THIRD DIVISION

[G.R. No. 158177. January 28, 2008.]

SPOUSES BENITO LO BUN TIONG and CAROLINE SIOK CHING

TENG, petitioners, vs. VICENTE BALBOA, respondent.

DECISION

AUSTRIA-MARTINEZ, J : p

The spouses Benito Lo Bun Tiong and Caroline Siok Ching Teng (petitioners) charge
Vicente Balboa (respondent) with forum shopping.

On February 24, 1997, respondent led with the Regional Trial Court (RTC) of
Manila (Branch 34), Civil Case No. 97-82225 for Collection of Sum of Money against
petitioners. The amount sought covers three post-dated checks issued by petitioner
Caroline Siok Ching Teng (Caroline), as follows: Asia Trust Check No. BNDO57546
dated December 30, 1996 for P2,000,000.00; Asia Trust Check No. BNDO57547
dated January 15, 1997 for P1,200,000.00; and Asia Trust Check No. BNDO57548
dated January 31, 1997 for P1,975,250.00 or a total of P5,175,250.00. 1

On July 21, 1997, separate criminal complaints for violation of Batas Pambansa Blg.
22 (B.P. No. 22) were led against Caroline before the Municipal Trial Court (MTC)
of Manila (Branch 10), covering the said three checks. These cases were docketed as
Criminal Case Nos. 277576 to 78. 2

On August 11, 1998, the RTC rendered its Decision in Civil Case No. 97-82225
finding petitioners liable, as follows:

WHEREFORE, judgment is hereby rendered in favor of the plainti and

against the defendants ordering the latter:

1. To play the plainti the sum of P5,175,250.00 plus 6% interest

per annum until full payment;

2. To pay the plainti the sum of P100,000.00 as and for

attorney's fees.

3. To pay the cost of suit.

The counterclaim is hereby dismissed for lack of merit.

SO ORDERED. 3

Thereafter, in a Decision dated December 5, 2001 rendered in Criminal Case Nos.

277576 to 78, the MTC acquitted Caroline of the oenses charged for failure of the
prosecution to prove her guilt beyond reasonable doubt. The MTC, however, found
Caroline civilly liable in favor of respondent for the amounts covered by these
checks, to wit:

WHEREFORE, accused Caroline Siok Ching Teng is acquitted of the charge

for violation of BP Blg. 22 for failure of the prosecution to prove her guilt
beyond reasonable doubt. The accused is ordered civilly liable to the
oended party for the amounts of the checks subject of the three
informations herein, i.e., P1,200,000.00, P1,975,250.00 and P2,000,000.00.

SO ORDERED. 4

Petitioner sought partial reconsideration of the MTC Decision praying for the
deletion of the award of civil indemnity, but it was denied by the MTC per Order
dated April 12, 2002. Thus, Caroline appealed to the RTC, which docketed the case
as Criminal Case Nos. 02-204544-46.

In the meantime, petitioners brought to the Court of Appeals (CA) on appeal the
RTC Decision in Civil Case No. 97-82225, docketed as CA-G.R. CV No. 61457. In the
assailed Decision dated November 20, 2002, the CA 5 dismissed the appeal for lack
of merit and armed the RTC Decision in toto. The dispositive portion of the
assailed CA Decision reads:

WHEREFORE, in view of the foregoing and nding no reversible error in the

appealed Decision dated August 11, 1998 of Branch 34 of the Regional Trial
Court of Manila in Civil Case No. 97-82225, the instant appeal is DISMISSED
for lack of merit, and said Decision is affirmed in toto.

SO ORDERED. 6

Petitioners moved for reconsideration of the CA Decision, but this was denied per
Resolution dated April 21, 2003. 7

On May 8, 2003, the RTC as an appellate court, rendered its Decision in Criminal
Case No. 02-204544-46, modifying the MTC Decision by deleting the award of civil
damages. 8

Now before the Court for resolution is the Amended Petition led under Rule 45 of
the Rules of Court, questioning the CA Decision dated November 20, 2002 and
Resolution dated April 21, 2003, on the lone ground that:

PUBLIC RESPONDENT COURT OF APPEALS ACTED WITHOUT JURISDICTION

AND WITH GRAVE ABUSE OF DISCRETION IN ALLOWING PRIVATE
RESPONDENT TO RECOVER TWICE FOR THE SAME OBLIGATION ON
ACCOUNT OF THE SAID PRIVATE RESPONDENT'S DELIBERATE FAILURE
AND REFUSAL TO INFORM THE REGIONAL TRIAL COURT THAT THE CIVIL
OBLIGATION BEING SUED UPON IS THE SUBJECT OF CRIMINAL
COMPLAINTS WITH THE METROPOLITAN TRIAL COURT, AND FOR WHICH
THE CIVIL OBLIGATION WAS SUBSEQUENTLY ADJUDGED. 9

Petitioners contend that the assailed CA Decision and Resolution should be

reconsidered and the RTC Decision dated August 11, 1998 dismissed as respondent's
act of ling Civil Case No. 97-82225 and Criminal Cases Nos. 277576 to 78
constitutes forum shopping.

Forum shopping is the institution of two or more actions or proceedings grounded

on the same cause, on the supposition that one or the other court would render a
favorable disposition. It is usually resorted to by a party against whom an adverse
judgment or order has been issued in one forum, in an attempt to seek and possibly
to get a favorable opinion in another forum, other than by an appeal or a special
civil action for certiorari. 10

There is forum shopping when the following elements concur: (1) identity of the
parties or, at least, of the parties who represent the same interest in both actions;
(2) identity of the rights asserted and relief prayed for, as the latter is founded on
the same set of facts; and (3) identity of the two preceding particulars, such that
any judgment rendered in the other action will amount to res judicata in the action
under consideration or will constitute litis pendentia. 11

In Hyatt Industrial Manufacturing Corp. v. Asia Dynamic Electrix Corp., 12 the Court
ruled that there is identity of parties and causes of action between a civil case for
the recovery of sum of money as a result of the issuance of bouncing checks, and a
criminal case for the prosecution of a B.P. No. 22 violation. Thus, it ordered the
dismissal of the civil action so as to prevent double payment of the claim. The Court
stated:

. . . The prime purpose of the criminal action is to punish the oender to

deter him and others from committing the same or similar oense, to isolate
him from society, reform or rehabilitate him or, in general, to maintain social
order. The purpose, meanwhile, of the civil action is for the restitution,
reparation or indemnication of the private oended party for the damage
or injury he sustained by reason of the delictual or felonious act of the
accused. Hence, the relief sought in the civil aspect of I.S. No. 00-01-00304
and I.S. No. 00-01-00300 is the same as that sought in Civil Case No. MC 01-
1493, that is, the recovery of the amount of the checks, which, according to
petitioner, represents the amount to be paid by respondent for its
purchases. . . .

This was reiterated in Silangan Textile Manufacturing Corp. v. Demetria , 13 where

the civil case for the recovery of the amount covered by the bouncing checks was
also ordered dismissed.

In Hyatt and Silangan, the Court applied Supreme Court Circular No. 57-97 effective
September 16, 1997, which provides:

1. The criminal action for violation of Batas Pambansa Blg. 22 shall be

deemed to necessarily include the corresponding civil action, and no
reservation to file such action separately shall be allowed or recognized.

This was later adopted as Rule 111 (b) of the 2000 Revised Rules of Criminal
Procedure, to wit:
 (b) The criminal action for violation of Batas Pambansa Blg. 22 shall be
deemed to include the corresponding civil action. No reservation to le such
civil action separately shall be allowed.

Upon ling of the aforesaid joint criminal and civil actions, the oended party
shall pay in full the ling fees based on the amount of the check involved,
which shall be considered as the actual damages claimed. Where the
complaint or information also seeks to recover liquidated, moral, nominal,
temperate or exemplary damages, the oended party shall pay the ling
fees based on the amounts alleged therein. If the amounts are not so
alleged but any of these damages are subsequently awarded by the court,
the ling fees based on the amount awarded shall constitute a rst lien on
the judgment.

Where the civil action has been led separately and trial thereof has not yet
commenced, it may be consolidated with the criminal action upon application
with the court trying the latter case. If the application is granted, the trial of
both actions shall proceed in accordance with section 2 of this Rule
governing consolidation of the civil and criminal actions.

The foregoing, however, are not applicable to the present case. It is worth noting
that Civil Case No. 97-82225 was led on February 24, 1997, and Criminal Cases
Nos. 277576 to 78 on July 21, 1997, prior to the adoption of Supreme Court Circular
No. 57-97 on September 16, 1997. Thus, at the time of ling of Civil Case No. 97-
82225 and Criminal Cases Nos. 277576 to 78, the governing rule is Section 1, Rule
111 of the 1985 Rules of Court, to wit:

SEC. 1. Institution of criminal and civil actions . When a criminal action

is instituted, the civil action for the recovery of civil liability is impliedly
instituted with the criminal action, unless the oended party waives the civil
action, reserves his right to institute it separately, or institutes the civil
action prior to the criminal action.

Such civil action includes the recovery of indemnity under the Revised Penal
Code, and damages under Articles 32, 33, 34 and 2176 of the Civil Code of
the Philippines arising from the same act or omission of the accused.

xxx xxx xxx (Emphasis supplied)

Under the foregoing rule, an action for the recovery of civil liability arising from an
oense charged is necessarily included in the criminal proceedings, unless (1) there
is an express waiver of the civil action, or (2) there is a reservation to institute a
separate one, or (3) the civil action was filed prior to the criminal complaint. 14 Since
respondent instituted the civil action prior to the criminal action, then Civil Case No.
97-82225 may proceed independently of Criminal Cases Nos. 277576 to 78, and
there is no forum shopping to speak of.

Even under the amended rules, a separate proceeding for the recovery of civil
liability in cases of violations of B.P. No. 22 is allowed when the civil case is led
ahead of the criminal case. Thus, in the Hyatt case, the Court noted, viz.:

. . . This rule [Rule 111(b) of the 2000 Revised Rules of Criminal Procedure]
was enacted to help declog court dockets which are lled with B.P. 22 cases
as creditors actually use the courts as collectors. Because ordinarily no ling
fee is charged in criminal cases for actual damages, the payee uses the
intimidating eect of a criminal charge to collect his credit gratis and
sometimes, upon being paid, the trial court is not even informed thereof.
The inclusion of the civil action in the criminal case is expected to significantly
lower the number of cases led before the courts for collection based on
dishonored checks. It is also expected to expedite the disposition of these
cases. Instead of instituting two separate cases, one for criminal and
another for civil, only a single suit shall be led and tried. It should be
stressed that the policy laid down by the Rules is to discourage the separate
ling of the civil action. The Rules even prohibit the reservation of a separate
civil action, which means that one can no longer le a separate civil case
after the criminal complaint is led in court. The only instance when
separate proceedings are allowed is when the civil action is led
ahead of the criminal case. Even then, the Rules encourage the
consolidation of the civil and criminal cases. We have previously observed
that a separate civil action for the purpose of recovering the amount of the
dishonored checks would only prove to be costly, burdensome and time-
consuming for both parties and would further delay the nal disposition of
the case. This multiplicity of suits must be avoided. Where petitioners' rights
may be fully adjudicated in the proceedings before the trial court, resort to a
separate action to recover civil liability is clearly unwarranted. (Emphasis
supplied)

Moreover, the RTC, in its Decision in Criminal Case Nos. 02-204544-46, already
deleted the award of civil damages. Records do not disclose that appeal had been
taken therefrom. There is, therefore, no double recovery of the amounts covered by
the checks or unjust enrichment on the part of respondent.

WHEREFORE, the petition is DENIED for lack of merit. The Decision dated
November 20, 2002 and Resolution dated April 21, 2003 of the Court of Appeals are
AFFIRMED.

Costs against petitioners.

SO ORDERED.

Ynares-Santiago, Corona, * Nachura and Reyes, JJ., concur.

Footnotes

1. Records, pp. 3-9.

2. Rollo, p. 193.

3. Records, p. 262.
4. Rollo, p. 125.

5. Per Associate Justice Sergio L. Pestao, with Acting Presiding Justice Cancio C.
Garcia and Eloy R. Bello, Jr., concurring.

6. CA rollo, p. 132.

7. Id. at 162.

8. Rollo, p. 196.

9. Id. at 71-72.

10. R & E Transport, Inc. v. Latag, 467 Phil. 355, 371 (2004).

11. Silangan Textile Manufacturing Corporation v. Demetria , G.R. No. 166719, March
12, 2007, 518 SCRA 160, 168.

12. G.R. No. 163597, July 29, 2005, 465 SCRA 454.

13. Silangan Textile Manufacturing Corporation v. Demetria, id.

14. Sanchez v. Far East Bank and Trust Company , G.R. No. 155309, November 15,
2005, 475 SCRA 97, 113.

* In lieu of Justice Minita V. Chico-Nazario, per Special Order No. 484 dated January
11, 2008.
 SECOND DIVISION

[G.R. No. 163818. October 20, 2005.]

SEBASTIAN SERAG, LINO NAPAO, THOMIX SEGUMALIAN, JOSE

OLIVER SEGUMALIAN, RODOLFO TALANQUINES, ROQUE
SANMILLAN, EDGAR STA. CRUZ, ELEAZAR SAOL, NEMESIO
PANUGOT, TEODORICO DELA CRUZ, VICENTE DELA CRUZ,
ABRAHAM DELA CRUZ and MARILYN SILFAVAN , petitioners, vs.
COURT OF APPEALS and MA. DAISY SIBYA, respondents.

DECISION

CALLEJO, SR., J :p

In the wee hours of May 11, 2001, Atty. Jesus Sibya, Jr., a mayoralty candidate in
San Joaquin, Iloilo during the 2001 elections, was shot to death in front of his
residence. His driver, Norberto Salamat III, was also wounded. The Criminal
Investigation and Detection Group in Iloilo City filed a criminal complaint for murder
and attempted murder against Lino Napao, then incumbent mayor of San Joaquin,
and Sebastian Serag. 1 In a Joint Resolution dated May 26, 2001, the Provincial
Prosecutor led two Informations with the Regional Trial Court (RTC) of Guimbal,
Iloilo: (1) for Murder with the Use of Unlicensed Firearms, and (2) Attempted
Murder with the Use of Unlicensed Firearms against Serag and Napao and seven
unidentified persons. 2 The cases were docketed as Criminal Case Nos. 925 and 926.

On May 28, 2001, Norberto Salamat III and Ma. Daisy Sibya, the widow of the
deceased, led before the Oce of the Provincial Prosecutor a Supplemental
Complaint for murder, frustrated murder and violation of Presidential Decree No.
1866 against Serag, Lino Napao, 16 others, and three other unidentied persons. 3
On July 26, 2001, the Provincial Prosecutor issued a Joint Resolution nding
probable cause for murder and attempted murder with the use of unlicensed
rearms against Serag, Lino Napao, Juan Napao and 14 other accused, including
those whose identities were earlier unknown. 4 The Provincial Prosecutor led, in
the RTC of Guimbal, Iloilo, an Amended Information for Murder 5 and an Amended
Information for Attempted Murder with the use of unlicensed rearm against the
said accused.

Accused Juan Napao and the 14 other additional accused led on August 16, 2002, a
petition for review of the July 26, 2001 Joint Resolution of the Provincial Prosecutor
before the Department of Justice (DOJ). 6

The trial court found probable cause for murder and attempted murder against the
accused. Consequently, the court issued an Order 7 on September 27, 2001, for the
issuance of warrants for the arrest of the accused who were still at large.
Pending the resolution by the Secretary of Justice of the said petition for review, the
proceedings were suspended. Subsequently, however, the arraignment of the
accused was set on May 21, 2002. It was, thereafter, reset to June 6, 2002 which,
by agreement of the prosecution and the defense, was "intransferrable" in
character. 8 It turned out that the day before (May 20, 2002), the Secretary of
Justice had issued Resolution No. 258 arming with modication, the Joint
Resolution of the Provincial Prosecutor, downgrading the charges from Murder to
Homicide, and from Attempted Murder to Attempted Homicide, respectively, except
as to four of the accused. The Provincial Prosecutor was likewise ordered to amend
the Amended Informations accordingly. 9 The RTC received a copy of the Resolution
on May 27, 2002.

Ma. Daisy Sibya, likewise, received, on May 27, 2002, a copy of the said Resolution.
She led a motion for the reconsideration of the said resolution on June 4, 2002,
serving copies thereof on the RTC and the accused-petitioners by registered mail.

In compliance with Resolution No. 258 of the Secretary of Justice, the Provincial
Prosecutor led before the RTC on June 5, 2002 a Motion for Leave to File a Second
Amended Information for homicide and attempted homicide in the two cases, and
for the court to admit the said second Amended Informations. 10 The motion was set
for hearing at 2:00 p.m. of June 6, 2002. During the said hearing, the private
prosecutors opposed the motion and moved for deferment, contending that the
private complainant had earlier led a motion for reconsideration of Resolution No.
258, and that it would be premature for the Provincial Prosecutor to le a motion
for the admission of the Second Amended Information and for the court to admit
the same. 11 The Provincial Prosecutor joined the motion of the private prosecutors.
IEcaHS

However, the RTC verbally granted the motion of the Provincial Prosecutor, and
admitted the Second Amended Information for Homicide. 12 Criminal Case No. 926
for the attempted homicide was, likewise, dismissed on the ground that it had no
jurisdiction over the said case. The RTC further declared that it had not been served
with a copy of the private complainant's motion for reconsideration. The court
forthwith arraigned the accused for homicide, who pleaded not guilty to the crime
charged.

On June 6, 2002, the RTC issued its Order 13 granting the motion of the Provincial
Prosecutor for the admission of the Second Amended Information for Homicide, and
ordered the dismissal of Criminal Case No. 926 without prejudice to its re-ling in
the Municipal Trial Court (MTC). Accordingly, the Information was re-led in the
MTC, docketed as Criminal Case No. 1604. The accused were arraigned for the said
cases. 14 Taking into account the nding of the Secretary of Justice, the court held
that the nding of probable cause for murder against the accused did not bar it from
admitting the Second Amended Information for Homicide. Likewise, the pendency of
the private complainant's motion for the reconsideration of the May 20, 2002
Resolution of the Secretary of Justice was not a valid reason for the deferment of
the arraignment of the accused for homicide. On June 19, 2002, the private
prosecutors moved for the reconsideration of the order of the trial court which,
however, denied the motion in an Order 15 dated July 26, 2002.
The private complainant forthwith assailed the orders of the trial court and the
arraignment of the accused on June 6, 2002 via a petition for certiorari in the Court
of Appeals (CA). The case was docketed as CA-G.R. SP No. 73035. She insisted that
the admission by the RTC of the Second Amended Information downgrading the
crime charged therein to Homicide and the arraignment of the accused therein on
June 6, 2002 were premature since the Secretary of Justice had not yet resolved her
motion for reconsideration of the May 20, 2002 Resolution.

On November 22, 2002, the CA issued a Temporary Restraining Order enjoining the
RTC from proceeding with Criminal Case Nos. 925 and 926. 16

In the meantime, the Secretary of Justice issued a Resolution 17 on November 18,

2002, granting the motion for reconsideration of the private complainant, setting
aside Resolution No. 258. Consequently, the May 26, 2001 and July 26, 2001
Resolutions of the Provincial Prosecutor were reinstated. The Secretary of Justice
opined that the killing of the deceased was, after all, qualied by treachery. He
further declared that he was not proscribed from taking cognizance of and resolving
the private complainant's motion for reconsideration notwithstanding the
arraignment of the accused. He directed the Provincial Prosecutor to withdraw the
Second Amended Information for Homicide and Attempted Homicide and to le, in
lieu thereof, separate Informations for Murder and Attempted Murder, respectively,
against the said accused.

On December 5, 2002, the accused-petitioners led a motion for the reconsideration

of the said Resolution. 18 They argued that, with their arraignment in the RTC and
the MTC, the Secretary of Justice should have denied the private complainant's
motion for reconsideration, conformably with Section 7(2) of DOJ Circular No. 70.
However, the Secretary of Justice denied the said motion.

Juan Napao and the other petitioners in the Department of Justice filed a petition for
certiorari with the CA assailing the November 18, 2002 Resolution of the Secretary
of Justice, and praying for the reinstatement of Resolution No. 258. The case was
docketed as CA-G.R. SP No. 77759.

In a Resolution 19 dated July 18, 2003, the CA dismissed the petition for failure of
the petitioners therein to comply with Section 2, Rule 42 and Section 5, Rule 7 of
the Rules of Court, as only one of the petitioners had executed the requisite
certicate of non-forum shopping. The petitioners therein led a motion for the
reconsideration of the CA resolution, but the appellate court denied the motion for
lack of merit. 20

On June 3, 2004, Sebastian Serag, et al. led a petition for review on certiorari with
this Court, assailing the Resolutions of the CA in CA-G.R. SP No. 77759. The case
was docketed as G.R. No. 163557. In a Resolution dated June 23, 2004, this Court
denied the petition for the petitioners' failure to show that the appellate court
committed any reversible error. The said resolution became nal and executory, and
entry of judgment was made of record on August 23, 2004.

Meanwhile, on November 22, 2002, the CA issued a Resolution 21 in CA-G.R. SP No.

73035 directing the respondents to le their comment on the petition within 10
days from notice thereof.

On November 27, 2002, petitioner Ma. Daisy Sibya led an Urgent Manifestation
and Motion 22 with the CA in CA-G.R. SP No. 73035, praying that the appellate court
resolve her petition on its merits in light of the November 18, 2002 Resolution of
the Secretary of Justice and to set aside the June 6, 2002 arraignment of the private
respondents in the trial court. The private respondents opposed the motion on the
ground that they had led a Joint motion for reconsideration of the November 18,
2002 Resolution of the Secretary of Justice, who had yet to resolve the same. 23

On December 4, 2002, the Provincial Prosecutor led a Motion with the trial court
for the withdrawal of the Second Amended Information for homicide and for the
reinstatement of the Amended Information for murder. However, in view of the
temporary restraining order issued by the CA in CA-G.R. SP No. 73035, the trial
court suspended the proceedings.

On December 16, 2002, the CA issued a Resolution 24 in CA-G.R. SP No. 73035

dismissing the petition on the ground that it had become moot and academic in
light of the November 18, 2002 Resolution of the Secretary of Justice. Private
complainant Ma. Daisy Sibya led a motion for reconsideration of the said
Resolution on the ground that the November 18, 2002 Resolution of the Secretary
of Justice could not be implemented unless and until the assailed Orders of the trial
court and the arraignment of the accused therein on June 6, 2002 are nullied. 25
The private respondents therein opposed the motion on the ground that the
petitioner was estopped from assailing their arraignment.

On November 10, 2003, the CA issued a Resolution 26 granting the motion of the
petitioner in CA-G.R. SP No. 73035 and consequently nullifying the June 6 and July
26, 2002 Orders of the trial court, as well as the arraignment of the private
respondents therein on June 6, 2002.

On June 21, 2004, Sebastian Serag, et al. led a Petition for review on certiorari
with this Court assailing the November 10, 2003 Resolution of the CA in CA-G.R. SP
No. 73035. The case was docketed as G.R. No. 163818. The petitioners alleged that
the CA acted without or in excess of its jurisdiction or with grave abuse of discretion
amounting to either lack or excess of jurisdiction in nullifying the June 6, 2002 and
July 26, 2002 Orders of the RTC and their arraignment on June 6, 2002 instead of
dismissing the petition for being moot and academic. 27

The petitioners insist that by virtue of the Secretary of Justice's November 18, 2002
Resolution, reverting to the original charges of murder and attempted murder, the
private respondent's petition in the CA had been mooted. They note that the relief
prayed for by the petitioner therein (private respondent Sibya) for the retention of
the original charges was granted by the Secretary of Justice. They maintain that the
CA was correct in dismissing the petition for being moot and academic in its
Resolution of December 16, 2002. The private complainant should have led the
appropriate pleading in the trial court for the implementation of the November 18,
2002 Resolution of the Secretary of Justice, instead of insisting that her petition be
resolved on its merits. By its November 10, 2003 Resolution nullifying the assailed
Orders of the RTC and the arraignment of the petitioners on June 6, 2002, the CA
thereby deprived the RTC of its jurisdiction to act on all pending motions of the
Provincial Prosecutor, that is, for the withdrawal of the Second Amended
Information for homicide and the reinstatement of the Amended Information for
murder. The petitioners insist that the RTC had the authority to delve into and
resolve the merits of the Provincial Prosecutor's motion for the withdrawal of the
Second Amended Information for homicide and the reinstatement of the Amended
Information for murder. After all, the trial court has complete control of the case;
any disposition therein is subject to its sound discretion and it is not bound by the
findings and recommendations of the Secretary of Justice.

The petitioners further claim that their arraignment on June 6, 2002 was on the
insistence of the prosecutors, making the setting "intransferrable" whether or not
the Secretary of Justice would resolve their petition for review. Thus, the RTC had
no other alternative but to proceed with their arraignment. Moreover, the private
complainant failed to serve them and the RTC with copies of her motion for
reconsideration in the DOJ on or before the said date. The private prosecutors'
service of the said motion for reconsideration on them (petitioners) and the RTC by
registered mail was anomalous, considering the proximity of the law oce of the
private prosecutors, the defense counsel and the RTC.

Finally, the petitioners emphasize that the private respondent failed to append to
her petition in CA-G.R. SP No. 73035 certied true copies of the assailed orders;
hence, the appellate court abused its discretion in not dismissing the said petition
outright.

In her comment on the petition, the private respondent averred that the instant
petition had been mooted by this Court's dismissal of the petitioners' petition in
G.R. No. 163557.

In reply, the petitioners contend that the subject matter of their petition in CA-G.R.
SP No. 77759 was the November 18, 2002 Resolution of the Secretary of Justice,
while the subject matter of CA-G.R. SP No. 73035 were the June 6, 2002 and July
26, 2002 Orders of the RTC, as well as the petitioners' arraignment on June 6,
2002.

The threshold issues for resolution are the following: (a) whether the petition at
bench is barred by the resolution of this Court in G.R. No. 163557 denying due
course and dismissing the petition for review on certiorari; and (b) whether the CA
committed grave abuse of discretion amounting to excess or lack of jurisdiction in
nullifying the June 6, 2002 and July 26, 2002 Orders of the RTC and their
arraignment on June 6, 2002 instead of dismissing the petition in CA-G.R. SP No.
73035 for being moot and academic.

On the rst issue, we nd the contention of the private respondent to be barren of

merit. A motion is considered moot when it no longer presents a justiciable
controversy because the issues involved have become academic or dead. 28 Courts
will not determine a moot question in which no practical relief can be granted. 29
However, the Court will decide a question otherwise moot and academic if it is
capable of repetition, yet evading review. 30

In the present case, the issues posed by the petitioner in CA-G.R. SP No. 77759 are
as follows:

I. RESPONDENT SECRETARY OF JUSTICE GRAVELY ABUSED HIS

DISCRETION WHEN HE ACTED ON THE MOTION FOR RECONSIDERATION
OF PRIVATE COMPLAINANTS AND IN ISSUING THE ASSAILED RESOLUTION
OF NOVEMBER 18, 2002, COMPLETELY REVERSING HIS RESOLUTION 258
OF MAY 20, 2002 IN VIOLATION OF SECTIONS 12(e) AND SEC. 7, PAR. 2 OF
ITS OWN DEPARTMENT CIRCULAR NO. 70. ICDSca

II. IT WAS GRAVE ERROR FOR RESPONDENT SECRETARY OF JUSTICE TO

ACT ON THE MOTION FOR RECONSIDERATION OF PRIVATE COMPLAINANTS
WHEN HE WAS ALREADY INFORMED THAT THE ACCUSED HAVE ALREADY
BEEN ARRAIGNED ON THE SECOND AMENDED INFORMATION BASED ON
HIS RESOLUTION 258 OF MAY 20, 2002; DOUBLE JEOPARDY ALREADY
ATTACHES. 31

The Court notes that the CA failed to resolve the said issues on their merits, and
instead dismissed the said petition for the petitioners' failure to comply with Section
2, Rule 43 and Section 5, Rule 7 of the Rules of Court. The said ruling was armed
by this Court. On the other hand, the issue raised by the private respondent in her
petition in CA-G.R. SP No. 73035 was whether the RTC committed grave abuse of
discretion amounting to excess or lack of jurisdiction in nullifying the June 6, 2002
and July 26, 2002 Orders of the RTC, and the arraignment of the petitioners herein
on June 6, 2002. Thus, the dismissal by this Court of the petition in G.R. No. 163557
and the consequent armance of the November 18, 2002 Resolution of the
Secretary of Justice did not render the issues raised in this case moot and academic.
This Court has to delve into and resolve the issue of whether the RTC abused its
discretion amounting to excess or lack of jurisdiction in granting the Provincial
Prosecutor's motion for the admission of the Second Amended Information and in
proceeding with the petitioners' arraignment for homicide. The Secretary of Justice
could not have resolved the said issues, as only the CA and this Court on appeal
under Rule 45 of the Rules of Court are competent to do so. Thus, the appellate
court cannot likewise be blamed for not dismissing the petition in CA-G.R. SP No.
73035 led by the private respondent for being moot and academic when the
Secretary of Justice issued his November 18, 2002 Resolution reversing Resolution
No. 258.

The appellate court's nullication of the June 6, 2002 and July 26, 2002 Orders of
the RTC and the arraignment of the petitioners on June 6, 2002 are well-founded.
Section 13 of DOJ Circular No. 70 reads:

SECTION 13. Motion for reconsideration. The aggrieved party may le

a motion for reconsideration within a non-extendible period of ten (10) days
 from receipt of the resolution on appeal, furnishing the adverse party and
the Prosecution Oce concerned with copies thereof and submitting proof
of such service. No second or further motion for reconsideration shall be
entertained.

The private respondent, on May 27, 2002, received a copy of Resolution No. 258 of
the Secretary of Justice downgrading the charges from murder and attempted
murder to homicide and attempted homicide. She had the right to le a motion for
reconsideration of the aforesaid resolution on or before June 6, 2002. Indeed, she
led such motion, through the private prosecutors, by personal delivery to the DOJ
on June 4, 2002. Thereafter, it behooved the RTC to suspend the proceedings until
after the Secretary of Justice had resolved such motion with nality, including the
consideration of the motion of the Provincial Prosecutor for the admission of the
Second Amended Information for homicide, the dismissal of Criminal Case No. 926,
and the arraignment of the petitioners for homicide. It was, in fact, premature for
the Provincial Prosecutor to le such motion for the admission of the Second
Amended Information since the Secretary of Justice had not yet resolved the said
motion; after all, he may still reconsider Resolution No. 258, which he did on
November 18, 2002, eectively reversing his previous ruling arming the assailed
Resolutions of the Provincial Prosecutor on May 26, 2001 and July 26, 2001, and
thus reverting to the original charges of murder and attempted murder. As this
Court declared in Marcelo v. Court of Appeals: 32

Consequently, the 5 December 1991 Manifestation and Motion of the

petitioners praying for the dismissal of the case and the 10 December 1991
motion of Assistant City Prosecutor Jamolin asking for the withdrawal of the
information were prematurely led, because as to the rst, the period of the
oended party to appeal from the resolution to the Secretary of Justice had
not yet lapsed or even begun, there being no showing of the date the
oended party received a copy thereof; and, as to the second, an appeal
had in fact been led on 10 December 1991. Prudence, if not wisdom or at
the very least respect for the authority of the prosecution agency to which
the Bersamin court deferred, dictated against a favorable action on the
Review Committee's resolution until the denial of the appeal or the
armance of the resolution by the Secretary of Justice. The Bersamin court
acted then with precipitate or undue haste in issuing the 13 December 1991
Order granting the petitioners' motion to dismiss and Prosecutor Jamolin's
motion to withdraw the information in Criminal Case No. Q-91-21285.

Accordingly, we rule that the trial court in a criminal case which takes
cognizance of an accused's motion for review of the resolution of the
investigating prosecutor or for reinvestigation and defers the arraignment
until resolution of the said motion must act on the resolution reversing the
investigating prosecutor's nding or on a motion to dismiss based thereon
only upon proof that such resolution is already nal in that no appeal was
taken therefrom to the Department of Justice.

Admittedly, the private prosecutors failed to serve the RTC with a copy of their
motion for reconsideration by personal delivery, and failed to le a formal motion
for the deferment of the hearing of the Provincial Prosecutor's motion for the
admission of the Second Amended Information for homicide and the arraignment of
the petitioners before June 6, 2002. However, the private prosecutors explained
that due to time constraints, owing to the ten-day period for ling such motion for
reconsideration, such motion had to be hand-carried to the DOJ on June 4, 2002,
while copies meant for the RTC and to the accused were sent by registered mail.
Furthermore, the RTC was not precluded from taking cognizance of and resolving
the oral motion of the private prosecutors for the deferment of the hearing on the
Provincial Prosecutor's motion for the admission of the Second Amended
Information for homicide. After all, under Rule 15, Section 2 of the Rules of Court,
motions may be made in open court or in the course of a hearing or trial in the
presence of the other party who has the opportunity to object thereto.

In ne, the RTC acted with inordinate and precipitate haste when it granted the
Provincial Prosecutor's motion for the admission of the Second Amended
Information for homicide, ordered the withdrawal of Criminal Case No. 926 for
attempted homicide based on Resolution No. 258 of the DOJ Secretary, and
arraigned the accused therein for homicide.

As the appellate court correctly pointed out in its November 10, 2003 Resolution:

Public respondent also erroneously found that the pendency of the motion
for reconsideration, and the other reasons given, not compelling for the
court to defer its action on the motion to admit. Public respondent also
questioned the personality of the petitioner, as the private oended party, in
actively participating in the criminal prosecution.

As earlier stated, Department Circular No. 70 places the duty upon the
appellant and the trial prosecutor to see to it that, pending resolution of the
appeal, the proceedings in court are held in abeyance.

Therefore, the pendency of an appeal before the DOJ is enough reason for
the deferment of any proceedings in the trial court and petitioner, through
the private prosecutors, correctly moved for the deferment of the
admission of the second amended informations for homicide and attempted
homicide. It should be considered that the motion to defer was even with
the conformity of the public prosecutor and the appearance of the private
prosecutors is pursuant to Section 16, Rule 110 of the 2000 Rules on
Criminal Procedure, to wit:

Intervention of the oended party in criminal action . Where the civil

action for recovery of civil liability is instituted in the criminal action
pursuant to Rule 111, the oended party may intervene by counsel in
the prosecution of the offense. jurcd06

Besides the oral recitation in open court by the private prosecutors of the
grounds cited in the motion to defer the admission of the second amended
informations for homicide and attempted homicide, which the public
respondent found unprocedural, petitioner was not really given the
 opportunity to oppose the motion to admit the same informations.

All these facts taken together, there appears to be an undue haste on the
part of the public respondent in admitting the second amended informations
for homicide and attempted homicide and ordering the arraignment of the
private respondents to the said informations. This is considering that no
word of protestation was heard from the petitioner when she waited for nine
(9) months for the DOJ to resolve the private respondents' petition for
review.

As a result of the assailed Orders issued by public respondent, the private

respondents were arraigned for homicide and attempted homicide. 33

The petitioners' contention that the RTC was deprived of its authority to act on and
resolve the motion of the Provincial Prosecutor for the withdrawal of the Second
Amended Information for homicide and the retention of the Amended Information
for murder and attempted murder is not correct. Indeed, the Provincial Prosecutor
filed a motion in the RTC for the withdrawal of the Second Amended Information for
homicide and for the reinstatement of the Amended Information for murder on
December 4, 2002. Were it not for the temporary restraining order issued by the CA
in CA-G.R. No. 73035, the RTC would have resolved the same one way or the other.

The People of the Philippines was not estopped by the Prosecutor's insistence on
May 21, 2002 that the petitioners and the other accused be arraigned on June 6,
2002 despite the pending petition for review of petitioners Juan Napao, et al. and
the motion for reconsideration of the private respondent before the Secretary of
Justice. The fact of the matter is that during the hearing of June 6, 2002, the
Prosecutors moved for the deferment of the consideration of the Provincial
Prosecutor's motion for the withdrawal of the Second Amended Information for
homicide because, in the meantime, the private complainant had led a motion for
the reconsideration of the Justice Secretary's Resolution No. 258. The latter cannot
be stripped of his authority to act on and resolve the aforesaid motion of the private
complainant on the Prosecutor's insistence that the accused be arraigned on June 6,
2002. Indeed, under Section 7 of DOJ Circular No. 70, the Secretary of Justice may
resolve the said motion despite the arraignment of the petitioners:

SECTION 7. Action on the petition. The Secretary of Justice may dismiss

the petition outright if he nds the same to be patently without merit or
manifestly intended for delay, or when the issues raised therein are too
unsubstantial to require consideration.

If an information has been led in court pursuant to the appealed resolution,

the petition shall not be given due course if the accused had already been
arraigned. Any arraignment made after the ling of the petition shall not bar
the Secretary of Justice from exercising his power of review.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit.

SO ORDERED.
Puno, Austria-Martinez and Tinga, JJ., concur.

Chico-Nazario, J., is on leave.

Footnotes

1. Rollo, p. 65.

2. Ibid.

3. Id. at 66.

4. Id. at 70.

5. Id. at 53-55.

6. CA Rollo, pp. 6-7.

7. Id. at 30-33.

8. Rollo, p. 64.

9. Id. at 65-74.

10. CA Rollo, pp. 66-69.

11. Id. at 91-101.

12. Id. at 88-90.

13. CA Rollo, pp. 88-90.

14. Rollo, p. 153.

15. Id. at 122-124.

16. CA Rollo, pp. 120-121.

17. Id. at 133-139.

18. Id. at 145-164.

19. Rollo, pp. 19-20. (G.R. No. 163557)

20. Id. at 23-24.

21. CA Rollo, pp. 120-121.

22. CA Rollo, pp. 131-132.

23. Id. at 141-164.

24. Id. at 166-167.

25. Id. at 172-174.

26. CA Rollo, pp. 230-236.

27. Rollo, p. 8.

28. Gonzales v. Narvasa, G.R. No. 140835, 14 August 2000, 337 SCRA 733.

29. Villarico v. Court of Appeals , G.R. No. 132115, 4 January 2002, 373 SCRA 23.

30. Acop v. Guingona, Jr., G.R. No. 134855, 2 July 2002, 383 SCRA 577.

31. Rollo, p. 51. (G.R. No. 163557)

32. G.R. No. 106695, 4 August 1994, 235 SCRA 39.

33. Rollo, pp. 185-186.

 EN BANC

[A.M. No. RTJ-05-1909. April 6, 2005.]

COMMUNITY RURAL BANK OF GUIMBA (N. E.), INC.,

Represented by OLGA M. SAMSON, complainant, vs. Judge
TOMAS B. TALAVERA, Regional Trial Court (Branch 28),
Cabanatuan City, Nueva Ecija, respondent.

DECISION

PANGANIBAN, J : p

The Constitution expects judges to be embodiments of competence, integrity,

probity and independence. They must personify four ins; namely, integrity,
independence, industry and intelligence. 1 Their judgments must be characterized
by excellence, their conduct by ethics, and their outlook by eternity. They are not
common individuals whose gross errors "men forgive and time forgets."

The Case and the Facts

In a Complaint-Adavit dated June 24, 2003, the Community Rural Bank of

Guimba (N. E.), Inc. through its chief operating ocer, Olga M. Samson
charged Judge Tomas B. Talavera of the Regional Trial Court (Branch 28) of
Cabanatuan City, Nueva Ecija, with (1) serious misconduct and/or gross ineciency
and (2) violation of Rules 1.01, 2 3.01 3 and 3.02 4 of the Code of Judicial Conduct.
The Oce of the Court Administrator (OCA) summarized the factual antecedents as
follows:

"In September 1997, the Bank lodged a complaint with the City Prosecutor's
Oce of Cabanatuan charging several persons (the accused, for brevity)
with the oense of Estafa in relation to P.D. Nos. 818 and 1689. After a
preliminary investigation, the Investigating Fiscal recommended the ling
of six (6) Informations for Estafa against the accused. These were docketed
as Criminal Case Nos. 8760 to 8765 and were raed to Branches 25, 26,
28, and 86 of RTC, Cabanatuan City. Respondent was the presiding judge of
Branch 28 to whom Criminal Case Nos. 8761 and 8763 were raffled.

"On 28 December 1998, the accused appealed the ndings of the

Investigating Fiscal to the Department of Justice (DOJ, for brevity). On 19
November 1999, the DOJ denied the petition of the accused. Then, the
accused led a Motion for Reconsideration, which was denied by the DOJ
through a resolution, dated 15 August 2000. Hence, respondent issued a
Warrant of Arrest fixing no bail against the accused.

"On 20 November 2000, the accused led a Motion for Reinvestigation and
to Lift the Issuance of Warrant of Arrest (Motion for Reinvestigation, for
brevity). However, neither the Bank nor its counsel was furnished a copy of
said Motion. There was also no hearing on the said motion to aord the
Bank an opportunity to oppose the same. TEAICc

"On 4 December 2000, respondent granted the Motion for Reinvestigation

without any hearing thereon. Thus, a reinvestigation proceeding was
conducted by Assistant Provincial Prosecutor Virgilio Caballero. Again, the
Bank was not notified of said proceedings.

"Assistant Provincial Prosecutor Caballero, in his Joint Resolution dated 28

December 2000, reversed the earlier ndings of the previous Investigating
Fiscal. Thus, on the same day, a Motion to Dismiss was led by Assistant
Provincial Prosecutor Caballero. Neither the bank nor its counsel was notified
about the said Motion and no hearing thereon was held to aord the Bank
an opportunity to oppose the same.

"Respondent granted the Motion to Dismiss and ordered the release of the
accused on 29 December 2000.

"On 11 January 2001, the Bank, arguing that it had been deprived of due
process, led a Motion for Reconsideration with Opposition/Comment to the
Motion to Dismiss and Omnibus Motion for the Reinstatement of the Criminal
Information and for the Recall of Order for Release.

"Respondent denied the afore-mentioned Motion of the Bank for lack of

merit on 23 March 2001. Thus, the Bank led a Petition for Review under
Rule 65 of the Revised Rules of Court with the Court of Appeals.

"In view of the foregoing, Ms. Samson argued that respondent transgressed
Sections 2, 5 and 6 of Rule 15 of the Revised Rules of Court, when he
granted the Motion for Reinvestigation of the accused and Assistant
Provincial Prosecutor Caballero's Motion to Dismiss without notice and
hearing in favor of the Bank or its counsel. Furthermore, the granting by
respondent of the Motion to Dismiss based solely on the Resolution issued
by Assistant Provincial Prosecutor Caballero, without making his own
independent ndings of the merits of the case, is repugnant to the principle
laid down in Crespo vs. Mogul (151 SCRA 462 [30 June 1987]) which held
that once a complaint or information is led in court any disposition or the
conviction or acquittal of the accused rests in the sound discretion of the
court.

"2. COMMENT/OPPOSITION WITH MOTION TO DISMISS dated 11 August

2003 of Respondent Judge Tomas B. Talavera where he refutes the
foregoing Complaint-Affidavit as follows:

"There was no need to set the Motion for Reinvestigation for hearing
because the Oce of the Provincial Prosecutor who has direct control
and supervision of all criminal cases was furnished a copy of said motion.
Furthermore, it should be noted that, in the Motion for Reinvestigation led
before the court, the Oce of the Provincial Prosecutor through the
Assistant Provincial Prosecutor signied his intention not to object to the
Motion for Reinvestigation as can be seen from his handwritten note and
signature appearing on said motion. Hence, setting the same for hearing
would be an exercise in futility and it could just delay the immediate
disposition of the case.

"The Oce of the Provincial Prosecutor, after the reinvestigation, issued a

Joint Resolution dated 28 December 2000 through Assistant Provincial
Prosecutor Virgilio Caballero recommending the dismissal of the criminal
case. On the basis of said Joint Resolution, a Motion to Dismiss was led by
Assistant Provincial Prosecutor Caballero, which was granted by respondent
on 29 December 2003.

"The Motion to Dismiss was not set anymore for hearing because it was led
by the public prosecutor who conducted the reinvestigation. Since the
Motion to Dismiss was led by prosecutor and the same was not prejudicial
to the adverse party (the accused), it is just proper for the court to treat the
said motion as non-litigious.

"The private prosecutor led a petition for certiorari before the Court of
Appeals seeking to amend and set aside the Order dated 23 March 2003 of
Respondent Judge which denied the Motion for Reconsideration of the
private complainant. The said petition is still pending before the Court of
Appeals. The grounds used by the private complainant in her petition for
certiorari are the same grounds in the administrative complaint. Hence, the
administrative complaint led by the private complainant is a violation of the
principle on sub judice.CSDcTA

"3. REPLY dated 15 September 2003 of the Bank through its legal
counsel stating the following arguments:

"The reasoning of respondent in allowing the Motion for Reinvestigation

without notice to private counsel and hearing is erroneous. The said motion
is litigious. Therefore, sound judicial discretion should have prompted the
respondent to treat said motion as a mere scrap of paper for violating the
general rules on motions under Sections 2, 5 and 6 of Rule 15 of the Rules
of Court and in view of the principles enunciated in Brizuela vs. Judge
Mendiola (A.M. No. RTJ-00-1560 dated 5 July 2000) and Bajet vs. Judge
Areola (A.M. No. RTJ-01-1615 dated 19 June 2001). In Brizuela and Bajet, the
Supreme Court held that failure to serve notice on the adverse party
rendered a litigious motion a mere scrap of paper.

"Furthermore, the rule on sub judice was not violated by complainant. The
cause of action and reliefs prayed for in the instant administrative complaint
are dierent from the petition led by the Bank before the Court of Appeals.
The petition led before the Court of Appeals was led on the ground of
"grave abuse of discretion amounting to lack of jurisdiction, there being no
other plain, speedy and adequate remedy in the ordinary course of law,
seeking to annul and set aside" respondent's Order dated 23 March 2001
denying complainant Bank's Motion for Reconsideration of an earlier Order
dated 29 December 2000 granting Assistant Provincial Prosecutor
Caballero's Motion to Dismiss. On the other hand, the administrative
 complaint led by the Bank aims to subject respondent to the appropriate
administrative sanctions." 5

In a Resolution dated October 20, 2004, 6 this Court resolved to re-docket the
Complaint as a regular administrative matter.

Evaluation and Recommendation of the OCA

The OCA opined that by dismissing the criminal case without giving complainant the
opportunity to object to the Motion for Reinvestigation and Motion to Dismiss,
respondent showed gross ignorance of the law, for which he should be sanctioned.
The OCA added that the presence of the oended party was required in the hearing
of a motion to dismiss as much as in the arraignment. The dismissal of the criminal
cases covered the litigation's civil aspect (recovery of damages by the oended
party), which was deemed included in the Information.

Pursuant to Rule 140 of the Rules of Court, the OCA recommended that respondent
judge be fined in the amount of P21,000.

On the other hand, the OCA recommended that the charge of gross misconduct be
dismissed for lack of substantial evidence. It found no clear proof of malice or
wrongful intent on the part of respondent.

The Court's Ruling

We agree with the findings and recommendations of the OCA.

Administrative Liability

Courts exist to dispense and promote justice. Judges are the visible representations
of law and justice. 7 One of their principal duties is to have an adequate grasp of the
Constitution, the law and jurisprudence. Indeed, they must be the embodiments of
competence, integrity and independence. 8 They owe it to the dignity of the court
over which they preside, to the public who depend on them, and to the legal
profession to which they belong, to know the very law they are supposed to
interpret and apply. 9 Party litigants will have great faith in the administration of
justice only if judges can demonstrate their grasp of legal principles. 10

In the present case, the gross ignorance of respondent judge and his notorious
violation of simple legal precepts were clearly shown by his issuance of the Orders
dated December 4, 2000 granting the Motion for Reinvestigation of the accused and
December 29, 2000 granting the prosecutor's Motion to Dismiss. AacDHE

First, respondent should not have entertained the Motion for Reinvestigation led
by the accused. The former was fully aware that the latter had appealed the
unfavorable ruling of the investigating prosecutor to the Department of Justice
(DOJ). Respondent judge must have in fact taken that appeal into consideration
when he issued a warrant of arrest against all the accused only on September 19,
2000, 11 after Justice Secretary Seran R. Cuevas had denied their Petition for
Review and armed the presence of prima facie evidence against them. 12
Subsequently, on August 15, 2000, the secretary also denied with nality the
Motion for Reconsideration filed by the accused. 13

Inasmuch as the Resolution of the provincial prosecutor has been armed by the
secretary of justice, the existence of probable cause to hold the accused for trial may
be deemed to be the nding of the secretary himself, not merely of the prosecutor
who had rst investigated the case. 14 Therefore, what the prosecutor reviewed and
overruled in the reinvestigation was not the actuation and resolution of his
predecessor, but of the secretary of justice no less. 15

The justice secretary's superior authority in the prosecution of oenses was

elucidated upon by this Court in Ledesma v. Court of Appeals, 16 which we quote:

"Section 39, Chapter 8, Book IV in relation to Sections 5, 8, and 9, Chapter

2, Title III of the [Revised Administrative] Code gives the secretary of justice
supervision and control over the Oce of the Chief Prosecutor and the
Provincial and City Prosecution Oces. The scope of his power of
supervision and control is delineated in Section 38, paragraph 1, Chapter 7,
Book IV of the Code:

'(1) Supervision and Control. Supervision and control shall

include authority to act directly whenever a specic function is
entrusted by law or regulation to a subordinate; direct the
performance of duty; restrain the commission of acts; review,
approve, reverse or modify acts and decisions of subordinate ocials
or units; . . .'

xxx xxx xxx

"'Supervision' and 'control' of a department head over his subordinates have

been defined in administrative law as follows:

'In administrative law, supervision means overseeing or the power or

authority of an ocer to see that subordinate ocers perform their
duties. If the latter fail or neglect to fulll them, the former may take
such action or step as prescribed by law to make them perform such
duties. Control, on the other hand, means the power of an ocer to
alter or modify or nullify or set aside what a subordinate ocer had
done in the performance of his duties and to substitute the judgment
of the former for that of the latter.'

"Review as an act of supervision and control by the justice secretary over

the scals and prosecutors nds basis in the doctrine of exhaustion of
administrative remedies which holds that mistakes, abuses or negligence
committed in the initial steps of an administrative activity or by an
administrative agency should be corrected by higher administrative
authorities, and not directly by courts. . . ."

The actions of prosecutors are not unlimited; they are subject to review by the
secretary of justice who may arm, nullify, reverse or modify their actions or
opinions. 17 Consequently the secretary may direct them to le either a motion to
dismiss the case or an information against the accused. 18

In short, the secretary of justice, who has the power of supervision and control over
prosecuting ocers, is the ultimate authority who decides which of the conicting
theories of the complainants and the respondents should be believed. 19 The
provincial or city prosecutor has neither the personality nor the legal authority to
review or overrule the decision of the secretary. 20 This principle is elementary. TIaCcD

Consistent with this administrative superior-subordinate relationship between

them, Section 7 of Department Order No. 223 21 (the rules governing appeals from
resolutions in preliminary investigations or reinvestigations) provides:

Sec. 7. Motion for Reinvestigation . At any time after the appeal has
been perfected and before the resolution thereof, the appellant may le a
motion for reinvestigation on the ground that new and material evidence has
been discovered which appellant could not with reasonable diligence have
discovered during the preliminary investigation and which if produced and
admitted would probably change the resolution.

From the above-quoted provision, a motion for reinvestigation on the ground of

newly discovered evidence must be led before the justice secretary rules on an
appeal from a resolution in a preliminary investigation.

In the present case, the accused led their Motion for Reinvestigation on November
29, 2000, 22 about three months after the August 15, 2000 Resolution of the
secretary denying with nality their Motion for Reconsideration of the denial of
their Petition for Review. Clearly, therefore, it was grossly erroneous for respondent
judge to order the reinvestigation of the case by the prosecutor. This action enabled
the latter to reprobate and reverse the secretary's Resolution. In granting the
Motion for Reinvestigation, respondent eectively demolished the DOJ's power of
control and supervision over prosecutors.

Furthermore, the judge perfunctorily granted the Motion for Reinvestigation on the
basis of an alleged newly discovered evidence a one-page Adavit executed by
Ms Gloria Sacramento, one of the co-accused in the criminal case. The Adavit, 23
dated October 29, 1997, was clearly not newly discovered; it was already known to
the accused even during the preliminary investigation. There was no explanation
whatsoever as to why this piece of evidence was never presented during the
preliminary investigation. Nonetheless, respondent hastily granted the Motion.

Considering that a prima facie case had been found to exist against the accused
during the preliminary investigation a fact armed by the justice secretary
respondent judge should have exercised great restraint in granting a
reinvestigation. 24

It must be stressed here that a preliminary investigation is essentially prefatory and

inquisitorial. 25 It is not a trial of the case on the merits and has no purpose except
to determine whether a crime has been committed, and whether there is probable
cause to believe that the accused is guilty of that crime. 26 A preliminary
investigation is not the occasion for a full and exhaustive display of the parties'
evidence, which needs to be presented only to engender a well-grounded belief that
an offense has been committed, and that the accused is probably guilty thereof. 27

Second, in granting the Motion to Dismiss, respondent relied solely on the

Resolution of the prosecutor who had conducted the reinvestigation and
recommended the dismissal of the case for alleged insuciency of evidence. The
December 29, 2000 Order 28 granting the Motion to Dismiss reads in full as follows:

"Finding the Motion to Dismiss in these cases to be meritorious, the same is

hereby granted, and Fernando del Rosario and Flordeliza del Rosario, both
accused in the above-entitled cases are hereby ordered released unless they
are being detained for some other lawful cause.

"Cabanatuan City, December 29, 2000."

This perfunctory Order does not demonstrate an independent evaluation or

assessment of the evidence (or the lack thereof) against the accused. In other
words, the dismissal of the case was not shown to be based upon the judge's own
individual conviction that there was no viable case against them. IcDHaT

This Court also observes that respondent acted with undue haste when he granted
the Motion on December 29, 2000, 29 only a day after the reinvestigation was
concluded on December 28, 2000. 30 Coupled with the absence of the required
evaluation in the Resolution granting the dismissal of the case, this hasty action
leads to the indubitable conclusion that the judge did not personally evaluate the
parties' evidence before acting on the Motion.

Settled is the legal doctrine that the discretion to accede to a Motion to Dismiss led
by the prosecutor rests solely with the court. 31 Mere approval of the position taken
by the prosecution is not equivalent to the discretion required in cases like this. 32
The trial judge must be convinced that there was indeed no sucient evidence
against the accused. Such a conclusion can be arrived at only after a thorough
assessment of the prosecution evidence. For a valid and proper exercise of judicial
discretion, accepting the prosecution's word that the evidence is insucient is not
enough; 33 strictly required of the order disposing of the motion is the trial judge's
own evaluation of such evidence. 34 Once a complaint or an information is led in
court, the judge not the prosecutor assumes full control of the controversy. 35
Thus, a grant of the motion to dismiss is equivalent to a disposition of the case itself,
36 a subject clearly within the court's exclusive jurisdiction and competence. 37

Furthermore, when respondent judge issued the warrants of arrest without bail
against all the accused, it is presumed that he had studied the Information and the
Resolution of the prosecutor and agreed with the latter's ndings of probable cause.
38 Consequently, the grant of the Motion for Reinvestigation and of the Motion to
Dismiss for alleged insuciency of evidence posed a serious contradiction of the
earlier finding of probable cause.
Third, respondent granted the Motions despite the obvious lack of notice to
complainant (the private oended party in the criminal case) and lack of hearing.
This lapse effectively deprived it of its day in court.

The Rules of Court require that, with the exception of motions that the court may
act upon without prejudicing the rights of the adverse party, every written motion
should be set for hearing by the movant. Sections 4, 5 and 6 of Rule 15 of the Rules
of Court explicitly require that notices be sent at least three days before the hearing
and directed at the parties concerned; and that they state the time and place of
hearing of the motion, with proper proof of notice thereof. Without such proof, the
motion is considered pro forma; thus, the court cannot act upon it. 39

The purpose of the notice is to enable the adverse party to appear for its own
protection and to contest the motion. 40 Elementary due process mandates that the
other party be notied of the adverse action of the opposing party, 41 so as to avoid
a capricious change of mind and to ensure impartiality of the trial. 42 Here, the
Motions for Reinvestigation and to Dismiss were fatally defective, as neither
contained any proper notice of hearing. Respondent thus grossly erred in taking
cognizance of these Motions.

In criminal proceedings, the word "party" is held to mean not only the government
and the accused, but also other persons who may be aected by the orders issued
and/or judgment rendered therein. 43

Undoubtedly, complainant had an interest in the maintenance of the criminal

prosecution. 44 Its right to intervene therein was practically beyond question, as it
neither instituted a separate civil action nor reserved or waived the right to do so. 45
Thus, as the party injured by the crime, it had the right to be heard on a motion that
was derogatory to its interest in the civil aspect of the case. Due process 46
necessitates that it be aorded this opportunity, especially because of a conict
between the positions of the public prosecutor and of the offended party. TCIHSa

Respondent judge does not deny that no notice was given to complainant. Neither
was a hearing conducted before the issuance of the subject Orders. By such failure
of notice and hearing, he eectively deprived complainant of the opportunity to
appear and to oppose the said Motions. That the oended party, not only the
accused, must be accorded due process was explained by the Court in Dimatulac v.
Villon, which ruled thus:
". . . Although the determination of a criminal case before a judge lies within
his exclusive jurisdiction and competence, his discretion is not unfettered,
but rather must be exercised within reasonable connes. The judge's action
must not impair the substantial rights of the accused, nor the right of the
State and offended party to due process of law.

"Indeed, for justice to prevail, the scales must balance; justice is not to be
dispensed for the accused alone. The interests of society and the oended
 parties which have been wronged must be equally considered. Verily, a
verdict of conviction is not necessarily a denial of justice; and an acquittal is
not necessarily a triumph of justice, for, to the society oended and the
party wronged, it could also mean injustice. Justice then must be rendered
even-handedly to both the accused, on one hand, and the State and the
offended party, on the other." 47

All told, respondent showed his lack of understanding, not only of the basic and
established superior-subordinate relationship between the secretary of justice and
the provincial prosecutors, but also of the functions and duties of the trial court in
"the proper scheme of things" in our criminal justice system. The judge similarly
failed to attach importance to the standard and fundamental procedure mandated
by the Rules of Court and the rudiments of due process. His actions manifested a
marked deciency in his knowledge of the law. Where, as in this case, the legal
principle involved is basic, simple and elementary, lack of conversance therewith
constitutes gross ignorance of the law. 48

Judges are expected to have more than just a modicum acquaintance with the
statutes and procedural rules. 49 The Code of Judicial Ethics requires them to be
embodiments of, among other desirable characteristics, judicial competence. 50 They
are not common individuals whose gross errors "men forgive and time forgets." 51

The OCA recommended the penalty of a ne in the amount of P21,000 for

respondent judge's gross ignorance of the law, which is classied by Rule 140 of the
Rules of Court as a serious charge. As to the complaint of serious misconduct, we
also adopt the ndings of the OCA that no fraud, malice or wrongful intent was
imputed, or proved by complainant; hence, respondent cannot be made liable
therefor.

WHEREFORE, Judge Tomas B. Talavera is found GUILTY of gross ignorance of the

law and is FINED twenty one thousand pesos. He is hereby sternly warned that a
repetition of the same or similar infractions in the future shall be dealt with more
severely.

SO ORDERED.

Davide, Jr., C.J., Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio,

Austria-Martinez, Corona, Carpio Morales, Callejo, Sr., Azcuna, Tinga, Chico-Nazario
and Garcia, JJ., concur.

Footnotes

1. See Panganiban, "Judging the Judges," Kilosbayan, March 2005, pp. 13-18.

2. "Rule 1.01. A judge should be the embodiment of competence, integrity, and

independence."

3. "Rule 3.01. A judge shall be faithful to the law and maintain professional
competence."
4. "Rule 3.02. In every case, a judge shall endeavor diligently to ascertain the facts
and the applicable law unswayed by partisan interests, public opinion or fear of
criticism."

5. OCA Report, pp. 1-5; rollo, pp. 156-160.

6. Rollo, p. 164.

7. Employees of the RTC of Dagupan City v. Judge Falloran-Aliposa , 384 Phil. 168,
March 9, 2000.

8. Atty. Hilario v. Judge Concepcion , 383 Phil. 843, March 2, 2000; Gacayan v.
Pamintuan, 314 SCRA 682, September 17, 1999.

9. Estoya v. Abraham-Singson, 237 SCRA 1, September 26, 1994.

10. Aducayen v. Flores , 51 SCRA 78, May 25, 1973.

11. See Complaint-Affidavit, p. 3; rollo, p. 4.

12. See Resolution dated November 19, 1999; id., pp. 29-30.

13. See Resolution dated August 15, 2000; id., p. 31.

14. Noblejas v. Salas , 67 SCRA 47, September 15, 1975.

15. Ibid.

16. 278 SCRA 656, 676-678, September 5, 1997, per Panganiban, J. (cited in Solar
Team Entertainment, Inc. v. How , 338 SCRA 511, August 22, 2000; Dimatulac v.
Villon, 297 SCRA 679, October 12, 1998).

17. See also the last paragraph of Section 4 of Rule 112 of the 1985 Rules on
Criminal Procedure, which recognizes the authority of the secretary of justice to
reverse the resolution of the provincial or city prosecutor or chief state
prosecutor. Roberts Jr. v. Court of Appeals , 324 Phil. 568, March 5, 1996; Crespo
v. Mogul, 151 SCRA 462, June 30, 1987.

18. Ibid.

19. Jalandoni v. Secretary Drilon , 383 Phil. 855, March 2, 2000 (citing Vda. de Jacob
v. Puno, 131 SCRA 144, July 31, 1984).

20. The ndings of the secretary of justice are not subject to judicial review, unless
shown to have been made with grave abuse. Joaquin Jr. v. Drilon , 361 Phil. 900,
January 28, 1999.

21. Dated June 25, 1993, the Order was issued by then Secretary Franklin M. Drilon.

22. Annex "E" of the Complaint-Affidavit; rollo, pp. 32-33.

23. Id., p. 34.

24. See also Edillon v. Narvios , 99 SCRA 174, August 21, 1980, wherein the Court
expressed apprehension over the trial court's grant of a Motion to Dismiss led by
a prosecutor after a reinvestigation. The Court held that allowing reinvestigation by
the prosecution should be discouraged or should not be tolerated, because such a
practice would generate the impression that the accused would be able to x their
case, or that it would be easier for them to manipulate and maneuver the dismissal
of the case in the prosecutor's office.

25. Olivarez v. Sandiganbayan, 248 SCRA 700, October 4, 1995.

26. Drilon v. Court of Appeals , 258 SCRA 280, July 5, 1996.

27. People v. Court of Appeals , 361 Phil. 401, January 21, 1999; Drilon v. Court of
Appeals , supra; Ledesma v. Court of Appeals , supra.

28. Rollo, p. 39.

29. See Order dated December 29, 2000; rollo, p. 39.

30. See the Joint Resolution dated December 28, 2000, signed by Prosecutor II
Virgilio G. Caballero and approved by Provincial Prosecutor Gerardo S. de Leon; id.,
pp. 36-38.

31. Dimatulac v. Villon , supra; Roberts Jr. v. Court of Appeals , supra; Republic v.
Sunga, 162 SCRA 191, June 20, 1988; Dungog v. Court of Appeals , 159 SCRA 145,
March 25, 1988; Crespo v. Mogul, supra.

32. Mosquera v. Panganiban, 258 SCRA 473, July 5, 1996 (citing Martinez v. Court of
Appeals , 237 SCRA 575, October 13, 1994).

33. Martinez v. Court of Appeals, supra.

34. Venus v. Desierto, 298 SCRA 196, October 21, 1998.

35. Solar Team Entertainment, Inc. v. How, supra.

36. Ledesma v. Court of Appeals, supra.

37. Solar Team Entertainment, Inc. v. How, supra; Crespo v. Mogul, supra.

38. 2, 1987 Constitution, provides in part

"The right of the people to be secure in their persons, houses, papers and
eects 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 . . .."

39. 6, Rule 15; Juan v. People , 379 Phil. 125, January 18, 2000; Vlason Enterprises
Corporation v. Court of Appeals , 369 Phil. 269, July 6, 1999; People v. Court of
Appeals, supra.

40. Odoo v. Judge Macaraeg , 384 Phil. 788, March 16, 2000 (citing Far Eastern
Surety & Insurance Company, Inc. v. Vda. de Hernandez , 67 SCRA 256, October
 3, 1975; Vlason Enterprises Corporation v. Court of Appeals, supra).

41. Filipino Pipe & Foundry Corp. v. NLRC, 376 Phil. 178, November 16, 1999.

42. Fajardo v. Court of Appeals , 354 SCRA 736, March 20, 2001.

43. Martinez v. Court of Appeals, supra (citing People v. Guido , 57 Phil. 52, August
15, 1932).

Under 14, Rule 110 of the Revised Rules on Criminal Procedure, which became
eective on December 1, 2000, "any amendment before plea, which downgrades
the nature of the oense charged in or excludes any accused from the complaint
or information, can be made only upon motion by the prosecutor, with notice to
the oended party and with leave of court. The court shall state its reasons in
resolving the motion and copies of its order shall be furnished all parties, especially
the offended party." (Emphasis supplied)

44. Article 100 of the Revised Penal Code expressly declares that "every person
criminally liable for a felony is also civilly liable." As a general rule, an oense causes
two classes of injury the rst is the social injury produced by the criminal act
that is sought to be repaired through the imposition of the corresponding penalty;
and the second is the personal injury caused the victim of the crime, an injury
sought to be compensated through indemnity that is civil in nature. Pamaran, The
1985 Rules on Criminal Procedure, Annotated (1998 ed.), p. 123 (citing Ramos v.
Gonong, 72 SCRA 559, August 31, 1976).

45. 16, Rule 110. "Intervention of the oended party in criminal action . Where
the civil action for recovery of civil liability is instituted in the criminal action
pursuant to Rule 111, the oended party may intervene by counsel in the
prosecution of the offense."

1, Rule 111. "Institution of criminal and civil actions . (a) When a criminal
action is instituted, the civil action for the recovery of civil liability arising from the
oense charged shall be deemed instituted with the criminal action unless the
oended party waives the civil action, reserves the right to institute it separately or
institutes the civil action prior to the criminal action."

xxx xxx xxx

46. See Martinez v. Court of Appeals, supra, in which the private oended party was
considered deprived of due process, as he had not been furnished a copy of the
prosecution's Motion to Dismiss.

47. Dimatulac v. Villon, supra, p. 714, per Davide Jr., (later CJ).

48. Lu v. Siapno , 335 SCRA 181, July 6, 2000; Villanueva v. Judge Almazan , 384 Phil.
776, March 16, 2000; Cortes v. Bangalan, 379 Phil. 251, January 19, 2000.

49. Domondon v. Lopez , 383 SCRA 376, June 20, 2002; D e Vera v. Judge Dames II ,
369 Phil. 470, July 13, 1999.
50. Enojas Jr. v. Judge Gacott Jr ., 379 Phil. 277, January 19, 2000; Villanueva v. Judge
Almazan, supra.

51. Requierme Jr. v. Yupco , 346 SCRA 25, 34, November 27, 2000, per Quisumbing,
J.
 SECOND DIVISION

[G.R. No. 162336. February 1, 2010.]

