the IGF of either Eastern or Capwire to complete the international calls.
A trial judges finding of probable cause may be set aside and the search warrant issued
by him based on his finding may be quashed if the person against whom the warrant is
issued presents clear and convincing evidence that when the police officers and
witnesses testified, they committed a deliberate falsehood or reckless disregard for the
truth on matters that are essential or necessary to a showing of probable cause. 52 In
that case, the finding of probable cause is a nullity, because the trial judge was
intentionally misled by the witnesses.53
On the other hand, innocent and negligent omissions or misrepresentation of witnesses
will not cause the quashal of a search warrant. 54 In this case, the testimonies of Rivera
and Gali that the test calls they conducted did not pass through PLDTs IGF are true.
They neglected, however, to look into the possibility that the test calls may have passed
through other IGFs in the Philippines, which was exactly what happened. Nevertheless,
the witnesses did not commit a deliberate falsehood. Even Planet Internet stated that
the conclusion that the test calls bypassed all IGFs in the country was made "carelessly
and haphazardly."55
On this score, the quashal of the search warrants is not in order. It must be noted that
the trial judge did not quash the warrants in this case based on lack of probable cause.
Instead, the issue before us is whether the CA erred in reversing the RTC, which ruled
that the search warrants are general warrants.
III. The requirement of particularity in the description of things to be seized is fulfilled
when the items described in the search warrant bear a direct relation to the offense for
which the warrant is sought.
Petitioners claim that the subject search warrants were in the nature of general
warrants because the descriptions therein of the objects to be seized are so broad and
all-encompassing as to give the implementing officers wide discretion over which
articles to seize. In fact, the CA observed that the targets of the search warrants were
not illegal per se, and that they were "innocuous goods." Thus, the police officers were
given blanket authority to determine whether the objects were legal or not, as in fact
even pieces of computer equipment not involved in telecommunications or Internet
service were confiscated.
On the other hand, PLDT claims that a search warrant already fulfills the requirement of
particularity of description when it is as specific as the circumstances will ordinarily
allow.56 Furthermore, it cites Kho v. Makalintal,57 in which the Court allowed leeway in
the description of things to be seized, taking into consideration the effort and the time
element involved in the prosecution of criminal cases.
The Office of the Solicitor General (OSG), in its Comment58 filed with the CA, likewise
prayed for the reversal of the quashal of the search warrants in view of the OSGs
position that the scheme was a case of electronic theft, and that the items sought to be
seized could not be described with calibrated precision. According to the OSG, assuming
that the seized items could also be used for other legitimate businesses, the fact
remains that the items were used in the commission of an offense.
A general warrant is defined as "(a) search or arrest warrant that is not particular as to
the person to be arrested or the property to be seized."59 It is one that allows the
"seizure of one thing under a warrant describing another" and gives the officer
executing the warrant the discretion over which items to take. 60
Such discretion is abhorrent, as it makes the person, against whom the warrant is
issued, vulnerable to abuses.1wphi1Our Constitution guarantees our right against
unreasonable searches and seizures, and safeguards have been put in place to ensure
that people and their properties are searched only for the most compelling and lawful
reasons.
Section 2, Article III of the 1987 Constitution provides:
Sec. 2. The right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures of whatever nature and for any purpose
shall be inviolable, and no such 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.In furtherance of this constitutional provision, Sections 3 and 4, Rule 126 of the
Rules of Court, amplify the rules regarding the following places and items to be
searched under a search warrant:
SEC. 3. Personal property to be seized. A search warrant may be issued for the search
and seizure of personal property:
a) Subject of the offense;
b) Stolen or embezzled and other proceeds, or fruits of the offense; or
c) Used or intended to be used as the means of committing an offense.
SEC. 4. Requisites for issuing search warrant. A search warrant shall not issue except
upon probable cause in connection with one specific offense to be determined
personally by the judge after examination under oath or affirmation of the complainant
and the witnesses he may produce, and particularly describing the place to be searched
and the things to be seized which may be anywhere in the Philippines.
Within the context of the above legal requirements for valid search warrants, the Court
has been mindful of the difficulty faced by law enforcement officers in describing the
items to be searched, especially when these items are technical in nature, and when the
extent of the illegal operation is largely unknown to them. Vallejo v. Court of
Appeals61 ruled as follows:
The things to be seized must be described with particularity. Technical precision of
description is not required. It is only necessary that there be reasonable particularity
and certainty as to the identity of the property to be searched for and seized, so that the
warrant shall not be a mere roving commission. Indeed, the law does not require that
the things to be seized must be described in precise and minute detail as to leave no
room for doubt on the part of the searching authorities. If this were the rule, it would be
virtually impossible for the applicants to obtain a warrant as they would not know
exactly what kind of things to look for. Any description of the place or thing to be
searched that will enable the officer making the search with reasonable certainty to
locate such place or thing is sufficient. (Emphasis supplied)
Furthermore, the Court also had occasion to rule that the particularity of the
description of the place to be searched and the things to be seized is required
"wherever and whenever it is feasible."62 A search warrant need not describe the items
to be seized in precise and minute detail.63 The warrant is valid when it enables the
police officers to readily identify the properties to be seized and leaves them with no
discretion regarding the articles to be seized.64
In this case, considering that items that looked like "innocuous goods" were being used
to pursue an illegal operation that amounts to theft, law enforcement officers would be
hard put to secure a search warrant if they were required to pinpoint items with one
hundred percent precision. In
People v. Veloso, we pronounced that "[t]he police should not be hindered in the
performance of their duties, which are difficult enough of performance under the best
of conditions, by superficial adherence to technicality or far-fetched judicial
interference."65
A search warrant fulfills the requirement of particularity in the description of the things
to be seized when the things described are limited to those that bear a direct relation to
the offense for which the warrant is being issued.66
To our mind, PLDT was able to establish the connection between the items to be
searched as identified in the warrants and the crime of theft of its telephone services
and business. Prior to the application for the search warrants, Rivera conducted ocular
inspection of the premises of petitioners a d was then able to confirm that they had
utilized various telecommunications equipment consisting of computers, lines, cables,
antennas, modems, or routers, multiplexers, PABX or switching equipment, a d support
equipment such as software, diskettes, tapes, manuals and other documentary records
to support the illegal toll bypass operations."67
In HPS Software and Communication Corp. v. PLDT, 68 we upheld a s milady
worded69 description of items to be seized by virtue of the search warrants, because
these items had been sufficiently identified physically and s own to bear a relation to
the offenses charged. WHEREFORE, the petitions are DENIED. The Court of Appeals
decision dated 20 August 2003 and Resolution dated 27 November 2003 in CA-G.R. CR
No. 26190 are AFFIRMED. SO ORDERED.
G.R. No. 196842 October 9, 2013
ALFREDO ROMULO A. BUSUEGO, Petitioner,
vs.
OFFICE OF THE OMBUDSMAN MINDANAO and ROSA S. BUSUEGO, Respondents.
DECISION
PEREZ, J.:
Before us is a petition for certiorari seeking to annul and set aside the Resolution of the
Ombudsman dated 17 April 20091 and Order dated October 2010,2 which directed the
tiling of an Information for Concubinage under Article 334 of the Revised Penal Code
against petitioner Alfredo Romulo A. Busuego (Alfredo).
We chronicle the facts thus.
Private respondent Rosa S. Busuego (Rosa) filed a complaint for: (1) Concubinage under
Article 334 of the Revised Penal Code; (2) violation of Republic Act No. 9262 (Anti-
Violence Against Women and Their Children); and (3) Grave Threats under Article 282
of the Revised Penal Code, before the Office of the Ombudsman against her husband,
Alfredo, with designation Chief of Hospital, Davao Regional Hospital, Apokon, Tagum
City.
In her complaint, Rosa painted a picture of a marriage in disarray.
She and Alfredo were married on 12 July 1975 at the Assumption Church, Davao City.
Their union was blessed with two (2) sons, Alfred and Robert, born in 1976 and 1978,
respectively. Sometime in 1983, their marriage turned sour. At this time, Rosa
unearthed photographs of, and love letters addressed to Alfredo from, other women.
Rosa confronted Alfredo who claimed ignorance of the existence of these letters and
innocence of any wrongdoing.
Purportedly, Alfredo very rarely stayed at home to spend time with his family. He would
come home late at night on weekdays and head early to work the next day; his
weekends were spent with his friends, instead of with his family. Rosa considered
herself lucky if their family was able to spend a solid hour with Alfredo.
Around this time, an opportunity to work as nurse in New York City, United States of
America (US) opened up for Rosa. Rosa informed Alfredo, who vehemently opposed
Rosas plan to work abroad. Nonetheless, Rosa completed the necessary requirements
to work in the US and was scheduled to depart the Philippines in March 1985.
Before leaving, Rosa took up the matter again with Alfredo, who remained opposed to
her working abroad. Furious with Rosas pressing, Alfredo took his loaded gun and
pointed it at Rosas right temple, threatening and taunting Rosa to attempt to leave him
and their family. Alfredo was only staved off because Rosas mother arrived at the
couples house. Alfredo left the house in a rage: Rosa and her mother heard gun shots
fired outside.
Because of that incident, Rosa acted up to her plan and left for the US. While in the US,
Rosa became homesick and was subsequently joined by her children who were brought
to the US by Alfredo. Rosa singularly reared them: Alfred, from grade school to
university, while Robert, upon finishing high school, went back to Davao City to study
medicine and lived with Alfredo.
During that time his entire family was in the US, Alfredo never sent financial support. In
fact, it was Rosa who would remit money to Alfredo from time to time, believing that
Alfredo had stopped womanizing. Rosa continued to spend her annual vacation in
Davao City.
Sometime in 1997, Rosa learned that a certain Emy Sia (Sia) was living at their conjugal
home. When Rosa asked Alfredo, the latter explained that Sia was a nurse working at
the Regional Hospital in Tagum who was in a sorry plight as she was allegedly being
raped by Rosas brother-in-law. To get her out of the situation, Alfredo allowed Sia to
live in their house and sleep in the maids quarters. At that time, Rosa gave Alfredo the
benefit of the doubt.
In October 2005, Rosa finally learned of Alfredos extra-marital relationships. Robert,
who was already living in Davao City, called Rosa to complain of Alfredos illicit affairs
and shabby treatment of him. Rosa then rang up Alfredo which, not surprisingly,
resulted in an altercation. Robert executed an affidavit, corroborating his mothers story
and confirming his fathers illicit affairs:
1. In varying dates from July 1997 to January 1998, Robert found it strange that
Sia slept with his father in the conjugal bedroom.
2. He did not inform his mother of that odd arrangement as he did not want to
bring trouble to their family.
3. Eventually, Sia herself confirmed to Robert that she was Alfredos mistress.
4. During this period of concubinage, Sia was hospitalized and upon her
discharge, she and Alfredo resumed their cohabitation.
5. The relationship between Alfredo and Sia ended only when the latter found
another boyfriend. 6. His father next took up an affair with Julie de Leon (de
Leon) whom Robert met when de Leon fetched Alfredo on one occasion when
their vehicle broke down in the middle of the road.
7. Robert read various Short Message Service (SMS) exchanges between Julie
and Alfredo on Alfredos mobile phone.
8. On 23, 24, 30 and 31 December 2004, de Leon stayed in Rosas and Alfredos
conjugal dwelling and stayed in the conjugal room the entire nights thereof.
The househelpers, Melissa S. Diambangan and Liza S. Diambangan, likewise executed a
joint affidavit in support of Rosas allegations:
1. They had seen Sia sleep and stay overnight with Alfredo in the conjugal
bedroom.
2. Sia herself, who called Alfredo "Papa," confirmed the twos sexual
relationship.
3. On 23, 24, 30 and 31 December 2004, de Leon stayed in the conjugal
dwelling and slept overnight with Alfredo in the conjugal room.
As a result, Rosa and their other son Alfred forthwith flew to Davao City without
informing Alfredo of their impending return. Upon Rosas return, she gathered and
consolidated information on her husbands sexual affairs.
Pursuant to her charges of violation of Republic Act No. 9262 and Grave Threats, Rosa
averred that during the course of their marriage, apart from the marital infidelity,
Alfredo physically and verbally abused her and her family. On one occasion after Rosa
confirmed the affairs, Alfredo threatened their family, including other members of their
household that he will gun them down should he chance upon them in Tagum City.
Lastly, on 22 March 2006, Alfredo purportedly dismissed house helper Liza
Diambangan and threatened her.
As expected, Alfredo, in his counter-affidavit, denied all accusations against him and
alleged that:
1. Rosa, despite his pleas for them to remain and raise their family in the
Philippines, chose to live in the US, separate from him.
2. Rosas allegations that he had kept photographs of, and love letters from,
other women, were only made to create a cause of action for the suit for Legal
Separation which Rosa filed sometime in 1998.
3. It was highly improbable that he committed acts of concubinage with Sia and
de Leon since from the time he became Chief of Hospital of the Davao Regional
Hospital in Tagum City, he practically stayed all days of the work week in the
hospital. The instances he went home were few and far between, only to check
on the house and provide for household expenses.
4. When Robert returned to Davao City and lived with him, it became more
impossible for him to have shacked up with Sia and de Leon in the conjugal
dwelling.
5. With respect to his alleged relationship with Sia, without admitting to
anything, that Sia, for a time, may have lived in his and Rosas conjugal house,
staying at the maids quarters. However, at no instance did he keep Sia as his
mistress in the conjugal dwelling.
6. As regards the dates of December 23, 24, 30 and 31, 2004 when he
supposedly stayed with de Leon in the conjugal room, Alfredo pointed out that
said dates were busiest days of the year in the hospital where his presence as
Chief of Hospital is most required.
7. By Rosas own admission, she first learned of Alfredos alleged concubinage
in 1997, and yet she still continued with her yearly visits to Alfredo in Davao
City. Those instances ought to be construed as condonation of the concubinage.
8. Significantly, the alleged concubines, Sia and de Leon, were not impleaded
along with Alfredo as party-respondents in the complaint in violation of Article
344 of the Revised Penal Code.
Alfredo made short shrift of Rosas charges of violation of Republic Act No. 9262 and
Grave Threats. He claimed that, at no time, did he threaten, the lives or, to harm his wife,
their family and members of their household. He only berated the help for perpetrating
gossip about his behavior and conduct.
In their subsequent exchange of responsive pleadings, Rosa maintained Alfredos
culpability, and naturally, Alfredo claimed innocence.
In the course thereof, the procedural issue of Rosas failure to implead Sia and de Leon
as respondents cropped up. Alfredo insisted that Rosas complaint ought to be
dismissed for failure to implead his alleged concubines as respondents.
Specifically to dispose of that issue, the Ombudsman scheduled a clarificatory hearing
where both Rosa and Alfredo were represented by their respective counsels:
x x x Rosa was apprised of the need to implead the two alleged mistresses in the
complaint for Concubinage pursuant to Article 344 of the Revised Penal Code. Although
Alfredo objected to the amendment of the complaint, at this point in time, due to the
alleged procedural lapse committed by Rosa, this Office explained to the parties that the
position of Alfredo would just prolong the conduct of the preliminary investigation
since Rosa can just re-file her complaint. The doctrine of res judicata does not apply in
the preliminary investigation stage. Hence, the counsel for Rosa was directed to submit
to this Office the addresses of the alleged mistresses so that they could be served with
the Order directing them to file their counter-affidavits.
Rosa submitted an Ex-Parte Manifestation on the last known addresses of Julie de Leon
and Emy Sia. x x x.3
On 24 June 2008, the Ombudsman issued a Joint Order4 impleading Sia and de Leon as
party-respondents in the complaint for Concubinage and directing them to submit their
respective counter-affidavits within a period of time. Copies of the Joint Order were
mailed to Sias and de Leons last known addresses, as provided by Rosa to the
Ombudsman.
Sia and de Leon did not submit their respective counter-affidavits: a copy of the Joint
Order sent to Sias last known address was returned to the Ombudsman with the
notation on the Registry Return Receipt No. 1624 "Return to Sender; removed," while a
copy thereof to de Leon was received on 3 September 2008 by Ananias de Leon. 5
Apparently still opposed to the Ombudsmans ruling to simply amend the complaint
and implead therein Alfredos alleged mistresses, Alfredo filed his Comment to the 24
June 2008 Order with Motion to Dismiss and/or Refer the charges to the Appropriate
Provincial/City Prosecutor6 praying for dismissal of the complaint for: (1) failure to
implead the two mistresses in violation of Article 344 of the Revised Penal Code; and in
the alternative, (2) referral of the complaint to the Office of the City Prosecutor as
provided in OMB-DOJ Circular No. 95-001.
Rosa filed a Reply to that latest pleading of Alfredo.
On 17 April 2009, the Ombudsman issued the herein assailed Resolution, disposing of
the procedural issues:
Before dwelling into the merits of the case, this Office finds an urgent need to resolve
the ancillary issues raised by petitioner Dr. Busuego on: 1.) the alleged legal infirmity of
Rosass initiatory pleading by resorting to a procedural short cut which would result to
the delay in the disposition of this case; and 2.) the criminal charges imputed are not in
relation to office, hence, the Office of the Provincial/City Prosecutor shall investigate
and prosecute this case pursuant to OMB-DOJ Joint Circular No. 95-001, Series of 1995.
On the first issue, this Office observed that Busuego had already pointed out in his
counter-Affidavit the alleged deficiency in the complaint. Rosa also explained in her
Reply that the names of the mistresses were categorically mentioned in the complaint.
She averred that this Office is empowered to investigate and prosecute any act or
omission of a public official or employee to the exclusion of non-government
employees. She stated that the inclusion of the alleged concubines in the Information to
be filed in court is a matter of procedure, within the competence of the investigating
prosecutor.
In order to clarify some matters, including the said issue, with the parties, the
clarificatory hearing was conducted. It was explained in the said hearing the need to
implead the alleged concubines in this case pursuant to Article 344 of the Revised Penal
Code and to obviate the proceedings, Rosa was directed to submit the addresses of the
alleged concubines. Busuegos position that the said short cut procedure would delay
the proceedings is misplaced. If the case will be dismissed based on procedural
infirmity, Rosa could still amend her complaint and re-file this case since the doctrine of
res judicata does not apply in the preliminary investigation stage of the proceedings.
On the second issue, the motion of Busuego to refer this case to the Office of the City
Prosecutor was belatedly filed. Record would show that the motion praying for the
referral of this case to the Office of the City Prosecutor was filed on 17 July 2008, after
the parties have already filed all their pleadings and the case is now ripe for resolution.
Further, referral to the said office is not mandatory as cited in the said Joint Circular. 7
In the same Resolution, the Ombudsman, ultimately, found probable cause to indict only
Alfredo and Sia of Concubinage and directed the filing of an Information against them in
the appropriate court:
WHEREFORE, in view of the foregoing, this Office finds a prima facie case for violation
of Article 334 of the Revised Penal Code (concubinage) and that petitioner ALFREDO
ROMULO BUSUEGO y ABRIO, and EMY SIA, are probably guilty thereof.
Let the herewith Information be filed in the appropriate court.
The charges for: 1.) Concubinage against Alfredo Romulo Busuego y Abrio and Julie de
Leon; 2.) Grave Threats against Alfredo Romulo y Abrio; and 3.) violation of RA 9262
(Anti-Violence Against Women and Children Act), are hereby DISMISSED for lack of
merit.8
Alfredo filed a Partial Motion for Reconsideration excepting to the Ombudsmans ruling
on the automatic inclusion of Sia as respondent in the complaint and their indictment
for the crime of Concubinage. Alfredo is adamant that Rosas complaint should have, at
the outset, impleaded his alleged concubines. Failing such, the Ombudsman cannot
resort to automatic inclusion of party-respondents, erroneously finding him and Sia
prima facie culpable for Concubinage. For good measure, Alfredo pointed out that from
Rosas own allegations, she had condoned or pardoned Alfredos supposed
concubinage. Alfredo likewise submitted Liza S. Diambangans affidavit, recanting her
previous affidavit corroborating Rosas charges.
Nonetheless, the Ombudsman stood pat on its ruling, declared that the Partial Motion
for Reconsideration was filed out of time, and gave scant attention to Liza S.
Diambangans affidavit of recantation:
WHEREFORE, all the foregoing considered, this instant Motion for Reconsideration is
hereby DENIED. The findings in the questioned Resolution hereby remains
undisturbed. Let the Information for Concubinage be filed in the proper court against
herein Busuego.9
Alfredo now comes to us on petition for certiorari alleging grave abuse of discretion in
the Ombudsmans finding of probable cause to indict him and Sia for Concubinage.
Alfredos badges of grave abuse of discretion are the following:
1. The Ombudsman railroaded the inclusion of Sia and de Leon as party-
respondents in the complaint;
2. The Ombudsman did not refer the complaint to the Department of Justice,
considering that the offense of Concubinage is not committed in relation to his
office as Chief of Hospital;
3. The Ombudsman glossed over Rosas condonation of Alfredos supposed
Concubinage when she alleged in the complaint that she had known of
Alfredos womanizing and believed him to have changed his ways;
4. The Ombudsman did not take into consideration the affidavit of recantation
of Liza Diambangan; and
5. The Ombudsman found probable cause to indict Alfredo and Sia for
Concubinage.
We sustain the Ombudsman.
The Ombudsman has full discretionary authority in the determination of probable
cause during a preliminary investigation.10 This is the reason why judicial review of the
resolution of the Ombudsman in the exercise of its power and duty to investigate and
prosecute felonies and/or offenses of public officers is limited to a determination of
whether there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction. Courts are not empowered to substitute their judgment for that of the
Ombudsman.11
By grave abuse of discretion is meant such capricious and whimsical exercise of
judgment tantamount to lack of jurisdiction.12 The abuse of discretion must be so patent
and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a
duty enjoined by law, 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 hostility. 13 In this
regard, petitioner failed to demonstrate the Ombudsman's abuse, much less grave
abuse, of discretion.
First. Alfredo insists that the Ombudsmans automatic inclusion, over his vehement
objections of Sia and de Leon as party-respondents, violates Article 344 of the Revised
Penal Code and Section 5, Rule 110 of the Rules of Court, which respectively provide:
Art. 344. Prosecution of the crimes of adultery, concubinage, seduction, abduction, rape
and acts of lasciviousness. The crimes of adultery and concubinage shall not be
prosecuted except upon a complaint filed by the offended spouse.
The offended party cannot institute criminal prosecution without including both the
guilty parties, if they are both alive, nor, in any case, if he shall have consented or
pardoned the offenders.
Section 5. Who must prosecute criminal action. xxx.
The crimes of adultery and concubinage shall not be prosecuted except upon a
complaint filed by the offended spouse. The offended party cannot institute criminal
prosecution without including the guilty parties, if both are alive, nor, in any case, if the
offended party has consented to the offense or pardoned the offenders.
We do not agree.
The submission of Alfredo is belied by the fact that the Ombudsman merely followed
the provisions of its Rules of Procedure. Thus:
Rule II
PROCEDURE IN CRIMINAL CASES
xxxx
Section 2. Evaluation Upon evaluating the complaint, the investigating officer shall
recommend whether it may be:
a) dismissed outright for want of palpable merit;
 b) referred to respondent for comment;
c) indorsed to the proper government office or agency which has jurisdiction
over the case;
d) forwarded to the appropriate office or official for fact-finding investigation;
e) referred for administrative adjudication; or
f) subjected to a preliminary investigation.
xxxx
Section 4. Procedure The preliminary investigation of cases falling under the
jurisdiction of the Sandiganbayan and Regional Trial Courts shall be conducted in the
manner prescribed in Section 3, Rule 112 of the Rules of Court, subject to the following
provisions:
a) x x x
b) After such affidavits have been secured, the investigating officer shall issue
an order, attaching thereto a copy of the affidavits and other supporting
documents, directing the respondents to submit, within ten (10) days from
receipt thereof, his counter-affidavits and controverting evidence with proof of
service thereof on the complainant. The complainant may file reply affidavits
within ten (10) days after service of the counter-affidavits.
c) If the respondents does not file a counter-affidavit, the investigating officer
may consider the comment filed by him, if any, as his answer to the complaint.
In any event, the respondent shall have access to the evidence on record.
d) No motion to dismiss shall be allowed except for lack of jurisdiction.
Neither may a motion for a bill of particulars be entertained.
If respondent desires any matter in the complainants affidavit to be clarified,
the particularization thereof may be done at the time of the clarificatory
questioning in the manner provided in paragraph (f) of this section.
e) If the respondents cannot be served with the order mentioned in paragraph
6 hereof, or having been served, does not comply therewith, the complaint shall
be deemed submitted for resolution on the basis of the evidence on the record.
f) If, after the filing of the requisite affidavits and their supporting evidences,
there are facts material to the case which the investigating officer may need to
be clarified on, he may conduct a clarificatory hearing during which the parties
shall be afforded the opportunity to be present but without the right to
examine or cross-examine the witness being questioned. Where the
appearance of the parties or witnesses is impracticable, the clarificatory
questioning may be conducted in writing, whereby the questions desired to be
asked by the investigating officer or a party shall be reduced into writing and
served on the witness concerned who shall be required to answer the same in
writing and under oath.
g) Upon the termination of the preliminary investigation, the investigating
officer shall forward the records of the case together with his resolution to the
designated authorities for their appropriate action thereon.
No information may be filed and no complaint may be dismissed without the written
authority or approval of the ombudsman in cases falling within the jurisdiction of the
Sandiganbyan, or of the proper Deputy Ombudsman in all other cases. (Emphasis
supplied).
Notably, Rosas complaint contained not just the Concubinage charge, but other
charges: violation of Republic Act No. 9262 and Grave Threats. Upon the Ombudsmans
perusal, the complaint was supported by affidavits corroborating Rosas accusations.
Thus, at that stage, the Ombudsman properly referred the complaint to Alfredo for
comment. Nonetheless, while the Ombudsman found no reason for outright dismissal, it
deemed it fit to hold a clarificatory hearing to discuss the applicability of Article 344 of
the Revised Penal Code, the issue having been insisted upon by Alfredo.
Surely the procedural sequence of referral of the complaint to respondent for comment
and thereafter the holding of a clarificatory hearing is provided for in paragraph b,
Section 2 and paragraphs d and f, Section 4 of Rule II, which we have at the outset
underscored. Thus did the Ombudsman rule:
In order to clarify some matters, including the said issue, with the parties, the
clarificatory hearing was conducted. It was explained in the said hearing the need to
implead the alleged concubines in this case pursuant to Article 344 of the Revised Penal
Code and to obviate the proceedings, Rosa was directed to submit the addresses of the
alleged concubines. Busuegos position that the said short cut procedure would delay
the proceedings is misplaced. If the case will be dismissed based on procedural
infirmity, Rosa could still amend her complaint and re-file this case since the doctrine of
res judicata does not apply in the preliminary investigation stage of the proceedings. 14
The Ombudsman merely facilitated the amendment of the complaint to cure the defect
pointed out by Alfredo. We agree with the Ombudsman that it would be superfluous to
dismiss the complaint when amendment thereof is allowed by its Rules of
Procedure15 and the Rules of Court.16
Second. Alfredo claims that the Ombudsman should have referred Rosas complaint to
the Department of Justice (DOJ), since the crime of Concubinage is not committed in
relation to his being a public officer. This is not a new argument.
The Ombudsmans primary jurisdiction, albeit concurrent with the DOJ, to conduct
preliminary investigation of crimes involving public officers, without regard to its
commission in relation to office, had long been settled in Sen. Honasan II v. The Panel of
Investigating Prosecutors of DOJ,17 and affirmed in subsequent cases:
The Constitution, Section 15 of the Ombudsman Act of 1989 and Section 4 of the
Sandiganbayan Law, as amended, do not give to the Ombudsman exclusive jurisdiction
to investigate offenses committed by public officers or employees. The authority of the
Ombudsman to investigate offenses involving public officers or employees is concurrent
with other government investigating agencies such as provincial, city and state
prosecutors. However, the Ombudsman, in the exercise of its primary jurisdiction over
cases cognizable by the Sandiganbayan, may take over, at any stage, from any
investigating agency of the government, the investigation of such cases.
In other words, respondent DOJ Panel is not precluded from conducting any
investigation of cases against public officers involving violations of penal laws but if the
cases fall under the exclusive jurisdiction of the Sandiganbayan, the respondent
Ombudsman may, in the exercise of its primary jurisdiction take over at any stage.
Thus, with the jurisprudential declarations that the Ombudsman and the DOJ have
concurrent jurisdiction to conduct preliminary investigation, the respective heads of
said offices came up with OMB-DOJ Joint Circular No. 95-001 for the proper guidelines
of their respective prosecutors in the conduct of their investigations, to wit:
OMB-DOJ JOINT CIRCULAR NO. 95-001
Series of 1995
ALL GRAFT INVESTIGATION/SPECIAL PROSECUTIONOFFICERS OF THE OFFICE OF
THE OMBUDSMAN
TO: ALL REGIONAL STATE PROSECUTORS AND THEIR ASSISTANTS, PROVINCIAL/CITY
PROSECUTORS AND THEIR ASSISTANTS, STATE PROSECUTORS ANDPROSECUTING
ATTORNEYS OF THE DEPARTMENT OFJUSTICE.
SUBJECT: HANDLING COMPLAINTS FILED AGAINST PUBLICOFFICERS AND
EMPLOYEES, THE CONDUCT OFPRELIMINARY INVESTIGATION, PREPARATION
OFRESOLUTIONS AND INFORMATIONS AND PROSECUTION OF CASES BY PROVINCIAL
AND CITY PROSECUTORS AND THEIR ASSISTANTS.
x---------------------------------------------------------------------------------------x
In a recent dialogue between the OFFICE OF THE OMBUDSMAN and the DEPARTMENT
OF JUSTICE, discussion centered around the latest pronouncement of the SUPREME
COURT on the extent to which the OMBUDSMAN may call upon the government
prosecutors for assistance in the investigation and prosecution of criminal cases
cognizable by his office and the conditions under which he may do so. Also discussed
was Republic Act No. 7975 otherwise known as "AN ACT TO STRENGTHEN THE
FUNCTIONAL AND STRUCTURAL ORGANIZATION OF THE SANDIGANBAYAN,
AMENDING FOR THE PURPOSE PRESIDENTIAL DECREE NO. 1606, AS AMENDED" and
its implications on the jurisdiction of the office of the Ombudsman on criminal offenses
committed by public officers and employees.
Concerns were expressed on unnecessary delays that could be caused by discussions on
jurisdiction between the OFFICE OF THE OMBUDSMAN and the DEPARTMENT OF
JUSTICE, and by procedural conflicts in the filing of complaints against public officers
and employees, the conduct of preliminary investigations, the preparation of
resolutions and informations, and the prosecution of cases by provincial and city
prosecutors and their assistants as DEPUTIZED PROSECUTORS OF THE OMBUDSMAN.
Recognizing the concerns, the OFFICE OF THE OMBUDSMAN and the DEPARTMENT OF
JUSTICE, in a series of consultations, have agreed on the following guidelines to be
observed in the investigation and prosecution of cases against public officers and
employees:
1. Preliminary investigation and prosecution of offenses committed by public
officers and employees IN RELATION TO OFFICE whether cognizable by the
SANDIGANBAYAN or the REGULAR COURTS, and whether filed with the OFFICE
OF THE OMBUDSMAN or with the OFFICE OF THE PROVINCIAL/CITY
PROSECUTOR shall be under the control and supervision of the office of the
OMBUDSMAN.
2. Unless the Ombudsman under its Constitutional mandate finds reason to
believe otherwise, offenses NOT IN RELATION TO OFFICE and cognizable by
the REGULAR COURTS shall be investigated and prosecuted by the OFFICE OF
THE PROVINCIAL/CITY PROSECUTOR, which shall rule thereon with finality.
 3. Preparation of criminal information shall be the responsibility of the
investigating officer who conducted the preliminary investigation. Resolutions
recommending prosecution together with the duly accomplished criminal
informations shall be forwarded to the appropriate approving authority.
4. Considering that the OFFICE OF THE OMBUDSMAN has jurisdiction over
public officers and employees and for effective monitoring of all investigations
and prosecutions of cases involving public officers and employees, the OFFICE
OF THE PROVINCIAL/CITY PROSECUTOR shall submit to the OFFICE OF THE
OMBUDSMAN a monthly list of complaints filed with their respective offices
against public officers and employees.
xxxx
A close examination of the circular supports the view of the respondent Ombudsman
that it is just an internal agreement between the Ombudsman and the DOJ.
Sections 2 and 4, Rule 112 of the Revised Rules on Criminal Procedure on Preliminary
Investigation, effective December 1, 2000, to wit:
SEC. 2. Officers authorized to conduct preliminary investigations
The following may conduct preliminary investigations:
(a) Provincial or City Prosecutors and their assistants;
(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts;
(c) National and Regional State Prosecutors; and
(d) Other officers as may be authorized by law.
Their authority to conduct preliminary investigation shall include all crimes cognizable
by the proper court in their respective territorial jurisdictions.
SEC. 4. Resolution of investigating prosecutor and its review. - If the investigating
prosecutor finds cause to hold the respondent for trial, he shall prepare the resolution
and information. He shall certify under oath in the information that he, or as shown by
the record, an authorized officer, has personally examined the complainant and his
witnesses; that there is reasonable ground to believe that a crime has been committed
and that the accused is probably guilty thereof; that the accused was informed of the
complaint and of the evidence submitted against him; and that he was given an
opportunity to submit controverting evidence. Otherwise, he shall recommend the
dismissal of the complaint.
Within five (5) days from his resolution, he shall forward the record of the case to the
provincial or city prosecutor or chief state prosecutor, or to the Ombudsman or his
deputy in cases of offenses cognizable by the Sandiganbayan in the exercise of its
original jurisdiction. They shall act on the resolution within ten (10) days from their
receipt thereof and shall immediately inform the parties of such action.
No complaint or information may be filed or dismissed by an investigating prosecutor
without the prior written authority or approval of the provincial or city prosecutor or
chief state prosecutor or the Ombudsman or his deputy.
Where the investigating prosecutor recommends the dismissal of the complaint but his
recommendation is disapproved by the provincial or city prosecutor or chief state
prosecutor or the Ombudsman or his deputy on the ground that a probable cause exists,
the latter may, by himself file the information against the respondent, or direct another
assistant prosecutor or state prosecutor to do so without conducting another
preliminary investigation.
If upon petition by a proper party under such rules as the Department of Justice may
prescribe or motu proprio, the Secretary of Justice reverses or modifies the resolution
of the provincial or city prosecutor or chief state prosecutor, he shall direct the
prosecutor concerned either to file the corresponding information without conducting
another preliminary investigation, or to dismiss or move for dismissal of the complaint
or information with notice to the parties. The same Rule shall apply in preliminary
investigations conducted by the officers of the Office of the Ombudsman.
confirm the authority of the DOJ prosecutors to conduct preliminary investigation of
criminal complaints filed with them for offenses cognizable by the proper court within
their respective territorial jurisdictions, including those offenses which come within the
original jurisdiction of the Sandiganbayan; but with the qualification that in offenses
falling within the original jurisdiction of the Sandiganbayan, the prosecutor shall, after
their investigation, transmit the records and their resolutions to the Ombudsman or his
deputy for appropriate action. Also, the prosecutor cannot dismiss the complaint
without the prior written authority of the Ombudsman or his deputy, nor can the
prosecutor file an Information with the Sandiganbayan without being deputized by, and
without prior written authority of the Ombudsman or his deputy.
xxxx
To reiterate for emphasis, the power to investigate or conduct preliminary investigation
on charges against any public officers or employees may be exercised by an investigator
or by any provincial or city prosecutor or their assistants, either in their regular
capacities or as deputized Ombudsman prosecutors. The fact that all prosecutors are in
effect deputized Ombudsman prosecutors under the OMB-DOJ circular is a mere
superfluity. The DOJ Panel need not be authorized nor deputized by the Ombudsman to
conduct the preliminary investigation for complaints filed with it because the DOJs
authority to act as the principal law agency of the government and investigate the
commission of crimes under the Revised Penal Code is derived from the Revised
Administrative Code which had been held in the Natividad case citation omitted as not
being contrary to the Constitution. Thus, there is not even a need to delegate the
conduct of the preliminary investigation to an agency which has the jurisdiction to do
so in the first place. However, the Ombudsman may assert its primary jurisdiction at
any stage of the investigation. (Emphasis supplied).
In Honasan II, although Senator Gregorio "Gringo" Honasan was a public officer who
was charged with coup detat for the occupation of Oakwood on 27 July 2003, the
preliminary investigation therefor was conducted by the DOJ. Honasan questioned the
jurisdiction of the DOJ to do so, proferring that it was the Ombudsman which had
jurisdiction since the imputed acts were committed in relation to his public office. We
clarified that the DOJ and the Ombudsman have concurrent jurisdiction to investigate
offenses involving public officers or employees. Nonetheless, we pointed out that the
Ombudsman, in the exercise of its primary jurisdiction over cases cognizable by the
Sandiganbayan, may take over, at any stage, from any investigating agency of the
government, the investigation of such cases. Plainly, applying that ruling in this case, the
Ombudsman has primary jurisdiction, albeit concurrent with the DOJ, over Rosas
complaint, and after choosing to exercise such jurisdiction, need not defer to the
dictates of a respondent in a complaint, such as Alfredo. In other words, the
Ombudsman may exercise jurisdiction to the exclusion of the DOJ.
Third. Alfredo next argues that Rosa had pardoned his concubinage, having admitted to
knowing of his womanizing and yet continuing with their relationship as demonstrated
in Rosas annual visits to him in Davao City.
We are not convinced.
Old jurisprudence has held that the cynosure in the question of whether the wife
condoned the concubinage lies in the wifes "line of conduct under the assumption that
she really believed [her husband] guilty of concubinage:"
Condonation is the forgiveness of a marital offense constituting a ground for legal
separation or, as stated in I Bouver's Law Dictionary, p. 585, condonation is the
conditional forgiveness or remission, by a husband or wife of a matrimonial offense
which the latter has committed.
xxxx
A detailed examination of the testimony of the plaintiff-husband, especially those
portions quoted above, clearly shows that there was a condonation on the part of the
husband for the supposed acts of rank infidelity amounting to adultery committed by
defendant-wife. Admitting for the sake of argument that the infidelities amounting to
adultery were committed by the defendant, a reconciliation was effected between her
and the plaintiff. The act of the latter in persuading her to come along with him, and the
fact that she went with him and consented to be brought to the house of his cousin
Pedro Bugayong and together they slept there as husband and wife for one day and one
night, and the further fact that in the second night they again slept together in their
house likewise as husband and wife all these facts have no other meaning in the
opinion of this court than that a reconciliation between them was effected and that
there was a condonation of the wife by the husband. The reconciliation occurred almost
ten months after he came to know of the acts of infidelity amounting to adultery.
In Shackleton vs. Shackleton, 48 N. J. Eq. 364; 21 Atl. 935, it has been held that
condonation is implied from sexual intercourse after knowledge of the other infidelity.
Such acts necessarily implied forgiveness. It is entirely consonant with reason and
justice that if the wife freely consents to sexual intercourse after she has full knowledge
of the husband's guilt, her consent should operate as a pardon of his wrong.
In Tiffanys Domestic and Family Relations, section 107 says:
Condonation. Is the forgiveness of a marital offense constituting a ground for divorce
and bars the right to a divorce. But it is on the condition, implied by the law when not
express, that the wrongdoer shall not again commit the offense; and also that he shall
thereafter treat the other spouse with conjugal kindness. A breach of the condition will
revive the original offense as a ground for divorce. Condonation may be express or
implied.
It has been held in a long line of decisions of the various supreme courts of the different
states of the U. S. that 'a single voluntary act of sexual intercourse by the innocent
spouse after discovery of the offense is ordinarily sufficient to constitute condonation,
especially as against the husband'. (27 Corpus Juris Secundum, section 61 and cases
cited therein).
In the lights of the facts testified to by the plaintiff-husband, of the legal provisions
above quoted, and of the various decisions above-cited, the inevitable conclusion is that
the present action is untenable.
Although no acts of infidelity might have been committed by the wife, We agree with the
trial judge that the conduct of the plaintiff-husband above narrated despite his belief
that his wife was unfaithful, deprives him, as alleged the offended spouse, of any action
for legal separation against the offending wife, because his said conduct comes within
the restriction of Article 100 of the Civil Code.
The only general rule in American jurisprudence is that any cohabitation with the guilty
party, after the commission of the offense, and with the knowledge or belief on the part
of the injured party of its commission, will amount to conclusive evidence of
condonation; but this presumption may be rebutted by evidence (60 L. J. Prob. 73). 18
Although the foregoing speaks of condonation of concubinage as a ground for legal
separation, the holding therein applies with equal force in a prosecution for
concubinage as a felony. Indeed, Rosas admission was that she believed her husband
had stopped womanizing, not that she had knowledge of Alfredos specific acts of
concubinage with Sia and de Leon, specifically keeping them in the conjugal dwelling.
This admission set against the specific acts of concubinage listed in Article 334 19 of the
Revised Penal Code does not amount to condonation. Their continued cohabitation as
husband and wife construed from Rosas annual visits to Davao City is not acquiescence
to Alfredos relations with his concubines. On that score, we have succinctly held:
We can find nothing in the record which can be construed as pardon or condonation. It
is true that the offended party has to a considerable extent been patient with her
husband's shortcomings, but that seems to have been due to his promises of
improvement; nowhere does it appear that she has consented to her husband's
immorality or that she has acquiesced in his relations with his concubine. 20
Fourth. Alfredo next grasps at Liza S. Diambangans affidavit of recantation to eliminate
his probable culpability for concubinage.
Again, we are not swayed by Alfredos asseverations.
We have generally looked with disfavor upon retraction of testimonies previously given
in court. Affidavits of recantation are unreliable and deserve scant consideration. The
asserted motives for the repudiation are commonly held suspect, and the veracity of the
statements made in the affidavit of repudiation are frequently and deservedly subject to
serious doubt.21
In Firaza v. People, we intoned:
Merely because a witness says that what he had declared is false and that what he now
says is true, is not sufficient ground for concluding that the previous testimony is false.
No such reasoning has ever crystallized into a rule of credibility. The rule is that a
witness may be impeached by a previous contradictory statement x x x not that a
previous statement is presumed to be false merely because a witness now says that the
same is not true. The jurisprudence of this Court has always been otherwise, i.e., that
contradictory testimony given subsequently does not necessarily discredit the previous
testimony if the contradictions are satisfactorily explained. [Citations omitted].
Indeed, it is a dangerous rule to set aside a testimony which has been solemnly taken
before a court of justice in an open and free trial and under conditions precisely sought
to discourage and forestall falsehood simply because one of the witnesses who had
given the testimony later on changed his mind. Such a rule will make solemn trials a
mockery and place the investigation of the truth at the mercy of unscrupulous
witnesses. Unless there be special circumstances which, coupled with the retraction of
the witness, really raise doubt as to the truth of the testimony given by him at the trial
and accepted by the trial judge, and only if such testimony is essential to the judgment
of conviction, or its elimination would lead the trial judge to a different conclusion, an
acquittal of the accused based on such a retraction would not be justified. 22
In this case, Liza S. Diambangans testimony merely corroborates the still standing story
of Robert and Melissa Diambangan, the other helper in the Busuego household. Clearly,
the twos consistent story may still be the basis of the Ombudsmans finding of a prima
facie case of concubinage against Alfredo and Sia.
Finally. Despite his vigorous arguments, Alfredo claims that there is simply no basis for
indicting him and Sia for concubinage.
Article 334 of the Revised Penal Code lists three (3) specific acts of concubinage by a
husband:
(1) keeping a mistress in the conjugal dwelling; (2) sexual intercourse, under
scandalous circumstances, with a woman who is not his wife; and (3) cohabiting with a
woman who is not his wife in any other place.