HILARIO P. SORIANO , petitioner, vs. PEOPLE OF THE

PHILIPPINES, BANGKO SENTRAL NG PILIPINAS (BSP),
PHILIPPINE DEPOSIT INSURANCE CORPORATION (PDIC), PUBLIC
PROSECUTOR ANTONIO C. BUAN, and STATE PROSECUTOR
ALBERTO R. FONACIER, respondents. 1

DECISION

DEL CASTILLO, J : p

A bank ocer violates the DOSRI 2 law when he acquires bank funds for his
personal benet, even if such acquisition was facilitated by a fraudulent loan
application. Directors, ocers, stockholders, and their related interests cannot be
allowed to interpose the fraudulent nature of the loan as a defense to escape
culpability for their circumvention of Section 83 of Republic Act (RA) No. 337. 3

Before us is a Petition for Review on Certiorari 4 under Rule 45 of the Rules of

Court, assailing the September 26, 2003 Decision 5 and the February 5, 2004
Resolution 6 of the Court of Appeals (CA) in CA-G.R. SP No. 67657. The challenged
Decision disposed as follows:

WHEREFORE, premises considered, the instant petition for certiorari is

hereby DENIED. 7

Factual Antecedents

Sometime in 2000, the Oce of Special Investigation (OSI) of the Bangko Sentral
ng Pilipinas (BSP), through its officers, 8 transmitted a letter 9 dated March 27, 2000
to Jovencito Zuo, Chief State Prosecutor of the Department of Justice (DOJ). The
letter attached as annexes ve adavits, 10 which would allegedly serve as bases
for ling criminal charges for Estafa thru Falsication of Commercial Documents, in
relation to Presidential Decree (PD) No. 1689, 11 and for Violation of Section 83 of
RA 337, as amended by PD 1795, 12 against, inter alia, petitioner herein Hilario P.
Soriano. These ve adavits, along with other documents, stated that spouses
Enrico and Amalia Carlos appeared to have an outstanding loan of P8 million with
the Rural Bank of San Miguel (Bulacan), Inc. (RBSM), but had never applied for nor
received such loan; that it was petitioner, who was then president of RBSM, who
had ordered, facilitated, and received the proceeds of the loan; and that the P8
million loan had never been authorized by RBSM's Board of Directors and no report
thereof had ever been submitted to the Department of Rural Banks, Supervision
and Examination Sector of the BSP. The letter of the OSI, which was not subscribed
under oath, ended with a request that a preliminary investigation be conducted and
the corresponding criminal charges be led against petitioner at his last known
address.AECacT

Acting on the letter-request and its annexes, State Prosecutor Albert R. Fonacier
proceeded with the preliminary investigation. He issued a subpoena with the
witnesses' adavits and supporting documents attached, and required petitioner to
le his counter-adavit. In due course, the investigating ocer issued a Resolution
nding probable cause and correspondingly led two separate informations against
petitioner before the Regional Trial Court (RTC) of Malolos, Bulacan. 13

The rst Information, 14 dated November 14, 2000 and docketed as Criminal Case
No. 237-M-2001, was for estafa through falsication of commercial documents,
under Article 315, paragraph 1 (b), of the Revised Penal Code (RPC), in relation to
Article 172 of the RPC and PD 1689. It basically alleged that petitioner and his co-
accused, in abuse of the condence reposed in them as RBSM ocers, caused the
falsication of a number of loan documents, making it appear that one Enrico Carlos
lled up the same, and thereby succeeded in securing a loan and converting the
loan proceeds for their personal gain and benefit. 15 The information reads:

That in or about the month of April, 1997, and thereafter, in San Miguel,
Bulacan, and within the jurisdiction of this Honorable Court, the said accused
HILARIO P. SORIANO and ROSALINDA ILAGAN, as principals by direct
participation, with unfaithfulness or abuse of condence and taking
advantage of their position as President of the Rural Bank of San Miguel
(Bulacan), Inc. and Branch Manager of the Rural Bank of San Miguel-San
Miguel Branch [sic], a duly organized banking institution under Philippine
Laws, conspiring confederating and mutually helping one another, did then
and there, willfully and feloniously falsify loan documents consisting of
undated loan application/information sheet, credit proposal dated April l4,
1997, credit proposal dated April 22, 1997, credit investigation report dated
April 15, 1997, promissory note dated April 23, 1997, disclosure statement
on loan/credit transaction dated April 23, 1997, and other related
documents, by making it appear that one Enrico Carlos lled up the
application/information sheet and led the aforementioned loan documents
when in truth and in fact Enrico Carlos did not participate in the execution of
said loan documents and that by virtue of said falsication and with deceit
and intent to cause damage, the accused succeeded in securing a loan in
the amount of eight million pesos (PhP8,000,000.00) from the Rural Bank of
San Miguel-San Ildefonso branch in the name of Enrico Carlos which amount
of PhP8 million representing the loan proceeds the accused thereafter
converted the same amount to their own personal gain and benet, to the
damage and prejudice of the Rural Bank of San Miguel-San Ildefonso branch,
its creditors, the Bangko Sentral ng Pilipinas, and the Philippine Deposit
Insurance Corporation.

CONTRARY TO LAW. 16

The other Information 17 dated November 10, 2000 and docketed as Criminal Case
No. 238-M-2001, was for violation of Section 83 of RA 337, as amended by PD 1795.
The said provision refers to the prohibition against the so-called DOSRI loans. The
information alleged that, in his capacity as President of RBSM, petitioner indirectly
secured an P8 million loan with RBSM, for his personal use and benet, without the
written consent and approval of the bank's Board of Directors, without entering the
said transaction in the bank's records, and without transmitting a copy of the
transaction to the supervising department of the bank. His ruse was facilitated by
placing the loan in the name of an unsuspecting RBSM depositor, one Enrico Carlos.
18 The information reads:

That in or about the month of April, 1997, and thereafter, and within the
jurisdiction of this Honorable Court, the said accused, in his capacity as
President of the Rural Bank of San Miguel (Bulacan), Inc., did then and there,
willfully and feloniously indirectly borrow or secure a loan with the Rural Bank
of San Miguel-San Ildefonso branch, a domestic rural banking institution
created, organized and existing under Philippine laws, amounting to eight
million pesos (PhP8,000,000.00), knowing fully well that the same has been
done by him without the written consent and approval of the majority of the
board of directors of the said bank, and which consent and approval the
said accused deliberately failed to obtain and enter the same upon the
records of said banking institution and to transmit a copy thereof to the
supervising department of the said bank, as required by the General Banking
Act, by using the name of one depositor Enrico Carlos of San Miguel,
Bulacan, the latter having no knowledge of the said loan, and one in
possession of the said amount of eight million pesos (PhP8,000,000.00),
accused converted the same to his own personal use and benet, in agrant
violation of the said law. DIAcTE

CONTRARY TO LAW. 19

Both cases were raffled to Branch 79 of the RTC of Malolos, Bulacan. 20

On June 8, 2001, petitioner moved to quash 21 these informations on two grounds:

that the court had no jurisdiction over the oense charged, and that the facts
charged do not constitute an offense.

On the rst ground, petitioner argued that the letter transmitted by the BSP to the
DOJ constituted the complaint and hence was defective for failure to comply with
the mandatory requirements of Section 3 (a), Rule 112 of the Rules of Court, such
as the statement of address of petitioner and oath and subscription. 22 Moreover,
petitioner argued that the ocers of OSI, who were the signatories to the "letter-
complaint," were not authorized by the BSP Governor, much less by the Monetary
Board, to le the complaint. According to petitioner, this alleged fatal oversight
violated Section 18, pars. (c) and (d) of the New Central Bank Act (RA 7653).

On the second ground, petitioner contended that the commission of estafa under
paragraph 1 (b) of Article 315 of the RPC is inherently incompatible with the
violation of DOSRI law (as set out in Section 83 23 of RA 337, as amended by PD
1795), 24 hence a person cannot be charged for both oenses. He argued that a
violation of DOSRI law requires the oender to obtain a loan from his bank,
without complying with procedural, reportorial, or ceiling requirements. On the
other hand, estafa under par. 1 (b), Article 315 of the RPC requires the oender to
misappropriate or convert something that he holds in trust, or on commission,
or for administration, or under any other obligation involving the duty to return
the same. 25

Essentially, the petitioner theorized that the characterization of possession is

dierent in the two oenses. If petitioner acquired the loan as DOSRI, he owned the
loaned money and therefore, cannot misappropriate or convert it as contemplated
in the oense of estafa. Conversely, if petitioner committed estafa, then he merely
held the money in trust for someone else and therefore, did not acquire a loan in
violation of DOSRI rules.

Ruling of the Regional Trial Court

In an Order 26 dated August 8, 2001, the trial court denied petitioner's Motion to
Quash for lack of merit. The lower court agreed with the prosecution that the
assailed OSI letter was not the complaint-adavit itself; thus, it need not comply
with the requirements under the Rules of Court. The trial court held that the
adavits, which were attached to the OSI letter, comprised the complaint-adavit
in the case. Since these adavits were duly subscribed and sworn to before a notary
public, there was adequate compliance with the Rules. The trial court further held
that the two oenses were separate and distinct violations, hence the prosecution
of one did not pose a bar to the other. 27
HITEaS

Petitioner's Motion for Reconsideration was likewise denied in an Order dated

September 5, 2001. 28

Aggrieved, petitioner led a Petition for Certiorari 29 with the CA, reiterating his
arguments before the trial court.

Ruling of the Court of Appeals

The CA denied the petition on both issues presented by petitioner.

On the rst issue, the CA determined that the BSP letter, which petitioner
characterized to be a fatally inrm complaint, was not actually a complaint, but a
transmittal or cover letter only. This transmittal letter merely contained a summary
of the adavits which were attached to it. It did not contain any averment of
personal knowledge of the events and transactions that constitute the elements of
the oenses charged. Being a mere transmittal letter, it need not comply with the
requirements of Section 3 (a) of Rule 112 of the Rules of Court. 30

The CA further determined that the ve adavits attached to the transmittal letter
should be considered as the complaint-adavits that charged petitioner with
violation of Section 83 of RA 337 and for Estafa thru Falsication of Commercial
Documents. These complaint-adavits complied with the mandatory requirements
set out in the Rules of Court they were subscribed and sworn to before a notary
public and subsequently certied by State Prosecutor Fonacier, who personally
examined the aants and was convinced that the aants fully understood their
sworn statements. 31

Anent the second ground, the CA found no merit in petitioner's argument that the
violation of the DOSRI law and the commission of estafa thru falsication of
commercial documents are inherently inconsistent with each other. It explained
that the test in considering a motion to quash on the ground that the facts charged
do not constitute an oense, is whether the facts alleged, when hypothetically
admitted, constitute the elements of the oense charged. The appellate court held
that this test was suciently met because the allegations in the assailed
informations, when hypothetically admitted, clearly constitute the elements of
Estafa thru Falsification of Commercial Documents and Violation of DOSRI law. 32

Petitioner's Motion for Reconsideration 33 was likewise denied for lack of merit.

Hence, this petition.

Issues

Restated, petitioner raises the following issues 34 for our consideration: aCSHDI

Whether the complaint complied with the mandatory requirements provided

under Section 3(a), Rule 112 of the Rules of Court and Section 18,
paragraphs (c) and (d) of RA 7653.

II

Whether a loan transaction within the ambit of the DOSRI law (violation of
Section 83 of RA 337, as amended) could also be the subject of Estafa
under Article 315 (1) (b) of the Revised Penal Code.

III

Is a petition for certiorari under Rule 65 the proper remedy against an Order
denying a Motion to Quash?

IV

Whether petitioner is entitled to a writ of injunction.

Our Ruling

The petition lacks merit.

First Issue:
Whether the complaint complied with the mandatory
requirements provided under Section 3 (a), Rule 112 of the Rules
of Court and Section 18, paragraphs (c) and (d) of
Republic Act No. 7653
Petitioner moved to withdraw the
 first issue from the instant petition

On March 5, 2007, the Court noted 35 petitioner's Manifestation and Motion for
Partial Withdrawal of the Petition 36 dated February 7, 2007. In the said motion,
petitioner informed the Court of the promulgation of a Decision entitled Soriano v.
Hon. Casanova, 37 which also involved petitioner and similar BSP letters to the DOJ.
According to petitioner, the said Decision allegedly ruled squarely on the nature of
the BSP letters and the validity of the sworn adavits attached thereto. For this
reason, petitioner moved for the partial withdrawal of the instant petition insofar as
it involved the issue of "whether or not a court can legally acquire jurisdiction over a
complaint which failed to comply with the mandatory requirements provided under
Section 3 (a), Rule 112 of the Rules of Court and Section 18, paragraphs (c) and (d)
of RA 7653". 38 ACETIa

Given that the case had already been submitted for resolution of the Court when
petitioner led his latest motion, and that all respondents had presented their
positions and arguments on the rst issue, the Court deems it proper to rule on the
same.

In Soriano v. Hon. Casanova, the

Court held that the affidavits
attached to the BSP transmittal
letter complied with the
mandatory requirements under
the Rules of Court.

To be sure, the BSP letters involved in Soriano v. Hon. Casanova 39 are not the same
as the BSP letter involved in the instant case. However, the BSP letters in Soriano v.
Hon. Casanova and the BSP letter subject of this case are similar in the sense that
they are all signed by the OSI officers of the BSP, they were not sworn to by the said
ocers, they all contained summaries of their attached adavits, and they all
requested the conduct of a preliminary investigation and the ling of corresponding
criminal charges against petitioner Soriano. Thus, the principle of stare decisis
dictates that the ruling in Soriano v. Hon. Casanova be applied in the instant case
once a question of law has been examined and decided, it should be deemed settled
and closed to further argument. 40

We held in Soriano v. Hon. Casanova, after a close scrutiny of the letters

transmitted by the BSP to the DOJ, that these were not intended to be the
complaint, as envisioned under the Rules. They did not contain averments of
personal knowledge of the events and transactions constitutive of any oense. The
letters merely transmitted for preliminary investigation the adavits of people who
had personal knowledge of the acts of petitioner. We ruled that these adavits, not
the letters transmitting them, initiated the preliminary investigation. Since these
adavits were subscribed under oath by the witnesses who executed them before a
notary public, then there was substantial compliance with Section 3 (a), Rule 112 of
the Rules of Court.

Anent the contention that there was no authority from the BSP Governor or the
Monetary Board to le a criminal case against Soriano, we held that the
requirements of Section 18, paragraphs (c) and (d) of RA 7653 did not apply because
the BSP did not institute the complaint but merely transmitted the adavits of the
complainants to the DOJ.

We further held that since the oenses for which Soriano was charged were public
crimes, authority holds that it can be initiated by "any competent person" with
personal knowledge of the acts committed by the oender. Thus, the witnesses who
executed the adavits clearly fell within the purview of "any competent person"
who may institute the complaint for a public crime. ESTDIA

The ruling in Soriano v. Hon. Casanova has been adopted and elaborated upon in
the recent case of Santos-Concio v. Department of Justice . 41 Instead of a
transmittal letter from the BSP, the Court in Santos-Concio was faced with an NBI-
NCR Report, likewise with adavits of witnesses as attachments. Ruling on the
validity of the witnesses' sworn adavits as bases for a preliminary investigation,
we held:

The Court is not unaware of the practice of incorporating all allegations in

one document denominated as "complaint-adavit." It does not pronounce
strict adherence to only one approach, however, for there are cases where
the extent of one's personal knowledge may not cover the entire gamut of
details material to the alleged oense. The private oended party or relative
of the deceased may not even have witnessed the fatality, in which case the
peace ocer or law enforcer has to rely chiey on adavits of witnesses.
The Rules do not in fact preclude the attachment of a referral or transmittal
letter similar to that of the NBI-NCR. Thus, in Soriano v. Casanova, the Court
held:

A close scrutiny of the letters transmitted by the BSP and PDIC to the
DOJ shows that these were not intended to be the complaint
envisioned under the Rules . It may be clearly inferred from the tenor
of the letters that the ocers merely intended to transmit the
adavits of the bank employees to the DOJ. Nowhere in the
transmittal letters is there any averment on the part of the BSP and
PDIC ocers of personal knowledge of the events and transactions
constitutive of the criminal violations alleged to have been made by the
accused. In fact, the letters clearly stated that what the OSI of the
BSP and the LIS of the PDIC did was to respectfully transmit to the
DOJ for preliminary investigation the adavits and personal knowledge
of the acts of the petitioner. These adavits were subscribed under
oath by the witnesses who executed them before a notary public.
Since the affidavits, not the letters transmitting them, were intended
to initiate the preliminary investigation, we hold that Section 3(a), Rule
112 of the Rules of Court was substantially complied with.

Citing the ruling of this Court in Ebarle v. Sucaldito, the Court of

Appeals correctly held that a complaint for purposes of preliminary
investigation by the scal need not be led by the oended party. The
rule has been that, unless the oense subject thereof is one
 that cannot be prosecuted de ocio, the same may be led, for
preliminary investigation purposes, by any competent person. The
crime of estafa is a public crime which can be initiated by "any
competent person." The witnesses who executed the adavits based
on their personal knowledge of the acts committed by the petitioner
fall within the purview of "any competent person" who may institute
the complaint for a public crime. . . . (Emphasis and italics supplied)

A preliminary investigation can thus validly proceed on the basis of an

adavit of any competent person, without the referral document, like the
NBI-NCR Report, having been sworn to by the law enforcer as the nominal
complainant. To require otherwise is a needless exercise. The cited case of
Oporto, Jr. v. Judge Monserate does not appear to dent this proposition.
After all, what is required is to reduce the evidence into adavits, for
while reports and even raw information may justify the initiation of an
investigation, the preliminary investigation stage can be held only after
sucient evidence has been gathered and evaluated which may warrant the
eventual prosecution of the case in court. 42ETDaIC

Following the foregoing rulings in Soriano v. Hon. Casanova and Santos-Concio v.

Department of Justice, we hold that the BSP letter, taken together with the
adavits attached thereto, comply with the requirements provided under Section 3
(a), Rule 112 of the Rules of Court and Section 18, paragraphs (c) and (d) of RA
7653.

Second Issue:
Whether a loan transaction within the ambit of the DOSRI law
(violation of Section 83 of RA 337, as amended) could be the
subject of Estafa under Article 315 (1) (b) of the
Revised Penal Code

The second issue was raised by petitioner in the context of his Motion to Quash
Information on the ground that the facts charged do not constitute an oense. 43 It
is settled that in considering a motion to quash on such ground, the test is "whether
the facts alleged, if hypothetically admitted, would establish the essential elements
of the oense charged as dened by law. The trial court may not consider a
situation contrary to that set forth in the criminal complaint or information. Facts
that constitute the defense of the petitioner[s] against the charge under the
information must be proved by [him] during trial. Such facts or circumstances do
not constitute proper grounds for a motion to quash the information on the ground
that the material averments do not constitute the offense". 44

We have examined the two informations against petitioner and we nd that they
contain allegations which, if hypothetically admitted, would establish the essential
elements of the crime of DOSRI violation and estafa thru falsication of commercial
documents.

In Criminal Case No. 238-M-2001 for violation of DOSRI rules, the information
alleged that petitioner Soriano was the president of RBSM; that he was able to
indirectly obtain a loan from RBSM by putting the loan in the name of depositor
Enrico Carlos; and that he did this without complying with the requisite board
approval, reportorial, and ceiling requirements.

In Criminal Case No. 237-M-2001 for estafa thru falsication of commercial

documents, the information alleged that petitioner, by taking advantage of his
position as president of RBSM, falsied various loan documents to make it appear
that an Enrico Carlos secured a loan of P8 million from RBSM; that petitioner
succeeded in obtaining the loan proceeds; that he later converted the loan proceeds
to his own personal gain and benet; and that his action caused damage and
prejudice to RBSM, its creditors, the BSP, and the PDIC.TEHIaD

Signicantly, this is not the rst occasion that we adjudge the suciency of
similarly worded informations. In Soriano v. People, 45 involving the same petitioner
in this case (but dierent transactions), we also reviewed the suciency of
informations for DOSRI violation and estafa thru falsication of commercial
documents, which were almost identical, mutatis mutandis, with the subject
informations herein. We held in Soriano v. People that there is no basis for the
quashal of the informations as "they contain material allegations charging Soriano
with violation of DOSRI rules and estafa thru falsication of commercial
documents".

Petitioner raises the theory that he could not possibly be held liable for estafa in
concurrence with the charge for DOSRI violation. According to him, the DOSRI
charge presupposes that he acquired a loan, which would make the loan proceeds
his own money and which he could neither possibly misappropriate nor convert to
the prejudice of another, as required by the statutory denition of estafa. 46 On the
other hand, if petitioner did not acquire any loan, there can be no DOSRI violation to
speak of. Thus, petitioner posits that the two oenses cannot co-exist. This theory
does not persuade us.

Petitioner's theory is based on the false premises that the loan was extended to him
by the bank in his own name, and that he became the owner of the loan proceeds.
Both premises are wrong.

The bank money (amounting to P8 million) which came to the possession of

petitioner was money held in trust or administration by him for the bank, in his
duciary capacity as the President of said bank. 47 It is not accurate to say that
petitioner became the owner of the P8 million because it was the proceeds of a loan.
That would have been correct if the bank knowingly extended the loan to petitioner
himself. But that is not the case here. According to the information for estafa, the
loan was supposed to be for another person, a certain "Enrico Carlos"; petitioner,
through falsication, made it appear that said "Enrico Carlos" applied for the loan
when in fact he ("Enrico Carlos") did not. Through such fraudulent device, petitioner
obtained the loan proceeds and converted the same. Under these circumstances, it
cannot be said that petitioner became the legal owner of the P8 million. Thus,
petitioner remained the bank's fiduciary with respect to that money, which makes it
capable of misappropriation or conversion in his hands.
The next question is whether there can also be, at the same time, a charge for
DOSRI violation in such a situation wherein the accused bank ocer did not secure
a loan in his own name, but was alleged to have used the name of another person
in order to indirectly secure a loan from the bank. We answer this in the affirmative.
Section 83 of RA 337 reads: EAcIST

Section 83. No director or ocer of any banking institution shall, either

directly or indirectly, for himself or as the representative or agent of others,
borrow any of the deposits of funds of such bank, nor shall he become a
guarantor, indorser, or surety for loans from such bank to others, or in any
manner be an obligor for moneys borrowed from the bank or loaned by it,
except with the written approval of the majority of the directors of the bank,
excluding the director concerned. Any such approval shall be entered upon
the records of the corporation and a copy of such entry shall be transmitted
forthwith to the Superintendent of Banks. The oce of any director or
ocer of a bank who violates the provisions of this section shall immediately
become vacant and the director or ocer shall be punished by
imprisonment of not less than one year nor more than ten years and by a
fine of not less than one thousand nor more than ten thousand pesos. . . .

The prohibition in Section 83 is broad enough to cover various modes of borrowing.

48 It covers loans by a bank director or ocer (like herein petitioner) which are
made either: (1) directly, (2) indirectly, (3) for himself, (4) or as the representative
or agent of others. It applies even if the director or ocer is a mere guarantor,
indorser or surety for someone else's loan or is in any manner an obligor for money
borrowed from the bank or loaned by it. The covered transactions are prohibited
unless the approval, reportorial and ceiling requirements under Section 83 are
complied with. The prohibition is intended to protect the public, especially the
depositors, 49 from the overborrowing of bank funds by bank ocers, directors,
stockholders and related interests, as such overborrowing may lead to bank failures.
50 It has been said that "banking institutions are not created for the benet of the
directors [or ocers]. While directors have great powers as directors, they have no
special privileges as individuals. They cannot use the assets of the bank for their
own benet except as permitted by law. Stringent restrictions are placed about
them so that when acting both for the bank and for one of themselves at the same
time, they must keep within certain prescribed lines regarded by the legislature as
essential to safety in the banking business". 51

A direct borrowing is obviously one that is made in the name of the DOSRI himself
or where the DOSRI is a named party, while an indirect borrowing includes one that
is made by a third party, but the DOSRI has a stake in the transaction. 52 The latter
type indirect borrowing applies here. The information in Criminal Case 238-M-
2001 alleges that petitioner "in his capacity as President of Rural Bank of San
Miguel-San Ildefonso branch . . . indirectly borrow[ed] or secure[d] a loan with
[RBSM] . . . knowing fully well that the same has been done by him without the
written consent and approval of the majority of the board of directors . . ., and which
consent and approval the said accused deliberately failed to obtain and enter the
same upon the records of said banking institution and to transmit a copy thereof to
the supervising department of the said bank . . . by using the name of one depositor
Enrico Carlos . . ., the latter having no knowledge of the said loan, and once in
possession of the said amount of eight million pesos (P8 million), [petitioner]
converted the same to his own personal use and benefit". 53

The foregoing information describes the manner of securing the loan as indirect;
names petitioner as the benefactor of the indirect loan; and states that the
requirements of the law were not complied with. It contains all the required
elements 54 for a violation of Section 83, even if petitioner did not secure the loan in
his own name. CDHAcI

The broad interpretation of the prohibition in Section 83 is justied by the fact that
it evenexpressly covers loans to third parties where the third parties are aware of
the transaction (such as principals represented by the DOSRI), and where the
DOSRI's interest does not appear to be benecial but even burdensome (such as in
cases when the DOSRI acts as a mere guarantor or surety). If the law nds it
necessary to protect the bank and the banking system in such situations, it will
surely be illogical for it to exclude a case like this where the DOSRI acted for his own
benefit, using the name of an unsuspecting person. A contrary interpretation will
eectively allow a DOSRI to use dummies to circumvent the requirements of the
law.

In sum, the informations filed against petitioner do not negate each other.

Third Issue:
Is a Rule 65 petition for certiorari the proper remedy against
an Order denying a Motion to Quash?

This issue may be speedily resolved by adopting our ruling in Soriano v. People, 55
where we held:

In ne, the Court has consistently held that a special civil action for certiorari
is not the proper remedy to assail the denial of a motion to quash an
information. The proper procedure in such a case is for the accused to
enter a plea, go to trial without prejudice on his part to present the special
defenses he had invoked in his motion to quash and if after trial on the
merits, an adverse decision is rendered, to appeal therefrom in the manner
authorized by law. Thus, petitioners should not have forthwith led a special
civil action for certiorari with the CA and instead, they should have gone to
trial and reiterated the special defenses contained in their motion to quash.
There are no special or exceptional circumstances in the present case that
would justify immediate resort to a ling of a petition for certiorari. Clearly,
the CA did not commit any reversible error, much less, grave abuse of
discretion in dismissing the petition. 56

Fourth Issue:
Whether petitioner is entitled to a writ of injunction

The requisites to justify an injunctive relief are: (1) the right of the complainant is
clear and unmistakable; (2) the invasion of the right sought to be protected is
material and substantial; and (3) there is an urgent and paramount necessity for
the writ to prevent serious damage. A clear legal right means one clearly founded in
or granted by law or is "enforceable as a matter of law." Absent any clear and
unquestioned legal right, the issuance of an injunctive writ would constitute grave
abuse of discretion. 57 Caution and prudence must, at all times, attend the issuance
of an injunctive writ because it eectively disposes of the main case without trial
and/or due process. 58 In Olalia v. Hizon, 59 the Court held as follows: CTEacH

It has been consistently held that there is no power the exercise of which is
more delicate, which requires greater caution, deliberation and sound
discretion, or more dangerous in a doubtful case, than the issuance of an
injunction. It is the strong arm of equity that should never be extended
unless to cases of great injury, where courts of law cannot aord an
adequate or commensurate remedy in damages.

Every court should remember that an injunction is a limitation upon the

freedom of action of the [complaint] and should not be granted lightly or
precipitately. It should be granted only when the court is fully satised that
the law permits it and the emergency demands it.

Given this Court's ndings in the earlier issues of the instant case, we nd no
compelling reason to grant the injunctive relief sought by petitioner.

WHEREFORE, the petition is DENIED. The assailed September 26, 2003 Decision
as well as the February 5, 2004 Resolution of the Court of Appeals in CA-G.R. SP No.
67657 are AFFIRMED. Costs against petitioner.

SO ORDERED.

Carpio, Corona * and Brion, JJ., concur.

Footnotes

1. The Petition for Review on Certiorari under Rule 45 led before the Court
erroneously included Judge Arturo G. Tayag among its public respondents. We
have deleted his name in the case title in accordance with Section 4 (a), Rule 45 of
the Rules of Court, which reads:

Sec. 4. Contents of petition. The petition shall be led in eighteen (18) copies,
with the original copy intended for the court being indicated as such by the
petitioner, and shall (a) state the full name of the appealing party as the petitioner
and the adverse party as respondent, without impleading the lower courts or
judges thereof either as petitioners or respondents; . . . (Emphasis supplied)

2. Director, Officer, Stockholder and Related Interest.

3. The General Banking Act.

4. Rollo, pp. 10-23.

5. Id. at 25-36; penned by Associate Justice Arsenio J. Magpale and concurred in by

 Associate Justices Conrado M. Vasquez, Jr. and Bienvenido L. Reyes.

6. Id. at 38-39.

7. Id. at 36.

8. Bank Attorney III Jose R. Fajardo, Deputy Director Alfonso C. Peaco IV, and
Director Vicente S. Aquino, CA rollo, p. 36.

9. Id. at 34-36.

10. Id. at 288-328.

11. Increasing the Penalty for Certain Forms of Swindling or Estafa.

12. Amending Further Republic Act No. 337, As Amended, Otherwise Known as the
"General Banking Act".

13. CA rollo, pp. 38-39.

14. Id. at 21-23.

15. Id.

16. Id. at 21-22.

17. Id. at 24-26.

18. Id.

19. Id. at 24-25.

20. Presided by Hon. Arturo G. Tayag but subsequently raed o to Branch 17,
Regional Trial Court, Malolos, Bulacan, presided by Judge Ma. Theresa V. Mendoza-
Arcega, rollo, p. 838.

21. CA rollo, pp. 27-33.

22. Id. at 28-29.

23. Sec. 83. No director or ocer of any banking institution shall, either directly or
indirectly, for himself or as the representative or agent of others, borrow any of
the deposits of funds of such bank, nor shall he become a guarantor, indorser, or
surety for loans from such bank to others, or in any manner be an obligor for
moneys borrowed from the bank or loaned by it, except with the written approval
of the majority of the directors of the bank, excluding the director concerned. Any
such approval shall be entered upon the records of the corporation and a copy of
such entry shall be transmitted forthwith to the Superintendent of Banks. The
oce of any director or ocer of a bank who violates the provisions of this
section shall immediately become vacant and the director or ocer shall be
punished by imprisonment of not less than one year nor more than ten years and
by a fine of not less than one thousand nor more than ten thousand pesos.
 In addition to the conditions established in the preceding paragraph, no director
of a building and loan association shall engage in any of the operations mentioned
in said paragraph except upon the pledge of shares of the association having a
total withdrawal value greater than the amount borrowed.

24. Sec. 83. No director or ocer of any banking institution shall, either directly or
indirectly, for himself or as the representative or agent of others, borrow any of
the deposits of funds of such bank, nor shall he become a guarantor, indorser, or
surety for loans from such bank to others, or in any manner be an obligor for
moneys borrowed from the bank or loaned by it, except with the written approval
of the majority of the directors of the bank, excluding the director concerned. Any
such approval shall be entered upon the records of the corporation and a copy of
such entry shall be transmitted forthwith to the Superintendent of Banks. The
oce of any director or ocer of a bank who violates the provisions of this
section shall immediately become vacant and the director or ocer shall be
punished by imprisonment of not less than one year nor more than ten years and
by a fine of not less than one thousand nor more than ten thousand pesos.

In addition to the conditions established in the preceding paragraph, no director

of a building and loan association shall engage in any of the operations mentioned
in said paragraph except upon the pledge of shares of the association having a
total withdrawal value greater than the amount borrowed.

25. CA rollo, pp. 30-31.

26. Id. at 17-19.

27. Id. at 18-19.

28. Id. at 20.

29. Id. at 2-16.

30. Rollo, pp. 30-31.

31. Id. at 31-32.

32. Id. at 35.

33. CA rollo, pp. 363-372.

34. Rollo, p. 855.

35. Id. at 887.

36. Id. at 880-886.

37. G.R. No. 163400, March 31, 2006, 486 SCRA 431.

38. Rollo, pp. 881-883.

39. Supra note 36.

40. Ting v. Velez-Ting, G.R. No. 166562, March 31, 2009, 582 SCRA 694.

41. G.R. No. 175057, January 29, 2008, 543 SCRA 70.

42. Id. at 84-85.

43. CA rollo, pp. 30-31.

44. Soriano v. People, G.R. Nos. 159517-18, June 30, 2009, 591 SCRA 244, 257-258,
citing Caballero v. Sandiganbaya, G.R. Nos. 137355-58, September 25, 2007, 534
SCRA 30, 43 and Torres v. Hon. Garchitorena, 442 Phil. 765, 777 (2002).

45. Id. at 257.

46. Rollo, p. 864.

47. FLETCHER CYCLOPEDIA OF THE LAW OF CORPORATIONS 838 (perm. ed., 1986
rev. vol.) states that:

"At common law, and by the modern current of authority in this country, and in
England, the directors of a private corporation, while not regarded as trustees in
the strict, technical sense, are considered in equity as bearing a duciary relation
to the corporation and its stockholders. In other words, it is universally recognized
that courts of equity treat the relationship of director and stockholders as a
trusteeship, in order to determine the rights, duties and liabilities of the directors; .
. . Moreover, these rules should be applied even more stringently to an ocer and
director of a bank who should be concerned with the welfare of depositors as well
as that of customers and stockholders. The law demands the fullest disclosure
and fair dealing by a director or ocer in his relations with a bank. Thus, in the
discharge of his high trust the law holds a bank president to "standards of probity
and delity more lofty than those of the 'market place.' These high standards this
court is not disposed to whittle down". (Citations omitted and emphasis added)

48. Go v. Bangko Sentral ng Pilipinas, G.R. No. 178429, October 23, 2009.

49. Id.

50. 10 Am Jur 2d, Banks, Section 239.

51. People v. Knapp, 206 NY 373, a case cited in Go v. Bangko Sentral ng Pilipinas,
supra.

52. People v. Concepcion, 44 Phil. 126 (1922).

53. CA rollo, pp. 24-25.

54. In Go v. Bangko Sentral ng Pilipinas, supra note 47, the elements of a DOSRI law
violation were enumerated:

"1. the offender is a director or officer of any banking institution;

2. the oender, either directly or indirectly, for himself or as representative or agent

of another, performs any of the following acts:
 a. he borrows any of the deposits or funds of such bank; or

b. he becomes a guarantor, indorser, or surety for loans from such bank to

others, or

c . he becomes in any manner an obligor for money borrowed from

bank or loaned by it;

3. the oender has performed any of such acts without the written approval of the
majority of the directors of the bank, excluding the oender, as the director
concerned".

55. Supra note 43.

56. Id. at 261.

57. Boncodin v. National Power Corporation Employees Consolidated Union (NECU),

G.R. No. 162716, September 27, 2006, 503 SCRA 611, 622-623.

58. F. REGALADO, REMEDIAL LAW COMPENDIUM, Vol. I, p. 639 (7th revised ed.,
1999).

59. 274 Phil. 66, 75-76 (1991).

* In lieu of Associate Justice Roberto A. Abad who is on leave per Special Order No.
812 dated January 4, 2010.
 SECOND DIVISION

[G.R. No. 164673. January 15, 2010.]

SAMUEL U. LEE and MAYBELLE LEE LIM , petitioners, vs. KBC

BANK N.V., respondent.

DECISION

CARPIO, J :p

The Case

This is a petition 1 for review on certiorari under Rule 45 of the Rules of Court. The
petition challenges the 10 February 2004 Decision 2 and 27 July 2004 Resolution 3
of the Court of Appeals in CA-G.R. SP No. 78004. The Court of Appeals set aside the
26 March 2003 Order 4 of the Regional Trial Court (RTC), National Capital Judicial
Region, Branch 58, Makati City, in Criminal Case Nos. 02-344-45. acEHCD

The Facts

Midas Diversied Export Corporation (MDEC) obtained a $1,400,000 loan

from KBC Bank N.V. (KBC Bank). KBC Bank is a Belgian corporation
licensed to do business in the Philippines. On 12 August 1997, Samuel U.
Lee (Lee), assistant treasurer and director of MDEC, executed a
promissory note in favor of KBC Bank and a deed of assignment
transferring all of MDEC's rights over Conrmed Purchase Order No. MTC-
548 to KBC Bank. Conrmed Purchase Order No. MTC-548 was allegedly
dated 15 July 1997, issued by Otto Versand, a company based in Germany,
and covered a shipment of girl's basic denim jeans amounting to
$1,863,050.

MDEC obtained another loan, amounting to $65,000, from KBC Bank. On 14

November 1997, Maybelle L. Lim (Lim), treasurer and assistant secretary of MDEC,
executed a promissory note in favor of KBC Bank and a deed of assignment
transferring all of MDEC's rights over Conrmed Purchase Order No. WC-128 to KBC
Bank. Conrmed Purchase Order No. WC-128 was allegedly dated 1 October 1997,
issued by Otto Versand, and covered a shipment of boy's bermuda jeans amounting
to $841,500.

On 23 December 1997, Lim renewed the 12 August 1997 promissory note and
issued a notice of renewal and drawdown certicate to KBC Bank. On 29 December
1997, Lim executed an amended deed of assignment transferring all of MDEC's
rights over Confirmed Purchase Order No. MTC-548 to KBC Bank.

MDEC was considered in default in paying the $65,000 loan on 30 January 1998.
Under a facility agreement between KBC Bank and MDEC, any default in payment
of any obligation under the agreement would render MDEC in default with regard to
the $65,000 loan MDEC defaulted in paying two other obligations under the
agreement. MDEC also failed to pay the $1,400,000 loan when it became due on 9
February 1998.

On 17 March 1998, KBC Bank sent a letter to Otto Versand verifying the validity of
Conrmed Purchase Order Nos. MTC-548 and WC-128. On 19 March 1998, Otto
Versand sent a facsimile message to KBC Bank stating that (1) it did not issue the
purchase orders, (2) it did not order or receive the items covered by the purchase
orders, and (3) it would not pay MDEC any amount.

In a complaint-adavit 5 dated 21 April 1998, Liza M. Pajarillo, manager of the

corporate division of KBC Bank, charged Lee and Lim of estafa. In his Resolution 6
dated 27 November 2001, State Prosecutor Joseno A. Subia (State Prosecutor
Subia) found the existence of probable cause and recommended that two counts of
estafa be filed against Lee and Lim. State Prosecutor Subia stated that:

After a careful evaluation of the evidence presented by the Bank, as well as

of the respondents, we nd the existence of a probable cause to indict
respondents Samuel Lee and Maybelle Lee Lim.

It is an established fact that the conrmed purchase order nos. MTC-548

and WC-128 presented with the Bank by the Midas thru respondents
Samuel Lee and Maybelle Lee Lim were false and spurious, having been
unequivocably repudiated and/or disowned by Otto Versand, Germany, the
foreign buyer who allegedly issued the same, as evidenced by a telefax
message sent to the Bank by Otto Versand. Evidently, respondent Samuel
Lee signed the following documents, to wit: the "conforme" portion of the
US$2.0 million short-term trade facility, the promissory note and the
corresponding deed of assignment both dated August 12, 1997, covering
the conrmed purchase order no[.] MTC-548, while respondent Maybelle Lee
Lim signed in the promissory note and the corresponding deed of
assignment both dated Nov. 14, 1997, the renewed promissory note and
the notice of renewal and drawdown certicate both dated Dec. 23, 1997.
Respondents Samuel Lee and Maybelle Lee Lim, thus cannot escape
indictment, aside from signing those relevant loan documents, as they also
clearly helped one another in fraudulently representing to the Bank that
indeed said conrmed two (2) purchased [sic] orders does [sic] exists [sic]
and that Midas have [sic] their [sic] rights, titles and interests thereto. With
their fraudulent representation, they were able to entice or induce the Bank
to extend [to] them the loan of USD$1.4 million and USD$ 65,000 under the
short-term trade facility previously granted to them. 7

Accordingly, two informations for estafa against Lee and Lim were led with the
RTC. After nding probable cause, Judge Winlove M. Dumayas (Judge Dumayas) of
the RTC issued warrants of arrest against Lee and Lim.

Lee and Lim filed a petition 8 for review dated 26 April 2002 with the Department of
Justice. Lee and Lim challenged State Prosecutor Subia's 27 November 2001
Resolution and 17 April 2002 Order denying their motion for reconsideration. They
claimed that:

I. THE RESOLUTIONS OF 27 NOVEMBER 2001 AND 17 APRIL 2002

MERELY RELIED ON HEARSAY EVIDENCE WHICH CANNOT BE THE
BASIS FOR A FINDING OF A PROBABLE CAUSE.

II. THE ASSAILED RESOLUTIONS WERE ISSUED BASED ONLY ON THE

UNCORROBORATED ALLEGATIONS OF PAJARILLO THAT LEE AND LIM
MADE FRAUDULENT REPRESENTATIONS TO [KBC BANK]. IcHTCS

III. THE ASSAILED RESOLUTIONS ERRED IN HOLDING LEE AND LIM TO

BE CRIMINALLY LIABLE DESPITE THE TWO LOANS CREATING MERELY
CIVIL LIABILITY ON THE PART OF MIDAS. 9

In his Resolution 10 dated 12 July 2002, Secretary Hernando B. Perez (Secretary

Perez) directed the withdrawal of the informations led against Lee and Lim.
Secretary Perez held that the facsimile message constituted hearsay evidence:

The twin charges of estafa are primarily anchored on respondents' alleged

fraudulent representations to [KBC Bank] that the two purchase orders
were fake or sham. To prove this point, Ms. Pajarillo of [KBC Bank] claims
that she received a fax message from a representative of Otto Versand,
stating that the latter company did not issue the purchase orders
mentioned. There was no sworn statement from a responsible ocer of
Otto Versand presented to attest to the allegation that the subject purchase
orders were fake. Since Ms. Pajarillo did not have personal
knowledge of the fact that the subject purchase orders were in
fact fake, her testimony cannot be the basis for nding probable
cause against respondents. Ms. Pajarillo can testify only to those
facts that she knew of her personal knowledge. Admittedly, she
derived knowledge of the supposed spurious character of the
purchase orders from a mere fax copy of a message that [KBC
Bank] received from a certain representative of Otto Versand in
Germany, someone who she did not even know personally.
Unfortunately, this fax copy is hearsay evidence and therefore,
inadmissible to prove the truth of what it contains (Pastor vs.
Gaspar, 2 Phil 592). 11 (Emphasis supplied)

KBC Bank led a motion 12 for reconsideration dated 2 August 2002 with the
Department of Justice.

Lee and Lim had not been arraigned. In a motion 13 dated 18 October 2002 and led
with the RTC, Assistant City Prosecutor Nora C. Sibucao (Assistant City Prosecutor
Sibucao) prayed for the withdrawal of the informations led against Lee and Lim.
Assistant City Prosecutor Sibucao stated that:

The Prosecution, through the undersigned Trial Prosecutor, unto the

Honorable Court, most respectfully moves and prays for the withdrawal of
Information led in the above-entitled cases in view of the resolution of the
Department of Justice promulgated on July 12, 2002 reversing the resolution
 of the City Prosecutor of Makati City. 14

The RTC's Ruling

In his one-page Order 15 dated 26 March 2003, Judge Dumayas granted Assistant
City Prosecutor Sibucao's motion to withdraw the informations against Lee and Lim.
Judge Dumayas held that:

This Court, after an in-depth scrutiny of the arguments raised by the

prosecution and private complainant, nds the contentions of the
prosecution to be sufficient and meritorious.

Accordingly, the Motion to Withdraw Information led by the Prosecution is

hereby granted and the two (2) informations for the crime of Estafa
penalized under par. 2 (a) of the Revised Penal Code are hereby withdrawn
from the docket of this court. 16

KBC Bank led with the Court a petition 17 for review on certiorari under Rule 45 of
the Rules of Court. KBC Bank claimed that:

I.

The court a quo committed reversible error in issuing the questioned Order
without specifying its legal basis.

II.

The court a quo committed reversible error in prematurely acting upon the
Makati Prosecutor's Motion to Withdraw of * Information.

III.

The court a quo committed reversible error in nding that no probable cause
exists to hold respondents for trial for estafa under Article 315, par. 2(a)
and in granting the Makati Prosecutor's Motion to Withdraw Information. 18

In a Resolution 19 dated 23 June 2003, the Court referred the petition to the Court
of Appeals pursuant to Section 6, 20 Rule 56 of the Rules of Court. In his Resolution
21 dated 19 November 2003, Secretary Simeon A. Datumanong denied KBC Bank's
2 August 2002 motion for reconsideration.

The Court of Appeals' Ruling

In its 10 February 2004 Decision, the Court of Appeals set aside Judge Dumayas' 26
March 2003 Order. The Court of Appeals held that: DHEaTS

It has long been established that the ling of a complaint or information in

Court initiates a criminal action. The Court thereby acquires jurisdiction over
the case, which is the authority to hear and determine the case. When after
the ling of the complaint or information, a warrant for the arrest of the
accused is issued by the trial court and the accused either voluntarily
submitted himself to the Court or was duly arrested, the Court thereby
 acquired jurisdiction over the person of the accused.

xxx xxx xxx

The trial judge practically concurred with the ndings of the Secretary of Justice that
the "fax copy is hearsay evidence and therefore, inadmissible to prove the truth that
it contains", contrary to the well-reasoned ndings of the investigating prosecutor.
It is emphasized that a preliminary investigation is not the occasion for the full and
exhaustive display of the parties' evidence; it is for the presentation of such
evidence only as may engender a well-grounded belief that an oense has been
committed and that the accused is probably guilty thereof.

The issue of admissibility or inadmissibility of evidence is a matter of defense that is

best ventilated in a full-blown trial; preliminary investigation is not the occasion for
the exhaustive display of presentation of evidence. 22

Hence, the present petition.

The Issues

In their petition, Lee and Lim raised as issues that:

THE COURT EXCEEDED ITS AUTHORITY IN PASSING UPON THE ISSUE OF

WHETHER OR NOT THERE WAS PRIMA FACIE EVIDENCE OF ESTAFA
AGAINST THE PETITIONERS, AN ISSUE THAT WAS PENDING BEFORE THE
SECRETARY OF JUSTICE

xxx xxx xxx

II

QUESTION IS NOT ONE OF ADMISSIBILITY OF EVIDENCE BUT THE NEED IN

PRELIMINARY INVESTIGATION FOR EVIDENCE OF VALUE TO ESTABLISH
PROBABLE CAUSE

xxx xxx xxx

III

RESPONDENT COURT DID NOT PREMATURELY ALLOW THE WITHDRAWAL

OF THE INFORMATIONS

xxx xxx xxx

IV

THE TRIAL COURT DID NOT ABDICATE ITS DUTY TO DETERMINE THE
SUFFICIENCY OF THE PROSECUTION'S REASON FOR WITHDRAWING
THE INFORMATIONS. 23
 The Court's Ruling

The petition is unmeritorious.

Lee and Lim claim that the Court of Appeals erred when it reviewed the ndings of
Secretary Perez. They stated that:

[T]he Court of Appeals cannot indirectly review the ndings of the Secretary
under the pretext of correcting the actuation of the trial court. . . .

[T]he only ruling before the Court of Appeals is the ruling of the trial court . .
..

But the Court of Appeals ignored the fact that the case before it is not one
for the review of the nal order of the Secretary of Justice, acting as a quasi-
judicial ocer, which is governed by Rule 43 of the Rules of Court. The
actual case led with it was rather a petition for review on certiorari of the
dismissal order of the trial court under Rule 45. 24

The Court is not impressed. The Court of Appeals reviewed Judge Dumayas' 26
March 2003 Order, not Secretary Perez's 12 July 2002 Resolution. The Court of
Appeals held that Judge Dumayas erred when he failed to make his own evaluation
and merely relied on Secretary Perez's recommendation that there was no probable
cause. The Court of Appeals stated that: EAIaHD

In a more recent case, the Supreme Court ruled that:

"A judge acts with grave abuse of discretion when he grants a

prosecutor's motion to dismiss the criminal charges against an
accused on the basis solely of the recommendation of the Secretary
of Justice his reliance on the prosecutor's averment that the
Secretary of Justice had recommended the dismissal of the case
against the petitioner is an abdication of the trial court's duty and
jurisdiction to determine a prima facie case in blatant violation of the
Court's pronouncement in Crespo vs. Mogul."

When the trial judge issued its Order of February 14, 2002 directing the
issuance of warrants of arrest against the respondents, he clearly found
probable cause to sustain the ling of criminal complaints against the latter.
The issuance of a warrant of arrest is not a ministerial function of the court
it calls for the exercise of judicial discretion on the part of the issuing
magistrate.

If the trial court judge nds it appropriate to dismiss the Informations, the
same should be based upon his own personal individual conviction that there
is no case against the accused/respondents. To rely solely on the
recommendation of the Secretary of Justice, to say the least, is an
abdication of the judge[']s duty and jurisdiction to determine a prima facie
case. What was imperatively required was the trial judge's own assessment
of just evidence, it not being sucient for the valid and proper exercise of
judicial discretion merely to accept the prosecution's word for its supposed
 insufficiency. 25

Lee and Lim claim that the Court of Appeals erred when it ruled that the
admissibility of the facsimile message is a matter best ventilated in a full-blown
trial. They stated that:

At any rate, the Court of Appeals also said in its decision that the issue of
admissibility of evidence assailed as hearsay is a matter of defense to be
ventilated in a full blown trial. It held that preliminary investigation is not the
occasion for exhaustive display of evidence and the issue of admissibility or
inadmissibility of evidence is a matter of defense to be ventilated at the trial.

But the Secretary of Justice's rejection of the "fax copy" of Otto Versand's
letter as hearsay evidence merely armed petitioners' right to due process
in a preliminary investigation. . . .

xxx xxx xxx

Ms. Pajarillo authenticated it by stating under oath that she received it. The
cause for its rejection is the fact that its contents are purely hearsay since
Ms. Pajarillo who testied about them had no personal knowledge of the fact
that the purchase orders were false. The author of the fax message did not
swear under oath to the truth of the statement in the document contrary to
what section 3 (e) of Rule 112 mandates.

The Oce of the Solicitor General agreed with the petitioners. In the
comment dated October 28, 2003 that it led with the Court of Appeals, it
said:

xxx xxx xxx

20. In this case, the Secretary of Justice's realistic judicial appraisal

of the merits of petitioner's complaint-adavit show that its evidence
of estafa is insucient for lack of proof of the requisite element of
deceit. So much so that if the case were tried, the trial court would be
bound to order an acquittal. 26

The Court is not impressed. Whether the facsimile message is admissible in

evidence and whether the element of deceit in the crime of estafa is present are
matters best ventilated in a full-blown trial, not in the preliminary investigation. In
Andres v. Justice Secretary Cuevas, 27 the Court held that:
[A preliminary investigation] is not the occasion for the full and exhaustive
display of [the prosecution's] evidence. The presence or absence of the
elements of the crime is evidentiary in nature and is a matter of
defense that may be passed upon after a full-blown trial on the
merits.

In ne, the validity and merits of a party's defense or accusation, as well as

the admissibility of testimonies and evidence, are better ventilated during trial
proper than at the preliminary investigation level. 28 (Emphasis supplied)
Lee and Lim claim that the Court of Appeals erred when it ruled that Judge
Dumayas failed to make his own evaluation and merely relied on Secretary Perez's
recommendation that there was no probable cause. They stated that:

Contrary to the Court of Appeals['] ruling, the trial court made an eort to
evaluate the merit of the prosecution's motion to withdraw the informations.
It evaluated the merits of both the prosecution's motion and respondent
bank's opposition to the motion. . . .
HCITAS

Clearly, it cannot be said that the trial court abandoned its responsibility of
making an independent assessment of the suciency of the prosecution
motion [sic]. Indeed, it scrutinized the arguments of respondent bank just
as it did the arguments of the prosecution in order to determine for itself
whether or not the withdrawal of the informations was warranted. 29

The Court is not impressed. Judge Dumayas failed to make his own evaluation in
granting the motion to withdraw the informations. Judge Dumayas' 26 March 2003
Order states in full:

This Court, after an in-depth scrutiny of the arguments raised by the

prosecution and private complainant, nds the contentions of the
prosecution to be sufficient and meritorious.

Accordingly, the Motion to Withdraw Information led by the Prosecution is hereby

granted and the two (2) informations for the crime of Estafa penalized under par. 2
(a) of the Revised Penal Code are hereby withdrawn from the docket of this court.

In Co v. Lim, 30 the Court held that:

Once a case is led with the court, any disposition of it rests on the sound
discretion of the court. The trial court is not bound to adopt the resolution
of the Secretary of Justice, since it is mandated to independently evaluate or
assess the merits of the case. Reliance on the resolution of the Secretary of
Justice alone would be an abdication of its duty and jurisdiction to determine
a prima facie case. The trial court may make an independent assessment of
the merits of the case based on the adavits and counter-adavits,
documents, or evidence appended to the Information; the records of the
public prosecutor, which the court may order the latter to produce before
the court; or any evidence already adduced before the court by the accused
at the time the motion is filed by the public prosecutor.

xxx xxx xxx

[T]HE TRIAL JUDGE DID NOT POSITIVELY STATE THAT THE

EVIDENCE PRESENTED AGAINST THE RESPONDENTS WAS
INSUFFICIENT FOR A PRIMA FACIE CASE, NOR DID THE
AFOREQUOTED ORDER INCLUDE A DISCUSSION OF THE MERITS OF
THE CASE BASED ON AN EVALUATION OR ASSESSMENT OF THE
EVIDENCE ON RECORD. IN OTHER WORDS, THE DISMISSAL OF THE CASE
WAS BASED UPON CONSIDERATIONS OTHER THAN THE JUDGE'S OWN
PERSONAL INDIVIDUAL CONVICTION THAT THERE WAS NO CASE AGAINST
 THE RESPONDENTS. THUS, THE TRIAL JUDGE IMPROPERLY RELINQUISHED
THE DISCRETION THAT HE WAS BOUND TO EXERCISE, AND THE ORDERS
DATED 11 FEBRUARY 2004 AND 29 JUNE 2004 ARE INVALID FOR HAVING
BEEN ISSUED IN GRAVE ABUSE OF DISCRETION. (EMPHASIS SUPPLIED)

In BALTAZAR V. CHUA, 31 THE COURT HELD THAT:

CONSIDERING THAT THE TRIAL COURT HAS THE POWER AND DUTY TO
LOOK INTO THE PROPRIETY OF THE PROSECUTION'S MOTION TO DISMISS,
WITH MUCH MORE REASON IS IT FOR THE TRIAL COURT TO EVALUATE
AND TO MAKE ITS OWN APPRECIATION AND CONCLUSION, WHETHER THE
MODIFICATION OF THE CHARGES AND THE DROPPING OF ONE OF THE
ACCUSED IN THE INFORMATION, AS RECOMMENDED BY THE JUSTICE
SECRETARY, IS SUBSTANTIATED BY EVIDENCE. THIS SHOULD BE THE
STATE OF AFFAIRS, SINCE THE DISPOSITION OF THE CASE SUCH AS ITS
CONTINUATION OR DISMISSAL OR EXCLUSION OF AN ACCUSED IS
REPOSED IN THE SOUND DISCRETION OF THE TRIAL COURT.

IN THE CASE UNDER CONSIDERATION, THE CITY PROSECUTOR INDICTED

JAIME AND JOVITO FOR THE CRIMES OF MURDER AND FRUSTRATED
MURDER. HOWEVER, UPON REVIEW, THE SECRETARY OF JUSTICE
DOWNGRADED THE CHARGES TO HOMICIDE AND FRUSTRATED HOMICIDE.
THE SECRETARY ALSO DROPPED JAIME FROM THE CHARGES. THIS
RESOLUTION PROMPTED THE CITY PROSECUTOR TO FILE A
MANIFESTATION AND MOTION FOR THE WITHDRAWAL OF THE
INFORMATIONS FOR MURDER AND FRUSTRATED MURDER AND FOR THE
ADMISSION OF NEW INFORMATIONS FOR HOMICIDE AND FRUSTRATED
HOMICIDE AGAINST JOVITO ONLY, WHICH WAS GRANTED BY JUDGE CRUZ
IN HIS ORDER DATED 18 NOVEMBER 1997. JUDGE CRUZ, HOWEVER,
FAILED TO MAKE AN INDEPENDENT ASSESSMENT OF THE MERITS OF THE
CASES AND THE EVIDENCE ON RECORD OR IN THE POSSESSION OF THE
PUBLIC PROSECUTOR. IN GRANTING THE MOTION OF THE PUBLIC
PROSECUTOR TO WITHDRAW THE INFORMATIONS, THE TRIAL COURT
NEVER MADE ANY ASSESSMENT WHETHER THE CONCLUSIONS ARRIVED AT
BY THE SECRETARY OF JUSTICE WAS SUPPORTED BY EVIDENCE. IT DID
NOT EVEN TAKE A LOOK AT THE BASES ON WHICH THE JUSTICE
SECRETARY DOWNGRADED THE CHARGES AGAINST JOVITO AND
EXCLUDED JAIME THEREFROM. 32 (EMPHASIS SUPPLIED)

IN ARK TRAVEL EXPRESS V. THE PRESIDING JUDGE OF MAKATI, 33 THE COURT

HELD THAT: STIcaE

IT IS SETTLED THAT WHEN CONFRONTED WITH A MOTION TO WITHDRAW

AN INFORMATION ON THE GROUND OF LACK OF PROBABLE CAUSE BASED
ON A RESOLUTION OF THE SECRETARY OF THE DEPARTMENT OF JUSTICE,
THE BOUNDEN DUTY OF THE TRIAL COURT IS TO MAKE AN INDEPENDENT
ASSESSMENT OF THE MERITS OF SUCH MOTION. HAVING ACQUIRED
JURISDICTION OVER THE CASE, THE TRIAL COURT IS NOT BOUND BY SUCH
RESOLUTION BUT IS REQUIRED TO EVALUATE IT BEFORE PROCEEDING
FURTHER WITH THE TRIAL AND SHOULD EMBODY SUCH ASSESSMENT
IN THE ORDER DISPOSING THE MOTION.
 THE SUBJECT MTC ORDERS DO NOT SHOW THAT THE MTC MADE AN
INDEPENDENT ASSESSMENT OF THE MERITS OF THE MOTION TO
WITHDRAW INFORMATIONS. . . .

THE MTC SHOULD HAVE MADE AN INDEPENDENT EVALUATION AND

EMBODIED ITS ASSESSMENT IN AT LEAST ONE OF ITS ASSAILED
ORDERS. 34 (EMPHASIS SUPPLIED)

IN LEDESMA V. COURT OF APPEALS, 35 THE COURT HELD THAT:

ONCE A COMPLAINT OR INFORMATION IS FILED IN COURT, ANY

DISPOSITION OF THE CASE SUCH AS ITS DISMISSAL OR ITS CONTINUATION
RESTS ON THE SOUND DISCRETION OF THE COURT. TRIAL JUDGES ARE
THUS REQUIRED TO MAKE THEIR OWN ASSESSMENT OF WHETHER THE
SECRETARY OF JUSTICE COMMITTED GRAVE ABUSE OF DISCRETION IN
GRANTING OR DENYING THE APPEAL, SEPARATELY AND INDEPENDENTLY
OF THE PROSECUTION'S OR THE SECRETARY'S EVALUATION THAT SUCH
EVIDENCE IS INSUFFICIENT OR THAT NO PROBABLE CAUSE TO HOLD THE
ACCUSED FOR TRIAL EXISTS. THEY SHOULD EMBODY SUCH
ASSESSMENT IN THEIR WRITTEN ORDER DISPOSING OF THE
MOTION.

xxx xxx xxx

THE TRIAL COURT'S ORDER IS INCONSISTENT WITH OUR REPETITIVE

CALLS FOR AN INDEPENDENT AND COMPETENT ASSESSMENT OF THE
ISSUE(S) PRESENTED IN THE MOTION TO DISMISS. THE TRIAL JUDGE WAS
TASKED TO EVALUATE THE SECRETARY'S RECOMMENDATION FINDING THE
ABSENCE OF PROBABLE CAUSE TO HOLD PETITIONER CRIMINALLY LIABLE
FOR LIBEL. HE FAILED TO DO SO. HE MERELY RULED TO PROCEED WITH
THE TRIAL WITHOUT STATING HIS REASONS FOR DISREGARDING THE
SECRETARY'S RECOMMENDATION. 36 (EMPHASIS SUPPLIED)

IN THE PRESENT CASE, JUDGE DUMAYAS, IN HIS 26 MARCH 2003 ORDER, DID NOT
(1) POSITIVELY STATE THAT THE EVIDENCE AGAINST LEE AND LIM IS
INSUFFICIENT, (2) INCLUDE A DISCUSSION OF THE MERITS OF THE CASE, (3)
ASSESS WHETHER SECRETARY PEREZ'S CONCLUSION IS SUPPORTED BY
EVIDENCE, (4) LOOK AT THE BASIS OF SECRETARY PEREZ'S RECOMMENDATION,
(5) EMBODY HIS ASSESSMENT IN THE ORDER, AND (6) STATE HIS REASONS FOR
GRANTING THE MOTION TO WITHDRAW THE INFORMATIONS.

JUDGE DUMAYAS' FAILURE TO MAKE HIS OWN EVALUATION OF THE MERITS OF

THE CASE VIOLATES KBC BANK'S RIGHT TO DUE PROCESS AND CONSTITUTES
GRAVE ABUSE OF DISCRETION. JUDGE DUMAYAS' 26 MARCH 2003 ORDER
GRANTING THE MOTION TO WITHDRAW THE INFORMATIONS IS VOID. 37

WHEREFORE, THE PETITION IS DENIED. THE COURT AFFIRMS THE 10

FEBRUARY 2004 DECISION AND 27 JULY 2004 RESOLUTION OF THE COURT OF
APPEALS IN CA-G.R. SP NO. 78004. THE CASE IS REMANDED TO THE REGIONAL
TRIAL COURT, NATIONAL CAPITAL JUDICIAL REGION, BRANCH 58, MAKATI CITY FOR
EVALUATION ON WHETHER PROBABLE CAUSE EXISTS TO HOLD THE ACCUSED FOR
TRIAL. EATCcI

SO ORDERED.

Velasco, Jr., * Brion, Del Castillo and Perez, JJ., concur.

Footnotes

1. Rollo, pp. 10-33.

2. Id. at 204-212. Penned by Associate Justice Eugenio S. Labitoria, with Associate

Justices Mercedes Gozo-Dadole and Rosmari D. Carandang, concurring.

3. Id. at 243-244.

4. Id. at 77. Penned by Judge Winlove M. Dumayas.

5. Id. at 38-40.

6. Id. at 52-58.

7. Id. at 55.

8. CA rollo, pp. 78-88.

9. Id. at 82.

10. Rollo, pp. 59-62.

11. Id. at 60.

12. Id. at 63-76.

13. Id. at 296.

14. Id.

15. Id. at 77.

16. Id.

17. Id. at 78-116.

18. Id. at 90.

19. CA rollo, p. 240.

20. Section 6, Rule 56 of the Rules of Court states:

SEC. 6. Disposition of improper appeal. Except as provided in section 3, Rule

122 regarding appeals in criminal cases where the penalty imposed is death,
reclusion perpetua or life imprisonment, an appeal taken to the Supreme Court by
 notice of appeal shall be dismissed.

An appeal by certiorari taken to the Supreme Court from the Regional Trial Court
submitting issues of fact may be referred to the Court of Appeals for decision or
appropriate action. The determination of the Supreme Court on whether or not
issues of fact are involved shall be final.

21. Rollo, pp. 199-200.

22. Id. at 210-211.

23. Id. at 20-29.

24. Id. at 20-21.

25. Id. at 210-211.

26. Id. at 23-26.

27. 499 Phil. 36 (2005).

28. Id. at 49-50.

29. Rollo, pp. 29-30.

30. G.R. Nos. 164669 and 164670, 30 October 2009.

31. G.R. No. 177583, 27 February 2009, 580 SCRA 369.

32. Id. at 377.

33. 457 Phil. 189 (2003).

34. Id. at 203.

35. 344 Phil. 207 (1997).

36. Id. at 235-236.

37. Summerville General Merchandising and Co., Inc. v. Eugenio, Jr., G.R. No.
163741, 7 August 2007, 529 SCRA 274, 282.

* Designated additional member per Raffle dated 6 January 2010.

 SECOND DIVISION

[G.R. No. 150185. May 27, 2004.]

TERESITA TANGHAL OKABE , petitioner, vs. HON. PEDRO DE

LEON GUTIERREZ, in his capacity as Presiding Judge of RTC,
Pasay City, Branch 119; PEOPLE OF THE PHILIPPINES; and
CECILIA MARUYAMA, respondents.

DECISION

CALLEJO, SR., J :p

Before us is a petition for review on certiorari, under Rule 45 of the Rules of Court,
as amended, that part of the Decision 1 of the Court of Appeals in CA-G.R. SP No.
60732 dismissing her petition for certiorari under Rule 65 of the Rules of Court, as
amended, for the nullication of the August 25 and 28, 2000 Orders of the
respondent judge in Criminal Case No. 00-0749.

The Antecedents

Cecilia Maruyama executed a fteen-page adavit-complaint 2 and led the same

with the Oce of the City Prosecutor of Pasay City, on December 29, 1999,
charging Lorna Tanghal and petitioner Teresita Tanghal Okabe, a.k.a. Shiela Okabe,
w ith estafa. In her adavit, Maruyama alleged, inter alia, that on December 11,
1998, she entrusted 11,410,000 with the peso equivalent of P3,993,500 to the
petitioner, who was engaged in the business of door-to-door delivery from Japan
to the Philippines. It was alleged that the petitioner failed to deliver the money as
agreed upon, and, at rst, denied receiving the said amount but later returned only
US$1,000 through Lorna Tanghal.

During the preliminary investigation, the complainant, respondent Maruyama,

submitted the adavit of her witnesses, namely, Hermogena Santiago, Wilma
Setsu and Marilette G. Izumiya and other documentary evidence. In her adavit,
Setsu alleged that the money which was entrusted to the petitioner for delivery to
the Philippines belonged to her and her sister Annie Hashimoto, and their mother
Hermogena Sanchez-Quicho, who joined respondent Maruyama in her complaint
against petitioner Okabe and Tanghal. Respondent Maruyama, likewise, submitted a
r e pl y 3 to the petitioners counter-adavit. After the requisite preliminary
investigation, 2nd Assistant City Prosecutor Joselito J. Vibandor came out with a
resolution dated March 30, 2000, nding probable cause for estafa against the
petitioner. 4 Attached to the resolution, which was submitted to the city prosecutor
for approval, was the Information 5 against the petitioner and Maruyama's adavit-
complaint. The city prosecutor approved the resolution and the Information dated
March 30, 2000 attached thereto. 6
On May 15, 2000, an Information against the petitioner was led in the Regional
Trial Court of Pasay City, docketed as Criminal Case No. 00-0749. The case was
raed to Branch 119 of the court presided by Judge Pedro de Leon Gutierrez. 7 The
accusatory portion of the Information reads:

That on or about December 12, 1998 in Pasay City, Metro Manila, Philippines,
and within the jurisdiction of this Honorable Court, the above-named
accused defrauded Cecilia Maruyama and Conchita Quicho, complainant
herein, in the following manner, to wit: said accused received in trust from
Cecilia Maruyama the amount of Japanese Yen 1141 (sic) with peso
equivalent to P3,839,465.00 under obligation to deliver the money to
Conchita Quicho at the NAIA International Airport, Pasay City, immediately
upon accused arrival from Japan, but herein accused once in possession of
the same, did, then and there willfully, unlawfully and feloniously
misappropriate and convert to her own personal benet the said amount,
and despite demands accused failed and refused to do so, to the damage
and prejudice of the complainants in the aforesaid amount.

Contrary to law. 8

Appended to the Information was the adavit-complaint of respondent Maruyama

and the resolution of Investigating Prosecutor Vibandor. On May 19, 2000, the trial
court issued a warrant for the arrest of the petitioner with a recommended bond of
P40,000. On June 15, 2000, the petitioner posted a personal bail bond in the said
amount, duly approved by Judge Demetrio B. Macapagal, the Presiding Judge of
Branch 79 of the RTC of Quezon City, who forthwith recalled the said warrant. The
approved personal bail bond of the petitioner was transmitted to the RTC of Pasig
City on June 21, 2000. Upon her request, the petitioner was furnished with a
certied copy of the Information, the resolution and the criminal complaint which
formed part of the records of the said case. The petitioner left the Philippines for
Japan on June 17, 2000 without the trial courts permission, and returned to the
Philippines on June 28, 2000. She left the Philippines anew on July 1, 2000, and
returned on July 12, 2000.

On July 14, 2000, the trial court issued an Order setting the petitioners
arraignment and pre-trial at 2:00 p.m. of July 16, 2000. On the same day, the
private prosecutor led an urgent ex parte motion for the issuance of the hold
departure order, alleging as follows:

3. It has come to the knowledge of private complainant that there is an

impending marriage within the Philippines of either the son or daughter of
the above-named accused and that the above-named accused who has
businesses in Japan, and is presently in Japan will soon exit Japan and
enter the Philippines to precisely attend said wedding;

4. Given [a] the bail was xed at merely P40,000.00 and [b] the
considerable nancial capability of the accused, it is a foregone conclusion
that the above-named accused will, upon arrest, readily and immediately
post bond, and leave for Japan thereby frustrating and rendering inutile
the administration of criminal justice in our country. The speed with which
 accused Teresita Sheila Tanghal Okabe can post bond and leave for Japan
eectively evading arraignment and plea thus necessitates the immediate
issuance of a Hold Departure Order even before her arrival here in the
Philippines; 9

The trial court issued an order on the same day, granting the motion of the private
prosecutor for the issuance of a hold departure order and ordering the Commission
on Immigration and Deportation (CID) to hold and prevent any attempt on the part
of the petitioner to depart from the Philippines. 10 For her part, the petitioner led
on July 17, 2000 a veried motion for judicial determination of probable cause and
to defer proceedings/arraignment, alleging that the only documents appended to
the Information submitted by the investigating prosecutor were respondent
Maruyama's adavit-complaint for estafa and the resolution of the investigating
prosecutor; the adavits of the witnesses of the complainant, the respondents
counter-adavit and the other evidence adduced by the parties were not attached
thereto. The petitioner further alleged that the documents submitted by the
investigating prosecutor were not enough on which the trial court could base a
nding of probable cause for est af a against her. She further averred that
conformably to the rulings of this Court in Lim v. Felix 11 and Roberts, Jr. v. Court of
Appeals, 12 it behooved the investigating prosecutor to submit the following to the
trial court to enable it to determine the presence or absence of probable cause: (a)
copies of the adavits of the witnesses of the complainant; (b) the counter-adavit
of Okabe and those of her witnesses; (c) the transcripts of stenographic notes taken
during the preliminary investigation; and, (d) other documents presented during the
said investigation.