The Ombudsman found a prima facie case against Alfredo and Sia based on the
testimony of Robert, Melissa S. Diambangan and Liza S. Diambangan that Alfredo had
kept Sia in the conjugal dwelling where Sia even stayed at the conjugal room. We
completely agree with the Ombudsmans disquisition:
x x x. It is ingrained in human behavior that a child has love, respect and loyalty to his
family and would strive to keep the family harmonious and united. This is the very
reason why Robert did not inform his mother about his fathers infidelities during the
time when his father was keeping his mistress at the conjugal dwelling. A son would
never turn against his father by fabricating such a serious story which will cause his
home to crumble, if such is not true. His natural instinct is to protect his home, which he
did when he kept silent for a long time. What broke the camels back was the abusive
treatment he allegedly suffered and the thought that things would change for the better
if his mom would intervene.
The story of Robert in his Affidavit was reinforced by the two house helpers Melissa S.
Diambangan and Liza S. Diambangan, who were employed by the family. Melissa was
with the Busuego family in their conjugal home in 1997. She left the family in 2005 but
returned in 2006.1wphi1 Liza started working with the family in 2002. Melissa
revealed that it was Emy Sia who recruited her to work with the Busuego family. They
both attested to the fact that Alfredo and Emy Sia slept together in the bedroom of
Alfredo but Emy Sia would sleep in the maids quarter when Rosa and Alfred came
home for a visit in 1997. They recalled that Emy Sia calls Alfredo "papa". They narrated
that Emy Sia would even confide to them some private matters relating to her sexual
proclivities with Alfredo.23
We further note that the presence of Sia at the Busuego household and her interim
residence thereat was not disputed nor explained. Alfredo just cavalierly declares that
Sia may have stayed in the conjugal dwelling, but never as his mistress, and Sia
supposedly slept in the maids quarters.
While such a claim is not necessarily preposterous we hold that such is a matter of
defense which Alfredo should raise in court given that Rosa s complaint and its
accompanying affidavits have created a prima facie case for Concubinage against
Alfredo and Sia.
WHEREFORE the petition is DISMISSED The Resolutions of the Ombudsman dated 17
April 2009 and 11 October 2010 are AFFIRMED.
SO ORDERED.
SECTION 6. SUFFICIENCY OF COMPLAINANT OR INFORMATION
G.R. No. 160619, September 09, 2015
PEOPLE OF THE PHILIPPINES, Petitioner, v. SANDIGANBAYAN (FOURTH DIVISION),
JESSIE CASTILLO, MELENCIO ARCIAGA AND EMERENCIANO ARCIAGA, Respondents.
DECISION
JARDELEZA, J.:
The purpose of an Information is to afford an accused his right to be informed of the
nature and cause of the accusation against him. It is in pursuit of this purpose that the
Rules of Court require that the Information allege the ultimate facts constituting the
elements of the crime charged. Details that do not go into the core of the crime need not
be included in the Information, but may be presented during trial. The rule that
evidence must be presented to establish the existence of the elements of a crime to the
point of moral certainty is only for purposes of conviction. It finds no application in the
determination of whether or not an Information is sufficient to warrant the trial of an
accused.
The Case
Before us is a petition under Rule 45 of the Rules of Court filed by the People of the
Philippines ("the People") through the Office of the Special Prosecutor under the Office
of the Ombudsman. The petition seeks the reversal of the Resolutions dated January 9,
20021 and November 3, 20032 issued by public respondent Sandiganbayan, granting
private respondent Jessie B. Castillo's Supplemental Motion to Dismiss the Information
filed against him and denying the People's subsequent Motion for Reconsideration,
respectively.
The Facts
Jessie B. Castillo (Castillo) was elected mayor of the Municipality of Bacoor, Cavite in the
May 1998 elections. On September 19, 2000, an Information was filed against Castillo
charging him with violation of Section 3(e) of Republic Act (RA) No. 3019, 3 in relation to
the alleged illegal operation of the Villa Esperanza dumpsite located in Molino, Bacoor,
Cavite. According to the Information, Castillo, while in the performance of his official
functions as Mayor of Bacoor, gave unwarranted benefits to his co-accused Melencio
and Emerenciano Arciaga by allowing the latter to operate the Villa Esperanza
dumpsite without the requisite Environmental Compliance Certificate (ECC) and permit
from the Environmental Management Bureau (EMB).4
An administrative complaint for Simple Misconduct had previously been filed against
Castillo also in relation to the illegal operation of the dumpsite. The Office of the
Ombudsman found Castillo guilty of the administrative charge and imposed the penalty
of one (1) month and one (1) day suspension. On appeal, the Court of Appeals set aside
the decision of the Office of the Ombudsman and ordered the dismissal of the
administrative complaint against Castillo.5 The Court of Appeals held:
Xxx [Castillo] did not violate the DENR notice which was issued way back in 1998 yet,
or before his actual assumption of office. Quite the contrary, while already a mayor,
[Castillo], upon being informed of the notice, immediately took steps in resolving the
municipality's aged-long garbage problem. True, the solution was a long-term one, but
the end results were just the same, i.e., what was once a mountainous pile of trash
covering a 2-hectare piece of property has been remarkably reduced and what was left
was a considerable area used as a segregation and transfer station of garbage prior to
their eventual dumping at the San Mateo landfill.
Doubtless, in finding [Castillo] guilty of simple misconduct and penalizing him therefor,
the respondent Office of the Ombudsman, in clear abuse of discretion, ignored and did
not take into account the foregoing reports, including no less the letter of
commendation of [DENR] Secretary Cerilles.
It is thus unfortunate that even as [Castillo] had taken concrete steps to address a
problem that was not of his own doing or tolerance but merely inherited by him, he was
instead rewarded by an administrative penalty even as the very government agency
(DENR) which issued the Notice of Violation commended him for his efforts. If this is
not a travesty of justice, then We know not what it is. 6
After arraignment and pre-trial, Castillo, on August 21, 2001, filed with the
Sandiganbayan a Motion to Dismiss or Terminate Proceedings. 7 He argued that the case
against him had been decriminalized by Section 37 of Republic Act No. 9003 8 and
invoked the decision of the Court of Appeals absolving him of administrative liability.
His motion was initially denied by the Sandiganbayan in a Resolution dated September
6, 2001.9
On September 21, 2001, Castillo filed a Supplemental Motion to Quash the Information
on the ground that the same does not charge an offense. 10 He claimed that a public
officer may only be held liable for violation of Section 3(e) of R.A. No. 3019 if he caused
undue injury to the government or any private person. Thus, Castillo argued that the
undue injury must not only be mentioned in the Information, its extent must be
specified. Invoking the ruling of this Court in Llorente, Jr. v. Sandiganbayan,11 Castillo
asserted that the claim of undue injury must be "specified, quantified and proven to the
point of moral certainty."
The Sandiganbayan Fourth Division failed to decide unanimously on the Supplemental
Motion. Thus, a special division (composed of five Justices of the Sandiganbayan) was
constituted.12 Voting 3 to 2,13this Special Division, in its challenged Resolution dated
January 9, 2002, granted Castillo's Supplemental Motion:
Going over the elements of the crime vis-a-vis the allegations of the information, the
court agrees with the contention of movant that the allegations of the information fail to
measure up to the requirements of the law. While the information charges Castillo with
violation of Section 3[e] of R.A. 3019 for "giving unwarranted benefits to his co-accused
Melencio and Emerenciano Arciaga, by allowing the operation of the dumpsite at Villa
Esperanza, Molino, Bacoor, Cavite" and "thereby causing undue injury to the residents
and students in the area who had to endure the stench, flies, rats and mosquitoes
emanating from the dumpsite" the court notes the failure of the information to
quantify the alleged unwarranted benefits supposedly given by movant to his co-
accused as well as the undue injury caused to the residents and students of the
area affected by the dumpsite.
In the case of Alejandro vs. People, the Supreme Court had ruled that undue injury
requires proof of actual injury or damage. Thus, in Llorente, it was held that undue
injury in Sec. 3[e] cannot be presumed even after a wrong or a violation of a right has
been established. Its existence must be proven as one of the elements of the crime. In
fact, the causing of undue injury or the giving of unwarranted benefits, advantage or
preference through manifest partiality, evident bad faith or gross inexcusable
negligence constitutes the very act punished under this section. Thus, it is required
that the undue injury be specified, quantified and proven to the point of moral
certainty.
Anent the allegation of unwarranted benefits given to the Arciagas, the court likewise
notes the failure of the information to specify and quantify the same. Whereas the
Ombudsman's resolution finding prima facie evidence against the herein accused
made mention of the amount of P250.00 to P300.00 allegedly collected from each
garbage truck from companies and factories allowed to dump garbage at the Villa
Esperanza dumpsite, the same was not alleged in the information which charged
Castillo with having given unwarranted benefits to his co-accused.14(Emphasis
supplied.)
The Special Division15 also resolved, on November 3, 2003, to deny the motion for
reconsideration subsequently filed by the People.
Hence, this petition.
The Issue
The case before us raises the question of what ultimate facts are required to be stated in
an Information charging an accused with violation of Section 3(e) of R.A. No. 3019.
Specifically, we are called to resolve whether an Information alleging the grant of
unwarranted benefits and existence of undue injury must state the precise amount of
the alleged benefit unduly granted as well as identify, specify, and prove the alleged
injury to the point of moral certainty.
Ruling of the Court
The petition is meritorious.
The main purpose of an Information is to ensure that an accused is formally informed of
the facts and the acts constituting the offense charged. 16 Where insufficient, an accused
in a criminal case can file a motion to have the Information against him quashed and/or
dismissed before he enters his plea.17 A motion to quash challenges the efficacy of an
Information18 and compels the court to determine whether the Information suffices to
require an accused to endure the rigors of a trial. Where the Information is insufficient
and thus cannot be the basis of any valid conviction, the court must drop the case
immediately and save an accused from the anxiety and convenience of a useless trial. 19
A motion to quash an Information on the ground that the facts charged do not
constitute an offense should be resolved on the basis of the allegations in the
Information whose truth and veracity are hypothetically admitted. 20 The question that
must be answered is whether such allegations are sufficient to establish the elements of
the crime charged without considering matters aliunde.21 In proceeding to resolve this
issue, courts must look into three matters: (1) what must be alleged in a valid
Information; (2) what the elements of the crime charged are; and (3) whether these
elements are sufficiently stated in the Information.
Sufficiency of Complaint or Information
Sections 6 and 9 of Rule 110 of the Rules of Court are relevant. They state -
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.
xxx
Sec. 9. Cause of the accusation. - 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.
(Emphasis supplied.)
This Court, in Lazarte v. Sandiganbayan22 explained the two important purposes
underlying the rule. First, it enables the accused to suitably prepare his
defense.23 Second, it allows the accused, if found guilty, to plead his conviction in a
subsequent prosecution for the same offense. 24 Thus, this Court held that the true test
in ascertaining the validity and sufficiency of an Information is "whether the crime is
described in intelligible terms with such particularity as to apprise the accused, with
reasonable certainty, of the offense charged."25cralawred
Castillo is charged with violation of Section 3(e) of R.A. No. 3019, the elements of which
are as follows:
1. The accused must be a public officer discharging administrative, judicial or
official functions;ChanRoblesVirtualawlibrary
2. He must have acted with manifest partiality, evident bad faith or gross
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.26
The subject Information filed against Castillo, on the other hand, reads to wit:
That in or about 1998, or sometime prior or subsequent thereto, in the Municipality of
Bacoor, Province of Cavite, Philippines, and within the jurisdiction of this Honorable
Court, accused Jessie B. Castillo, a public officer, being the incumbent Mayor of
Bacoor, Cavite, while in the performance of his official and administrative function,
acting in evident bad faith and manifest partiality, conspiring and confederating
with accused Melencio A. Arciaga and Emerenciano A. Arciaga, caretakers of Villa
Esperanza, did then and there wilfully, unlawfully and criminally give unwarranted
benefits to his co-accused Melencio A. Arciaga and Emerenciano A. Arciaga, by
allowing the operation of the dump site located at Villa Esperanza, Molino,
Bacoor, Cavite, notwithstanding the fact that no Environmental Compliance
Certificate (ECC) or any permit has been issued by the Environmental
Management Bureau (EMB), Department of Environment and Natural Resources
to any person or entity for such purpose, and despite cease and desist orders issued
by the DENR, thereby causing undue injury to the residents and students in the area
who had to endure the stench, Hies, rats and mosquitoes emanating from the
dumpsite.27 (Emphasis supplied.)
Information filed against Castillo and his co-accused is sufficient
We find that the foregoing Information sufficiently alleges the essential elements of a
violation of Section 3(e) of R.A. No. 3019. The Information specifically alleged that
Castillo is the Mayor of Bacoor, Cavite who, in such official capacity, with evident bad
faith and manifest partiality, and conspiring with the Arciagas, wilfully, unlawfully and
criminally gave unwarranted benefits to the latter, by allowing the illegal operation of
the Villa Esperanza dumpsite, to the undue injury of the residents and students in the
area who had to endure the ill-effects of the dumpsite's operation.
The Sandiganbayan, however, allowed the quashal of the Information due to the
prosecution's failure to (1) allege, with precision, the exact amount of benefits granted
by Castillo to the Arciagas and (2) specify, quantify and prove "to the point of moral
certainty" the undue injury caused to the people of Molino. According to the
Sandiganbayan:
xxx the court deems it to be an exercise in futility to proceed to trial when the
information that was filed failed to inform the accused of the quantity of injury caused
by Castillo to the residents of Villa Esperanza and the amount of unwarranted benefits
given to the Arciagas as a result of the operation of the dumpsite. Such failure is fatal
to the prosecution's cause considering that the public prosecutor is barred from
presenting evidence on a matter not alleged in the information. Otherwise, if the
prosecution would be allowed to present evidence to quantify the element of undue
injury or unwarranted benefits, the same would violate the right of the accused to
be informed of the nature and cause of the accusation against him.28 (Emphasis
supplied.)
We disagree.
For as long as the ultimate facts constituting the offense have been alleged, an
Information charging a violation of Section 3(e) of R.A. No. 3019 need not state, to the
point of specificity, the exact amount of unwarranted benefit granted nor specify,
quantify or prove, to the point of moral certainty, the undue injury caused. We have
consistently and repeatedly held in a number of cases that an Information need only
state the ultimate facts constituting the offense and not the finer details of why and how
the crime was committed.29
As alleged in the Information, the unwarranted benefit was the privilege granted by
Castillo to the Arciagas to operate the dumpsite without the need to comply with the
applicable laws, rules, and regulations; the undue injury being residents and students
were made to endure the ill-effects of the illegal operation. The details required by the
Sandiganbayan (such as the specific peso amount actually received by the Arciagas as a
consequence of the illegal operation of the subject dumpsite or the specific extent of
damage caused to the residents and students) are matters of evidence best raised
during the trial; they need not be stated in the Information. For purposes of informing
the accused of the crime charged, the allegation on the existence of unwarranted
benefits and undue injury under the Information suffices.
Moreover, the rationale for the ultimate facts requirement becomes clearer when one
considers the period when a motion to quash is filed, that is, before the accused's
arraignment and the parties' presentation of their evidence. It would be illogical, if not
procedurally infirm, to require specific peso amount allegations of the unwarranted
benefit and proof of undue injury - to the point of moral certainty, no less at this
stage of the criminal proceedings.
Application of Llorente ruling is misplaced
The Sandiganbayan's application of the Llorente ruling in this case is misplaced.
Indeed, this Court held in Llorente that the "undue injury must be specified, quantified
and proven to the point of moral certainty."30 The validity and sufficiency of the
Information, however, was not an issue in Llorente. The import of the ruling therein is
that proof of undue injury must be established by the prosecution during the trial and
not when the Information is filed. Nowhere in Llorente did we require that undue injury
be specified, quantified and proved to the point of moral certainty at the time of the
filing of the Information. Such an interpretation would effectively require the
prosecution to include all the relevant evidence in the Information and to present such
evidence of undue injury even prior to arraignment. Moreover, under the
Sandiganbayan's interpretation of Llorente, the accused would be required to face (and
even rebut) the evidence as soon as the Information is filed and even before he pleads.
This runs counter to the function of a motion to quash as a remedy afforded an
accused before he proceeds to trial.
Further, such an interpretation would undermine the value of the Information as a tool
for an accused to understand the crime for which he is being charged as it requires that
the Information already contain a long and detailed list of other matters not necessary
in informing the accused of the charge. It will also be prejudicial to the prosecution who
will then be forced to present evidence even before the trial proper. This interpretation
cannot be countenanced.
Outright quashal of the Information not proper
Even assuming for the sake of argument that the Information was defective on the
ground that the facts charged therein do not constitute an offense, outright quashal of
the Information is not the proper course of action.
Section 4, Rule 117 of the Rules of Court gives clear guidance on this matter. It provides
-
Sec. 4. Amendment of complaint or information. - If the motion to quash is based on an
alleged defect of the complaint or information which can be cured by amendment, the
court shall order that an amendment be made.
If it is based on the ground that the facts charged do not constitute an offense, the
prosecution shall be given by the court an opportunity to correct the defect by
amendment. The motion shall be granted if the prosecution fails to make the
amendment, or the complaint or information still suffers from the same defect despite
the amendment. (Emphasis supplied.)
When a motion to quash is filed challenging the validity and sufficiency of an
Information, and the defect may be cured by amendment, courts must deny the motion
to quash and order the prosecution to file an amended Information. 31 Generally, a defect
pertaining to the failure of an Information to charge facts constituting an offense is one
that may be corrected by an amendment.32 In such instances, courts are mandated not
to automatically quash the Information; rather, it should grant the prosecution the
opportunity to cure the defect through an amendment.33 This rule allows a case to
proceed without undue delay. By allowing the defect to be cured by simple amendment,
unnecessary appeals based on technical grounds, which only result to prolonging the
proceedings, are avoided.
More than this practical consideration, however, is the due process underpinnings of
this rule. As explained by this Court in People v. Andrade,34 the State, just like any other
litigant, is entitled to its day in court. Thus, a court's refusal to grant the prosecution the
opportunity to amend an Information, where such right is expressly granted under the
Rules of Court and affirmed time and again in a string of Supreme Court decisions,
effectively curtails the State's right to due process.
Hence, even assuming that the Information was defective, the Sandiganbayan should
have first ordered its amendment and not its quashal. Doing so would have saved the
parties from resorting to an appeal to this Court and this case from remaining in the
docket of the Sandiganbayan for a long period.
WHEREFORE, and in view of the foregoing, the petition is hereby GRANTED. The
Sandiganbayan's Resolutions dated January 9, 2002 and November 3, 2003
are REVERSED and the Information charging Castillo and the Arciagas with violation of
Section 3(e) of R.A. No. 3019 is ordered REINSTATED. As this case has been pending for
almost fifteen years, the Sandiganbayan is directed to resolve the case with dispatch.
SO ORDERED.
G.R. No. 170863 March 20, 2013
ENGR. ANTHONY V. ZAPANTA, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
BRION, J.:
We resolve the petition for review on certiorari 1 filed by petitioner Engr. Anthony V.
Zapanta, challenging the June 27, 2005 decision2 and the November 24, 2005
resolution3 of the Court of Appeals (CA) in CA-G.R. CR No. 28369. The CA decision
affirmed the January 12, 2004 decision4 of the Regional Trial Court (RTC) of Baguio City,
Branch 3, in Criminal Case No. 20109-R, convicting the petitioner of the crime of
qualified theft. The CA resolution denied the petitioner's motion for reconsideration.
The Factual Antecedents
An April 26, 2002 Information filed with the RTC charged the petitioner, together with
Concordia O. Loyao, Jr., with the crime of qualified theft, committed as follows:That
sometime in the month of October, 2001, in the City of Baguio, Philippines, and within
the jurisdiction of [the] Honorable Court, xxx accused ANTHONY V. ZAPANTA, being
then the Project Manager of the Porta Vaga Building Construction, a project being
undertaken then by the Construction Firm, ANMAR, Inc. under sub-contract with A.
Mojica Construction and General Services, with the duty to manage and implement the
fabrication and erection of the structural steel framing of the Porta Varga building
including the receipt, audit and checking of all construction materials delivered at the
job site a position of full trust and confidence, and CONCORDIO O. LOYAO, JR., alias
"JUN", a telescopic crane operator of ANMAR, Inc., conspiring, confederating, and
mutually aiding one another, with grave abuse of confidence and with intent of gain, did
then and there willfully, unlawfully and feloniously take, steal and carry away from the
Porta Vaga project site along Session road, Baguio City, wide flange steel beams of
different sizes with a total value of 2,269,731.69 without the knowledge and consent
of the owner ANMAR, Inc., represented by its General Manager LORNA LEVA
MARIGONDON, to the damage and prejudice of ANMAR, Inc., in the aforementioned sum
of 2,269,731.69, Philippine Currency.5
Arraigned on November 12, 2002, the petitioner entered a plea of "not guilty." 6 Loyao
remains at-large.
In the ensuing trial, the prosecution offered in evidence the oral testimonies of Danilo
Bernardo, Edgardo Cano, Roberto Buen, Efren Marcelo, private complainant Engr. Lorna
Marigondon, and Apolinaria de Jesus,7 as well as documentary evidence consisting of a
security logbook entry, delivery receipts, photographs, letters, and sworn affidavits. The
prosecutions pieces of evidence, taken together, established the facts recited below.
In 2001, A. Mojica Construction and General Services (AMCGS) undertook the Porta
Vaga building construction in Session Road, Baguio City. AMCGS subcontracted the
fabrication and erection of the buildings structural and steel framing to Anmar, owned
by the Marigondon family. Anmar ordered its construction materials from Linton
Commercial in Pasig City. It hired Junio Trucking to deliver the construction materials to
its project site in Baguio City. It assigned the petitioner as project manager with general
managerial duties, including the receiving, custody, and checking of all building
construction materials.8
On two occasions in October 2001, the petitioner instructed Bernardo, Junio Truckings
truck driver, and about 10 Anmar welders, including Cano and Buen, to unload about 10
to 15 pieces of 20 feet long wide flange steel beams at Anmars alleged new contract
project along Marcos Highway, Baguio City. Sometime in November 2001, the petitioner
again instructed Bernardo and several welders, including Cano and Buen, to unload
about 5 to 16 pieces of 5 meters and 40 feet long wide flange steel beams along Marcos
Highway, as well as on Mabini Street, Baguio City. 9
Sometime in January 2002, Engr. Nella Aquino, AMCGS project manager, informed Engr.