On July 19, 2000, the petitioner led a Very Urgent Motion To Lift/Recall Hold
Departure Order dated July 17, 2000 and/or allow her to regularly travel to Japan
alleging, thus:

3. Accused is (sic) widow and the legitimate mother of three (3) children,
two (2) of whom are still minors, namely:

3.1. Okabe, Jeffrey - 18 years old born on 13 August 1981.

3.2. Okabe, Masatoshi - 14 years old and born on 16 October

1985, 3rd year High School student at Hoshikuki, Chiba City,
Matsugaoka, High School, residing at Chiba City, Chuo-Ku, Yahagi-cho,
205, Telephone No. 043-224-5804.

3.3. Okabe, Tomoki - 13 years old and born on 13 March 1986,

2nd year High School student at Hoshikuki, Chiba City, Matsugaoka,
High School, residing at Chiba City, Chuo-Ku, Yahagi-cho, 205,
Telephone No. 043-224-5804.

3.4. The accused has to attend the Parents Teachers Association

(PTA) at the Hoshikuki High School where her two (2) minor sons
aforesaid are presently enrolled and studying because Okabe,
Masatoshi's graduation will take place on 26 July 2000.
 3.5. The two (2) minor children of the accused absolutely depend
their support (basic necessities) for foods, clothings, medicines,
rentals, schooling and all other expenses for their survival to their
legitimate mother who is the accused herein.

3.6. The issuance of the hold departure order (HDO) will impair the
inherent custodial rights of the accused as the legitimate mother over
these two (2) minor children which is repugnant to law. ADaEIH

3.7. The issuance of the hold departure order (HDO) will unduly
restrict the accused to her custodial rights and visitation over her
aforesaid minor children who are permanently living in Japan.

3.8. The issuance of the hold departure order (HDO) will unduly
deprived (sic) these minor children to their right to obtain education
and survival.

4. Accused's only source of income and livelihood is door-to-door

delivery from Japan to the Philippines and vice versa which has been taking
place for a very long period of time and in the process she has been
constantly departing from the Philippines on a weekly basis and arriving in
Japan on the same frequency, as evidenced by xerox copies of the pages of
her Philippine Passports which are hereto attached as Annexes A, A-1,
A-2 up to A-30, respectively. To deprive her of this only source of her
livelihood to which the aforesaid two (2) minor children are deriving their
very survival in a foreign land will (sic) tantamount to oppression rather than
prosecution and depriving the said minor sons of their right to live even
before trial on the merits of this case that will (sic) tantamount to the
destruction of the future of these minor children. 13

The private prosecutor opposed the petitioners motions during the hearing on July
21, 2000 which was also the date set for her arraignment. The hearing of the
motions as well as the arraignment was reset to 2:00 p.m. of July 26, 2000. On the
said date, the petitioner led a manifestation objecting to her arraignment prior to
the resolution of her pending motions. She alleged that her arraignment for the
crime charged should not be made a condition for the granting of her motion to
recall the hold departure order issued against her. The arraignment of the petitioner
was again reset to 2:00 p.m. of August 28, 2000, pending the resolution of her two
motions. On August 25, 2000, the petitioner led a motion for the postponement of
her arraignment alleging that, in case the trial court ruled adversely thereon, she
would refuse to enter a plea and seek relief from the appellate court. The court
denied the petitioners motions on the following grounds:

(a) Based on its personal examination and consideration of the Information, the
adavit-complaint of respondent Maruyama and the resolution of the investigating
prosecutor duly approved by the city prosecutor, the court found probable cause for
the petitioners arrest. Since the petitioners motion for a determination of probable
cause was made after the court had already found probable cause and issued a
warrant for the petitioners arrest, and after the latter led a personal bail bond for
her provisional liberty, such motion was a mere surplusage;

(b) When the petitioner posted a personal bail bond for her provisional liberty,
she thereby waived her right to question the courts nding of the existence of
probable cause for her arrest and submitted herself to the jurisdiction of the court,
more so when she led the motion for the lifting of the hold departure order the
court issued, and the motion to defer the proceedings and her arraignment; and

(c) The hold departure order issued by the trial court was in accord with
Supreme Court Circular No. 39-97 dated June 19, 1997, as well as the ruling of this
Court in Manotoc, Jr. v. Court of Appeals. 14

When the case was called for the petitioners arraignment at 2:00 p.m., on August
28, 2000, she refused to plead. 15 Her counsel advised her, in open court, not to
enter a plea and, with leave of court, left the courtroom. The court then entered a
not guilty plea for the petitioner. 16 It also issued an order, on the said date, setting
the pre-trial and initial presentation of the evidence of the prosecution at 8:30 a.m.
of September 20, 2000. 17

The petitioner then led with the Court of Appeals a petition for certiorari under
Rule 65 of the Rules of Court with a plea for a writ of preliminary injunction. The
case was docketed as CA-G.R. SP No. 60732. The petitioner ascribed the following
errors to the trial court:

RESPONDENT COURT GRAVELY ERRED WHEN IT ISSUED WARRANT OF

ARREST DESPITE OF (SIC) LACK OF PROBABLE CAUSE

II

RESPONDENT COURT HAS VIOLATED THE RIGHT OF THE PETITIONER TO

DUE PROCESS

III

RESPONDENT COURT HAS ALREADY PRE-JUDGED THE CONVICTION OF THE

PETITIONER FOR ESTAFA

IV

RESPONDENT COURT HAS EXHIBITED ITS APPARENT PARTIALITY TOWARDS

THE PROSECUTION AND AGAINST THE PETITIONER

RESPONDENT COURT GRAVELY ERRED WHEN IT DENIES (SIC) THE MOTION

FOR JUDICIAL DETERMINATION OF PROBABLE CAUSE PURSUANT TO THE
DOCTRINE OF ROBERTS, JR.
 VI

RESPONDENT COURT GRAVELY ERRED WHEN IT DENIES (SIC) THE

LIFTING/RECALL OF THE HDO AND/OR ALLOWING THE PETITIONER TO
TRAVEL TO JAPAN REGULARLY FOR HUMANITARIAN CONSIDERATION

VII

RESPONDENT COURT COMMITTED GRAVE ABUSE OF DISCRETION

AMOUNTING TO LACK OF JURISDICTION WHEN IT ISSUED THE
QUESTIONED ORDERS. . . . 18

On January 31, 2001, the CA rendered a Decision 19 partially granting the petition in
that the assailed order of the trial court denying the petitioners motion to lift/recall
the hold departure order was set aside. However, the petitioners motion for
reconsideration of the trial courts decision was denied and her petition for the
nullication of the August 25, 2000 Order of the respondent judge was dismissed.
The CA ruled that by posting bail and praying for reliefs from the trial court, the
petitioner waived her right to assail the respondent judges nding of the existence
of probable cause. The appellate court cited the ruling of this Court in Cojuangco, Jr.
v. Sandiganbayan . 20 Thus, the appellate court armed the assailed order of the
RTC, based on the respondent judges personal examination of respondent
Maruyama's adavit-complaint, the resolution of the investigating prosecutor and
the Information approved by the city prosecutor, a nding of probable cause was in
order. However, the appellate court allowed the petitioner to travel to Japan under
the following conditions:

(1) That petitioner post a bond double the amount of her alleged
monetary liability under the Information led against her, as
recommended by the Office of the Solicitor General;

(2) That petitioner inform respondent Court of each and all of her travel
itinerary prior to leaving the country;

(3) That petitioner make periodic reports with respondent Court;

(4) That petitioner furnish respondent Court with all the addresses of her
possible place of residence, both here and in Japan; and

(5) Such other reasonable conditions which respondent Court may deem
appropriate under the circumstances. 21

The appellate court did not resolve the issue of whether the trial court had
prejudged the case and was partial to the prosecution. The decretal portion of the
decision of the CA reads:

WHEREFORE, premises considered, the instant special civil action for

certiorari is hereby PARTIALLY GRANTED insofar as the denial of petitioners
Motion to Lift/Recall Hold Departure Order dated 14 July, 2000 and/or Allow
the accused to Regularly Travel to Japan is concerned. In all other respect,
the same is hereby DENIED.
 SO ORDERED. 22

On March 6, 2001, the petitioner led a motion for a partial reconsideration of the
decision of the CA contending that the appellate court erred in applying the ruling of
this court in Cojuangco, Jr. v. Court of Appeals 23 instead of Section 26, Rule 114 of
the Revised Rules on Criminal Procedure. The petitioner posited that the said rule,
which took eect on December 1, 2000, before the court rendered its decision, had
superseded the ruling of this Court in the Cojuangco case. However, the appellate
court held that Section 26, Rule 114 of the Revised Rules on Criminal Procedure
cannot be applied retroactively, because the petitioner had posted bail on June 15,
2000 before the Revised Rules on Criminal Procedure took effect.

Hence, the instant petition for review on certiorari for the reversal of the decision
and resolution of the CA and praying that after due proceedings, judgment be
rendered in her favor, thus:

WHEREFORE, it is respectfully prayed of this Honorable Supreme Court that

after due proceedings judgment be rendered in favor of the petitioner and
against the respondents as follows:

(a) GIVING DUE COURSE to the instant petition;

(b) ORDERING the REVERSAL and PARTIALLY SETTING ASIDE of

the Decision promulgated on 31 January 2001 (Annex A hereof) of
the Honorable Court of Appeals in CA-G.R. SP No. 60732 as well as its
Resolution promulgated on 27 September 2001 (Annex B hereof);

(c) ORDERING the DISMISSAL of Crim. Case No. 00-0749 for lack
of probable cause;

(d) DECLARING the entire proceedings in Crim. Case No. 00-0749

as null and void;

(e) ORDERING the private respondents to pay the petitioners the

following amount:

(i) at least P1,000,000.00 as moral damages;

(ii) at least P1,000,000.00 as exemplary damages;

(iii) at least P500,000.00 as attorneys fees and for other

expenses of litigation.

(f) ORDERING the private respondent to pay the costs of this suit.

(g) Petitioner further prays for such other reliefs just and equitable
under the premises. 24

The petitioner asserts that the CA committed the following reversible errors:

I
THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR WHEN
IT COMPLETELY DISREGARDED THE APPLICATION OF SECTION 26, RULE
114 OF THE REVISED RULES ON CRIMINAL PROCEDURE WHICH TOOK
EFFECT ON 01 DECEMBER 2000 WHICH IS FAVORABLE TO THE
PETITIONER/ACCUSED.

II

THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR IN

RULING THAT WHATEVER INFIRMITY THERE WAS IN THE ISSUANCE OF
THE WARRANT OF ARREST, THE SAME WAS CURED WHEN PETITIONER
VOLUNTARILY SUBMITTED TO THE RESPONDENT COURTS JURISDICTION
WHEN SHE POSTED BAIL AND FILED MOTIONS SEEKING AFFIRMATIVE
RELIEF SUCH AS MOTION TO LIFT/RECALL HOLD DEPARTURE ORDER AND
TO ALLOW PETITIONER TO TRAVEL REGULARLY TO JAPAN (Last paragraph,
Page 9 DECISION dated 31 January 2001).

III

THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR WHEN

IT RELIED UPON THE RULING IN THE CASE OF COJUANGCO, JR. VS.
SANDIGANBAYAN, [300 SCRA 367 (1998)] WHEN IN FACT SAID RULING IS
NOW OBSOLETE AND NO LONGER APPLICABLE.

IV

THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR IN

RULING THAT RESPONDENT COURT COMPLIED WITH THE
CONSTITUTIONAL REQUIREMENTS ON THE ISSUANCE OF WARRANT OF
ARREST WITHOUT PROBABLE CAUSE, WHEN THE RESPONDENT COURT
MERELY RELIED ON [THE] (i) COMPLAINT-AFFIDAVIT OF CECILIA
MARUYAMA; (ii) RESOLUTION OF THE INVESTIGATING PROSECUTOR; AND
(iii) CRIMINAL INFORMATION.

THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR WHEN

IT FAILED TO RULE ON THE PARTIALITY OF THE RESPONDENT JUDGE IN
HANDLING THE CASE BELOW WHICH IS VIOLATIVE OF THE PETITIONERS
RIGHT TO DUE PROCESS.

VI

THE FILING OF CRIM. CASE NO. 4297 (MTC, ANGAT, BULACAN) FOR ESTAFA
ENTITLED PEOPLE VS. SHEILA OKABE; CIVIL CASE NO. 331-M-98 (RTC,
MALOLOS, BULACAN) FOR SUM OF MONEY WITH PRELIMINARY
ATTACHMENT ENTITLED CONCHITA SANCHEZ-QUICHO VS. SHEILA
TERESITA TANGHAL OKABE; AND CRIM. CASE NO. 00-07-19 (RTC, PASAY
CITY, BRANCH 119) ENTITLED PEOPLE VS. TERESITA TANGHAL OKABE
CONSTITUTE A VIOLATION OF THE RULE ON NON-FORUM SHOPPING. 25
By way of comment, the Oce of the Solicitor General refuted the petitioners
assigned errors, contending as follows:

The Court of Appeals did not commit a reversible error in not applying
Section 26, Rule 114 of the Revised Rules on Criminal Procedure.

II

The Court of Appeals did not commit a reversible error in ruling that the
inrmity, if any, in the issuance by the respondent Judge of the warrant of
arrest against petitioner was cured when petitioner voluntarily submitted to
the trial courts jurisdiction when she posted bail and led motions seeking
for armative reliefs from the trial court, such as the motion to lift/recall
Hold Departure Order (HDO) and to allow petitioner to travel regularly to
Japan.

III

The Court of Appeals did not commit a reversible error in applying the ruling
in the Cojuangco case.

IV

The Court of Appeals did not commit a reversible error in nding that
respondent Judge complied with the constitutional requirements on the
issuance of a warrant of arrest.

The Court of Appeals did not commit a reversible error when it did not rule
on the partiality of the respondent Judge in handling Criminal Case No. 00-
0749.

VI

The Honorable Court of Appeals did not commit a reversible error when it
did not rule on petitioners claim of forum shopping. 26

The Court shall resolve the assigned errors simultaneously as they are interrelated.

The petitioner asserts that the respondent judge could not have determined the
existence of probable cause for her arrest solely on the resolution of the
investigating prosecutor and the undated adavit-complaint of respondent
Maruyama. She posits that the respondent judge should have ordered the
investigating prosecutor to submit the adavits of the witnesses of respondent
Maruyama and the latter's documentary evidence, as well as the counter-adavit
of the petitioner and the transcripts of the stenographic notes, if any, taken during
the preliminary investigation. The petitioner adds that the respondent judge should
have personally reviewed the said documents, conformably to the rulings of this
Court in Lim v. Felix, 27 Roberts, Jr. v. Court of Appeals 28 and Ho v. People , 29 before
determining the presence or absence of probable cause. She posits that the
respondent judge acted with grave abuse of discretion amounting to excess or lack
of jurisdiction in denying her motion for a determination of probable cause, and the
alternative motion for a dismissal of the case against her for lack of probable cause.

The petitioner further asserts that the appellate court erred in arming the ruling
of the respondent judge that, by posting a personal bail bond for her provisional
liability and by ling several motions for relief, she thereby voluntarily submitted
herself to the jurisdiction of the trial court and waived her right to assail the
inrmities that infected the trial court's issuance of the warrant for her arrest. She
avers that the appellate courts reliance on the ruling of this Court in Cojuangco, Jr.
v. Sandiganbayan 30 is misplaced, and submits that the appellate court should have
applied Section 26, Rule 114 of the Revised Rules of Court retroactively, as it
rendered the ruling of this Court in the Cojuangco, Jr. case obsolete.

The Oce of the Solicitor General, on the other hand, asserts that the respondent
judge did not commit any grave abuse of discretion when he found probable cause
against the petitioner for estafa, and thereafter issued a warrant for her arrest. It
argues that the respondent judge personally determined the existence of probable
cause independently of the certication of the investigating prosecutor, and only
after examining the Information, the resolution of the investigating prosecutor, as
well as the adavit-complaint of the private complainant. It asserts that such
documents are sucient on which to anchor a nding of probable cause. It insists
that the appellate court correctly applied the ruling of this Court in the Cojuangco,
Jr. v. Court of Appeals case, and that the respondent judge complied with both the
requirements of the constitution and those set forth in the Rules of Court before
issuing the said warrant. 31

We agree with the contention of the petitioner that the appellate court erred in not
applying Section 26, Rule 114 of the Revised Rules on Criminal Procedure, viz: TcSHaD

SEC. 26. Bail not a bar to objections on illegal arrest, lack of or irregular
preliminary investigation. An application for or admission to bail shall not
bar the accused from challenging the validity of his arrest or the legality of
the warrant issued therefor, or from assailing the regularity or questioning
the absence of a preliminary investigation of the charge against him,
provided that he raises them before entering his plea. The court shall resolve
the matter as early as practicable but not later than the start of the trial of
the case.

It bears stressing that Section 26, Rule 114 of the Revised Rules on Criminal
Procedure is a new one, intended to modify previous rulings of this Court that an
application for bail or the admission to bail by the accused shall be considered as a
waiver of his right to assail the warrant issued for his arrest on the legalities or
irregularities thereon. 32 The new rule has reverted to the ruling of this Court in
People v. Red . 33 The new rule is curative in nature because precisely, it was
designed to supply defects and curb evils in procedural rules. Hence, the rules
governing curative statutes are applicable. Curative statutes are by their essence
retroactive in application. 34 Besides, procedural rules as a general rule operate
retroactively, even without express provisions to that eect, to cases pending at the
time of their eectivity, in other words to actions yet undetermined at the time of
their eectivity. 35 Before the appellate court rendered its decision on January 31,
2001, the Revised Rules on Criminal Procedure was already in eect. It behooved
the appellate court to have applied the same in resolving the petitioners petition
for certiorari and her motion for partial reconsideration.

Moreover, considering the conduct of the petitioner after posting her personal bail
bond, it cannot be argued that she waived her right to question the nding of
probable cause and to assail the warrant of arrest issued against her by the
respondent judge. There must be clear and convincing proof that the petitioner had
an actual intention to relinquish her right to question the existence of probable
cause. 36 When the only proof of intention rests on what a party does, his act should
be so manifestly consistent with, and indicative of, an intent to voluntarily and
unequivocally relinquish the particular right that no other explanation of his
conduct is possible. 37 In this case, the records show that a warrant was issued by
the respondent judge in Pasay City for the arrest of the petitioner, a resident of
Guiguinto, Bulacan. When the petitioner learned of the issuance of the said
warrant, she posted a personal bail bond to avert her arrest and secure her
provisional liberty. Judge Demetrio B. Macapagal of the RTC of Quezon City
approved the bond and issued an order recalling the warrant of arrest against the
petitioner. Thus, the posting of a personal bail bond was a matter of imperative
necessity to avert her incarceration; it should not be deemed as a waiver of her
right to assail her arrest. So this Court ruled in People v. Red: 38

. . . The present defendants were arrested towards the end of January,

1929, on the Island and Province of Marinduque by order of the judge of the
Court of First Instance of Lucena, Tayabas, at a time when there were no
court sessions being held in Marinduque. In view of these circumstances
and the number of the accused, it may properly be held that the furnishing
of the bond was prompted by the sheer necessity of not remaining in
detention, and in no way implied their waiver of any right, such as the
summary examination of the case before their detention. That they had no
intention of waiving this right is clear from their motion of January 23, 1929,
the same day on which they furnished a bond, and the fact that they
renewed this petition on February 23, 1929, praying for the stay of their
arrest for lack of the summary examination; the rst motion being denied by
the court on January 24, 1929 (G.R. No. 33708, page 8), and the second
remaining undecided, but with an order to have it presented in Boac,
Marinduque.

Therefore, the defendants herein cannot be said to have waived the right
granted to them by section 13, General Order No. 58, as amended by Act
No. 3042. 39

Moreover, the next day, or on June 16, 2000, the petitioner, through counsel,
received certied true copies of the Information, the resolution of the investigating
prosecutor, the adavit-complaint of the private complainant, respondent
Maruyama, and a certication from the branch clerk of court that only the
Information, resolution and adavit-complaint formed part of the entire records of
the case. The next day, June 17, 2000, the petitioner, through counsel, led a
veried motion for judicial determination of probable cause and to defer the
proceedings and her arraignment. All the foregoing are inconsistent with a waiver of
her right to assail the validity of her arrest and to question the respondent judges
determination of the existence of probable cause for her arrest.

Neither can the petitioners ling of a motion for the lifting of the hold departure
order and for leave to go to Japan be considered a waiver of her right to assail the
validity of the arrest warrant issued by the respondent judge. It bears stressing that
when the petitioner led the motion to lift the hold departure order issued against
her by the respondent judge, her motion for a determination of probable cause was
still unresolved. She sought a lifting of the hold departure order on July 14, 2000
and led a motion for leave to go to Japan, to give the respondent judge an
opportunity to reconsider the said order, preparatory to assailing the same in the
appellate court in case her motion was denied.

The issue that now comes to fore is whether or not the respondent judge committed
a grave abuse of his discretion amounting to excess or lack of jurisdiction in issuing
his August 25, 2000 Order. By grave abuse of discretion is meant such patent and
gross abuse of discretion as to amount to an evasion of 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 reasons of
passion or personal hostility. 40 Hence, when the court has jurisdiction over the case,
its questioned acts, even if its ndings are not correct, would at most constitute
errors of law and not abuse of discretion correctible by the extraordinary remedy of
certiorari. 41

We agree with the petitioner that before the RTC judge issues a warrant of arrest
under Section 6, Rule 112 of the Rules of Court 42 in relation to Section 2, Article III
of the 1987 Constitution, the judge must make a personal determination of the
existence or non-existence of probable cause for the arrest of the accused. The duty
to make such determination is personal and exclusive to the issuing judge. He
cannot abdicate his duty and rely on the certication of the investigating prosecutor
that he had conducted a preliminary investigation in accordance with law and the
Rules of Court, as amended, and found probable cause for the ling of the
Information.

Under Section 1, Rule 112 of the Rules on Criminal Procedure, the investigating
prosecutor, in conducting a preliminary investigation of a case cognizable by the
RTC, is tasked to determine whether there is sucient ground to engender a well-
founded belief that a crime has been committed and the respondent therein is
probably guilty thereof and should be held for trial. A preliminary investigation is for
the purpose of securing the innocent against hasty, malicious and oppressive
prosecution, and to protect him from an open and public accusation of a crime, from
the trouble, expense and anxiety of a public trial. 43

If the investigating prosecutor nds probable cause for the ling of the Information
against the respondent, he executes a certication at the bottom of the Information
that from the evidence presented, there is a reasonable ground to believe that the
offense charged has been committed and that the accused is probably guilty thereof.
Such certication of the investigating prosecutor is, by itself, ineective. It is not
binding on the trial court. Nor may the RTC rely on the said certication as basis for
a finding of the existence of probable cause for the arrest of the accused. 44

In contrast, the task of the presiding judge when the Information is led with the
court is rst and foremost to determine the existence or non-existence of probable
cause for the arrest of the accused. Probable cause is meant such set of facts and
circumstances which would lead a reasonably discreet and prudent man to believe
that the oense charged in the Information or any oense included therein has
been committed by the person sought to be arrested. 45 In determining probable
cause, the average man weighs facts and circumstances without resorting to the
calibrations of the rules of evidence of which he has no technical knowledge. He
relies on common sense. 46 A nding of probable cause needs only to rest on
evidence showing that more likely than not a crime has been committed and that it
was committed by the accused. Probable cause demands more than bare suspicion,
it requires less than evidence which would justify conviction. 47

The purpose of the mandate of the judge to rst determine probable cause for the
arrest of the accused is to insulate from the very start those falsely charged of
crimes from the tribulations, expenses and anxiety of a public trial:

It must be stressed, however, that in these exceptional cases, the Court

took the extraordinary step of annulling ndings of probable cause either to
prevent the misuse of the strong arm of the law or to protect the orderly
administration of justice. The constitutional duty of this Court in criminal
litigations is not only to acquit the innocent after trial but to insulate, from
the start, the innocent from unfounded charges . For the Court is aware of
the strains of a criminal accusation and the stresses of litigation which
should not be suered by the clearly innocent. The ling of an unfounded
criminal information in court exposes the innocent to severe distress
especially when the crime is not bailable. Even an acquittal of the innocent
will not fully bleach the dark and deep stains left by a baseless accusation for
reputation once tarnished remains tarnished for a long length of time. The
expense to establish innocence may also be prohibitive and can be more
punishing especially to the poor and the powerless. Innocence ought to be
enough and the business of this Court is to shield the innocent from
senseless suits right from the start. 48

In determining the existence or non-existence of probable cause for the arrest of the
accused, the RTC judge may rely on the ndings and conclusions in the resolution of
the investigating prosecutor nding probable cause for the ling of the Information.
After all, as the Court held in Webb v. De Leon , 49 the judge just personally reviews
the initial determination of the investigating prosecutor nding a probable cause to
see if it is supported by substantial evidence. 50 However, in determining the
existence or non-existence of probable cause for the arrest of the accused, the judge
should not rely solely on the said report. 51 The judge should consider not only the
report of the investigating prosecutor but also the adavit/adavits and the
documentary evidence of the parties, the counter-adavit of the accused and his
witnesses, as well as the transcript of stenographic notes taken during the
preliminary investigation, if any, submitted to the court by the investigating
prosecutor upon the ling of the Information. 52 Indeed, in Ho v. People , 53 this
Court held that:

Lastly, it is not required that the complete or entire records of the case
during the preliminary investigation be submitted to and examined by the
judge. We do not intend to unduly burden trial courts by obliging them to
examine the complete records of every case all the time simply for the
purpose of ordering the arrest of an accused. What is required, rather, is
that the judge must have sucient supporting documents (such as the
complaint, adavits, counter-adavits, sworn statements of witnesses or
transcripts of stenographic notes, if any) upon which to make his
independent judgment or, at the very least, upon which to verify the ndings
of the prosecutor as to the existence of probable cause. The point is: he
cannot rely solely and entirely on the prosecutors recommendation, as
Respondent Court did in this case. Although the prosecutor enjoys the legal
presumption of regularity in the performance of his ocial duties and
functions, which in turn gives his report the presumption of accuracy, the
Constitution, we repeat, commands the judge to personally determine
probable cause in the issuance of warrants of arrest. This Court has
consistently held that a judge fails in his bounden duty if he relies merely on
the certification or the report of the investigating officer. 54

The rulings of this Court are now embedded in Section 8(a), Rule 112 of the Revised
Rules on Criminal Procedure which provides that an Information or complaint led
in court shall be supported by the adavits and counter-adavits of the parties and
their witnesses, together with the other supporting evidence of the resolution:

SEC. 8. Records . (a) Records supporting the information or

complaint. An information or complaint led in court shall be supported by
the adavits and counter-adavits of the parties and their witnesses,
together with the other supporting evidence and the resolution on the case.

If the judge is able to determine the existence or non-existence of probable cause on

the basis of the records submitted by the investigating prosecutor, there would no
longer be a need to order the elevation of the rest of the records of the case.
However, if the judge nds the records and/or evidence submitted by the
investigating prosecutor to be insucient, he may order the dismissal of the case, or
direct the investigating prosecutor either to submit more evidence or to submit the
entire records of the preliminary investigation, to enable him to discharge his duty.
55 The judge may even call the complainant and his witness to themselves answer
the courts probing questions to determine the existence of probable cause. 56 The
rulings of this Court in Soliven v. Makasiar 57 and Lim v. Felix 58 are now embodied
in Section 6, Rule 112 of the Revised Rules on Criminal Procedure, with
modifications, viz:

SEC. 6. When warrant of arrest may issue. (a) By the Regional Trial
Court. Within ten (10) days from the filing of the complaint or information,
the judge shall personally evaluate the resolution of the prosecutor and its
supporting evidence. He may immediately dismiss the case if the evidence
on record clearly fails to establish probable cause. If he nds probable
cause, he shall issue a warrant of arrest, or a commitment order if the
accused has already been arrested pursuant to a warrant issued by the
judge who conducted the preliminary investigation or when the complaint or
information was led pursuant to section 7 of this Rule. In case of doubt on
the existence of probable cause, the judge may order the prosecutor to
present additional evidence within ve (5) days from notice and the issue
must be resolved by the court within thirty (30) days from the ling of the
complaint of information.

In this case, the investigating prosecutor submitted to the respondent judge only his
resolution after his preliminary investigation of the case and the adavit-complaint
of the private complainant, and failed to include the adavits of the witnesses of
the private complainant, and the latter's reply adavit, the counter-adavit of the
petitioner, as well as the evidence adduced by the private complainant as required
by case law, and now by Section 8(a), Rule 112 of the Revised Rules on Criminal
Procedure. The aforecited adavits, more specically the fax message of Lorna
Tanghal and the document signed by her covering the amount of US$1,000, are of
vital importance, as they would enable the respondent judge to properly determine
the existence or non-existence of probable cause.

First. When respondent Maruyama handed the money to the petitioner, she did not
require the latter to sign a document acknowledging receipt of the amount. The
petitioner avers that it is incredible that Maruyama would entrust P3,993,500 in
Japanese Yen to her without even requiring her to sign a receipt therefor, especially
since respondent Maruyama was not even the owner of the money;

Second. The adavit of Hermogena Santiago, a witness of the respondent, is

unreliable, because it is based on information relayed to her by Lorna Tanghal that
she (Tanghal) saw the petitioner carrying a Louis Vuitton bag while on board a
Mitsubishi L300 van with the petitioner. It appears that Tanghal failed to submit
any counter-affidavit to the investigating prosecutor;

Third. The adavit of Marilette G. Izumiya, another witness of the respondent, is

also unreliable, as it was based on information relayed to her by Thelma Barbiran,
who used to work for the petitioner as a housemaid, that she (Barbiran) had in her
possession a fax message from Lorna Tanghal, implicating the petitioner in the
crime charged. Barbiran did not execute any affidavit;

Fourth. There is no indication in the resolution of the investigating prosecutor that

the petitioner received the fax message of Lorna Tanghal;

Fifth. The private complainant claims that the petitioner tried to reimburse the
P3,993,500 by remitting US$1,000 to her. However, the latter admitted in her
adavit-complaint that the document evidencing the remittance was signed by
Lorna Tanghal, not by the petitioner. The petitioner claimed that Lorna Tanghal had
to remit US$1,000 to respondent Maruyama because the latter made it appear to
Tanghal that the police authorities were about to arrest the petitioner, and Tanghal
was impelled to give the amount to respondent Maruyama to avert her arrest and
incarceration;

Sixth. In her counter-adavit, the petitioner alleged that respondent Maruyama

had no case against her because the crime charged in the latter's affidavit-complaint
was the same as that led against her in the Metropolitan Trial Court of Bulacan,
which was withdrawn by the complainant herself;

Seventh. The investigating prosecutor stated in his resolution that the private
complainant established the element of deceit. However, the crime charged against
the petitioner as alleged in the Information is estafa with abuse of confidence.

In sum, then, we nd and so declare that the respondent judge committed a grave
abuse of his discretion amounting to excess or lack of jurisdiction in nding probable
cause for the petitioners arrest in the absence of copies of the adavits of the
witnesses of the private complainant and her reply adavit, the counter-adavit of
the petitioner, and the evidence adduced during the preliminary investigation
before the investigating prosecutor.

In view of the foregoing disquisitions, there is no more need to resolve the other
issues raised by the petitioner.

IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The assailed decision of
the Court of Appeals is REVERSED and SET ASIDE. The assailed Orders dated August
25 and 28, 2000 and the Warrant of Arrest issued by the respondent judge in
Criminal Case No. 00-0749 are SET ASIDE. The records are REMANDED to the
Regional Trial Court of Pasay City, Branch 119. The respondent judge is hereby
DIRECTED to determine the existence or non-existence of probable cause for the
arrest of the petitioner based on the complete records, as required under Section
8(a), Rule 112 of the Revised Rules on Criminal Procedure. acCITS

SO ORDERED.

Quisumbing, Austria-Martinez and Tinga, JJ ., concur.

Puno, J ., is on official leave.

Footnotes

1. Penned by Associate Justice Ramon A. Barcelona with Associate Justices Rodrigo

V. Cosico and Alicia S. Santos concurring.
2. Annex O, Rollo, pp. 119133.

3. Rollo, p. 136.

4. Annex P, Rollo, pp. 134138.

5. Annex Q, Id. at 139140.

6. Id. at 138139.

7. Id. at 139140.

8. Id. at 139.

9. Annex S, Id. at 142.

10. Annex T, Id. at 144.

11. 194 SCRA 292 (1991).

12. 254 SCRA 307 (1996).

13. Annex V, Id. at 163164.

14. 142 SCRA 149 (1986).

15. Rollo, p. 197.

16. Annex CC, id. at 200.

17. Annex BB, id. at 198199.

18. Annex DD, id. at 223224.

19. Penned by Associate Justice Ramon A. Barcelona with Associate Justices Rodrigo
V. Cosico and Alicia S. Santos concurring.

20. 300 SCRA 367 (1998).

21. Rollo, p. 85.

22. Id. at 86.

23. Supra.

24. Rollo, pp. 7071.

25. Id. at 4344.

26. Id. at 565566.

27. Supra.

28. Supra.
29. Supra.

30. Supra.

31. Rollo, pp. 604606.

32. Herrera, Remedial Law, 2001 ed., Vol. IV, p. 438.

33. 55 Phil. 706 (1931).

34. Narzoles v. NLRC, 341 SCRA 533 (2000).

35. Zulueta v. Asia Brewery, Inc., 354 SCRA 100 (2001).

36. People v. Compacion, 361 SCRA 540 (2001).

37. Thomson v. Court of Appeals , 298 SCRA 280 (1998).

38. See note 37.

39. Supra, p. 711.

40. Ala-Martin v. Judge Sultan, 366 SCRA 316 (2001).

41. Lalican v. Vergara, 276 SCRA 518 (1997).

42. The assailed orders and warrant of arrest were issued before the Revised Rules
on Criminal Procedure took effect.

43. People v. Poculan, 167 SCRA 176 (1988).

44. People v. Inting, 187 SCRA 788 (1990).

45. Webb v. De Leon, 247 SCRA 652 (1995).

46. People v. Aruta, 288 SCRA 626 (1998).

47. Ibid.

48. Dissenting opinion of Mr. Justice Reynato S. Puno in Roberts, Jr. v. Court of
Appeals, supra.

49. See note 37.

50. People v. Inting, supra.

51. Ho v. People, 280 SCRA 365 (1997).

52. Soliven v. Makasiar, supra.

53. See note 49.

54. Id. at 381382.

55. See note 42.

56. Lim v. Felix, supra.

57. See note 51.

58. See note 55.

 THIRD DIVISION

[G.R. No. 186471. January 25, 2010.]

PEOPLE OF THE PHILIPPINES, plainti-appellee, vs. RODANTE DE

LEON y DELA ROSA, accused-appellant.

DECISION

VELASCO, JR., J : p

The Case

This is an appeal from the April 4, 2008 Decision 1 of the Court of Appeals (CA) in
CA-G.R. CR-H.C. No. 01811 entitled People of the Philippines v. Rodante De Leon y
Dela Rosa which armed the December 20, 2005 Decision 2 in Criminal Case Nos.
Q-03-122555-56 of the Regional Trial Court (RTC), Branch 82 in Quezon City. The
RTC found accused-appellant Rodante De Leon guilty of violation of Sections 5 and
11, Article II of Republic Act No. (RA) 9165 or the Comprehensive Dangerous Drugs
Act of 2002.

The Facts

The charges against appellant stemmed from the following Informations:

Criminal Case No. Q-03-122555

(Violation of Section 5 [Sale], Article II of RA 9165)

That on or about the 9th day of November, 2003, in the Quezon City,
Philippines, the said accused, not being authorized by law, to sell, dispense,
deliver, transport or distribute of any dangerous drug, did, then and there,
wilfully and unlawfully sell, dispense, deliver, transport, distribute or act as
broker in the said transaction zero point sixteen (0.16) gram of
methamphetamine hydrochloride a dangerous drug.

Contrary to law. 3

Criminal Case No. Q-03-122556

(Violation of Section 11 [Possession], Article II of RA 9165)

That on or about the 9th day of November, 2003, in the Quezon City,
Philippines, the said accused, not being authorized by law, to possess or use
any dangerous drug, did, then and there, wilfully, unlawfully and knowingly
have in his/her possession and control zero point eighteen (0.18) gram of
methamphetamine hydrochloride, a dangerous drug. cEDIAa
 Contrary to law. 4

On February 16, 2004, appellant was arraigned and pleaded "not guilty" to the
charge against him. After the pre-trial conference, trial on the merits ensued.

During the trial, the parties agreed to stipulate on the testimonies of Engr. Leonard
Jabonillo, the Forensic Chemist, and Police Ocer 1 (PO1) Oliver Estrelles, the police
investigator of these cases. The prosecution thereafter presented PO2 Noel
Magcalayo as its witness. The defense, on the other hand, presented Rodante De
Leon, the accused himself.

The trial court summarized the stipulation of Engr. Jabonillo, as follows:

. . . that he is a Forensic Chemist of the Philippine National Police, that his

Office received the request for laboratory examination marked as Annex "A";
that together with the said request was a plastic sachet marked as Exh. "B"
which contained two (2) plastic sachets marked as Exhibits "B-1" and "B-2";
that he conducted the requested laboratory examination and, in connection
therewith he submitted a Chemistry Report marked as Exhibit "C", the
nding thereon showing the specimen positive for Methylamphetamine
Hydrochloride was marked as Exhibit "C-1" and the signature of said police
ocer was marked as Exhibit "C-2"; that he then issued a Certication
marked as Exhibits "D" and "D-1" and thereafter turned over the specimen
to the evidence custodian . . . . (Order dated September 14, 2004). 5

Also, as regards PO1 Estrelles, the following was agreed upon:

. . . that he was the investigator of these cases and in connection with the
investigation conducted by him, he received the evidence, namely: the Joint
Adavit of Apprehension executed by PO2 Noel Magcalayo and PO2 Cesar
Collado marked as Exhibit "E" and "E-1"; that likewise prepared the request
for examination marked as Exhibit "A" and submitted the specimen to the
Crime Laboratory and receive the Chemistry Report marked as Exhibit "C";
that he received the Pre-Operation Report marked as Exhibit "E" as well as
the buy bust money marked as Exhibits "F" and "F-1", that he prepared the
letter request to the City Prosecutor Oce marked as Exhibit "G"; and that
Exhibit "A" contains superimposition of the date thereof." (Order dated
September 14, 2004). 6

The Prosecution's Version of Facts

On November 9, 2003, at about 5 o'clock in the afternoon, a condential informant

arrived at the oce of the Station Anti-Illegal Drug Special Operation Task Force at
the Novaliches Police Station in Quezon City and reported the illegal activities of a
person named "Rodante De Leon."

Thereafter, Police Senior Inspector (P/SInsp.) Nilo Wong formed a team for a buy-
bust operation with PO2 Magcalayo as poseur-buyer and Senior Police Ocer 3
(SPO3) Mario Concepcion, PO2 Fernando Salonga, PO2 Cesar Collado, PO2 Edmund
Paculdar, and PO1 Emeterio Mendoza as team members. A pre-operation report was
prepared. P/SInsp. Wong then handed to PO2 Magcalayo two (2) pieces of PhP100
bills as buy-bust money and on which PO2 Magcalayo wrote his initials "NM." aAcHCT

At around 6:30 p.m. in the evening, the team proceeded to Sarmiento St., Barangay
Sta. Monica, Novaliches, Quezon City, where the condential informant introduced
PO2 Magcalayo to appellant as a buyer of shabu. PO2 Magcalayo then asked
appellant if he had shabu and the latter answered in the armative and asked him
how much he would buy. PO2 Magcalayo handed the money and, in return,
appellant handed him one (1) plastic sachet containing white crystalline substance.
He then scratched his head, which was the pre-arranged signal that the transaction
was consummated, and thereafter arrested appellant. He recovered the buy-bust
money from appellant as PO2 Collado approached them and handcued appellant.
Upon frisking appellant, PO2 Collado discovered another plastic sachet on the person
of appellant.

Afterwards, appellant was brought to the police station for investigation. PO2
Collado then placed his initials on the sachet he found on appellant. The evidence
was subsequently turned over to the police investigator, PO1 Estrelles, who
prepared a request for its laboratory examination.

PO2 Collado, PO1 Mendoza, PO2 Paculdar, and PO2 Magcalayo then brought the
transparent plastic sachets containing the white crystalline substance subject of the
buy-bust operation to the Philippine National Police (PNP) Crime Laboratory, Eastern
Police District on St. Francis Street, Mandaluyong City for examination. Engr.
Jabonillo, a Forensic Chemical Ocer, conducted a qualitative examination on the
specimens, which yielded positive results for Methylamphetamine Hydrochloride, a
dangerous drug. He issued Chemistry Report No. D-1240-2003 dated November 9,
2003, which showed the following results:

SPECIMEN SUBMITTED:

Two (2) heat-sealed transparent plastic sachets each containing white

crystalline substance having the following markings and recorded net
weights:

A (NM) = 0.16 gm

B (CC) = 0.18 gm

xxx xxx xxx

PURPOSE OF LABORATORY EXAMINATION:

To determine the presence of dangerous drugs.

xxx xxx xxx

FINDINGS:

Qualitative examination conducted on the above-stated specimens gave

POSITIVE result to the test for Methylamphetamine Hydrochloride, a
 dangerous drug. . . .

CONCLUSION:

Specimen A and B contain Methylamphetamine Hydrochloride, a dangerous

drug. . . .
IEaCDH

Version of the Defense

On the other hand, appellant testied that, prior to his arrest, he was a police ocer
of Station 7, Araneta, Cubao, Quezon City and had been connected with the PNP for
10 years. On November 9, 2003, at around 3 o'clock in the afternoon, he went to
Sarmiento St., Barangay Sta. Monica, Novaliches, Quezon City to look for a
kumpadre from whom he intended to borrow money when policemen accosted him
and poked their guns at him. The people around him ran, and as he was the only
one left on the scene, the policemen asked him to sit down. He told SPO3
Concepcion, whom he knew, that he was a police ocer but he was told to shut up
and to explain his side at the police station instead.

Upon arrival at the police station in Novaliches, Quezon City, his wallet, with his I.D.
and police badge, were taken from him. PO2 Magcalayo told him that he had a fake
police I.D. When appellant tried to explain himself, PO2 Magcalayo allegedly kicked
him saying, "Hindi na uso ang pulis, sundalo na ang nakaupo ngayon."

The following night, he was presented on inquest during which he was charged with
violation of Secs. 5 and 11 of RA 9165. He denied all the charges against him
claiming that the alleged shabu marked as Exhibits "B-1" and "B-2" came from the
arresting police ocers. He did not le a case against them, because he had no
money and because he knew that he was not guilty.

On cross-examination, appellant further testied that he was a follow-up operative

at the Station Investigation Division of Police Station 7. He admitted that he was
separated from the service because he was absent without ocial leave due to a
business problem he had to attend to. He likewise said that he did not know his
arresting ocers, whom he saw then for the rst time, and that he was not familiar
with RA 9165.

Ruling of the Trial Court

After trial, the RTC convicted appellant. The dispositive portion of its Decision reads:

WHEREFORE, premises considered, judgment is hereby rendered as

follows:

Re: Criminal Case NO. Q-03-122555, the Court nds accused RODANTE DE
LEON y DELA ROSA guilty beyond reasonable doubt of a violation of
Section 5, Article II of R.A. No. 9165 otherwise known as the Comprehensive
Dangerous Drugs Act of 2002, and hereby sentences him to suer the
penalty of life imprisonment and to pay a fine in the amount of P500,000.00;
 Re: Criminal Case NO. Q-03-122556, the Court nds accused RODANTE DE
LEON y DELA ROSA guilty beyond reasonable doubt of a violation of
Section 11, Article II of R.A. No. 9165 otherwise known as the
Comprehensive Dangerous Drugs Act of 2002, and hereby sentences him
to suer the indeterminate penalty of twelve (12) years and one (1) day as
minimum to fteen (15) years and one (1) day as maximum and to pay a
fine in the amount of P300,000.00; TAEDcS

SO ORDERED. 7

On appeal to the CA, appellant disputed the trial court's decision nding him guilty
beyond reasonable doubt of the crimes charged. He argued that the alleged buy-
bust operation conducted by the police ocers was tainted with irregularities and
that the prosecution failed to prove the chain of custody of the evidence.

Ruling of the Appellate Court

On April 4, 2008, the CA armed the judgment of the trial court. The dispositive
portion of its Decision reads:

WHEREFORE, premises considered, the appeal is DENIED for lack of merit.

The Decision dated 20 December 2005 of the Regional Trial Court of Quezon
City, Branch 82 nding accused-appellant Rodante De Leon y Dela Rosa
guilty beyond reasonable doubt in Criminal Case No. Q-03-122555 for
violation of Section 5, Article II of Republic Act No. 9165 and sentencing him
to suer the penalty of life imprisonment and to pay a ne in the amount of
P500,000.00, and in Criminal Case No. Q-03-122556 for violation of Section
11, Article II of R.A. No. 9165 otherwise known as the Comprehensive
Dangerous Drugs Act of 2002, sentencing him to suer the indeterminate
penalty of twelve (12) years and one (1) day as minimum to fteen (15)
years and one (1) day as maximum and to pay a ne in the amount of
P300,000.00, is AFFIRMED.

SO ORDERED. 8

Appellant filed a timely notice of appeal of the decision of the CA.

The Issues

Appellant assigns the following errors:

I.

The trial court gravely erred in ignoring the fact that the prosecution failed to
prove the chain of custody of the alleged conscated items from the
accused-appellant.

II.

The trial court gravely erred in nding the accused-appellant guilty of the
crimes charged despite the failure of the prosecution to prove his guilt
 beyond reasonable doubt.

Our Ruling

We sustain appellant's conviction. IcAaSD

Guilt of Appellant Was Proved Beyond Reasonable Doubt

Appellant assails his conviction by contending that the trial court failed to prove his
guilt beyond reasonable doubt. According to him, the trial court erroneously
convicted him on the basis of the evidence of the prosecution despite a question of
the legality of the buy-bust operation. Further, he asserts that the trial court relied
on the disputable presumption of regularity in the performance of the police
function, despite the police ocers violated the rule on chain of custody of the
alleged confiscated items.

The contentions are unmeritorious.

It is a fundamental rule that ndings of the trial court which are factual in nature
and which involve the credibility of witnesses are accorded with respect, when no
glaring errors, gross misapprehension of facts, and speculative, arbitrary, and
unsupported conclusions can be gathered from such ndings. 9 The reason for this is
that the trial court is in a better position to decide the credibility of witnesses having
heard their testimonies and observed their deportment and manner of testifying
during the trial. 10

After a thorough examination of the entire records of this case, this Court has failed
to identify any error committed by the trial court in its appreciation of the evidence
presented before it and in the conclusion it reached.

In the prosecution for the crime of illegal sale of prohibited drugs, the Court has
reiterated the essential elements in People v. Pendatun, to wit: (1) the accused sold
and delivered a prohibited drug to another; and (2) he knew that what he had sold
and delivered was a prohibited drug. 11 Therefore, what is material is the proof that
the transaction or sale actually took place, coupled with the presentation in court of
evidence of the corpus delicti. 12 Corpus delicti is the body or substance of the crime,
and establishes the fact that a crime has actually been committed. It has two
elements, namely: (1) proof of the occurrence of a certain event; and (2) some
person's criminal responsibility for the act. 13

In the instant case, the prosecution suciently established the elements of the
crime. Appellant sold and delivered the shabu for PhP200 to PO2 Magcalayo posing
as buyer; the said drug was seized and identied as a prohibited drug and
subsequently presented in evidence; there was actual exchange of the marked
money and contraband; and nally, appellant was fully aware that he was selling
and delivering a prohibited drug. In fact, PO2 Magcalayo testified, thus:

Q: Mr. Witness, on November 9, 2003, did you report for duty?

A: Yes, sir.
Q: What happened when you reported for duty? TaCDIc

A: Our condential informant personally appeared in our station and

reporting to us the alleged drug pushing activity of Rodante De Leon.

Q: What time was that when this condential informant arrived at your
office?

A: Around 5:00 p.m., sir.

Q: What happened when this condential informant relayed to you the

information about this Rodante De Leon?

A: Our Chief sir, formed a team for possible buy bust operation.

COURT:

Who formed?

A: P/Sr. Inspector Nilo Wong, your honor.

PROS. ANTERO:

Who composed this team?

A: Us, sir. SPO3 Mario Concepcion, PO2 Fernando Salonga, PO2 Cesar
Collado, PO2 Edmund Paculdar and PO1 Emeterio Mendoza, your
Honor.

Q: What happened when this team was formed, Mr. Witness?

A: We proceeded to Sarmiento Street, sir, for buy bust operation.

COURT:

Were you among the team?

A: Yes, your Honor.

PROS. ANTERO:

Prior to the dispatch to conduct that buy-bust operation, what

happened, if any?

A: We prepared the pre-operation report and our Chief handed to me

the two (2) pieces of P100.00 bills as buy bust money.

Q: What did you do with that two (2) P100.00 bills?

A: Before we were dispatched, I put my initial on the buy-bust money.

Q: What initial?

A: NM, sir.
Q: What [does] NM stand for? cIHCST

A: Noel Magcalayo, sir.

Q: I am showing you these two (2) P100.00 bills, kindly examine the
same whether you know those P100.00 bills?

A: These are the buy bust money that we used in the operation, sir.

xxx xxx xxx

Q: What happened after you were given these buy bust money?

A: We proceeded to Sarmiento Street, Barangay Sta. Monica, Novaliches,

Quezon City.

Q: What time was that when you proceeded there?

A: At around 6:30 in the afternoon, sir.

Q: What happened, Mr. Witness?

A: We were able to meet Rodante De Leon.

Q: How did you meet this Rodante De Leon?

A: By the help of our confidential informant, sir.

Q: Can you tell this Hon. Court how you made a contact with this
Rodante De Leon?

A: We approached him and then our condential informant introduced

me to him as a buyer of shabu.

COURT:

What?

A: I was introduced to him by the condential informant as a buyer of

shabu.

PROS. ANTERO:

What happened thereafter?

A: He made transaction with us, sir.

Q: What happened during the transaction?

A: I asked him sir if he has shabu and then he answered yes and
magkano.

Q: What did he tell you, if any?

 A: He asked me how much I would buy shabu.

Q: What did you tell, if any? aIAHcE

A: That was the time when I handed to him the money, sir.

Q: What happened when you handed the money to him?

A: In return, sir, he handed to me one (1) plastic sachet containing

suspected shabu.

Q: One?

A: Yes, sir.

Q: What happened after he handed to you one plastic sachet?

A: I gave pre-arranged signal to my back-up and immediately eected

the arrest, sir.

Q: What was the pre-arranged signal?

A: By scratching my head, sir.

Q: Scratching your head?

A: Yes, sir.

Q: What happened when you made that pre-arranged signal?

A: I eected the arrest, sir, and conscated the buy bust money from
Rodante De Leon. 14

Evidently, all the elements of the crime of illegal sale of prohibited drugs were
proved in the instant case. The testimony cited above shows clearly that a sale
occurred between appellant, as the seller, and PO2 Magcalayo, as the buyer, for
PhP200 worth of shabu. In addition, the said testimony illustrated the seizing of the
prohibited drug and the exchange of the marked money. As a matter of fact, the
trial court, in disposing of the case, said:

. . . Set against this legal yardstick, the evidence adduced by the prosecution
have suciently established the elements aforesaid. The prosecution
witnesses in the person of PO2 Noel Magcalayo, the one who acted as the
poseur buyer in the buy bust operation conducted by his team, described in
detail how the operation was commenced with the help of an informant, his
introduction to the accused, the ensuing negotiation and consummation of
the sale of shabu which ended up in the exchange of the item as well as the
buy bust money. Accused was positively identied as the seller thereof and
the source of the plastic sachet which contained crystalline substance later
on determined after laboratory examination as positive for
methylamphetamine, a dangerous drug. Said evidence was presented in
court and properly identied as the subject of the buy bust and which was
 submitted for examination by the Forensic Chemist. All told, all the elements
aforementioned are hereby present. 15 . . .ISTDAH

Further, the chain of custody was clearly established by the prosecution. It is

elementary that, in every prosecution for the illegal sale of prohibited drugs, the
presentation of the drug as evidence in court is material. 16 It is, therefore, essential
that the identity of the prohibited drug be established beyond doubt. What is more,
the fact that the substance bought during the buy-bust operation is the same
substance oered in court should be established. The chain of custody requirement
performs this function in that it ensures that unnecessary doubts concerning the
identity of the evidence are removed. 17

To ensure that the chain of custody is established, the Implementing Rules and
Regulations of RA 9165 provide:

SECTION 21. Custody and Disposition of Conscated, Seized

and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous
Drugs, Controlled Precursors and Essential Chemicals,
Instruments/Paraphernalia and/or Laboratory Equipment. The
PDEA shall take charge and have custody of all dangerous drugs, plant
sources of dangerous drugs, controlled precursors and essential chemicals,
as well as instruments/paraphernalia and/or laboratory equipment so
conscated, seized and/or surrendered, for proper disposition in the
following manner:

(a) The apprehending ocer/team having initial custody and control of

the drugs shall, immediately after seizure and conscation, physically
inventory and photograph the same in the presence of the accused or the
person/s from whom such items were conscated and/or seized, or his/her
representative or counsel, a representative from the media and the
Department of Justice (DOJ), and any elected public ocial who shall be
required to sign the copies of the inventory and be given a copy thereof;
Provided, that the physical inventory and photograph shall be
conducted at the place where the search warrant is served; or at
the nearest police station or at the nearest oce of the
apprehending ocer/team, whichever is practicable, in case of
warrantless seizures; Provided, further, that non-compliance with
these requirements under justiable grounds, as long as the
integrity and evidentiary value of the seized items are properly
preserved by the apprehending ocer/team, shall not render void
and invalid such seizures of and custody over said items . . . .
(Emphasis supplied.)

A close examination of the law reveals that it admits of certain exceptions. Thus,
contrary to the assertions of appellant, Sec. 21 of the foregoing law need not be
followed as an exact science. Non-compliance with Sec. 21 does not render an
accused's arrest illegal or the items seized/conscated from him inadmissible. 18
What is essential is "the preservation of the integrity and the evidentiary value of
the seized items, as the same would be utilized in the determination of the guilt or
innocence of the accused." 19
In the instant case, there was substantial compliance with the law and the integrity
of the drugs seized from appellant was preserved. The chain of custody of the drugs
subject matter of the case was shown not to have been broken. The factual milieu
of the case reveals that after PO2 Magcalayo seized and conscated the dangerous
drugs, as well as the marked money, appellant was immediately arrested and
brought to the police station for investigation, where the sachet of suspected shabu
was marked with "NM." Immediately thereafter, the conscated substance, with a
letter of request for examination, was submitted to the PNP Crime Laboratory for
examination to determine the presence of any dangerous drug. Per Chemistry
Report No. D-1240-2003 dated November 9, 2003, the specimen submitted
contained methylamphetamine hydrochloride, a dangerous drug. The examination
was conducted by one Engr. Jabonillo, a Forensic Chemical Ocer of the PNP Crime
Laboratory, whose stipulated testimony clearly established the chain of custody of
the specimens he received. Thus, it is without a doubt that there was an unbroken
chain of custody of the illicit drug purchased from appellant. cITCAa

Likewise, the prosecution was able to prove that appellant is guilty of illegal
possession of dangerous drugs with moral certainty. In the prosecution for illegal
possession of dangerous drugs, the following elements must be proved with moral
certainty: (1) that the accused is in possession of the object identied as a
prohibited or regulatory drug; (2) that such possession is not authorized by law; and
(3) that the accused freely and consciously possessed the said drug. 20

Here, appellant was caught in actual possession of the prohibited drugs without
showing any proof that he was duly authorized by law to possess them. Having
been caught in agrante delicto, there is prima facie evidence of animus possidendi
on appellant's part. As held by this Court, the nding of a dangerous drug in the
house or within the premises of the house of the accused is prima facie evidence of
knowledge or animus possidendi and is enough to convict in the absence of a
satisfactory explanation. 21 In the case at bar, appellant failed to present any
evidence to rebut his animus possidendi of the shabu found in his pocket during the
buy-bust operation.

Buy-Bust Operation Was Valid

Appellant further argues that the buy-bust operation was full of irregularities,
rendering it illegal. He notes that the Pre-Operation Report was full of discrepancies
and that the Joint Sworn Adavit of Apprehension of PO2 Magcalayo and PO2
Collado failed to mention that they placed their markings on the plastic sachets.

The arguments are specious. Such irregularities cannot overturn the nding of the
presence in this case of the elements of violations of Secs. 5 and 11, Art. II of RA
9165.

A buy-bust operation is a form of entrapment whereby ways and means are

resorted to for the purpose of trapping and capturing the lawbreakers in the
execution of their criminal plan. 22 In this jurisdiction, the operation is legal and has
been proved to be an eective method of apprehending drug peddlers, provided due
regard to constitutional and legal safeguards is undertaken. 23
In the case at bar, the evidence clearly shows that the buy-bust operation conducted
by the police ocers, who made use of entrapment to capture appellant in the act
of selling a dangerous drug, was valid and legal. Moreover, the defense has failed to
show any evidence of ill motive on the part of the police ocers. Even appellant
himself declared that it was the rst time he met the police ocers during his cross-
examination. There was, therefore, no motive for the police ocers to frame up
appellant.

Likewise, the identity of appellant as the person who sold the dangerous drugs to
PO2 Magcalayo and the one in possession of the shabu cannot be doubted anymore.
Such positive identication prevails over appellant's defenses of denial and alibi.
These defenses have been invariably viewed by the Court with disfavor, for they can
easily be concocted but dicult to prove, and they are common and standard
defense ploys in most prosecutions arising from violations of the Comprehensive
Dangerous Drugs Act. 24 EaISTD

Absent any proof of motive to falsely accuse appellant of such a grave oense, the
presumption of regularity in the performance of ocial duty and the ndings of the
trial court with respect to the credibility of witnesses shall prevail over appellant's
bare allegation. 25

We, therefore, uphold the presumption of regularity in the performance of ocial

duties and nd that the prosecution has discharged its burden of proving the guilt of
appellant beyond reasonable doubt.

WHEREFORE, the appeal is DENIED. The CA's Decision in CA-G.R. CR-H.C. No.
01811 nding appellant Rodante De Leon y Dela Rosa guilty of the crimes charged
is AFFIRMED.

SO ORDERED.

Corona, Nachura, Peralta and Mendoza, JJ., concur.

Footnotes

1. Rollo, pp. 2-27. Penned by Associate Justice Celia C. Librea-Leagogo and

concurred in by Associate Justices Regalado E. Maambong and Agustin S. Dizon.

2. CA rollo, pp. 17-24. Penned by Judge Severino B. De Castro, Jr.

3. Id. at 9.

4. Id. at 11.

5. Id. at 18.

6. Id.

7. Id. at 23-24.

8. Rollo, pp. 26-27.

9. People v. Macatingag, G.R. No. 181037, January 19, 2009; People v. Bayani, G.R.
No. 179150, June 17, 2008, 554 SCRA 741.

10. Id.

11. G.R. No. 148822, July 12, 2004, 434 SCRA 148, 155-156; citing People v.
Cercado, G.R. No. 144494, July 26, 2002, 385 SCRA 277; People v. Pacis, G.R. No.
146309, July 18, 2002, 384 SCRA 684.

12. People v. Del Mundo, G.R. No. 169141, December 6, 2006, 510 SCRA 554.

13. Id.

14. Records, pp. 176-180.

15. CA rollo, p. 21.

16. People v. Doria, G.R. No. 125299, January 22, 1999, 301 SCRA 668, 718;
citations omitted.

17. Malillin v. People, G.R. No. 172953, April 30, 2008, 553 SCRA 619, 632.

18. People v. Naquita, G.R. No. 180511, July 28, 2008, 560 SCRA 430, 448; citing
People v. Del Monte, G.R. No. 179940, April 23, 2008, 552 SCRA 627.

19. Id.; citing People v. Concepcion, G.R. No. 178876, June 27, 2008, 556 SCRA 421.

20. People v. Del Norte, G.R. No. 149462, March 29, 2004, 426 SCRA 383.

21. U.S. v. Bandoc, 23 Phil. 14, 15 (1912).

22. Cruz v. People, G.R. No. 164580, February 6, 2009; People v. Del Mundo, supra
note 12.

23. See People v. Herrera, G.R. No. 93728, August 21, 1995, 247 SCRA 433; People
v. Tadepa, G.R. No. 100354, May 26, 1995, 244 SCRA 339.

24. People v. Del Mundo, supra note 12; People v. Isnani, G.R. No. 133006, June 9,
2004, 431 SCRA 439.

25. People v. Agulay, G.R. No. 181747, September 26, 2008, 566 SCRA 571, 599;
citing People v. Bongalon, 425 Phil. 96, 116 (2002).
 FIRST DIVISION

[G.R. No. 128587. March 16, 2007.]

PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. PERFECTO

A.S. LAGUIO, JR., in his capacity as Presiding Judge, Branch 18,
RTC, Manila, and LAWRENCE WANG Y CHEN, respondents.

DECISION

GARCIA, J :p

On pure questions of law, petitioner People of the Philippines has directly come to
this Court via this petition for review on certiorari to nullify and set aside the
Resolution 1 dated 13 March 1997 of the Regional Trial Court of Manila, Branch 18,
in Criminal Case Nos. 96-149990 to 96-149992, entitled People of the Philippines v.
Lawrence Wang y Chen, granting private respondent Lawrence C. Wang's Demurrer
to Evidence and acquitting him of the three (3) charges led against him, namely:
(1) Criminal Case No. 96-149990 for Violation of Section 16, Article III in relation to
Section 2 (e) (2), Article I of Republic Act (R.A.) No. 6425 (Dangerous Drugs Act); (2)
Criminal Case No. 96-149991 for Violation of Presidential Decree No. 1866 (Illegal
Possession of Firearms); and (3) Criminal Case No. 96-149992 for Violation of
Comelec Resolution No. 2828 in relation to R.A. No. 7166 (COMELEC Gun Ban).

The three (3) separate Informations led against Lawrence C. Wang in the court of
origin respectively read:

Criminal Case No. 96-149990 (Violation of Dangerous Drugs Act):

That on or about the 17th day of May 1996, in the City of Manila, Philippines,
the said accused did then and there willfully, unlawfully and knowingly have
in his possession and under his custody and control a bulk of white and
yellowish crystalline substance known as SHABU contained in thirty-two (32)
transparent plastic bags weighing approximately 29.2941 kilograms,
containing methamphetamine hydrochloride, a regulated drug, without the
corresponding license or prescription therefor.

Contrary to law. 2

Criminal Case No. 96-149991 (Illegal Possession of Firearms):

That on or about the 17th day of May 1996, in the City of Manila, Philippines,
the said accused did then and there willfully, unlawfully and knowingly have
in his possession and under his custody and control one (1) DAEWOO Cal.
9mm, automatic pistol with one loaded magazine and one AMT Cal. .380
9mm automatic backup pistol with magazine loaded with ammunitions
without rst having secured the necessary license or permit therefor from
 the proper authorities.

Contrary to law. 3

Criminal Case No. 96-149992 (Violation of Comelec Gun Ban):

That on or about the 17th day of May 1996, in the City of Manila, Philippines,
the said accused did then and there willfully, unlawfully and knowingly have
in his possession and under his custody and control one (1) DAEWOO Cal.
9mm automatic pistol with one loaded magazine and one (1) AMT Cal. 380
9mm automatic backup pistol with magazine loaded with ammunitions,
carrying the same along Maria Orosa St., Ermita, Manila, which is a public
place, on the date which is covered by an election period, without rst
securing the written permission or authority from the Commission on
Elections, as provided by the COMELEC Resolution 2828 in relation to
Republic Act 7166.

Contrary to law. 4

During his arraignment, accused Wang refused to enter a plea to all the
Informations and instead interposed a continuing objection to the admissibility of
the evidence obtained by the police operatives. Thus, the trial court ordered that a
plea of "Not Guilty" be entered for him. 5 Thereafter, joint trial of the three (3)
consolidated cases followed.

The pertinent facts are as follows:

On 16 May 1996, at about 7:00 p.m., police operatives of the Public Assistance and
Reaction Against Crime of the Department of Interior and Local Government,
namely, Captain Margallo, Police Inspector Cielito Coronel and SPO3 Reynaldo
Cristobal, arrested SPO2 Vergel de Dios, Rogelio Anoble and a certain Arellano, for
unlawful possession of methamphetamine hydrochloride, a regulated drug popularly
known as shabu. In the course of the investigation of the three arrested persons,
Redentor Teck, alias Frank, and Joseph Junio were identied as the source of the
drug. An entrapment operation was then set after the three were prevailed upon to
call their source and pretend to order another supply of shabu.

At around 11:00 p.m. that same date, Redentor Teck and Joseph Junio were arrested
while they were about to hand over another bag of shabu to SPO2 De Dios and
company. Questioned, Redentor Teck and Joseph Junio informed the police
operatives that they were working as talent manager and gymnast instructor,
respectively, of Glamour Modeling Agency owned by Lawrence Wang. Redentor Teck
and Joseph Junio did not disclose their source of shabu but admitted that they were
working for Wang. 6 They also disclosed that they knew of a scheduled delivery of
shabu early the following morning of 17 May 1996, and that their employer (Wang)
could be found at the Maria Orosa Apartment in Malate, Manila. The police
operatives decided to look for Wang to shed light on the illegal drug activities of
Redentor Teck and Joseph Junio. Police Inspector Cielito Coronel and his men then
proceeded to Maria Orosa Apartment and placed the same under surveillance. TCacIE
Prosecution witness Police Inspector Cielito Coronel testied that at about 2:10 a.m.
of 17 May 1996, Wang, who was described to the operatives by Teck, came out of
the apartment and walked towards a parked BMW car. On nearing the car, he
(witness) together with Captain Margallo and two other police ocers approached
Wang, introduced themselves to him as police ocers, asked his name and, upon
hearing that he was Lawrence Wang, immediately frisked him and asked him to
open the back compartment of the BMW car. 7 When frisked, there was found inside
the front right pocket of Wang and conscated from him an unlicensed AMT Cal.
380 9mm automatic Back-up Pistol loaded with ammunitions. At the same time,
the other members of the operatives searched the BMW car and found inside it
were the following items: (a) 32 transparent plastic bags containing white
crystalline substance with a total weight of 29.2941 kilograms, which substance
was later analyzed as positive for methamphetamine hydrochloride, a regulated
drug locally known as shabu; (b) cash in the amount of P650,000.00; (c) one
electronic and one mechanical scales; and (d) an unlicensed Daewoo 9mm Pistol
with magazine. Then and there, Wang resisted the warrantless arrest and search. 8

On 6 December 1996, the prosecution rested its case and upon motion, accused
Wang was granted 25 days from said date within which to le his intended
Demurrer to Evidence. 9 On 19 December 1996, the prosecution led a
Manifestation 10 to the eect that it had rested its case only in so far as the charge
for Violation of the Dangerous Drugs Act in Criminal Case No. 96-149990 is
concerned, and not as regards the two cases for Illegal Possession of Firearms ( Crim.
Case No. 96-149991) and Violation of the Comelec Gun Ban (Crim. Case No. 96-
149992). Accordingly, trial continued.

On 9 January 1997, Wang led his undated Demurrer to Evidence, 11 praying for his
acquittal and the dismissal of the three (3) cases against him for lack of a valid
arrest and search warrants and the inadmissibility of the prosecution's evidence
against him. Considering that the prosecution has not yet led its Opposition to the
demurrer, Wang led an Amplication 12 to his Demurrer of Evidence on 20 January
1997. On 12 February 1997, the prosecution led its Opposition 13 alleging that the
warrantless search was legal as an incident to the lawful arrest and that it has
proven its case, so it is now time for the defense to present its evidence.

On 13 March 1997, the respondent judge, the Hon. Perfecto A.S. Laguio, Jr., issued
the herein assailed Resolution 14 granting Wang's Demurrer to Evidence and
acquitting him of all charges for lack of evidence, thus:

WHEREFORE, the accused's undated Demurrer to Evidence is hereby

granted; the accused is acquitted of the charges against him for the crimes
of Violation of Section 16, Article III of the Dangerous Drugs Act, Illegal
Possession of Firearms, and Violation of Comelec Gun Ban, for lack of
evidence; the 32 bags of shabu with a total weight of 29.2941 kilograms and
the two unlicensed pistols, one AMT Cal. .380 9mm and one Daewoo Cal.
9mm. are ordered conscated in favor of the government and the branch
clerk is directed to turn over the 32 bags of shabu to the Dangerous Drugs
Board in Intramuros, Manila, and the two rearms to the Firearms and
Explosive Units, PNP, Camp Crame, Quezon City, for proper disposition, and
 the ocer-in-charge of PARAC, Department of Interior and Local
Government, is ordered to return the confiscated amount of P650,000.00 to
the accused, and the conscated BMW car to its registered owner, David
Lee. No costs.

SO ORDERED.

Hence, this petition 15 for review on certiorari by the People, submitting that the
trial court erred

. . . IN HOLDING THAT THE UNDISPUTED FACTS AND CIRCUMSTANCES DID

NOT CONSTITUTE PROBABLE CAUSE WITHIN THE CONTEMPLATION OF
SECTION 2, ARTICLE III OF THE CONSTITUTION, AND IN HOLDING THAT
SUCH FACTS AND CIRCUMSTANCES NEITHER JUSTIFIED THE
WARRANTLESS SEARCH OF ACCUSED'S VEHICLE AND THE SEIZURE OF
THE CONTRABAND THEREIN.