Marigondon that several wide flange steel beams had been returned to Anmars
warehouse on October 12, 19, and 26, 2001, as reflected in the security guards logbook.
Engr. Marigondon contacted the petitioner to explain the return, but the latter simply
denied that the reported return took place. Engr. Marigondon requested Marcelo, her
warehouseman, to conduct an inventory of the construction materials at the project
site. Marcelo learned from Cano that several wide flange steel beams had been
unloaded along Marcos Highway. There, Marcelo found and took pictures of some of the
missing steel beams. He reported the matter to the Baguio City police headquarters and
contacted Anmar to send a truck to retrieve the steel beams, but the truck came weeks
later and, by then, the steel beams could no longer be found. The stolen steel beams
amounted to 2,269,731.69.10
In his defense, the petitioner vehemently denied the charge against him. He claimed
that AMCGS, not Anmar, employed him, and his plan to build his own company had been
Engr. Marigondons motive in falsely accusing him of stealing construction materials. 11
The RTCs Ruling
In its January 12, 2004 decision,12 the RTC convicted the petitioner of qualified theft. It
gave credence to the prosecution witnesses straightforward and consistent testimonies
and rejected the petitioners bare denial. It sentenced the petitioner to suffer the
penalty of imprisonment from 10 years and 3 months, as minimum, to 20 years, as
maximum, to indemnify Anmar 2,269,731.69, with legal interest from November 2001
until full payment, and to pay Engr. Marigondon 100,000.00 as moral damages.
The CAs Ruling
On appeal, the petitioner assailed the inconsistencies in the prosecution witnesses
statements, and reiterated his status as an AMCGS employee. 13
In its June 27, 2005 decision,14 the CA brushed aside the petitioners arguments and
affirmed the RTCs decision convicting the petitioner of qualified theft. It found that the
prosecution witnesses testimonies deserve full credence in the absence of any
improper motive to testify falsely against the petitioner. It noted that the petitioner
admitted his status as Anmars employee and his receipt of salary from Anmar, not
AMCGS. It rejected the petitioners defense of denial for being self-serving. It, however,
deleted the award of moral damages to Engr. Marigondon for lack of justification.
When the CA denied15 the motion for reconsideration16 that followed, the petitioner
filed the present Rule 45 petition.
The Petition
The petitioner submits that, while the information charged him for acts committed
"sometime in the month of October, 2001," he was convicted for acts not covered by the
information, i.e., November 2001, thus depriving him of his constitutional right to be
informed of the nature and cause of the accusation against him. He further argues that
the prosecution failed to establish the fact of the loss of the steel beams since the
corpus delicti was never identified and offered in evidence.
The Case for the Respondent
The respondent People of the Philippines, through the Office of the Solicitor General,
counters that the issues raised by the petitioner in the petition pertain to the
correctness of the calibration of the evidence by the RTC, as affirmed by the CA, which
are issues of fact, not of law, and beyond the ambit of a Rule 45 petition. In any case, the
respondent contends that the evidence on record indubitably shows the petitioners
liability for qualified theft.
The Issue
The case presents to us the issue of whether the CA committed a reversible error in
affirming the RTCs decision convicting the petitioner of the crime of qualified theft.
Our Ruling
The petition lacks merit.
Sufficiency of the allegation of date of the
commission of the crime
Section 6, Rule 110 of the Rules of Criminal Procedure, which lays down the guidelines
in determining the sufficiency of a complaint or information, provides:
Section 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. (italics supplied; emphasis ours)
As to the sufficiency of the allegation of the date of the commission of the offense,
Section 11, Rule 110 of the Rules of Criminal Procedure adds:
Section 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. [italics supplied;
emphasis ours]
Conformably with these provisions, when the date given in the complaint is not of the
essence of the offense, it need not be proven as alleged; thus, the complaint will be
sustained if the proof shows that the offense was committed at any date within the
period of the statute of limitations and before the commencement of the action.
In this case, the petitioner had been fully apprised of the charge of qualified theft since
the information stated the approximate date of the commission of the offense through
the words "sometime in the month of October, 2001." The petitioner could reasonably
deduce the nature of the criminal act with which he was charged from a reading of the
contents of the information, as well as gather by such reading whatever he needed to
know about the charge to enable him to prepare his defense.
We stress that the information did not have to state the precise date when the offense
was committed, as to be inclusive of the month of "November 2001" since the date was
not a material element of the offense. As such, the offense of qualified theft could be
alleged to be committed on a date as near as possible to the actual date of its
commission.17 Clearly, the month of November is the month right after October.
The crime of qualified theft was
committed with grave abuse of discretion
The elements of qualified theft, punishable under Article 310 in relation to Articles 308
and 309 of the Revised Penal Code (RPC), are: (a) the taking of personal property; (b)
the said property belongs to another; (c) the said taking be done with intent to gain; (d)
it be done without the owner's consent; (e) it be accomplished without the use of
violence or intimidation against persons, nor of force upon things; and (f) it be done
under any of the circumstances enumerated in Article 310 of the RPC, i.e., with grave
abuse of confidence.18
All these elements are present in this case. The prosecutions evidence proved, through
the prosecutions eyewitnesses, that upon the petitioners instruction, several pieces of
wide flange steel beams had been delivered, twice in October 2001 and once in
November 2001, along Marcos Highway and Mabini Street, Baguio City; the petitioner
betrayed the trust and confidence reposed on him when he, as project manager,
repeatedly took construction materials from the project site, without the authority and
consent of Engr. Marigondon, the owner of the construction materials.
Corpus delicti is the fact of the commission
of the crime
The petitioner argues that his conviction was improper because the alleged stolen
beams or corpus delicti had not been established. He asserts that the failure to present
the alleged stolen beams in court was fatal to the prosecutions cause.
The petitioners argument fails to persuade us.
"Corpus delicti refers to the fact of the commission of the crime charged or to the body
or substance of the crime. In its legal sense, it does not refer to the ransom money in the
crime of kidnapping for ransom or to the body of the person murdered" or, in this case,
to the stolen steel beams. "Since the corpus delicti is the fact of the commission of the
crime, this Court has ruled that even a single witness' uncorroborated testimony, if
credible, may suffice to prove it and warrant a conviction therefor. Corpus delicti may
even be established by circumstantial evidence." 19 "In theft, corpus delicti has two
elements, namely: (1) that the property was lost by the owner, and (2) that it was lost
by felonious taking."20
In this case, the testimonial and documentary evidence on record fully established
the corpus delicti. The positive testimonies of the prosecution witnesses, particularly
Bernardo, Cano and Buen, stating that the petitioner directed them to unload the steel
beams along Marcos Highway and Mabini Street on the pretext of a new Anmar project,
were crucial to the petitioners conviction. The security logbook entry, delivery receipts
and photographs proved the existence and the unloading of the steel beams to a
different location other than the project site.
Proper Penalty
The RTC, as affirmed by the CA, sentenced the petitioner to suffer the penalty of
imprisonment from 10 years and three months, as minimum, to 20 years, as maximum,
and to indemnify Anmar 2,269,731.69, with legal interest from November 2001 until
full payment. Apparently, the RTC erred in failing to specify the appropriate name of the
penalty imposed on the petitioner.
We reiterate the rule that it is necessary for the courts to employ the proper legal
terminology in the imposition of penalties because of the substantial difference in their
corresponding legal effects and accessory penalties. The appropriate name of the
penalty must be specified as under the scheme of penalties in the RPC, the principal
penalty for a felony has its own specific duration and corresponding accessory
penalties.21 Thus, the courts must employ the proper nomenclature specified in the
RPC, such as "reclusion perpetua" not "life imprisonment," or "ten days of arresto menor"
not "ten days of imprisonment." In qualified theft, the appropriate penalty is reclusion
perpetua based on Article 310 of the RPC which provides that "the crime of qualified
theft shall be punished by the penalties next higher by two degrees than those
respectively specified in Article 309."221wphi1
To compute the penalty, we begin with the value of the stolen steel beams, which is
2,269,731.69. Based on Article 309 of the RPC, since the value of the items exceeds
22,000.00, the basic penalty is prision mayor in its minimum and medium periods, to
be imposed in the maximum period, which is eight years, eight months and one day to
10 years of prision mayor.
To determine the additional years of imprisonment, we deduct 22,000.00 from
2,269,731.69, which gives us 2,247,731.69. This resulting figure should then be
divided by 10,000.00, disregarding any amount less than 10,000.00. We now have
224 years that should be added to the basic penalty. However, the imposable penalty for
simple theft should not exceed a total of 20 years. Therefore, had petitioner committed
simple theft, the penalty would be 20 years of reclusion temporal. As the penalty for
qualified theft is two degrees higher, the correct imposable penalty is reclusion
perpetua.
The petitioner should thus be convicted of qualified theft with the corresponding
penalty of reclusion perpetua.
WHEREFORE, we hereby DENY the appeal. The June 27, 2005 decision and the
November 24, 2005 resolution of the Court of Appeals in CA-G.R. CR No. 28369
are AFFIRMED with MODIFICATION. Petitioner Engr. Anthony V. Zapanta is sentenced
to suffer the penalty of reclusion perpetua. Costs against the petitioner.
SO ORDERED.
SECTION 7. NAME OF THE ACCUSED
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MELENCIO BALI-
BALITA, accused-appellant.
DECISION
GONZAGA-REYES, J.:
On September 1, 1997, Ella Magdasoc y Carbona, 11 years of age, assisted by her
sister, filed a complaint for rape against Melencio Bali-balita, the common-law husband
of her mother, as follows:
The undersigned accuses MELENCIO BALI-BALITA, common law husband of the
complainants mother, of the crime of Rape, committed as follows:
That on or about the 26th day of August, 1997 in Quezon City, Philippines, the said
accused by means of force and intimidation, to wit: by then and there willfully,
unlawfully and feloniously undressing the undersigned, a minor, 11 years of age, and at
knife point inserted his fingers at her private part, and thereafter have carnal
knowledge with the undersigned complainant against her will and without her consent.
CONTRARY LAW.[1]
The accused assisted by counsel de oficio entered a plea of not guilty upon
arraignment on September 22, 1997.
The evidence for the prosecution consists of the testimony of the private
complainant Ella, the medico legal officer, Dr. Ma. Cristina Freyra, and the sister of the
complainant, Miriam Gozun y Carbona.
The trial court summarized the prosecutions evidence as follows:
Ella Magdasoc, the private complainant, was an eleven year old out-of-school youth who
resided at Phase 2, Payatas B, Quezon City at the time of the incident. The accused,
Melencio Bali-Balita, on the other hand, also resided at the same address being the live-
in partner of Retilla Bali-Balita, the private complainants mother.
On August 26, 1997, Ella and her younger siblings were inside their house in Payatas,
Quezon City together with the accused. After eating, they were about to go to sleep
when the accused told Ella to go inside the room of her mother who was not at home at
that time. The accused was already inside the same room when Ella entered. The
accused then ordered her to remove her clothes, a pair of shorts and a blouse, and then
to get on the bed. When Ella defied the order of the accused, the latter removed her
shorts and underwear, after which he himself undressed. The accused told Ella to lie
down on the bed and thereafter he went on top of her. Ella then started crying so the
accused told her to get up and poked a knife at her. The accused inserted his finger into
Ellas private organ and after that he inserted his private organ into hers. Ella cried as
she felt pain but the accused told her not to make noise. The accused then ordered her
to bend her back facing him and then placed himself on top of her. Ella told the accused
that she had to urinate and the accused allowed her to do so but ordered her to return
afterwards. After urinating, Ella did not return to her mothers room anymore and
instead went to her room to sleep. The accused called her back but she did not heed his
call.
After the incident, Ella went to the house of her sister, Miriam Gozun y Carbona, and
told the latter what happened to her. Together, they reported the matter to their mother,
Retila Bali-Balita, who, however, found Ellas story impossible. As their mother was not
interested in pursuing the case against her live-in partner, Ella and Miriam went to the
Police Station where they gave statements to the police (Exhs. D to D-2 and Exhs. F to F-
1) pointing to the accused as the one who abused Ella. The accused was later
apprehended by the police and a complaint, docketed as Criminal Case No. 97-72798
(Exhs. E to E-2), was filed against him.
At the police station, Ella Magdasoc, the private complainant was referred to the PNP
Crime Laboratory Services for laboratory/medico-legal examination. Upon receipt of
the request for medico-legal examination (Exh. A to A-1 and the consent of Ella thereto,
Dr. Ma. Cristina Freyra, medico-legal officer of the PNP Crime Laboratory Services,
initially conducted an interview on the victim (Exh. B).Thereafter, Dr. Freyra conducted
a physical/genital examination on the person of Ella, the findings of which are
embodied in Medico-Legal Report No. M-1237-97 (Exhs. C to C-3). The pertinent
findings thereof are quoted as follows:
xxx xxx xxx
FINDINGS:
GENERAL AND EXTRAGENITAL:
Fairly developed, fairly nourished and coherent female subject. Breasts are
undeveloped. Abdomen is flat and soft.
GENITAL:
There is absence of pubic hair. Labia majora are full, convex and coaptated with
congested and abraded labia minora presenting in between. On separating the same
disclosed an abraded posterior fourchette and an elastic, fleshy type hymen with deep
healed lacerations at 3 and 9 oclock position. External vaginal orifice admits the
smallest finger of the examiner.
CONCLUSION:
Subject is in non-virgin state physically.
There are no external signs of recent application of any form of trauma at the time of
examination.
REMARKS:
Vaginal and peri-urethral smears are negative for gram-negative diplococci and for
spermatozoa.
xxx xxx xxx
Dr. Freyra further testified that in relation to the genital findings upon the person of the
private complainant, the lacerations inflicted on her private parts were healed
lacerations, which means that they were inflicted more than seven days prior to the
examination.[2]
Melencio Bali-balita denied the accusation. He testified that:
He knew the private complainant in this case, the latter being the daughter of his live-in
partner, Retilla Bali-Balita. The accused denied the accusation that he raped Ella at
around 3 oclock in the morning on August 26, 1997 as he alleged that he was at Phase I,
Payatas V, Upper Payatas, Quezon City attending the wake of a friend at around 9 oclock
in the evening on August 25, 1997 and stayed there together with Retilla Bali-balita
until around 5 oclock in the morning on August 26, 1997. When the accused and Retilla
Bali-balita arrived home, Retillas children, including the private complainant, were still
asleep.On this account, Retilla Bali-balita and Virginia Agatep corroborated the
testimony of the accused that he was not at home at the time of the incident. Further,
Retilla Bali-Balita testified that she was not consulted when the case was filed against
the accused and that in fact, she learned of it only at around 9 oclock in the evening of
August 26, 1997. She also testified that the accused and her children, including private
complainant, had a fine relationship.[3]
The trial court held that the crime of statutory rape was established, as Ella was
below twelve years of age at the time she was raped. The testimony of the victim that
the private organ of the accused penetrated her private part was corroborated by the
findings of the doctor that Ella was no longer a virgin, and that there was reddening,
discoloration, and abrasion on the labia majora and minora of the private organ of the
victim. The court ruled that the defense of denial and alibi raised by the accused cannot
prevail over the positive assertion and identification of the accused by the The testimony of Ella relating the sexual assault was categorical and clear:
victim. Considering that the accused is the common law spouse of the mother of the
victim and that the victim was less than twelve (12) years of age at the time of the PROS (to the witness)
incident, the court imposed the maximum penalty of death: Now Ella, do you recall on August 26, 1997 early morning, where were you at that
time?
WHEREFORE, judgment is hereby rendered finding the accused, Melencio Bali-balita,
GUILTY beyond reasonable doubt of the crime of consummated rape defined in and A: I was in our house, sir.
penalized by Article 335 of the Revised Penal Code, as amended, and is hereby Q: Where is your house located?
sentenced to suffer the penalty of DEATH. The accused is ordered to pay the victim Ella
Magdasoc, the amount of P50,000.00 by way of moral damages, and to pay the costs. A: In Payatas, Quezon City.
Q: Now will you please tell the Court if there was an unusual incident that happened
IT IS SO ORDERED.[4] to you on that day?
Accused-appellant raises a lone assignment of error in his brief namely: A: Yes, sir.

THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE GUILT OF THE ACCUSED- Q: Tell the Court what was that unusual incident?
APELLANT FOR THE CRIME CHARGED HAS BEEN PROVEN BEYOND REASONABLE A: After eating dinner where (sic) about to go to sleep and he told me not to sleep
DOUBT.[5] yet, sir.
Accused-appellant alleges that the testimony of the medico legal officer repudiates Q: Now after that Ella, what happened next, if any?
and contradicts the testimony of private complainant that accused-appellant had sexual
congress with her and that it was so painful that she felt like her private organ was A: He told me to get inside the room of my mother, sir.
being torn. The medico legal officer categorically stated that there were no fresh
Q: By the way Mr. (sic) witness, who were with you inside that house at that time?
lacerations and that the private part of the complainant could not accommodate an
erect penis, and it is highly improbable that the crime of rape was committed on August A: My younger siblings, sir.
26, 1997. Moreover, the demeanor of Ella after the alleged incident, i.e. that she simply
excused herself to urinate and thereafter slept, is contrary to human nature. Lastly, the Q: How many siblings do you have?
accused-appellant claims it is perplexing that Ellas own mother testified in his favor by A: Two (2), sir.
corroborating his testimony that he was attending the wake of a friend at the time of
the alleged incident. Q: Could you tell us the names of your siblings?
The Solicitor General pleads that the guilt of the accused has been proved beyond A: I am referring to my brothers Julius and Jordan, sir.
reasonable doubt and prays for affirmance of the decision with modification of the
award of damages from P50,000.00 to P75,000.00. Q: After you were told to go to the room of your mother, where was the accused
then?
The Reply Brief filed by accused-appellant reiterates the same arguments pleaded
to seek an acquittal. It is further contended that even assuming that the guilt of the A: He was also about to get inside the room, sir.
accused-appellant had been proven beyond reasonable doubt, the accused-appellant Q: Were you able to enter the room?
cannot be meted the extreme penalty of death in view of the fact that the information
failed to allege the relationship of the accused-appellant to the victim as a qualifying A: Yes, sir.
circumstance. Thus the accused-appellant was not properly informed that he is being
Q: By the way Madam witness, where was your mother then when you were told by
accused of qualified rape.
the accused to enter your rooms mother (sic)?
We affirm the judgment finding that the guilt of the accused-appellant has been
A: She was not at home during that time, sir.
proven beyond reasonable doubt, but hereby reduce the penalty from death to reclusion
perpetua in line with established precedents.
Q: Now, while you were inside the room, can you tell us Madam witness what
happened next, if any?
A: He ordered me to remove my clothes, sir.
Q: Tell us Ella, what were you wearing at that time?
A: I was wearing a short and a blouse, sir.
Q: When you were told by Melencio Bali-Balita to undress, did you heed his order?
A: No, sir.
Q: When you defy (sic) the order of the accused, what happened next if any?
A: He was the one who remove (sic) my short and my panty, sir.
Q: After that Madam witness, what happened if any?
A: He also undress, (sic) sir.
Q: After the accused undress (sic) himself, what happened next, if any?
A: He told me to lie down, sir.
Q: Where?
A: At the bed of my mother, sir.
Q: Were you able to lie down on top of the bed?
A: Yes, sir.
Q: Now after that, when you were lying down on top of the bed, what happened next,
if any?
A: He went on top of me, sir.
Q: When Melencio Bali-balita the accused went on top of you, what did you do?
A: I cried, sir.
Q: And what was the reaction of the accused when you were crying then?
A: He told me to get up and after that he poke a knife at me.
Q: And then after that Ella, what happened if any?
COURT:
Put on record that the witness is crying.
A: He inserted his private organ.
ATTY. STA. ANA: (to the Court)
Your Honor, we will move to strike out the answer considering that the information
says it was not the private organ it was the finger.
COURT:
Put on record the observation of counsel of the accused.
PROS: (to the Witness)
Now before the accused inserted his private organ, what did the accused do to you, if
any?
A: He inserted his finger into my private organ, sir.
Q: And what did you tell Ella at that time when the accused was inserting his finger
inside your private part, if there was any?
A: I felt pain, sir.
Q: Now when Melencio went on top of you and inserted his private part on you
claimed, what did you feel then?
A: It was painful, as if it was being torn.
Q: Now when you were feeling pain, what did you do if any?
A: I was crying because it was really painful, sir.
Q: And how about the accused Melencio Bali-Balita, what was his reaction when you
were crying then?
A: He told me not to make a noise, sir.
Q: Now Ella, after that what happened next if any?
A: He ordered me to bend my back facing him. (pinatuwad niya ako)
Q: After you were told to bend and turn your back in front of him, what did Melencio
Bali-Balita do to you if there was any?
A: He place himself on top of me, sir.
Q: After that Ella, what happened next if any?
A: After that something came out from his private organ something that was sticky.
Q: Now after that Ella, what happened next, if any?
A: I told him that I am going to urinate, sir.
Q: Did Melencio Bali-Balita allow you to urinate?
 A: Yes, sir, he even ordered me to immediately come back, sir.
Q: And were you able to urinate?
A: Yes, sir.
Q: Now did you come back to Melencio Bali-Balita after you were told by him to
urinate?
A: No, sir, I went back to my room, sir.
Q: And who were there sleeping at that time when you went back to your room?
A: My two (2) brothers , sir.
Q: How about Melencio Bali-Balita, where was he at that time, if you know?
A: He was there inside the room of my mother, sir.
Q: After that Ms. Witness, what happened next, if any?
A: He called me, sir.
Q: And did you heed to the call of Melencio Bali-Balita?
A: No, sir, because I told him that I was going to sleep, sir.
Q: Then after that what happened next if any?
A: He told me to sleep inside the room of my mother and he will transfer me from
our room to my mothers room, sir.
Q: Was Melencio Bali-Balita able to transfer you from your room to your mothers
room?
A: No, sir.
Q: Now after that Madam witness, what did you do, if any?