II

. . . IN HOLDING, IN EFFECT, THAT A WARRANTLESS SEARCH IS

CONSTITUTIONALLY ALLOWABLE AND CAN ONLY BE VALID AS AN
INCIDENT TO A LAWFUL ARREST.

III

. . . IN DECLARING THE WARRANTLESS ARREST OF THE ACCUSED AND THE

SEARCH AND SEIZURE OF HIS HANDGUNS UNLAWFUL.

IV

. . . IN NOT DECLARING THE ACCUSED AS HAVING WAIVED, AS A RESULT

OF HIS SUBMISSION AND FAILURE TO PROTEST THE SEARCH AND HIS
ARREST, HIS CONSTITUTIONAL RIGHT AGAINST UNREASONABLE SEARCH
AND SEIZURE AND HIS OBJECTION TO THE ADMISSION OF THE EVIDENCE
SEIZED.

. . . IN NOT ADMITTING IN EVIDENCE THE EVIDENCE SEIZED AND OFFERED

BY THE PROSECUTION AND IN NOT DENYING ACCUSED'S DEMURRER TO
EVIDENCE.

In its Resolution 16 of 9 July 1997, the Court, without giving due course to the
petition, required the public and private respondents to comment thereon within
ten days from notice. Private respondent Wang led his comment 17 on 18 August
1997.

On 10 September 1997, the Court required the People to le a reply, 18 which the
Office of the Solicitor General did on 5 December 1997, after several extensions. 19
On 20 October 2004, the Court resolved to give due course to the petition and
required the parties to submit their respective memoranda, 20 which they did.

The case presents two main issues: (a) whether the prosecution may appeal the
trial court's resolution granting Wang's demurrer to evidence and acquitting him of
all the charges against him without violating the constitutional proscription against
double jeopardy; and (b) whether there was lawful arrest, search and seizure by the
police operatives in this case despite the absence of a warrant of arrest and/or a
search warrant.

First o, it must be emphasized that the present case is an appeal led directly with
this Court via a petition for review on certiorari under Rule 45 in relation to Rule
41, Section 2, paragraph (c) of the Rules of Court raising only pure questions of law,
ordinary appeal by mere ling of a notice of appeal not being allowed as a mode of
appeal directly to this Court. Then, too, it bears stressing that the right to appeal is
neither a natural right nor a part of due process, it being merely a statutory
privilege which may be exercised only in the manner provided for by law ( Velasco v.
Court of Appeals 21 ). Although Section 2, Rule 122 of the Rules on Criminal
Procedure states that any party may appeal, the right of the People to appeal is, in
the very same provision, expressly made subject to the prohibition against putting
the accused in double jeopardy. It also basic that appeal in criminal cases throws the
whole records of the case wide open for review by the appellate court, that is why
any appeal from a judgment of acquittal necessarily puts the accused in double
jeopardy. In eect, the very same Section 2 of Rule 122 of the Rules on Criminal
Procedure, disallows appeal by the People from judgments of acquittal.

An order granting an accused's demurrer to evidence is a resolution of the case on

the merits, and it amounts to an acquittal. Generally, any further prosecution of the
accused after an acquittal would violate the constitutional proscription on double
jeopardy. To this general rule, however, the Court has previously made some
exceptions.

The celebrated case of Galman v. Sandiganbayan 22 presents one exception to the

rule on double jeopardy, which is, when the prosecution is denied due process
of law:

No court whose Presiding Justice has received "orders or suggestions" from

the very President who by an amendatory decree (disclosed only at the
hearing of oral arguments on November 8, 1984 on a petition challenging
the referral of the Aquino-Galman murder cases to the Tanodbayan and
Sandiganbayan instead of to a court martial, as mandatorily required by the
known P.D. 1850 at the time providing for exclusive jurisdiction of courts
martial over criminal oenses committed by military men) made it possible to
refer the cases to the Sandiganbayan, can be an impartial court, which is the
very essence of due process of law. As the writer then wrote, "jurisdiction
over cases should be determined by law, and not by preselection of the
Executive, which could be much too easily transformed into a means of
predetermining the outcome of individual cases." This criminal collusion as to
the handling and treatment of the cases by public respondents at the secret
Malacaang conference (and revealed only after fteen months by Justice
Manuel Herrera) completely disqualied respondent Sandiganbayan and
voided ab initio its verdict. This renders moot and irrelevant for now the
extensive arguments of respondents accused, particularly Generals Ver and
Olivas and those categorized as accessories, that there has been no
evidence or witness suppressed against them, that the erroneous
conclusions of Olivas as police investigator do not make him an accessory of
the crimes he investigated and the appraisal and evaluation of the
testimonies of the witnesses presented and suppressed. There will be time
and opportunity to present all these arguments and considerations at the
remand and retrial of the cases herein ordered before a neutral and impartial
court.

The Supreme Court cannot permit such a sham trial and verdict and
travesty of justice to stand unrectied. The courts of the land under its aegis
are courts of law and justice and equity. They would have no reason to exist
if they were allowed to be used as mere tools of injustice, deception and
duplicity to subvert and suppress the truth, instead of repositories of judicial
power whose judges are sworn and committed to render impartial justice to
all alike who seek the enforcement or protection of a right or the prevention
or redress of a wrong, without fear or favor and removed from the
pressures of politics and prejudice. More so, in the case at bar where the
people and the world are entitled to know the truth, and the integrity of our
judicial system is at stake. In life, as an accused before the military tribunal
Ninoy had pleaded in vain that as a civilian he was entitled to due process of
law and trial in the regular civil courts before an impartial court with an
unbiased prosecutor. In death, Ninoy, as the victim of the "treacherous and
vicious assassination" and the relatives and sovereign people as the
aggrieved parties plead once more for due process of law and a retrial
before an impartial court with an unbiased prosecutor. The Court is
constrained to declare the sham trial a mock trial the non-trial of the
century and that the predetermined judgment of acquittal was unlawful
and void ab initio.

1. No double jeopardy. It is settled doctrine that double jeopardy

cannot be invoked against this Court's setting aside of the trial courts'
judgment of dismissal or acquittal where the prosecution which
represents the sovereign people in criminal cases is denied due
process. As the Court stressed in the 1985 case of People vs. Bocar,

Where the prosecution is deprived of a fair opportunity to prosecute

and prove its case, its right to due process is thereby violated.

The cardinal precept is that where there is a violation of basic

constitutional rights, courts are ousted of their jurisdiction. Thus, the
violation of the State's right to due process raises a serious
jurisdictional issue (Gumabon vs. Director of the Bureau of Prisons , L-
30026, 37 SCRA 420 [Jan. 30, 1971]) which cannot be glossed over or
disregarded at will. Where the denial of the fundamental right of due
process is apparent, a decision rendered in disregard of that right is
void for lack of jurisdiction (Aducayen vs. Flores , L-30370 [May 25,
 19731, 51 SCRA 78; Shell Co. vs. Enage, L-30111-12, 49 SCRA 416
Feb. 27, 1973]). Any judgment or decision rendered notwithstanding
such violation may be regarded as a "lawless thing, which can be
treated as an outlaw and slain at sight, or ignored wherever it exhibits
its head" (Aducayen vs. Flores , supra).

Respondent Judge's dismissal order dated July 7, 1967 being null and
void for lack of jurisdiction, the same does not constitute a proper
basis for a claim of double jeopardy (Serino vs. Zosa, supra).

xxx xxx xxx

Legal jeopardy attaches only (a) upon a valid indictment, (b)

before a competent court, (c) after arraignment, (d) a valid plea
having been entered; and (e) the case was dismissed or otherwise
terminated without the express consent of the accused (People vs.
Ylagan, 58 Phil. 851). The lower court was not competent as it was
ousted of its jurisdiction when it violated the right of the prosecution
to due process .

In eect, the rst jeopardy was never terminated , and the remand of
the criminal case for further hearing and/or trial before the lower
courts amounts merely to a continuation of the rst jeopardy, and
does not expose the accused to a second jeopardy.

Another exception is when the trial court commits grave abuse of discretion
in dismissing a criminal case by granting the accused's demurrer to
evidence. In point is the fairly recent case of People v. Uy , 23 which involved the
trial court's decision which granted the two separate demurrers to evidence led by
the two accused therein, both with leave of court, resulting in their acquittal of their
respective charges of murder due to insuciency of evidence. In resolving the
petition for certiorari filed directly with this Court, we had the occasion to explain:

The general rule in this jurisdiction is that a judgment of acquittal is nal and
unappealable. People v. Court of Appeals explains the rationale of this rule:

In our jurisdiction, the nality-of-acquittal doctrine as a safeguard

against double jeopardy faithfully adheres to the principle rst
enunciated in Kepner v. United States . In this case, verdicts of
acquittal are to be regarded as absolutely nal and irreviewable. The
cases of United States v. Yam Tung Way, People v. Bringas, Gandicela
v. Lutero, People v. Cabarles, People v. Bao , to name a few, are
illustrative cases. The fundamental philosophy behind the
constitutional proscription against double jeopardy is to aord the
defendant, who has been acquitted, nal repose and safeguard him
from government oppression through the abuse of criminal
processes. As succinctly observed in Green v. United States "(t)he
underlying idea, one that is deeply ingrained in at least the Anglo-
American system of jurisprudence, is that the State with all its
resources and power should not be allowed to make repeated
attempts to convict an individual for an alleged oense, thereby
 subjecting him to embarrassment, expense and ordeal and compelling
him to live in a continuing state of anxiety and insecurity, as well as
enhancing the possibility that even though innocent, he may be found
guilty." (Underscoring supplied)

The same rule applies in criminal cases where a demurrer to evidence is

granted. As held in the case of People v. Sandiganbayan:

The demurrer to evidence in criminal cases, such as the one at bar, is

" led after the prosecution had rested its case," and when the same
is granted, it calls "for an appreciation of the evidence adduced by the
prosecution and its suciency to warrant conviction beyond
reasonable doubt, resulting in a dismissal of the case on the merits,
tantamount to an acquittal of the accused." Such dismissal of a
criminal case by the grant of demurrer to evidence may not be
appealed, for to do so would be to place the accused in double-
jeopardy. The verdict being one of acquittal, the case ends there.
(Italics in the original)

Like any other rule, however, the above-said rule is not absolute. By way of
exception, a judgment of acquittal in a criminal case may be
assailed in a petition for certiorari under Rule 65 of the Rules of
Court upon a clear showing by the petitioner that the lower court,
in acquitting the accused, committed not merely reversible errors
of judgment but also grave abuse of discretion amounting to lack
or excess of jurisdiction or a denial of due process, thus rendering
the assailed judgment void. (Emphasis supplied.)

In Sanvicente v. People, 24 the Court allowed the review of a decision of the Court of
Appeals (CA) which reversed the accused's acquittal upon demurrer to evidence led
by the accused with leave of court, the CA ruling that the trial court committed
grave abuse of discretion in preventing the prosecution from establishing the due
execution and authenticity of certain letter marked therein as Exhibit "LL," which
supposedly "positively identied therein petitioner as the perpetrator of the crime
charged." The Court, in a petition for certiorari, sustained the CA's power to review
the order granting the demurrer to evidence, explaining thus:

Under Rule 119, Section 23 of the Revised Rules of Criminal Procedure, as

amended, the trial court may dismiss the action on the ground of
insuciency of evidence upon a demurrer to evidence led by the accused
with or without leave of court. In resolving accused's demurrer to evidence,
the court is merely required to ascertain whether there is competent or
sufficient evidence to sustain the indictment or support a verdict of guilt.

The grant or denial of a demurrer to evidence is left to the sound discretion

of the trial court and its ruling on the matter shall not be disturbed in the
absence of a grave abuse of discretion. Signicantly, once the court grants
the demurrer, such order amounts to an acquittal and any further
prosecution of the accused would violate the constitutional proscription on
 double jeopardy. This constitutes an exception to the rule that the dismissal
of a criminal case made with the express consent of the accused or upon
his own motion bars a plea of double jeopardy. The nality-of-acquittal rule
was stressed thus in People v. Velasco:

The fundamental philosophy highlighting the nality of an acquittal by

the trial court cuts deep into the "humanity of the laws and in jealous
watchfulness over the rights of the citizens, when brought in unequal
contest with the State . . . . Thus Green expressed the concern that "
(t)he underlying idea, one that is deeply ingrained in at least the Anglo-
American system of jurisprudence, is that the State with all its
resources and power should not be allowed to make repeated
attempts to convict an individual for an alleged oense thereby
subjecting him to embarrassment, expense and ordeal and compelling
him to live in a continuing state of anxiety and insecurity, as well as
enhancing the possibility that even though innocent, he may be found
guilty."

It is axiomatic that on the basis of humanity, fairness and justice, an

acquitted defendant is entitled to the right of repose as a direct
consequence of the nality of his acquittal. The philosophy underlying
this rule establishing the absolute nature of acquittals is "part of the
paramount importance criminal justice system attaches to the
protection of the innocent against wrongful conviction." The interest in
the nality-of-acquittal rule, conned exclusively to verdicts of not
guilty, is easy to understand: it is a need for "repose", a desire to
know the exact extent of one's liability. With this right of repose, the
criminal justice system has built in a protection to insure that the
innocent, even those whose innocence rests upon a jury's leniency,
will not be found guilty in a subsequent proceeding.

Given the far-reaching scope of an accused's right against double jeopardy,

even an appeal based on an alleged misappreciation of evidence will not lie.
The only instance when double jeopardy will not attach is when
the trial court acted with grave abuse of discretion amounting to
lack or excess of jurisdiction, such as where the prosecution was
denied the opportunity to present its case or where the trial was
a sham. However, while certiorari may be availed of to correct an
erroneous acquittal, the petitioner in such an extraordinary
proceeding must clearly demonstrate that the trial court blatantly
abused its authority to a point so grave as to deprive it of its very
power to dispense justice. (Emphasis supplied.)

By this time, it is settled that the appellate court may review dismissal orders of
trial courts granting an accused's demurrer to evidence. This may be done via the
special civil action of certiorari under Rule 65 based on the ground of
grave abuse of discretion, amounting to lack or excess of jurisdiction. Such
dismissal order, being considered void judgment, does not result in jeopardy. Thus,
when the order of dismissal is annulled or set aside by an appellate court in an
original special civil action via certiorari, the right of the accused against double
jeopardy is not violated.

Unfortunately, what petitioner People of the Philippines, through then Secretary of

Justice Teofisto T. Guingona, Jr. and then Solicitor General Silvestre H. Bello, III, filed
with the Court in the present case is an appeal by way of a petition for review
o n certiorari under Rule 45 raising a pure question of law, which is
different from a petition for certiorari under Rule 65.

In Madrigal Transport Inc. v. Lapanday Holdings Corporation , 25 we have

enumerated the distinction between the two remedies/actions, to wit:

Appeal and Certiorari Distinguished

Between an appeal and a petition for certiorari, there are substantial

distinctions which shall be explained below.

As to the Purpose. Certiorari is a remedy designed for the correction of

errors of jurisdiction, not errors of judgment. In Pure Foods Corporation v.
NLRC, we explained the simple reason for the rule in this light:

"When a court exercises its jurisdiction, an error committed while so

engaged does not deprive it of the jurisdiction being exercised when
the error is committed. If it did, every error committed by a court
would deprive it of its jurisdiction and every erroneous judgment
would be a void judgment. This cannot be allowed. The administration
of justice would not survive such a rule. Consequently, an error of
judgment that the court may commit in the exercise of its jurisdiction
is not correct[a]ble through the original civil action of certiorari."

The supervisory jurisdiction of a court over the issuance of a writ of

certiorari cannot be exercised for the purpose of reviewing the intrinsic
correctness of a judgment of the lower court on the basis either of the
law or the facts of the case, or of the wisdom or legal soundness of the
decision. Even if the ndings of the court are incorrect, as long as it has
jurisdiction over the case, such correction is normally beyond the province
of certiorari. Where the error is not one of jurisdiction, but of an error of law
or fact a mistake of judgment appeal is the remedy.

As to the Manner of Filing. Over an appeal, the CA exercises its appellate

jurisdiction and power of review. Over a certiorari, the higher court uses its
original jurisdiction in accordance with its power of control and supervision
over the proceedings of lower courts. An appeal is thus a continuation of
the original suit, while a petition for certiorari is an original and independent
action that was not part of the trial that had resulted in the rendition of the
judgment or order complained of. The parties to an appeal are the original
parties to the action. In contrast, the parties to a petition for certiorari are
the aggrieved party (who thereby becomes the petitioner) against the lower
court or quasi-judicial agency, and the prevailing parties (the public and the
private respondents, respectively).

As to the Subject Matter. Only judgments or nal orders and those that
 the Rules of Court so declared are appealable. Since the issue is jurisdiction,
an original action for certiorari may be directed against an interlocutory
order of the lower court prior to an appeal from the judgment; or where
there is no appeal or any plain, speedy or adequate remedy.

As to the Period of Filing. Ordinary appeals should be led within fteen

days from the notice of judgment or nal order appealed from. Where a
record on appeal is required, the appellant must le a notice of appeal and a
record on appeal within thirty days from the said notice of judgment or nal
order. A petition for review should be led and served within fteen days
from the notice of denial of the decision, or of the petitioner's timely led
motion for new trial or motion for reconsideration. In an appeal by certiorari,
the petition should be led also within fteen days from the notice of
judgment or nal order, or of the denial of the petitioner's motion for new
trial or motion for reconsideration.

On the other hand, a petition for certiorari should be led not later than sixty
days from the notice of judgment, order, or resolution. If a motion for new
trial or motion for reconsideration was timely led, the period shall be
counted from the denial of the motion.

As to the Need for a Motion for Reconsideration. A motion for

reconsideration is generally required prior to the ling of a petition for
certiorari, in order to aord the tribunal an opportunity to correct the
alleged errors. Note also that this motion is a plain and adequate remedy
expressly available under the law. Such motion is not required before
appealing a judgment or final order. HAaScT

Also in Madrigal, we stressed that the special civil action of certiorari and appeal are
two dierent remedies mutually exclusive; they are neither alternative nor
successive. Where appeal is available, certiorari will not prosper. In the dismissal of
a criminal case upon demurrer to evidence, appeal is not available as such an appeal
will put the accused in double jeopardy. Certiorari, however, is allowed.

For being the wrong remedy taken by petitioner People of the Philippines in this
case, this petition is outrightly dismissible. The Court cannot reverse the assailed
dismissal order of the trial court by appeal without violating private respondent's
right against double jeopardy.

Even assuming that the Court may treat an "appeal" as a special civil action of
certiorari, which denitely this Court has the power to do, when there is a clear
showing of grave abuse of discretion committed by the lower court, the instant
petition will nevertheless fail on the merits as the succeeding discussion will show.

There are actually two (2) acts involved in this case, namely, the warrantless arrest
and the warrantless search. There is no question that warrantless search may be
conducted as an incident to a valid warrantless arrest. The law requires that there
be rst a lawful arrest before a search can be made; the process cannot be reversed.
26 However, if there are valid reasons to conduct lawful search and seizure which
thereafter shows that the accused is currently committing a crime, the accused may
be lawfully arrested in flagrante delicto 27 without need for a warrant of arrest.

Finding that the warrantless arrest preceded the warrantless search in the case at
bar, the trial court granted private respondent's demurrer to evidence and acquitted
him of all the three charges for lack of evidence, because the unlawful arrest
resulted in the inadmissibility of the evidence gathered from an invalid warrantless
search. The trial court's ratiocination is quoted as follows:

The threshold issue raised by the accused in his Demurrer to Evidence is

whether his warrantless arrest and search were lawful as argued by the
prosecution, or unlawful as asserted by the defense.

Under Section 5, Rule 113 of the New Rules of Court, a peace ocer may
arrest a person without a warrant: (a) when in his presence, the person to
be arrested has committed, is actually committing, or is attempting to
commit an oense; (b) when an oense has in fact just been committed,
and he has personal knowledge of facts indicating that the person to be
arrested has committed it, and (c) when the person to be arrested is a
prisoner who has escaped from a penal establishment or place where he is
serving nal judgment or temporarily conned while being transferred from
one connement to another. None of these circumstances were present
when the accused was arrested. The accused was merely walking from the
Maria Orosa Apartment and was about to enter the parked BMW car when
the police ocers arrested and frisked him and searched his car. The
accused was not committing any visible oense at the time of his arrest.
Neither was there an indication that he was about to commit a crime or that
he had just committed an oense. The unlicensed AMT Cal.380 9mm
Automatic Back-up Pistol that the accused had in his possession was
concealed inside the right front pocket of his pants. And the handgun was
bantam and slim in size that it would not give an outward indication of a
concealed gun if placed inside the pant's side pocket as was done by the
accused. The arresting ocers had no information and knowledge that the
accused was carrying an unlicensed handgun, nor did they see him in
possession thereof immediately prior to his arrest.

Ditto on the 32 bags of shabu and the other unlicensed Daewoo Cal. 9mm
Pistol with magazine that were found and seized from the car. The
contraband items in the car were not in plain view. The 32 bags of shabu
were in the trunk compartment, and the Daewoo handgun was underneath
the driver's seat of the car. The police ocers had no information, or
knowledge that the banned articles were inside the car, or that the accused
had placed them there. The police ocers searched the car on mere
suspicion that there was shabu therein.

On this matter, pertinent portions of the testimonies of Police Inspector

Cielito Coronel and SPO3 Reynaldo are hereunder quoted:

POLICE INSPECTOR CIELITO CORONEL'S TESTIMONY

"PROSECUTOR TO WITNESS: Direct-Examination

Q. Mr. Witness, what was your role or participation in this case?

A. I am one of those responsible for the arrest of the accused.

xxx xxx xxx

Q. Where did you make that arrest, Mr. Witness?

A. The apprehension was made in front of an apartment along Maria

Orosa Street, Ermita, Manila.

Q. What date was that when you arrested the accused?

A. It was on May 17, 1996, at about 2:10 a.m.

xxx xxx xxx

Q. What was the reason why you together with other policemen
effected the arrest of the accused?

A. We arrested him because of the information relayed to us by one of

those whom we have previously apprehended in connection with the
delivery of shabu somewhere also in Ermita, Manila.

xxx xxx xxx

Q. When you established that he was somewhere at Maria Orosa, what

did you do?

A. We waited for him.

xxx xxx xxx

Q. You yourself, Mr. Witness, where did you position yourself during that
time?

A. I was inside a vehicle waiting for the accused to appear.

Q. What about your other companions where were they?

A. They were position in strategic places within the area.

Q. What happened when you and your companions were positioned in

that place?

A. That was when the accused arrived.

Q. How many of your approached him.

A. Inspector Margallo, myself and two other operatives.

Q. What happened when you approached the accused, Mr. Witness?

A. We introduced ourselves as police ocers and we frisked him and we
asked him to open the back compartment of his car.

Q. You said you frisked him, what was the result of that?

A. He was found in possession of one back-up pistol with one loaded

magazine and likewise when the compartment was opened several
plastic bags containing white crystalline substance suspected to be
shabu (were found).

Q. What did you do when you found out Mr. Witness?

A. When the car was further search we later found another rearm, a
Daewoo Pistol at the place under the seat of the driver.

Q. Then what happened?

A. He was brought to our headquarters at Mandaluyong for further

investigation.

Q. What about the suspected shabu that you recovered, what did you
do with that?

A. The suspected shabu that we recovered were forwarded to the NBI

for laboratory examination.

Q. Did you come to know the results?

A. It was found positive for methamphetamine hydrochloride. (TSN, pp.

3-8, November 15, 1996).

ATTY. LOZANO TO WITNESS: CROSS

Q. You arrested Joseph Junio and Redentor Teck for alleged transporting
of shabu on May 16, 1996, at 11:00 p.m., is it not?

A. Yes, Sir.

Q. You asked Redentor Teck where he is employed, is it not?

A. Yes, Sir.

xxx xxx xxx

Q. Redentor Teck told you that he is a talent manager at the Glenmore

Modeling Agency, is it not?

A. Yes, Sir.

Q. The Glenmore Modeling Agency is owned by Lawrence Wang, is it

not?

A. I supposed, Sir.
Q. And that is why immediately after Redentor Teck told you that he is
an employee of the Glenmore Modeling Agency owned by Lawrence
Wang, naturally, you and your companions look for Lawrence Wang
to shed light on the transporting of shabu by Redentor Teck and
Joseph Junio, is it not?

A. Yes, Sir.

Q. Thereafter, you spotted a person previously described by Redentor

Teck as Lawrence Wang, is it not?

A. Yes, Sir.

Q. While you were arresting Lawrence Wang, your companions at the

same time searched the BMW car described in your adavit of arrest,
is it not?

A. Yes, Sir.

xxx xxx xxx

Q. Lawrence Wang was not inside the BMW car while the same was
searched, is it not?

A. He was outside, Sir.

Q. The driver of the car was inside the car when the arrest and search
were made, is it not?

A. He was likewise outside, Sir.

Q. Lawrence Wang did resist arrest and search is it not?

A. Yes, Sir.

Q. When you eected the arrest, there was no warrant of arrest, is it

not?

A. Yes, Sir.

Q. When the search was made on the BMW car, there was no search
warrant, is it not?

A. Yes, none, Sir. (TSN, pp. 3-12, November 15, 1996)

SPO3 REYNALDO CRISTOBAL'S TESTIMONY

PROSECUTOR TO WITNESS: DIRECT EXAMINATION

Q. What is you role or participation in this case?

A. I was one of the arresting officers and investigator, Sir.

xxx xxx xxx

Q. What kind of specic oense did the accused allegedly do so that you
arrested him, Mr. Witness?

A. He was arrested on the basis of the recovered drugs in his

possession placed inside his car.

xxx xxx xxx

Q. Mr. witness, you said that you recovered drug from the car of the
accused, please tell us the antecedent circumstances which led you to
recover or confiscate these items?

A. Earlier in the evening about 11:00 p.m. of May 16, we arrested one
Redentor Teck and Joseph Junio.

COURT: Where did you arrest these people?

A They were arrested in Metro Manila also.

COURT: The same date?

A. May 16, about 11:00 p.m. They were arrested and when they were
investigated, Teck mentioned the name of Lawrence Wang as his
employer. cCHITA

COURT: Why were these people, arrested?

A. For violation of R.A. 6425.

COURT: How were they arrested?

A. They were arrested while in the act of transporting shabu or handling

shabu to another previously arrested person. It was a series of arrest.

COURT: So, this involved a series of operation?

A. Yes, Your Honor. About 11:00 p.m. of May 16, we arrested three (3)
persons, SPO2 Vergel de Dios, a certain Arellano and a certain Rogelio
Noble. When they were arrested they divulged the name of the
source.

COURT: They were arrested for what, for possession?

A. Yes, Your Honor. For unlawful possession of shabu. Then they

divulged to us the name of the person from whom they get shabu.

COURT: Whose name did they mention:

A. One Alias Frank, who turned out to be Redentor Teck and Joseph
Junio. We let them call Redentor Teck and Joseph Junio thru the
cellphone and pretend and to order another supply of shabu.
COURT: So there was an entrapment?

A. Yes, Your Honor.

COURT: So, these two (2) were arrested?

A. While they were about to hand over another bag of shabu to Noble
and company.

COURT: And these two reveals (revealed) some information to you as to the
source of the shabu?

A. Yes, Your Honor.

COURT: What was the information?

A. Teck told us that he is an employee of Lawrence Wang.

COURT: What did you do when you were told about that?

A. They also told us that there was an ongoing delivery of shabu on that
morning.

COURT: When?

A. Of that date early morning of May 17, 1996.

COURT: At what place?

A. We asked them where we could nd Lawrence Wang and Teck lead

us to Maria Orosa Apartment where we conducted a stake out which
lasted up to 2:00 a.m.

xxx xxx xxx

COURT: What happened during the stake out?

A. When the person of the accused was identied to us, we saw him
opening his car together with his driver.

COURT: So, he was about to leave when you saw him?

A. Probably, Sir.

COURT: What did you do?

A. We saw him opened his car and we have a suspicion that there was a
shabu inside the compartment of the car.

xxx xxx xxx

COURT: All right, when you saw the accused opened his car, what did you
do?
A. We approached him.

COURT: What happened when you approached him?

A. We suspected the shabu inside the compartment of his car.

COURT: And this shabu that you saw inside the compartment of the car,
what did you do with that?

A. Well, he was rst arrested by Captain Margallo and Lt. Coronel while I
was the one who inspected and opened the compartment of the car
and saw the shabu. (TSN, pp. 15-24, December 16, 1996).

CLARIFICATORY QUESTIONING OF SPO3 CRISTOBAL BY THE COURT

COURT: From your testimony and that of Police Inspector Cielito Coronel,
this Court has gathered that prior to the arrest of the accused there
were three (3) men that your team arrested. One of whom is a police
officer.

A: Yes, Sir.

xxx xxx xxx

COURT: And on the occasion of the arrest of these three men shabu were
confiscated from them?

A: Yes, Sir.

Q: And in the course of the investigation of these three men, you were
able to discover that Redentor Teck and Joseph Junio were the source
of the regulated drug that were conscated from the three men that
you have arrested?

A: Yes, Sir.

Q: Now, thru entrapment base[d] on your testimony you were able to

apprehend also these two men, Redentor Teck and Joseph Junio?

A: Yes, Sir.

xxx xxx xxx

Q: These two men, Redentor Teck and Joseph Junio they were also
investigated by your team?

A: Yes, Sir.

Q: You were present while they were investigated?

A: I was the one whom investigated them.

xxx xxx xxx

Q: Did you ask Redentor and Joseph the source of shabu that you
confiscated from them at the time of the (their) arrest?

A: Yes, Sir. They refuse to say the source, however, they told me that
they were working for the accused.

Q: You also testied that Redentor informed you that there was another
delivery of shabu scheduled that morning of (stop) was it May 16 or
17? The other delivery that is scheduled on?

A: On the 17th.

xxx xxx xxx

Q: Did he tell you who was to make the delivery?

A: No, Sir.

xxx xxx xxx

Q: At that time when you decided to look for the accused to ask him to
shed light on the matter concerning the arrest of these two
employees in possession of shabu. Did you and did your team
suspect the accused as being involved in the transaction that lead
(led) to the arrest of Redentor and Joseph?

A: Yes, Sir. We suspected that he was the source of the shabu.

xxx xxx xxx

Q: When you saw the accused walking towards his car, did you know
whether he was carrying a gun?

A: No, Sir. It cannot be seen.

Q: It was concealed?

A: Yes, Sir.

Q: So, the only time that you and your team learned that he was in
possession of the gun is when he was bodily search?

A: Yes, Sir. That is the only time that I came to know about when Capt.
Margallo handed to me the gun.

Q: Other than walking towards his car, the accused was not doing
anything else?

A: None, Sir.

Q: That would invite your suspicion or give indication that he was

intending to do something unlawful or illegal?
 A: No, Sir.

Q: When you searched the car, did the accused protest or try to
prevent your team from searching his car?

A: No, Sir." (TSN pp. 3-16, Feb. 26, 1997)

Clearly therefore, the warrantless arrest of the accused and the search of
his person and the car were without probable cause and could not be licit.
The arrest of the accused did not fall under any of the exception to the
requirements of warrantless arrests, (Sec. 5, Rule 113, Rules of Court) and
is therefore, unlawful and derogatory of his constitutional right of liberty. . . .

The trial court resolved the case on the basis of its ndings that the arrest
preceded the search, and nding no basis to rule in favor of a lawful arrest, it
ruled that the incidental search is likewise unlawful. Any and all pieces of evidence
acquired as a consequence thereof are inadmissible in evidence. Thus, the trial court
dismissed the case for lack of evidence.

Contrary to its position at the trial court, the People, however, now posits that
"inasmuch as it has been shown in the present case that the seizure without
warrant of the regulated drugs and unlicensed rearms in the accused's possession
had been validly made upon probable cause and under exigent circumstances, then
the warrantless arrest of the accused must necessarily have to be regarded as
having been made on the occasion of the commission of the crime in agrante
delicto, and therefore constitutionally and statutorily permissible and lawful." 28 In
eect, the People now contends that the warrantless search preceded the
warrantless arrest. Since the case falls under an exception to the general rule
requiring search warrant prior to a valid search and seizure, the police ocers were
justied in requiring the private respondent to open his BMW car's trunk to see if he
was carrying illegal drugs.

The conicting versions as to whether the arrest preceded the search or vice versa,
is a matter of credibility of evidence. It entails appreciation of evidence, which may
be done in an appeal of a criminal case because the entire case is thrown open for
review, but not in the case of a petition for certiorari where the factual ndings of
the trial court are binding upon the Court. Since a dismissal order consequent to a
demurrer to evidence is not subject to appeal and reviewable only by certiorari, the
factual nding that the arrest preceded the search is conclusive upon this Court. The
only legal basis for this Court to possibly reverse and set aside the dismissal order of
the trial court upon demurrer to evidence would be if the trial court committed
grave abuse of discretion in excess of jurisdiction when it ruled that there was no
legal basis to lawfully effect a warrantless arrest.

The pertinent provisions of Rule 113 of the Rules on Criminal Procedure on

warrantless arrest provide:

Sec. 5. Arrest without warrant; when lawful. A peace ocer or a

private person may, without a warrant, arrest a person:
 a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;

b) When an oense has just been committed, and he has probable

cause to believe based on personal knowledge of facts or circumstances
that the person to be arrested has committed it; and

c) When the person to be arrested is a prisoner who has escaped from

a penal establishment or place where he is serving nal judgment or is
temporarily conned while his case is pending, or has escaped while being
transferred from one confinement to another.

Section 5, above, provides three (3) instances when warrantless arrest may be
lawfully eected: (a) arrest of a suspect in agrante delicto; (b) arrest of a suspect
where, based on personal knowledge of the arresting ocer, there is probable cause
that said suspect was the author of a crime which had just been committed; (c)
arrest of a prisoner who has escaped from custody serving nal judgment or
temporarily confined while his case is pending.

For a warrantless arrest of an accused caught in agrante delicto under paragraph

(a) of Section 5 to be valid, two requisites must concur: (1) the person to be
arrested must execute an overt act indicating that he has just committed, is actually
committing, or is attempting to commit a crime; and (2) such overt act is done in
the presence or within the view of the arresting officer. 29

The facts and circumstances surrounding the present case did not manifest any
suspicious behavior on the part of private respondent Lawrence Wang that would
reasonably invite the attention of the police. He was merely walking from the Maria
Orosa Apartment and was about to enter the parked BMW car when the police
operatives arrested him, frisked and searched his person and commanded him to
open the compartment of the car, which was later on found to be owned by his
friend, David Lee. He was not committing any visible oense then. Therefore, there
can be no valid warrantless arrest in flagrante delicto under paragraph (a) of Section
5. It is settled that "reliable information" alone, absent any overt act indicative of a
felonious enterprise in the presence and within the view of the arresting ocers, is
not sucient to constitute probable cause that would justify an in agrante delicto
arrest. 30

Neither may the warrantless arrest be justied under paragraph (b) of Section 5.
What is clearly established from the testimonies of the arresting ocers is that
Wang was arrested mainly on the information that he was the employer of
Redentor Teck and Joseph Junio who were previously arrested and charged for
illegal transport of shabu. Teck and Junio did not even categorically identify Wang to
be their source of the shabu they were caught with in agrante delicto. Upon the
duo's declaration that there will be a delivery of shabu on the early morning of the
following day, May 17, which is only a few hours thereafter, and that Wang may be
found in Maria Orosa Apartment along Maria Orosa Street, the arresting ocers
conducted "surveillance" operation in front of said apartment, hoping to nd a
person which will match the description of one Lawrence Wang, the employer of
Teck and Junio. These circumstances do not suciently establish the existence of
probable cause based on personal knowledge as required in paragraph (b) of Section
5.

And doubtless, the warrantless arrest does not fall under paragraph (c) of Section 5.

The inevitable conclusion, as correctly made by the trial court, is that the
warrantless arrest was illegal. Ipso jure, the warrantless search incidental to the
illegal arrest is likewise unlawful.

I n People v. Aminnudin , 31 the Court declared as inadmissible in evidence the

marijuana found in appellant's possession during a search without a warrant,
because it had been illegally seized, in disregard of the Bill of Rights:

In the case at bar, the accused-appellant was not, at the moment of his
arrest, committing a crime nor was it shown that he was about to do so or
that he had just done so. What he was doing was descending the gangplank
of the M/V Wilcon 9 and there was no outward indication that called for his
arrest. To all appearances, he was like any of the other passengers
innocently disembarking from the vessel. It was only when the informer
pointed to him as the carrier of the marijuana that he suddenly became a
suspect and so subject to apprehension. It was the fugitive nger that
triggered his arrest. The identication of the informer was the probable
cause as determined by the ocer (and not a judge) that authorized them
to pounce upon Aminnudin and immediately arrest him.

The People's contention that Wang waived his right against unreasonable search
and seizure has no factual basis. While we agree in principle that consent will
validate an otherwise illegal search, however, based on the evidence on record,
Wang resisted his arrest and the search on his person and belongings. 32 The implied
acquiescence to the search, if there was any, could not have been more than mere
passive conformity given under intimidating or coercive circumstances and is thus
considered no consent at all within the purview of the constitutional guarantee. 33
Moreover, the continuing objection to the validity of the warrantless arrest made of
record during the arraignment bolsters Wang's claim that he resisted the
warrantless arrest and search.

We cannot close this ponencia without a word of caution: those who are supposed
to enforce the law are not justied in disregarding the rights of the individual in the
name of order. Order is too high a price for the loss of liberty. As Justice Holmes once
said, "I think it is less evil that some criminals should escape than that the
government should play an ignoble part." It is simply not allowed in free society to
violate a law to enforce another, especially if the law violated is the Constitution
itself. 34

WHEREFORE, the instant petition is DENIED. HScCEa

SO ORDERED.
Puno, C.J., Sandoval-Gutierrez, Corona and Azcuna, JJ., concur.
Footnotes

1. Penned by Judge Perfecto A.S. Laguio, Jr.; Annex "A" of the petition, Rollo, pp. 41-
55.

2. RTC records, p. 2.

3. Id. at 3.

4. Id. at 4.

5. Id. at 36.

6. TSN, February 26, 1997, p. 6.

7. TSN, November 15, 1996, p. 7.

8. Id. at 11.

9. RTC records, p. 45.

10. Id. at 47-49.

11. Id. at 51-76.

12. Id. at 78-85.

13. Id. at 109-115.

14. Original Record, pp. 135-149.

15. Rollo, pp. 8-38.

16. Id. at 57.

17. Id. at 58-60.

18. Id. at 181.

19. Id. at 316-337.

20. Id. at 353.

21. G.R. No. L-31018, June 29, 1973, 51 SCRA 349.

22. G.R. No. L-72670, September 12, 1986, 144 SCRA 43.

23. G.R. No. 158157, September 30, 2005, 471 SCRA 668.

24. 441 Phil. 139 (2002).

25. G.R. No. 156067, August 11, 2004, 436 SCRA 123.
26. Malacat v. Court of Appeals , G.R. No. 123595, December 12, 1997, 283 SCRA
159.

27. People v. Claudio, G.R. No. L-72564, April 15, 1988, 160 SCRA 646.

28. Petition, p. 21; Rollo, p. 23.

29. Supra, citing the Concurring Opinion of then Justice, later Chief Justice Artemio V.
Panganiban in People v. Doria, supra.

30. People v. Binad Sy Chua , 444 Phil. 757 (2003), citing People v. Molina , G.R. No.
133917, February 19, 2001, 352 SCRA 174.

31. G.R. No. L-74869, July 6, 1988, 163 SCRA 402.

32. TSN, November 15, 1996, p. 11 and December 6, 1995, p. 24.

33. People v. Compacion, 414 Phil. 68 (2001).

34. Supra note 32, at 411.

 SECOND DIVISION

[G.R. No. 170180. November 23, 2007.]

ARSENIO VERGARA VALDEZ, petitioner, vs. PEOPLE OF THE

PHILIPPINES, respondent.

DECISION

TINGA, J :
p

The sacred right against an arrest, search or seizure without valid warrant is not
only ancient. It is also zealously safeguarded. The Constitution guarantees the right
of the people to be secure in their persons, houses, papers and eects against
unreasonable searches and seizures. 1 Any evidence obtained in violation of said
right shall be inadmissible for any purpose in any proceeding. Indeed, while the
power to search and seize may at times be necessary to the public welfare, still it
must be exercised and the law implemented without contravening the
constitutional rights of the citizens, for the enforcement of no statute is of sucient
importance to justify indifference to the basic principles of government. 2

On appeal is the Decision 3 of the Court of Appeals dated 28 July 2005, arming the
Judgment 4 of the Regional Trial Court (RTC), Branch 31, Agoo, La Union dated 31
March 2004 nding petitioner Arsenio Vergara Valdez guilty beyond reasonable
doubt of violating Section 11 of Republic Act No. 9165 (R.A. No. 9165) 5 and
sentencing him to suer the penalty of imprisonment ranging from eight (8) years
and one (1) day of prision mayor medium as minimum to fteen (15) years of
reclusion temporal medium as maximum and ordering him to pay a ne of
P350,000.00. 6

I.

On 26 June 2003, petitioner was charged with violation of Section 11, par. 2 (2) of
R.A. No. 9165 in an Information 7 which reads:

That on or about the 17th day of March 2003, in the Municipality of Aringay,
Province of La Union, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, did then and there willfully, unlawfully and
feloniously have in his possession, control and custody dried marijuana
leaves wrapped in a cellophane and newspaper page, weighing more or less
twenty-ve (25) grams, without rst securing the necessary permit, license
or prescription from the proper government agency.

CONTRARY TO LAW. 8

On arraignment, petitioner pleaded not guilty. Thereafter, trial on the merits

ensued with the prosecution presenting the three (3) barangay tanods of San
Benito Norte, Aringay, La Union namely, Rogelio Bautista (Bautista), Nestor Aratas
(Aratas) and Eduardo Ordoo (Ordoo), who arrested petitioner. aEHIDT

Bautista testied that at around 8:00 to 8:30 p.m. of 17 March 2003, he was
conducting the routine patrol along the National Highway in Barangay San Benito
Norte, Aringay, La Union together with Aratas and Ordoo when they noticed
petitioner, lugging a bag, alight from a mini-bus. The tanods observed that
petitioner, who appeared suspicious to them, seemed to be looking for something.
They thus approached him but the latter purportedly attempted to run away. They
chased him, put him under arrest and thereafter brought him to the house of
Barangay Captain Orencio Mercado (Mercado) where he, as averred by Bautista,
was ordered by Mercado to open his bag. Petitioner's bag allegedly contained a pair
of denim pants, eighteen pieces of eggplant and dried marijuana leaves wrapped in
newspaper and cellophane. It was then that petitioner was taken to the police
station for further investigation. 9

Aratas and Ordoo corroborated Bautista's testimony on most material points. On

cross-examination, however, Aratas admitted that he himself brought out the
contents of petitioner's bag before petitioner was taken to the house of Mercado. 10
Nonetheless, he claimed that at Mercado's house, it was petitioner himself who
brought out the contents of his bag upon orders from Mercado. For his part, Ordoo
testied that it was he who was ordered by Mercado to open petitioner's bag and
that it was then that they saw the purported contents thereof. 11

The prosecution likewise presented Police Inspector Valeriano Laya II (Laya), the
forensic chemist who conducted the examination of the marijuana allegedly
conscated from petitioner. Laya maintained that the specimen submitted to him
for analysis, a sachet of the substance weighing 23.10 grams and contained in a
plastic bag, tested positive of marijuana. He disclosed on cross-examination,
however, that he had knowledge neither of how the marijuana was taken from
petitioner nor of how the said substance reached the police ocers. Moreover, he
could not identify whose marking was on the inside of the cellophane wrapping the
marijuana leaves. 12

The charges were denied by petitioner. As the defense's sole witness, he testied
that at around 8:30 p.m. on 17 March 2003, he arrived in Aringay from his place in
Curro-oy, Santol, La Union. After alighting from the bus, petitioner claimed that he
went to the house of a friend to drink water and then proceeded to walk to his
brother's house. As he was walking, prosecution witness Ordoo, a cousin of his
brother's wife, allegedly approached him and asked where he was going. Petitioner
replied that he was going to his brother's house. Ordoo then purportedly requested
to see the contents of his bag and appellant acceded. It was at this point that
Bautista and Aratas joined them. After inspecting all the contents of his bag,
petitioner testied that he was restrained by the tanod and taken to the house of
Mercado. It was Aratas who carried the bag until they reached their destination. 13

Petitioner maintained that at Mercado's house, his bag was opened by the tanod
and Mercado himself. They took out an item wrapped in newspaper, which later
turned out to be marijuana leaves. Petitioner denied ownership thereof. He claimed
to have been threatened with imprisonment by his arrestors if he did not give the
prohibited drugs to someone from the east in order for them to apprehend such
person. As petitioner declined, he was brought to the police station and charged
with the instant oense. Although petitioner divulged that it was he who opened
and took out the contents of his bag at his friend's house, he averred that it was one
of the tanod who did so at Mercado's house and that it was only there that they saw
the marijuana for the first time. 14

Finding that the prosecution had proven petitioner's guilt beyond reasonable doubt,
the RTC rendered judgment against him and sentenced him to suer indeterminate
imprisonment ranging from eight (8) years and one (1) day of prision mayor
medium as minimum to fteen (15) years of reclusion temporal medium as
maximum and ordered him to pay a fine of P350,000.00. 15 HAaDcS

Aggrieved, petitioner appealed the decision of the RTC to the Court of Appeals. On
28 July 2005, the appellate court armed the challenged decision. The Court of
Appeals, nding no cogent reason to overturn the presumption of regularity in favor
of the barangay tanod in the absence of evidence of ill-motive on their part, agreed
with the trial court that there was probable cause to arrest petitioner. It observed
further:

That the prosecution failed to establish the chain of custody of the seized
marijuana is of no moment. Such circumstance nds prominence only when
the existence of the seized prohibited drugs is denied. In this case, accused-
appellant himself testied that the marijuana wrapped in a newspaper was
taken from his bag. The corpus delicti of the crime, i.e.[,] the existence of
the marijuana and his possession thereof, was amply proven by accused-
appellant Valdez's own testimony. 16

In this appeal, petitioner prays for his acquittal and asserts that his guilt of the
crime charged had not been proven beyond reasonable doubt. He argues, albeit for
the rst time on appeal, that the warrantless arrest eected against him by the
barangay tanod was unlawful and that the warrantless search of his bag that
followed was likewise contrary to law. Consequently, he maintains, the marijuana
leaves purportedly seized from him are inadmissible in evidence for being the fruit
of a poisonous tree.

Well-settled is the rule that the ndings of the trial court on the credibility of
witnesses and their testimonies are accorded great respect and weight, in the
absence of any clear showing that some facts and circumstances of weight or
substance which could have aected the result of the case have been overlooked,
misunderstood or misapplied. 17

After meticulous examination of the records and evidence on hand, however, the
Court nds and so holds that a reversal of the decision a quo under review is in
order.
 II.

At the outset, we observe that nowhere in the records can we nd any objection by
petitioner to the irregularity of his arrest before his arraignment. Considering this
and his active participation in the trial of the case, jurisprudence dictates that
petitioner is deemed to have submitted to the jurisdiction of the trial court, thereby
curing any defect in his arrest. The legality of an arrest aects only the jurisdiction
of the court over his person. 18 Petitioner's warrantless arrest therefore cannot, in
itself, be the basis of his acquittal.

However, to determine the admissibility of the seized drugs in evidence, it is

indispensable to ascertain whether or not the search which yielded the alleged
contraband was lawful. The search, conducted as it was without a warrant, is
justied only if it were incidental to a lawful arrest. 19 Evaluating the evidence on
record in its totality, as earlier intimated, the reasonable conclusion is that the
arrest of petitioner without a warrant is not lawful as well.

Petitioner maintains, in a nutshell, that after he was approached by the tanod and
asked to show the contents of his bag, he was simply herded without explanation
and taken to the house of the barangay captain. On their way there, it was Aratas
who carried his bag. He denies ownership over the contraband allegedly found in his
bag and asserts that he saw it for the first time at the barangay captain's house.

Even casting aside petitioner's version and basing the resolution of this case on the
general thrust of the prosecution evidence, the unlawfulness of petitioner's arrest
stands out just the same.

Section 5, Rule 113 of the Rules on Criminal Procedure provides the only occasions
on which a person may be arrested without a warrant, to wit:

Section 5. Arrest without warrant; when lawful. A peace ocer or a

private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has

committed, is actually committing, or is attempting to commit an
offense;

(b) When an oense has just been committed and he has

probable cause to believe based on personal knowledge of facts
or circumstances that the person to be arrested has committed
it; and

(c) When the person to be arrested is a prisoner who has escaped

from a penal establishment or place where he is serving nal
judgment or temporarily conned while his case is pending, or
has escaped while being transferred from one connement to
another.

xxx xxx xxx

It is obvious that based on the testimonies of the arresting barangay tanod, not one
of these circumstances was obtaining at the time petitioner was arrested. By their
own admission, petitioner was not committing an oense at the time he alighted
from the bus, nor did he appear to be then committing an oense. 20 The tanod did
not have probable cause either to justify petitioner's warrantless arrest. cHaICD

For the exception in Section 5 (a), Rule 113 to operate, this Court has ruled that
two (2) elements must be present: (1) the person to be arrested must execute an
overt act indicating that he has just committed, is actually committing, or is
attempting to commit a crime; and (2) such overt act is done in the presence or
within the view of the arresting ocer. 21 Here, petitioner's act of looking around
after getting o the bus was but natural as he was nding his way to his
destination. That he purportedly attempted to run away as the tanod approached
him is irrelevant and cannot by itself be construed as adequate to charge the tanod
with personal knowledge that petitioner had just engaged in, was actually engaging
in or was attempting to engage in criminal activity. More importantly, petitioner
testied that he did not run away but in fact spoke with the barangay tanod when
they approached him.

Even taking the prosecution's version generally as the truth, in line with our
assumption from the start, the conclusion will not be any dierent. It is not
unreasonable to expect that petitioner, walking the street at night, after being
closely observed and then later tailed by three unknown persons, would attempt to
ee at their approach. Flight per se is not synonymous with guilt and must not
always be attributed to one's consciousness of guilt. 22 Of persuasion was the
Michigan Supreme Court when it ruled in People v. Shabaz 23 that "[f]light alone is
not a reliable indicator of guilt without other circumstances because ight alone is
inherently ambiguous." Alone, and under the circumstances of this case, petitioner's
ight lends itself just as easily to an innocent explanation as it does to a nefarious
one.

Moreover, as we pointed out in People v. Tudtud, 24 "[t]he phrase 'in his presence'
therein, connot[es] penal knowledge on the part of the arresting ocer. The right of
the accused to be secure against any unreasonable searches on and seizure of his
own body and any deprivation of his liberty being a most basic and fundamental
one, the statute or rule that allows exception to the requirement of a warrant of
arrest is strictly construed. Its application cannot be extended beyond the cases
specifically provided by law." 25

Indeed, the supposed acts of petitioner, even assuming that they appeared dubious,
cannot be viewed as sucient to incite suspicion of criminal activity enough to
validate his warrantless arrest. 26 If at all, the search most permissible for the tanod
to conduct under the prevailing backdrop of the case was a stop-and-frisk to allay
any suspicion they have been harboring based on petitioner's behavior. However, a
stop-and-frisk situation, following Terry v. Ohio , 27 must precede a warrantless
arrest, be limited to the person's outer clothing, and should be grounded upon a
genuine reason, in light of the police ocer's experience and surrounding
conditions, to warrant the belief that the person detained has weapons concealed
about him. 28

Accordingly, petitioner's waiver of his right to question his arrest notwithstanding,

the marijuana leaves allegedly taken during the search cannot be admitted in
evidence against him as they were seized during a warrantless search which was
not lawful. 29 As we pronounced in People v. Bacla-an

A waiver of an illegal warrantless arrest does not also mean a

waiver of the inadmissibility of evidence seized during an illegal
warrantless arrest. The following searches and seizures are deemed
permissible by jurisprudence: (1) search of moving vehicles (2) seizure in
plain view (3) customs searches (4) waiver or consent searches (5) stop
and frisk situations (Terry Search) and (6) search incidental to a lawful
arrest. The last includes a valid warrantless search and seizure pursuant to
an equally valid warrantless arrest, for, while as a rule, an arrest is
considered legitimate if eected with a valid warrant of arrest, the Rules of
Court recognize permissible warrantless arrests, to wit: (1) arrests in
agrante delicto, (2) arrests eected in hot pursuit, and, (3) arrests of
escaped prisoners. 30 HTCIcE

When petitioner was arrested without a warrant, he was neither caught in flagrante
delicto committing a crime nor was the arrest eected in hot pursuit. Verily, it
cannot therefore be reasonably argued that the warrantless search conducted on
petitioner was incidental to a lawful arrest.

In its Comment, the Oce of the Solicitor General posits that apart from the
warrantless search being incidental to his lawful arrest, petitioner had consented to
the search. We are not convinced. As we explained in Caballes v. Court of Appeals 31

Doubtless, the constitutional immunity against unreasonable searches and

seizures is a personal right which may be waived. The consent must be
voluntary in order to validate an otherwise illegal detention and
search, i.e., the consent is unequivocal, specic, and intelligently
given, uncontaminated by any duress or coercion. Hence, consent to
a search is not to be lightly inferred, but must be shown by clear and
convincing evidence. The question whether a consent to a search was in
fact voluntary is a question of fact to be determined from the totality of all
the circumstances. Relevant to this determination are the following
characteristics of the person giving consent and the environment in which
consent is given: (1) the age of the defendant; (2) whether he was in a
public or secluded location; (3) whether he objected to the search or
passively looked on; (4) the education and intelligence of the defendant; (5)
the presence of coercive police procedures; (6) the defendant's belief that
no incriminating evidence will be found; (7) the nature of the police
questioning; (8) the environment in which the questioning took place; and
(9) the possibly vulnerable subjective state of the person consenting. It is
the State which has the burden of proving, by clear and positive testimony,
that the necessary consent was obtained and that it was freely and
voluntarily given. 32
In the case at bar, following the theory of the prosecution albeit based on
conicting testimonies on when petitioner's bag was actually opened, it is apparent
that petitioner was already under the coercive control of the public ocials who had
custody of him when the search of his bag was demanded. Moreover, the
prosecution failed to prove any specic statement as to how the consent was asked
and how it was given, nor the specic words spoken by petitioner indicating his
alleged "consent." Even granting that petitioner admitted to opening his bag when
Ordoo asked to see its contents, his implied acquiescence, if at all, could not have
been more than mere passive conformity given under coercive or intimidating
circumstances and hence, is considered no consent at all within the contemplation
of the constitutional guarantee. 33 As a result, petitioner's lack of objection to the
search and seizure is not tantamount to a waiver of his constitutional right or a
voluntary submission to the warrantless search and seizure. 34

III.

Notably, the inadmissibility in evidence of the seized marijuana leaves for being the
fruit of an unlawful search is not the lone cause that militates against the case of
the prosecution. We likewise nd that it has failed to convincingly establish the
identity of the marijuana leaves purportedly taken from petitioner's bag.

In all prosecutions for violation of the Dangerous Drugs Act, the following elements
must concur: (1) proof that the transaction took place; and (2) presentation in court
of the corpus delicti or the illicit drug as evidence. 35 The existence of dangerous
drugs is a condition sine qua non for conviction for the illegal sale of dangerous
drugs, it being the very corpus delicti of the crime. 36 EHaASD

In a line of cases, we have ruled as fatal to the prosecution's case its failure to prove
that the specimen submitted for laboratory examination was the same one
allegedly seized from the accused. 37 There can be no crime of illegal possession of a
prohibited drug when nagging doubts persist on whether the item conscated was
the same specimen examined and established to be the prohibited drug. 38 As we
discussed in People v. Orteza , 39 where we deemed the prosecution to have failed in
establishing all the elements necessary for conviction of appellant for illegal sale of
shabu

First, there appears nothing in the record showing that police ocers
complied with the proper procedure in the custody of seized drugs as
specified in People v. Lim, i.e., any apprehending team having initial control of
said drugs and/or paraphernalia should, immediately after seizure or
conscation, have the same physically inventoried and photographed in the
presence of the accused, if there be any, and or his representative, who
shall be required to sign the copies of the inventory and be given a copy
thereof. The failure of the agents to comply with the requirement raises
doubt whether what was submitted for laboratory examination and
presented in court was actually recovered from appellant. It negates the
presumption that ocial duties have been regularly performed by the police
 officers.

In People v. Laxa , where the buy-bust team failed to mark the conscated
marijuana immediately after the apprehension of the accused, the Court held
that the deviation from the standard procedure in anti-narcotics operations
produced doubts as to the origins of the marijuana. Consequently, the Court
concluded that the prosecution failed to establish the identity of the corpus
delicti.

The Court made a similar ruling in People v. Kimura , where the Narcom
operatives failed to place markings on the seized marijuana at the time the
accused was arrested and to observe the procedure and take custody of
the drug.

More recently, in Zarraga v. People , the Court held that the material
inconsistencies with regard to when and where the markings on the shabu
were made and the lack of inventory on the seized drugs created reasonable
doubt as to the identity of the corpus delicti. The Court thus acquitted the
accused due to the prosecution's failure to indubitably show the identity of
the shabu.

In the case at bar, after the arrest of petitioner by the barangay tanod, the records
only show that he was taken to the house of the barangay captain and thereafter to
the police station. The Joint Adavit 40 executed by the tanod merely states that
they conscated the marijuana leaves which they brought to the police station
together with petitioner. Likewise, the Receipt 41 issued by the Aringay Police
Station merely acknowledged receipt of the suspected drugs supposedly conscated
from petitioner.

Not only did the three t an od contradict each other on the matter of when
petitioner's bag was opened, they also gave conicting testimony on who actually
opened the same. The prosecution, despite these material inconsistencies, neglected
to explain the discrepancies. Even more damning to its cause was the admission by
Laya, the forensic chemist, that he did not know how the specimen was taken from
petitioner, how it reached the police authorities or whose marking was on the
cellophane wrapping of the marijuana. The non-presentation, without justiable
reason, of the police officers who conducted the inquest proceedings and marked the
seized drugs, if such was the case, is fatal to the case. Plainly, the prosecution
neglected to establish the crucial link in the chain of custody of the seized marijuana
leaves from the time they were rst allegedly discovered until they were brought
for examination by Laya. TcHCDI

The Court of Appeals found as irrelevant the failure of the prosecution to establish
the chain of custody over the seized marijuana as such "[f]inds prominence only
when the existence of the seized prohibited drug is denied." 42 We cannot agree.

To buttress its ratiocination, the appellate court narrowed on petitioner's testimony

that the marijuana was taken from his bag, without taking the statement in full
context. 43 Contrary to the Court of Appeals' ndings, although petitioner testied
that the marijuana was taken from his bag, he consistently denied ownership
thereof. 44 Furthermore, it dees logic to require a denial of ownership of the seized
drugs before the principle of chain of custody comes into play.

The onus of proving culpability in criminal indictment falls upon the State. In
conjunction with this, law enforcers and public ocers alike have the corollary duty
to preserve the chain of custody over the seized drugs. The chain of evidence is
constructed by proper exhibit handling, storage, labeling and recording, and must
exist from the time the evidence is found until the time it is oered in evidence.
Each person who takes possession of the specimen is duty-bound to detail how it
was cared for, safeguarded and preserved while in his or her control to prevent
alteration or replacement while in custody. This guarantee of the integrity of the
evidence to be used against an accused goes to the very heart of his fundamental
rights.

The presumption of regularity in the performance of ocial duty invoked by the

prosecution and relied upon by the courts a quo cannot by itself overcome the
presumption of innocence nor constitute proof of guilt beyond reasonable doubt. 45
Among the constitutional rights enjoyed by an accused, the most primordial yet
often disregarded is the presumption of innocence. This elementary principle accords
every accused the right to be presumed innocent until the contrary is proven
beyond reasonable doubt. Thus, the burden of proving the guilt of the accused rests
upon the prosecution. STaAcC

Concededly, the evidence of the defense is weak and uncorroborated. Nevertheless,

this "[c]annot be used to advance the cause of the prosecution as its evidence must
stand or fall on its own weight and cannot be allowed to draw strength from the
weakness of the defense." 46 Moreover, where the circumstances are shown to yield
two or more inferences, one inconsistent with the presumption of innocence and
the other compatible with the nding of guilt, the court must acquit the accused for
the reason that the evidence does not satisfy the test of moral certainty and is
inadequate to support a judgment of conviction. 47

Drug addiction has been invariably denounced as "an especially vicious crime," 48
and "one of the most pernicious evils that has ever crept into our society," 49 for
those who become addicted to it "not only slide into the ranks of the living dead,
what is worse, they become a grave menace to the safety of law-abiding members
of society," 50 whereas "peddlers of drugs are actually agents of destruction." 51
Indeed, the havoc created by the ruinous eects of prohibited drugs on the moral
ber of society cannot be underscored enough. However, in the rightfully vigorous
campaign of the government to eradicate the hazards of drug use and drug
tracking, it cannot be permitted to run roughshod over an accused's right to be
presumed innocent until proven to the contrary and neither can it shirk from its
corollary obligation to establish such guilt beyond reasonable doubt.

In this case, the totality of the evidence presented utterly fails to overcome the
presumption of innocence which petitioner enjoys. The failure of the prosecution to
prove all the elements of the oense beyond reasonable doubt must perforce result
in petitioner's exoneration from criminal liability.
 IV.

A nal word. We nd it tting to take this occasion to remind the courts to exercise
the highest degree of diligence and prudence in deliberating upon the guilt of
accused persons brought before them, especially in light of the fundamental rights
at stake. Here, we note that the courts a quo neglected to give more serious
consideration to certain material issues in the determination of the merits of the
case. We are not oblivious to the fact that in some instances, law enforcers resort to
the practice of planting evidence to extract information or even harass civilians.
Accordingly, courts are duty-bound to be "[e]xtra vigilant in trying drug cases lest an
innocent person be made to suer the unusually severe penalties for drug oenses."
52 In the same vein, let this serve as an admonition to police ocers and public
ocials alike to perform their mandated duties with commitment to the highest
degree of diligence, righteousness and respect for the law.

WHEREFORE, the assailed Decision is REVERSED and SET ASIDE. Petitioner Arsenio
Vergara Valdez is ACQUITTED on reasonable doubt. The Director of the Bureau of
Corrections is directed to cause the immediate release of petitioner, unless the
latter is being lawfully held for another cause; and to inform the Court of the date of
his release, or the reasons for his continued connement, within ten (10) days from
notice. No costs.

SO ORDERED.

Quisumbing, Carpio, Carpio-Morales and Velasco, Jr., JJ., concur.

Footnotes

1. 1987 CONST., Art. III, Sec. 2.

2. People v. Aruta, 351 Phil. 868 (1998).

3. Rollo, pp. 76-89. Penned by Associate Justice Remedios A. Salazar-Fernando, and

concurred in by Associate Justices Rosmari D. Carandang and Monina Arevalo-
Zenarosa.

4. Id. at pp. 28-45. Penned by Executive Judge Clifton U. Ganaya.

5. Entitled Dangerous Drugs Act of 2002.

6. Id. at 44-45.

7. Records, p. 1.

8. Id.

9. TSN, 24 February 2004, pp. 3-5, 7, 11-12. See also Records, p. 2.

10. TSN, 3 March 2004, p. 11.

11. Id. at 16.

12. TSN, 16 March 2004, pp. 4-7.

13. TSN, 17 March 2004, pp. 3-9.

14. Id. at 10-12, 16-17.

15. Rollo, pp. 44-45.

16. Id. at 87.

17. People v. Bacla-an , 445 Phil. 729, 746 (2003), citing People v. Mendoza , 327
SCRA 695 (2000). See also People v. Sevilla, 394 Phil. 125 (2000).

18. See People v. Bacla-an , 445 Phil. 445 Phil. 729, 748 (2003) citing People v.
Lagarto, 326 SCRA 693 (2000) and People v. Nitcha , 240 SCRA 283 (1995). See
also People v. Kimura, G.R. No. 130805, 27 April 2004, 428 SCRA 51.

19. People v. Sarap, 447 Phil. 642 (2003).

20. TSN, 24 February 2004, p. 11; TSN, 3 March 2004, pp. 9, 19.

21. People v. Tudtud, 458 Phil. 752, 775 (2003), citing People v. Chua , G.R. Nos.
136066-67, 4 February 2003, 396 SCRA 657.

22. People v. Lopez , 371 Phil. 852, 862 (1999), citing People v. Bawar , 262 SCRA
325. ADSIaT

23. 424 Mich. 42, 378 N.W. 2d 451 (1985).

24. 458 Phil. 752 (2003).

25. Id. at 777.

26. See People v. Mengote, G.R. No. 87059, 22 June 1992, 210 SCRA 174.

27. 392 U.S. 1, 20 L. Ed. 2nd 889 [1968].

28. See People v. Chua, 444 Phil. 757 (2003).

29. See People v. Bacla-an, supra note 16, citing People v. Chua Ho San , 308 SCRA
42 (1999).

30. Id. at 748-749.

31. 424 Phil. 263 (2002).

32. Id. at 286.

33. People v. Tudtud, 458 Phil. 752, 788 (2003), citing People v. Compacion, 414 Phil.
68 (2001).

34. Id.
35. People v. Hajili, 447 Phil. 283, 295 (2003).

36. People v. Almeida, 463 Phil. 637, 648 (2003), citing People v. Mendiola , 235 SCRA
116 (1994). See also People v. Kimura , G.R. No. 130805, 27 April 2004, 428 SCRA
51, 61, citing People v. Mendiola, supra, People v. Macuto , 176 SCRA 762 (1989),
People v. Vocente , 188 SCRA 100 (1990) and People v. Mariano , 191 SCRA 136
(1990).

37. See People v. Mapa , G.R. No. 91014, 31 March 1993, 220 SCRA 670 (1993),
People v. Dismuke , G.R. No. 108453, 11 July 1994, 234 SCRA 51, People v.
Casimiro, 383 SCRA 400 (2002), People v. Pedronan , 452 Phil. 226 (2003), People
v. Kimura, G.R. No. 130805, 27 April 2004, 428 SCRA 51, People v. Ong , G.R. No.
137348, 21 June 2004, 432 SCRA 470.

38. See People v. Ong, supra at 488.

39. G.R. No. 173051, 31 July 2007.

40. Records, p. 2.

41. Id. at 5.

42. Rollo, p. 87.

43. Id.

44. TSN, 17 March 2004, pp. 11-13.

45. People v. Sevilla , 394 Phil. 125, 158 (2000), citing People v. Pagaura , 267 SCRA
17 (1997), People v. De los Santos , 314 SCRA 303 (1999).

46. People v. Santos , G.R. No. 175593, 17 October 2007, citing People v. Samson ,
421 Phil. 104 (2001).

47. People v. Sapal, 385 Phil. 109, 126 (2000), citing People v. Delos Santos , G.R. No.
126998, 14 September 1999 and People v. Fider, 223 SCRA 117 (1993).

48. Oce of the Court Administrator v. Librado , 329 Phil. 432, 435 (1996), citing
People v. Nario, 224 SCRA 647 (1993).

49. Id. citing People v. Policarpio, 158 SCRA 85 (1988).

50. Id. at 436, citing People v. Bati , 189 SCRA 95 (1990), citing People v. Lamug , 172
SCRA 349 (1989).

51. Id. citing People v. Policarpio, supra.

52. People v. Sevilla , 394 Phil. 125, 159 (2000), citing People v. Pagaura supra . See
also People v. Sapal, supra.
 EN BANC

[G.R. No. 101837. February 11, 1992.]

ROLITO GO y TAMBUNTING, petitioner, vs. THE COURT OF

APPEALS; THE HON. BENJAMIN V. PELAYO, Presiding Judge,
Branch 168, Regional Trial Court, NCJR Pasig, M.M.; and
PEOPLE OF THE PHILIPPINES, respondents.

SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; WARRANTLESS ARREST UNDER

SEC. 5, RULE 113, NOT APPLICABLE IN CASE AT BAR. We do not believe that the
warrantless "arrest" or detention of petitioner in the instant case falls within the
terms of Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure which
provides as follows: "Sec. 5. Arrest without warrant; when lawful. A peace ocer
or a private person may, without a warrant, arrest a person: (a) When, in his
presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an oense; (b) When an oense has in fact just been
committed, and he has personal knowledge of facts indicating that the person to be
arrested has committed it; and (c) When the person to be arrested is a prisoner who
has escaped from a penal establishment or place where he is serving nal judgment
or temporarily conned while his case is pending, or has escaped while being
transferred from one connement to another. In cases falling under paragraphs (a)
and (b) hereof, the person arrested without a warrant shall be forthwith delivered
to the nearest police station or jail, and he shall be proceeded against in accordance
with Rule 112, Section 7." Petitioner's "arrest" took place six (6) days after the
shooting of Maguan. The arresting ocers obviously were not present, within the
meaning of Section 5(a), at the time petitioner had allegedly shot Maguan. Neither
could the "arrest" eected six (6) days after the shooting be reasonably regarded as
eected "when [the shooting had] in fact just been committed" within the meaning
of Section 5 (b). Moreover, none of the "arresting" ocers had any "personal
knowledge" of facts indicating that petitioner was the gunman who had shot
Maguan. The information upon which the police acted had been derived from
statements made by alleged eyewitnesses to the shooting -- one stated that
petitioner was the gunman; another was able to take down the alleged gunman's
car's plate number which turned out to be registered in petitioner's wife's name.
That information did not, however, constitute "personal knowledge." It is thus clear
to the Court that there was no lawful warrantless arrest of petitioner within the
meaning of Section 5 of Rule 113.

2. ID.; ID.; ID.; ACCUSED ENTITLED TO A PRELIMINARY INVESTIGATION

WITHOUT ANY CONDITIONS. Petitioner was not arrested at all. When he walked
into the San Juan Police Station, accompanied by two (2) lawyers, he in fact placed
himself at the disposal of the police authorities. He did not state that he was
"surrendering" himself, in all probability to avoid the implication he was admitting
that he had slain Eldon Maguan or that he was otherwise guilty of a crime. When
the police led a complaint for frustrated homicide with the Prosecutor, the latter
should have immediately scheduled a preliminary investigation to determine
whether there was probable cause for charging petitioner in court for the killing of
Eldon Maguan. Instead, as noted earlier, the Prosecutor proceeded under the
erroneous supposition that Section 7 of Rule 112 was applicable and required
petitioner to waive the provisions of Article 125 of the Revised Penal Code as a
condition for carrying out a preliminary investigation. This was substantive error, for
petitioner was entitled to a preliminary investigation and that right should have
been accorded him without any conditions. Moreover, since petitioner had not been
arrested, with or without a warrant, he was also entitled to be released forthwith
subject only to his appearing at the preliminary investigation.

3. ID.; ID.; ID.; RIGHT TO PRELIMINARY INVESTIGATION; NO WAIVER THEREOF

MADE IN CASE AT BAR. Turning to the second issue of whether or not petitioner
had waived his right to preliminary investigation, we note that petitioner had from
the very beginning demanded that a preliminary investigation be conducted. As
earlier pointed out, on the same day that the information for murder was led with
the Regional Trial Court, petitioner led with the Prosecutor an omnibus motion for
immediate release and preliminary investigation. The Solicitor General contends
that that omnibus motion should have been led with the trial court and not with
the Prosecutor, and that petitioner should accordingly be held to have waived his
right to preliminary investigation. We do not believe that waiver of petitioner's
statutory right to preliminary investigation may be predicated on such a slim basis.
The preliminary investigation was to be conducted by the Prosecutor, not by the
Regional Trial Court. It is true that at the time of ling of petitioner's omnibus
motion, the information for murder had already been led with the Regional Trial
Court: it is not clear from the record whether petitioner was aware of this fact at
the time his omnibus motion was actually led with the Prosecutor. Nonetheless,
since petitioner in his omnibus motion was asking for preliminary investigation and
not for a re-investigation and since the Prosecutor himself did le with the trial
court, on the 5th day after ling the information for murder, a motion for leave to
conduct preliminary investigation (attaching to his motion a copy of petitioner's
omnibus motion), we conclude that petitioner's omnibus motion was in eect led
with the trial court. What was crystal clear was that petitioner did ask for a
preliminary investigation on the very day that the information was led without
such preliminary investigation, and that the trial court was ve (5) days later
apprised of the desire of the petitioner for such preliminary investigation. Finally,
the trial court did in fact grant the Prosecutor's prayer for leave to conduct
preliminary investigation. Thus, even on the (mistaken) supposition apparently
made by the Prosecutor that Section 7 of Rule 112 of the Revised Court was
applicable, the 5-day reglementary period in Section 7, Rule 112 must be held to
have been substantially complied with. We believe and so hold that petitioner did
not waive his right to a preliminary investigation. The rule is that the right to
preliminary investigation is waived when the accused fails to invoke it before or at
the time of entering a plea at arraignment. In the instant case, petitioner Go had
vigorously insisted on his right to preliminary investigation before his arraignment.
We do not believe that by posting bail, petitioner had waived his right to
preliminary investigation. Petitioner Go asked for release on recognizance or on bail
and for preliminary investigation in one omnibus motion. He had thus claimed his
right to preliminary investigation before respondent Judge approved the cash bond
posted by petitioner and ordered his release on 12 July 1991. Accordingly, we
cannot reasonably imply waiver of preliminary investigation on the part of
petitioner. In fact, when the Prosecutor led a motion in court asking for leave to
conduct preliminary investigation, he clearly if impliedly recognized that petitioner's
claim to preliminary investigation was a legitimate one.

4. ID.; ID.; ID.; ID.; A SUBSTANTIVE RIGHT AND A COMPONENT PART OF DUE
PROCESS. While the right to a preliminary investigation is statutory rather than
constitutional in its fundament, since it has in fact been established by statute, it is
a component part of due process in criminal justice. The right to have a preliminary
investigation conducted before being bound over to trial for a criminal oense and
hence formally at risk of incarceration or some other penalty, is not a mere formal
or technical right; it is a substantive right. The accused in a criminal trial is
inevitably exposed to prolonged anxiety, aggravation, humiliation, not to speak of
expense; the right to an opportunity to avoid a process painful to any one save,
perhaps, to hardened criminals, is a valuable right. To deny petitioner's claim to a
preliminary investigation would be to deprive him of the full measure of his right to
due process.

5. ID.; ID.; FAILURE TO ACCORD PRELIMINARY INVESTIGATION DOES NOT

IMPAIR VALIDITY OF INFORMATION FILED. Contrary to petitioner's contention the
failure to accord preliminary investigation, while constituting a denial of the
appropriate and full measure of the statutory process of criminal justice, did not
impair the validity of the information for murder nor aect the jurisdiction of the
trial court.

6. ID.; ID.; ACCUSED ENTITLED TO PRELIMINARY INVESTIGATION EVEN

THOUGH TRIAL ON THE MERITS HAS ALREADY BEGAN. We consider that
petitioner remains entitled to a preliminary investigation although trial on the
merits has already began. Trial on the merits should be suspended or held in
abeyance and a preliminary investigation forthwith accorded to petitioner. The
constitutional point is that petitioner was not accorded what he was entitled to by
way of procedural due process. Petitioner was forced to undergo arraignment and
literally pushed to trial without preliminary investigation, with extraordinary haste,
to the applause from the audience that lled the courtroom. If he submitted to
arraignment and trial, petitioner did so "kicking and screaming," in a manner of
speaking. During the proceedings held before the trial court on 23 August 1991, the
date set for arraignment of petitioner, and just before arraignment, counsel made
very clear petitioner's vigorous protest and objection to the arraignment precisely
because of the denial of preliminary investigation.

7. ID.; ID.; ACCUSED ENTITLED TO BE RELEASED ON BAIL AS A MATTER OF

RIGHT. In respect of the matter of bail, petitioner remains entitled to be released
on bail as a matter of right. Should the evidence already of record concerning
petitioner's guilt be, in the reasonable belief of the Prosecutor, strong, the
Prosecutor may move in the trial court for cancellation of petitioner's bail. It would
then be up to the trial court, after a careful and objective assessment of the
evidence on record, to grant or deny the motion for cancellation of bail. It must also
be recalled that the Prosecutor had actually agreed that petitioner was entitled to
bail. This was equivalent to an acknowledgment on the part of the Prosecutor that
the evidence of guilt then in his hands was not strong. Accordingly, we consider that
the 17 July 1991 order of respondent Judge recalling his own order granting bail and
requiring petitioner to surrender himself within forty-eight (48) hours from notice,
was plainly arbitrary considering that no evidence at all and certainly no new or
additional evidence had been submitted to respondent Judge that could have
justified the recall of his order issued just five (5) days before.

8. ID.; ID.; RELIANCE ON THE CASE OF UMIL v. RAMOS, MISPLACED; OFFENSE

COMMITTED NOT CONSIDERED A "CONTINUING CRIME." The reliance of both
petitioner and the Solicitor General upon Umil v. Ramos (G.R. No. 81567,
promulgated 3 October 1991) is, in the circumstances of this case, misplaced. In
Umil v. Ramos, by an eight-to-six vote, the Court sustained the legality of the
warrantless arrests of petitioners made from one (1) to fourteen (14) days after the
actual commission of the oenses, upon the ground that such oenses constituted
"continuing crimes." Those oenses were subversion, membership in an outlawed
organization like the New Peoples Army, etc. In the instant case, the oense for
which petitioner was arrested was murder, an oense which was obviously
commenced and completed at one denite location in time and space. No one had
pretended that the fatal shooting of Maguan was a "continuing crime."

9. CONSTITUTIONAL LAW; STATE SHOULD REAFFIRM ITS OBLIGATION TO

RESPECT THE RIGHTS AND LIBERTIES OF ITS CONSTITUENTS; TO ACCORD AN
ACCUSED HIS RIGHT TO A PRELIMINARY INVESTIGATION AND TO BAIL IN CASE AT
BAR, NOT AN IDLE CEREMONY. To reach any other conclusion here, that is, to
hold that petitioner's rights to a preliminary investigation and to bail were
eectively obliterated by evidence subsequently admitted into the record would be
to legitimize the deprivation of due process and to permit the Government to
benet from its own wrong or culpable omission and eectively to dilute important
rights of accused persons well-nigh to the vanishing point. It may be that to require
the State to accord petitioner his rights to a preliminary investigation and to bail at
this point, could turn out ultimately to be largely a ceremonial exercise. But the
Court is not compelled to speculate. And, in any case, it would not be idle ceremony;
rather it would be a celebration by the State of the rights and liberties of its own
people and a re-armation of its obligation and determination to respect those
rights and liberties.

CRUZ, J., concurring:

1. REMEDIAL LAW; CRIMINAL PROCEDURE; STATUTORY RIGHTS OF ACCUSED

TO PROCEDURAL DUE PROCESS VITIATED IN CASE AT BAR. Petitioner had from
the start demanded a preliminary investigation and that his counsel has reluctantly
participated in the trial only because the court threatened to replace him with a
counsel de oficio if he did not. Under these circumstances, I am convinced that there
was no waiver. The petitioner was virtually compelled to go to trial. Such
compulsion and the unjustied denial of a clear statutory right of the petitioner
vitiated the proceedings as violative of procedural due process.

GUTIERREZ, JR., J., concurring:

1. JUDICIAL ETHICS; COURTS; IMPORTANCE OF FOLLOWING THE RULES

EMPHASIZED. The need for a trial court to follow the Rules and to be fair,
impartial, and persistent in getting the true facts of a case is present in all cases but
it is particularly important if the accused is indigent; more so, if he is one of those
unfortunates who seem to spend more time behind bars than outside. Unlike the
accused in this case who enjoys the assistance of competent counsel, a poor
defendant convicted by wide and unfavorable media coverage may be presumed
guilty before trial and be unable to defend himself properly. Hence, the importance
of the court always following the Rules.

GRIO-AQUINO, J., dissenting:

1. REMEDIAL LAW; CRIMINAL PROCEDURE; PRELIMINARY INVESTIGATION, NO

LONGER NEEDED; RETURN OF CASE TO THE PROSECUTOR, SUPEREROGATORY.
I do not believe that there is still need to conduct a preliminary investigation the
sole purpose of which would be to ascertain if there is sucient ground to believe
that a crime was committed (which the petitioner does not dispute) and that he
(the petitioner) is probably guilty thereof (which the prosecutor, by ling the
information against him, presumably believed to be so). In the present stage of the
presentation of the prosecution's evidence, to return the case to the Prosecutor to
conduct a preliminary investigation under Rule 112 of the 1985 Rules on Criminal
Procedure would be supererogatory.

2. ID.; ID.; RIGHT TO PRELIMINARY INVESTIGATION, NOT A CONSTITUTIONAL

RIGHT. It should be remembered that as important as is the right of the accused
to a preliminary investigation, it is not a constitutional right. Its absence is not a
ground to quash the information (Doromal vs. Sandiganbayan, 177 SCRA 354). It
does not aect the court's jurisdiction, nor impair the validity of the information
(Rodis vs. Sandiganbayan, 166 SCRA 618), nor constitute an infringement of the
right of the accused to confront witnesses (Bustos vs. Lucero, 81 Phil. 640).

3. ID.; ID.; HEARING OF APPLICATION FOR BAIL; SHOULD NOT BE SUSPENDED

AND SHOULD NOT BE SUBORDINATED TO THE PRELIMINARY INVESTIGATION OF
THE CHARGE. The court's hearing of the application for bail should not be
subordinated to the preliminary investigation of the charge. The hearing should not
be suspended, but should be allowed to proceed for it will accomplish a double
purpose. The parties will have an opportunity to show not only: (a) whether or not
there is probable cause to believe that the petitioner killed Eldon Maguan, but more
importantly (b) whether or not the evidence of his guilt is strong. The judge's
determination that the evidence of his guilt is strong would naturally foreclose the
need for a preliminary investigation to ascertain the probability of his guilt. The bail
hearing may not be suspended because upon the ling of an application for bail by
one accused of a capital oense, "the judge is under a legal obligation to receive
evidence with the view of determining whether evidence of guilt is so strong as to
warrant denial of bond."

4. ID.; ID.; ABOLITION OF DEATH PENALTY DID NOT MAKE THE RIGHT TO BAIL
ABSOLUTE; ACCUSED MAY NOT BE RELEASED PENDING HEARING OF PETITION
FOR BAIL. The abolition of the death penalty did not make the right to bail
absolute, for persons charged with oenses punishable by reclusion perpetua, when
evidence of guilt is strong, are not bailable (Sec. 3, Art. III, 1987 Constitution). In
People vs. Dacudao, 170 SCRA 489, we called down the trial court for having
granted the motion for bail in a murder case without any hearing and without
giving the prosecution an opportunity to comment or le objections thereto.
Similarly, this Court held in People vs. Bocar, 27 SCRA 512: ". . . due process also
demands that in the matter of bail the prosecution should be aorded full
opportunity to present proof of the guilt of the accused. Thus, if it were true that the
prosecution in this case was deprived of the right to present its evidence against the
bail petition, or that the order granting such petition was issued upon incomplete
evidence, then the issuance of the order would really constitute abuse of discretion
that would call for the remedy of certiorari." The petitioner may not be released
pending the hearing of his petition for bail for it would be incongruous to grant bail
to one who is not in the custody of the law (Feliciano vs. Pasicolan, 2 SCRA 888).

5. ID.; ID.; TERM "ARREST," CONSTRUED. Arrest is the taking of a person into
custody in order that he may be bound to answer for the commission of an oense
(Sec. 1, Rule 113, Rules of Court). An arrest is made by an actual restraint of the
person to be arrested, or by his submission to the custody of the person making the
arrest (Sec. 2, Rule 113, Rules of Court). When Go walked into the San Juan Police
Station on July 8, 1991, and placed himself at the disposal of the police authorities
who clamped him in jail after he was identied by an eyewitness as the person who
shot Maguan, he was actually and eectively arrested. His ling of a petition to be
released on bail was a waiver of any irregularity attending his arrest and estops him
from questioning its validity (Callanta vs. Villanueva, 77 SCRA 377; Bagcal vs.
Villaraza, 120 SCRA 525).

DECISION

FELICIANO, J : p

According to the ndings of the San Juan Police in their Investigation Report, 1 on 2
July 1991, Eldon Maguan was driving his car along Wilson St., San Juan, Metro
Manila, heading towards P. Guevarra St. Petitioner entered Wilson St., where it is a
one-way street and started travelling in the opposite or "wrong" direction. At the
corner of Wilson and J. Abad Santos Sts., petitioner's and Maguan's cars nearly
bumped each other. Petitioner alighted from his car, walked over and shot Maguan
inside his car. Petitioner then boarded his car and left the scene. A security guard at
a nearby restaurant was able to take down petitioner's car plate number. The police
arrived shortly thereafter at the scene of the shooting and there retrieved an empty
shell and one round of live ammunition for a 9mm caliber pistol. Verication at the
Land Transportation Office showed that the car was registered to one Elsa Ang Go.

The following day, the police returned to the scene of the shooting to nd out where
the suspect had come from; they were informed that petitioner had dined at
Cravings Bake Shop shortly before the shooting. The police obtained a facsimile or
impression of the credit card used by petitioner from the cashier of the bake shop.
The security guard of the bake shop was shown a picture of petitioner and he
positively identied him as the same person who had shot Maguan. Having
established that the assailant was probably the petitioner, the police launched a
manhunt for petitioner.

On 8 July 1991, petitioner presented himself before the San Juan Police Station to
verify news reports that he was being hunted by the police; he was accompanied by
two (2) lawyers. The police forthwith detained him. An eyewitness to the shooting,
who was at the police station at that time, positively identied petitioner as the
gunman. That same day, the police promptly led a complaint for frustrated
homicide 2 against petitioner with the Oce of the Provincial Prosecutor of Rizal.
First Assistant Provincial Prosecutor Dennis Villa Ignacio ("Prosecutor") informed
petitioner, in the Presence of his lawyers, that he could avail himself of his right to
preliminary investigation but that he must rst sign a waiver of the provisions of
Article 125 of the Revised Penal Code. Petitioner refused to execute any such
waiver.

On 9 July 1991, while the complaint was still with the Prosecutor, and before an
information could be led in court, the victim, Eldon Maguan, died of his gunshot
wound(s). prcd

Accordingly, on 11 July 1991, the Prosecutor, instead of ling an information for

frustrated homicide, led an information for murder 3 before the Regional Trial
Court. No bail was recommended. At the bottom of the information, the Prosecutor
certied that no preliminary investigation had been conducted because the accused
did not execute and sign a waiver of the provisions of Article 125 of the Revised
Penal Code.

In the afternoon of the same day, 11 July 1991, counsel for petitioner led with the
prosecutor an omnibus motion for immediate release and proper preliminary
investigation, 4 alleging that the warrantless arrest of petitioner was unlawful and
that no preliminary investigation had been conducted before the information was
led. Petitioner also prayed that he be released on recognizance or on bail.
Provincial Prosecutor Mauro Castro, acting on the omnibus motion, wrote on the last
page of the motion itself that he interposed no objection to petitioner being granted
provisional liberty on a cash bond of P100,000.00.

On 12 July 1991, petitioner led an urgent ex-parte motion for special rae 5 in
order to expedite action on the Prosecutor's bail recommendation. The case was
raed to the sala of respondent Judge, who, on the same date, approved the cash
bond 6 posted by petitioner and ordered his release. 7 Petitioner was in fact released
that same day.

On 16 July 1991, the Prosecutor led with the Regional Trial Court a motion for
leave to conduct preliminary investigation 8 and prayed that in the meantime all
proceedings in the court be suspended. He stated that petitioner had led before the
Oce of the Provincial Prosecutor of Rizal an omnibus motion for immediate release
and preliminary investigation, which motion had been granted by Provincial
Prosecutor Mauro Castro, who also agreed to recommend cash bail of P100,000.00.
The Prosecutor attached to the motion for leave a copy of petitioner's omnibus
motion of 11 July 1991.

Also on 16 July 1991, the trial court issued an Order 9 granting leave to conduct
preliminary investigation and cancelling the arraignment set for 15 August 1991
until after the prosecution shall have concluded its preliminary investigation.

On 17 July 1991, however, respondent Judge motu proprio issued an Order, 10

embodying the following: (1) the 12 July 1991 Order which granted bail was
recalled; petitioner was given 48 hours from receipt of the Order to surrender
himself; (2) the 16 July 1991 Order which granted leave to the prosecutor to
conduct preliminary investigation was recalled and cancelled; (3) petitioner's
omnibus motion for immediate release and preliminary investigation dated 11 July
1991 was treated as a petition for bail and set for hearing on 23 July 1991.

On 19 July 1991, petitioner led a petition for certiorari, prohibition and mandamus
before the Supreme Court assailing the 17 July 1991 Order, contending that the
information was null and void because no preliminary investigation had been
previously conducted, in violation of his right to due process. Petitioner also moved
for suspension of all proceedings in the case pending resolution by the Supreme
Court of his petition; this motion was, however, denied by respondent Judge. LLphil

On 23 July 1991, petitioner surrendered to the police.

By a Resolution dated 24 July 1991, this Court remanded the petition for certiorari,
prohibition and mandamus to the Court of Appeals.

On 16 August 1991, respondent Judge issued an order in open court setting the
arraignment of petitioner on 23 August 1991.

On 19 August 1991, petitioner led with the Court of Appeals a motion to restrain
his arraignment.

On 23 August 1991, respondent judge issued a Commitment Order directing the

Provincial Warden of Rizal to admit petitioner into his custody at the Rizal Provincial
Jail. On the same date, petitioner was arraigned. In view, however, of his refusal to
enter a plea, the trial court entered for him a plea of not guilty. The trial court then
set the criminal case for continuous hearings on 19, 24 and 26 September; on 2, 3,
11 and 17 October; and on 7, 8, 14, 15, 21 and 22 November 1991. 11

On 27 August 1991, petitioner led a petition for habeas corpus 12 in the Court of
Appeals. He alleged that in view of public respondents' failure to join issues in the
petition for certiorari earlier led by him, after the lapse of more than a month, thus
prolonging his detention, he was entitled to be released on habeas corpus.

On 30 August 1991, the Court of Appeals issued the writ of habeas corpus. 13 The
petition for certiorari, prohibition and mandamus, on the one hand, and the petition
for habeas corpus, upon the other, were subsequently consolidated in the Court of
Appeals.

The Court of Appeals, on 2 September 1991, issued a resolution denying petitioner's

motion to restrain his arraignment on the ground that motion had become moot
and academic.

On 19 September 1991, trial of the criminal case commenced and the prosecution
presented its first witness.

On 23 September 1991, the Court of Appeals rendered a consolidated decision 14

dismissing the two (2) petitions, on the following grounds:

a. Petitioner's warrantless arrest was valid because the oense for

which he was arrested and charged had been "freshly committed." His
identity had been established through investigation. At the time he showed
up at the police station, there had been an existing manhunt for him. During
the confrontation at the San Juan Police Station, one witness positively
identified petitioner as the culprit.

b. Petitioner's act of posting bail constituted waiver of any irregularity

attending his arrest. He waived his right to preliminary investigation by not
invoking it properly and seasonably under the Rules.

c. The trial court did not abuse its discretion when it issued the 17 July
1991 Order because the trial court had the inherent power to amend and
control its processes so as to make them conformable to law and justice.

d. Since there was a valid information for murder against petitioner and a
valid commitment order (issued by the trial judge after petitioner
surrendered to the authorities whereby petitioner was given to the custody
of the Provincial Warden), the petition for habeas corpus could not be
granted.

On 3 October 1991, the prosecution presented three (3) more witnesses at the trial.
Counsel for petitioner also led a "Withdrawal of Appearance" 15 with the trial
court, with petitioner's conformity.

On 4 October 1991, the present petition for Review on Certiorari was led. On 14
October 1991, the Court issued a Resolution directing respondent Judge to held in
abeyance the hearing of the criminal case below until further orders from this
Court.

In this Petition for Review, two (2) principal issues need to be addressed: rst,
whether or not a lawful warrantless arrest had been eected by the San Juan Police
in respect of petitioner Go; and second, whether petitioner had eectively waived
his right to preliminary investigation. We consider these issues seriatim .
LLphil

In respect of the rst issue, the Solicitor General argues that under the facts of the
case, petitioner had been validly arrested without warrant. Since petitioner's
identity as the gunman who had shot Eldon Maguan on 2 July 1991 had been
suciently established by police work, petitioner was validly arrested six (6) days
later at the San Juan Police Station. The Solicitor General invokes Nazareno v.
Station Commander, etc., et al., 16 one of the seven (7) cases consolidated with In
the Matter of the Petition for Habeas Corpus of Roberto Umil, etc. v. Ramos et al. , 17
where a majority of the Court upheld a warrantless arrest as valid although eected
fourteen (14) days after the killing in connection with which Nazareno had been
arrested. Accordingly, in the view of the Solicitor General, the provisions of Section
7, Rule 112 of the Rules of Court were applicable and because petitioner had
declined to waive the provisions of Article 125 of the Revised Penal Code, the
Prosecutor was legally justied in ling the information for murder even without
preliminary investigation.

On the other hand, petitioner argues that he was not lawfully arrested without
warrant because he went to the police station six (6) days after the shooting which
he had allegedly perpetrated. Thus, petitioner argues, the crime had not been "just
committed" at the time that he was arrested. Moreover, none of the police ocers
who arrested him had been an eyewitness to the shooting of Maguan and
accordingly none had the "personal knowledge" required for the lawfulness of a
warrantless arrest. Since there had been no lawful warrantless arrest, Section 7,
Rule 112 of the Rules of Court which establishes the only exception to the right to
preliminary investigation, could not apply in respect of petitioner.

The reliance of both petitioner and the Solicitor General upon Umil v. Ramos is, in
the circumstances of this case, misplaced. In Umil v. Ramos, by an eight-to-six vote,
the Court sustained the legality of the warrantless arrests of petitioners made from
one (1) to fourteen (14) days after the actual commission of the oenses, upon the
ground that such oenses constituted "continuing crimes." Those oenses were
subversion, membership in an outlawed organization like the New Peoples Army,
etc. In the instant case, the oense for which petitioner was arrested was murder,
an oense which was obviously commenced and completed at one denite location
in time and space. No one had pretended that the fatal shooting of Maguan was a
"continuing crime."

Secondly, we do not believe that the warrantless "arrest" or detention of petitioner

in the instant case falls within the terms of Section 5 of Rule 113 of the 1985 Rules
on Criminal Procedure which provides as follows:
 "Sec. 5. Arrest without warrant; when lawful. A peace ocer or a
private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be created has committed, is

actually committing, or is attempting to commit an offense;

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

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

In cases falling under paragraphs (a) and (b) hereof, the person arrested
without a warrant shall be forthwith delivered to the nearest police station or
jail, and he shall be proceeded against in accordance with Rule 112, Section
7."

Petitioner's "arrest" took place six (6) days after the shooting of Maguan. The
"arresting" ocers obviously were not present, within the meaning of Section
5(a), at the time petitioner had allegedly shot Maguan. Neither could the "arrest"
eected six (6) days after the shooting be reasonably regarded as eected "when
[the shooting had] in fact just been committed" within the meaning of Section 5
(b). Moreover, none of the "arresting" ocers had any "personal knowledge" of
facts indicating that petitioner was the gunman who had shot Maguan. The
information upon which the police acted had been derived from statements
made by alleged eyewitnesses to the shooting one stated that petitioner was
the gunman; another was able to take down the alleged gunman's car's plate
number which turned out to be registered in petitioner's wife's name. That
information did not, however, constitute "personal knowledge." 18

It is thus clear to the Court that there was no lawful warrantless arrest of petitioner
within the meaning of Section 5 of Rule 113. It is clear too that Section 7 of Rule
112, which provides:

"Sec. 7. When accused lawfully arrested without warrant. When a

person is lawfully arrested without a warrant for an oense cognizable by
the Regional Trial Court the complaint or information may be led by the
oended party, peace ocer or scal without a preliminary investigation
having been rst conducted, on the basis of the adavit of the oended
party or arresting office or person.

However, before the ling of such complaint or information, the person

arrested may ask for a preliminary investigation by a proper ocer 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.
Cdpr

If the case has been led in court without a preliminary investigation having
been rst conducted, the accused may within ve (5) days from the time he
learns of the ling 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." (Underscoring supplied).

is also not applicable. Indeed, petitioner was not arrested at all. When he walked
into the San Juan Police Station, accompanied by two (2) lawyers, he in fact
placed himself at the disposal of the police authorities. He did not state that he
was "surrendering" himself, in all probability to avoid the implication he was
admitting that he had slain Eldon Maguan or that he was otherwise guilty of a
crime. When the police led a complaint for frustrated homicide with the
Prosecutor, the latter should have immediately scheduled a preliminary
investigation to determine whether there was probable cause for charging
petitioner in court for the killing of Eldon Maguan. Instead, as noted earlier, the
Prosecutor proceeded under the erroneous supposition that Section 7 of Rule 112
was applicable and required petitioner to waive the provisions of Article 125 of
the Revised Penal Code as a condition for carrying out a preliminary
investigation. This was substantive error, for petitioner was entitled to a
preliminary investigation and that right should have been accorded him without
any conditions. Moreover, since petitioner had not been arrested; with or without
a warrant, he was also entitled to be released forthwith subject only to his
appearing at the preliminary investigation.

Turning to the second issue of whether or not petitioner had waived his right to
preliminary investigation, we note that petitioner had from the very beginning
demanded that a preliminary investigation be conducted. As earlier pointed out, on
the same day that the information for murder was led with the Regional Trial
Court. Petitioner filed with the prosecutor an omnibus motion for immediate release
and preliminary investigation. The Solicitor General contends that omnibus motion
should have been led with the trial court and not with the Prosecutor, and that
petitioner should accordingly be held to have waived his right to preliminary
investigation. We do not believe that waiver of petitioner's statutory right to
preliminary investigation may be predicated on such a slim basis. The preliminary
investigation was to be conducted by the Prosecutor, not by the Regional Trial
Court. It is true that at the time of ling of petitioner's omnibus motion, the
information for murder had already been filed with the Regional Trial Court; it is not
clear from the record whether petitioner was aware of this fact at the time his
omnibus motion was actually led with the Prosecutor. In Crespo v. Mogul , 19 this
Court held:

"The preliminary investigation conducted by the scal for the purpose of

determining whether a prima facie case exists warranting the prosecution of
the accused is terminated upon the ling of the information in the proper
court. In turn, as above stated, the ling of said information sets in motion
the criminal action against the accused in Court. Should the scal nd it
 proper to conduct a reinvestigation of the case, at such stage, the
permission of the Court must be secured. After such reinvestigation the
nding and recommendations of the scal should be submitted to the Court
for appropriate action. While it is true that the scal has the quasi judicial
discretion to determine whether or not a criminal case should be led in
court or not, once the case had already been brought to Court whatever
disposition the scal may feel should be proper in the case thereafter should
be addressed for the consideration of the Court. The only qualification is that
the action of the Court must not impair the substantial rights of the
accused, or the right of the People to due process of law.

xxx xxx xxx

The rule therefore in this jurisdiction is that once a complaint or information

is led in Court any disposition of the case [such] as its dismissal or the
conviction or acquittal of the accused rests in the sound discretion of the
Court. Although the scal retains the direction and control of the
prosecution of criminal cases even while the case is already in Court he
cannot impose his opinion on the trial court. The Court is the best and sole
judge on what to do with the case before it. . . ." 20 (Citations omitted,
underscoring supplied).

Nonetheless, since petitioner in his omnibus motion was asking for preliminary
investigation and not for a reinvestigation (Crespo v. Mogul involved a re-
investigation), and since the Prosecutor himself did le with the trial court, on
the 5th day after ling the information for murder, a motion for leave to conduct
preliminary investigation (attaching to his motion a copy of petitioner's omnibus
motion), we conclude that petitioner's omnibus motion was in eect led with
the trial court. What was crystal clear was that petitioner did ask for a
preliminary investigation on the very day that the information was led without
such preliminary investigation, and that the trial court was ve (5) days later
apprised of the desire of the petitioner for such preliminary investigation. Finally,
the trial court did in fact grant the Prosecutor's prayer for leave to conduct
preliminary investigation. Thus, even on the (mistaken) supposition apparently
made by the Prosecutor that Section 7 of Rule 112 of the Revised Court was
applicable, the 5-day reglementary period in Section 7, Rule 112 must be held to
have been substantially complied with. LexLib

We believe and so hold that petitioner did not waive his right to a preliminary
investigation. While that right is statutory rather than constitutional in its
fundament, since it has in fact been established by statute, it is a component part of
due process in criminal justice. 20 The right to have a preliminary investigation
conducted before being bound over to trial for a criminal oense and hence formally
at risk of incarceration or some other penalty, is not a mere formal or technical
right; it is a substantive right. The accused in a criminal trial is inevitably exposed to
prolonged anxiety, aggravation, humiliation, not to speak of expense; the right to
an opportunity to avoid a process painful to any one save, perhaps, to hardened
criminals, is a valuable right. To deny petitioner's claim to a preliminary
investigation would be to deprive him of the full measure of his right to due process.
The question may be raised whether petitioner still retains his right to a preliminary
investigation in the instant case considering that he was already arraigned on 23
August 1991. The rule is that the right to preliminary investigation is waived when
the accused fails to invoke it before or at the time of entering a plea at arraignment.
21 In the instant case, petitioner Go had vigorously insisted on his right to
preliminary investigation before his arraignment. At the time of his arraignment,
petitioner was already before the Court of Appeals on certiorari, prohibition and
mandamus precisely asking for a preliminary investigation before being forced to
stand trial.

Again, in the circumstances of this case, we do not believe that by posting bail,
petitioner had waived his right to preliminary investigation. In People v. Selfaison ,
22 we did hold that appellants there had waived their right to preliminary
investigation because immediately after their arrest, they led bail and proceeded
to trial "without previously claiming that they did not have the benet of a
preliminary investigation." 23 In the instant case, petitioner Go asked for release on
recognizance or on bail and for preliminary investigation in one omnibus motion. He
had thus claimed his right to preliminary investigation before respondent Judge
approved the cash bond posted by petitioner and ordered his release on 12 July
1991. Accordingly, we cannot reasonably imply waiver of preliminary investigation
on the part of petitioner. In fact, when the Prosecutor led a motion in court asking
for leave to conduct preliminary investigation, he clearly if impliedly recognized that
petitioner's claim to preliminary investigation was a legitimate one.

We would clarify, however, that contrary to petitioner's contention the failure to

accord preliminary investigation, while constituting a denial of the appropriate and
full measure of the statutory process of criminal justice, did not impair the validity
of the information for murder nor affect the jurisdiction of the trial court. 24

It must also be recalled that the Prosecutor had actually agreed that petitioner was
entitled to bail. This was equivalent to an acknowledgment on the part of the
prosecutor that the evidence of guilt then in his hands was not strong. Accordingly,
we consider that the 17 July 1991 order of respondent Judge recalling his own order
granting bail and requiring petitioner to surrender himself within forty-eight (48)
hours from notice, was plainly arbitrary considering that no evidence at all and
certainly no new or additional evidence had been submitted to respondent Judge
that could have justied the recall of his order issued just ve (5) days before. It
follows that petitioner was entitled to be released on bail as a matter of right.

The nal question which the Court must face is this: how does the fact that, in the
instant case, trial on the merits has already commenced, the Prosecutor having
already presented four (4) witnesses, impact upon, rstly, petitioner's right to a
preliminary investigation and secondly, petitioner's right to be released on bail?
Does he continue to be entitled to have a preliminary investigation conducted in
respect of the charge against him? Does petitioner remain entitled to be released on
bail?
Turning rst to the matter of preliminary investigation, we consider that petitioner
remains entitled to a preliminary investigation although trial on the merits has
already began. Trial on the merits should be suspended or held in abeyance and a
preliminary investigation forthwith accorded to petitioner. 25 It is true that the
prosecutor might, in view of the evidence that he may at this time have on hand,
conclude that probable cause exists; upon the other hand, the Prosecutor
conceivably could reach the conclusion that the evidence on hand does not warrant
a nding of probable cause. In any event, the constitutional point is that petitioner
w as not accorded what he was entitled to by way of procedural due process. 26
Petitioner was forced to undergo arraignment and literally pushed to trial without
preliminary investigation, with extraordinary haste, to the applause from the
audience that lled the courtroom. If he submitted to arraignment and trial,
petitioner did so "kicking and screaming," in a manner of speaking. During the
proceedings held before the trial court on 23 August 1991, the date set for
arraignment of petitioner, and just before arraignment, counsel made very clear
petitioner's vigorous protest and objection to the arraignment precisely because of
the denial of preliminary investigation. 27 So energetic and determined were
petitioner's counsel's protest and objection that an obviously angered court and
prosecutor dared him to withdraw or walkout, promising to replace him with
counsel de oficio. During the trial, just before the prosecution called its rst witness,
petitioner through counsel once again reiterated his objection to going to trial
without preliminary investigation; petitioner's counsel made or record his
"continuing objection." 28 Petitioner had promptly gone to the appellate court on
certiorari and prohibition to challenge the lawfulness of the procedure he was being
forced to undergo and the lawfulness of his detention. 29 If he did not walkout on
the trial, and if he cross-examined the Prosecution's witnesses, it was because he
was extremely loath to be represented by counsel de ocio selected by the trial
judge, and to run the risk of being held to have waived also his right to use what is
frequently the only test of truth in the judicial process.

In respect of the matter of bail, we similarly believe and so hold that petitioner
remains entitled to be released on bail as a matter of right. Should the evidence
already of record concerning petitioner's guilt be, in the reasonable belief of the
Prosecutor, strong, the Prosecutor may move in the trial court for cancellation of
petitioner's bail. It would then be up to the trial court, after a careful and objective
assessment of the evidence on record, to grant or deny the motion for cancellation
of bail.

To reach any other conclusion here, that is, to hold that petitioner's rights to a
preliminary investigation and to bail were eectively obliterated by evidence
subsequently admitted into the record would be to legitimize the deprivation of due
process and to permit the Government to benet from its own wrong or culpable
omission and eectively to dilute important rights of accused persons well-nigh to
the vanishing point. It may be that to require the State to accord petitioner his
rights to a preliminary investigation and to bail at this point, could turn out
ultimately to be largely a ceremonial exercise. But the Court is not compelled to
speculate. And, in any case, it would not be idle ceremony; rather it would be a
celebration by the State of the rights and liberties of its own people and a re-
affirmation of its obligation and determination to respect those rights and liberties.

ACCORDINGLY, the Court Resolved to GRANT the Petition for Review on Certiorari.
The Order of the trial court dated 17 July 1991 is hereby SET ASIDE and NULLIFIED,
and the Decision of the Court of Appeals dated 23 September 1991 hereby
REVERSED.

The Oce of the Provincial Prosecutor is hereby ORDERED to conduct forthwith a

preliminary investigation of the charge of murder against petitioner Go, and to
complete such preliminary investigation within a period of fteen (15) days from
commencement thereof. The trial on the merits of the criminal case in the Regional
Trial Court shall be SUSPENDED to await the conclusion of the preliminary
investigation.

Meantime, petitioner is hereby ORDERED released forthwith upon posting of a cash

bail bond of One Hundred Thousand Pesos (P100,000.00). This release shall be
without prejudice to any lawful order that the trial court may issue, should the
Oce of the Provincial Prosecutor move for cancellation of bail at the conclusion of
the preliminary investigation.

No pronouncement as to costs. This Decision is immediately executory.

SO ORDERED.

Narvasa, C.J., Bidin, Medialdea, Romero and Nocon, JJ., concur.

Separate Opinions
CRUZ, J., concurring:

I was one of the members of the Court who initially felt that the petitioner had
waived the right to preliminary investigation because he freely participated in his
trial and his counsel even cross-examined the prosecution witnesses. A closer study
of the record, however, particularly of the transcript of the proceedings footnoted in
t h e ponencia, reveals that he had from the start demanded a preliminary
investigation and that his counsel had reluctantly participated in the trial only
because the court threatened to replace him with a counsel de ocio if he did not.
Under these circumstances, I am convinced that there was no waiver. The petitioner
was virtually compelled to go to trial. Such compulsion and the unjustied denial of
a clear statutory right of the petitioner vitiated the proceedings as violative of
procedural due process.

It is true that the ruling we lay down here will take the case back to square one, so
to speak, but that is not the petitioner's fault. He had a right to insist that the
procedure prescribed by the Rules of Court be strictly observed. The delay entailed
by the procedural lapse and the attendant expense imposed on the Government and
the defendant must be laid at the door of the trial judge for his precipitate and
illegal action.
It appears that the trial court has been moved by a desire to cater to public opinion
to the detriment of the impartial administration of justice. The petitioner as
portrayed by the media is not exactly a popular person. Nevertheless, the trial court
should not have been inuenced by this irrelevant consideration, remembering
instead that its only guide was the mandate of the law.

GUTIERREZ, JR., J., concurring:

I concur in the majority decision penned by Mr. Justice Florentino P. Feliciano but
am at a loss for reasons why an experienced Judge should insist on proceeding to
trial in a sensational murder case without a preliminary investigation inspite of the
vigorous and continued objection and reservation of rights of the accused and
notwithstanding the recommendations of the Prosecutor that those rights must be
respected. If the Court had faithfully followed the Rules, trial would have proceeded
smoothly and if the accused is really guilty, then he may have been convicted by
now. As it is, the case has to go back to square one.LexLib

I agree with Justice Isagani Cruz "that the trial court has (apparently) been moved
by a desire to cater to public opinion to the detriment of the impartial
administration of justice." Mass media has its duty to fearlessly but faithfully inform
the public about events and persons. However, when a case has received wide and
sensational publicity, the trial court should be doubly careful not only to be fair and
impartial but also to give the appearance of complete objectivity in its handling of
the case.

The need for a trial court to follow the Rules and to be fair, impartial, and persistent
in getting the true facts of a case is present in all cases but it is particularly
important if the accused is indigent; more so, if he is one of those unfortunates who
seem to spend more time behind bars than outside. Unlike the accused in this case
who enjoys the assistance of competent counsel, a poor defendant convicted by
wide and unfavorable media coverage may be presumed guilty before trial and be
unable to defend himself properly. Hence, the importance of the court always
following the Rules.

While concurring with Justice Feliciano's ponencia, I am constrained to add the

foregoing observations because I feel they form an integral part of the Court's
decision.

GRIO-AQUINO, J., dissenting:

I regret that I cannot agree with the majority opinion in this case. At this point, after
four (4) prosecution witnesses have already testied, among them an eyewitness
who identied the accused as the gunman who shoot Eldon Maguan inside his car in
cold blood, and a security guard who identied the plate number of the gunman's
car, I do not believe that there is still need to conduct a preliminary investigation
the sole purpose of which would be to ascertain if there is sucient ground to
believe that a crime was committed (which the petitioner does not dispute) and
that he (the petitioner) is probably guilty thereof (which the prosecutor, by ling
the information against him, presumably believed to be so).

In the present stage of the presentation of the prosecution's evidence, to return the
case to the prosecutor to conduct a preliminary investigation under Rule 112 of the
1985 Rules on Criminal Procedure would be supererogatory.

This case did not suer from a lack of previous investigation. Diligent police work,
with ample media coverage, led to the identication of the suspect who, seven (7)
days after the shooting, appeared at the San Juan police station to verify news
reports that he was the object of a police manhunt. Upon entering the station, he
was positively identied as the gunman by an eyewitness who was being
interrogated by the police to ferret more clues and details about the crime. The
police thereupon arrested the petitioner and on the same day, July 8, 1991,
promptly led with the Provincial Prosecutor of Rizal, a complaint for frustrated
homicide against him. As the victim died the next day, July 9, 1991, before an
information could be led, the First Assistant Prosecutor, instead of ling an
information for frustrated homicide, led an information for murder on July 11,
1991 in the Regional Trial Court, with no bail recommended.

However, the Provincial Prosecutor, acting on the petitioner's omnibus motion for
preliminary investigation and release on bail (which was erroneously led with his
oce instead of the court), recommended a cash bond of P100,000 for his release,
and submitted the omnibus motion to the trial court for resolution.

Respondent Judge Benjamin Pelayo must have realized his impetuosity shortly after
he had issued: (a) his order of July 12, 1991 approving the petitioner's cash bail
bond without a hearing, and (b) his order of July 16, 1991 granting the Prosecutor
leave to conduct a preliminary investigation, for he motu proprio issued on July 17,
1991 another order rescinding his previous orders and setting for hearing the
petitioner's application for bail.

The cases cited in page 15 of the majority opinion in support of the view that the
trial of the case should be suspended and that the prosecutor should now conduct a
preliminary investigation, are not on all fours with this case. In Doromal vs.
Sandiganbayan, 177 SCRA 354 and People vs. Monton , 23 SCRA 1024, the trial of
the criminal case had not yet commenced because motions to quash the
information were led by the accused. Lozada vs. Hernandez, 92 Phil. 1053; U.S. vs.
Banzuela, 31 Phil. 565; San Diego vs. Hernandez, 24 SCRA 110 and People vs.
Oandasan, 25 SCRA 277 are also inapplicable because in those cases preliminary
investigations had in fact been conducted before the informations were led in
court.cdll

It should be remembered that as important as is the right of the accused to a

preliminary investigation, it is not a constitutional right. Its absence is not a ground
to quash the information (Doromal vs. Sandiganbayan, 177 SCRA 354). It does not
aect the Court's jurisdiction, nor impair the validity of the information (Rodis vs.
Sandiganbayan, 166 SCRA 618), nor constitute an infringement of the right of the
accused to confront witnesses (Bustos vs. Lucero, 81 Phil. 640).
The petitioner's motion for a preliminary investigation is not more important that
his application for release on bail, just as the conduct of such preliminary
investigation is not more important than the hearing of the application for bail. The
court's hearing of the application for bail should not be subordinated to the
preliminary investigation of the charge. The hearing should not be suspended, but
should be allowed to proceed for it will accomplish a double purpose. The parties will
have an opportunity to show not only: (a) whether or not there is probable cause to
believe that the petitioner killed Eldon Maguan, but more importantly (b) whether
or not the evidence of his guilt is strong. The judge's determination that the
evidence of his guilt is strong would naturally foreclose the need for a preliminary
investigation to ascertain the probability of his guilt.

The bail hearing may not be suspended because upon the ling of an application for
bail by one accused of a capital oense, "the judge is under a legal obligation to
receive evidence with the view of determining whether evidence of guilt is so
strong as to warrant denial of bond." (Payao vs. Lesaca, 63 Phil. 210; Hadhirul Tahil
vs. Eisma, 64 SCRA 378; Peralta vs. Ramos and Provincial Fiscal of Isabela, 71 Phil.
271; Padilla vs. Enrile, 121 SCRA 472; Ilagan vs. Ponce Enrile, 139 SCRA 349;
People vs. Albofera, 152 SCRA 123.).

The abolition of the death penalty did not make the right to bail absolute, for
persons charged with oenses punishable by reclusion perpetua, when evidence of
guilt is strong, are not bailable (Sec. 3, Art. III, 1987 Constitution). In People vs.
Dacudao, 170 SCRA 489, we called down the trial court for having granted the
motion for bail in a murder case without any hearing and without giving the
prosecution an opportunity to comment or file objections thereto. LLphil

Similarly, this Court held in People vs. Bocar, 27 SCRA 512:

". . . due process also demands that in the matter of bail the prosecution
should be aorded full opportunity to present proof of the guilt of the
accused. Thus, if it were true that the prosecution in this case was deprived
of the right to present its evidence against the bail petition, or that the order
granting such petition was issued upon incomplete evidence, then the
issuance of the order would really constitute abuse of discretion that would
call for the remedy of certiorari." (Emphasis supplied.).

The petitioner may not be released pending the hearing of his petition for bail for it
would be incongruous to grant bail to one who is not in the custody of the law
(Feliciano vs. Pasicolan, 2 SCRA 888).

I respectfully take exception to the statements in the ponencia that the "petitioner
was not arrested at all" (p. 12) and that "petitioner had not been arrested, with or
without a warrant" (p. 130). Arrest is the taking of a person into custody in order
that he may be bound to answer for the commission of an oense (Sec. 1, Rule 113,
Rules of Court). An arrest is made by an actual restraint of the person to be
arrested, or by his submission to the custody of the person making the arrest (Sec.
2, Rule 113, Rules of Court). When Go walked into the San Juan Police Station on
July 8, 1991, and placed himself at the disposal of the police authorities who
clamped him in jail after he was identied by an eyewitnesses as the person who
shot Maguan, he was actually and eectively arrested. His ling of a petition to be
released on bail was a waiver of any irregularity attending his arrest and stops him
from questioning its validity (Callanta vs. Villanueva, 77 SCRA 377; Bagcal vs.
Villaraza, 120 SCRA 525).

I, vote to dismiss the petition and affirm the trial court's order of July 17, 1991.

Melencio-Herrera, Paras, Padilla, Davide, Jr. and Regalado, JJ., concur.

Footnotes

1. Annex "A" of Petition; Rollo, pp. 29-32.

2. Rollo, p. 28.

3. Annex "B" of Petition, Rollo, pp. 33-34.

4. Annex "C" of Petition, Rollo, pp. 35-43.

5. Annex "D" of Petition, Rollo, pp. 44-45.

6. Annexes "E" and "E-1" of Petition, Rollo, pp. 46-48.

7. Annex "F" of Petition, Rollo, p. 49.

8. Annex "G" of Petition, Rollo, pp. 50-51.

9. Annex "G-1" of Petition, Rollo, p. 52.

10. Annex "H" of Petition, Rollo, pp. 54-55.

11. Annex "J" of Petition, Rollo, pp. 57-58.

12. Annex "K" of Petition, Rollo, pp. 59-66.

13. Annex "K-1" of Petition, Rollo, pp. 67-68.

14. Annex "N" of Petition, Rollo, pp. 109-120.

15. Annex "A" of Comment, Rollo, p. 154.

16. G.R. No. 86332.

17. G.R. No. 81567, promulgated 3 October 1991.

18. People v. Burgos , 144 SCRA 1 (1986).

19. 151 SCRA 462 (1987).

20. 151 SCRA at 469-471.

20. Doromal v. Sandiganbayan , 177 SCRA 354 (1989); San Diego v. Hernandez , 24
 SCRA 110 (1968); People v. Monton , 23 SCRA 1024 (1968); People v. Oandasan ,
25 SCRA 277 11968); Lozada v. Hernandez , 92 Phil. 1051 (1953); U.S. v.
Banzuela, 31 Phil. 564 (1915).

21. People, v. Monteverde , 142 SCRA 668 (1986); People v. Gomez , 117 SCRA 72
(1982); People v. Marquez , 27 SCRA 808 (1969); People v. de la Cerna , 21 SCRA
569 (1967).

22. 110 Phil. 839 (1961).

23. 110 Phil. at 848.

24. People v. Gomez , supra; People v. Yutila , 102 SCRA 264 (1981); People v.
Casiano, 111 Phil. 73 (1961).

25. In Rodis, Sr. v. Sandiganbayan , 2nd Division (166 SCRA 618 [1988]), the Court
said:

". . . And while the 'absence of preliminary investigations does not aect the
court's jurisdiction over the case (n)or do they impair the validity of the information
or otherwise render it defective, but, if there were no preliminary investigations
and the defendants, before entering their plea, invite the attention of the court to
their absence, the court, instead of dismissing the information, should conduct
such investigation, order the scal to conduct it or remand the case to the inferior
court so that the preliminary investigation may be conducted. In this case, the
Tanodbayan has the duty to conduct the said investigation.

Thus, although the Sandiganbayan was correct in ruling that the absence of a
preliminary investigation is not a ground for quashing an information, it should
have held the proceedings in the criminal cases in abeyance pending resolution by
the Tanodbayan of petitioner's petition for reinvestigation , as alternatively prayed
for by him in his motion to quash. (166 SCRA at 623-624).

In Paredes v. Sandiganbayan (193 SCRA 464 [1991]), the Court stated:

". . . The remedy of the accused in such a case is to call the attention of the
court to the lack of a preliminary investigation and demand, as a matter of right,
that one be conducted. The court, instead of dismissing the information, should
merely suspend the trial and order the scal to conduct a preliminary investigation.
Thus did we rule in Ilagan v. Enrile, 139 SCRA 349." (193 SCRA at 469).

26. Section 14 (1), Article III, 1987 Constitution: "No person should be held to
answer for a criminal offense without due process of law."

27. ATTY. ARMOVIT:

. . . We are sad to make the statement that it would seem that the government
now in this proceeding would like to become the law breaker. Why do we say this,
Your Honor. The Information for a serious crime of murder was led against the
accused without the benet of the preliminary investigation. As a matter of fact,
 Your Honor, the want of preliminary investigation has been admitted by no less
than the Investigating Fiscal himself. . . .

xxx xxx xxx

ATTY. ARMOVIT:

Why do we say the government becomes a law breaker. We have a case of US

vs. Marfori. It says and I quote (counsel reading said portion in open court). . . .
Likewise in San Diego v. Hernandez, the Supreme Court says and I quote, (counsel
reading said portion in open court). All of these doctrines had been recently
quoted in the case of Doromal v. Sandiganbayan . In addition to this, we have led
a motion before this Court. The Motion to Suspend Proceedings and Transfer
Venue which is set for hearing on 28 August 1991. The arguments we cited in this
motion to suspend proceedings and to transfer venue are not invention of this
counsel.

ATTY. FLAMINIANO:

He is talking to the motion which is set for August 28, Your Honor.

ATTY. ARMOVIT:

I want to be heard, Your Honor.

ATTY. FLAMINIANO:

The Motion is set for August 28 and he is now arguing on that motion.

COURT:

I am going to stop you. You concentrate on the motion before the Court.

FISCAL VILLA IGNACIO:

The pending incident is for the arraignment of the accused, Your Honor.

COURT:

What we are doing are not pertinent to the issue. This would be unprocedural.

ATTY. ARMOVIT:

What we are trying to say, Your Honor, why do you rush with the arraignment
of the accused when there are several unresolved incidents. The special civil action
before the Court of Appeals where we questioned the very validity . . .

COURT:

Until now the Court of Appeals has not given due course regarding that.

ATTY. ARMOVIT:
 The government rushes with the proceedings here. In the Court of Appeals
they led a motion for extension of ten days from August 19 or until August 29 to
comment on that special civil action. There are dozens of cases which languishes
2, 3, 4 to 5 years. Why so special and selective in the treatment of this case. I ask
that question.

COURT:

Before you proceed, can you cite an incident before this Court where the
preliminary investigation has been delayed.

FISCAL VILLA IGNACIO:

The information was led last July 11, 1991. Today is August 23. Where is the
rush in arraigning the accused.

COURT:

Heard enough. Proceed with the arraignment of the accused.

ATTY. ARMOVIT:

In my 30 years of practice, this is the rst time I am stopped by the Court in the
middle of my arguments.

FISCAL VILLA IGNACIO:

You are wasting the time of the Court.

COURT:

Order in the court. Order in the court.

ATTY. ARMOVIT:

I want to make of record that there has been clapping after the manifestation of
the Hon. Fiscal, Your Honor.

COURT:

Let us proceed with the arraignment.

ATTY. ARMOVIT:

May I conclude citing, Your Honor, the Supreme Court decision.

COURT:

I have made my ruling. The accused is entitled to speedy trial. That is the reason
why this arraignment was set for today.

ATTY. ARMOVIT:
 May I move for a reconsideration, Your Honor.

COURT:

The motion for reconsideration is denied. Proceed with the arraignment of the
accused.

ATTY. ARMOVIT:

Your Honor, may we move that we be given a period of five days to file a motion
to quash information.

FISCAL VILLA IGNACIO:

This is plain dilatory tactics, Your Honor.

COURT:

In view of the refusal of the accused to enter a plea on account of the advise of
his lawyer, let therefor a plea of not guilty be entered into the record of this case.

ATTY. ARMOVIT:

I would like to move for a ruling on our motion to be given ve days to le a

motion to quash. We did not hear the ruling on that point, Your Honor.

COURT:

As prayed for, counsel for accused is hereby given a period of ve days from
today within which to file his Motion to Quash. . . .

It is understood that the Motion to Quash will not in anyway aect the
arraignment of the accused.

ATTY. ARMOVIT:

Considering the favorable ruling of the Court that we were given ve days to le
a motion to quash, may we move that the Court order the entering a plea of not
guilty of the accused be expunged from the record, otherwise, we will deem to
have waived our right to file a motion to quash.

xxx xxx xxx

ATTY. ARMOVIT:

With due respect considering that there are very serious criminal law question
involved in this proceedings, we respectfully submit that it is premature. Besides, I
have unresolved motion to inhibit the Presiding Judge.

COURT:

I will cut you there . . . assuming you were given ve days to le a motion to
quash, it doesn't mean the arraignment is considered moot and academic. The
 arraignment stands including the plea of not guilty to the oense as charged. I am
asking you whether you are availing the pre-trial without prejudice to ling a motion
to quash.

ATTY. ARMOVIT:

Consistently, there is no valid proceedings before this Court. I would rather not
participate in this case. But if it is the Court's order then we'll have to submit, but
from this representation we will not voluntarily submit.

xxx xxx xxx

ATTY. ARMOVIT:

This representation manifested that I would rather not participate in this case.
But if it is the Court's order we would submit to the Order of this Court because
we are ocers of the law not that we are already representing the accused. May
we respectfully move to strike out from the record the inocious order of the
Hon. Prosecutor to appoint a counsel de ocio. The accused is entitled to counsel
de parte.

FISCAL VILLA IGNACIO:

But counsel de parte refuses to participate, in which the incumbent court can
appoint a PAO lawyer in case of the absence of counsel de parte.

COURT:

The objection of the Public Prosecutor is well taken. That is the procedure of the
Court, that if the accused has no counsel de parte we always appoint a counsel de
oficio for the accused.

ATTY. ARMOVIT:

We respectfully submit that accused in criminal case is entitled to his counsel of

his own choice. May we at least allow the accused to express his opinion or
decision on matters as to who should give him legal representation.

COURT:

You just said earlier you don't want to participate in the proceedings.

ATTY. ARMOVIT:

That is not what I said. I said that we'll not voluntarily participate but if it is the
Court's order, certainly the accused has the right of his own counsel of choice.

COURT:

The Court will now reiterate ordering the trial of this case.

xxx xxx xxx"

 (TSN, 23 August 1991, pp. 2-9, underscoring supplied).

During the hearing held on 4 September 1991, before the Court of Appeals, in
the Petition for Habeas Corpus , counsel for petitioner recounted in detail what
took place before the trial court and stressed the objection entered by the
petitioner before the trial court and that petitioner participated in the proceedings
below not voluntarily but under the coercive power of the trial judge. Counsel
concluded:

". . . Again I said, Your Honors, we are not participating in this proceedings, but
we will submit to what the Judge rules because that is all we can do. While we
object we have to submit. That is why, Your Honors, dates were set out of
compulsion not because we voluntarily participated but we reserved our right,
Your Honors, to pursue our special civil action and so that is why these dates
came about." (TSN, 4 September 1991, Records in C.A.-G.R. Nos. SP-25800 and
25530, pp. 37-29; underscoring supplied).

28. The relevant portion of transcript of stenographic notes reads as follows:

"COURT:

And considering that the Court has not been restrained by the Court of
Appeals despite the petition, let the trial of this case proceed.

ATTY. ARMOVIT:

Your Honor please may we just record a continuing objection on the

grounds that are cited in our petition for habeas corpus and certiorari to
conduct the further proceedings of this Court and by the way Your Honor,
we do not consider unfortunate the deliberation and serious thoughts our
higher courts are giving in respect to a consideration of the constitutional
right of the accused invoked before that body rather it is the most judicial
act of uplifting the highest court of our land.

COURT:

Alright proceed.

PP VILLA IGNACIO:

We call on our rst witness to the witness stand, Mr. Nicanor Bayhona.
(TSN, 19 September 1991, p. 6; underscoring supplied).

29. In People v. Lambino (103 Phil. 504 [1958]), Lambino, before commencement of
trial, demanded his right to preliminary investigation. His motion for preliminary
investigation was denied by the trial court which, in due course of time, convicted
Lambino. On appeal, the Supreme Court held that the trial court did not err in
denying Lambino's motion for preliminary investigation because said motion was
led after he had entered a plea of not guilty and because he took no steps to
bring the matter to a higher court to stop the trial of the case. The Supreme Court
said:
 ". . . Again, before the commencement of the trial, appellant reiterated his
petition for a preliminary investigation, which was overruled, nevertheless appellant
took no steps to bring the matter to higher courts and stop the trial of the case;
instead he allowed the prosecution to present the rst witness who was able to
testify and show the commission of the crime charged in the information. By his
conduct, we held that he waived his right to a preliminary investigation and is
estopped from claiming it." (103 Phil. at 508; underscoring supplied)
 SECOND DIVISION

[A.M. No. RTJ-03-1817. June 8, 2005.]

P/SR. SUPT. ORLANDO M. MABUTAS, Regional Director,

Philippine Drug Enforcement Agency, Metro Manila Regional
Office, complainant, vs. JUDGE NORMA C. PERELLO, Presiding
Judge, Regional Trial Court, Branch 276, Muntinlupa City ,
respondent.

[A.M. No. RTJ-04-1820. June 8, 2005.]

CITY PROSECUTOR EDWARD M. TOGONONON, complainant, vs.

JUDGE NORMA C. PERELLO, respondent.

RESOLUTION

AUSTRIA-MARTINEZ, J : p

Subject matters of the present administrative cases are two complaints against
respondent Judge Norma C. Perello, Presiding Judge of the Regional Trial Court
(Branch 276) of Muntinlupa City.

Admin. Matter No. RTJ-03-1817

This case originated from a letter of Police Senior Supt. Orlando M. Mabutas,
Regional Director of the Philippine Drug Enforcement Agency, Metro Manila
Regional Oce. P/Sr. Supt. Mabutas complained of certain irregularities committed
by respondent Judge in the grant of bail to accused Aiza Chona Omadan in Criminal
Case No. 03-265. Omadan was charged in an Information dated April 21 2003, with
Violation of Section 11 of Republic Act No. 9165, or the Comprehensive Dangerous
Drugs Act of 2002, for the possession, custody and control of 57.78 grams of
Methamphetamine Hydrochloride (shabu), with no bail recommended.

P/Sr. Supt. Mabutas's complaint was based on the memorandum submitted by

Police Inspector Darwin S. Butuyan, who stated in his report, as follows:

In the evening of May 5, 2003, a colleague notied him of a scheduled preliminary

investigation of Omadan's case on the following day (May 6). When P/Insp.
Butuyan, together with PO2 Saturnino Mayonte and PO2 Allan Lising, went to the
Oce of the City Prosecutor, Assistant City Prosecutor (ACP) Florante E. Tuy merely
asked them to sign the minutes of the preliminary investigation. Omadan and her
counsel were not around, and the police ocers were not furnished with a copy of
Omadan's counter-affidavit.
On May 8, 2003, someone handed P/Insp. Butuyan a subpoena for the arraignment
of Omadan on May 9, 2003. During the scheduled arraignment, they were surprised
when ACP Vicente Francisco called PO2 Mayonte to the witness stand. Apparently,
Omadan led a petition for bail and it was being heard on the same day. PO2
Mayonte and PO2 Lising asked ACP Francisco for a rescheduling of the hearing
because they were not prepared to testify but the former declined, saying that it is
just a motion for bail. After PO2 Mayonte testied, PO2 Lising asked ACP Francisco
to present him as witness but again, the former declined since his testimony would
only be corroborative. ACP Francisco also presented two (2) barangay tanods. cDCaTH

On May 12, 2003, P/Insp. Butuyan went to deliver a communiqu to ACP Francisco
from P/Sr. Supt. Mabutas requesting that in the event bail was granted, its
implementation be held in abeyance so that the police authorities may le the
necessary motion, and in order to prevent Omadan from escaping. Since ACP
Francisco was not around, they went to Branch 276 to secure a copy of the motion
for bail. However, the police ocers were "shocked" to learn that Omadan has
already been released on a P1,000,000.00 bail on May 9, 2003, which was a Friday.
Court personnel also informed them that they spent overtime work for the
processing of the release papers. They asked for a copy of the transcript of
stenographic notes of the hearing held on May 9, 2003, but it was not available.

Respondent Judge's Order dated May 9, 2003, granting Omadan's petition for bail,
reads in part:

Clearly, the evidence of guilt is not very strong for the denial of the bail. It
was not proven that the object that SPO1 Mayonte allegedly saw wrapped in
a tissue paper was indeed methamphetamine hydrochloride. He is not very
sure if the specimen was in fact subjected to an analysis to determine what
it was. There is also no specifying the quantity of the item.

There also seem to be an irregularity in the service of the search warrant for
it was NOT witnessed by two disinterested persons. Admittedly two
Barangay Tanods were brought to the residence of accused, but they never
witnessed the search because when they arrived the search had already
been completed. The wife of the owner of the residence was allegedly found
in the house but she was not made to go with the searching team to witness
the search. An evaluation of the record of the search, it appears also the
search warrant, showed some material defect, because no witness who
appeared to have personal knowledge of the illegal activities of the accused
and husband, executed an Affidavit before the officer who issued the search
warrant. In fact the searching questions were conducted on the applicant
but not on the condential. informant, who alone had the personal
knowledge of the alleged illegal activities in the vicinity. No deposition was
taken of the applicant. Only the applying ocers executed an adavit, yet
had no personal knowledge of the crime as they were only told by his
condential informant. No copy of the deposition is attached to the
application. Although this court has no jurisdiction to hear the MOTION TO
QUASH the search warrant however this fact are [sic] taken into
consideration for the petition to bail if only to show the strength or
 weakness of the prosecution evidence, to ascertain if Prosecution have [sic]
a witness who has personal knowledge of the alleged illegal activities of the
accused in her home. There is none. Even the Barangay policemen Arturo
Villarin, cannot tell with certainty if drugs were indeed found in the residence
of the accused.

Bail is therefore allowed in the sum of ONE MILLION PESOS (Php

1,000,000.00) which accused AIZA CHONA OMADAN may post in cash, by
property or thru a reputable bonding company, and under the additional
condition that her counsel, Atty. GENE CASTILLO QUILAS guarantees her
appearance in court whenever so required.

It is SO ORDERED. 1

Admin. Matter No. RTJ-04-1820

This case proceeded from a letter of Prosecutor Edward M. Togononon of Muntinlupa

City, accusing respondent Judge of partiality, serious misconduct in oce and gross
ignorance of the law, concerning the latter's grant of bail in four criminal cases for
Violations of R.A. No. 9165 pending before her.

I n Criminal Case No. 03-065, entitled, People of the Philippines vs. Rosemarie
Pascual y Mozo @ Rosema , for Violation of Section 5 of R.A. No. 9165, accused
Pascual was charged with selling, trading, delivering and giving away to another
0.20 grams of Methamphetamine Hydrochloride (shabu), with no bail
recommended. 2 Pascual filed, on February 5, 2003, a motion for bail on the grounds
that the quantity of shabu involved is minimal and the imposable penalty is
likewise minimal in degree; and that she is nine months pregnant and due to give
birth anytime. 3

On the day of arraignment, February 7, 2003, respondent Judge issued an order

granting Pascual's motion for bail without hearing, which reads:

The MOTION FOR BAIL led by Accused through counsel is granted on the
reason cited thereat. ACaTIc

Accordingly, Accused ROSEMARIE PASCUAL Y MOZO may post her bail in

the amount of P200,000.00 in cash or thru a reputable bonding company,
or by property bond for her provisional liberty.

It is SO ORDERED. 4

ACP Francisco led a motion for reconsideration, arguing that since the crime
charged against Pascual is a capital oense, bail is not allowed as a matter of right;
and a hearing is indispensable. Respondent Judge denied the motion in her Order
dated March 12, 2003, which reads, in part:

xxx xxx xxx

This Court is immediately appalled and shocked by the thirst for blood of
these ocials, were selling shabu in the quantity of "0.20 gram", they would
put the accused to DEATH. It seems that, to these ocials LIFE
IMPRISONMENT and DEATH is the only solution to this problem, without
considering the intended provision of the law, and the possible dislocation
that the death of the accused will cause to his family and even to society
itself. The prosecution and some City Officials have distorted the provision of
the law by considering shabu as a "dangerous drug," in the category of
"opium puppy" (sic) or morphine. They cannot be more wrong!

In the 1961 Single Convention on Narcotic Drugs, as amended by the 1972

Protocol, Methamphetamine Hydrochloride is NEVER considered as
"dangerous drugs" to come under the provision of the rst paragraph of
Sec. 5, Republic Act No. 9165. The denition of dangerous drugs under Sec.
3, letter J of the said law, species those considered as dangerous drugs.
Instead Methamphetamine Hydrochloride is considered as a "controlled
precursor" or "essential chemical", which is found and listed in No. 7, LIST
OF SUBSTANCES in SCHEDULE NO. 111 of the 1971. United Nations Single
Convention on Psychotropic Substances. Therefore, Methamphetamine
Hydrochloride is a "chemical substance" or psychotropic substance and NOT
a "dangerous drug."!

Since the quantity is very much less than a gram of this essential chemical,
is punishable with imprisonment of only 12 years, as paragraph 2 of Sec. 5,
R.A. 9165 provides. There is no law, statute, or jurisprudence that classies
12 years imprisonment as a capital punishment, and non-bailable. Only
bloodsuckers who thirst for blood will consider death for these offenders for
this kind of offense!

Prosecution will probably argue that this drug is considered "dangerous"

under Sec. 11, R.A. 9165, but this section does not dene what are
dangerous drugs, and the term is used generally to encompass all drugs.
Still, this section only shows that for possession of certain quantities of
"shabu", is punishable with 12 years imprisonment only, NEVER DEATH! DASCIc

This Court has no quarrel with the Prosecutors if the drugs accused is
pushing or found in the custody of accused are of large volume, for then
they would really deserve to DIE! Then be richer by several millions, and
foster a society of drug abusers yet! But this Court cannot agree with
Prosecutors when the quantity that is peddled is not even enough to put
body and soul together of accused. Foisting death on these kind of
oenders, is death itself to him who imposes such a penalty! This court
cannot be that unjust and unfeeling, specially as the law itself does not so
allow!