A: I did not return, sir.[6]
We do not find the above testimony as inconsistent with or contradictory to the
medico-legal findings. Dr. Cristina Freyra testified on re-direct examination in reply to
the questions propounded by the court as follows:
COURT:
So, the lacerations that you found could have been inflicted on some other time,
date?
A: Yes, your honor.
Q: When you examined the victim, the victim was no longer a virgin as she had
lacerations on the hymen?
A: Yes, your honor.
Q: Was there a sign of reddening or discoloration of the labia minora of the private
organ?
A: Labia Minora is congested and so is the fourchette portion.
Q: In laymans language what do you mean?
A: There is reddening of the labia minora and the abrasion which means that the
superficial ephethelial layer of the skin is removed.
Q: There was then discoloration?
A: Yes, your honor.
Q: What might have caused the discoloration or abrasion?
A: The friction brought about by rubbing of a hard blunt object.[7]
Although Dr. Freyra testified that the lacerations found on Ellas private part were
healed lacerations, which means that they were inflicted more than seven days prior to
the examination conducted, this finding does not negate the commission of rape on
August 26, 1997. As correctly pointed out by the trial court hymenal lacerations which
are usually inflicted when there is complete penetration are not essential in
establishing the crime of rape as it is enough that a slight penetration or entry of the
penis into the lips of the vagina takes place. The conclusion is in line with jurisprudence
to the effect that complete penetration of the penis is not essential to consummate rape;
what is material is that there is the introduction of the male organ into the labia of the
pudendum, no matter how slight.[8]
Thus, in the case of People vs. Campuhan,[9] this Court stated:
We have said often enough that in concluding that carnal knowledge took place, full
penetration of the vaginal orifice is not an essential ingredient, nor is the rupture of the
hymen necessary; the mere touching of the external genitalia by the penis capable of
consummating the sexual act is sufficient to constitute carnal knowledge. But the act of
touching should be understood here as inherently part of the entry of the penis into the
labias of the female organ and not mere touching alone of the mons pubis or the
pudendum.
In People vs. Dela Pea we clarified that the decisions finding a case for rape even if the
attackers penis merely touched the external portions of the female genitalia were made
in the context of the presence or existence of an erect penis capable of full
penetration. Where the accused failed to achieve an erection, had a limp or flaccid
penis, or an oversized penis which could not fit into the victims vagina, the Court
nonetheless held that rape was consummated on the basis of the victims testimony that
the accused repeatedly tried, but in vain, to insert his penis into her vagina and in all
likelihood reached the labia of the pudendum as the victim felt his organ on the lips of
her vulva, or that the penis of the accused touched the middle part of her vagina. Thus,
touching when applied to rape cases does not simply mean mere epidermal contact,
stroking or grazing of organs, a slight brush or a scrape of the penis on the external
layer of the victims vagina, or the mons pubis, as in this case. There must be sufficient
and convincing proof that the penis indeed touched the labias or slid into the female
organ, and not merely stroked the external surface thereof, for an accused to be
convicted of consummated rape. As the labias, which are required to be touched by the
penis, are by their natural situs or location beneath the mons pubis or the vaginal
surface, to touch them with the penis is to attain some degree of penetration beneath
the surface, hence, the conclusion that touching the labia majora or the labia minora of
the pudendum constitutes consummated rape.
The fact that Ella admitted that after she was asked by accused-appellant to return
after she went out to urinate, but she did not, and thereafter went to her room to sleep,
does not prove that nothing happened. Ella was barely at the threshold of puberty when
the incident happened and the accused was the live-in partner of her mother, and
therefore exercised some degree of moral ascendancy over her. There is no typical
reaction or norm of behavior that ensue forthwith or later from victims of rape. [10] It is
not proper to judge the actions of children who have undergone traumatic experience
by the norms of behavior expected under the circumstances from mature persons.
[11]
The workings of the human mind when placed under emotional stress are
unpredictable and that people react differently. [12]
Time and again, this Court has ruled that it is unlikely for a young girl like the
complainant and her family to impute the crime of rape to their own blood relative and
face social humiliation if not to vindicate the honor of the complainant. [13] In rape cases,
when a woman says that she has been raped, she says in effect all that is necessary to
show that rape has been committed, and if her testimony meets the test of credibility,
the accused may be convicted on the basis thereof. It is rather inconceivable that a
daughter should concoct a story that she was repeatedly raped by her father when
family honor is at stake, not to mention that this would mean sending her father to jail.
[14]
The testimony of rape victims who are of tender age are credible. The revelation of
an innocent child whose chastity was abused deserves full credit, as the willingness of
the complainant to face police investigation and to undergo the trouble and humiliation
of a public trial is eloquent testimony of the truth of her complaint. [15] The fact that the
mother of Ella did not believe her daughters accusation and instead corroborated the
testimony of the accused-appellant that he attended a wake at the date and time of the
incident in question, does not establish that Ella concocted the story about the sexual
assault. It is unthinkable that a young girl like Ella would fabricate a story that would
destroy her reputation and her family life and endure the ordeal of a trial were it not for
the purpose of seeking redress. No evidence was presented to show any motive on the
part of Ella to falsely testify against the accused-appellant.
We therefore find no reason to disturb or set aside the trial courts findings
supporting the judgment of conviction. Conclusions as to the credibility of witness,
particularly in rape cases, lie with the sound judgment of the court, and will be
respected on appeal, unless there appears in the record some fact or circumstance
which the trial court overlooked or misappreciated and which if properly considered,
would have altered the results of the case.[16]
The penalty imposed however, must be reduced to reclusion perpetua.
Under Article 335 of the Revised Penal Code as amended by Section 11 of R. A.
7659, the concurrence of the minority of the victim and her relationship to the offender
is a special qualifying circumstance. As such their attendance in the commission of the
crime must be properly pleaded in the information because it changes the nature of the
offense and, if proven beyond reasonable doubt, increases the penalty by one degree.[17]
In the case before us, the victim herself testified that she was born on April 12,
1987 and that she was raped by the accused on August 26, 1997. [18] She was only ten
years and four months old at the time of the rape. We note that the victim testified in
court in December 1997 or about four months after the rape, and it would not have
been difficult for the trial court to take judicial notice that the victim is under 18 years
of age.[19]
We find, however, that the filiation of the appellant to the victim was not properly
alleged in the information. Sections 7and 9 Rule 110 of the Revised Rules on Criminal
Procedure states:
Sec. 7 Name of the accused.- A complaint or information must state the name and
surname of the accused or any appellation or nickname by which he has been or is
known, or if his name cannot be discovered he must be described under a fictitious
name with a statement that his true name is unknown.
If in the course of the proceeding the true name of he accused is disclosed b him, or
appears in some other manner to the court, the true name shall be inserted in the
complaint or information and record.
Sec. 9. Cause of accusation.-The acts or omission complained of as constituting the
offense must be stated in ordinary and concise language without repetition, not
necessarily in terms of the statute defining the offense, but in such form as is sufficient
to enable a person of common understanding to know what offense is intended to be
charged and enable the court to pronounce judgment.
The Information upon which the appellant was charged states as follows:
The undersigned accuses MELENCIO BALI-BALITA, common law husband of the
complainants mother, of the crime of Rape, committed as follows:
That on or about the 26th day of August, 1997 in Quezon City, Philippines, the said
accused by means of force and intimidation, to wit: by then and there willfully,
unlawfully and feloniously undressing the undersigned, a minor, 11 years of age, and at
knife point inserted his fingers at her private part, and thereafter have carnal
knowledge with the undersigned complainant against her will and without her consent.
CONTRARY LAW.[20]
It appears to us that the relationship of the accused to the victim is stated as a
more detailed description of the identity of the party who committed the crime
charged. Such relationship is not stated in the cause of the accusation or in the
narration of the act or omissions constituting the offense. Every element of the offense
must be alleged and if the accused is being charged of a crime in its qualified form the
qualifying circumstance must likewise be stated with certainty to enable a person of
common understanding to be apprised of the acts or omissions of which he is charged,
although the legal designation of the crime committed need not be specifically
stated. Due process requires that the accused is duly informed of the nature and the
cause of the accusation against him. Such a requirement is primarily intended to enable
the accused to suitably prepare his defense as he is presumed innocent and of no
independent knowledge of the acts constitutive of the crime charged against him.
[21]
What is controlling is the description of the criminal act and not, as in this case, the
description of the identity of the accused. It has been held that the real nature of the
criminal charge is determined not from the caption or the preamble of the information
nor from the specification of the provision of law alleged to have been violated .. But
from the actual recital of the facts as alleged in the body of the information. [22] In this
case the information upon which the appellant was arraigned does not state in the
specification of the acts constitutive of the offense that he is charged as the live-in
partner of the mother of the alleged victim. This insufficiency prevents a judgment of
conviction for qualified rape and thus, the death penalty cannot be imposed. The victim
being under 12 years old at the time of the commission of the crime, the crime
committed is statutory rape and the proper penalty under Art 335 of the Revised Penal
Code, as amended by R. A. 7659, is reclusion perpetua.[23]
The victim is entitled to indemnity of P50,000.00 in line with prevailing
jurisprudence,[24] in addition to moral damages in the amount of P50,000.00. This is
separate and distinct from the award of moral damages which is automatically granted
in rape cases.[25]
WHEREFORE, the decision appealed from is affirmed insofar as it finds the
accused-appellant Melencio Bali-balita guilty of the crime of rape with the modification
that the penalty imposed is reduced to reclusion perpetua, and the accused-appellant is
directed to pay the victim P50,000.00 by way of indemnity, in addition to P50,000.00 as
moral damages.
SO ORDERED.
Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Purisima,
Buena, and De Leon, JJ., concur.
Bellosillo, J., see separate opinion.
Quisumbing, and Pardo, JJ., concurs in the separate opinion of J. Bellosillo.
Ynares-Santiago, J., on leave.
SEPARATE OPINION
BELLOSILLO, J.:
I am extremely elated that a human life is saved in this case, as the supreme
penalty of death is not imposed. Thus, I concur with the majority that the accused must
only be sentenced to reclusion perpetua. While I am convinced that the qualifying
circumstances of minority and filiation are duly alleged in the Information, the death
penalty, nonetheless, may not be imposed in view of the failure of the prosecution to
prove the minority of the complaining witness beyond reasonable doubt.
Apparently, the ponencia relies merely on the testimonies of the complaining
witness and her half-sister in concluding that the age of the victim was proved beyond
reasonable doubt.Corollarily, it ruled that there being no serious doubt as to the age of
the victim, the presentation of the victims birth certificate or other official document to
prove her real age1 becomes unnecessary. For one thing, there being no serious
doubt cannot be equated with nor be a substitute for the requisite proof beyond
reasonable doubt.
The Testimonies of the complaining witness and her half-sister were far from
being consistent with each other. The former asserted that she was 11 years old when
raped while her half-sister testified that the victim was only 10 years old. In her direct
examination victim Ella Magdasoc testified -
Prosecutor: Now Ella, how old are you?
Ella: Eleven (11) years old, sir.
Q: And do you recall your birthday?
A: I was born on April 12, 1987, sir.2
On cross-examination she stated that-
Atty. Sta. Ana: Now, how old are you on August 26, 1997?
 A: 10 years old, sir.3
On the other hand, Miriam C. Gozun, the half-sister of the victim, testified in her
direct examination-
Pros. Catubay: Madam witness, do you know Ella Magdasoc?
A: Yes, sir.
Q: Why do you know her?
A: She is my half-sister.
Q: Do you know how old is Ella Magdasoc on August 26, 1997?
A: 11 years old.4
Granting that there was only a 1-year difference in the supposed age of the victim,
this discrepancy should not be taken lightly because the life of the accused-appellant is
at stake. No single independent proof was presented by the prosecution to establish the
fact that the complaining witness was below 18 years at the time of the
incident. Although accused-appellant did not have any occasion to deny or offer any
objection to the age of the victim, this did not excuse the prosecution from discharging
its burden of proving the age of the victim beyond reasonable doubt.
The minority of the victim, as well as the filiation of the contending parties, when
properly alleged in the Information and proved beyond reasonable doubt during the
trial, elevates the crime of simple rape to qualified rape, which merits the imposition of
the penalty of death. As such, nothing but proof beyond reasonable doubt of every
fact necessary to constitute the crime with which an accused is charged must be alleged
in the Information and duly established by the prosecution in order for the extreme
penalty to be upheld. Verily, the minority of the victim must be proved with equal
certainty and clearness as the crime itself; otherwise, as held in People v.
Sandrias5 failure to sufficiently establish the victim's age is fatal and consequently bars
conviction for rape in its qualified form.
In People v. Veloso6 the victim was alleged to have been only 9 years of age at the
time she was raped. Although by appearance the victim may have definitely appeared
below 18 years, the trial court did not take judicial notice of the fact that the victim was
of tender age. This Court affirmed the trial court ruling that minority was not proved
beyond reasonable doubt.Thus -
The trial court correctly ruled that the prosecution failed to prove the age of the victim
other than through her testimony and that of her father. Thus, in People v. Vargas (257
SCRA 603, 1996), it was held that:
In the case at bar, however, no birth or baptismal certificate was presented to prove the
age of the victim. Neither was there a showing that said documents were lost or
destroyed to justify their non-presentation. The trial court should not have relied on the
testimony of Cornelia as to her age nor the testimony of her Aunt Margarita
Quilang. Both testimonies are hearsay. Nor was it correct for the trial court to judge the
victim's age by considering her appearance.
The minority of the victim must be established beyond reasonable doubt even if
uncontested by the defense. On this issue, this Court ruled in People v. Cula7 --
In the case at bar, the trial court pursuant to Section 11 of Republic Act 7659, imposed
the penalty of death upon accused-appellant Manuel Cula, taking into account the
minority of Maricel as she is said to have been only 16 years old at the time of the rape
incident, as well as the relationship of father and daughter between them. However, in a
similar and recent case (People v. Javier, G.R. No. 126096, July 26, 1999) this Court
pronounced:
However it is significant to note that the prosecution failed to present the birth
certificate of the complainant. Although the victim's age was not contested by the
defense, proof of age of the victim is particularly necessary in this case considering that
the victim's age which was then 16 years old is just two years less that the majority age
of 18. In this age of modernism, there is hardly any difference between a 16-year old
girl and an 18-year old one insofar as physical features and attributes are concerned. A
physically developed 16-year old lass may be mistaken for an 18-year old young
woman, in the same manner that a frail and young looking 18-year old lady may pass as
a 16-year old minor. Thus, it is in this context that independent proof of the actual age
of a rape victim becomes vital and essential so as to remove an iota of doubt that the
victim is indeed under 18 years of age as to fall under the qualifying circumstances
enumerated in Republic Act No. 7659.
At all events, it is the burden of the prosecution to prove with certainty the fact that the
victim was below 18 when the rape was committed in order to justify the imposition of
the death penalty. The record of the case is bereft of any independent evidence, such as
the victim's duly certified Certificate of Live Birth, accurately showing private
complainant's age. The fact that accused-appellant Manuel has not denied the allegation
in the complaint that Maricel was 16 .years old when the crime was committed cannot
make up for the failure of the prosecution to discharge its burden in this
regard. Because of this lapse, as well as the corresponding failure of the trial court to
make a categorical finding as to the minority of the victim, we hold that the qualifying
circumstance of minority under Republic Act No. 7659 cannot be appreciated in this
case, and accordingly the death penalty cannot be imposed.
In the instant case, the prosecution utterly failed to discharge its burden of proving
beyond reasonable doubt the minority of the victim. Also, the trial court did not make
any categorical finding that, indeed, the victim was 11 years old at the time of the
rape. It merely relied on the self-serving testimonies of the complaining witness and
her half-sister.
Death is a penalty so extreme that it becomes imperative for this Court to calibrate
and weigh every piece of evidence presented with utmost caution. In cases like this, the
Court cannot presume that the victim is as old as she claims to be. For sure, a person's
age can be proved by other extrinsic evidence such as his birth certificate. If the birth
certificate cannot be produced, the reason for its unavailability should be stated and
other piece of evidence ought to be presented to establish the age of the victim. In the
instant case, the prosecution did not even bother to submit complaining witness' birth
certificate; neither did it explain its unavailability and thereafter submit other proof to
establish the victim's age.
In recent death penalty cases, this Court has been cautious with its interpretation
of the attendant qualifying circumstances. Thus, if the offender is not a parent,
ascendant, step-parent, guardian or common-law spouse of the mother of the victim, it
would not suffice that it is merely alleged that the offender is a relation. It must be
alleged in the Information that he is a relative by consanguinity or affinity within the
third civil degree.8 In People v. Licanda9 the prosecution merely alleged that accused-
appellant was the "natural father of the victim" but did not present any evidence to
show that the victim was indeed accused-appellant's daughter. The relationship became
more suspect as the victim bore a surname different from that of accused-appellant. In
resolving the issue of filiation, this Court ruled that "the problem could have been easily
remedied by the prosecution by presenting Nelita's birth certificate or any other
documentary evidence which shows the name of Nelita's father. The failure of the
prosecution to do so should be taken in favor of accused-appellant considering that it
has the burden of proving its allegations especially in a death penalty case where the
life of a human being hangs in the balance."10
The ponencia also posits that the prosecution failed to plead the concurrence
of minority and relationship in the Information. I disagree. The Complaint11 dated 1
September 1997 filed by the complaining witness, which was treated as
the Information by Asst. City Pros. Rolando G. Mislang, reads -
COMPLAINT
The undersigned accuses MELENCIO BALI-BALITA, common law husband of the
complainant's mother of the crime of Rape committed as follows:
That on or about the 26th day of August, 1997 in Quezon City, Philippines, the said
accused by means of force and intimidation, to wit: by then and there willfully,
unlawfully and feloniously undressing the undersigned, a minor, 11 years of age, and at
knife point inserted his fingers at her private part, and thereafter have carnal
knowledge with the undersigned complainant against her will and without her
consent (underscoring supplied) x x x x
(Sgd.) Ella Magdasoc y
Carbona
Clearly, the relationship (common-law husband of complainant's mother) and the
age of the victim (minor, 11 years of age) were concurrently pleaded in the Complaint/
Information. The ponencia claims that although Melencio Bali-Balita was mentioned as
the common-law husband of complainant's mother in the opening statement of the
Information, the same merely describes his identity and could not be deemed as an
allegation of his relationship with the complainant as the same was not reiterated in the
second paragraph thereof.
The reasoning seems flawed. Basically, it is immaterial whether the
phrase common-law husband of complainant's mother is mentioned in the opening
paragraph of the Information or in the second paragraph alleging the acts constituting
the crime charged, as either is an integral part thereof. Plainly, the opening paragraph is
an indispensable part of the Complaint/ Information, which normally states the name
of the accused. It is not necessary, much less mandatory, that the name of the accused or
his description be stated specifically in the second paragraph of the Information.
Section 6, Rule 110, of the Rules on Criminal Procedure states -
Sec. 6. Sufficiency of complaint or information. - A complaint or information is sufficient
if it states the name of the accused; the designation of the offense by the statute; the
acts or omissions complained of as constituting the offense; the name of the offended
party; the approximate time of the commission of the offense; and the place wherein
the offense was committed.
When the offense is committed by more than one person, all of them shall be included
in the complaint or information.
When the second paragraph hereinquoted requires that [w]hen an offense is
committed by more than one person, all of them shall be included in the complaint or
information, all these names, which indeed are essential and indispensable, are stated
only in the opening statement and not in the "accusatory" paragraph of the Information,
which simply means that the "opening statement" is an integral part of the Information
and may not be taken for granted as mere descriptive words or phrases.
The Information in the instant case is complete. The name of accused-appellant is
stated, among others, so with his filiation with the complaining witness. In other words,
under the herein-quoted provision, it is not required that the name of the accused be
stated in the opening paragraph or in the accusatory portion of the Information. It is
enough that it is so stated under the heading Information. In fact, when Sec. 6 requires
that a Complaint or Information to be sufficient must state the name of the accused and
the designation of the offense by the statute, among others, such name and designation
of the offense are only stated in the opening statement immediately following the
heading Complaint or Information, as quoted and aptly shown in this Separate
Opinion. In other words, the filiation of the victim and the accused in the instant case is
sufficiently alleged in the Complaint/ Information.
A word more. The ponencia also ruled that "as correctly pointed out by the trial
court, hymenal lacerations which are usually inflicted when there is complete
penetration are not essential in establishing the crime of rape as it is enough that a
slight penetration or entry of the penis into the lips of the vagina takes place. To dispel
any possible misunderstanding or confusion, this statement must be properly viewed in
light of People v. Campuhan, G.R. No. 129433, 30 March 2000, where this Court discussed
quite extensively and differentiated attempted rape from consummated rape. Therein,
the Court explicitly ruled that for rape to be considered consummated it must be
established that the penis penetrated at the very least the labia of the external genitalia,
which is actually beneath the pudendum, hence, the entry or penetration; otherwise,
mere touching of the labia will not suffice to constitute consummated rape.
SECTION 8. DESIGNATION OF THE OFFENSE.
PEOPLE OF THE PHILIPPINES VS. PO2 EDUARDO VALDEZ AND EDWIN VALDEZ
BERSAMIN, J.:
The sufficiency of the allegations of the facts and circumstances constituting the
elements of the crime charged is crucial in every criminal prosecution because of the
ever-present obligation of the State to duly inform the accused of the nature and cause
of the accusation.
The accused were tried for and convicted of three counts of murder on January
20, 2005 by the Regional Trial Court (RTC), Branch 86, in Quezon City. They were
penalized with reclusion perpetua for each count, and ordered to pay to the heirs of
each victim P93,000.00 as actual damages, P50,000.00 as civil indemnity,
and P50,000.00 as moral damages.
On appeal, the Court of Appeals (CA) upheld the RTC on July 18, 2006, subject to the
modification that each accused pay to the heirs of each victim P50,000.00 as civil
indemnity, P50,000.00 as moral damages, P25,000.00 as temperate damages,
and P25,000.00 as exemplary damages, plus costs of suit.1
The accused came to the Court to seek acquittal. On May 9, 2007, however,
accused Edwin Valdez filed a motion to withdraw appeal, which the Court granted on
October 10, 2007, thereby deeming Edwins appeal closed and terminated. 2 Hence, the
Court hereby resolves only the appeal of PO2 Eduardo Valdez.
Antecedents
The Office of the City Prosecutor of Quezon City charged the two accused in the
RTC with three counts of murder for the killing of Ferdinand Sayson, Moises Sayson, Jr.,
and Joselito Sayson, alleging:
Criminal Case No. 00-90718
That on or about the 1st day of March, 2000, in Quezon City,
Philippines, the above-named accused conspiring together,
confederating with and mutually helping each other, with intent to kill,
qualified with treachery, evident premeditation and abuse of superior
strength did, then and there, willfully, unlawfully and feloniously,
assault, attack and employ personal violence upon the person of one
FERDINAND SAYSON Y DABOCOL by then and there shooting him with
a gun, hitting him on his head, thereby inflicting upon him serious and
mortal wound which was the direct and immediate cause of his death,
to the damage and prejudice of the heirs of the said FERDINAND
SAYSON Y DABOCOL.
CONTRARY TO LAW.3
Criminal Case No. 00-90719
That on or about the 1st day of March, 2000, in Quezon City,
Philippines, the above-named accused conspiring together,
confederating with and mutually helping each other, with intent to kill,
qualified with treachery, evident premeditation and abuse of superior
strength did, then and there, willfully, unlawfully and feloniously,
assault, attack and employ personal violence upon the person of one
MOISES SAYSON, JR. Y DABOCOL by then and there shooting him
several times with a gun, hitting him on his face and chest, thereby
inflicting upon him serious and mortal wound which was the direct
and immediate cause of his death, to the damage and prejudice of the
heirs of the said MOISES SAYSON, JR. Y DABOCOL.
CONTRARY TO LAW.4
Criminal Case No. 00-90720
That on or about the 1st day of March, 2000, in Quezon City,
Philippines, the above-named accused conspiring together,
confederating with and mutually helping each other, with intent to kill,
qualified with treachery, evident premeditation and abuse of superior
strength did, then and there, willfully, unlawfully and feloniously,
 assault, attack and employ personal violence upon the person of one
JOSELITO SAYSON Y DABOCOL by then and there shooting him with a
gun, hitting him on his back, thereby inflicting upon him serious and
mortal wound which was the direct and immediate cause of his death,
to the damage and prejudice of the heirs of the said JOSELITO SAYSON
Y DABOCOL.
CONTRARY TO LAW.5
The Office of the Solicitor General (OSG) summarized the States evidence of
guilt as follows:
On March 1, 2000, at around 8:00 oclock in the evening, Estrella
Sayson, (Estrella) was at the canteen (which also includes a jai
alai betting station) located at 77 Corregidor Street, Bago Bantay,
Quezon City. Estrella was preparing for the celebration of the birthday
of her second husband, Wilfredo Lladones, which was held later in the
evening. Estrellas son, the deceased Moises Sayson, a former
policeman, and his wife, Susan Sayson (Susan) owned the said canteen
and managed the betting station. At about 9:00 oclock in the evening,
Estrellas other sons Joselito Sayson (Joselito) and Ferdinand Sayson
(Ferdinand) arrived at the canteen to greet their stepfather. Estrellas
family and other visitors ate and enjoyed themselves at the party (pp.
3-5, TSN, November 29, 2000; pp. 3-6, TSN, February 6, 2001; pp. 3-4,
TSN, July 31, 2001).
At about 10:00 oclock in the evening, the celebration was
interrupted with the arrival of Eduardo and Edwin, who alighted from
a motorcycle in front of the jai alai fronton. Eduardo and Edwin asked
the jai alai teller, Jonathan Rubio (Jonathan), to come out. Jonathan
was then attending to customers who were buying jai alai tickets.
Moises approached Eduardo and Edwin and tried to reason with them.
Estrella saw Eduardo and Edwin armed with guns. She tried to prevent
Moises from going near Edwin and Eduardo. Moises did not heed his
mothers warning. He went out and advised Eduardo and Edwin not to
force Jonathan to go out of the fronton. Estrella then heard one of the
accused-appellants threaten Moises with the words Gusto mo unahin
na kita? Moises replied huwag. Successive shots were thereafter
heard. Moises fell and was continuously fired upon even after he was
sprawled on the ground. Ferdinand immediately approached the scene
to help his brother Moises. Ferdinand, however was shot on the left
temporal portion of his head and fell. Somebody told Joselito to run
away, but he was hit at the back while running. Joselito fell on a burger
machine (pp. 7-11, TSN, November 29, 2000; pp. 6-10, TSN, February
6, 2001; pp. 5-10, TSN, July 31, 2001; pp. 2-6, September 5, 2001).
After shooting the Sayson brothers, Eduardo and Edwin escaped
from the scene of the crime (p. 10, TSN, February 6, 2001). 6
In turn, the appellants brief filed by the Public Attorneys Office (PAO)
rendered the version of the accused, to wit:
xxx [A]t about 10:00 oclock in the evening, Heidi dela Cruz (a
barbecue vendor) and Noel Valad-on (a tricycle driver) saw accused
Edwin Valdez alight from a bus. The latter bought P100.00 worth of
barbecue from Heidi then proceeded towards home. He was walking
along Corregidor Street when Heidi saw Jun Sayson (Moises), then
holding a gun, block his (Edwins) way. Jun Sayson poked a gun at
accused Edwin, shouting, Putang-ina mo, papatayin kita. The latter
raised both his hands and said Wag kuya Jun, maawa ka.
Accused Eduardo Valdez (a policeman), then carrying his 6-year
old child, was walking when his way was likewise blocked but this
time, by the siblings Joselito and Ferdinand as well as their stepfather.
Joselito twisted one of his (Eduardos) hands at his back while his
(Joseltios) stepfather held the other. Ferdinand fired a gun but
accused Eduardo was able to evade. Joselito, who was positioned
behind Eduardo, was hit. He slumped and bled. He asked Heidi to
inform his family that he was hit. Heidi ran away. She saw Jun (Moises)
and accused Edwin grappling. Thereafter, she heard gunshots.
Accused Eduardo ducked during the firing. He pretended to be
dead. Ferdinand stopped firing. Accused Eduardos son approached
him crying. Accused thereafter, brought his son home, took his service
firearm and on his way back to the scene of the incident when he met
General Jesus Almadin, his commanding officer (CO). He reported the
incident and sought for advice. He was told to take a rest and go back
on (sic) the following day. He accompanied his CO to Camp Crame. He
surrendered his firearm to Sr./Insp. Rodolfo Araza of the CIU. Accused
Edwin Valdez likewise surrendered (TSN dated 05 February 2003; pp.
3-9; 12 March 2003, pp. 2-16; 11 August 2003, pp. 2-18, 1 September
2003, pp. 3-10; 15 October 2003, pp. 2-8; 03 December 2003, pp. 2-4;
18 February 2004, pp. 2-9; 24 March 2004, pp. 3-9; 10 April 2004, pp.
2-7; 07 June 2004, pp. 2-25).7
 The RTC convicted the two accused of three counts of murder and sentenced
them to suffer reclusion perpetua for each count of murder.8
On appeal, the CA affirmed the convictions.9
Issues: In this appeal, PO2 Valdez assails the credibility of the States witnesses by
pointing to inconsistencies and weaknesses in their testimonies; challenges the finding
of conspiracy between the accused; and contends that the State did not establish the
qualifying circumstance of treachery. 10
Ruling: The Court affirms the convictions, but holds PO2 Valdez guilty only of three
counts of homicide due to the failure of the informations to allege the facts and
circumstances constituting treachery.
First of all, PO2 Valdez insists that the States witnesses (Susan Sayson, Marites
Sayson and Estrella Sayson) did not really see the events as they transpired; and that
they wrongly identified the two accused as the persons who had shot and killed the
victims; and that the victims were themselves the aggressors.
The CA rejected PO2 Valdezs insistence, holding thus:
In their Brief, the accused-appellants desperately attempted to
discredit the testimonies of witnesses Susan, Marites and Estrella.
They claimed that a perusal of Estrellas testimony would cast doubt
on her statement that she actually witnessed the shooting incident.
The accused-appellants claimed that Estrella Sayson did not actually
see who allegedly threatened her son Moises with the words Gusto
mo unahin na kita? The accused-appellants also claimed that Estrella
also failed to see who shot Moises. They likewise assailed the
testimonies of Susan and Marites as being incredible. They said that
Susan testified that she was in a state of shock after the incident and
that she could not speak; yet she was still able to give her statement on
the same day the incident allegedly happened. The accused-appellants
also said that Marites testified that she was only about five (5) meters
away from them (accused-appellants) when they alighted from their
motorcycle; but that, interestingly, she only learned from her
husband Joselito that the accused-appellants were looking for a certain
Jonathan.
We are not persuaded. In her testimony, Estrella satisfactorily
explained her purported failure to see who between the accused-
appellants threatened Moises with the words Gusto mo unahin kita?
and who shot her son Moises, by pointing out that she was then facing
Moises because she was preventing him from approaching the
accused-appellants, who were armed with short firearms. Estrella
categorically stated that she saw the accused-appellants alight from
their motorcycle on March 1, 2000. She could not have been mistaken
about the identity of the accused-appellants for the simple reason that
they are her neighbors and that their (the accused-appellants) father
is her cumpadre. When the incident happened, the accused-
appellants were about eight (8) to ten (10) meters away from where
she and her son Moises were standing. She also saw with her own
eyes how her son Moises fell after she heard successive bursts of
gunshots (approximately [9] shots) coming from where the accused-
appellants were standing.11
Considering that the CA thereby affirmed the trial courts findings of fact, its
calibration of the testimonies of witnesses and its assessment of their probative weight,
as well as its conclusions, the Court accords high respect, if not conclusive effect, to the
CAs findings.12 The justification for this is that trial court was in the best position to
assess the credibility of witnesses by virtue of its firsthand observation of the
demeanor, conduct and attitude of the witnesses under grilling examination. The only
time when a reviewing court was not bound by the trial courts assessment of
credibility arises upon a showing of a fact or circumstance of weight and influence that
was overlooked and, if considered, could affect the outcome of the case. 13 No such fact
or circumstance has been brought to the Courts attention.
It is not trite to remind that a truth-telling witness is not always expected to
give an error-free testimony because of the lapse of time and the treachery of human
memory; and that inaccuracies noted in testimony may even suggest that the witness is
telling the truth and has not been rehearsed. 14 To properly appreciate the worth of
testimony, therefore, the courts do not resort to the individual words or phrases alone
but seek out the whole impression or effect of what has been said and done. 15
Secondly, PO2 Valdez argues that the three victims were themselves the
aggressors who had attacked to kill him and his brother. He narrated during the trial
that he dodged the bullet fired from the gun of Ferdinand (one of the victims), causing
the bullet to fatally hit Joselito (another victim); that he played dead to avoid being shot
at again, and walked away with his terrified son only after the way was clear for them to
leave; and that he heard gunshots while Edwin and Jun (the third victim) grappled for
control of a gun, and assumed that the gunshots had hit and killed Jun and Ferdinand. 16
The argument of PO2 Valdez is bereft of factual merit.
 It is fundamental that the question as to who between the accused and the
victim was the unlawful aggressor is a question of fact addressed to the trial court for
determination based on the evidence on record. 17 The records show that the version of
PO2 Valdez was contrary to the established facts and circumstances showing that he
and Edwin, then armed with short firearms, had gone to the jai alai betting station of
Moises to confront Jonathan Rubio, the teller of the betting booth then busily attending
to bettors inside the booth; that because the accused were calling to Rubio to come out
of the booth, Moises approached to pacify them, but one of them threatened
Moises: Gusto mo unahin na kita?; that immediately after Moises replied: Huwag!, PO2
Valdez fired several shots at Moises, causing him to fall to the ground; that PO2 Valdez
continued firing at the fallen Moises; that Ferdinand (another victim) rushed to aid
Moises, his brother, but Edwin shot Ferdinand in the head, spilling his brains; that
somebody shouted to Joselito (the third victim) to run; that Edwin also shot Joselito
twice in the back; and that Joselito fell on a burger machine. The shots fired at the three
victims were apparently fired from short distances.
The testimonial accounts of the States witnesses entirely jibed with the
physical evidence. Specifically, the medico-legal evidence showed that Ferdinand had a
gunshot wound in the head;18 that two gunshot wounds entered Joselitos back and the
right side of his neck;19 and that Moises suffered a gunshot wound in the head and four
gunshot wounds in the chest.20Also, Dr. Wilfredo Tierra of the NBI Medico-Legal Office
opined that the presence of marginal abrasions at the points of entry indicated that the
gunshot wounds were inflicted at close range.21 Given that physical evidence was of the
highest order and spoke the truth more eloquently than all witnesses put together, 22 the
congruence between the testimonial recollections and the physical evidence rendered
the findings adverse to PO2 Valdez and Edwin conclusive.
Thirdly, conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit the felony. 23 Proof of the
actual agreement to commit the crime need not be direct because conspiracy may be
implied or inferred from their acts.24 Herein, both lower courts deduced the conspiracy
between the accused from the mode and manner in which they perpetrated the killings.
We are satisfied that their deduction was warranted.
Based on the foregoing, PO2 Valdez cannot now avoid criminal responsibility
for the fatal shooting by Edwin of Ferdinand and Joselito. Both accused were
convincingly shown to have acted in concert to achieve a common purpose of assaulting
their unarmed victims with their guns. Their acting in concert was manifest not only
from their going together to the betting station on board a single motorcycle, but also
from their joint attack that PO2 Valdez commenced by firing successive shots at Moises
and immediately followed by Edwins shooting of Ferdinand and Joselito one after the
other. It was also significant that they fled together on board the same motorcycle as
soon as they had achieved their common purpose.
To be a conspirator, one did not have to participate in every detail of the
execution; neither did he have to know the exact part performed by his co-conspirator
in the execution of the criminal acts.25 Accordingly, the existence of the conspiracy
between PO2 Valdez and Edwin was properly inferred and proved through their acts
that were indicative of their common purpose and community of interest. 26
And, fourthly, it is unavoidable for the Court to pronounce PO2 Valdez guilty of
three homicides, instead of three murders, on account of the informations not
sufficiently alleging the attendance of treachery.
Treachery is the employment of means, methods, or forms in the execution of
any of the crimes against persons which tend to directly and specially insure its
execution, without risk to the offending party arising from the defense which the
offended party might make.27 It encompasses a wide variety of actions and attendant
circumstances, the appreciation of which is particular to a crime committed. Corollarily,
the defense against the appreciation of a circumstance as aggravating or qualifying is
also varied and dependent on each particular instance. Such variety generates the
actual need for the State to specifically aver the factual circumstances or particular acts
that constitute the criminal conduct or that qualify or aggravate the liability for the
crime in the interest of affording the accused sufficient notice to defend himself.
It cannot be otherwise, for, indeed, the real nature of the criminal charge is determined
not from the caption or preamble of the information, or from the specification of the
provision of law alleged to have been violated, which are mere conclusions of law, but
by the actual recital of the facts in the complaint or information. 28 In People v.
Dimaano,29 the Court elaborated:
For complaint or information to be sufficient, it 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 time of the
commission of the offense, and the place wherein the offense was
committed. What is controlling is not the title of the complaint, nor the
designation of the offense charged or the particular law or part thereof
allegedly violated, these being mere conclusions of law made by the
prosecutor, but the description of the crime charged and the particular
facts therein recited. The acts or omissions complained of must be
alleged in such form as is sufficient to enable a person of common
understanding to know what offense is intended to be charged, and
enable the court to pronounce proper judgment. No information for a
crime will be sufficient if it does not accurately and clearly allege the
elements of the crime charged. Every element of the offense must be
stated in the information. What facts and circumstances are
 necessary to be included therein must be determined by
reference to the definitions and essentials of the specified
crimes. The requirement of alleging the elements of a crime in the
information is to inform the accused of the nature of the
accusation against him so as to enable him to suitably prepare his
defense. The presumption is that the accused has no
independent knowledge of the facts that constitute the
offense. [emphasis supplied]
The averments of the informations to the effect that the two accused with
intent to kill, qualified with treachery, evident premeditation and abuse of superior
strength did xxx assault, attack and employ personal violence upon the victims by
then and there shooting [them] with a gun, hitting [them] on various parts of their
bodies which [were] the direct and immediate cause of [their] death[s] did not
sufficiently set forth the facts and circumstances describing how treachery attended
each of the killings. It should not be difficult to see that merely averring the killing of a
person by shooting him with a gun, without more, did not show how the execution of
the crime was directly and specially ensured without risk to the accused from the
defense that the victim might make. Indeed, the use of the gun as an instrument to kill
was not per se treachery, for there are other instruments that could serve the same
lethal purpose. Nor did the use of the term treachery constitute a sufficient averment,
for that term, standing alone, was nothing but a conclusion of law, not an averment of a
fact. In short, the particular acts and circumstances constituting treachery as an
attendant circumstance in murder were missing from the informations.
To discharge its burden of informing him of the charge, the State must specify
in the information the details of the crime and any circumstance that aggravates his
liability for the crime. The requirement of sufficient factual averments is meant to
inform the accused of the nature and cause of the charge against him in order to enable
him to prepare his defense. It emanates from the presumption of innocence in his favor,
pursuant to which he is always presumed to have no independent knowledge of the
details of the crime he is being charged with. To have the facts stated in the body of the
information determine the crime of which he stands charged and for which he must be
tried thoroughly accords with common sense and with the requirements of plain
justice, for, as the Court fittingly said in United States v. Lim San: 30
From a legal point of view, and in a very real sense, it is of no
concern to the accused what is the technical name of the crime of
which he stands charged. It in no way aids him in a defense on the
merits. xxx. That to which his attention should be directed, and in
which he, above all things else, should be most interested, are the
facts alleged. The real question is not did he commit a crime given
in the law some technical and specific name, but did he perform
the acts alleged in the body of the information in the manner
therein set forth. If he did, it is of no consequence to him, either as
a matter of procedure or of substantive right, how the law
denominates the crime which those acts constitute. The
designation of the crime by name in the caption of the
information from the facts alleged in the body of that pleading is a
conclusion of law made by the fiscal. In the designation of the
crime the accused never has a real interest until the trial has
ended. For his full and complete defense he need not know the
name of the crime at all. It is of no consequence whatever for the
protection of his substantial rights. The real and important
question to him is, Did you perform the acts alleged in the
manner alleged? not Did you commit a crime named murder. If
he performed the acts alleged, in the manner stated, the law
determines what the name of the crime is and fixes the penalty
therefor. It is the province of the court alone to say what the crime
is or what it is named. xxx. (emphasis supplied)
A practical consequence of the non-allegation of a detail that aggravates his
liability is to prohibit the introduction or consideration against the accused of evidence
that tends to establish that detail. The allegations in the information are controlling in
the ultimate analysis. Thus, when there is a variance between the offense charged in the
information and that proved, and the offense as charged is included in or necessarily
includes the offense proved, the accused shall be convicted of the offense proved
included in the offense charged, or of the offense charged included in the offense
proved.31 In that regard, an offense charged necessarily includes the offense proved
when some of the essential elements or ingredients of the former, as alleged in the
information, constitute the latter; an offense charged is necessarily included in the
offense proved when the essential ingredients of the former constitute or form part of
those constituting the latter.32
We now fix the penalty for each count of homicide.
Pursuant to Article 249 of the Revised Penal Code, the penalty for homicide
is reclusion temporal.33 There being no circumstances modifying criminal liability, the
penalty is applied in its medium period (i.e., 14 years, 8 months and 1 day to 17 years
and 4 months). Under the Indeterminate Sentence Law, the minimum of the
indeterminate sentence is taken from prision mayor, and the maximum from the
medium period of reclusion temporal. Hence, the Court imposes the indeterminate
sentence of 10 years of prision mayor as minimum to 17 years of reclusion temporal as
maximum for each count of homicide.
WHEREFORE, the decision of the Court of Appeals promulgated on July 18,
2006 is MODIFIED by finding PO2 Eduardo Valdez guilty beyond reasonable doubt of
three counts of HOMICIDE, and sentencing him to suffer for each count the
indeterminate sentence of 10 years of prision mayor as minimum to 17 years
of reclusion temporal as maximum; and to pay to the respective heirs of the late
Ferdinand Sayson, Moises Sayson, Jr., and Joselito Sayson the amounts of P50,000.00
as civil indemnity, P50,000.00 as moral damages, and P25,000.00 as temperate
damages.
The accused shall pay the costs of suit.
SO ORDERED.
BERSAMIN, J.:
The sufficiency of the allegations of the facts and circumstances constituting the
elements of the crime charged is crucial in every criminal prosecution because of the
ever-present obligation of the State to duly inform the accused of the nature and cause
of the accusation.
The accused were tried for and convicted of three counts of murder on January
20, 2005 by the Regional Trial Court (RTC), Branch 86, in Quezon City. They were
penalized with reclusion perpetua for each count, and ordered to pay to the heirs of
each victim P93,000.00 as actual damages, P50,000.00 as civil indemnity,
and P50,000.00 as moral damages.
On appeal, the Court of Appeals (CA) upheld the RTC on July 18, 2006, subject
to the modification that each accused pay to the heirs of each victim P50,000.00 as civil
indemnity, P50,000.00 as moral damages, P25,000.00 as temperate damages,
and P25,000.00 as exemplary damages, plus costs of suit.1
The accused came to the Court to seek acquittal. On May 9, 2007, however,
accused Edwin Valdez filed a motion to withdraw appeal, which the Court granted on
October 10, 2007, thereby deeming Edwins appeal closed and terminated. 2 Hence, the
Court hereby resolves only the appeal of PO2 Eduardo Valdez.