The prosecutors are also reminded that the grant of bail to all oenses is
constitutionally guaranteed. Even those punishable with death or capital
offenses, only the EXCEPTIONS! It is never the rule.

xxx xxx xxx

 Perhaps if these questioning individuals will provide employment to their
constituents, the latter, will not engage in this kind of trade to survive. 5

I n Criminal Case No. 03-082, entitled, People of the Philippines vs. Rolando Uy y
Manata @ Nono, for Violation of Section 5, paragraph 1 of R.A. No. 9165, accused Uy
was charged with selling, trading, delivering and giving away to Philippine National
Police (PNP) operatives after a buy-bust operation 0.12 grams of Methamphetamine
Hydrochloride (shabu). ACP Romeo B. Senson recommended no bail. Uy led a
petition for bail cum motion to suppress prosecution evidence on February 18, 2003,
alleging, among others, that the arrest was illegal as no buy-bust operation
happened, and the shabu conscated was planted on him. Without hearing,
respondent Judge granted Uy's petition for bail since the quantity of drug allegedly
"pushed" is only 0.12 grams 6 Uy was released on a P200,000.00 bail. The motion
for reconsideration filed by ACP Francisco remains unresolved.

The antecedents of Criminal Case No. 03-265 entitled People of the Philippines vs.
Aiza Chona Omadan y Chua and John Doe, for Violation of Section 11 of R.A. No.
9165, are set forth and dealt with in Admin. Matter No. RTJ-03-1817.

I n Criminal Case No. 03-288 entitled People of the Philippines vs. Mary Jane
Regencia y Mozo @ Grace , for Violation of Section 5 of R.A. No. 9165, accused
Regencia was charged with selling, delivering, trading and giving away to another
0.07 grams of Methamphetamine Hydrochloride (shabu). Respondent Judge likewise
granted Regencia's motion for bail without hearing, on the ground that the quantity
of shabu involved is minimal and the imposable penalty is also minimal. 7

Respondent Judge was required to comment on these two complaints.

I n Admin. Matter No. RTJ-03-1817 , respondent Judge contends that P/Sr. Supt.
Mabutas's charges against her are baseless; that the preliminary investigation
conducted on Omadan's case was outside her jurisdiction; that she did not have any
hand or inuence in ACP Francisco's handling of the hearing on the petition for bail
as it is within the latter's control and supervision; that she denies that there was
undue haste in the grant of bail in Omadan's favor; and that bail was granted
because the prosecution's evidence of Omadan's guilt was not strong. 8

I n Admin. Matter No. RTJ-04-1820 , respondent Judge explains that she did not
conduct any hearings on the motions/petitions for bail led in the criminal cases
subject of the complaint because the crimes charged are not capital oenses as the
quantity of shabu involved therein was minimal. Criminal Case Nos. 03-065, 03-
082, and 03-288 all involve selling of less than 5 grams of shabu. Respondent Judge
believes that under R.A. No. 9165, shabu is not a dangerous drug but merely a
controlled precursor, in which the selling of less than 5 grams is punishable only
with imprisonment of 12 years to 20 years. Such being the case respondent Judge
maintains that bail is a matter of right and a hearing is not required. 9

The two complaints were consolidated and referred to Court of Appeals Associate
Justice Jose C. Reyes, Jr. for investigation, report, and recommendation. ECHSDc
After due proceedings, the Investigating Justice submitted his Report and
Recommendation, with the following findings and conclusion:

The charges arose out of the same set of facts and are interrelated and will
be discussed together.

Before proceeding further, the investigating justice will rst dispose

respondent judge's assertion that the complaints should be dismissed
outright claiming that where sucient judicial remedy exists, the ling of
administrative complaint is not the proper remedy to correct actions of a
judge citing the case of Barbers vs. Laguio, Jr. (351 SCRA 606 [2001])

Anent the charge of partiality and serious misconduct, the investigating

justice notes that these particular charges were not touched upon in the
testimony of any of the witnesses presented by the complainants.
Therefore, the investigating justice nds that no evidence as to partiality nor
serious misconduct exists and these charges should be dismissed for lack
of evidence.

The investigating justice will now therefore tackle only the charge of gross
ignorance of the law against respondent judge.

A close scrutiny of the said Barbers case shows that it is not applicable in
the present administrative complaints because in the said case it was clear
that complainants-petitioners were not merely concerned with the alleged
act of the judge of rendering an unjust judgment but was also seeking the
reversal of the judgment of acquittal. They had even led an appeal from the
judgment therein of respondent judge. Thus, the Supreme Court held:

It has been held that the pendency of an appeal from a questioned judgment
renders the ling of administrative charges premature. Where a sucient
judicial remedy exists, the ling of an administrative complaint is not the
proper remedy to correct the actions of a judge.

In the present administrative complaints, it was not shown that an appeal or

any other proceeding had been led to reverse the respondent judge's
orders granting bail. It had not been shown that the present administrative
complaints had any purpose other than seeking administrative sanctions
against respondent judge.

Turning now to the merits of the administrative complaints, the primordial

issue is: Whether or not there is an ambiguity in the law as to the
classification of methamphetamine hydrochloride.

Under Section 3(x) of the R.A. No. 9165 the substance was defined as:

Methamphetamine Hydrochloride or commonly known as "Shabu,"

"Ice," "Meth," or by its any other name. Refers to the drug having
such chemical composition, including any of its isomers or derivatives
in any form.

It can be noted that nothing in this provision indicates the classication of

the substance either as a dangerous or regulated drug. DAEaTS

It is respondent judge's position that "shabu" is not expressly classied as a

dangerous drug under Section 5 of R.A. No. 9165 and should therefore be
considered merely as a chemical precursor, to wit:

xxx xxx xxx

For clarity, the UN Single Convention was referred to in Section 3 of R.A. No.
9165 in relation to the denitions of dangerous drugs and controlled
precursors, to wit:

(h) Controlled Precursors and Essential Chemicals. Include

those listed in Tables I and II of the 1988 UN Convention Against
Illicit Trac in Narcotic Drugs and Psychotropic Substances as
enumerated in the attached annex, which is an integral part of
this Act.

xxx xxx xxx

(j) Dangerous Drugs. Include those listed in the Schedules

annexed to the 1961 Single Convention on Narcotic Drugs, as
amended by the 1972 Protocol, and in the Schedules annexed
to the 1971 Single Convention on Psychotropic Substances as
enumerated in the attached annex which is an integral part of
this Act.

It should be noted, however, that by the plain wordings of R.A. No. 9165
"dangerous drugs" are not limited to those substances listed in the
schedules attached to the 1961 United Nations Single Convention on
Narcotic Drugs because of the use of the word "include." That is, there are
other substances which may be considered dangerous drugs even if not
listed in the above-mentioned schedules.

It is also worth noting that under Section 11 of R.A. No. 9165,

Methamphetamine Hydrochloride was specically mentioned as a dangerous
drug, to wit:

xxx xxx xxx

(5) 50 grams or more of methamphetamine hydrochloride or

"shabu;"

xxx xxx xxx

It is clear, therefore, that the lawmakers intended to classify

Methamphetamine Hydrochloride or shabu as a dangerous drug. Moreover,
it would be absurd to consider methamphetamine hydrochloride a
"dangerous drug" under Section 11 of R.A. No. 9165 and merely a
"precursor" under Section 5 of the same law.

In ne, there is no question that methamphetamine hydrochloride is

classified as a dangerous drug.

Having made the foregoing findings, the next issue that calls for resolution is
the penalty imposable to the criminal cases under consideration. This is
necessary in order to determine if the accused are entitled to bail. Under
Section 13 of Article III of the 1987 Constitution, an accused shall be entitled
to bail as a matter of right unless charged with an oense punishable with a
capital penalty.EDcIAC

The Court notes that the criminal cases under consideration can be grouped
into two (2): A) Crim. Case No. 03-065 (against Rosemarie Pascual, Crim.
Case No. 03-082 (against Rolando Uy), and Crim. Case No. 03-288 (against
Mary Jane Regencia), which involve selling, trading, delivering or giving away
Methamphetamine Hydrochloride; and B) Crim. Case No. 03-265 (against
Aiza Chona Omadan) which involve possession of the said substance.

The investigating justice would rst discuss Crim. Case No. 03-265 where
the accused was charged with possession of 57.78 grams of
Methamphetamine Hydrochloride. Section 11 of R.A. No. 9165 provides that
the penalty imposable is life imprisonment to death. Therefore, in the Crim.
Case No. 03-265 accused therein is not entitled to bail as a matter of right.
Rightly so, a hearing was conducted before the bail was granted.

The investigating justice, after a careful consideration of the evidence

presented by the complainants, opines that there is insucient evidence to
support the allegation that bail was hastily granted to accused Aiza Chona
Omadan. Therefore, the charge of gross ignorance in relation to this case
should be dismissed for lack of factual basis.

The investigating justice will now tackle the other set of cases (Crim. Case
No. 03-065; Crim. Case No. 03-082; Crim. Case No. 03-288). Under the law,
these are punishable with penalty ranging from life imprisonment to death.
Pertinent portions of Section 5 of R.A. No. 9165 reads:

xxx xxx xxx

As held in Managuelod vs. Paclibon, et al. (A.M. No. RTJ-02-1726, March 29,
2004).

It is imperative that judges be conversant with basic legal principles

and possess sucient prociency in the law. In oenses punishable
by reclusion perpetua or death, the accused has no right to bail when
the evidence of guilt is strong. Respondent Judge Go should have
known the procedure to be followed when a motion for admission to
bail is led by the accused. Extreme care, not to mention the highest
sense of personal integrity, is required of him in granting bail, specially
in case where bail is not a matter of right. The fact that the provincial
prosecutor interposed no objection to the application for bail by the
accused did not relieve respondent judge of the duty to set the motion
 for bail for hearing. A hearing is of utmost necessity because certain
guidelines in xing bail (the nature of the crime, character and
reputation of the accused, weight of evidence against him, the
probability of the accused, appearing at the trial, among other things)
call for the presentation of evidence. It was impossible for respondent
judge to determine the application of these guidelines in an ex-parte
determination of the propriety of Palacol's motion for bail. Thus, for his
failure to conduct any hearing on the application for bail, we hold
respondent Judge Go guilty of gross ignorance of the law justifying the
imposition of the severest disciplinary sanction on him. (Emphasis
supplied) ADCSEa

It is clear, therefore, that as to said criminal cases the accused were likewise
not entitled to bail as a matter of right, hence, a hearing for the grant of bail
should have been conducted. However, in this last instance, no such hearing
was conducted.

In ne, respondent judge erred in granting bail to the accused in Crim. Case
No. 03-065, Crim. Case No. 03-082, and Crim. Case No. 03-288 without
hearing because the crime charge carries with it capital penalty.

As to Crim. Case No. 03-065, Crim. Case No. 03-082, and Crim. Case No.
03-288, the next issue to be resolved is: whether or not the mistake
amounted to gross ignorance of the law which would justify an
administrative sanction against respondent judge.

Respondent judge, naturally, argued that she cannot be held liable asserting
that to be held guilty of gross ignorance, the error must have been gross,
deliberate and malicious (Rollo, RTJ-04-1820, p. 74) and in absence of fraud,
dishonesty, or corruption that judge cannot be held liable (Rollo, RTJ-04-
1820, p. 75).

However, the Supreme Court does not always require the presence of
malice to find erring judges liable for gross ignorance.

In the above-cited Managuelod case the Supreme Court held that failure to
hold a hearing before granting bail in crimes involving capital punishment
constitutes gross ignorance of the law, thus:

. . . Thus, for his failure to conduct any hearing on the application for
bail, we hold respondent Judge Go guilty of gross ignorance of the law
justifying the imposition of the severest disciplinary sanction on him.

The same should hold true in the present administrative cases considering
that the criminal cases involved drugs, a major problem of the country
today.

In conclusion, the investigating justice nds respondent judge guilty of gross

ignorance of the law in relation to the granting of bail without hearing in
Crim. Case Nos. 03-065, 03-082 and 03-288 and exonerate her as to the
charge in relation to Criminal Case No. 03-265.
 xxx xxx xxx

The next issue then is the penalty imposable on respondent judge. In Mupas
vs. Espanol (A.M. No. RTJ-04-185014, July 14, 2004) the Supreme Court
enumerated the proper penalty for gross negligence (sic), thus: DAETHc

Under Section 8 of A.M. No. 01-8-10-SC amending Rule 140 of the

Rules of Court on the Discipline of Justices and Judges, which took
eect on October 1, 2001, gross ignorance of the law is classied as
a serious charge which carries with it a penalty of either dismissal
from service, suspension or a ne of more than P20,000.00 but not
exceeding P40,000.00. 10

Based on the foregoing, the Investigating Justice made the following

recommendation:

WHEREFORE, in view of the foregoing, it is respectfully recommended that

respondent Judge Norma C. Perello be DISMISSED on the ground of gross
ignorance of law in relation to the grant of bail in Criminal Case No. 03-065,
Criminal Case No. 03-082, Criminal Case No. 03-288. 11

The issue in these administrative cases is whether respondent Judge may be

administratively held liable for the grant of bail in the particular criminal cases
subject of the complaints. As earlier stated, the criminal cases subject of the present
administrative complaints all involve violations of R.A. No. 9165, or the
Comprehensive Dangerous Drugs Act of 2002.

Admin. Matter No. RTJ-03-1817 particularly relates to Criminal Case No. 03-265
(People of the Philippines vs. Aiza Chona Omadan ), involving the possession,
custody, and control of 57.78 grams of shabu, punishable under Section 11 thereof,
which reads:

SEC. 11. Possession of Dangerous Drugs . The penalty of life

imprisonment to death and a ne ranging from Five Hundred Thousand
Pesos (P500,000.00) to Ten Million Pesos (P10,000,000.00) shall be imposed
upon any person, who unless authorized by law, shall possess any
dangerous drug in the following quantities, regardless of the degree of
purity thereof:

xxx xxx xxx

(5) 50 grams or more of methamphetamine hydrochloride or

"shabu;" (Emphasis supplied)

xxx xxx xxx

Under the foregoing provision, possession of 50 grams or more of

methamphetamine hydrochloride or shabu is punishable by life imprisonment to
death; hence, a capital oense. 12 As such, bail becomes a matter of discretion. In
this regard, Rule 114, Sec. 7 of the Rules of Court states:
 No person charged with the capital oense, or an oense punishable by
reclusion perpetua or life imprisonment, shall be admitted to bail when the
evidence of guilt is strong, regardless of the stage of the criminal
prosecution.

This provision is based on Section 13, Article III of the 1987 Constitution, which
reads:

All persons, except those charged with oenses punishable by reclusion

perpetua when evidence of guilt is strong, shall, before conviction, be
bailable by sucient sureties, or be released on recognizance as may be
provided by law. The right to bail shall not be impaired even when the
privilege of the writ of habeas corpus is suspended. Excessive bail shall not
be required. CcTIDH

The matter of determining whether or not the evidence is strong is a matter of

judicial discretion that remains with the judge. 13 Such discretion must be sound
and exercised within reasonable bounds. 14

Under the present rules, a hearing on an application for bail is mandatory. 15

Whether bail is a matter of right or of discretion, the prosecutor should be given
reasonable notice of hearing, or at least his recommendation on the matter must be
sought. In case an application for bail is led, the judge is entrusted to observe the
following duties:

1. In all cases, whether bail is a matter of right or discretion, notify the

prosecutor of the hearing of the application for bail or require him to submit
his recommendation;

2. Where bail is a matter, of discretion, conduct a hearing of the

application for bail regardless of whether or not the prosecution refuses to
present evidence to show that the guilt of the accused is strong for the
purpose of enabling the court to exercise its sound discretion;

3. Decide whether the guilt of the accused is strong based on the

summary of evidence of the prosecution; and

4. If the guilt of the accused is not strong, discharge the accused upon
the approval of the bail bond. Otherwise the bail should be denied. 16

Based on the above-cited procedure and requirements, after the hearing, the court's
order granting or refusing bail must contain a summary of the evidence for the
prosecution. A summary is dened as a comprehensive and usually brief abstract or
digest of a text or statement. Based on the summary of evidence, the judge
formulates his own conclusion on whether such evidence is strong enough to
indicate the guilt of the accused. 17

In this case, respondent Judge complied with the foregoing duties. A hearing was
held on the petition; the prosecution was given the opportunity to present its
evidence in support of its stance; respondent Judge based her ndings on the
prosecution's evidence, namely, the testimonies of PO2 Saturnino Mayonte and
Arturo Villarin respondent Judge's Order dated May 9, 2003 granting the accused's
petition for bail contained a summary of the prosecution's evidence; and since it
was her conclusion that the evidence of accused Omadan's guilt is not strong, the
petition for bail was granted. 18 Respondent Judge did not violate procedural
requirements. Records show that respondent Judge aorded the prosecution ample
opportunity to present all the evidence it had and there was no protest from the
prosecution that it had been deprived of its right to present against the accused.
Thus, the Court does not nd any irregularity in the grant of bail in Criminal Case
No. 03-265 that would render respondent Judge administratively liable.

It is noted that the other circumstances, complained of in this case, do not relate
solely to respondent Judge's acts, but to the prosecution's conduct in handling the
case. Thus, P/Insp. Darwin S. Butuyan stated in his report that "there is something
wrong in the procedures and circumstances adopted by the Oce of the City
Prosecutor of Muntinlupa City and Branch 276, RTC, Muntinlupa City in handling
the case leading to the granting of bail to accused Aiza Chona Omadan y Chua." 19

The Court recognizes that the manner in which the strength of an accused's guilt is
proven still primarily rests on the prosecution. The prosecutor has the right to
control the quantum of evidence and the order of presentation of the witnesses, in
support of the denial of bail. After all, all criminal actions are prosecuted under the
direction and control of the public prosecutor. 20 It was the prosecution's judgment
to limit the presentation of evidence to two witnesses, as it felt that the testimonies
of the other witnesses would be merely corroborative. It is beyond respondent
Judge's authority to compel the public prosecutor to exercise its discretion in a way
respondent Judge deems t, so long as such exercise of discretion will not defeat the
purpose for which the hearing was held, i.e., to determine whether strong evidence
of guilt exists such that the accused may not be entitled to bail. ACcTDS

In any event, the complainant in this case had also led a letter-complaint with the
Department of Justice against the concerned public prosecutors. 21 Such matter is
best left handled by the Department, and the Court will not interfere on the matter.

Admin. Matter No. RTJ-04-1820, however, portrays an entirely different picture.

In this case, respondent Judge granted bail in Criminal Cases Nos. 03-065, 03-082,
and 03-288 without the requisite hearing. In so doing, it was respondent Judge's
defense that under R.A. No. 9165, shabu is not a dangerous drug but merely a
controlled precursor, in which the selling of less than 5 grams is punishable only
with imprisonment of 12 years to 20 years, and as such, bail is a matter of right and
a hearing is not required. Respondent Judge argued that:

In determining whether methamphetamine hydrochloride or "shabu is indeed

classied as a dangerous drug under the said Republic Act, undersigned
exhaustively studied the provision of this law and found that in Letter "H,"
Art. 1, Section 3: Denition of Terms, Methamphetamine Hydrochloride is
 listed in Table II, No. 12 of the 1988 UN Convention Against Illicit Trac in
Narcotic Drugs and Psychotropic Substances, which list is attached annex,
an integral part of this Act, Methamphetamine and is listed as a
CONTROLLED PRECURSOR or ESSENTIAL CHEMICAL. This is more
imperatively classied as a chemical, in Letter "X of the Denition, Sec. 3, Art.
1, where shabu is considered as "such chemical." Therefore, under the
denition by law itself, shabu or methamphetamine hydrochloride is
classified as a controlled precursor or essential chemical.

The denition of what are considered as DANGEROUS DRUGS, is (sic) those

in Letter "J," Sec. 3, Art. 1 of R.A. 9165, listed in 1961 Singled Convention on
Narcotic Drugs, as amended by the 1972 Protocol, which list is again an
integral part of this Act. Methamphetamine is NOT one of the enumerations
of dangerous drugs. Therefore, the selling or trading of this substance in a
quantity less than a gram is punishable with an imprisonment of only twelve
(12) years as provided by the second paragraph of Section 5, Article II, is
not on capital offense punishable with death or life imprisonment, is bailable.

Section 11, Art. II, of the same Act, treats of POSSESSION "NOT SELLING,"
where possession of this substance is considered as a capital oense,
punishable with death or life imprisonment, only if the accused is in
possession of it in the quantity of 50 GRAMS (50 grams), irrespective of the
purity of the substance. It becomes a capital oense only if it is in the
quantity of fty grams (50 GRAMS) under No. 5 of Section 11, Art. II.
Corollarilly, if it is less than this quantity, possession of methamphetamine
hydrochloride is NOT punishable with a capital penalty, hence, bailable! To
stress POSSESSION of Methamphetamine Hydrochloride is considered as
capital oense punishable with capital penalty if the quantity is 50 GRAMS
(50 GRAMS), (Sec. 11, Art. II) while PUSHING of methamphetamine
hydrochloride (Paragraph 2, Sec. 5) to be punishable with capital penalty
must be in the quantity of FIVE GRAMS (5 GRAMS), (Guidelines for RA 9165)
22

To justify her granting bail in the three criminal cases, respondent Judge insists that
she did so because of her belief that methamphetamine hydrochloride or shabu is
merely a precursor and therefore the sale thereof is not a capital oense. This
opinion is blatantly erroneous. One need not even go beyond the four corners of R.A.
No. 9165 to see respondent Judge's palpable error in the application of the law. DAETHc

Respondent Judge need not "exhaustively" study R.A. No. 9165, as she asserted, to
determine the nature of methamphetamine hydrochloride. A plain reading of the
law would immediately show that methamphetamine hydrochloride is a dangerous
drug and not a controlled precursor. If only respondent Judge prudently went over
the pertinent provisions of R.A. No. 9165, particularly Section 3, items (h) and (j),
and properly made the corresponding reference to the schedules and tables annexed
thereto, she would have easily ascertained that methamphetamine hydrochloride is
listed in the 1971 UN Single Convention on Psychotropic Substances, which are
considered dangerous drugs. It is not listed in the 1988 UN Convention Against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances, as respondent Judge stated. 23
Dangerous Drugs are dened by Section 3, paragraph (j) of R.A. No. 9165, as
including those in the Schedules listed annexed to the 1961 Single Convention on
Narcotic Drugs, as amended by the 1972 Protocol, and in the Schedules annexed to
the 1971 UN Single Convention on Psychotropic Substances, which were made an
integral part of R.A. No. 9165.

Under the foregoing section, dangerous drugs are classied into: (1) narcotic drugs,
as listed in the 1961 Single Convention on Narcotic Drugs, as amended by the 1972
Protocol; and (2) psychotropic substances, as listed in the 1971 UN Single
Convention on Psychotropic Substances.

For purposes of this case, the list of substances in Schedule II of the 1971 UN Single
Convention of Psychotropic Substances is hereby reproduced, to wit:

LIST OF SUBSTANCES IN SCHEDULE II

1. AMFETAMINE (AMPHETAMINE)

2. DEXAMFETAMINE (DEXAMPHETAMINE)

3. FENETYLLINE DRONABINOL a

4. LEVAMFETAMINE

5. LEVOMETHAMPHETAMINE

6. MECLOQUALONE

7. METAMFETAMINE
(METHAMPHETAMINE)

8. METAMFETAMINE RACEMATE

9. METHAQUALONE

10. METHYLPHE NIDATE

11. PHENCYCLIDINE (PCP)

12. PHENMETRAZINE

13. SECOBARBITAL DaAIHC

14. DRONABINOL (delta-9-tetrahydro-cannabinol and its stereochemical

variants)

15. ZIPEPROL

16. 2C-B (4-bromo-2, 5-dimethoxyphenethylamine)

It clearly shows that methamphetamine is a psychotropic substance, or a

dangerous drug.
On the other hand, under Section 3, paragraph (h) of R.A. No. 9165, controlled
precursors and essential chemicals, refer to those listed in Tables I and II of the
1988 UN Convention Against Illicit Trac in Narcotic Drugs and Psychotropic
Substances, which were likewise made integral part of R.A. No. 9165, to wit:

TABLE I TABLE II

1 ACETIC ANHYDRIDE 1. ACETONE

2. N-ACETYLANTHRANILIC ACID 2 ANTHRANILIC ACID

3. EPHEDRIN 3. ETHYL ETHER

4. ERGOMETRINE 4. HYDROCHLORIC ACID

5. ERGOTAMINE 5. METHYL ETHYL KETONE

6. ISOSAFROLE 6. PHENYLACETIC ACID

7. LYSERGIC ACID 7. PIPERIDINE

8. 3,4-METHYLENEDIOXYPHENYL-2 8. SULPHURIC ACID

PROPANONE 9. TOLUENE

9. NOREPHEDRINE

10. 1-PHENYL-2-PROPANONE

11. PIPERONAL

12. POTASSIUM PERMANGANATE

13. PSEUDOEPHEDRINE

14. SAFROLE

It readily reveals that methamphetamine is not one of those listed as controlled

precursor or essential chemical.

Given the foregoing, methamphetamine hydrochloride is a dangerous drug, and not

a controlled precursor or essential chemical. That "methamphetamine" and not
"methamphetamine hydrochloride" is the term specically listed in Schedule II of
the 1971 UN Single Convention of Psychotropic Substances does not detract from
the fact that it is a dangerous drug. Section 3, paragraph (x) of R.A. No. 9165, states
that methamphetamine hydrochloride is a drug having such chemical composition,
including any of its isomers or derivatives in any form.

This is further strongly manifest in Section 11 of R.A. No. 9165 wherein it is

specically provided that the possession of dangerous drugs, such as
methamphetamine hydrochloride or shabu, is punishable with life imprisonment to
death and a ne ranging from Five Hundred Thousand Pesos (P500,000.00) to Ten
Million Pesos (P10,000,000.00), if the quantity thereof is 50 grams or more. It
would be absurd, to say the least, that Section 11 of R.A. No. 9165 would qualify
methamphetamine hydrochloride as a dangerous drug, while Section 5 of the same
law, penalizing the sale thereof, would treat it as a controlled precursor.

Had respondent Judge been more circumspect in going over the pertinent provisions
of R.A. No. 9165, she would certainly arrive at the same conclusion. It does not even
take an interpretation of the law but a plain and simple reading thereof.
Furthermore, had respondent judge kept herself abreast of jurisprudence and
decisions of the Court, 24 she would have been apprised that in all the hundreds and
hundreds of cases 25 decided by the Court, methamphetamine hydrochloride or
shabu had always been considered as a dangerous drug. TaDAHE

Given that methamphetamine hydrochloride is a dangerous drug, the applicable

provision in Criminal Case Nos. 03-065 03-082, and 03-288 subject of Admin.
Matter No. RTJ-04-1820, is Section 5, paragraph 1 of R.A. No. 9165, which reads:

SECTION 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution

and Transportation of Dangerous Drugs and/or Controlled, Precursors and
Essential Chemicals. The penalty of life imprisonment to death and ne
ranging from Five hundred thousand pesos (P500,000.00) to Ten million
pesos (P10,000,000.00) shall be imposed upon any person, who, unless
authorized by law, shall sell, trade, administer, dispense, deliver, give away to
another, distribute, dispatch in transit or transport any dangerous drug,
including any and all species of opium poppy regardless of the quantity and
purity involved, or shall act as a broker in any of such transactions.

Regardless of quantity, the sale, trade, administration, dispensation, delivery,

distribution and transportation of shabu is punishable by life imprisonment to death.
Being a capital oense, it is incumbent upon respondent Judge to hold a hearing on
the petitions/motions for bail led by the accused therein to determine whether
evidence of guilt is strong. To grant an application for bail and x the amount
thereof without a hearing duly called for the purpose of determining whether the
evidence of guilt is strong constitutes gross ignorance or incompetence whose
grossness cannot be excused by a claim of good faith or excusable negligence. 26

In Gallardo vs. Tabamo , 27 the Court rejected the defense that the judge's failure to
apply the clear provisions of the law is merely an error of judgment, and the judge
was held administratively liable for gross ignorance of the law where the applicable
legal provisions are crystal clear and need no interpretation.

Moreover, such gross ignorance of law is in violation of Rule 3.01 of the Code of
Judicial Conduct, which states that "a judge shall be faithful to the law and maintain
professional competence."

The indispensable nature of a bail hearing in petitions for bail has always
been ardently and indefatigably stressed by the Court. The Code of Judicial
Conduct enjoins judges to be faithful to the law and maintain professional
competence. A judge is called upon to exhibit more than just a cursory
acquaintance with statutes and procedural rules; it is imperative that he be
conversant with basic legal principles and be aware of well-settled
 authoritative doctrines. He should strive for excellence exceeded only by his
passion for truth, to the end that he be the personication of justice and the
Rule of Law. 28

Although judges cannot be held to account or answer criminally, civilly or

administratively for every erroneous judgment or decision rendered by him in good
faith, it is imperative that they should have basic knowledge of the law. 29

Even if a judge acted in good faith but his ignorance is so gross, he should be held
administratively liable. 30

Under Rule 140 of the Rules of Court, as amended by A.M. No. 01-8-10-SC, which
took eect on October 1, 2001, gross ignorance of the law is classied as a serious
charge and is now punishable with severe sanctions, to wit:

Sec. 11. Sanctions. A. If the respondent is guilty of a serious charge,

any of the following sanctions may be imposed: HETDAa

1. Dismissal from the service, forfeiture of all or part of the benets as

the Court may determine, and disqualication from reinstatement or
appointment to any public oce, including government-owned or controlled
corporations. Provided, however, that the forfeiture of benets shall in no
case include accrued leave credits.

2. Suspension from oce without salary and other benets for more
than three (3) but not exceeding six (6) months; or

3. A fine of more than P20,000.00 but not exceeding P40,000.00.

In this case, the Investigating Justice recommended that respondent Judge be

dismissed from the service. The Court nds such penalty to be too harsh. In similar
cases, 31 the Court imposed a ne on the respondents therein for gross ignorance of
the law for having granted bail to the accused without notice and hearing. However,
the Court takes judicial notice that this is not the rst time that respondent Judge
was administratively ned. In A.M. No. RTJ-02-1686 , 32 a ne of P5,000.00 and a
reprimand was imposed on respondent Judge for dereliction of duty for her failure to
act on Civil Case No. 9-138 for three years. In A.M. No. RTJ-04-1846 , 33 respondent
Judge was held administratively liable for gross ignorance of the law, grave
misconduct and oppression for the delay of almost nine (9) months in the
transmittal of the records of Civil Case No. 01-268 to the Court of Appeals, and was
ned P20,000.00. Thus, the Court is imposing a penalty more severe than a ne.
Suspension from oce for six (6) months in Admin. Matter No. RTJ-04-1820 ,
excluding Criminal Case No. 03-265 (People of the Philippines vs. Aiza Chona
Omadan), is sufficient and reasonable.

The Oce of the Court Administrator (OCA) also notes, in its Memorandum dated
November 22, 2002, that respondent Judge caused the release from the National
Bilibid Prison of several persons convicted of violation of the drugs law by granting
the petitions for habeas corpus led in her court, i.e., Spl. Proc. Nos. 02-002, 02-008,
02-10, 98-023 and 98-048. The OCA further stated that in Spl. Proc. Nos. 98-023
and 98-048, respondent Judge granted the petitions without determining the
veracity of the allegations therein; without any material evidence in support of her
ndings and conclusion; and that at the time the petitions were granted, an appeal
from the convictions in these two cases is pending before the Court (G.R. Nos.
131622-23). Thus, the OCA recommends that an investigation, report, and
recommendation on these two cases be made, and that it be authorized to conduct
an audit on all the petitions for habeas corpus in all the courts of the Regional Trial
Court of Muntinlupa City from 1998 to the present. 34

WHEREFORE, judgment is hereby rendered:

(1) I n Admin. Matter No. RTJ-03-1817, DISMISSING the complaint against

respondent Judge; and,

(2) I n Admin. Matter No. RTJ-04-1820 , nding respondent Judge Norma C.

Perello, Presiding Judge of the Regional Trial Court (Branch 276) of Muntinlupa City
GUILTY of gross ignorance of law , and she is hereby SUSPENDED for Six (6) Months,
with warning that a repetition of similar acts shall be dealt with more severely. THaCAI

AS TO OTHER MATTERS:

(a) The Court ORDERS the Oce of the Court Administrator to initiate the
appropriate complaint for grave misconduct and/or gross ignorance of the law
against respondent Judge, insofar as Spl. Proc. Nos. 02-002, 02-008, 02-10, 98-023
and 98-048 are concerned; and to conduct preliminary investigation and submit
report thereon within ninety (90) days from notice hereof.

(b) The Oce of the Court Administrator is AUTHORIZED to conduct an audit

and submit a report within ninety (90) days from notice hereof, on all the petitions
for habeas corpus in all the courts of the Regional Trial Court of Muntinlupa City
from 1998 to present.

SO ORDERED.

Callejo, Sr., Tinga and Chico-Nazario, JJ., concur.

Puno, J., is on official leave.

Footnotes

1. Rollo, A.M. No. RTJ-03-1817, pp. 67-68.

2. Rollo, A.M. No. RTJ-04-1820, p. 22.

3. Id., p. 23.

4. Id., p. 27.

5. Id., pp. 35-36.

6. Id., p. 41.
7. Id., pp. 59, 60.

8. Rollo, A.M. No. RTJ-03-1817, pp. 229-238.

9. Rollo, A.M. No. RTJ-04-1820, pp. 3-4.

10. Report and Recommendation, pp. 27-40.

11. Id., p. 40.

12. Rule 114, Section 6 of the Revised Rules of Criminal Procedure, as amended,
denes a capital oense as an oense which, under the law existing at the time of
its commission and of the application for admission to bail, may be punished with
death.

13. Jamora vs. Bersales , A.M. No. MTJ-04-1529, December 16, 2004.

14. Basco vs. Rapatalo, A.M. No. RTJ-96-1335, March 5, 1997, 269 SCRA 220.

15. Ruiz vs. Beldia, A.M. No. RTJ-02-1731, February 16, 2005.

16. Te vs. Perez , A.M. No. MTJ-00-1286, January 21, 2002, 374 SCRA 130.

17. Docena-Caspe vs. Bugtas , A.M. No. RTJ-03-1767, March 28, 2003, 400 SCRA 37.

18. Rollo, A.M. No. RTJ-03-1817, pp. 66-68.

19. Id., p. 206.

20. Rule 110, Section 5, Revised Rules of Criminal Procedure, as amended by A.M.
No. 02-2-07-SC.

21. TSN, July 16, 2004, Senior Superintendent Orlando Mabutas, p. 80.

22. Rollo, A.M. No. RTJ-03-1817, pp. 290-291.

23. Rollo, A.M. No. RTJ-03-1817, p. 290.

24. Lim vs. Dumlao, A.M. No. MTJ-04-1556, March 31, 2005.

25. People vs. Tang Wai Lan , G.R. Nos. 118736-37, July 23, 1997, 276 SCRA 24;
People, vs. Macalaba, 394 SCRA 478, G.R. Nos. 146284-86, January 20, 2003, 395
SCRA 461; People vs. Canton , G.R. No. 148825, December 27, 2002, 394 SCRA
478; People vs. Corpus , G.R. No. 148919, December 17, 2002, 394 SCRA 191;
People vs. Medina, G.R. No. 127157, July, 10, 1998, 292 SCRA 436.

26. Ypil vs. Vilo, A.M. No. MTJ-02-1457, August 11, 2004, 436 SCRA 62.

27. A.M. No. RTJ-92-881, June 22, 1994.

28. Docena-Caspe case, supra.

29. Guyud vs. Pine, A.M. No. MTJ-03-1469, January 13, 2003, 395 SCRA 26.
30. Gil vs. Lopez, Jr., A.M. No. MTJ-02-1453, April 29, 2003, 401 SCRA 635, 643.

31. Docena-Caspe vs. Bugtas , A.M. No. RTJ-03-1767, March 28, 2003, 400 SCRA 37;
Manonggiring vs. Ibrahim, A.M. No. RTJ-01-1663, November 15, 2002, 391 SCRA
673; Panganiban vs. Cupin-Tesorero , A.M. No. RTJ-1454, August 27, 2002, 388
SCRA 44; Tabao vs. Barataman , A.M. No. MTJ-01-1384, April 11, 2002, 380 SCRA
396; Layola vs. Gabo, Jr., A.M. No. RTJ-1524, January 26, 2000, 323 SCRA 348.

32. May 7, 2004.

33. January 31, 2005.

34. Rollo, Admin. Matter No. RTJ-04-1820, p. 11.

 THIRD DIVISION

[G.R. No. 189122. March 17, 2010.]

JOSE ANTONIO LEVISTE, petitioner, vs. THE COURT OF APPEALS

and PEOPLE OF THE PHILIPPINES, respondents.

DECISION

CORONA, J : p

Bail, the security given by an accused who is in the custody of the law for his release
to guarantee his appearance before any court as may be required, 1 is the answer of
the criminal justice system to a vexing question: what is to be done with the
accused, whose guilt has not yet been proven, in the "dubious interval," often years
long, between arrest and nal adjudication? 2 Bail acts as a reconciling mechanism
to accommodate both the accused's interest in pretrial liberty and society's interest
in assuring the accused's presence at trial. 3

Upon conviction by the Regional Trial Court of an oense not punishable by death,
reclusion perpetua or life imprisonment, the accused who has been sentenced to
prison must typically begin serving time immediately unless, on application, he is
admitted to bail. 4 An accused not released on bail is incarcerated before an
appellate court conrms that his conviction is legal and proper. An erroneously
convicted accused who is denied bail loses his liberty to pay a debt to society he has
never owed. 5 Even if the conviction is subsequently armed, however, the
accused's interest in bail pending appeal includes freedom pending judicial review,
opportunity to eciently prepare his case and avoidance of potential hardships of
prison. 6 On the other hand, society has a compelling interest in protecting itself by
swiftly incarcerating an individual who is found guilty beyond reasonable doubt of a
crime serious enough to warrant prison time. 7 Other recognized societal interests in
the denial of bail pending appeal include the prevention of the accused's ight from
court custody, the protection of the community from potential danger and the
avoidance of delay in punishment. 8 Under what circumstances an accused may
obtain bail pending appeal, then, is a delicate balance between the interests of
society and those of the accused. 9

Our rules authorize the proper courts to exercise discretion in the grant of bail
pending appeal to those convicted by the Regional Trial Court of an oense not
punishable by death, reclusion perpetua or life imprisonment. In the exercise of that
discretion, the proper courts are to be guided by the fundamental principle that the
allowance of bail pending appeal should be exercised not with laxity but
with grave caution and only for strong reasons, considering that the accused
has been in fact convicted by the trial court. 10
cDCEIA
 THE FACTS

Charged with the murder of Rafael de las Alas, petitioner Jose Antonio Leviste was
convicted by the Regional Trial Court of Makati City for the lesser crime of homicide
and sentenced to suer an indeterminate penalty of six years and one day of prision
mayor as minimum to 12 years and one day of reclusion temporal as maximum. 11

He appealed his conviction to the Court of Appeals. 12 Pending appeal, he led an

urgent application for admission to bail pending appeal, citing his advanced age and
health condition, and claiming the absence of any risk or possibility of ight on his
part.

The Court of Appeals denied petitioner's application for bail. 13 It invoked the
bedrock principle in the matter of bail pending appeal, that the discretion to extend
bail during the course of appeal should be exercised "with grave caution and only for
strong reasons." Citing well-established jurisprudence, it ruled that bail is not a sick
pass for an ailing or aged detainee or a prisoner needing medical care outside the
prison facility. It found that petitioner

. . . failed to show that he suers from ailment of such gravity that his
continued connement during trial will permanently impair his health or put
his life in danger. . . . Notably, the physical condition of [petitioner] does not
prevent him from seeking medical attention while conned in prison, though
he clearly preferred to be attended by his personal physician. 14

For purposes of determining whether petitioner's application for bail could be

allowed pending appeal, the Court of Appeals also considered the fact of petitioner's
conviction. It made a preliminary evaluation of petitioner's case and made a prima
facie determination that there was no reason substantial enough to overturn the
evidence of petitioner's guilt.

Petitioner's motion for reconsideration was denied. 15

Petitioner now questions as grave abuse of discretion the denial of his application
for bail, considering that none of the conditions justifying denial of bail under the
third paragraph of Section 5, Rule 114 of the Rules of Court was present.
Petitioner's theory is that, where the penalty imposed by the trial court is more
than six years but not more than 20 years and the circumstances mentioned in the
third paragraph of Section 5 are absent, bail must be granted to an appellant
pending appeal.

THE ISSUE

The question presented to the Court is this: in an application for bail pending appeal
by an appellant sentenced by the trial court to a penalty of imprisonment for more
than six years, does the discretionary nature of the grant of bail pending appeal
mean that bail should automatically be granted absent any of the circumstances
mentioned in the third paragraph of Section 5, Rule 114 of the Rules of Court?

Section 5, Rule 114 of the Rules of Court provides:

 Sec. 5. Bail, when discretionary. Upon conviction by the Regional
Trial Court of an oense not punishable by death, reclusion
perpetua, or life imprisonment, admission to bail is discretionary.
The application for bail may be led and acted upon by the trial court despite
the ling of a notice of appeal, provided it has not transmitted the original
record to the appellate court. However, if the decision of the trial court
convicting the accused changed the nature of the oense from non-bailable
to bailable, the application for bail can only be led with and resolved by the
appellate court.ADcEST

Should the court grant the application, the accused may be allowed to
continue on provisional liberty during the pendency of the appeal under the
same bail subject to the consent of the bondsman.

If the penalty imposed by the trial court is imprisonment

exceeding six (6) years, the accused shall be denied bail, or his bail
shall be cancelled upon a showing by the prosecution, with notice
to the accused, of the following or other similar circumstances:

(a) That he is a recidivist, quasi-recidivist, or habitual

delinquent, or has committed the crime aggravated by the
circumstance of reiteration;

(b) That he has previously escaped from legal

connement, evaded sentence, or violated the conditions of
his bail without a valid justification;

(c) That he committed the oense while under probation,

parole, or conditional pardon;

(d) That the circumstances of his case indicate the

probability of flight if released on bail; or

(e) That there is undue risk that he may commit another

crime during the pendency of the appeal.

The appellate court may, motu proprio or on motion of any party, review the
resolution of the Regional Trial Court after notice to the adverse party in
either case. (emphasis supplied)

Petitioner claims that, in the absence of any of the circumstances mentioned in the
third paragraph of Section 5, Rule 114 of the Rules of Court, an application for bail
by an appellant sentenced by the Regional Trial Court to a penalty of more than six
years' imprisonment should automatically be granted.

Petitioner's stance is contrary to fundamental considerations of procedural and

substantive rules.

BASIC PROCEDURAL CONCERNS

FORBID GRANT OF PETITION
Petitioner led this special civil action for certiorari under Rule 65 of the Rules of
Court to assail the denial by the Court of Appeals of his urgent application for
admission to bail pending appeal. While the said remedy may be resorted to
challenge an interlocutory order, such remedy is proper only where the
interlocutory order was rendered without or in excess of jurisdiction or with grave
abuse of discretion amounting to lack or excess of jurisdiction. 16CIaASH

Other than the sweeping averment that "[t]he Court of Appeals committed grave
abuse of discretion in denying petitioner's application for bail pending appeal despite
the fact that none of the conditions to justify the denial thereof under Rule 114,
Section 5 [is] present, much less proven by the prosecution," 17 however, petitioner
actually failed to establish that the Court of Appeals indeed acted with grave abuse
of discretion. He simply relies on his claim that the Court of Appeals should have
granted bail in view of the absence of any of the circumstances enumerated in the
third paragraph of Section 5, Rule 114 of the Rules of Court. Furthermore,
petitioner asserts that the Court of Appeals committed a grave error and prejudged
the appeal by denying his application for bail on the ground that the evidence that
he committed a capital offense was strong.

We disagree.

It cannot be said that the Court of Appeals issued the assailed resolution without or
in excess of its jurisdiction. One, pending appeal of a conviction by the Regional Trial
Court of an oense not punishable by death, reclusion perpetua, or life
imprisonment, admission to bail is expressly declared to be discretionary. Two, the
discretion to allow or disallow bail pending appeal in a case such as this where the
decision of the trial court convicting the accused changed the nature of the oense
from non-bailable to bailable is exclusively lodged by the rules with the appellate
court. Thus, the Court of Appeals had jurisdiction to hear and resolve petitioner's
urgent application for admission to bail pending appeal.

Neither can it be correctly claimed that the Court of Appeals committed grave abuse
of discretion when it denied petitioner's application for bail pending appeal. Grave
abuse of discretion is not simply an error in judgment but it is such a
capricious and whimsical exercise of judgment which is tantamount to lack of
jurisdiction. 18 Ordinary abuse of discretion is insucient. The abuse of
discretion must be grave, that is, the power is exercised in an arbitrary or despotic
manner by reason of passion or personal hostility. 19 It must be so patent and gross
as to amount to evasion of positive duty or to a virtual refusal to perform the duty
enjoined by or to act at all in contemplation of the law. In other words, for a petition
for certiorari to prosper, there must be a clear showing of caprice and arbitrariness
in the exercise of discretion. 20

Petitioner never alleged that, in denying his application for bail pending appeal, the
Court of Appeals exercised its judgment capriciously and whimsically. No
capriciousness or arbitrariness in the exercise of discretion was ever imputed to the
appellate court. Nor could any such implication or imputation be inferred. As
observed earlier, the Court of Appeals exercised grave caution in the exercise of its
discretion. The denial of petitioner's application for bail pending appeal was not
unreasonable but was the result of a thorough assessment of petitioner's claim of ill
health. By making a preliminary appraisal of the merits of the case for the purpose
of granting bail, the court also determined whether the appeal was frivolous or not,
or whether it raised a substantial question. The appellate court did not exercise its
discretion in a careless manner but followed doctrinal rulings of this Court. CAaSED

At best, petitioner only points out the Court of Appeal's erroneous application and
interpretation of Section 5, Rule 114 of the Rules of Court. However, the
extraordinary writ of certiorari will not be issued to cure errors in
proceedings or erroneous conclusions of law or fact. 21 In this connection,
Lee v. People 22 is apropos:
. . . Certiorari may not be availed of where it is not shown that the
respondent court lacked or exceeded its jurisdiction over the
case, even if its ndings are not correct. Its questioned acts would at
most constitute errors of law and not abuse of discretion correctible by
certiorari.

In other words, certiorari will issue only to correct errors of jurisdiction and
not to correct errors of procedure or mistakes in the court's ndings and
conclusions. An interlocutory order may be assailed by certiorari or
prohibition only when it is shown that the court acted without or in excess
of jurisdiction or with grave abuse of discretion. However, this Court
generally frowns upon this remedial measure as regards interlocutory
orders. To tolerate the practice of allowing interlocutory orders to be the
subject of review by certiorari will not only delay the administration of justice
but will also unduly burden the courts. 23 (emphasis supplied)

WORDING OF THIRD PARAGRAPH OF SECTION 5,

RULE 114 CONTRADICTS PETITIONER'S
INTERPRETATION

The third paragraph of Section 5, Rule 114 applies to two scenarios where the
penalty imposed on the appellant applying for bail is imprisonment exceeding six
years. The rst scenario deals with the circumstances enumerated in the said
paragraph (namely, recidivism, quasi-recidivism, habitual delinquency or
commission of the crime aggravated by the circumstance of reiteration; previous
escape from legal connement, evasion of sentence or violation of the conditions of
his bail without a valid justication; commission of the oense while under
probation, parole or conditional pardon; circumstances indicating the probability of
ight if released on bail; undue risk of committing another crime during the
pendency of the appeal; or other similar circumstances) not present. The second
scenario contemplates the existence of at least one of the said circumstances.

The implications of this distinction are discussed with erudition and clarity in the
commentary of retired Supreme Court Justice Florenz D. Regalado, an authority in
remedial law:

Under the present revised Rule 114, the availability of bail to an accused may
 be summarized in the following rules:

xxx xxx xxx

e. After conviction by the Regional Trial Court wherein a penalty of

imprisonment exceeding 6 years but not more than 20 years is imposed,
and not one of the circumstances stated in Sec. 5 or any other similar
circumstance is present and proved, bail is a matter of discretion (Sec.
5);

f. After conviction by the Regional Trial Court imposing a penalty of

imprisonment exceeding 6 years but not more than 20 years, and any of the
circumstances stated in Sec. 5 or any other similar circumstance is present
and proved, no bail shall be granted by said court (Sec. 5); . . . 24
(emphasis supplied)

Retired Court of Appeals Justice Oscar M. Herrera, another authority in remedial

law, is of the same thinking:

Bail is either a matter of right or of discretion. It is a matter of right when the

oense charged is not punishable by death, reclusion perpetua or life
imprisonment. On the other hand, upon conviction by the Regional Trial
Court of an oense not punishable death, reclusion perpetua or life
imprisonment, bail becomes a matter of discretion.

Similarly, if the court imposed a penalty of imprisonment exceeding

six (6) years then bail is a matter of discretion, except when any
of the enumerated circumstances under paragraph 3 of Section 5,
Rule 114 is present then bail shall be denied. 25 (emphasis supplied)

In the rst situation, bail is a matter of sound judicial discretion. This means that, if
none of the circumstances mentioned in the third paragraph of Section 5, Rule 114
is present, the appellate court has the discretion to grant or deny bail. An application
for bail pending appeal may be denied even if the bail-negating 26 circumstances in
the third paragraph of Section 5, Rule 114 are absent. In other words, the appellate
court's denial of bail pending appeal where none of the said circumstances exists
does not, by and of itself, constitute abuse of discretion.

On the other hand, in the second situation, the appellate court exercises a more
stringent discretion, that is, to carefully ascertain whether any of the enumerated
circumstances in fact exists. If it so determines, it has no other option except to
deny or revoke bail pending appeal. Conversely, if the appellate court grants bail
pending appeal, grave abuse of discretion will thereby be committed.

Given these two distinct scenarios, therefore, any application for bail pending appeal
should be viewed from the perspective of two stages: (1) the determination of
discretion stage; where the appellate court must determine whether any of the
circumstances in the third paragraph of Section 5, Rule 114 is present; this will
establish whether or not the appellate court will exercise sound discretion or
stringent discretion in resolving the application for bail pending appeal and (2) the
exercise of discretion stage where, assuming the appellant's case falls within the
rst scenario allowing the exercise of sound discretion, the appellate court may
consider all relevant circumstances, other than those mentioned in the third
paragraph of Section 5, Rule 114, including the demands of equity and justice; 27 on
the basis thereof, it may either allow or disallow bail.

On the other hand, if the appellant's case falls within the second scenario, the
appellate court's stringent discretion requires that the exercise thereof be primarily
focused on the determination of the proof of the presence of any of the
circumstances that are prejudicial to the allowance of bail. This is so because the
existence of any of those circumstances is by itself sucient to deny or revoke bail.
Nonetheless, a nding that none of the said circumstances is present will
not automatically result in the grant of bail. Such nding will simply
authorize the court to use the less stringent sound discretion approach.

Petitioner disregards the ne yet substantial distinction between the two dierent
situations that are governed by the third paragraph of Section 5, Rule 114. Instead,
petitioner insists on a simplistic treatment that unduly dilutes the import of the said
provision and trivializes the established policy governing the grant of bail pending
appeal.

In particular, a careful reading of petitioner's arguments reveals that it interprets

the third paragraph of Section 5, Rule 114 to cover all situations where the
penalty imposed by the trial court on the appellant is imprisonment exceeding six
years. For petitioner, in such a situation, the grant of bail pending appeal is always
subject to limited discretion, that is, one restricted to the determination of
whether any of the five bail-negating circumstances exists. The implication
of this position is that, if any such circumstance is present, then bail will be denied.
Otherwise, bail will be granted pending appeal. cCEAHT

Petitioner's theory therefore reduces the appellate court into a mere fact-nding
body whose authority is limited to determining whether any of the ve
circumstances mentioned in the third paragraph of Section 5, Rule 114 exists. This
unduly constricts its "discretion" into merely lling out the checklist of
circumstances in the third paragraph of Section 5, Rule 114 in all instances where
the penalty imposed by the Regional Trial Court on the appellant is imprisonment
exceeding six years. In short, petitioner's interpretation severely curbs the
discretion of the appellate court by requiring it to determine a singular factual issue
whether any of the five bail-negating circumstances is present.

However, judicial discretion has been dened as "choice." 28 Choice occurs where,
between "two alternatives or among a possibly innite number (of options)," there
is "more than one possible outcome, with the selection of the outcome left to the
decision maker." 29 On the other hand, the establishment of a clearly dened rule of
action is the end of discretion. 30 Thus, by severely clipping the appellate court's
discretion and relegating that tribunal to a mere fact-nding body in applications for
bail pending appeal in all instances where the penalty imposed by the trial court on
the appellant is imprisonment exceeding six years, petitioner's theory eectively
renders nugatory the provision that "upon conviction by the Regional Trial
Court of an oense not punishable by death, reclusion perpetua, or life
imprisonment, admission to bail is discretionary."

The judicial discretion granted to the proper court (the Court of Appeals in this case)
to rule on applications for bail pending appeal must necessarily involve the exercise
of judgment on the part of the court. The court must be allowed reasonable latitude
to express its own view of the case, its appreciation of the facts and its
understanding of the applicable law on the matter. 31 In view of the grave caution
required of it, the court should consider whether or not, under all circumstances, the
accused will be present to abide by his punishment if his conviction is armed. 32 It
should also give due regard to any other pertinent matters beyond the record of the
particular case, such as the record, character and reputation of the applicant, 33
among other things. More importantly, the discretion to determine allowance or
disallowance of bail pending appeal necessarily includes, at the very least, an initial
determination that the appeal is not frivolous but raises a substantial question of
law or fact which must be determined by the appellate court. 34 In other words, a
threshold requirement for the grant of bail is a showing that the appeal is not pro
forma and merely intended for delay but presents a fairly debatable issue. 35 This
must be so; otherwise, the appellate courts will be deluged with frivolous and time-
wasting appeals made for the purpose of taking advantage of a lenient attitude on
bail pending appeal. Even more signicantly, this comports with the very strong
presumption on appeal that the lower court's exercise of discretionary power was
sound, 36 specially since the rules on criminal procedure require that no judgment
shall be reversed or modied by the Court of Appeals except for substantial error. 37

Moreover, to limit the bail-negating circumstances to the ve situations mentioned

in the third paragraph of Section 5, Rule 114 is wrong. By restricting the bail-
negating circumstances to those expressly mentioned, petitioner applies the
expressio unius est exclusio alterius 38 rule in statutory construction. However, the
very language of the third paragraph of Section 5, Rule 114 contradicts the idea
that the enumeration of the ve situations therein was meant to be exclusive. The
provision categorically refers to "the following or other similar circumstances."
Hence, under the rules, similarly relevant situations other than those listed in the
third paragraph of Section 5, Rule 114 may be considered in the allowance, denial
or revocation of bail pending appeal.

Finally, laws and rules should not be interpreted in such a way that leads to
unreasonable or senseless consequences. An absurd situation will result from
adopting petitioner's interpretation that, where the penalty imposed by the trial
court is imprisonment exceeding six years, bail ought to be granted if none of the
listed bail-negating circumstances exists. Allowance of bail pending appeal in cases
where the penalty imposed is more than six years of imprisonment will be more
lenient than in cases where the penalty imposed does not exceed six years. While
denial or revocation of bail in cases where the penalty imposed is more than six
years' imprisonment must be made only if any of the ve bail-negating conditions is
present, bail pending appeal in cases where the penalty imposed does not exceed six
years imprisonment may be denied even without those conditions.

Is it reasonable and in conformity with the dictates of justice that bail pending
appeal be more accessible to those convicted of serious oenses, compared to those
convicted of less serious crimes?

start here
PETITIONER'S THEORY DEVIATES FROM HISTORY
AND EVOLUTION OF RULE ON BAIL PENDING APPEAL

Petitioner's interpretation deviates from, even radically alters, the history and
evolution of the provisions on bail pending appeal.

The relevant original provisions on bail were provided under Sections 3 to 6, Rule
110 of the 1940 Rules of Criminal Procedure:

Sec. 3. Oenses less than capital before conviction by the Court of First
Instance. After judgment by a municipal judge and before conviction by
the Court of First Instance, the defendant shall be admitted to bail as of
right. aACHDS

Sec. 4. Non-capital oenses after conviction by the Court of First

Instance. After conviction by the Court of First Instance, defendant may,
upon application, be bailed at the discretion of the court.

Sec. 5. Capital offense defined. A capital offense, as the term is used in

this rule, is an oense which, under the law existing at the time of its
commission, and at the time of the application to be admitted to bail, may be
punished by death.

Sec. 6. Capital oense not bailable. No person in custody for the

commission of a capital offense shall be admitted to bail if the evidence of his
guilt is strong.

The aforementioned provisions were reproduced as Sections 3 to 6, Rule 114 of the

1964 Rules of Criminal Procedure and then of the 1985 Rules of Criminal Procedure.
They were modified in 1988 to read as follows:

Sec. 3. Bail, a matter of right; exception. All persons in custody, shall

before nal conviction be entitled to bail as a matter of right, except
those charged with a capital oense or an oense which, under the law at
the time of its commission and at the time of the application for bail, is
punishable by reclusion perpetua, when evidence of guilt is strong.

Sec. 4. Capital oense, dened. A capital oense, as the term is used

in this Rules, is an oense which, under the law existing at the time of its
commission, and at the time of the application to be admitted to bail, may be
punished by death. (emphasis supplied)

The signicance of the above changes was claried in Administrative Circular No. 2-
92 dated January 20, 1992 as follows:
The basic governing principle on the right of the accused to bail is laid down
in Section 3 of Rule 114 of the 1985 Rules on Criminal Procedure, as
amended, which provides:

Sec. 3. Bail, a matter of right; exception. All persons in custody,

shall before nal conviction, be entitled to bail as a matter of right,
except those charged with a capital oense or an oense which,
under the law at the time of its commission and at the time of the
application for bail, is punishable by reclusion perpetua, when evidence
of guilt is strong.

Pursuant to the aforecited provision, an accused who is charged with a

capital oense or an oense punishable by reclusion perpetua, shall no
longer be entitled to bail as a matter of right even if he appeals the case to
this Court since his conviction clearly imports that the evidence of his guilt of
the offense charged is strong.

Hence, for the guidelines of the bench and bar with respect to future as well
as pending cases before the trial courts, this Court en banc lays down the
following policies concerning the effectivity of the bail of the accused, to wit:

1) When an accused is charged with an oense which under the law

existing at the time of its commission and at the time of the application for
bail is punishable by a penalty lower than reclusion perpetua and is out on
bail, and after trial is convicted by the trial court of the oense charged or of
a lesser oense than that charged in the complaint or information, he may
be allowed to remain free on his original bail pending the resolution of his
appeal, unless the proper court directs otherwise pursuant to Rule 114, Sec.
2 (a) of the Rules of Court, as amended;

2) When an accused is charged with a capital oense or an

oense which under the law at the time of its commission and at
the time of the application for bail is punishable by reclusion
perpetua and is out on bail, and after trial is convicted by the trial
court of a lesser oense than that charged in the complaint or
information, the same rule set forth in the preceding paragraph
shall be applied;

3) When an accused is charged with a capital oense or an oense

which under the law at the time of its commission and at the time of the
application for bail is punishable by reclusion perpetua and is out on bail and
after trial is convicted by the trial court of the oense charged, his bond
shall be cancelled and the accused shall be placed in connement pending
resolution of his appeal.

As to criminal cases covered under the third rule abovecited, which are now
pending appeal before his Court where the accused is still on provisional
liberty, the following rules are laid down:

1) This Court shall order the bondsman to surrender the accused within
ten (10) days from notice to the court of origin. The bondsman thereupon,
 shall inform this Court of the fact of surrender, after which, the cancellation
of the bond shall be ordered by this Court;

2) The RTC shall order the transmittal of the accused to the National
Bureau of Prisons thru the Philippine National Police as the accused shall
remain under confinement pending resolution of his appeal;

3) If the accused-appellant is not surrendered within the aforesaid period

of ten (10) days, his bond shall be forfeited and an order of arrest shall be
issued by this Court. The appeal taken by the accused shall also be
dismissed under Section 8, Rule 124 of the Revised Rules of Court as he
shall be deemed to have jumped his bail. (emphasis supplied)

Amendments were further introduced in Administrative Circular No. 12-94 dated

August 16, 1994 which brought about important changes in the said rules as
follows:

SECTION 4. Bail, a matter of right. All persons in custody shall: (a) before
or after conviction by the Metropolitan Trial Court, Municipal Trial Court,
Municipal Trial Court in Cities and Municipal Circuit Trial Court, and (b) before
conviction by the Regional Trial Court of an oense not punishable by death,
reclusion perpetua or life imprisonment, be admitted to bail as a matter of
right, with sucient sureties, or be released on recognizance as prescribed
by law of this Rule. (3a)THCSAE

SECTION 5. Bail, when discretionary. Upon conviction by the Regional

Trial Court of an oense not punishable by death, reclusion
perpetua or life imprisonment, the court, on application, may admit
the accused to bail.

The court, in its discretion, may allow the accused to continue on provisional
liberty under the same bail bond during the period of appeal subject to the
consent of the bondsman.

If the court imposed a penalty of imprisonment exceeding six (6)

years but not more than twenty (20) years, the accused shall be
denied bail, or his bail previously granted shall be cancelled, upon a
showing by the prosecution, with notice to the accused, of the
following or other similar circumstances:

(a) That the accused is a recidivist, quasi-recidivist, or

habitual delinquent, or has committed the crime aggravated
by the circumstance of reiteration;

(b) That the accused is found to have previously escaped

from legal connement, evaded sentence or has violated the
conditions of his bail without valid justification;

(c) That the accused committed the oense while on

probation, parole, under conditional pardon;
 (d) That the circumstances of the accused or his case
indicate the probability of flight if released on bail; or

(e) That there is undue risk that during the pendency of

the appeal, the accused may commit another crime.

The appellate court may review the resolution of the Regional Trial Court, on
motion and with notice to the adverse party. (n)

SECTION 6. Capital offense, defined. A capital oense, as the term is used

in these Rules, is an oense which, under the law existing at the time of its
commission and at the time of the application to be admitted to bail, maybe
punished with death. (4)

SECTION 7. Capital oense or an oense punishable by reclusion perpetua

or life imprisonment, not bailable. No person charged with a capital
oense, or an oense punishable by reclusion perpetua or life
imprisonment, when evidence of guilt is strong, shall be admitted to bail
regardless of the stage of the criminal prosecution. (emphasis supplied)

The above amendments of Administrative Circular No. 12-94 to Rule 114 were
thereafter amended by A.M. No. 00-5-03-SC to read as they do now.

The development over time of these rules reveals an orientation towards a more
restrictive approach to bail pending appeal. It indicates a faithful adherence to the
bedrock principle, that is, bail pending appeal should be allowed not with leniency
but with grave caution and only for strong reasons.

The earliest rules on the matter made all grants of bail after conviction for a non-
capital oense by the Court of First Instance (predecessor of the Regional Trial
Court) discretionary. The 1988 amendments made applications for bail pending
appeal favorable to the appellant-applicant. Bail before final conviction in trial courts
for non-capital oenses or oenses not punishable by reclusion perpetua was a
matter of right, meaning, admission to bail was a matter of right at any stage of the
action where the charge was not for a capital oense or was not punished by
reclusion perpetua. 39

The amendments introduced by Administrative Circular No. 12-94 made bail

pending appeal (of a conviction by the Regional Trial Court of an oense not
punishable by death, reclusion perpetua or life imprisonment) discretionary. Thus,
Administrative Circular No. 12-94 laid down more stringent rules on the matter of
post-conviction grant of bail.

A.M. No. 00-5-03-SC modied Administrative Circular No. 12-94 by clearly

identifying which court has authority to act on applications for bail pending appeal
under certain conditions and in particular situations. More importantly, it reiterated
the "tough on bail pending appeal" conguration of Administrative Circular No. 12-
94. In particular, it amended Section 3 of the 1988 Rules on Criminal Procedure
which entitled the accused to bail as a matter of right before nal conviction. 40
Under the present rule, bail is a matter of discretion upon conviction by the Regional
Trial Court of an oense not punishable by death, reclusion perpetua or life
imprisonment. Indeed, pursuant to the "tough on bail pending appeal" policy, the
presence of bail-negating conditions mandates the denial or revocation of bail
pending appeal such that those circumstances are deemed to be as grave as
conviction by the trial court for an oense punishable by death, reclusion perpetua
or life imprisonment where bail is prohibited.

Now, what is more in consonance with a stringent standards approach to bail

pending appeal? What is more in conformity with an ex abundante cautelam view
of bail pending appeal? Is it a rule which favors the automatic grant of bail in the
absence of any of the circumstances under the third paragraph of Section 5, Rule
114? Or is it a rule that authorizes the denial of bail after due consideration of all
relevant circumstances, even if none of the circumstances under the third paragraph
of Section 5, Rule 114 is present?

The present inclination of the rules on criminal procedure to frown on bail pending
appeal parallels the approach adopted in the United States where our original
constitutional and procedural provisions on bail emanated. 41 While this is of course
not to be followed blindly, it nonetheless shows that our treatment of bail pending
appeal is no different from that in other democratic societies. DEICTS

In our jurisdiction, the trend towards a strict attitude towards the allowance of bail
pending appeal is anchored on the principle that judicial discretion particularly
with respect to extending bail should be exercised not with laxity but with
caution and only for strong reasons. 42 In fact, it has even been pointed out that
"grave caution that must attend the exercise of judicial discretion in granting bail to
a convicted accused is best illustrated and exemplied in Administrative Circular No.
12-94 amending Rule 114, Section 5." 43

Furthermore, this Court has been guided by the following:

The importance attached to conviction is due to the underlying principle that

bail should be granted only where it is uncertain whether the accused is
guilty or innocent, and therefore, where that uncertainty is removed by
conviction it would, generally speaking, be absurd to admit to bail. After a
person has been tried and convicted the presumption of
innocence which may be relied upon in prior applications is
rebutted, and the burden is upon the accused to show error in
the conviction. From another point of view it may be properly argued that
the probability of ultimate punishment is so enhanced by the conviction that
the accused is much more likely to attempt to escape if liberated on bail than
before conviction. 44 (emphasis supplied)

As a matter of fact, endorsing the reasoning quoted above and relying thereon, the
Court declared in Yap v. Court of Appeals 45 (promulgated in 2001 when the present
rules were already eective), that denial of bail pending appeal is "a matter of
wise discretion."

A FINAL WORD
Section 13, Article III of the Constitution provides:

SEC. 13. All persons, except those charged with oenses punishable by
reclusion perpetua when evidence of guilt is strong, shall, before
conviction, be bailable by sucient sureties, or be released on
recognizance as may be provided by law. . . . (emphasis supplied)

After conviction by the trial court, the presumption of innocence terminates and,
accordingly, the constitutional right to bail ends. 46 From then on, the grant of bail is
subject to judicial discretion. At the risk of being repetitious, such discretion must be
exercised with grave caution and only for strong reasons. Considering that the
accused was in fact convicted by the trial court, allowance of bail pending appeal
should be guided by a stringent-standards approach. This judicial disposition nds
strong support in the history and evolution of the rules on bail and the language of
Section 5, Rule 114 of the Rules of Court. It is likewise consistent with the trial
court's initial determination that the accused should be in prison. Furthermore,
letting the accused out on bail despite his conviction may destroy the deterrent
effect of our criminal laws. This is especially germane to bail pending appeal because
long delays often separate sentencing in the trial court and appellate review. In
addition, at the post-conviction stage, the accused faces a certain prison sentence
and thus may be more likely to ee regardless of bail bonds or other release
conditions. Finally, permitting bail too freely in spite of conviction invites frivolous
and time-wasting appeals which will make a mockery of our criminal justice system
and court processes.

WHEREFORE, the petition is hereby DISMISSED.

The Court of Appeals is hereby directed to resolve and decide, on the merits, the
appeal of petitioner Jose Antonio Leviste docketed as CA-G.R. CR No. 32159, with
dispatch.

Costs against petitioner.

SO ORDERED.

Velasco, Jr. and Nachura, JJ., concur.

Peralta, J., see dissenting opinion.

Mendoza, J., I join the dissent for reasons stated.

Separate Opinions
PERALTA, J., dissenting:

The denial of an application for bail pending appeal on a case where the accused was
charged with Murder but was convicted with Homicide seriously poses some
important questions.
By denying the application for bail pending appeal of an accused who was charged
with the crime of Murder but was convicted of the crime of Homicide, is this Court,
in eect, saying that the evidence of guilt for the crime of Murder is strong despite
the lower court's nding of proof beyond reasonable doubt of the crime of Homicide,
a bailable offense?

By denying the application for bail pending appeal on the ground that the evidence
of guilt for the crime of Murder is strong, is this court, in a way, unknowingly
preempting the judgment of the Court of Appeals as to the main case?

In the event that the Court of Appeals sustains the conviction of the accused of the
crime of Homicide, a bailable oense and the accused decides to le a Petition for
Certiorari before this Court, will the denial of the application for bail of the accused
still be effective?

With due respect to the present ponencia, an armative response to the above
questions would bring about some absurdities.

Section 13, Article III of the 1987 Philippine Constitution provides the following:

Sec. 13. ALL PERSONS, EXCEPT THOSE CHARGED WITH OFFENSES

PUNISHABLE BY RECLUSION PERPETUA WHEN EVIDENCE OF GUILT IS
STRONG SHALL, BEFORE CONVICTION, BE BAILABLE BY SUFFICIENT
SURETIES, OR BE RELEASED ON RECOGNIZANCE AS MAY BE PROVIDED BY
LAW. THE RIGHT TO BAIL SHALL NOT BE IMPAIRED EVEN WHEN THE
PRIVILEGE OF THE WRIT OF HABEAS CORPUS IS SUSPENDED. EXCESSIVE
BAIL SHALL NOT BE REQUIRED. DIcTEC

The Philippine Constitution itself emphasizes the right of an accused to bail with the
sole exception of those charged with oenses punishable by reclusion perpetua
when evidence of guilt is strong. Cases, like in the present case, when an accused is
charged with Murder but was convicted with Homicide, mean only one thing, that
the lower court found the evidence for the crime charged not strong, hence, the
accused's conviction of a lesser oense. Therefore, the denial of the same accused's
application for bail pending appeal on the ground that the evidence of his guilt for
the crime charged is strong, would unintentionally be suggestive of the outcome of
the appealed decision of the lower court. The discretion whether to grant the
application for bail or not is given to the CA in cases such as the present one, on the
reason that the same appellate court can review the factual ndings of the lower
court. However, this will no longer be the case if a Petition for Certiorari is led with
this Court as it is not a trier of facts. Hence, the existence of those queries brought
about by the majority opinion casts confusion rather than an enlightenment on the
present case.

The following discussion, in my opinion, should shed light on the matter:

Before this Court is a Petition for Certiorari under Rule 65 of the 1997 Rules of Civil
Procedure which seeks to nullify and set aside the Resolutions 1 dated April 8, 2009
and July 14, 2009 of the Court of Appeals (CA).
The antecedent facts are the following:

Arising from a shooting incident that happened on January 12, 2007 at petitioner
Jose Antonio Leviste's oce where Rafael de las Alas died of gunshot wounds,
petitioner was charged with murder under the Amended Information dated March
15, 2007 in Criminal Case No. 07-179 of the Regional Trial Court (RTC) of Makati
City, Branch 150.

Petitioner, on February 23, 2007, led an Urgent Application for Admission to Bail
Ex Abundanti Cautela 2 on the ground that the evidence of the prosecution was not
strong. The trial court, in its Order 3 dated May 21, 2007, granted petitioner's
application for bail.

Subsequently, trial ensued and, on January 14, 2009, the trial court rendered its
Decision 4 nding petitioner guilty beyond reasonable doubt of the crime of
homicide, the dispositive portion of which reads:

WHEREFORE, PREMISES CONSIDERED, accused Jose Antonio Leviste y

Casals is hereby found guilty beyond reasonable doubt of the crime of
homicide and is sentenced to suer the indeterminate penalty of six (6)
years and one (1) day of prision mayor as minimum, to twelve (12) years
and one (1) day of reclusion temporal as maximum. Accused is further
ordered to pay the heirs of the victim, Rafael de las Alas, the amount of
Php50,000.00 as death indemnity and Php50,000.00 as moral damages.

Accused Jose Antonio Leviste y Casals shall be credited in the service of his
sentence consisting of deprivation of liberty, with the full time during which
he had undergone preventive imprisonment at the Makati City Jail from
February 7, 2007 up to May 22, 2007 up provided that he agreed voluntarily
in writing to abide by the same disciplinary rules imposed upon convicted
prisoners.

SO ORDERED.

Consequently, in its Order 5 dated January 14, 2009, the trial court canceled
petitioner's bail bond, ruling that:

Accused Jose Antonio Leviste y Casals was charged with the crime of
Murder, a capital oense or an oense which under the law at the time of its
commission and at the time of the application for bail is punishable by
reclusion perpetua to death. The accused is presently out on bail. After trial,
the accused was however convicted of Homicide, a lesser oense than that
charged in the Information. Accused was accordingly sentenced to suer
the indeterminate penalty of six (6) years and one (1) day of prision mayor
as minimum, to twelve (12) years and one (1) day of reclusion temporal as
maximum.

Sec. 5, Rule 114 of the Rules on Criminal Procedure which is deemed to have
modied SC Administrative Circular No. 2-92 dated January 20, 1992,
provides:
 Bail, when discretionary. Upon conviction by the Regional Trial Court
of an oense not punishable by death, reclusion perpetua, or life
imprisonment, admission to bail is discretionary. The application for
bail may be filed and acted upon by the trial court despite the filing of a
notice of appeal, provided it has not transmitted the original record to
the appellate court. However, if the decision of the trial court
convicting the accused changed the nature of the oense from non-
bailable to bailable, the application for bail can only be led with and
resolved by the appellate court.

In Obosa v. Court of Appeals, G.R. No. 114350, January 16, 1997, 266 SCRA
281, 78 SCAD 17, the Supreme Court, speaking thru the Third Division,
stated:

. . . that bail cannot be granted as a matter of right even after an

accused, who is charged with a capital oense, appeals his conviction
for a non-capital crime. Courts must exercise utmost caution in
deciding applications for bail considering that the accused on appeal
may still be convicted of the original capital oense charged and that
the risk attendant to jumping bail still subsists. In fact, trial courts
would be well advised to leave the matter of bail, after conviction for a
lesser crime than the capital oense originally charged, to the
appellate court's sound discretion. AEDHST

In view of the aforecited rules and prevailing jurisprudence on the matter,

the bailbond posted by the accused for his provisional liberty is deemed
cancelled. Accused being considered a national prisoner is ordered
committed to the Makati City Jail, Makati City, pending his transfer to the New
Bilibid Prison at Muntinlupa City.

SO ORDERED.

Petitioner led a Notice of Appeal 6 dated January 14, 2009 and on January 15,
2009, led with the CA an Urgent Application for Admission to Bail Pending Appeal
and an Urgent Ex Parte Motion for Special Rae and to Resolve the Attached
Application for Admission to Bail. The CA, in its Resolution dated April 8, 2009,
denied petitioner's application for bail pending appeal, the disposition reading:

IN VIEW OF THE FOREGOING REASONS, "the Urgent Application for

Admission to Bail Pending Appeal" is hereby DENIED.

SO ORDERED.

The CA also denied petitioner's Motion for Reconsideration dated April 14, 2009 in
its Resolution 7 dated July 14, 2009.

Hence, the present petition.

Petitioner states the following arguments:

THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION IN

 DENYING PETITIONER'S APPLICATION FOR BAIL PENDING APPEAL DESPITE
THE FACT THAT NONE OF THE CONDITIONS TO JUSTIFY THE DENIAL
THEREOF UNDER RULE 114, SECTION 5 ARE PRESENT, MUCH LESS
PROVEN BY THE PROSECUTION.

THIS COURT OF APPEALS GRAVELY ERRED IN IGNORING THE FACT THAT

PETITIONER WAS CONVICTED OF HOMICIDE, A BAILABLE OFFENSE, AND
THAT AS TWICE SHOWN IN THE PROCEEDINGS BELOW, THE EVIDENCE
THAT PETITIONER COMMITTED THE CRIME OF MURDER IS NOT STRONG.
THE COURT OF APPEALS UNJUSTLY PREJUDGED PETITIONER'S APPEAL BY
CONCLUDING THAT THE EVIDENCE OF GUILT FOR MURDER IS STRONG,
DESPITE THE FINDINGS OF THE TRIAL COURT TO THE CONTRARY.

THE COURT OF APPEALS SHOWED UNJUST BIAS IN ALLOWING

PROSECUTOR VELASCO TO PARTICIPATE IN THE APPELLATE
PROCEEDINGS. 8

According to petitioner, the CA should have granted bail in view of the absence of
any of the circumstances enumerated under paragraphs (a) to (e), Section 5, Rule
114. He adds that he is neither a recidivist, a quasi-recidivist or habitual delinquent,
nor a ight risk; and there is no undue risk that he would commit another crime
during the pendency of his appeal.

Petitioner further argues that the CA committed a grave error and prejudged the
appeal by denying his application for bail on the ground that the evidence that he
committed a capital oense was strong. He points out that the records show that
the trial court already granted him bail, since it found that the prosecution had
failed to demonstrate that the evidence of his guilt for the crime of murder was
strong; and this was further conrmed when the trial court convicted him of the
crime of homicide instead of murder. Hence, petitioner insists that the trial court's
determination that he is not guilty of a capital oense should subsist even on
appeal.

Anent the third issue, petitioner claims that the CA allowed Prosecutor Emmanuel
Velasco to delay his application for bail by ling mere manifestations requesting the
CA to provide him with copies of petitioner's motions and written submissions.

In its Comment dated November 20, 2009, the Oce of the Solicitor General (OSG)
contends that the CA committed no grave abuse of discretion in denying petitioner's
application for bail pending appeal. Although the grant of bail is discretionary in non-
capital oenses, if, as in this case, imprisonment has been imposed on the petitioner
in excess of six (6) years and circumstances point to a considerable likelihood that
he may ee if released on bail, then he must be denied bail, or his bail previously
granted should be canceled. The OSG also reiterates the ruling in Obosa v. Court of
Appeals, 9 which was relied upon by the CA in denying the application for bail,
stating that after an accused has been tried and convicted, the presumption of
innocence, which may be relied upon if prior application is rebutted, the burden is
upon the accused to show error in the conviction. As to the claim of petitioner that
the CA gravely abused its discretion in allowing Prosecutor Velasco to participate in
the appellate proceedings, the OSG dismissed the said argument as without merit.

In his Manifestation and Motion dated December 9, 2009, petitioner contends that
the OSG's arguments in its Comment are a mere rehash of the baseless
justications and arguments made by the CA in denying his application for bail,
arguments which have already been tackled and refuted by him in the present
petition.

Petitioner, in a Manifestation dated November 25, 2009, notied this Court that he
had led a Very Urgent Motion for a Medical Pass before the CA, as he had to
undergo medical treatment at the soonest possible time.

In his December 21, 2009 Reply [to Respondent People of the Philippines' Comment
dated 20 November 2009], petitioner reiterated the arguments he raised in his
petition.

In a letter dated November 25, 2009, which was received by the Oce of the Chief
Justice on December 7, 2009, Mrs. Teresita C. de las Alas (wife), Ms. Dinna de las
Alas-Sanchez (daughter), and Ms. Nazareth H. de las Alas (daughter) expressed
consent to the grant of bail to the petitioner.

The petition is impressed with merit.

Sections 5 and 7, Rule 114 of the 2000 Revised Rules on Criminal Procedure, as
amended, provide that:

Sec. 5. Bail, when discretionary. Upon conviction by the Regional Trial

Court of an oense not punishable by death, reclusion perpetua, or life
imprisonment, admission to bail is discretionary. The application for bail may
be led and acted upon by the trial court despite the ling of a notice of
appeal, provided it has not transmitted the original record to the appellate
court. However, if the decision of the trial court convicting the
accused changed the nature of the oense from non-bailable to
bailable, the application for bail can only be led with and resolved
by the appellate court.

Should the court grant the application, the accused may be allowed to
continue on provisional liberty during the pendency of the appeal under the
same bail subject to the consent of the bondsman.

If the penalty imposed by the trial court is imprisonment

exceeding six (6) years, the accused shall be denied bail, or his bail
shall be canceled upon a showing by the prosecution, with notice
to the accused, of the following or other similar circumstances: cTSHaE

(a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or

has committed the crime aggravated by the circumstance of
reiteration;

(b) That he has previously escaped from legal connement, evaded

sentence, or violated the conditions of his bail without a valid
 justification;

(c) That he committed the offense while under probation, parole, or

conditional pardon;

(d) That the circumstances of his case indicate the probability of

flight if released on bail; or

(e) That there is undue risk that he may commit another crime
during the pendency of the appeal.

The appellate court may, motu propio or on motion of any party, review the
resolution of the Regional Trial Court after notice to the adverse party in
either case.

SEC. 7. Capital oense or an oense punishable by reclusion perpetua or

life imprisonment, not bailable. No person charged with a capital
oense, or an oense punishable by reclusion perpetua or life
imprisonment, shall be admitted to bail when evidence of guilt is
strong, regardless of the stage of the criminal prosecution.

Prior to the aectivity of the above provisions, the governing rule in the granting or
cancellation of bail was encapsulated in Administrative Circular No. 12-94, 10 stating
that:

Sec. 3. Bail, a matter of right; exception. All persons in custody shall,

before nal conviction, be entitled to bail as a matter of right, except those
charged with a capital oense or an oense which, under the law at the time
of its commission and at the time of the application for bail, is punishable by
reclusion perpetua, when evidence of guilt is strong.

xxx xxx xxx

SEC. 5. Bail, When Discretionary. Upon conviction by the Regional Trial

Court of an oense not punishable by death, reclusion perpetua or life
imprisonment, the court, on application, may admit the accused to bail.

The court, in its discretion, may allow the accused to continue on provisional
liberty under the same bail bond during the period of appeal subject to the
consent of the bondsman.

If the court imposed a penalty of imprisonment exceeding six (6) years but
not more than twenty (20) years, the accused shall be denied bail, or his bail
previously granted shall be canceled, upon a showing by the prosecution,
with notice to the accused, of the following or other similar circumstances:

(a) That the accused is a recidivist, quasi-recidivist, or habitual

delinquent, or has committed the crime aggravated by the
circumstance of reiteration;

(b) That the accused is found to have previously escaped from

legal connement, evaded sentence, or has violated the conditions of
 his bail without valid justification;

(c) That the accused committed the oense while on probation,

parole, or under conditional pardon; CaASIc

(d) That the circumstances of the accused or his case indicate the
probability if flight of released on bail; or

(e) That there is undue risk that during the pendency of the appeal,
the accused may commit another crime.

The appellate court may review the resolution of the Regional Trial Court, on
motion and with notice to the adverse party.

As can be gleaned above, the set of circumstances appearing in Section 5, Rule 114
of the Rules of Court brought about by Administrative Circular No. 12-94 has been
retained in the present Rules. Notably, it was after the ruling of this Court in Obosa
v. Court of Appeals 11 that the present provisions of Secs. 5 and 7, Rule 114 of the
2000 Revised Rules of Criminal Procedure became effective.

In canceling petitioner's bail bond and denying his application for bail pending
appeal, the trial court and the CA, as well as the OSG in its Comment to the
petition, relied on Obosa v. CA, 12 where this Court ruled that bail cannot be granted
as a matter of right even after an accused, who is charged with a capital oense,
appeals his conviction for a non-capital crime. The said case, however, is not
applicable. In Obosa, the petitioner therein was convicted and applied for bail
pending appeal prior to the aectivity of the amendments brought about by
Administrative Circular No. 12-94; thus, the set of circumstances, as now seen in
the present Rules, was yet to be present. Granting arguendo that the present
provisions of Section 5, Rule 114 can be made applicable to petitioner Obosa, this
Court, in that same case, still deemed him to be disqualied from the grant of bail
on the basic reason that, aside from Obosa being convicted of two counts of
homicide, circumstances a, b, d and e of Section 5, Rule 114 of the Rules of Court
were present. In the present case, as will be discussed later, not one of the
circumstances that would warrant the denial of bail is present.

Incidentally, magnied in the denial of petitioner's application for bail pending

appeal was the reliance of the CA on the judgment of conviction rendered by the
trial court. According to the CA, the evidence of guilt of the petitioner, as found by
the trial court, was strong, therefore, the provisions of Section 7 of Rule 114 of the
2000 Revised Rules of Criminal Procedure were applicable, the crime charged being
murder.

However, it must be remembered that although petitioner was charged with the
crime of murder, he was convicted of the crime of homicide. Prior to the said
conviction, the trial court, after bail hearing, granted bail to petitioner, thus:

Accordingly, for failure of the prosecution to demonstrate that the

evidence of guilt of the accused Jose Antonio J. Leviste for the
crime of Murder is strong to foreclose his right to bail, the court hereby
 grants the motion and, allows the accused to post bail in the amount of
P300,000.00 for his provisional liberty. Accused shall be discharged or
released only upon the approval of his bail by the Court.

SO ORDERED. 13

Ultimately, after the trial of the case, the trial court found petitioner guilty beyond
reasonable doubt of the crime of homicide, not murder as originally charged,
demonstrating the consistency of the trial court's ndings in the bail hearing and in
the actual trial of the said case. Nevertheless, the CA, in denying petitioner's
application for bail, relied on Section 7, Rule 114 of the Rules of Court insisting that
the evidence of guilt of the petitioner was strong. By ruling thus, the CA has not
accorded respect to the factual ndings of the trial court. It is a time-honored legal
precept, in this regard that the ndings of fact of the trial court are accorded great
respect by appellate courts and should not be disturbed on appeal unless the trial
court has overlooked, ignored, or disregarded some fact or circumstance of sucient
weight or signicance which, if considered, would alter the situation. 14 Moreover,
there seems to be a disparity between the pronouncement of the CA that the trial
court found the evidence of guilt of the petitioner strong and the explanation of why
the former considered it to be so. The CA ruled that:

From the judgment of conviction rendered by the trial court, the

prosecution had demonstrated that appellant's guilt is strong,
after nding that accused failed to satisfy the requirements of
self-defense to justify the shooting of the victim. Said court carefully
and meticulously evaluated the evidence on record and ruled that the claim
of appellant that the victim was the agressor deserves disbelief considering
that evidence at the scene of the crime indicated that the victim could not
have red the gun apparently placed in his hand; appellant's conduct in
refusing to be subjected to paran test is not the natural tendency of a
person claiming self-defense; and neither was appellant threatened or
intimidated by the victim's averred pugnacious, quarrelsome or trouble-
seeking character of the victim. And even assuming arguendo that there
was unlawful aggression, the trial court found that the ve (5) gunshot
wounds (four) [4] shots even aimed at head, a vital organ were not
reasonable means to repel the same, and the evidence demonstrated a
determined eort on the part of the appellant to kill the victim and not just to
defend himself. However, appellant was convicted of the lesser
oense (homicide) since the qualifying circumstances of
treachery, evident premeditation and cruelty or ignominy, alleged
in the Amended Information, were not duly proven at the trial. 15

The above observation of the CA serves nothing but to bolster the earlier nding of
the trial court that the prosecution was not able to present evidence that would
prove that the guilt of the petitioner as to the crime charged (murder) was strong.
Section 7, Rule 114 of the Rules of Court, clearly mandates that no person charged
with a capital oense, or an oense punishable by reclusion perpetua or life
imprisonment, shall be admitted to bail when evidence of guilt is strong. The
provision distinctly refers to the crime charged and not the crime proven. The failure
then of the prosecution to prove the existence of the circumstances to qualify the
crime committed to murder, the crime charged, necessarily means that the
evidence of his guilt of the said crime is not strong.
aHDTAI

Ideally, what the CA should have done was to consolidate the application for bail
with the petition led before it because it is only in that manner by which the
appellate court may ascertain whether the evidence of guilt of the accused for the
crime charged is indeed strong, or in reverse, whether the lower court was right in
convicting the accused of a lesser offense.

Above all else, the CA should have applied the provisions of Section 5, Rule 114 of
the Rules of Court, wherein the appellate court is given the discretion to grant bail
to the petitioner after considering the enumerated circumstances, the penalty
imposed by the trial court having exceeded six years. Although this Court has held
that the discretion to extend bail during the course of the appeal should be
exercised with grave caution and for strong reasons, considering that the accused
has been in fact convicted by the trial court, 16 the set of circumstances succinctly
provided in Section 5, Rule 114 of the Rules of Court should be considered.

The said set of circumstances has been provided as a guide for the exercise of the
appellate court's discretion in granting or denying the application for bail, pending
the appeal of an accused who has been convicted of a crime where the penalty
imposed by the trial court is imprisonment exceeding six (6) years. Otherwise, if it is
intended that the said discretion be absolute, no such set of circumstances would
have been necessarily included in the Rules. Thus, if the present ruling of the CA is
upheld, anyone who has been charged with a capital oense, or an oense
punishable by reclusion perpetua or life imprisonment but convicted by the trial
court of a lesser oense, would no longer be able to apply for bail pending one's
appeal. And by that premise, the discretion accorded to the appellate court in
granting or denying applications for bail for those who have been convicted by the
trial court with imprisonment exceeding six (6) years as penalty would have to be
rendered nugatory and the provisions of Section 5, Rule 114 of the 2000 Revised
Rules of Criminal Procedure would also be rendered useless.

Therefore, applying the provisions of Section 5, Rule 114 of the 2000 Revised Rules
of Criminal Procedure and after a careful perusal of the records and a learned
consideration of the arguments of the parties, this Court nds no reason to deny
petitioner his application for bail pending appeal. Petitioner is indisputably not a
recidivist, quasi-recidivist, or habitual delinquent, or has he committed the crime
aggravated by the circumstance of reiteration. He has also not previously escaped
from legal connement, evaded sentence, or violated the conditions of his bail
without a valid justication. He did not commit the oense charged while under
probation, parole, or conditional pardon. Lastly, as shown by his previous records
and pointed out by petitioner; 17 considering his conduct while out on bail during
the trial of his case, his advanced age, 18 and his current health condition, 19 the
probability of ight is nil and there is no risk that he may commit another crime
during the pendency of the appeal.
Also noted by this Court is the letter of the heirs of Rafael de las Alas giving their
consent and stating that they have no objection to petitioner's application for bail.
Although the said letter or consent can never be a basis for the grant of the
application for bail, it serves as a reference for the petitioner's improbability to
evade whatever negative result the grant of his appeal might bring. Nonetheless,
what governs in this case is the discretion of the appellate court as guided by the
provisions of Section 5, Rule 114 of the 2000 Revised Rules of Criminal Procedure.

Necessarily, due to the above discussion, I humbly dissent.

Footnotes

1. Section 1, Rule 114, RULES OF COURT.

2. Verilli, Donald, The Eighth Amendment and the Right to Bail: Historical Perspectives,
82 Columbia L.Rev. 328 (1982).

3. Id.

4 See Section 5, Rule 114, RULES OF COURT.

5. Keller, Doug, Resolving A "Substantial Question": Just Who Is Entitled to Bail

Pending Appeal Under the Bail Reform Act of 1984?, 60 Fla. L. Rev. 825 (2008).

6. Leibowitz, Debra, Release Pending Appeal: A Narrow Denition of 'Substantial

Question' Under the Bail Reform Act, 54 FDMLR 1081 (1986).

7. Keller, supra.

8. Leibowitz, supra note 6.

9. Keller, supra.

10. Yap v. Court of Appeals, 411 Phil. 190, 202 (2001).

11. Decision dated January 14, 2009 in Criminal Case No. 07-179 penned by Judge
Elmo M. Alameda. Rollo, pp. 198-235.

12. Notice of Appeal dated January 14, 2009. Id., p. 238-241.

13. Resolution dated April 8, 2009 in CA-G.R. CR No. 32159 penned by Associate
Justice Martin S. Villarama, Jr. (now a member of this Court) and concurred in by
Associate Justices Jose C. Reyes, Jr. and Normandie B. Pizarro of the third Division
of the Court of Appeals. Id., pp. 36-45.

14. Id., p. 43.

15. Id., p. 47.

16. See Section 1, Rule 65, RULES OF COURT.

17. See Petition, p. 14. Rollo, p. 16.

18. Dueas, Jr. v. House of Representatives Electoral Tribunal, G.R. No. 185401, 21
July 2009, 593 SCRA 316, 344.

19. Id.

20. Id., p. 345.

21. Fortich v. Corona, 352 Phil. 461 (1998).

22. 441 Phil. 705 (2002).

23. Id.

24. Regalado, Florenz, II REMEDIAL LAW COMPENDIUM 417 (Tenth Revised Edition
[2004]).

Justice Regalado was Vice-Chairman and, later, Co-Chairman of the Committee on

Revision of the Rules of Court which proposed the present (2000) rules on criminal
procedure (Rules 110-127 of the Rules of Court).

It should be noted, however, that Justice Regalado speaks of application for bail
pending appeal in cases "wherein a penalty of imprisonment exceeding 6 years
but not more than 20 years is imposed." (Emphasis supplied) A careful reading
of the third paragraph of Section 5, Rule 114 does not impose the limit of "not
more than 20 years."

25. Herrera, Oscar, IV REMEDIAL LAW 455-456 (2007).

Justice Herrera was Consultant to the Committee on Revision of the Rules of Court
which proposed the present (2000) rules on criminal procedure (Rules 110-127 of
the Rules of Court).

26. These circumstances are herein referred to as "bail-negating" because the

presence of any of them will negate the allowance of bail.

27. Discretion implies that, in the absence of a positive law or xed rule, the judge is
to decide by his view of expediency or by the demands of equity and justice.
(Negros Oriental Planters Association, Inc. v. Presiding Judge of RTC-Negros
Occidental, Branch 52, Bacolod City, G.R. No. 179878, 24 December 2008, 575
SCRA 575 and Luna v. Arcenas, 34 Phil. 80 [1916] both citing Goodwin v. Prime
[92 Me., 355]).

28. Rosenberg, Maurice, Judicial Discretion of the Trial Court, Viewed from Above, 22
Syracuse L. Rev. 635, 659 (1971) cited in Painter, Mark and Welker, Paula, Abuse
of Discretion: What Should It Mean in Ohio Law?, 29 Ohio N.U. L. Rev. 209 (2002).

29. Steven Alan Childress & Martha S. Davis, 2 Standards of Review 15.8, at 296
(1986) cited in Painter and Welker, supra.

30. Negros Oriental Planters Association, Inc. v. Presiding Judge of RTC-Negros

Occidental, Branch 52, Bacolod City, supra note 21.
31. Morada v. Tayao, A.M. No. RTJ-93-978, 07 February 1994, 229 SCRA 723.

32. Reyes v. Court of Appeals, 83 Phil. 658 (1949).

33. Id.

34. United States v. Motlow, 10 F.2d 657 (1926) (Butler, Circuit Justice).

35. S e e D'Aquino v. United States, 180 F.2d 271, 272 (1959) (Douglas, Circuit
Justice).

Justice Douglas of the United States Supreme Court, in his capacity as a Circuit
Justice, was one of the rst judges to discuss the denition of "substantial
question." He equated the phrase with an issue that is "fairly debatable." Later, he
provided additional guidance to district courts trying to determine whether a
defendant's appeal would raise a fairly debatable issue:

[T]he rst consideration is the soundness of the errors alleged. Are they, or any
of them, likely to command the respect of the appellate judges? It is not enough
that I am unimpressed. I must decide whether there is a school of thought, a
philosophical view, a technical argument, an analogy, an appeal to precedent or to
reason commanding respect that might possibly prevail. (Herzog v. United States,
75 S. Ct. 349, 351 (1955) (Douglas, Circuit Justice)

See also United States v. Barbeau, 92 F. Supp. 196, 202 (D. Alaska 1950), aff'd, 193 F.2d
945 (9th Cir. 1951), cert. denied, 343 U.S. 968 (1952); Warring v. United States,
16 F.R.D. 524, 526 (D.Md. 1954); United States v. Goo, 10 F.R.D. 337, 338 (D.
Hawaii 1950).

36. Luna v. Arcenas, supra note 21 quoting 2 Encyclopedia of Pleading and Practice
416, 418.

Thus, the general rule and one of the fundamental rules of appellate procedure is
that decisions of a trial court which "lie in discretion" will not be reviewed on appeal,
whether the case be civil or criminal, at law or in equity (Cuan v. Chiang Kai Shek
College, Inc., G.R. No. 175936, 03 September 2007, 532 SCRA 172, 187-188).

37. Section 10, Rule 114, RULES OF COURT.

38. The express mention of one implies the exclusion of all others not mentioned.

39. Regalado, Florenz, II REMEDIAL LAW COMPENDIUM 273 (Fifth Revised Edition
[1988]).

40. See Herrera, supra note 19, p. 457.

41. In particular, in the United States, the history of bail pending appeal has been
divided by one scholar on the matter into four distinct periods: (1st period) 1879
to 1934, (2nd period) 1934 to 1956, (third period) 1956 to 1984 and (post-1984
period) 1984 to present. The rst period, during which the rules on the matter
were just being developed, showed liberality in the grant of bail pending appeal. The
second period produced a more restrictive rule, one which limited bail to
 defendants who could prove that their appeal would raise "a substantial question
which should be determined by the appellate court." The third period saw the
enactment of the Bail Reform Act of 1966 establishing a standard wherein bail may
be allowed pending appeal unless it appears that the appeal is frivolous or taken
for delay. Under that standard, the court could deny bail if the defendant was a
ight risk or a danger to the community. Hence, bail pending appeal was again
favored. The post-1984 period is determined by the enactment and
implementation of the Bail Reform Act of 1984. The law was purposely designed to
make restrictive the allowance of bail pending appeal. As the Act's legislative
history explains, prior law had "a presumption in favor of bail even after conviction"
and Congress wanted to "eliminate" that presumption. (Keller, supra note 5.)

42. Obasa vs. Court of Appeals, G.R. No. 114350, 16 January 1997, 266 SCRA 281.

43. Id.

44. Id. See also Yap vs. Court of Appeals, supra note 10.

45. Id.

46. See Obosa v. Court of Appeals and Yap v. Court of Appeals, supra. See also
Bernas, Joaquin, THE 1987 CONSTITUTION OF THE REPUBLIC OF THE
PHILIPPINES: A COMMENTARY, p. 492 (2009).

PERALTA, J., dissenting:

1. Rollo, pp. 36-45.

2. Id. at 150-154.

3. Id. at 164-197.

4. Id. at 198-235.

5. Id. at 236-237.

6. Id. at 238-239.

7. Id. at 47.

8. Id. at 16.

9. 334 Phil. 253 (1997).

10. Dated October 1, 1994, amending the 1985 Rules of Criminal Procedure.

11. Supra note 9.

12. Id.

13. Rollo, p. 197. (Emphasis supplied.)

14. People of the Philippines v. Dizon, 329 Phil. 685, 695 (1996), citing People v.
 Gomez, 229 SCRA 138 (1994).

15. Rollo, p. 44. (Emphasis supplied.)

16. Yap, Jr. v. Court of Appeals, 411 Phil. 190, 202 (2001) citing Obosa v. Court of
Appeals, supra note 9.

17. Rollo, p. 22.

18. 69 years and 7 months old upon the filing of his petition.

19. Manifestation dated November 25, 2009; rollo, pp. 327-328.

 SECOND DIVISION

[A.M. No. RTJ-03-1751. June 10, 2003.]

(formerly OCA IPI No. 02-1369-RTJ)

COMMISSIONER ANDREA D. DOMINGO, complainant, vs.

EXECUTIVE JUDGE ERNESTO P. PAGAYATAN, RTC, Branch 46,
San Jose, Occidental Mindoro, respondent.

SYNOPSIS

Administrative complaint for Gross Ignorance of the Law relative to an estafa case
was led against the respondent judge. Initially, respondent judge denied bail
against one Peaorida on the ground that the latter was charged with large scale
estafa, a non-bailable oense. However, later on the same day, the respondent
judge granted bail without conducting a hearing, based on the manifestation of the
prosecutor that he is not ready to present any witness to prove that the
prosecution's evidence against the accused is strong.

The Supreme Court agreed with the ndings and recommendation of the OCA that
respondent be ned for P5,000 for having committed the oense charged. The
Court held: that a hearing is mandatory in granting bail, whether it is a matter of
right or discretion; that absent evidence of malice on the part of the respondent
when he granted bail to Peaorida, he cannot be held administratively liable for
gross misconduct; but that he is liable for ignorance of the law for having displayed
utter lack of familiarity with the so basic and fundamental rule to conduct a hearing
before granting or refusing bail.

SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; BAIL; A HEARING IS MANDATORY IN

GRANTING BAIL; CASE AT BAR. Under the rules on bail, a hearing is mandatory in
granting bail whether it is a matter of right or discretion. A hearing is indispensable
for the court to ask searching questions from which it may infer the strength of the
evidence of guilt, or the lack of it, against the accused, in cases where the oense is
punishable by death, reclusion perpetua or life imprisonment. After hearing, the
court's order granting or refusing bail must contain a summary of the evidence for
the prosecution and based thereon, the judge should then formulate his own
conclusion as to whether the evidence so presented is strong enough as to indicate
the guilt of the accused. Otherwise, the order granting or denying the application for
bail may be invalidated because the summary of evidence for the prosecution which
contains the judge's evaluation of the evidence may be considered as an aspect of
procedural due process for both the prosecution and the defense. The herein
respondent granted bail to the accused Peaorida without conducting a hearing
despite his earlier pronouncement in the Order dated November 19, 2001 denying
bail as he considered the crime the accused Peaorida was charged with to be a
non-bailable oense. The manifestation of the prosecutor that he is not ready to
present any witness to prove that the prosecution's evidence against the accused is
strong, is never a basis for the outright grant of bail without a preliminary hearing
on the matter. A hearing is required even when the prosecution refuses to adduce
evidence or fails to interpose an objection to the motion for bail.

2. LEGAL AND JUDICIAL ETHICS; ADMINISTRATIVE COMPLAINT AGAINST

JUDGES; IGNORANCE OF THE LAW; GRANTING BAIL WITHOUT HEARING
CONSTITUTES IGNORANCE OF THE LAW; CASE AT BAR. Absent evidence of
malice, respondent's lack of knowledge of the deportation order will only free him
from administrative liability for gross misconduct but not for gross ignorance of the
law for disregarding the rules on bail. The Court has held that a judge cannot be
held administratively liable for an erroneous ruling on rst impression, and malice
cannot be inferred from his having rendered a decision rectifying an earlier
impression without proof beyond doubt of a conscious and deliberate intent on his
part to commit an injustice by such acts. Nonetheless, so basic and fundamental is it
to conduct a hearing in connection with the grant of bail that it would amount to
judicial apostasy for any member of the judiciary to disclaim knowledge or
awareness thereof. Having accepted the exalted position of a judge, respondent
owes the public and the court the duty to be procient in the law. When a judge
displays utter lack of familiarity with the basic rules of law, he erodes the public's
condence in the competence of our courts. Ignorance of the law excuses no one
certainly not a judge.

RESOLUTION

AUSTRIA-MARTINEZ, J : p

In a letter-complaint dated December 7, 2001 led with the Oce of the Court
Administrator, Commissioner Andrea D. Domingo of the Bureau of Immigration
(BOI) charged Executive Judge Ernesto P. Pagayatan of the Regional Trial Court of
San Jose, Occidental Mindoro (Branch 46) with Gross Ignorance of the Law relative
to Criminal Case No. R-5075 for Estafa, entitled People of the Philippines vs. Ernesto
M. Peaflorida.ITScAE

Complainant alleged: On September 14, 2001, the Bureau of Immigration (BOI)

Board of Commissioners (BOC) issued Summary Deportation Order (SDO) No. ADD-
2001-057 against Ernesto M. Peaorida, a U.S. citizen, after nding that he is an
overstaying and undocumented alien, in violation of Section 37(a)(7) of
Commonwealth Act No. 613, otherwise known as the Philippine Immigration Act of
1940. Peaorida is also a fugitive from justice since he stands indicted in the
United States for health care fraud which resulted in more than $1,376,000.00
losses to the U.S. Federal Government. No appeal was led with the Oce of the
President. The SDO became nal and executory on October 15, 2001. On the same
date, respondent issued a Notice of Arraignment requiring the production of
Peaorida on November 19 and 20, 2001. On the scheduled hearing of November
19, 2001, respondent denied the P40,000.00 bail recommended by the Provincial
Prosecutor for the provisional release of the accused on the ground that the crime
Peaorida was charged with involved large scale estafa, a non-bailable oense.
Respondent ordered the commitment of Peaorida to the Provincial Jail in Magbay,
San Jose, Occidental Mindoro. However, later on that same day, the BOI received
information that respondent had allowed the release from detention of Peaorida,
who is an alien federal fugitive, without the interdepartmental courtesy of aording
prior notice to the BOI of such action. She is appalled not only by the respondent's
employment of legal subterfuges in ordering the release of Peaorida whose
Summary Deportation Order had already become nal and executory, but also by
the respondent's bad faith in deceiving them into surrendering the custody of an
undesirable alien federal fugitive to the Provincial Jail at Magbay, San Jose,
Occidental Mindoro. 1

In his Comment, dated March 22, 2002, respondent explained: On November 20,
2001, Peaorida led an urgent motion to x bail. When the prosecution and the
defense jointly manifested that it would be fair and just if the court would x the
bail bond for the provisional release of the accused Peaorida at P250,000.00, he
granted the motion to x bail on November 21, 2001; and, at the time he issued
the Order xing the bail bond of the accused at P250,000.00, he was not aware that
a deportation order had already been issued by the BOI against the latter. 2

In a Resolution dated January 15, 2003, the Court re-docketed the administrative
complaint as a regular administrative matter and required the parties to manifest
within ten days from notice if they are willing to submit the case for decision based
on the pleadings filed by the parties. 3

In compliance, the complainant and the respondent manifested their willingness to

submit the case on the basis of the pleadings. 4 In addition to his manifestation,
however, respondent averred: Upon learning that an order of deportation was
issued against Peaorida, he ordered the cancellation of the bail bond posted by
Peaorida and issued a warrant for the latter's arrest on April 26, 2002; and that
Peaorida voluntarily surrendered himself on October 24, 2002 and is presently
detained at the Provincial Jail of Occidental Mindoro. 5

In its Evaluation Report, the Oce of the Court Administrator (OCA) recommends to
the Court that respondent be ned P5,000.00 for Gross Ignorance of the Law,
reasoning that:

After going over the records of the case, it is very evident that respondent
Judge acted with undue haste in issuing the order granting bail considering
the fact that in his earlier Order dated November 19, 2001, he did not grant
a bail of P40,000.00 which the Provincial Prosecutor had previously
recommended for the provisional release of the accused. His denial was
based on the ground that the case led against the accused could be
considered large-scale Estafa, an unbailable oense. Respondent Judge
should not have granted bail simply on the lack of readiness on the part of
the prosecution to present any witness to prove that the evidence of guilt of
 the accused was strong but should have endeavored to determine the
existence of such evidence.

Under the present rules, a hearing is required before granting bail whether it
is a matter of right or discretion. The prosecution must always be given an
opportunity to present within a reasonable time, all the evidence that it may
desire to introduce before the Court may resolve the motion for bail. If the
prosecution refuses to adduce evidence or fails to interpose an objection to
the motion for bail, it is still mandatory for the court to conduct a hearing or
ask searching and clarificatory questions.

Moreover, since the accused was accompanied by the personnel of the

Bureau of Immigration when brought to the RTC, Branch 46, San Jose,
Occidental Mindoro, for his arraignment in Criminal Case No. R-5075
respondent Judge could have easily veried from his escort if the former
was being detained for other crimes aside from the one where he was being
arraigned in respondent's sala. Had he done so, respondent could have
been informed outright by the B.I. personnel escort that the accused had
already been the subject of a Summary Deportation Order and, thus, he
could have deferred action on the latter's (accused) Motion to Fix Bail and
aorded the Bureau of Immigration the chance and opportunity to interpose
their objection to the grant thereof. 6 (Citations omitted).

The Court agrees with the findings and recommendation of the OCA.

Under the rules on bail, a hearing is mandatory in granting bail whether it is a

matter of right or discretion. 7 A hearing is indispensable for the court to ask
searching questions from which it may infer the strength of the evidence of guilt, or
the lack of it, against the accused, in cases where the oense is punishable by
death, reclusion perpetua or life imprisonment. 8 After hearing, the court's order
granting or refusing bail must contain a summary of the evidence for the
prosecution and based thereon, the judge should then formulate his own conclusion
as to whether the evidence so presented is strong enough as to indicate the guilt of
the accused. 9 Otherwise, the order granting or denying the application for bail may
be invalidated because the summary of evidence for the prosecution which contains
the judge's evaluation of the evidence may be considered as an aspect of procedural
due process for both the prosecution and the defense. 10

The herein respondent granted bail to the accused Peaorida without conducting a
hearing despite his earlier pronouncement in the Order dated November 19, 2001
denying bail as he considered the crime the accused Peaflorida was charged with to
be a non-bailable oense. The manifestation of the prosecutor that he is not ready
to present any witness to prove that the prosecution's evidence against the accused
is strong, is never a basis for the outright grant of bail without a preliminary hearing
on the matter. 11 A hearing is required even when the prosecution refuses to adduce
evidence or fails to interpose an objection to the motion for bail. 12

The joint manifestation of the prosecution and the defense that it would be fair and
just if the court would x the bail bond for the provisional release of the accused at
P250,000.00 does not justify the granting of bail without a hearing in a case
involving a non-bailable oense. A hearing is necessary for the court to take into
consideration the guidelines in xing the amount of bail 13 set forth in Section 9,
Rule 114 of the Revised Rules of Criminal Procedure, which reads:

SEC. 9. Amount of bail; guidelines . The judge who issued the warrant
or granted the application shall x a reasonable amount of bail considering
primarily, but not limited to the following factors:

(a) Financial liability of the accused to give bail;

(b) Nature and circumstance of the offense;

(c) Penalty for the offense charged;

(d) Character and reputation of the accused;

(e) Age and health of the accused;

(f) Weight of the evidence against the accused;

(g) Probability of the accused appearing at the trial;

(h) Forfeiture of other bail;

(i) The fact that the accused was a fugitive from justice when
arrested; and

(j) Pendency of other cases where the accused is on bail.

Excessive bail shall not be required."

Needless to stress, judicial discretion is the domain of the judge and the duty to
exercise discretion cannot be reposed upon the will or whim of the prosecution or
the defense. Respondent should have ascertained personally whether the evidence
of guilt is strong and endeavored to determine the propriety of the amount of bail
recommended. To do away with the requisite bail hearing "is to dispense with this
time-tested safeguard against arbitrariness." 14 It must always be remembered that
imperative justice requires the proper observance of indispensable technicalities
precisely designed to ensure its proper dispensation. 15

There is no evidence of malice or bad faith on the part of respondent when he

granted bail to Peaorida. Complainant failed to prove that respondent had prior
knowledge of the existence of a deportation order or that the latter was informed by
the BOI of the deportation order dated September 14, 2001. The deportation order
became nal only on October 15, 2001. Prior thereto, respondent issued on
September 18, 2001 a hold-departure order against Peaorida. Respondent
directed the BOI not to allow Peaorida from leaving the country since a warrant
for his arrest was already issued by the court. 16 On October 15, 2001, the Notice of
Arraignment in Criminal Case No. R-5075 was served to Peaorida through the
BOI. 17 In the hearing of November 19, 2001, the personnel of the BOI escorted
Peaorida by reason of the warrant of arrest and hold departure order issued by
the court. 18

From these facts, we cannot simply conclude that respondent had prior knowledge
of the deportation order and maliciously thwarted its eect by granting bail to
Peaorida. However, respondent cannot escape administrative liability by invoking
unawareness of the deportation order. Absent evidence of malice, respondent's lack
of knowledge of the deportation order will only free him from administrative
liability for gross misconduct but not for gross ignorance of the law for disregarding
the rules on bail.

The Court has held that a judge cannot be held administratively liable for an
erroneous ruling on rst impression, and malice cannot be inferred from his having
rendered a decision rectifying an earlier impression without proof beyond doubt of a
conscious and deliberate intent on his part to commit an injustice by such acts. 20
Nonetheless, so basic and fundamental is it to conduct a hearing in connection with
the grant of bail that it would amount to judicial apostasy for any member of the
judiciary to disclaim knowledge or awareness thereof. 21 Having accepted the
exalted position of a judge, respondent owes the public and the court the duty to be
procient in the law. When a judge displays utter lack of familiarity with the basic
rules of law, he erodes the public's condence in the competence of our courts. 22
Ignorance of the law excuses no one certainly not a judge. 23

Respondent's explanations that he ordered the cancellation of the bail bond posted
by the accused Peaorida and issued a warrant for the latter's arrest on April 26,
2002 upon learning that an order of deportation was issued against the latter; 24
that accused Peaorida voluntarily surrendered himself on October 24, 2002 and
that he is presently detained at the Provincial Jail of Occidental Mindoro, 25 cannot
serve to exonerate him or even mitigate the penalty due him. Signicantly, the
order of revocation was made only on April 26, 2002, or ve months after the
issuance of the erroneous Order of November 21, 2001 which was sought to be
corrected. It is unfathomable that respondent realized his fallacious granting of bail
only after he led his Comment herein dated March 22, 2002. The Order of April 26,
2002 is but a futile attempt to evade respondent's administrative liability which had
already attached ve months before when he granted bail without the required
hearing. Fundamental knowledge of the law and a reasonable understanding of
recent jurisprudence ought to have guarded respondent against the precipitate and
unjustied granting of bail or should have at least prompted him to invalidate the
same immediately thereafter, 26 not five months later after a complaint against him
had been filed by BOI Commissioner Domingo.

As to the recommended penalty by the OCA, the amount of P5,000.00 appears to be

commensurate with respondent's infraction which amounts to gross ignorance of
law. Under Section 8 of A.M. No. 01-8-10-SC amending Rule 140 of the Rules of
Court on the Discipline of Justices and Judges, which took eect on October 1, 2001,
gross ignorance of the law is classied as a serious charge which carries with it a
penalty of either dismissal from service, suspension or a ne of more then
P20,000.00 but not exceeding P40,000.00. However, considering that malice or bad
faith on the part of respondent has not been established by the complainant, and, in
the absence of a showing that respondent had earlier been found to have
committed an administrative oense, 27 the Court deems it just and reasonable to
impose upon respondent a fine of P5,000.00.

WHEREFORE, respondent Executive Judge Ernesto P. Pagayatan of the Regional

Trial Court of San Jose, Occidental Mindoro (Branch 46) is found guilty of Gross
Ignorance of the Law and is hereby FINED the amount of Five Thousand Pesos
(P5,000.00). He is further STERNLY WARNED that the commission of similar acts in
the future shall be dealt with more severely by this Court. TADCSE

SO ORDERED.

Bellosillo, Quisumbing and Callejo, Sr., JJ ., concur.

Footnotes

1. Rollo, pp. 23.

2. Rollo, pp. 78.

3. Rollo, pp. 1920.

4. Rollo, pp. 2125.

5. Rollo, p. 25.

6. Rollo, pp. 1518.

7. Bangayan vs . Butacan, 345 SCRA 301, 306 (2000).

8. Santos vs . Ofilada, 245 SCRA 56, 64 (1995).

9. Marzan-Gelacio vs . Flores , 334 SCRA 1, 18 (2000).

10. Narciso vs . Sta. Romana-Cruz , 328 SCRA 505, 516517 (2000).

11. Directo vs . Bautista, 346 SCRA 223, 227 (2000).

12. Cortes vs . Catral, 279 SCRA 1, 14 (1997).

13. People vs . Gako, Jr., 348 SCRA 334, 351 (2000).

14. Tabao vs . Espina, 309 SCRA 273, 286 (1999).

15. Office of the Court Administrator vs . Alvarez , 287 SCRA 325, 331 (1998).

16. Rollo, p. 9.

17. Annex "B" of the letter-complaint.

18. Annex "C" of the letter-complaint.

19. Footnote text not found in the original..

20. Castaos vs . Escao, 251 SCRA 174, 193194 (1995).

21. Basco vs . Rapatalo, 269 SCRA 220, 244 (1997)

22. Vilea vs . Mapaye, A.M. No. MTJ-02-1424, April 24, 2002, p. 4.

23. Cabatingan, Sr. vs . Arcueno, A.M. No. MTJ-00-1323, August 22, 2002, p. 9;
Espino vs. Salubre, 352 SCRA 668, 675 (2001).

24. Rollo, p. 27.

25. Rollo, p. 28.

26. Bantuas vs. Pangadapun, 292 SCRA 622, 628 (1998).

27. See Berin vs . Barte, A.M. No. MTJ-02-1443, July 31, 2002, p. 6; Esguerra vs . Loja,
338 SCRA 1, 4 (2000); Conducto vs . Monzon, 291 SCRA 619, 637 (1998).
 FIRST DIVISION

[A.M. No. MTJ-05-1609. September 20, 2005.]

[OCA-IPI No. 03-1490-MTJ]

TRINIDAD O. LACHICA, complainant, vs. JUDGE ROSABELLA M.

TORMIS, Municipal Trial Court in Cities, Branch 4, Cebu City ,
respondent.

SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; BAIL; DEPOSIT OF CASH AS BAIL;

PERSONS WITH WHOM A CASH BAIL BOND MAY BE DEPOSITED. It is . . .
undisputed that respondent judge personally received the cash bail bond for the
accused. For this act alone, respondent is already administratively liable. Section 14,
Rule 114 of the Revised Rules of Criminal Procedure species the persons with
whom a cash bail bond may be deposited, namely: the collector of internal revenue
or the provincial, city or municipal treasurer. A judge is not authorized to receive the
deposit of cash as bail nor should such cash be kept in his office.

2. JUDICIAL ETHICS; JUDGES; GROSS MISCONDUCT; COMMITTED IN CASE AT

BAR. The respondent judge is guilty of gross misconduct for having abused her
judicial authority when she personally accepted the cash bail bond of the accused
and for deliberately making untruthful statements in her comment and during the
investigation of the instant administrative case with intent to mislead this Court.
The foregoing acts not only seriously undermine and adversely reect on the
honesty and integrity of respondent judge as an ocer of the court; they also betray
a character aw which speaks ill of her person. Making false representations is a
vice which no judge should imbibe. As the judge is the visible representation of the
law, and more importantly justice, he must therefore, be the rst to abide by the
law and weave an example for the others to follow.

3. ID.; ID.; THE EXACTING STANDARDS OF CONDUCT DEMANDED FROM JUDGES

ARE DESIGNED TO PROMOTE PUBLIC CONFIDENCE IN THE INTEGRITY AND
IMPARTIALITY OF THE JUDICIARY. In the Judiciary, moral integrity is more than a
cardinal virtue, it is a necessity. Respondent must bear in mind that the exacting
standards of conduct demanded from judges are designed to promote public
condence in the integrity and impartiality of the judiciary. When the judge himself
becomes the transgressor of the law which he is sworn to apply, he places his oce
in disrepute, encourages disrespect for the law and impairs public condence in the
integrity of the judiciary itself.

4. ID.; ID.; MISCONDUCT; DEFINED. Misconduct is dened as any unlawful

conduct of a person concerned in the administration of justice prejudicial to the
rights of parties or to the right determination of the cause. It generally means
wrongful, improper or unlawful conduct motivated by a premeditated, obstinate or
intentional purpose. To justify the taking of drastic disciplinary action, as is what is
sought by complainant in this case, the law requires that the error or mistake must
be gross or patent, malicious, deliberate or in bad faith.

5. REMEDIAL LAW; RULES OF COURT; CHARGES AGAINST JUDGES; GROSS

MISCONDUCT; PENALTY. Gross misconduct under Section 8 (3), Rule 140 of the
Revised Rules of Court, as amended, is classied as a serious oense punishable by
any of the sanctions enumerated in Section 11 of the same Rule which provides
that: "SEC. 11. Sanctions. A. If the respondent is guilty of a serious charge, any of
the following sanctions may be imposed: 1. Dismissal from the service, forfeiture of
all or part of the benets as the Court may determine, and disqualication from
reinstatement or appointment to any public oce, including government-owned or
controlled corporations. Provided, however, that the forfeiture of benets shall in no
case include accrued leave credits; 2. Suspension from oce without salary and
other benets for more than three (3) but not exceeding six (6) months; or 3. A ne
of more than P20,000.00 but not exceeding P40,000.00."

DECISION

YNARES-SANTIAGO, J : p

In an Adavit dated October 2, 2003, 1 Trinidad O. Lachica charged Judge Rosabella

M. Tormis of the Municipal Trial Court in Cities of Cebu City, Branch IV, with Abuse
of Authority relative to Criminal Cases Nos. 57220-R to 57223-R. 2 Complainant
alleged that since the ling of the information, accused Domugho has remained at
large. Thus, the cases were ordered archived 3 but an alias warrant of arrest 4 was
issued by respondent judge on January 14, 2000. EIDTAa

On July 2, 2003, Domugho was apprehended by PO3 Epifanio G. Sanjorjo at around

8:45 p.m. and was brought to the police station for booking and custody at 9:30
p.m. 5

However, on July 3, 2003, at around 8:30 a.m., complainant was surprised to

receive a call from the accused informing her that she was released from
connement on July 2, 2003 at 10:00 p.m. Complainant inquired from the police
station if an Order of Release was issued by the court, but she was informed that
the accused was released because the respondent judge called the police station and
told the desk ocer that the accused had posted a cash bail bond and may already
be released.

Complainant checked the case records but the expediente contained no copy of the
release order. It was only at 1:00 p.m. that she was shown a copy thereof.
Meanwhile, the case records could not be located. It was only on 4:30 p.m. of July 3,
2003 that the same was found.

The police blotter showed no entry that an order of release was received by the
police. Only a notation that the accused had put up a cash bail bond was entered
therein.ECAaTS

Complainant also averred that it was improper for the respondent judge to receive
the cash bail bond as the function belongs exclusively to the Oce of the Clerk of
Court. She claimed that respondent judge committed an act of impropriety when
she called the police station to verbally order the release of the accused. She
claimed that it was irregular that no copy of the release order was found in the
expediente in the morning of July 3, 2003 considering that it was supposedly issued
on July 2, 2003.

In her Comment 6 dated December 3, 2003 respondent judge denied the charges of
complainant. She maintained that on July 2, 2003 at 7:00 p.m., she issued the
Order of Release after the accused posted a cash bond. She claimed that the accused
was released by virtue of the Order of Release and not on the basis of her alleged
telephone call to the police station.

On August 2, 2004, the Court resolved to refer the case to the Executive Judge,
Regional Trial Court, Cebu City for investigation, report and recommendation. 7

The investigating judge submitted a Report 8 dated November 18, 2004

recommending that respondent judge be ned in the amount of P20,000.00 or
suspended for three (3) months based on the following findings:

1. The accused was arrested at 8:45 in the evening of July 2, 200[4], was
booked at the Waterfront Police Station at 9:00 p.m., and released
without a Release Order at 10:00 that same night.

2. The arresting ocer and the accused never appeared before the
respondent judge on the night of July 2, 200[4], as claimed by
respondent judge. The accused was arrested at 8:45 p.m., after her
classes at Southwestern University. She could not have appeared
before respondent judge prior to her arrest since she was in school.
Had it been true that the arresting ocer appeared before the judge
that night, it would have been highly improbable for the arresting
officer not to have asked for a copy of the Release Order.

3. No one saw the Release Order on July 2, 200[4], except the respondent
judge, as per testimony of the complainant and Helen Mongoya, and
as shown by the police blotter, and the affidavit of the arresting officer
claiming that they were reprimanded by their Chief because they
released the accused without a Release Order.

4. The accused was released without the Release Order, and only upon the
telephone call of respondent judge.

5. The Release Order was never issued on the night of July 2, 200[4]. No
judge in his right mind would issue a Release Order without the record
of the case, more so if the case had been "archived".
 5. The Release Order appeared only in the afternoon of July 3, 200[4].

6. The record of the case was found by court aide, Juan Aos, in the bodega
of MTCC, Branch 4, together with the records of other archived cases,
at about 4:30 in the afternoon of July 3, 200[4].

7. Respondent judge was in Manila early morning of July 3, 200[4].

8. It was physically impossible for the respondent judge to have signed the
Release Order before 1:00 p.m. of July 3, 200[4], since she was in
Manila. Questions may be raised whether the Receipt for the Cash
Bond and the Release Order were signed by a person other than the
respondent judge. As can be gleaned from the record, the signature
appearing on the Receipt for the Cash Bond, the Release Order and
the signature of the respondent judge on her Comment dated
December 10, 2003, do not appear to be signed by the same person.

9. Respondent judge authenticated the Release Order during the

Investigation proper as the Release Order she issued on July 2, 2003.
9

The Oce of the Court Administrator (OCA) agreed with the ndings of the
investigating judge but recommended that respondent judge be suspended for three
(3) months. 10

We agree with the ndings of the investigating judge and the OCA except for the
recommended penalty.

During the investigation, it was established that the accused was arrested on July 2,
2003 at 8:45 p.m. and was brought directly to the Waterfront Police Station where
she was booked at 9:00 p.m. At about 10:00 p.m. the accused was set free without
a release order. 11

Respondent judge, however, claimed that she issued the Order of Release on July 2,
2003 at around 7:00 p.m. after the accused and her counsel, together with the
arresting ocer, came to her oce and posted a cash bond. It was by virtue of this
order that the accused was released.

A circumspect scrutiny of the testimonies given by respondent judge reveals that

she made several untruthful statements possibly with the intent to mislead the
Court.

It was improbable that, as claimed by respondent judge, she issued the Order of
Release on July 2, 2003 at around 7:00 p.m. considering that the accused was
apprehended at 8:45 p.m. The complainant and the arresting ocer, as well as the
entry in the police blotter all declared that the arrest was made at 8:45 p.m. and
not earlier. Verily, respondent judge could not have issued the release order at
around 7:00 p.m. as the accused has not yet been arrested at that time.

She also insisted that on July 2, 2003, the accused and her counsel, and the
arresting ocer went to her oce and posted a bond whereupon she issued the
Order of Release. However, this is belied by the testimonies of the arresting ocer
and the complainant who both claimed that the accused was brought directly to the
police station after the arrest. We agree with the observation of the OCA that, it
would be impossible for complainant or the arresting ocer not to have mentioned
anything regarding this incident if the same actually transpired. Likewise, as pointed
out by the investigating judge, it is highly improbable for the arresting ocer not to
have demanded a copy of the release order if he really appeared before the
respondent.

Incidentally, the arresting ocer denied receiving any order of release from
respondent judge on July 2, 2003. In fact, he claimed that they were reprimanded
by their commanding ocer for releasing from their custody the person of the
accused without any accompanying court order. The following day, July 3, 2003, he
went to the court to secure a copy of the said order.

Respondent judge also averred that the Order of Release was received by SPO1
James Estrera, which receipt was duly noted in the police blotter. An examination of
the records, however, discloses that what SPO1 Estrera received was only a copy of
the Receipt of the Cash Bail Bond dated July 2, 2003 and not the Order of Release.
In fact, there was no mention of a release order in the police blotter. 12

It is also undisputed that respondent judge personally received the cash bail bond
for the accused. For this act alone, respondent is already administratively liable.
Section 14, Rule 114 of the Revised Rules of Criminal Procedure species the
persons with whom a cash bail bond may be deposited, namely: the collector of
internal revenue or the provincial, city or municipal treasurer. A judge is not
authorized to receive the deposit of cash as bail nor should such cash be kept in his
office.

The respondent judge is guilty of gross misconduct for having abused her judicial
authority when she personally accepted the cash bail bond of the accused and for
deliberately making untruthful statements in her comment and during the
investigation of the instant administrative case with intent to mislead this Court.

The foregoing acts not only seriously undermine and adversely reect on the
honesty and integrity of respondent judge as an ocer of the court; they also betray
a character aw which speaks ill of her person. Making false representations is a
vice which no judge should imbibe. As the judge is the visible representation of the
law, and more importantly justice, he must therefore, be the rst to abide by the
law and weave an example for the others to follow. 13

In the Judiciary, moral integrity is more than a cardinal virtue, it is a necessity. 14

Respondent must bear in mind that the exacting standards of conduct demanded
from judges are designed to promote public condence in the integrity and
impartiality of the judiciary. 15 When the judge himself becomes the transgressor of
the law which he is sworn to apply, he places his oce in disrepute, encourages
disrespect for the law and impairs public condence in the integrity of the judiciary
itself. 16
Misconduct is dened as any unlawful conduct of a person concerned in the
administration of justice prejudicial to the rights of parties or to the right
determination of the cause. It generally means wrongful, improper or unlawful
conduct motivated by a premeditated, obstinate or intentional purpose. 17 To justify
the taking of drastic disciplinary action, as is what is sought by complainant in this
case, the law requires that the error or mistake must be gross or patent, malicious,
deliberate or in bad faith. 18

It need not be overemphasized that in receiving the cash bond respondent judge ran
afoul with Rule 114 of the Rules of Criminal Procedure. Indeed, in the case of Office
of the Court Administrator v. Fernandez, 19 the Court held that:
The rules specify the persons with whom a cash bail bond may be deposited
namely: the collector of internal revenue, or the provincial, city or municipal
treasurer. Section 14 of Rule 114 of the Revised Rules of Criminal Procedure
(effective December 1, 2000) provides:

SEC. 14. Deposit of Cash as bail. The accused or any person acting
in his behalf may deposit in cash with the nearest collector of internal
revenue or provincial, city or municipal treasurer the amount of the
bail xed by the court, or recommended by the prosecutor who
investigated or led the case. Upon submission of a proper certicate
of deposit and of a written undertaking showing compliance with the
requirements of section 2 of this Rule, the accused shall be
discharged from custody. The money deposited shall be considered
as bail and applied to the payment of ne and costs while the excess,
if any, shall be returned to the accused or to whoever made the
deposit.

A judge is not one of those authorized to receive the deposit of cash as bail,
nor should such cash be kept in the office of the judge.

Gross misconduct under Section 8(3), Rule 140 of the Revised Rules of Court, as
amended, is classied as a serious oense punishable by any of the sanctions
enumerated in Section 11 of the same Rule which provides that:

SEC. 11. Sanctions . A. If the respondent is guilty of a serious charge, any

of the following sanctions may be imposed:

1. Dismissal from the service, forfeiture of all or part of the benets as

the Court may determine, and disqualication from reinstatement or
appointment to any public oce, including government-owned or
controlled corporations. Provided, however, that the forfeiture of
benefits shall in no case include accrued leave credits;

2. Suspension from oce without salary and other benets for more
than three (3) but not exceeding six (6) months; or

3. A fine of more than P20,000.00 but not exceeding P40,000.00.

This is not the rst time that respondent judge was sanctioned by this Court. It
appears that aside from this case, respondent judge has been administratively
charged eight (8) other times. 20 Of these cases three (3) have been dismissed. 21

On April 27, 2004 in Administrative Matter No. MTJ-00-1337, 22 the Court found
respondent guilty of improper conduct for trying to inuence the course of litigation
in Criminal Case No. 99796-12 and was accordingly reprimanded. She was also
admonished for conduct unbecoming of a judge.

On December 17, 2004, respondent was ned in the amount of P5,000.00 in

Administrative Matters Nos. 04-7-373-RTC 23 and 04-7-374-RTC, 24 for gross
violation of Section 17, Rule 114, for having approved the bail of an accused in
Criminal Cases Nos. CEB-BRL-783 and 922 pending before the RTC, Branch 60,
Barili, Cebu, absent showing of unavailability of all RTC judges in Cebu City.cDIHES

On March 16, 2005, respondent judge was admonished in Administrative Matter No.
04-1554-MTJ and reminded to be more circumspect in granting postponements.

Clearly, being chastised thrice has not reformed respondent. For the foregoing
considerations, we nd that the penalties recommended by the investigating judge
and the OCA are not commensurate to respondent judge's misconduct which is
aggravated by her past misdeeds. Respondent judge's infraction merits suspension
from the service for six (6) months.

WHEREFORE, Rosabella M. Tormis, Presiding Judge, Municipal Trial Court in Cities,

Cebu City, Branch IV, is found GUILTY of gross misconduct and is SUSPENDED from
oce for six (6) months without salary and other benets and STERNLY WARNED
that a repetition of the same or similar acts shall be dealt with more severely. TASCEc

SO ORDERED.

Davide, Jr., C.J., Quisumbing, Carpio and Azcuna, JJ., concur.

Footnotes

1. Rollo, pp. 1-4.

2. People v. Norma Domugho @ Rona Cantillas for Violation of B.P. Blg. 22.

3. Rollo, p. 5.

4. Id. at 6.

5. Id. at 7.

6. Id. at 23-28.

7. Id. at 52.

8. Id. at 57-62.
9. Id. at 61-62.

10. Id. at 100.

11. Id. at 13-17.

12. Id. at 7.

13. Guerrero v. Deray, A.M. No. MTJ-02-1466, 10 December 2002, 393 SCRA 591, 600.

14. Pascual v. Bonifacio, A.M. No. RTJ-01-1625, 10 March 2003, 398 SCRA 695, 702.

15. Vedaa v. Judge Valencia, 356 Phil. 317, 329 [1998].

16. Yap v. Inopiquez, Jr., A.M. No. MTJ-02-1431, 9 May 2003, 403 SCRA 141, 150.

17. Canson v. Garchitorena, 370 Phil. 287, 306 [1999].

18. Fernandez v. Judge Espaol, 351 Phil. 928, 935 [1998].

19. A.M. No. MTJ-03-1511, 20 August 2004, 437 SCRA 81, 84.

20. (1) IPI No. 01-1157-MTJ for Grave misconduct and gross ignorance of the law; (2) IPI
No. 02-1289-MTJ for Dishonesty and grave misconduct; (3) IPI No. 03-1414-MTJ
for Gross ignorance of the law; (4) IPI No. 03-1490-MTJ, the instant case, for
Abuse of Authority; (5) A.M. No. MTJ-00-1337, for Conduct Unbecoming a
Dispenser of Justice, Navarro v. Tormis , 27 April 2004, 428 SCRA 37; (6) IPI No.
04-1554-MTJ for Ignorance of the law, bias and partiality, oppression and violation
of Art. 207, Revised Penal Code, etc.; (7) A.M. No. 04-7-373-RTC, Re: Report on
the Judicial Audit Conducted in the RTC, Branch 60, Barili, Cebu , 17 December
2004, 447 SCRA 246; (8) A.M. No. 04-7-374-RTC, Re: Violation of Judge Ildefonso
Suerte, RTC, Branch 60, Barili, Cebu, of Administrative Order No . 36-2004 dated
March 3, 2004, 17 December 2004, 447 SCRA 246.

21. IPI Nos. 01-1157-MTJ; 02-1289-MTJ and 03-1414-MTJ.

22. Navarro v. Tormis , A.M. No. MTJ-00-1337, 27 April 2004, 428 SCRA 37.

23. Entitled Re: Report on the Judicial Audit Conducted in the RTC, Branch 60, Barili,
Cebu.

24. Entitled Re: Violation of Judge Ildefonso Suerte, RTC, Branch 60, Barili, Cebu, of
Administrative Order No. 36-2004 dated March 3, 2004.
 EN BANC

[G.R. No. 148468. January 28, 2003.]

ATTY. EDWARD SERAPIO , petitioner, vs. SANDIGANBAYAN

(THIRD DIVISION), PEOPLE OF THE PHILIPPINES, and
PHILIPPINE NATIONAL POLICE DIRECTOR-GENERAL LEANDRO
MENDOZA, respondents.

[G.R. No. 148769. January 28, 2003.]

EDWARD SERAPIO, petitioner, vs. HONORABLE SANDIGANBAYAN

and PEOPLE OF THE PHILIPPINES, respondents.

[G.R. No. 149116. January 28, 2003.]

EDWARD SERAPIO, petitioner, vs. HONORABLE SANDIGANBAYAN

(THIRD DIVISION) and PEOPLE OF THE PHILIPPINES,
respondents.

Tan Acut & Lopez for petitioner.

SYNOPSIS

The Ombudsman led an amended information with the Sandiganbayan charging

petitioner and several others with plunder. Petitioner led a motion for
reconsideration and/or reinvestigation of the Ombudsman's resolution nding
probable cause against him for plunder, but the same was denied. He likewise led
with the Sandiganbayan an urgent omnibus motion. Subsequently, the
Sandiganbayan ordered the issuance of warrants of arrest for the accused, including
petitioner. Petitioner voluntarily surrendered and was detained. Before the
Sandiganbayan could resolve the pending motions of petitioner and the prosecution,
petitioner led with this Court a petition for habeas corpus and certiorari claiming
that he was eectively denied of his right to due process. Petitioner likewise led
with this Court a petition for certiorari against the Sandiganbayan for denying his
motion to quash the information. Petitioner also led another petition for certiorari
assailing the Sandiganbayan's resolution which denied his urgent omnibus motion
and its resolution denying his motion for reconsideration.

The Supreme Court ruled that the acts and omissions complained of must be alleged
in such form as is sucient to enable the person of common understanding to know
what oense is intended to be charged and enable the court to know the proper
judgment. The Information must allege clearly and accurately the elements of the
crime charged. The use of derivatives or synonyms or allegations of basic facts
constituting the oense charged is sucient. The Court likewise ruled that it does
not interfere with the Ombudsman's discretion in the conduct of preliminary
investigations. The right to a preliminary investigation is not a constitutional right,
but is merely a right granted by statute. The absence of a preliminary investigation
does not impair the validity of the Information or otherwise render the same
defective, and neither does it aect the jurisdiction of the court over the case or
constitute a ground for quashing the Information. If the lack of a preliminary
investigation does not render the Information invalid nor aect the jurisdiction of
the court over the case, with more reason can it be said that the denial of a motion
for reinvestigation cannot invalidate the Information or oust the court of its
jurisdiction over the case. Neither can it be said that petitioner had been deprived of
due process. He was aorded the opportunity to refute the charges against him
during the preliminary investigation.

The Supreme Court further ruled that the arraignment of the accused is not a
prerequisite to the conduct of hearings on his petition for bails. A person is allowed
to le a petition for bail as soon as he is deprived of his liberty by virtue of his arrest
or voluntary surrender. The Court also did not nd any inconsistency between an
application of an accused for bail and his ling of a motion to quash. An accused may
file a motion to quash the Information, as a general rule, before arraignment.