Antecedents
The Office of the City Prosecutor of Quezon City charged the two accused in the
RTC with three counts of murder for the killing of Ferdinand Sayson, Moises Sayson, Jr.,
and Joselito Sayson, alleging:
Criminal Case No. 00-90718
That on or about the 1st day of March, 2000, in Quezon City,
Philippines, the above-named accused conspiring together,
confederating with and mutually helping each other, with intent to kill,
qualified with treachery, evident premeditation and abuse of superior
strength did, then and there, willfully, unlawfully and feloniously,
assault, attack and employ personal violence upon the person of one
FERDINAND SAYSON Y DABOCOL by then and there shooting him with
a gun, hitting him on his head, thereby inflicting upon him serious and
mortal wound which was the direct and immediate cause of his death,
to the damage and prejudice of the heirs of the said FERDINAND
SAYSON Y DABOCOL.
CONTRARY TO LAW.3
Criminal Case No. 00-90719
That on or about the 1st day of March, 2000, in Quezon City,
Philippines, the above-named accused conspiring together,
confederating with and mutually helping each other, with intent to kill,
qualified with treachery, evident premeditation and abuse of superior
strength did, then and there, willfully, unlawfully and feloniously,
assault, attack and employ personal violence upon the person of one
MOISES SAYSON, JR. Y DABOCOL by then and there shooting him
several times with a gun, hitting him on his face and chest, thereby
inflicting upon him serious and mortal wound which was the direct
and immediate cause of his death, to the damage and prejudice of the
heirs of the said MOISES SAYSON, JR. Y DABOCOL.
CONTRARY TO LAW.4
Criminal Case No. 00-90720
That on or about the 1st day of March, 2000, in Quezon City,
Philippines, the above-named accused conspiring together,
confederating with and mutually helping each other, with intent to kill,
qualified with treachery, evident premeditation and abuse of superior
strength did, then and there, willfully, unlawfully and feloniously,
assault, attack and employ personal violence upon the person of one
JOSELITO SAYSON Y DABOCOL by then and there shooting him with a
gun, hitting him on his back, thereby inflicting upon him serious and
mortal wound which was the direct and immediate cause of his death,
to the damage and prejudice of the heirs of the said JOSELITO SAYSON
Y DABOCOL.
 CONTRARY TO LAW.5
The Office of the Solicitor General (OSG) summarized the States evidence of
guilt as follows:
On March 1, 2000, at around 8:00 oclock in the evening, Estrella
Sayson, (Estrella) was at the canteen (which also includes a jai
alai betting station) located at 77 Corregidor Street, Bago Bantay,
Quezon City. Estrella was preparing for the celebration of the birthday
of her second husband, Wilfredo Lladones, which was held later in the
evening. Estrellas son, the deceased Moises Sayson, a former
policeman, and his wife, Susan Sayson (Susan) owned the said canteen
and managed the betting station. At about 9:00 oclock in the evening,
Estrellas other sons Joselito Sayson (Joselito) and Ferdinand Sayson
(Ferdinand) arrived at the canteen to greet their stepfather. Estrellas
family and other visitors ate and enjoyed themselves at the party (pp.
3-5, TSN, November 29, 2000; pp. 3-6, TSN, February 6, 2001; pp. 3-4,
TSN, July 31, 2001).
At about 10:00 oclock in the evening, the celebration was
interrupted with the arrival of Eduardo and Edwin, who alighted from
a motorcycle in front of the jai alai fronton. Eduardo and Edwin asked
the jai alai teller, Jonathan Rubio (Jonathan), to come out. Jonathan
was then attending to customers who were buying jai alai tickets.
Moises approached Eduardo and Edwin and tried to reason with them.
Estrella saw Eduardo and Edwin armed with guns. She tried to prevent
Moises from going near Edwin and Eduardo. Moises did not heed his
mothers warning. He went out and advised Eduardo and Edwin not to
force Jonathan to go out of the fronton. Estrella then heard one of the
accused-appellants threaten Moises with the words Gusto mo unahin
na kita? Moises replied huwag. Successive shots were thereafter
heard. Moises fell and was continuously fired upon even after he was
sprawled on the ground. Ferdinand immediately approached the scene
to help his brother Moises. Ferdinand, however was shot on the left
temporal portion of his head and fell. Somebody told Joselito to run
away, but he was hit at the back while running. Joselito fell on a burger
machine (pp. 7-11, TSN, November 29, 2000; pp. 6-10, TSN, February
6, 2001; pp. 5-10, TSN, July 31, 2001; pp. 2-6, September 5, 2001).
After shooting the Sayson brothers, Eduardo and Edwin escaped
from the scene of the crime (p. 10, TSN, February 6, 2001). 6
In turn, the appellants brief filed by the Public Attorneys Office (PAO)
rendered the version of the accused, to wit:
xxx [A]t about 10:00 oclock in the evening, Heidi dela Cruz (a
barbecue vendor) and Noel Valad-on (a tricycle driver) saw accused
Edwin Valdez alight from a bus. The latter bought P100.00 worth of
barbecue from Heidi then proceeded towards home. He was walking
along Corregidor Street when Heidi saw Jun Sayson (Moises), then
holding a gun, block his (Edwins) way. Jun Sayson poked a gun at
accused Edwin, shouting, Putang-ina mo, papatayin kita. The latter
raised both his hands and said Wag kuya Jun, maawa ka.
Accused Eduardo Valdez (a policeman), then carrying his 6-year
old child, was walking when his way was likewise blocked but this
time, by the siblings Joselito and Ferdinand as well as their stepfather.
Joselito twisted one of his (Eduardos) hands at his back while his
(Joseltios) stepfather held the other. Ferdinand fired a gun but
accused Eduardo was able to evade. Joselito, who was positioned
behind Eduardo, was hit. He slumped and bled. He asked Heidi to
inform his family that he was hit. Heidi ran away. She saw Jun (Moises)
and accused Edwin grappling. Thereafter, she heard gunshots.
Accused Eduardo ducked during the firing. He pretended to be
dead. Ferdinand stopped firing. Accused Eduardos son approached
him crying. Accused thereafter, brought his son home, took his service
firearm and on his way back to the scene of the incident when he met
General Jesus Almadin, his commanding officer (CO). He reported the
incident and sought for advice. He was told to take a rest and go back
on (sic) the following day. He accompanied his CO to Camp Crame. He
surrendered his firearm to Sr./Insp. Rodolfo Araza of the CIU. Accused
Edwin Valdez likewise surrendered (TSN dated 05 February 2003; pp.
3-9; 12 March 2003, pp. 2-16; 11 August 2003, pp. 2-18, 1 September
2003, pp. 3-10; 15 October 2003, pp. 2-8; 03 December 2003, pp. 2-4;
18 February 2004, pp. 2-9; 24 March 2004, pp. 3-9; 10 April 2004, pp.
2-7; 07 June 2004, pp. 2-25).7
The RTC convicted the two accused of three counts of murder and sentenced
them to suffer reclusion perpetua for each count of murder.8
On appeal, the CA affirmed the convictions.9
Issues: In this appeal, PO2 Valdez assails the credibility of the States witnesses by
pointing to inconsistencies and weaknesses in their testimonies; challenges the finding
of conspiracy between the accused; and contends that the State did not establish the
qualifying circumstance of treachery. 10
Ruling: The Court affirms the convictions, but holds PO2 Valdez guilty only of three
counts of homicide due to the failure of the informations to allege the facts and
circumstances constituting treachery.
First of all, PO2 Valdez insists that the States witnesses (Susan Sayson, Marites
Sayson and Estrella Sayson) did not really see the events as they transpired; and that
they wrongly identified the two accused as the persons who had shot and killed the
victims; and that the victims were themselves the aggressors.
The CA rejected PO2 Valdezs insistence, holding thus:
In their Brief, the accused-appellants desperately attempted to
discredit the testimonies of witnesses Susan, Marites and Estrella.
They claimed that a perusal of Estrellas testimony would cast doubt
on her statement that she actually witnessed the shooting incident.
The accused-appellants claimed that Estrella Sayson did not actually
see who allegedly threatened her son Moises with the words Gusto
mo unahin na kita? The accused-appellants also claimed that Estrella
also failed to see who shot Moises. They likewise assailed the
testimonies of Susan and Marites as being incredible. They said that
Susan testified that she was in a state of shock after the incident and
that she could not speak; yet she was still able to give her statement on
the same day the incident allegedly happened. The accused-appellants
also said that Marites testified that she was only about five (5) meters
away from them (accused-appellants) when they alighted from their
motorcycle; but that, interestingly, she only learned from her
husband Joselito that the accused-appellants were looking for a certain
Jonathan.
We are not persuaded. In her testimony, Estrella satisfactorily
explained her purported failure to see who between the accused-
appellants threatened Moises with the words Gusto mo unahin kita?
and who shot her son Moises, by pointing out that she was then facing
Moises because she was preventing him from approaching the
accused-appellants, who were armed with short firearms. Estrella
categorically stated that she saw the accused-appellants alight from
their motorcycle on March 1, 2000. She could not have been mistaken
about the identity of the accused-appellants for the simple reason that
they are her neighbors and that their (the accused-appellants) father
is her cumpadre. When the incident happened, the accused-
appellants were about eight (8) to ten (10) meters away from where
she and her son Moises were standing. She also saw with her own
eyes how her son Moises fell after she heard successive bursts of
gunshots (approximately [9] shots) coming from where the accused-
appellants were standing.11
Considering that the CA thereby affirmed the trial courts findings of fact, its
calibration of the testimonies of witnesses and its assessment of their probative weight,
as well as its conclusions, the Court accords high respect, if not conclusive effect, to the
CAs findings.12 The justification for this is that trial court was in the best position to
assess the credibility of witnesses by virtue of its firsthand observation of the
demeanor, conduct and attitude of the witnesses under grilling examination. The only
time when a reviewing court was not bound by the trial courts assessment of
credibility arises upon a showing of a fact or circumstance of weight and influence that
was overlooked and, if considered, could affect the outcome of the case. 13 No such fact
or circumstance has been brought to the Courts attention.
It is not trite to remind that a truth-telling witness is not always expected to
give an error-free testimony because of the lapse of time and the treachery of human
memory; and that inaccuracies noted in testimony may even suggest that the witness is
telling the truth and has not been rehearsed. 14 To properly appreciate the worth of
testimony, therefore, the courts do not resort to the individual words or phrases alone
but seek out the whole impression or effect of what has been said and done. 15
Secondly, PO2 Valdez argues that the three victims were themselves the
aggressors who had attacked to kill him and his brother. He narrated during the trial
that he dodged the bullet fired from the gun of Ferdinand (one of the victims), causing
the bullet to fatally hit Joselito (another victim); that he played dead to avoid being shot
at again, and walked away with his terrified son only after the way was clear for them to
leave; and that he heard gunshots while Edwin and Jun (the third victim) grappled for
control of a gun, and assumed that the gunshots had hit and killed Jun and Ferdinand. 16
The argument of PO2 Valdez is bereft of factual merit.
It is fundamental that the question as to who between the accused and the
victim was the unlawful aggressor is a question of fact addressed to the trial court for
determination based on the evidence on record. 17 The records show that the version of
PO2 Valdez was contrary to the established facts and circumstances showing that he
and Edwin, then armed with short firearms, had gone to the jai alai betting station of
Moises to confront Jonathan Rubio, the teller of the betting booth then busily attending
to bettors inside the booth; that because the accused were calling to Rubio to come out
of the booth, Moises approached to pacify them, but one of them threatened
Moises: Gusto mo unahin na kita?; that immediately after Moises replied: Huwag!, PO2
Valdez fired several shots at Moises, causing him to fall to the ground; that PO2 Valdez
continued firing at the fallen Moises; that Ferdinand (another victim) rushed to aid
Moises, his brother, but Edwin shot Ferdinand in the head, spilling his brains; that
somebody shouted to Joselito (the third victim) to run; that Edwin also shot Joselito
twice in the back; and that Joselito fell on a burger machine. The shots fired at the three
victims were apparently fired from short distances.
The testimonial accounts of the States witnesses entirely jibed with the
physical evidence. Specifically, the medico-legal evidence showed that Ferdinand had a
gunshot wound in the head;18 that two gunshot wounds entered Joselitos back and the
right side of his neck;19 and that Moises suffered a gunshot wound in the head and four
gunshot wounds in the chest.20Also, Dr. Wilfredo Tierra of the NBI Medico-Legal Office
opined that the presence of marginal abrasions at the points of entry indicated that the
gunshot wounds were inflicted at close range.21 Given that physical evidence was of the
highest order and spoke the truth more eloquently than all witnesses put together, 22 the
congruence between the testimonial recollections and the physical evidence rendered
the findings adverse to PO2 Valdez and Edwin conclusive.
Thirdly, conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit the felony. 23 Proof of the
actual agreement to commit the crime need not be direct because conspiracy may be
implied or inferred from their acts.24 Herein, both lower courts deduced the conspiracy
between the accused from the mode and manner in which they perpetrated the killings.
We are satisfied that their deduction was warranted.
Based on the foregoing, PO2 Valdez cannot now avoid criminal responsibility
for the fatal shooting by Edwin of Ferdinand and Joselito. Both accused were
convincingly shown to have acted in concert to achieve a common purpose of assaulting
their unarmed victims with their guns. Their acting in concert was manifest not only
from their going together to the betting station on board a single motorcycle, but also
from their joint attack that PO2 Valdez commenced by firing successive shots at Moises
and immediately followed by Edwins shooting of Ferdinand and Joselito one after the
other. It was also significant that they fled together on board the same motorcycle as
soon as they had achieved their common purpose.
To be a conspirator, one did not have to participate in every detail of the
execution; neither did he have to know the exact part performed by his co-conspirator
in the execution of the criminal acts.25 Accordingly, the existence of the conspiracy
between PO2 Valdez and Edwin was properly inferred and proved through their acts
that were indicative of their common purpose and community of interest. 26
And, fourthly, it is unavoidable for the Court to pronounce PO2 Valdez guilty of
three homicides, instead of three murders, on account of the informations not
sufficiently alleging the attendance of treachery.
Treachery is the employment of means, methods, or forms in the execution of
any of the crimes against persons which tend to directly and specially insure its
execution, without risk to the offending party arising from the defense which the
offended party might make.27 It encompasses a wide variety of actions and attendant
circumstances, the appreciation of which is particular to a crime committed. Corollarily,
the defense against the appreciation of a circumstance as aggravating or qualifying is
also varied and dependent on each particular instance. Such variety generates the
actual need for the State to specifically aver the factual circumstances or particular acts
that constitute the criminal conduct or that qualify or aggravate the liability for the
crime in the interest of affording the accused sufficient notice to defend himself.
It cannot be otherwise, for, indeed, the real nature of the criminal charge is determined
not from the caption or preamble of the information, or from the specification of the
provision of law alleged to have been violated, which are mere conclusions of law, but
by the actual recital of the facts in the complaint or information. 28 In People v.
Dimaano,29 the Court elaborated:
For complaint or information to be sufficient, it 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 time of the
commission of the offense, and the place wherein the offense was
committed. What is controlling is not the title of the complaint, nor the
designation of the offense charged or the particular law or part thereof
allegedly violated, these being mere conclusions of law made by the
prosecutor, but the description of the crime charged and the particular
facts therein recited. The acts or omissions complained of must be
alleged in such form as is sufficient to enable a person of common
understanding to know what offense is intended to be charged, and
enable the court to pronounce proper judgment. No information for a
crime will be sufficient if it does not accurately and clearly allege the
elements of the crime charged. Every element of the offense must be
stated in the information. What facts and circumstances are
necessary to be included therein must be determined by
reference to the definitions and essentials of the specified
crimes. The requirement of alleging the elements of a crime in the
information is to inform the accused of the nature of the
accusation against him so as to enable him to suitably prepare his
defense. The presumption is that the accused has no
 independent knowledge of the facts that constitute the
offense. [emphasis supplied]
The averments of the informations to the effect that the two accused with
intent to kill, qualified with treachery, evident premeditation and abuse of superior
strength did xxx assault, attack and employ personal violence upon the victims by
then and there shooting [them] with a gun, hitting [them] on various parts of their
bodies which [were] the direct and immediate cause of [their] death[s] did not
sufficiently set forth the facts and circumstances describing how treachery attended
each of the killings. It should not be difficult to see that merely averring the killing of a
person by shooting him with a gun, without more, did not show how the execution of
the crime was directly and specially ensured without risk to the accused from the
defense that the victim might make. Indeed, the use of the gun as an instrument to kill
was not per se treachery, for there are other instruments that could serve the same
lethal purpose. Nor did the use of the term treachery constitute a sufficient averment,
for that term, standing alone, was nothing but a conclusion of law, not an averment of a
fact. In short, the particular acts and circumstances constituting treachery as an
attendant circumstance in murder were missing from the informations.
To discharge its burden of informing him of the charge, the State must specify
in the information the details of the crime and any circumstance that aggravates his
liability for the crime. The requirement of sufficient factual averments is meant to
inform the accused of the nature and cause of the charge against him in order to enable
him to prepare his defense. It emanates from the presumption of innocence in his favor,
pursuant to which he is always presumed to have no independent knowledge of the
details of the crime he is being charged with. To have the facts stated in the body of the
information determine the crime of which he stands charged and for which he must be
tried thoroughly accords with common sense and with the requirements of plain
justice, for, as the Court fittingly said in United States v. Lim San: 30
From a legal point of view, and in a very real sense, it is of no
concern to the accused what is the technical name of the crime of
which he stands charged. It in no way aids him in a defense on the
merits. xxx. That to which his attention should be directed, and in
which he, above all things else, should be most interested, are the
facts alleged. The real question is not did he commit a crime given
in the law some technical and specific name, but did he perform
the acts alleged in the body of the information in the manner
therein set forth. If he did, it is of no consequence to him, either as
a matter of procedure or of substantive right, how the law
denominates the crime which those acts constitute. The
designation of the crime by name in the caption of the
information from the facts alleged in the body of that pleading is a
conclusion of law made by the fiscal. In the designation of the
crime the accused never has a real interest until the trial has
ended. For his full and complete defense he need not know the
name of the crime at all. It is of no consequence whatever for the
protection of his substantial rights. The real and important
question to him is, Did you perform the acts alleged in the
manner alleged? not Did you commit a crime named murder. If
he performed the acts alleged, in the manner stated, the law
determines what the name of the crime is and fixes the penalty
therefor. It is the province of the court alone to say what the crime
is or what it is named. xxx. (emphasis supplied)
A practical consequence of the non-allegation of a detail that aggravates his
liability is to prohibit the introduction or consideration against the accused of evidence
that tends to establish that detail. The allegations in the information are controlling in
the ultimate analysis. Thus, when there is a variance between the offense charged in the
information and that proved, and the offense as charged is included in or necessarily
includes the offense proved, the accused shall be convicted of the offense proved
included in the offense charged, or of the offense charged included in the offense
proved.31 In that regard, an offense charged necessarily includes the offense proved
when some of the essential elements or ingredients of the former, as alleged in the
information, constitute the latter; an offense charged is necessarily included in the
offense proved when the essential ingredients of the former constitute or form part of
those constituting the latter.32
We now fix the penalty for each count of homicide.
Pursuant to Article 249 of the Revised Penal Code, the penalty for homicide
is reclusion temporal.33 There being no circumstances modifying criminal liability, the
penalty is applied in its medium period (i.e., 14 years, 8 months and 1 day to 17 years
and 4 months). Under the Indeterminate Sentence Law, the minimum of the
indeterminate sentence is taken from prision mayor, and the maximum from the
medium period of reclusion temporal. Hence, the Court imposes the indeterminate
sentence of 10 years of prision mayor as minimum to 17 years of reclusion temporal as
maximum for each count of homicide.
WHEREFORE, the decision of the Court of Appeals promulgated on July 18,
2006 is MODIFIED by finding PO2 Eduardo Valdez guilty beyond reasonable doubt of
three counts of HOMICIDE, and sentencing him to suffer for each count the
indeterminate sentence of 10 years of prision mayor as minimum to 17 years
of reclusion temporal as maximum; and to pay to the respective heirs of the late
Ferdinand Sayson, Moises Sayson, Jr., and Joselito Sayson the amounts of P50,000.00 as
civil indemnity, P50,000.00 as moral damages, and P25,000.00 as temperate damages.
 The accused shall pay the costs of suit.
SO ORDERED.
PEOPLE VS. JOSEPH ASILAN
LEONARDO-DE CASTRO, J.:
This is an appeal filed by the accused-appellant Joseph Asilan y Tabornal
(Asilan) to challenge the February 25, 2009 Decision[1] of the Court of Appeals in CA-
G.R. CR.-H.C. No. 02686, which affirmed in toto his Murder conviction, rendered by the
Regional Trial Court (RTC), Branch 20 of the City of Manila on January 8, 2007,
in Criminal Case No. 06-243060.
On March 31, 2006, Asilan was charged with the complex crime of Direct
Assault with Murder in an Information,[2] the pertinent portion of which reads:
That on or about March 27, 2006, in the City of Manila,
Philippines, the said accused, conspiring, and confederating with
another whose true name, real identity and present whereabouts are
still unknown and mutually helping each other, did then and there
willfully, unlawfully, and feloniously attack, assault and use personal
violence upon the person of PO1 RANDY ADOVAS y PE-CAAT, a
member of the Philippine National Police assigned at Camp Bagong
Diwa, Bicutan, Taguig, MM, duly qualified, appointed, and acting as
such, and therefore an agent of a person in authority, which fact was
known to the said accused, while PO1 RANDY ADOVAS y PE-
CAAT was in the performance of his official duty, that is, while
handcuffing the at-large co-conspirator for illegal possession of deadly
weapon, herein accused suddenly appeared and with intent to kill,
treachery and evident premeditation, attack, assault, and use personal
violence upon said police officer by then and there repeatedly
stabbing the latter with a fan knife then grabbing his service
firearm and shooting him, thereby inflicting upon the said PO1
RANDY ADOVAS y PE-CAAT mortal stab and gunshot wounds which
were the direct and immediate cause of his death thereafter.
Asilan pleaded not guilty upon his arraignment[3] on April 10, 2006. Pre-Trial
Conference followed on April 26, 2006, where the counsels agreed to stipulate that
Asilan, who was at that time present in the RTC, was the same Asilan named in the
Information, and that the victim, Police Officer 1 (PO1) Randy Adovas y Pe-caat
(Adovas), was a police officer in active duty at the time of his death. [4] Trial on the
merits ensued after the termination of the pre-trial conference.
Below is the prosecutionO s version, as succinctly summarized by the Office of
the Solicitor General (OSG) from the testimony of Joselito Binosa (Binosa)[5]:
In the evening of March 27, 2006, around 10:00 oO clock, Joselito
Binosa, a jeepney barker/carwash boy while chatting with his friends
at the El Nio Bakery along Teresa Street, Sta. Mesa, Manila, heard a
gunshot nearby. He then went to the place where the sound came and
from where he was standing which was about three (3) to four (4)
meters away, he saw a uniformed policeman, who seemed to be
arresting someone and ordering the latter to lay on the ground.
The police officer pushed the man to the wall, poked the gun on
him and was about to handcuff the latter when another man, herein
appellant Asilan arrived, drew something from his back and stabbed
the police officer on his back several times until the latter fell to the
ground.
The man who was being arrested by the police officer held the
latterO s hand while he was being stabbed repeatedly by [Asilan]. The
man who was being arrested then took the officerO s gun and shot the
latter with it.
The fellow barker of Joselito Binosa then threw stones at the
malefactors who subsequently left the place.
Joselito Binosa secretly followed [Asilan] and his companion
who walked towards the railroad track taking Teresa St., Sta. Mesa,
Manila. [Asilan] entered an alley and thereafter returned to the place
of the incident. The other man walked on to the tracks.
At that moment, a policeman passed by and Binosa pointed
[Asilan] to him. [Asilan] was arrested and the knife which was used in
the
stabbing was confiscated by the policeman.[6] (Citations omitted.)
The above narration of events was largely corroborated by Pol Justine San
Diego (San Diego), a student, who also witnessed the events that transpired on March
27, 2006.[7]
The prosecution also submitted as evidence Medico Legal Report No. M-219-
06,[8] accomplished and testified to by Dr. Vladimir V. Villaseor. The pertinent portion
of the Medico Legal Report states:
SPECIMEN SUBMITTED:

Cadaver of Randy Pe-caat Adovas, 29 y/o male, married, a
policeman, 167 cm in height and a resident of 19 West Bank Road,
Floodway, Rosario Pasig City.
PURPOSE OF LABORATORY EXAMINATION:
To determine the cause of death.
FINDINGS:
Body belongs to a fairly nourished, fairly developed male
cadaver in rigor mortis with postmortem lividity at the dependent
portions of the body. Conjunctivae, lips and nailbeds are pale. With
exploratory laparotomy incision at the anterior abdominal wall,
measuring 29 cm long, along the anterior midline.
Trunk & Upper Extremity:
1) Stab wound, right axillary region, measuring 6 x 4 cm, 16
cm from the anterior midline.
2) Stab wound, right hypochondriac region, measuring 2.3
x 0.7 cm, 2cm right of the anterior midline, 9 cm deep, directed
posteriorwards, downwards & medialwards, lacerating the right lobe
of the liver.
-over-
CONCLUSION:
Cause of death is MULTIPLE STAB WOUNDS & GUNSHOT
WOUND OF THE TRUNK AND UPPER EXTREMITIES.
Meanwhile, Asilan, in his AppellantsO Brief,[9] summed up his defense as
follows:
On March 27, 2006, at around 10:00 oO clock p.m. JOSEPH
ASILAN [Asilan] was on board a passenger jeepney on his way to
Mandaluyong. As he had to transfer to another jeepney, [Asilan]
alighted at Old Sta. Mesa and waited for a jeep bound for Pasig
City. Suddenly, three (3) motorcycles stopped in front of him, the
passengers of which approached and frisked him. He was thereafter
brought to the police station and in a small room, he was forced to
admit to the stabbing of a police officer. Thereafter, he was brought to
a nearby hospital and was medically examined. Then he was again
taken to the police station where he was confronted with the knife
which was allegedly used in stabbing PO1 Adovas. He was mauled for
refusing to confess to the stabbing of the said policeman. Afterwards,
he was presented to alleged eyewitnesses. However, the supposed
eyewitnesses were not the ones presented by the prosecution in court.
[10]
The RTC convicted Asilan of Murder in its Decision[11] dated January 8, 2007,
the dispositive portion of which reads:
WHEREFORE, premises considered, the Court finds the
Prosecution to have failed to establish and prove beyond reasonable
doubt the offense of direct assault. Where a complex crime is charged
and the evidence fails to support the charge as to one of the
component, the accused can be convicted of the other (People v. Roma,
374 SCRA 457).
WHEREFORE, his guilt having been proven beyond
reasonable doubt for the crime of murder with the qualifying
circumstance of treachery, judgment is hereby rendered finding
accused Joseph Asilan y Tabornal GUILTY beyond reasonable doubt of
the crime of murder and is hereby imposed the penalty of reclusion
perpetua. He is hereby ordered to pay the heirs of PO1 Randy Adovas
y Pe-Caat the sum of 84,224.00 as actual damages, 25,000.00 for
moral damages and 50,000.00 civil indemnity.[12]
The RTC, in acquitting Asilan of Direct Assault, held that while it was confirmed
that Adovas was in his police uniform at the time of his death, the prosecution failed to
establish convincingly that he was in the performance of his duty when he was
assaulted by Asilan. The RTC explained that there was no evidence to show that Adovas
was arresting somebody at the time Asilan stabbed him. [13] The RTC added:
What the framers of the law wanted was to know the reason
of the assault upon a person in authority or his agents. The
prosecution failed to show why the victim was pushing the man on the
wall or why he poked his gun at the latter. That the victim was
assaulted while in the performance of his duty or by reason thereof
was not conclusively proven.[14]
In convicting Asilan of Murder, the RTC held that his defense of denial could not
be O accorded more weight than the categorical assertions of the witnesses who
positively identified him as the man who suddenly appeared from behind [Adovas] and
stabbed the latter repeatedly.O [15] Moreover, Asilan admitted that he was at the scene of
the crime when he was arrested, that he could not give any reason for the witnesses to
falsely testify against him, and that he did not know them.
Anent the aggravating circumstances, the RTC found that the killing of Adovas
was proven to be attended with treachery since Adovas was attacked from behind,
depriving him of the opportunity to defend himself.[16] However, the RTC declared that
the aggravating circumstance of evident premeditation O could not be appreciated x x x
absent evidence that [Asilan] planned or prepared to kill [Adovas] or of the time when
the plot was conceived.O [17]
As to the damages, the RTC found the prosecutionO s evidence, which consisted
of AdovasO s wifeO s testimony, and the receipts of the expenses she incurred in
AdovasO s hospitalization, wake, and burial, sufficient to award moral and actual
damages.
On January 19, 2007, Asilan appealed[18] his conviction to the Court of Appeals,
mainly on the ground that the prosecution failed to prove his guilt beyond reasonable
doubt. He subsequently filed a Motion to Litigate as a Pauper, [19] which on February 28,
2007, was granted in an Order[20] by the RTC.
On February 25, 2009, the Court of Appeals rendered its Decision, affirming in
toto the RTCO s ruling.
WHEREFORE, premises considered, the assailed Decision dated
08 January 2007 of the Court a quo in Criminal Case No. 06-243060,
finding Accused-Appellant JOSEPH ASILAN Y TABORNAL guilty
beyond reasonable doubt of Murder, is hereby AFFIRMED in toto.[21]
The Court of Appeals rejected AsilanO s arguments and averred that his denial
and bare attempt at exculpation by trying to destroy the credibility of the candid,
categorical, and trustworthy testimonies of the witnesses must fail.
Aggrieved, Asilan is now appealing[22] his case to this Court, with the same
assignment of errors he posited before the Court of Appeals:
ASSIGNMENT OF ERRORS
I THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-
APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE OFFENSE
CHARGED BY RELYING ON THE INCONSISTENT AND UNNATURAL
TESTIMONY OF THE ALLEGED EYEWITNESS.
II THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-
APPELLANT GUILTY OF THE CRIME CHARGED DESPITE THE FAILURE
OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE
DOUBT.
III THE TRIAL COURT GRAVELY ERRED IN APPRECIATING THE
QUALIFYING CIRCUMSTANCE OF TREACHERY.[23]
Discussion Asilan was convicted of the crime of Murder under Article 248 of the
Revised Penal Code:
Art. 248. Murder. N Any person who, not falling within the
provisions of Article 246 shall kill another, shall be guilty of murder
and shall be punished by reclusion perpetua to death, if committed
with any of the following attendant circumstances:
1. With treachery, taking advantage of superior strength,
with the aid of armed men, or employing means to
weaken the defense or of means or persons to insure or
afford impunity;
2. In consideration of a price, reward, or promise;
3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a
vessel, derailment or assault upon a railroad, fall of an airship, by
means of motor vehicles, or with the use of any other means involving
great waste and ruin;
4. On occasion of any of the calamities enumerated in the
preceding paragraph, or of an earthquake, eruption of a
volcano, destructive cyclone, epidemic, or any other
public calamity;
5. With evident premeditation;
6. With cruelty, by deliberately and inhumanly augmenting
the suffering of the victim, or outraging or scoffing at his
person or corpse.
 Asilan claims that the testimonies of the witnesses were not only filled with
inconsistencies, they were also incredible for being contrary to the common experience
and observation that mankind can approve as probable under the circumstance. [24]
Asilan insists that the testimony of Binosa should not be given credence as he
was selective in his recollection of the events. Asilan claimed that Binosa seemed to
have recalled more details on cross-examination, thus O improvingO on the version he
gave during his direct examination. Asilan further claims that BinosaO s suggestion that
Asilan returned to the scene of the crime after he committed the alleged crime is very
unlikely. Asilan avers that San DiegoO s testimony was likewise not credible as it was
clearly only a more refined version of BinosaO s account of the events. Moreover, Asilan
says that San DiegoO s testimony is too good to be true as he is unlikely to have a
detailed recollection of an event, which according to him happened within a span of two
minutes.[25]
Credibility of Witnesses
It is a well-settled rule that the assessment of the trial court regarding the
credibility of witnesses will generally not be disturbed on appeal. The rationale for this
doctrine is that the trial court is in a better position to decide the issue, as it heard the
witnesses themselves and observed their deportment and manner of testifying during
the trial.[26] The only exceptions to this rule are the following:
1. When patent inconsistencies in the statements of witnesses are ignored by the
trial court; or
2. When the conclusions arrived at are clearly unsupported by the evidence. [27]
This Court sees no reason to apply the above exceptions and disturb the findings
of the RTC, which were affirmed by the Court of Appeals.
Our perusal of the records showed that the RTC was vigilant in its duty to
ascertain the truth. The RTC itself propounded clarificatory questions to Binosa and
San Diego while they were testifying. At the end of the trial, the RTC found these
witnesses credible, and believed their eyewitness accounts because they were
categorical in their identification of Asilan as one of AdovasO s assailants. The RTC also
pointed out that it could not find any dubious reason for Binosa and San Diego to falsely
implicate Asilan in a heinous crime.[28]
Alleged Inconsistencies
The alleged inconsistency in BinosaO s testimony does not render his testimony
fictitious. The fact that he was able to provide more details of the events only during
cross-examination is not unusual, and on the contrary tends to buttress, rather than
weaken, his credibility, since it shows that he was neither coached nor were his answers
contrived.[29] After all, O [w]itnesses are not expected to remember every single detail of
an incident with perfect or total recall.O [30]
As for San DiegoO s testimony, it is not unnatural for him to have a detailed
recollection of the incident. O Different persons have different reactions to similar
situations. There is no typical reaction to a sudden occurrence.O [31] It is worthy to note
that San Diego was only sixteen years old when he witnessed the stabbing of Adovas. It
was his first time to witness a person being stabbed right before his very eyes. He
testified that three months after that night, the events were still vividly imprinted in his
mind.[32] It is thus not improbable that he could, with certainty, identify Asilan as the
man who stabbed Adovas that fateful night.
Likewise, our scrutiny of the so-called inconsistencies relied upon by Asilan
showed that they only referred to minor details, which did not affect the credibility of
the prosecution witnesses.[33] In People v. Albarido,[34] this Court said:
It is elementary in the rule of evidence that inconsistencies in the
testimonies of prosecution witnesses with respect to minor details and
collateral matters do not affect the substance of their declaration nor
the veracity or weight of their testimony. In fact, these minor
inconsistencies enhance the credibility of the witnesses, for they
remove any suspicion that their testimonies were contrived or
rehearsed. In People vs. Maglente, this Court ruled that inconsistencies
in details which are irrelevant to the elements of the crime are not
grounds for acquittal. x x x.[35]
Credibility of the evidence
Asilan further asseverates that it is perplexing how none of the witnesses, who
were present during the incident, warned Adovas of the impending danger to his
life. He contends that O for evidence to be believed, it must not only proceed from the
mouth of a credible witness, but must be credible in itself such as the common
experience and observation of mankind can approve as probable under the
circumstance.O [36]
This Court would like to reiterate that no standard form of behavior is expected of
an individual who witnesses something shocking or gruesome like murder. This is
especially true when the assailant is near. It is not unusual that some people would feel
reluctant in getting involved in a criminal incident. [37]
In the same manner, it is also not surprising that Asilan returned to the scene of
the crime after stabbing Adovas. His O failure to flee and the apparent normalcy of his
behavior subsequent to the commission of the crime do not imply his
innocence.O [38] This Court, elucidating on this point, declared:
Flight is indicative of guilt, but its converse is not necessarily
true. Culprits behave differently and even erratically in externalizing
and manifesting their guilt. Some may escape or flee -- a circumstance
strongly illustrative of guilt -- while others may remain in the same
vicinity so as to create a semblance of regularity, thereby avoiding
suspicion from other members of the community. [39]
Defense of Denial
Unfortunately, AsilanO s bare denial, when juxtaposed with the prosecution
witnessesO positive declarations, is not worthy of credence. Denial, which is the usual
refuge of offenders, is an inherently weak defense, and must be buttressed by other
persuasive evidence of non-culpability to merit credibility. The defense of denial fails
even more when the assailant, as in this case, was positively identified by credible
witnesses, against whom no ulterior motive could be ascribed. [40]
Asilan not only admitted that he was at the scene of the crime when he was
arrested by the police authorities, he also admitted that he did not know any of the
prosecution witnesses prior to his trial. Moreover, he had filed no case against the
police officers whom he accused of mauling him to make him admit to the stabbing of
Adovas. AsilanO s O self-serving statements deserve no weight in law and cannot be
given greater evidentiary value over the testimony of the witnesses who testified on
positive points.O [41]
Qualifying Circumstance of Treachery
Asilan pleads that treachery cannot be appreciated in the present case as the
prosecution failed to establish that he had consciously or deliberately adopted or
chosen the mode of attack employed upon Adovas to deprive him of an opportunity to
defend himself or retaliate. Asilan argues that mere suddenness of the attack is not
enough to constitute treachery. He further posits that while it may be true that he
allegedly came from behind, the O mode of attack could have occurred in a spur of the
moment.O [42]
The RTC correctly appreciated the qualifying circumstance of treachery in the
killing of Adovas.
The prosecution was able to sufficiently establish the attendance of treachery
in the case at bar. O It is basic in our penal law that treachery is present when the
offender employs means, methods or forms which tend directly and especially to insure
the execution of the crime, without risk to himself arising from the defense which the
offended party might make.O [43] In People v. Tan,[44] this Court expounded on the
concept of treachery as follows:
The essence of treachery is the sudden and unexpected attack,
without the slightest provocation on the part of the person
attacked. Treachery is present when the offender commits any of the
crimes against persons, employing means, methods or forms in the
execution thereof, which tend directly and especially to insure its
execution, without risk arising from the defense which the offended
party might make. In the case at bar, the attack on Magdalino Olos was
treacherous, because he was caught off guard and was therefore
unable to defend himself, as testified to by the prosecution witnesses
and as indicated by the wounds inflicted on him.[45]
Both eyewitnesses testified on how Asilan attacked Adovas from
behind. Adovas could not have defended himself because Asilan stabbed him at his
back repeatedly sansprovocation or warning. The deciding factor is that AsilanO s
execution of his attack made it impossible for Adovas to defend himself or retaliate. [46]
Sufficiency of the Information
Asilan also claims that his constitutional right to be informed of the nature and
cause of accusation against him was infringed when he was convicted for Murder, since
the manner by which he carried out the killing with the qualifying circumstance of
treachery was not alleged in the Information against him. Thus, he asserts, he was
effectively only charged with Homicide.[47]
This Court does not find merit in AsilanO s contention that he cannot be
convicted of murder because his acts of treachery were not alleged with specificity in
the Information. Section 6, Rule 110 of the Rules on Criminal Procedure states:
Sec. 6. Sufficiency of complaint or information. A complaint
or information is sufficient if it states the name of the accused; the
designation of the offense by the statute; the acts or omissions
complained of as constituting the offense; the name of the offended
party; the approximate time of the commission of the offense; and the
place wherein the offense was committed.
When the offense is committed by more than one person, all
of them shall be included in the complaint or information.
 This Court held that O [u]nder Section 6, the Information is sufficient if it
contains the full name of the accused, the designation of the offense given by the
statute, the acts or omissions constituting the offense, the name of the offended party,
the approximate date, and the place of the offense.O [48] The Information herein
complied with these conditions. Contrary to AsilanO s contention, the qualifying
circumstance of O treacheryO was specifically alleged in the Information. O The rule is
that qualifying circumstances must be properly pleaded in the Information in order not
to violate the accusedO s constitutional right to be properly informed of the nature and
cause of the accusation against him.O [49] Asilan never claimed that he was deprived of
his right to be fully apprised of the nature of the charges against him due to the
insufficiency of the Information.
This Court completely agrees with the Court of AppealsO pronouncement that
O since treachery was correctly alleged in the Information and duly established by the
prosecution, x x x [Asilan]O s conviction for the crime of murder is proper.O [50]
In any case, it is now too late for Asilan to assail the sufficiency of the
Information on the ground that there was failure to specifically allege therein how
treachery was carried out. Section 9, Rule 117 of the Rules of Court provides:
SEC. 9. Failure to move to quash or to allege any ground
therefor.- The failure of the accused to assert any ground of a motion to
quash before he pleads to the complaint or information, either because
he did not file a motion to quash or failed to allege the same in said
motion, shall be deemed a waiver of any objections except those based
on the grounds provided for in paragraphs (a), (b), (g), and (i) of
section 3 of this Rule.
Moreover, in People v. Candaza,[51] this Court held that O [a]n Information which
lacks essential allegations may still sustain a conviction when the accused fails to object
to its sufficiency during the trial, and the deficiency was cured by competent evidence
presented therein.O [52] In this case, Asilan not only failed to question the sufficiency of
the Information at any time during the pendency of his case before the RTC, he also
allowed the prosecution to present evidence, proving the elements of treachery in the
commission of the offense. Asilan is thus deemed to have waived any objections against
the sufficiency of the Information.[53]
Pursuant to prevailing jurisprudence,[54] this Court is increasing the award of
civil indemnity from Fifty Thousand Pesos (50,000.00) to Seventy-Five Thousand
Pesos (75,000.00), and the moral damages from Twenty-Five Thousand Pesos
(25,000.00) to Fifty Thousand Pesos (50,000.00). Moreover, in view of the presence
of the qualifying circumstance of treachery, an additional award of Thirty Thousand
Pesos (30,000.00), as exemplary damages, in accordance with Article 2230 of the Civil
Code,[55]should be awarded to the heirs of Adovas. [56]
As to actual damages, AdovasO s widow, Irene Adovas, presented the receipts
showing that she paid 25,224.00 to Our Lady of Lourdes Hospital, Inc., as hospital
expenses,[57] 35,000.00 to Marulas Memorial Homes,[58] and 20,000.00 to Funeraria
Saranay as funeral expenses,[59] or a total of 80,224.00.
Both the RTC and the Court of Appeals failed to consider that under Article
2206 of the Civil Code, Asilan is also liable for the loss of the earning capacity of Adovas,
and such indemnity should be paid to his heirs[60]:
Art. 2206. The amount of damages for death caused by a
crime or quasi-delict shall be at least three thousand pesos, even
though there may have been mitigating circumstances. In addition:
(1) The defendant shall be liable for the loss of the earning capacity of
the deceased, and the indemnity shall be paid to the heirs of the latter;
such indemnity shall in every case be assessed and awarded by the
court, unless the deceased on account of permanent physical disability
not caused by the defendant, had no earning capacity at the time of his
death;
Irene Adovas testified[61] on the amount her husband received as police officer
and presented documentary evidence to show that Adovas, who was only 29 years old
when he died, [62] earned 8,605.00 a month[63] at the time of his death.
The following are the factors in computing the amount of damages recoverable
for the loss of earning capacity of the deceased:
1) The number of years on the basis of which the damages shall be
computed. This is based on the formula (2/3 x 80 age of the deceased at the time of
his death = life expectancy), which is adopted from the American Expectancy Table of
Mortality; and
2) The rate at which the losses sustained by the heirs of the deceased should be
fixed.[64]
Net income is arrived at by deducting the amount of the victimO s living
expenses from the amount of his gross income.[65] The loss of earning capacity of Asilan
is thus computed as follows:
Net Earning Capacity = life expectancy x [gross annual income living expenses] [66]
 = 2/3 [80-age at time of death] x [gross annual income 50% of
gross annual income]
= 2/3 [80-29] x [103,260.00 51,630.00]
= 34 x 51,630.00
= 1,755,420.00

WHEREFORE, the decision dated February 25, 2009 of the Court of Appeals in
CA-G.R. CR.-H.C. No. 02686 is hereby AFFIRMED insofar as it found accused-appellant
Joseph Asilan y Tabornal guilty beyond reasonable doubt of MURDER and sentenced to
suffer the penalty of reclusion perpetua, with MODIFICATION as to the damages.
Asilan is hereby ordered to indemnify the heirs of Randy Adovas y Pe-caat the
following: (a) 75,000.00 as civil indemnity; (b) 50,000.00 as moral damages; (c)
30,000.00 as exemplary damages; (d) 80,224.00 as actual damages; (e)
1,755,420.00 as loss of earning capacity; and (f) interest on all damages awarded at
the rate of 6% per annum from the date of finality of this judgment.

SO ORDERED.