The Court also held that a petition for habeas corpus is not the appropriate remedy
for asserting one's right to bail. It cannot be availed of where accused is entitled to
bail not as a matter of right but on the discretion of the court and the latter has not
abused such discretion in refusing to grant bail, or has not even exercised said
discretion. The proper recourse is to le an application for bail with the court where
the criminal case is pending and to allow hearings thereon to proceed.

SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; PROSECUTION OF OFFENSES;

INFORMATION OR COMPLAINT; WHEN SUFFICIENT. The acts or omissions
complained of must be alleged in such form as is sucient to enable a person of
common understanding to know what oense is intended to be charged and enable
the court to know the proper judgment. The Information must allege clearly and
accurately the elements of the crime charged. What facts and circumstances are
necessary to be included therein must be determined by reference to the denition
and elements of the specic crimes. The purpose of the requirement of alleging all
the elements of the crime in the Information is to inform an accused of the nature
of the accusation against him so as to enable him to suitably prepare for his
defense. Another purpose is to enable accused, if found guilty, to plead his
conviction in a subsequent prosecution for the same oense. The use of derivatives
or synonyms or allegations of basic facts constituting the oense charged is
sufficient.

2. CRIMINAL LAW; CONSPIRACY; WHEN TWO OR MORE PERSONS CONSPIRE TO

COMMIT A CRIME, EACH IS RESPONSIBLE FOR ALL THE ACTS OF OTHERS. When
two or more persons conspire to commit a crime, each is responsible for all the acts
of others. In contemplation of law, the act of the conspirator is the act of each of
them. Conspirators are one man, they breathe one breath, they speak one voice,
they wield one arm and the law says that the acts, words and declarations of each,
while in the pursuit of the common design, are the acts, words and declarations of
all.
TICDSc

3. REMEDIAL LAW; CRIMINAL PROCEDURE; PRELIMINARY INVESTIGATION;

SUPREME COURT DOES NOT INTERFERE WITH THE OMBUDSMAN'S DISCRETION
IN THE CONDUCT THEREOF. [T]he Court does not interfere with the
Ombudsman's discretion in the conduct of preliminary investigations. Thus, in Raro
vs. Sandiganbayan, the Court ruled: ". . . .In the performance of his task to
determine probable cause, the Ombudsman's discretion is paramount. Thus, in
Camanag vs. Guerrero, this Court said: '. . . . (S)uce it to state that this Court has
adopted a policy of non-interference in the conduct of preliminary investigations,
and leaves to the investigating prosecutor sucient latitude of discretion in the
exercise of determination of what constitutes sucient evidence as will establish
'probable cause' for ling of information against the supposed oender." In Cruz, Jr.
vs. People , the Court ruled thus: "Furthermore, the Ombudsman's ndings are
essentially factual in nature. Accordingly, in assailing said ndings on the contention
that the Ombudsman committed a grave abuse of discretion in holding that
petitioner is liable for estafa through falsication of public documents, petitioner is
clearly raising questions of fact here. His arguments are anchored on the propriety
or error in the Ombudsman's appreciation of facts. Petitioner cannot be unaware
that the Supreme Court is not a trier of facts, more so in the consideration of the
extraordinary writ of certiorari where neither question of fact nor even of law are
entertained, but only questions of lack or excess of jurisdiction or grave abuse of
discretion. Insofar as the third issue is concerned, we nd that no grave abuse of
discretion has been committed by respondents which would warrant the granting of
the writ of certiorari."

4. ID.; ID.; ID.; RIGHT TO PRELIMINARY INVESTIGATION IS NOT A

CONSTITUTIONAL RIGHT BUT MERELY A RIGHT CONFERRED BY STATUTE. It
bears stressing that the right to a preliminary investigation is not a constitutional
right, but is merely a right conferred by statute. The absence of a preliminary
investigation does not impair the validity of the Information or otherwise render the
same defective and neither does it aect the jurisdiction of the court over the case
or constitute a ground for quashing the Information. If the lack of a preliminary
investigation does not render the Information invalid nor aect the jurisdiction of
the court over the case, with more reason can it be said that the denial of a motion
for reinvestigation cannot invalidate the Information or oust the court of its
jurisdiction over the case. Neither can it be said that petitioner had been deprived of
due process. He was aorded the opportunity to refute the charges against him
during the preliminary investigation.

5. ID.; ID.; ID.; PURPOSE IS MERELY TO DETERMINE WHETHER A CRIME HAS

BEEN COMMITTED AND WHETHER THERE IS PROBABLE CAUSE TO BELIEVE THAT
THE PERSON ACCUSED OF THE CRIME IS PROBABLY GUILTY THEREOF AND
SHOULD BE HELD FOR TRIAL. The purpose of a preliminary investigation is
merely to determine whether a crime has been committed and whether there is
probable cause to believe that the person accused of the crime is probably guilty
thereof and should be held for trial. As the Court held in Webb vs. De Leon , "[a]
nding of probable cause needs only to rest on evidence showing that more likely
than not a crime has been committed and was committed by the suspect. Probable
cause need not be based on clear and convincing evidence of guilt, neither on
evidence establishing guilt beyond reasonable doubt and denitely, not on evidence
establishing absolute certainty of guilt." Absent any showing of arbitrariness on the
part of the prosecutor or any other ocer authorized to conduct preliminary
investigation, courts as a rule must defer to said ocer's nding and determination
of probable cause, since the determination of the existence of probable cause is the
function of the prosecutor.

6. ID.; ID.; ARRAIGNMENT; NOT A PREREQUISITE TO THE CONDUCT OF

HEARINGS ON ACCUSED'S PETITION FOR BAIL. The arraignment of an accused is
not a prerequisite to the conduct of hearings on his petition for bail. A person is
allowed to petition for bail as soon as he is deprived of his liberty by virtue of his
arrest or voluntary surrender. An accused need not wait for his arraignment before
filing a petition for bail.

7. ID.; ID.; BAIL AND MOTION TO QUASH, DISTINGUISHED. Bail is the security
given for the release of a person in the custody of the law, furnished by him or a
bondsman, to guarantee his appearance before any court as required under the
conditions set forth under the Rules of Court. Its purpose is to obtain the provisional
liberty of a person charged with an oense until his conviction while at the same
time securing his appearance at the trial. As stated earlier, a person may apply for
bail from the moment that he is deprived of his liberty by virtue of his arrest or
voluntary surrender. On the other hand, a motion to quash an Information is the
mode by which an accused assails the validity of a criminal complaint or Information
led against him for insuciency on its face in point of law, or for defects which are
apparent in the face of the Information. An accused may le a motion to quash the
Information, as a general rule, before arraignment.

8. ID.; ID.; BAIL; APPLICATION OF AN ACCUSED FOR BAIL DOES NOT PRECLUDE
HIS RIGHT TO ASSAIL THE VALIDITY OF THE INFORMATION FILED AGAINST HIM.
The right of an accused to seek provisional liberty when charged with an oense not
punishable by death, reclusion perpetua or life imprisonment, or when charged with
an oense punishable by such penalties but after due hearing, evidence of his guilt
is found not to be strong, does not preclude his right to assail the validity of the
Information charging him with such oense. It must be conceded, however, that if a
motion to quash a criminal complaint or Information on the ground that the same
does not charge any oense is granted and the case is dismissed and the accused is
ordered released, the petition for bail of an accused may become moot and
academic.

9. ID.; ID.; ID.; THE MATTER OF WHETHER OR NOT TO CONDUCT A JOINT

HEARING OF PETITIONS FOR BAIL FILED BY DIFFERENT ACCUSED OR TO CONDUCT
A HEARING OF SAID PETITION JOINTLY WITH THE TRIAL AGAINST ANOTHER
ACCUSED IS ADDRESSED TO THE SOUND DISCRETION OF THE TRIAL COURT.
There is no provision in the Revised Rules of Criminal Procedure or the Rules of
Procedure of the Sandiganbayan governing the hearings of two or more petitions for
bail led by dierent accused or that a petition for bail of an accused be heard
simultaneously with the trial of the case against the other accused. The matter of
whether or not to conduct a joint hearing of two or more petitions for bail led by
two dierent accused or to conduct a hearing of said petition jointly with the trial
against another accused is addressed to the sound discretion of the trial court.
Unless grave abuse of discretion amounting to excess or lack of jurisdiction is
shown, the Court will not interfere with the exercise by the Sandiganbayan of its
discretion.

10. ID.; ID.; ID.; GRANTED BY THE COURT IF THERE IS A SHOWING THAT THE
EVIDENCE OF GUILT AGAINST A PERSON CHARGED WITH CAPITAL OFFENSE IS NOT
STRONG. [A] person charged with a capital oense is not absolutely denied the
opportunity to obtain provisional liberty on bail pending the judgment of his case.
However, as to such person, bail is not a matter of right but is discretionary upon
the court. . . . [T]here must be a showing that the evidence of guilt against a person
charged with a capital oense is not strong for the court to grant him bail. Thus,
upon an application for bail by the person charged with a capital oense, a hearing
thereon must be conducted, where the prosecution must be accorded an
opportunity to discharge its burden of proving that the evidence of guilt against an
accused is strong. The prosecution shall be accorded the opportunity to present all
the evidence it may deem necessary for this purpose. When it is satisfactorily
demonstrated that the evidence of guilt is strong, it is the court's duty to deny the
application for bail. However, when the evidence of guilt is not strong, bail becomes
a matter of right.

11. ID.; ID.; ID.; IN CASES WHERE THE PROSECUTION REFUSES TO ADDUCE
EVIDENCE IN OPPOSITION TO AN APPLICATION FOR BAIL BY ACCUSED CHARGED
WITH CAPITAL OFFENSE, THE TRIAL COURT IS STILL UNDER DUTY TO CONDUCT' A
HEARING ON SAID APPLICATION. [T]he Court has previously ruled that even in
cases where the prosecution refuses to adduce evidence in opposition to an
application for bail by an accused charged with a capital oense, the trial court is
still under duty to conduct a hearing on said application. The rationale for such
requirement was explained in Narciso vs. Sta. Romana-Cruz (supra), citing Basco vs.
Rapatalo: "When the grant of bail is discretionary, the prosecution has the burden of
showing that the evidence of guilt against the accused is strong. However, the
determination of whether or not the evidence of guilt is strong, being a matter of
judicial discretion, remains with the judge. This discretion by the very nature of
things, may rightly be exercised only after the evidence is submitted to the court at
the hearing. Since the discretion is directed to the weight of the evidence and since
evidence cannot properly be weighed if not duly exhibited or produced before the
court, it is obvious that a proper exercise of judicial discretion requires that the
evidence of guilt be submitted to the court, the petitioner having the right of cross-
examination and to introduce his own evidence in rebuttal." cASEDC
12. ID.; SPECIAL PROCEEDINGS; HABEAS CORPUS; WHEN WRIT NOT ISSUED;
EXCEPTION. As a general rule, the writ of habeas corpus will not issue where the
person alleged to be restrained of his liberty in custody of an ocer under a process
issued by the court which jurisdiction to do so. In exceptional circumstances, habeas
corpus may be granted by the courts even when the person concerned is detained
pursuant to a valid arrest or his voluntary surrender, for this writ of liberty is
recognized as "the fundamental instrument for safeguarding individual freedom
against arbitrary and lawless state action" due to "its ability to cut through barriers
of form and procedural mazes." Thus, in previous cases, we issued the writ where
the deprivation of liberty, while initially valid under the law, had later become
invalid, and even though the persons praying for its issuance were not completely
deprived of their liberty.

13. ID.; ID.; ID.; NOT THE APPROPRIATE REMEDY FOR ASSERTING ONE'S RIGHT
TO BAIL. [A] petition for habeas corpus is not the appropriate remedy for
asserting one's right to bail. It cannot be availed of where accused is entitled to bail
not as a matter of right but on the discretion of the court and the latter has not
abused such discretion in refusing to grant bail, or has not even exercised said
discretion. The proper recourse is to le an application for bail with the court where
the criminal case is pending and to allow hearings thereon to proceed.

VITUG, J., separate opinion:

1. CRIMINAL LAW; PLUNDER; HOW COMMITTED. "Plunder may be committed

by any public ocer either by himself or "in connivance" with other persons; it may
also be committed by a person who participates with a public ocer in the
commission of an oense contributing to the crime of plunder. A person may thus
be held accountable under the law by conniving with the principal co-accused or by
participating in the commission of "an oense" contributing to the crime of plunder.
The term "in connivance" would suggest an agreement or consent to commit an
unlawful act or deed with or by another, to connive being to cooperate secretly or
privily with another. Upon the other hand, to participate is to have a part or a share
in conjunction with another of the proceeds of the unlawful act or deed. "The
amended Information alleged "connivance" and would assume that petitioner and
his co-accused had a common design in perpetrating the violations complained of
constitutive of "plunder." "The Supreme Court in Estrada vs. Sandiganbayan has
declared the anti-plunder law constitutional for being neither vague nor ambiguous
on the thesis that the terms "series" and "combination" are not unsusceptible to
rm understanding. "Series" refers to two or more acts falling under the same
category of the enumerated acts provided in Section 1(d) of the statute;
"combination" pertains to two or more acts falling under at least two separate
categories mentioned in the same law.

2. ID.; ID.; IT IS NOT RIGHT NOR JUST TO CAST CRIMINAL LIABILITY ON ONE
FOR ACTS OF PLUNDER THAT MAY HAVE BEEN COMMITTED BY ANOTHER OVER
WHICH HE HAS NOT CONSENTED OR ACCEDED TO, PARTICIPATED IN, OR EVEN IN
FACT BEEN AWARE OF. "The government argues that the illegal act ascribed to
petitioner is a part of the chain that links the various acts of plunder by the principal
accused. It seems to suggest that a mere allegation of conspiracy is quite enough to
hold petitioner equally liable with the principal accused for the latter's other acts,
even if unknown to him, in paragraph (a) of the indictment. This contention is a
glaring bent. It is, to my mind, utterly unacceptable, neither right nor just, to cast
criminal liability on one for the acts or deeds of plunder that may have been
committed by another or others over which he has not consented or acceded to,
participated in, or even in fact been aware of. Such vicarious criminal liability is
never to be taken lightly but must always be made explicit not merely at the trial
but likewise, and no less important, in the complaint or information itself in order to
meet the fundamental right of an accused to be fully informed of the charge against
him. It is a requirement that cannot be dispensed with if he were to be
meaningfully assured that he truly has a right to defend himself. Indeed, an
unwarranted generalization on the scope of the anti-plunder law would be a fatal
blow to maintaining its constitutionality given the ratio decidendi in the
pronouncement heretofore made by the Court upholding the validity of the
statute."

3. REMEDIAL LAW; CRIMINAL PROCEDURE; PROSECUTION OF OFFENSES;

ACCUSED SHALL NOT BE DISCHARGED EVEN WHEN A MISTAKE HAS BEEN MADE
IN CHARGING THE PROPER OFFENSE IF HE MAY STILL BE HELD ACCOUNTABLE FOR
ANY OTHER OFFENSE NECESSARILY INCLUDED IN THE CRIME BEING CHARGED;
CASE AT BAR. "[T]he petitioner, although ineectively charged in the Amended
Information for plunder, could still be prosecuted and tried for a lesser oense, for it
is a recognized rule that an accused shall not be discharged even when a mistake
has been made in charging the proper oense if he may still be held accountable for
any other oense necessarily included in the crime being charged. It is, however,
the Sandiganbayan, not this Court, which must make this determination on the
basis of its own findings."

SANDOVAL-GUTIERREZ, J., dissenting opinion:

1. CRIMINAL LAW; CONSPIRACY; DISTINCT AND SEPARATE CONSPIRACIES DO

NOT BECOME SINGLE CONSPIRACY MERELY BECAUSE ONE MAN IS A PARTICIPANT
IN ALL THE SEPARATE CONSPIRACIES; CASE AT BAR. There exists a distinction
between separate conspiracies, where certain parties are common to all the
conspiracies, but with no overall goal or common purpose; and one overall
continuing conspiracy with various parties joining and terminating their relationship
at dierent times. Distinct and separate conspiracies do not, in contemplation of
law, become a single conspiracy merely because one man is a participant and key
gure in all the separate conspiracies. The present case is a perfect example. The
fact that former President Estrada is a common key gure in the criminal acts
recited under paragraphs (a), (b), (c) and (d) of the Amended Information does not
automatically give rise to a single continuing conspiracy of plunder, particularly,
with respect to petitioner Serapio whose participation is limited to paragraph (a). To
say otherwise is to impute to petitioner or to any of the accused the acts and
statements of the others without reference to whether or not their acts are related
to one scheme or overall plan. It could not have been the intention of the
Legislature, in drafting R.A. No. 7080, to authorize the prosecution to chain together
four separate and distinct crimes when the only nexus among them lies in the fact
that one man participated in all. There lies a great danger for the transference of
guilt from one to another across the line separating conspiracies.

2. REMEDIAL LAW; CRIMINAL PROCEDURE; PROSECUTION OF OFFENSES;

INFORMATION; WHEN CERTAIN PERSONS UNITE TO PERFORM CERTAIN ACTS AND
SOME OF THEM UNITE WITH OTHERS WHO ARE ENGAGED IN TOTALLY DIFFERENT
ACTS, IT IS ERROR TO JOIN THEM IN AN INFORMATION. [W]hen certain persons
unite to perform certain acts, and some of them unite with others who are engaged
in totally dierent acts, it is error to join them in an information. Otherwise stated,
defendants charged with two separate conspiracies having one common participant
are not, without more, properly joined, and similarity of acts alone is insucient to
indicate that series of acts exist. Joinder may be permitted when the connection
between the alleged oenses and the parties is the accused's awareness of the
identity and activity of the other alleged participants. There must be a showing of
one overall common goal to which the participants bind themselves.

3. CRIMINAL LAW; REPUBLIC ACT NO. 7080 (ANTI-PLUNDER LAW); THE PHRASE
"COMBINATION OR SERIES OF OVERT OR CRIMINAL ACTS"; CONSTRUED. The
essence of the law on plunder lies in the phrase "combination or series of overt or
criminal acts." The determining factor of R.A. No. 7080, as can be gleaned from the
Record of the Senate, is the plurality of the overt acts or criminal acts under a grand
scheme or conspiracy to amass ill-gotten wealth. Thus, even if the amassed wealth
equals or exceeds fty million pesos, a person cannot be prosecuted for the crime of
plunder if he performs only a single criminal act.DTEAHI

4. ID.; CONSPIRACY; MULTIPLE AGREEMENTS TO COMMIT SEPARATE CRIMES

CONSTITUTE MULTIPLE CONSPIRACIES. A single agreement to commit several
crimes constitutes one conspiracy. By the same reasoning, multiple agreements to
commit separate crimes constitute multiple conspiracies. To individually and
separately name the co-conspirators in each of the predicate oenses is to reveal
the absence of a common design. The explicit clustering of co-conspirators for each
predicate oense thwarts the majority's theory of a single continuing conspiracy of
plunder. It reveals a clear line segregating each predicate oense from the other.
Thus, the act of one cannot be considered as the act of all.

5. REMEDIAL LAW; CRIMINAL PROCEDURE; PROSECUTION OF OFFENSES; AN

INFORMATION CHARGING THAT DEFENDANT CONSPIRED TO COMMIT AN OFFENSE
MUST ALLEGE THAT THE DEFENDANT AGREED WITH ONE OR MORE PERSONS TO
COMMIT THE OFFENSE; CASE AT BAR. [P]etitioner's criminal intent to advance
the unlawful object of the conspiracy (plunder) is not suciently alleged in the
factual recitals of the Amended Information. Corollarily, the intent required is the
intent to advance or further the unlawful object of the conspiracy. This means that
so far as the relevant circumstances are concerned, both parties to the agreement
must have mens rea. There is no conspiracy to commit a particular crime unless the
parties to the agreement intend that the consequences, which are ingredients of
that crime, shall be caused. In the present case, while there is an allegation that
former President Estrada "willfully, unlawfully and criminally" amassed ill-gotten
wealth in the aggregate amount of P4,097,804,173.17, none is mentioned with
regard to petitioner. There is nothing in the Amended Information that suggests
whether or not petitioner has the mens rea to engage in the commission of the
serious crime of plunder. Indeed, there are no allegations that he " willfully,
unlawfully or criminally" joined with the rest of the accused to amass ill-gotten
wealth. This renders the Amended Information fatally defective with respect to
petitioner. Every crime is made up of certain acts and intent: these must be set
forth in the complaint with reasonable particularity. Imperatively, an information
charging that a defendant conspired to commit an oense must allege that the
defendant agreed with one or more persons to commit the offense.

6. ID.; ID.; ID.; INFORMATION OR COMPLAINT; THE NATURE AND CAUSE OF

ACCUSATION AGAINST ACCUSED IS DETERMINED BY THE CRIME DESCRIBED BY
THE FACTS IN THE INFORMATION AND COMPLAINT AND NOT THAT DESIGNATED BY
THE FISCAL IN THE PREAMBLE THEREOF. It is a jurisprudentially-embedded rule
that what determines the "nature and cause of accusation" against an accused is
the crime described by the facts stated in the information or complaint and not that
designated by the scal in the preamble thereof. . . . Thus, in the event that the
appellation of the crime charged, as determined by the public prosecutor, does not
exactly correspond to the actual crime constituted by the criminal acts described in
the information to have been committed by the accused, what controls is the
description of the said criminal acts and not the technical name of the crime
supplied by the public prosecutor.

DECISION

CALLEJO, SR., J :p

Before the Court are two petitions for certiorari led by petitioner Edward Serapio,
assailing the resolutions of the Third Division of the Sandiganbayan denying his
petition for bail, motion for a reinvestigation and motion to quash, and a petition for
habeas corpus, all in relation to Criminal Case No. 26558 for plunder wherein
petitioner is one of the accused together with former President Joseph E. Estrada,
Jose "Jinggoy" P. Estrada and several others.

The records show that petitioner was a member of the Board of Trustees and the
Legal Counsel of the Erap Muslim Youth Foundation, a non-stock, non-prot
foundation established in February 2000 ostensibly for the purpose of providing
educational opportunities for the poor and underprivileged but deserving Muslim
youth and students, and support to research and advance studies of young Muslim
educators and scientists.

Sometime in April 2000, petitioner, as trustee of the Foundation, received on its

behalf a donation in the amount of Two Hundred Million Pesos (P200 Million) from
Ilocos Sur Governor Luis "Chavit" Singson through the latter's assistant Mrs.
Yolanda Ricaforte. Petitioner received the donation and turned over the said amount
to the Foundation's treasurer who later deposited it in the Foundation's account
with the Equitable PCI Bank. AEcIaH

In the latter part of the year 2000, Gov. Singson publicly accused then President
Joseph E. Estrada and his cohorts of engaging in several illegal activities, including
its operation on the illegal numbers game known as jueteng. This triggered the
ling with the Oce of the Ombudsman of several criminal complaints against
Joseph Estrada, Jinggoy Estrada and petitioner, together with other persons. Among
such complaints were: Volunteers Against Crime and Corruption, versus Joseph
Ejercito Estrada, Edward Serapio, et al., docketed as OMB Crim. Case No. 0-00-1754;
Graft Free Philippines Foundation, Inc., versus Joseph Ejercito Estrada, Edward
Serapio, et al., docketed as OMB Crim. Case No. 0-00-1755; and Leonardo De Vera,
Romeo T. Capulong and Dennis B. Funa, versus Joseph Estrada, Yolanda Ricaforte,
Edward Serapio, Raul De Guzman, Danilo Reyes and Mila Reforma , docketed as
OMB Crim. Case No. 0-00-1757.

Subsequently, petitioner led his Counter-Adavit dated February 21, 2001. The
other respondents likewise led their respective counter-adavits. The Oce of the
Ombudsman conducted a preliminary investigation of the complaints and on April 4,
2001, issued a joint resolution recommending, inter alia, that Joseph Estrada,
petitioner and several others be charged with the criminal offense of plunder.

On April 4, 2001, the Ombudsman led with the Sandiganbayan several

Informations against former President Estrada, who earlier had resigned from his
post as President of the Republic of the Philippines. One of these Informations,
docketed as Criminal Case No. 26558, charged Joseph Estrada with plunder. On April
18, 2001, the Ombudsman led an amended Information in said case charging
Estrada and several co-accused, including petitioner, with said crime. No bail was
recommended for the provisional release of all the accused, including petitioner. The
case was raed to a special division which was subsequently created by the
Supreme Court. The amended Information reads:

"That during the period from June, 1998 to January, 2001, in the Philippines,
and within the jurisdiction of this Honorable Court, accused Joseph Ejercito
Estrada, THEN A PUBLIC OFFICER, BEING THEN THE PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES, by himself A N D / O R in
CONNIVANCE/CONSPIRACY with his co-accused, WHO ARE MEMBERS OF
HIS FAMILY, RELATIVES BY AFFINITY OR CONSANGUINITY, BUSINESS
ASSOCIATES, SUBORDINATES AND/OR OTHER PERSONS, BY TAKING
UNDUE ADVANTAGE OF HIS OFFICIAL POSITION, AUTHORITY,
RELATIONSHIP, CONNECTION OR INFLUENCE, did then and there wilfully,
unlawfully and criminally amass, accumulate and acquire BY HIMSELF,
DIRECTLY OR INDIRECTLY, ill-gotten wealth in the aggregate amount OR
TOTAL VALUE of FOUR BILLION NINETY SEVEN MILLION EIGHT HUNDRED
FOUR THOUSAND ONE HUNDRED SEVENTY-THREE PESOS AND SEVENTEEN
CENTAVOS [P4,097,804,173.17], more or less, THEREBY UNJUSTLY
ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE
DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC OF THE PHILIPPINES
through ANY OR A combination OR A series of overt OR criminal acts, OR
SIMILAR SCHEMES OR MEANS, described as follows:

(a) by receiving OR collecting, directly or indirectly, on SEVERAL

INSTANCES MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED
FORTY-FIVE MILLION PESOS (P545,000,000.00), MORE OR LESS,
FROM ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE,
PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY
HIMSELF AND/OR in connivance with co-accused CHARLIE 'ATONG'
ANG, Jose 'Jinggoy' Estrada, Yolanda T. Ricaforte, Edward Serapio,
AND JOHN DOES AND JANE DOES in consideration OF TOLERATION
OR PROTECTION OF ILLEGAL GAMBLING;

(b) b y DIVERTING, RECEIVING , misappropriating, converting OR

misusing DIRECTLY OR INDIRECTLY, for HIS OR THEIR PERSONAL
gain and benet public fund in the amount of ONE HUNDRED THIRTY
MILLION PESOS (P130,000,000.00), more or less, representing a
portion of the TWO HUNDRED MILLION PESOS [P200,000,000.00])
tobacco excise tax share allocated for the Province of Ilocos Sur
under R.A. No. 7171, BY HIMSELF AND/OR in CONNIVANCE with co-
accused Charlie 'Atong' Ang, Alma Alfaro, JOHN DOE a.k.a. Eleuterio
Tan OR Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a. Delia
Rajas, AND OTHER JOHN DOES AND JANE DOES;

(c) by directing, ordering and compelling FOR HIS PERSONAL GAIN AND
BENEFIT, the Government Service Insurance System (GSIS) TO
PURCHASE, 351,878,000 SHARES OF STOCKS, MORE OR LESS, and
the Social Security System (SSS), 329,855,000 SHARES OF STOCK,
MORE OR LESS, OF THE BELLE CORPORATION IN THE AMOUNT OF
MORE OR LESS ONE BILLION ONE HUNDRED TWO MILLION NINE
HUNDRED SIXTY-FIVE THOUSAND SIX HUNDRED SEVEN PESOS AND
FIFTY CENTAVOS [P1,102,965,607.50] AND MORE OR LESS SEVEN
HUNDRED FORTY-FOUR MILLION SIX HUNDRED TWELVE THOUSAND
AND FOUR HUNDRED FIFTY PESOS [P744,612,450.00],
RESPECTIVELY, OR A TOTAL OR MORE OR LESS ONE BILLION EIGHT
HUNDRED FORTY-SEVEN MILLION FIVE HUNDRED SEVENTY-EIGHT
THOUSAND FIFTY-SEVEN PESOS AND FIFTY CENTAVOS
[P1,847,578,057.50]; AND BY COLLECTING OR RECEIVING, DIRECTLY
OR INDIRECTLY, BY HIMSELF AND/OR IN CONNIVANCE WITH JOHN
DOES AND JANE DOES, COMMISSIONS OR PERCENTAGES OF SHARES
OF STOCK IN THE AMOUNT OF ONE HUNDRED EIGHTY-NINE MILLION
SEVEN HUNDRED THOUSAND PESOS [189,700,000.00] MORE OR
LESS, FROM THE BELLE CORPORATION WHICH BECAME PART OF
THE DEPOSIT IN THE EQUITABLE-PCI BANK UNDER THE ACCOUNT
NAME "JOSE VELARDE";

(d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES,

PERCENTAGES, KICKBACKS OR ANY FORM OF PECUNIARY BENEFITS,
 IN CONNIVANCE WITH JOHN DOES AND JANE DOES , the amount of
MORE OR LESS THREE BILLION TWO HUNDRED THIRTY-THREE
MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY-
THREE PESOS AND SEVENTEEN CENTAVOS [P3,233,104,173.17] AND
DEPOSITING THE SAME UNDER HIS ACCOUNT NAME "JOSE VELARDE"
AT THE EQUITABLE-PCI BANK. aESTAI

CONTRARY TO LAW." 1

On April 5, 2001, petitioner obtained a copy of the Ombudsman's Joint Resolution

nding probable cause against him for plunder. The next day, April 6, 2001, he led
with the Oce of the Ombudsman a Motion for Reconsideration and/or
Reinvestigation. 2 Petitioner likewise led on said date, this time with the
Sandiganbayan, an Urgent Omnibus Motion: (a) To Hold in Abeyance the Issuance of
Warrant of Arrest and Further Proceedings; (b) To Conduct a Determination of
Probable Cause; (c) For Leave to File Accused's Motion for Reconsideration and/or
Reinvestigation; and (d) To Direct the Ombudsman to Conduct a Reinvestigation of
the Charges against accused Edward Serapio. 3

On April 10, 2001, the Ombudsman issued an order denying petitioner's motion for
reconsideration and/or reinvestigation on the ground of lack of jurisdiction since the
amended Information charging petitioner with plunder had already been led with
the Sandiganbayan. 4

In a parallel development, the Sandiganbayan issued a Resolution on April 25, 2001

in Criminal Case No. 26558 nding probable cause to justify the issuance of
warrants of arrest for the accused, including petitioner. Accordingly, the
Sandiganbayan issued an Order on the same date for the arrest of petitioner. 5
When apprised of said order, petitioner voluntarily surrendered at 9:45 p.m. on the
same day to Philippine National Police Chief Gen. Leandro Mendoza. Petitioner has
since been detained at Camp Crame for said charge.

The Sandiganbayan set the arraignment of the accused, including petitioner, in

Criminal Case No. 26558 on June 27, 2001. In the meantime, on April 27, 2001,
petitioner led with the Sandiganbayan an Urgent Petition for Bail which was set
for hearing on May 4, 2001. 6 For his part, petitioner's co-accused Jose "Jinggoy"
Estrada led on April 20, 2001 a Very Urgent Omnibus Motion alleging that he was
entitled to bail as a matter of right.

During the hearing on May 4, 2001 on petitioner's Urgent Petition for Bail, the
prosecution moved for the resetting of the arraignment of the accused earlier than
the June 27, 2001 schedule. However, the Sandiganbayan denied the motion of the
prosecution and issued an order declaring that the petition for bail can and should
be heard before petitioner's arraignment on June 27, 2001 and even before the
other accused in Criminal Case No. 26558 led their respective petitions for bail.
Accordingly, the Sandiganbayan set the hearing for the reception of evidence on
petitioner's petition for bail on May 21 to 25, 2001.

On May 17, 2001, four days before the hearing on petitioner's petition for bail, the
Ombudsman filed an urgent motion for early arraignment of Joseph Estrada, Jinggoy
Estrada and petitioner and a motion for joint bail hearings of Joseph Estrada, Jinggoy
Estrada and petitioner. The following day, petitioner led a manifestation
questioning the propriety of including Joseph Estrada and Jinggoy Estrada in the
hearing on his (petitioner's) petition for bail.

The Sandiganbayan issued a Resolution on May 18, 2001 resetting the hearings on
petitioner's petition for bail to June 18 to 28, 2001 to enable the court to resolve
the prosecution's pending motions as well as petitioner's motion that his petition for
bail be heard as early as possible, which motion the prosecution opposed.

On May 31, 2001, the Sandiganbayan issued a Resolution denying petitioner's April
6, 2001 Urgent Omnibus Motion. The court ruled that the issues posed by petitioner
had already been resolved in its April 25, 2001 Resolution nding probable cause to
hold petitioner and his co-accused for trial. 7 Petitioner led a motion for
reconsideration of the said May 31, 2001 Resolution.

On June 1, 2001, the Sandiganbayan issued a resolution requiring the attendance of

petitioner as well as all the other accused in Criminal Case No. 26558 during the
hearings on the petitions for bail under pain of waiver of cross-examination. The
Sandiganbayan, citing its inherent powers to proceed with the trial of the case in
the manner it determines best conducive to orderly proceedings and speedy
termination of the case, directed the other accused to participate in the said bail
hearing considering that under Section 8, Rule 114 of the Revised Rules of Court,
whatever evidence is adduced during the bail hearing shall be considered
automatically reproduced at the trial. 8

However, instead of proceeding with the bail hearing set by it on June 18, 2001, the
Sandiganbayan issued an Order on June 15, 2001 canceling the said bail hearing
due to pending incidents yet to be resolved and reset anew the hearing to June 26,
2001. 9

On the eve of said hearing, the Sandiganbayan issued a resolution denying

petitioner's motion for reconsideration of its May 31, 2001 Resolution. The bail
hearing on June 26, 2001 did not again proceed because on said date petitioner led
with the Sandiganbayan a motion to quash the amended Information on the
grounds that as against him, the amended Information does not allege a
combination or series of overt or criminal acts constitutive of plunder; as against
him, the amended Information does not allege a pattern of criminal acts indicative
of an overall unlawful scheme or conspiracy; the money alleged in paragraph (a) of
the amended Information to have been illegally received or collected does not
constitute "ill-gotten wealth" as dened in Section 1(d) of Republic Act No. 7080;
and the amended Information charges him of bribery and illegal gambling. 10 By
way of riposte, the prosecution objected to the holding of bail hearing until
petitioner agreed to withdraw his motion to quash. The prosecution contended that
petitioner's motion to quash the amended Information was antithetical to his
petition for bail.

The Sandiganbayan reset the arraignment of accused and the hearing on the
petition for bail of petitioner in Criminal Case No. 26558 for July 10, 2001 to enable
it to resolve the pending incidents and the motion to quash of petitioner. However,
even before the Sandiganbayan could resolve the pending motions of petitioner and
the prosecution, petitioner led with this Court on June 29, 2001 a Petition for
Habeas Corpus and Certiorari, docketed as G.R. No. 148468 , praying that the Court
declare void the questioned orders, resolutions and actions of the Sandiganbayan on
his claim that he was thereby eectively denied of his right to due process.
Petitioner likewise prayed for the issuance of a writ of habeas corpus; that the
People be declared to have waived their right to present evidence in opposition to
his petition for bail; and, premised on the failure of the People to adduce strong
evidence of petitioner's guilt of plunder, that he be granted provisional liberty on
bail after due proceedings. 11

Meanwhile, on June 28, 2001, Jose "Jinggoy" Estrada led with the Sandiganbayan
a motion praying that said court resolve his motion to fix his bail.

On July 9, 2001, the Sandiganbayan issued a Resolution denying petitioner's motion

to quash the amended Information. Petitioner, through counsel, received on said
date a copy of said resolution. 12 The motion to x bail led by Jose "Jinggoy"
Estrada was also resolved by the Sandiganbayan.

On July 10, 2001, just before his arraignment in Criminal Case No. 26558,
petitioner manifested to the Sandiganbayan that he was going to le a motion for
reconsideration of the July 9, 2001 Resolution denying his motion to quash and for
the deferment of his arraignment. The Sandiganbayan, however, declared that
there was no provision in the Rules of Court or in the Sandiganbayan's rules
granting the right to petitioner to le a motion for the reconsideration of an
interlocutory order issued by it and ordered petitioner to orally argue his motion for
reconsideration. When petitioner refused, the Sandiganbayan proceeded with his
arraignment. Petitioner refused to plead, impelling the court to enter a plea of not
guilty for him.

On July 20, 2001, petitioner led with the Court a Petition for Certiorari, docketed
as G.R. No. 148769 , alleging that the Sandiganbayan acted without or in excess of
jurisdiction or with grave abuse of discretion amounting to lack or excess of
jurisdiction in issuing its July 9, 2001 Resolution denying his motion to quash,
notwithstanding the fact that material inculpatory allegations of the amended
Information against him do not constitute the crime of plunder; and that he is
charged, under the said amended Information, for more than one oense. Jose
"Jinggoy" Estrada likewise led petition for certiorari with the Court docketed as
G.R. No. 148965 for the nullication of a resolution of the Sandiganbayan denying
his motion to fix bail.
cHCSDa

On August 9, 2001, petitioner led with the Court another Petition for Certiorari,
docketed as G.R. No. 149116 , assailing the Sandiganbayan's Resolution dated 31
May 2001 which denied his April 6, 2001 Urgent Omnibus Motion and its June 25,
2001 Resolution denying his motion for reconsideration of its May 31, 2001
Resolution.

Re: G.R. No. 148769

Petitioner avers that:

THE SANDIGANBAYAN ACTED WITHOUT OR IN EXCESS OF JURISDICTION

OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS
OF JURISDICTION, IN DENYING PETITIONER SERAPIO'S MOTION TO QUASH
NOTWITHSTANDING THAT

THE FACTS ALLEGED IN THE AMENDED INFORMATION AS AGAINST

PETITIONER SERAPIO DO NOT CONSTITUTE THE CRIME OF PLUNDER.

A. Th e Amended Information, as against petitioner Serapio, does not

allege a combination or series of overt or criminal acts constitutive of
plunder.

B. Th e Amended Information, as against petitioner Serapio, does not

allege a pattern of criminal acts indicative of an overall unlawful
scheme or conspiracy.

C. The money described in paragraph (a) of the Amended Information

and alleged to have been illegally received or collected does not
constitute 'ill-gotten wealth' as defined in Section 1(d), Republic Act No.
7080, as amended.

II

THE AMENDED INFORMATION CHARGES MORE THAN ONE OFFENSE." 13

Petitioner asserts that, on the face of the amended Information, he is charged with
plunder only in paragraph (a) which reads:

"(a) by receiving OR collecting, directly or indirectly, on SEVERAL

INSTANCES, MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED
FORTY-FIVE MILLION PESOS (P545,000,000.00), MORE OR LESS,
FROM ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE,
PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY
HIMSELF AND/OR in connivance with co-accused CHARLIE 'ATONG'
ANG, Jose 'Jinggoy' Estrada, Yolanda T. Ricaforte, Edward Serapio,
AND JOHN DOES AND JANE DOES, in consideration OF TOLERATION
OR PROTECTION OF ILLEGAL GAMBLING"; 14

Petitioner asserts that there is no allegation in paragraph (a) of the amended

Information of a "combination or series of overt or criminal acts" constituting
plunder as described in Section 1(d) of R.A. 7080 as amended. Neither does the
amended Information allege "a pattern of criminal acts." He avers that his single act
of toleration or protection of illegal gambling impelled by a single criminal
resolution does not constitute the requisite "combination or series of acts" for
plunder. He further claims that the consideration consisting of gifts, percentages or
kickbacks in furtherance of said resolution turned over to and received by former
President Joseph E. Estrada "on several occasions" does not cure the defect in the
amended information. Petitioner insists that on the face of the amended
Information he is charged only with bribery or illegal gambling and not of plunder.

Petitioner argues that the P540 million which forms part of the P4,097,804,173.17
amassed by former President Joseph E. Estrada in confabulation with his co-accused
is not ill-gotten wealth as defined in Section 1(d) of R.A. 7080.

We do not agree with petitioner. Section 6, Rule 110 of the Revised Rules of
Criminal Procedure provides that:

"Sec. 6. Suciency of complaint or information. A complaint or

information is sucient if it states the name of the accused, the designation
of the oense given by the statute; the acts or omissions complained of as
constituting the oense; the name of the oended party; the approximate
date of the commission of the oense; and the place where the oense was
committed.

When the offense was committed by more than one person, all of them shall
be included in the complaint or information." 15

The acts or omissions complained or must be alleged in such form as is sucient to

enable a person of common understanding to know what oense is intended to be
charged and enable the court to know the proper judgment. The Information must
allege clearly and accurately the elements of the crime charged. What facts and
circumstances are necessary to be included therein must be determined by
reference to the denition and elements of the specic crimes. The purpose of the
requirement of alleging all the elements of the crime in the Information is to inform
an accused of the nature of the accusation against him so as to enable him to
suitably prepare for his defense. 16 Another purpose is to enable accused, if found
guilty, to plead his conviction in a subsequent prosecution for the same oense. 17
The use of derivatives or synonyms or allegations of basic facts constituting the
offense charged is sufficient. 18

In this case, the amended Information specically alleges that all the accused,
including petitioner, connived and conspired with former President Joseph E. Estrada
to commit plunder "through any or a combination or a series of overt or criminal
acts or similar schemes or means." And in paragraph (a) of the amended
Information, petitioner and his co-accused are charged with receiving or collecting,
directly or indirectly, on several instances money in the aggregate amount of
P545,000,000.00. In Jose "Jinggoy" Estrada vs. Sandiganbayan (Third Division), et
al., 19 we held that the word "series" is synonymous with the clause "on several
instances"; it refers to a repetition of the same predicate act in any of the items in
Section 1(d) of the law. We further held that the word "combination" contemplates
the commission of at least any two dierent predicate acts in any of the said items.
We ruled that "plainly, subparagraph (a) of the amended information charges
accused therein, including petitioner, with plunder committed by a series of the
same predicate act under Section 1(d)(2) of the law" and that:

". . . Sub-paragraph (a) alleged the predicate act of receiving, on several

instances, money from illegal gambling, in consideration of toleration or
protection of illegal gambling, and expressly names petitioner as one of
those who conspired with former President Estrada in committing the
oense. This predicate act corresponds with the oense described in item
[2] of the enumeration in Section 1(d) of R.A. No. 7080. . . ." 20

It is not necessary to allege in the amended Information a pattern of overt or

criminal acts indicative of the overall unlawful scheme or conspiracy because as
Section 3 of R.A. 7080 specically provides, the same is evidentiary and the general
rule is that matters of evidence need not be alleged in the Information. 21

The Court also ruled in Jose "Jinggoy" Estrada vs. Sandiganbayan 22 that the
aggregate amount of P4,097,804,173.17 inclusive of the P545 million alleged in
paragraph (a) of the amended information is ill-gotten wealth as contemplated in
Section 1, paragraph 1(d) of Republic Act 7080, as amended, and that all the
accused in paragraph (a) to (d) of the amended information conspired and
confederated with former President Estrada to enable the latter to amass,
accumulate or acquire ill-gotten wealth in the aggregate amount of
P4,097,804,173.17.

Under the amended Information, all the accused, including petitioner, are charged
of having conspired and confabulated together in committing plunder. When two or
more persons conspire to commit a crime, each is responsible for all the acts of
others. In contemplation of law, the act of the conspirator is the act of each of them.
23 Conspirators are one man, they breathe one breath, they speak one voice, they
wield one arm and the law says that the acts, words and declarations of each, while
in the pursuit of the common design, are the acts, words and declarations of all. 24

Petitioner asserts that he is charged under the amended Information of bribery and
illegal gambling and others. The Sandiganbayan, for its part, held that petitioner is
not charged with the predicate acts of bribery and illegal gambling but is charged
only with one crime that of plunder:

"THE ISSUE OF WHETHER OR NOT THE INFORMATION CHARGES MORE

THAN ONE OFFENSE

According to the accused Estradas and Edward Serapio the information

charges more than one oense, namely, bribery ( Article 210 of the Revised
Penal Code), malversation of public funds or property (Article 217, Revised
Penal Code) and violations of Sec. 3(e) of Republic Act (RA No. 3019) and
Section 7(d) of RA 6713.

This contention is patently unmeritorious. The acts alleged in the information

are not charged as separate oenses but as predicate acts of the crime of
plunder.
 It should be stressed that the Anti-Plunder law specically Section 1(d)
thereof does not make any express reference to any specic provision of
laws, other than R.A. No. 7080, as amended, which coincidentally may
penalize as a separate crime any of the overt or criminal acts enumerated
therein. The said acts which form part of the combination or series of act
are described in their generic sense. Thus, aside from 'malversation' of
public funds, the law also uses the generic terms 'misappropriation,'
'conversion' or 'misuse' of said fund. The fact that the acts involved may
likewise be penalized under other laws is incidental. The said acts are
mentioned only as predicate acts of the crime of plunder and the allegations
relative thereto are not to be taken or to be understood as allegations
charging separate criminal oenses punished under the Revised Penal Code,
the Anti-Graft and Corrupt Practices Act and Code of Conduct and Ethical
Standards for Public Officials and Employees." 25

This Court agrees with the Sandiganbayan. It is clear on the face of the amended
Information that petitioner and his co-accused are charged only with one crime of
plunder and not with the predicate acts or crimes of plunder. It bears stressing that
the predicate acts merely constitute acts of plunder and are not crimes separate and
independent of the crime of plunder. Resultantly then, the petition is dismissed. cDHCAE

Re: G.R. No. 149116

Petitioner assails the May 31, 2001 Joint Resolution of the Sandiganbayan denying
his April 4, 2001 Urgent Omnibus Motion contending that:

"GROUNDS FOR THE PETITION

THE SANDIGANBAYAN ACTED WITHOUT OR IN EXCESS OF JURISDICTION

OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS
OF JURISDICTION IN SUMMARILY DENYING PETITIONER SERAPIO'S URGENT
OMNIBUS MOTION AND MOTION FOR RECONSIDERATION (RE:
RESOLUTION DATED 31 MAY 2001) , NOTWITHSTANDING THAT THE
OMBUDSMAN HAD TOTALLY DISREGARDED EXCULPATORY EVIDENCE AND
COMMITTED GRAVE AND MANIFEST ERRORS OF LAW SERIOUSLY
PREJUDICIAL TO THE RIGHTS AND INTERESTS OF PETITIONER SERAPIO,
AND THERE IS NO PROBABLE CAUSE TO SUPPORT AN INDICTMENT FOR
PLUNDER AS AGAINST PETITIONER SERAPIO." 26

Petitioner claims that the Sandiganbayan committed grave abuse of discretion in

denying his omnibus motion to hold in abeyance the issuance of a warrant for his
arrest as well as the proceedings in Criminal Case No. 26558; to conduct a
determination of probable cause; and to direct the Ombudsman to conduct a
reinvestigation of the charges him. Petitioner asseverates that the Ombudsman had
totally disregarded exculpatory evidence and committed grave abuse of discretion in
charging him with plunder. He further argues that there exists no probable cause to
support an indictment for plunder as against him. 27
Petitioner points out that the joint resolution of the Ombudsman does not even
mention him in relation to the collection and receipt of jueteng money which
started in 1998 28 and that the Ombudsman inexplicably arrived at the conclusion
that the Erap Muslim Youth Foundation was a money laundering front organization
put up by Joseph Estrada, assisted by petitioner, even though the latter presented
evidence that said Foundation is a bona de and legitimate private foundation. 29
More importantly, he claims, said joint resolution does not indicate that he knew
that the P200 million he received for the Foundation came from jueteng. 30

Petitioner insists that he cannot be charged with plunder since: (1) the P200 million
he received does not constitute "ill-gotten wealth" as dened in Section 1(d) of R.A.
No. 7080; 31 (2) there is no evidence linking him to the collection and receipt of
jueteng money; 32 (3) there was no showing that petitioner participated in a
pattern of criminal acts indicative of an overall unlawful scheme or conspiracy to
amass, accumulate or acquire ill-gotten wealth, or that his act of receiving the P200
million constitutes an overt criminal act of plunder. 33

Petitioner argues further that his motion for reinvestigation is premised on the
absolute lack of evidence to support a nding of probable cause for plunder as
against him, 34 and hence he should be spared from the inconvenience, burden and
expense of a public trial. 35

Petitioner also avers that the discretion of government prosecutors is not beyond
judicial scrutiny. He asserts that while this Court does not ordinarily look into the
existence of probable cause to charge a person for an oense in a given case, it may
do so in exceptional circumstances, which are present in this case: (1) to aord
adequate protection to the constitutional rights of the accused; (2) for the orderly
administration of justice or to avoid oppression; (3) when the acts of the ocer are
without or in excess of authority; and (4) where the charges are manifestly false
and motivated by the lust for vengeance. 36 Petitioner claims that he raised proper
grounds for a reinvestigation by asserting that in issuing the questioned joint
resolution, the Ombudsman disregarded evidence exculpating petitioner from the
charge of plunder and committed errors of law or irregularities which have been
prejudicial to his interest. 37 He also states that during the joint preliminary
investigations for the various charges against Joseph Estrada and his associates, of
which the plunder charge was only one of the eight charges against Estrada et al.,
he was not furnished with copies of the other complaints nor given the opportunity
to refute the evidence presented in relation to the other seven cases, even though
the evidence presented therein were also used against him, although he was only
charged in the plunder case. 38

The People maintain that the Sandiganbayan committed no grave abuse of

discretion in denying petitioner's omnibus motion. They assert that since the
Ombudsman found probable cause to charge petitioner with the crime of plunder,
the Sandiganbayan is bound to assume jurisdiction over the case and to proceed to
try the same. They further argue that "a nding of probable cause is merely
preliminary and prefatory of the eventual determination of guilt or innocence of the
accused," and that petitioner still has the chance to interpose his defenses in a full
blown trial where his guilt or innocence may finally be determined. 39

The People also point out that the Sandiganbayan did not commit grave abuse of
discretion in denying petitioner's omnibus motion asking for, among others, a
reinvestigation by the Ombudsman, because his motion for reconsideration of the
Ombudsman's joint resolution did not raise the grounds of either newly discovered
evidence, or errors of law or irregularities, which under Republic Act No. 6770 are
the only grounds upon which a motion for reconsideration may be filed. 40

The People likewise insist that there exists probable cause to charge petitioner with
plunder as a co-conspirator of Joseph Estrada. 41

This Court does not agree with petitioner.

Case law has it that the Court does not interfere with the Ombudsman's discretion
in the conduct of preliminary investigations. Thus, in Raro vs. Sandiganbayan, 42 the
Court ruled:

". . .. In the performance of his task to determine probable cause, the

Ombudsman's discretion is paramount. Thus, in Camanag vs. Guerrero, this
Court said:

'. . .. (S)uce it to state that this Court has adopted a policy of non-
interference in the conduct of preliminary investigations, and leaves to
the investigating prosecutor sucient latitude of discretion in the
exercise of determination of what constitutes sucient evidence as
will establish 'probable cause' for ling of information against the
supposed offender."

In Cruz, Jr. vs. People, 43 the Court ruled thus: aCHcIE

"Furthermore, the Ombudsman's ndings are essentially factual in nature.

Accordingly, in assailing said ndings on the contention that the
Ombudsman committed a grave abuse of discretion in holding that
petitioner is liable for estafa through falsication of public documents,
petitioner is clearly raising questions of fact here. His arguments are
anchored on the propriety or error in the Ombudsman's appreciation of
facts. Petitioner cannot be unaware that the Supreme Court is not a trier of
facts, more so in the consideration of the extraordinary writ of certiorari
where neither question of fact nor even of law are entertained, but only
questions of lack or excess of jurisdiction or grave abuse of discretion.
Insofar as the third issue is concerned, we nd that no grave abuse of
discretion has been committed by respondents which would warrant the
granting of the writ of certiorari."

Petitioner is burdened to allege and establish that the Sandiganbayan and the
Ombudsman for that matter committed grave abuse of discretion in issuing their
resolution and joint resolution, respectively. Petitioner failed to discharge his
burden. Indeed, the Court nds no grave abuse of discretion on the part of the
Sandiganbayan and the Ombudsman in nding probable cause against petitioner for
plunder. Neither did the Sandiganbayan abuse its discretion in denying petitioner's
motion for reinvestigation of the charges against him in the amended Information.
In its Resolution of April 25, 2001, the Sandiganbayan armed the nding of the
Ombudsman that probable cause exists against petitioner and his co-accused for the
crime of plunder, thus:

"In the light of the foregoing and considering the allegations of the Amended
Information dated 18 April 2001 charging the accused with the oense of
PLUNDER and examining carefully the evidence submitted in support thereof
consisting of the adavits and sworn statements and testimonies of
prosecution witnesses and several other pieces of documentary evidence,
as well as the respective counter-adavits of accused former President
Joseph Estrada dated March 20, 2001, Jose "Jinggoy" Pimentel Estrada dated
February 20, 2001, Yolanda T. Ricaforte dated January 21, 2001 and Edward
S. Serapio dated February 21, 2001, the Court nds and so holds that
probable cause for the oense of PLUNDER exists to justify issuance of
warrants of arrest of accused former President Joseph Ejercito Estrada,
Mayor Jose "Jinggoy" Estrada, Charlie "Atong" Ang, Edward Serapio, Yolanda
T. Ricaforte, Alma Alfaro, John Doe a.k.a. Eleuterio Tan or Eleuterio Ramos
Tan or Mr. Uy, and Jane Doe a.k.a Delia Rajas." 44

Likewise, in its Resolution dated May 31, 2001 of petitioner's omnibus motion, the
Sandiganbayan noted that a preliminary investigation was fully conducted in
accordance with Rule II, Administrative Order No. 7 of the Oce of the
Ombudsman, pursuant to Sections 18, 23 and 27 of Republic Act No. 6770 (The
Ombudsman Act of 1989); and that all the basic complaints and evidence in support
thereof were served upon all the accused. 45 It was in light of such ndings that the
Sandiganbayan held that there was no basis for the allegation that accused therein
(including petitioner) were deprived of the right to seek a reconsideration of the
Ombudsman's Resolution dated April 4, 2001 nding probable cause to charge them
with plunder after the conduct of preliminary investigation in connection therewith.
In addition, the Sandiganbayan pointed out that petitioner led a motion for
reconsideration of the Ombudsman's resolution, but failed to show in his motion
that there were newly discovered evidence, or that the preliminary investigation
was tainted by errors of law or irregularities, which are the only grounds for which a
reconsideration of the Ombudsman's resolution may be granted. 46

It bears stressing that the right to a preliminary investigation is not a constitutional

right, but is merely a right conferred by statute. 47 The absence of a preliminary
investigation does not impair the validity of the Information or otherwise render the
same defective and neither does it aect the jurisdiction of the court over the case
or constitute a ground for quashing the Information. 48 If the lack of a preliminary
investigation does not render the Information invalid nor aect the jurisdiction of
the court over the case, with more reason can it be said that the denial of a motion
for reinvestigation cannot invalidate the Information or oust the court of its
jurisdiction over the case. Neither can it be said that petitioner had been deprived of
due process. He was aorded the opportunity to refute the charges against him
during the preliminary investigation.

The purpose of a preliminary investigation is merely to determine whether a crime

has been committed and whether there is probable cause to believe that the person
accused of the crime is probably guilty thereof and should be held for trial. 49 As the
Court held in Webb vs. De Leon , "[a] nding of probable cause needs only to rest on
evidence showing that more likely than not a crime has been committed and was
committed by the suspect. Probable cause need not be based on clear and
convincing evidence of guilt, neither on evidence establishing guilt beyond
reasonable doubt and denitely, not on evidence establishing absolute certainty of
guilt." 50

Absent any showing of arbitrariness on the part of the prosecutor or any other
ocer authorized to conduct preliminary investigation, courts as a rule must defer
to said ocer's nding and determination of probable cause, since the
determination of the existence of probable cause is the function of the prosecutor. 51
The Court agrees with the Sandiganbayan that petitioner failed to establish that the
preliminary investigation conducted by the Ombudsman was tainted with
irregularity or that its ndings stated in the joint resolution dated April 4, 2001 are
not supported by the facts, and that a reinvestigation was necessary.

Certiorari will not lie to invalidate the Sandiganbayan's resolution denying

petitioner's motion for reinvestigation since there is nothing to substantiate
petitioner's claim that it gravely abused its discretion in ruling that there was no
need to conduct a reinvestigation of the case. 52

The ruling in Rolito Go vs. Court of Appeals 53 that an accused shall not be deemed
to have waived his right to ask for a preliminary investigation after he had been
arraigned over his objection and despite his insistence on the conduct of said
investigation prior to trial on the merits does not apply in the instant case because
petitioner merely prayed for a reinvestigation on the ground of a newly-discovered
evidence. Irrefragably, a preliminary investigation had been conducted by the
Ombudsman prior to the ling of the amended Information, and that petitioner had
participated therein by ling his counter-adavit. Furthermore, the Sandiganbayan
had already denied his motion for reinvestigation as well as his motion for
reconsideration thereon prior to his arraignment. 54 In sum then, the petition is
dismissed.

Re: G.R. No. 148468

As synthesized by the Court from the petition and the pleadings of the parties, the
issues for resolution are: (1) Whether or not petitioner should rst be arraigned
before hearings of his petition for bail may be conducted; (2) Whether petitioner
may le a motion to quash the amended Information during the pendency of his
petition for bail; (3) Whether a joint hearing of the petition for bail of petitioner and
those of the other accused in Criminal Case No. 26558 is mandatory; (4) Whether
the People waived their right to adduce evidence in opposition to the petition for
bail of petitioner and failed to adduce strong evidence of guilt of petitioner for the
crime charged; and (5) Whether petitioner was deprived of his right to due process
in Criminal Case No. 26558 and should thus be released from detention via a writ of
habeas corpus.

On the rst issue, petitioner contends that the Sandiganbayan committed a grave
abuse of its discretion amounting to excess or lack of jurisdiction when it deferred
the hearing of his petition for bail to July 10, 2001, arraigned him on said date and
entered a plea of not guilty for him when he refused to be arraigned. He insists that
the Rules on Criminal Procedure, as amended, does not require that he be arraigned
rst prior to the conduct of bail hearings since the latter can stand alone and must,
of necessity, be heard immediately. 55 Petitioner maintains that his arraignment
before the bail hearings are set is not necessary since he would not plead guilty to
the oense charged, as is evident in his earlier statements insisting on his
innocence during the Senate investigation of the jueteng scandal and the
preliminary investigation before the Ombudsman. 56 Neither would the prosecution
be prejudiced even if it would present all its evidence before his arraignment
because, under the Revised Penal Code, a voluntary confession of guilt is mitigating
only if made prior to the presentation of evidence for the prosecution, 57 and
petitioner admitted that he cannot repudiate the evidence or proceedings taken
during the bail hearings because Rule 114, Section 8 of the Revised Rules of Court
expressly provides that evidence present during bail hearings are automatically
reproduced during the trial. 58 Petitioner likewise assures the prosecution that he is
willing to be arraigned prior to the posting of a bail bond should he be granted bail.
59

The People insist that arraignment is necessary before bail hearings may be
commenced, because it is only upon arraignment that the issues are joined. The
People stress that it is only when an accused pleads not guilty may he le a petition
for bail and if he pleads guilty to the charge, there would be no more need for him
to le said petition. Moreover, since it is during arraignment that the accused is rst
informed of the precise charge against him, he must be arraigned prior to the bail
hearings to prevent him from later assailing the validity of the bail hearings on the
ground that he was not properly informed of the charge against him, especially
considering that, under Section 8, Rule 114 of the Revised Rules of Court, evidence
presented during such proceedings are considered automatically reproduced at the
trial. 60 Likewise, the arraignment of accused prior to bail hearings diminishes the
possibility of an accused's ight from the jurisdiction of the Sandiganbayan because
trial in absentia may be had only if an accused escapes after he has been arraigned.
61 The People also contend that the conduct of bail hearings prior to arraignment
would extend to an accused the undeserved privilege of being appraised of the
prosecution's evidence before he pleads guilty for purposes of penalty reduction. 62

Although petitioner had already been arraigned on July 10, 2001 and a plea of not
guilty had been entered by the Sandiganbayan on his behalf, thereby rendering the
issue as to whether an arraignment is necessary before the conduct of bail hearings
in petitioner's case moot, the Court takes this opportunity to discuss the controlling
precepts thereon pursuant to its symbolic function of educating the bench and bar.
63 CHDAaS

The contention of petitioner is well-taken. The arraignment of an accused is not a

prerequisite to the conduct of hearings on his petition for bail. A person is allowed to
petition for bail as soon as he is deprived of his liberty by virtue of his arrest or
voluntary surrender. 64 An accused need not wait for his arraignment before ling a
petition for bail.

I n Lavides vs. Court of Appeals, 65 this Court ruled on the issue of whether an
accused must rst be arraigned before he may be granted bail. Lavides involved an
accused charged with violation of Section 5(b) Republic Act No. 7610 (The Special
Protection of Children Against Abuse, Exploitation and Discrimination Act), an
oense punishable by reclusion temporal in its medium period to reclusion
perpetua. The accused therein assailed, inter alia, the trial court's imposition of the
condition that he should rst be arraigned before he is allowed to post bail. We held
therein that "in cases where it is authorized, bail should be granted before
arraignment, otherwise the accused may be precluded from ling a motion to
quash." 66

However, the foregoing pronouncement should not be taken to mean that the
hearing on a petition for bail should at all times precede arraignment, because the
rule is that a person deprived of his liberty by virtue of his arrest or voluntary
surrender may apply for bail as soon as he is deprived of his liberty, even before a
complaint or information is led against him. 67 The Court's pronouncement in
Lavides should be understood in light of the fact that the accused in said case led a
petition for bail as well as a motion to quash the informations led against him.
Hence, we explained therein that to condition the grant of bail to an accused on his
arraignment would be to place him in a position where he has to choose between
(1) ling a motion to quash and thus delay his release on bail because until his
motion to quash can be resolved, his arraignment cannot be held, and (2) foregoing
the ling of a motion to quash so that he can be arraigned at once and thereafter be
released on bail. This would undermine his constitutional right not to be put on trial
except upon a valid complaint or Information sucient to charge him with a crime
and his right to bail. 68

It is therefore not necessary that an accused be rst arraigned before the conduct of
hearings on his application for bail. For when bail is a matter of right, an accused
may apply for and be granted bail even prior to arraignment. The ruling in Lavides
also implies that an application for bail in a case involving an oense punishable by
reclusion perpetua to death may also be heard even before an accused is arraigned.
Further, if the court nds in such case that the accused is entitled to bail because
the evidence against him is not strong, he may be granted provisional liberty even
prior to arraignment; for in such a situation, bail would be "authorized" under the
circumstances. In ne, the Sandiganbayan committed a grave abuse of its discretion
amounting to excess of jurisdiction in ordering the arraignment of petitioner before
proceeding with the hearing of his petition for bail.

With respect to the second issue of whether petitioner may le a motion to quash
during the pendency of his petition for bail, petitioner maintains that a motion to
quash and a petition for bail are not inconsistent, and may proceed independently of
each other. While he agrees with the prosecution that a motion to quash may in
some instances result in the termination of the criminal proceedings and in the
release of the accused therein, thus rendering the petition for bail moot and
academic, he opines that such is not always the case; hence, an accused in
detention cannot be forced to speculate on the outcome of a motion to quash and
decide whether or not to le a petition for bail or to withdraw one that has been
led. 69 He also insists that the grant of a motion to quash does not automatically
result in the discharge of an accused from detention nor render moot an application
for bail under Rule 117, Section 5 of the Revised Rules of Court. 70

The Court nds that no such inconsistency exists between an application of an

accused for bail and his ling of a motion to quash. Bail is the security given for the
release of a person in the custody of the law, furnished by him or a bondsman, to
guarantee his appearance before any court as required under the conditions set
forth under the Rules of Court. 71 Its purpose is to obtain the provisional liberty of a
person charged with an oense until his conviction while at the same time securing
his appearance at the trial. 72 As stated earlier, a person may apply for bail from the
moment that he is deprived of his liberty by virtue of his arrest or voluntary
surrender. 73

On the other hand, a motion to quash an Information is the mode by which an

accused assails the validity of a criminal complaint or Information led against him
for insuciency on its face in point of law, or for defects which are apparent in the
face of the Information. 74 An accused may le a motion to quash the Information,
as a general rule, before arraignment. 75

These two reliefs have objectives which are not necessarily antithetical to each
other. Certainly, the right of an accused right to seek provisional liberty when
charged with an oense not punishable by death, reclusion perpetua or life
imprisonment, or when charged with an oense punishable by such penalties but
after due hearing, evidence of his guilt is found not to be strong, does not preclude
his right to assail the validity of the Information charging him with such oense. It
must be conceded, however, that if a motion to quash a criminal complaint or
Information on the ground that the same does not charge any oense is granted
and the case is dismissed and the accused is ordered released, the petition for bail of
an accused may become moot and academic. HDTISa

We now resolve the issue of whether or not it is mandatory that the hearings on
the petitions for bail of petitioner and accused Jose "Jinggoy" Estrada in Criminal
Case No. 26558 and the trial of the said case as against former President Joseph E.
Estrada be heard jointly.

Petitioner argues that the conduct of joint bail hearings would negate his right to
have his petition for bail resolved in a summary proceeding since said hearings
might be converted into a full blown trial on the merits by the prosecution. 76

For their part, the People claim that joint bail hearings will save the court from
having to hear the same witnesses and the parties from presenting the same
evidence where it would allow separate bail hearings for the accused who are
charged as co-conspirators in the crime of plunder. 77

In issuing its June 1, 2001 Order directing all accused in Criminal Case No. 26558 to
participate in the bail hearings, the Sandiganbayan explained that the directive was
made was in the interest of the speedy disposition of the case. It stated:

" . . . The obvious fact is, if the rest of the accused other than the accused
Serapio were to be excused from participating in the hearing on the motion
for bail of accused Serapio, under the pretext that the same does not
concern them and that they will participate in any hearing where evidence is
presented by the prosecution only if and when they will already have led
their petitions for bail, or should they decide not to le any, that they will
participate only during the trial proper itself, then everybody will be faced
with the daunting prospects of having to go through the process of
introducing the same witness and pieces of evidence two times, three times
or four times, as many times as there are petitions for bail led. Obviously,
such procedure is not conducive to the speedy termination of a case.
Neither can such procedure be characterized as an orderly proceeding." 78

There is no provision in the Revised Rules of Criminal Procedure or the Rules of

Procedure of the Sandiganbayan governing the hearings of two or more petitions for
bail led by dierent accused or that a petition for bail of an accused be heard
simultaneously with the trial of the case against the other accused. The matter of
whether or not to conduct a joint hearing of two or more petitions for bail led by
two dierent accused or to conduct a hearing of said petition jointly with the trial
against another accused is addressed to the sound discretion of the trial court.
Unless grave abuse of discretion amounting to excess or lack of jurisdiction is
shown, the Court will not interfere with the exercise by the Sandiganbayan of its
discretion.

It may be underscored that in the exercise of its discretion, the Sandiganbayan must
take into account not only the convenience of the State, including the prosecution,
but also that of the accused and the witnesses of both the prosecution and the
accused and the right of accused to a speedy trial. The Sandiganbayan must also
consider the complexities of the cases and of the factual and legal issues involving
petitioner and the other accused. After all, if this Court may echo the observation of
the United States Supreme Court, the State has a stake, with every citizen, in his
being aorded our historic individual protections, including those surrounding
criminal prosecutions. About them, this Court dares not become careless or
complacent when that fashion has become rampant over the earth. 79

It must be borne in mind that in Ocampo vs. Bernabe, 80 this Court held that in a
petition for bail hearing, the court is to conduct only a summary hearing, meaning
such brief and speedy method of receiving and considering the evidence of guilt as is
practicable and consistent with the purpose of the hearing which is merely to
determine the weight of evidence for purposes of bail. The court does not try the
merits or enter into any inquiry as to the weight that ought to be given to the
evidence against the accused, nor will it speculate on the outcome of the trial or on
what further evidence may be offered therein. It may confine itself to receiving such
evidence as has reference to substantial matters, avoiding unnecessary
thoroughness in the examination and cross-examination of witnesses, and reducing
to a reasonable minimum the amount of corroboration particularly on details that
are not essential to the purpose of the hearing.

A joint hearing of two separate petitions for bail by two accused will of course avoid
duplication of time and eort of both the prosecution and the courts and minimizes
the prejudice to the accused, especially so if both movants for bail are charged of
having conspired in the commission of the same crime and the prosecution adduces
essentially the same evident against them. However, in the cases at bar, the joinder
of the hearings of the petition for bail of petitioner with the trial of the case against
former President Joseph E. Estrada is an entirely dierent matter. For, with the
participation of the former president in the hearing of petitioner's petition for bail,
the proceeding assumes a completely dierent dimension. The proceedings will no
longer be summary. As against former President Joseph E. Estrada, the proceedings
will be a full-blown trial which is antithetical to the nature of a bail hearing.
Moreover, following our ruling in Jose Estrada vs. Sandiganbayan, supra where we
stated that Jose "Jinggoy" Estrada can only be charged with conspiracy to commit
the acts alleged in sub-paragraph (a) of the amended Information since it is not
clear from the latter if the accused in sub-paragraphs (a) to (d) thereof conspired
with each other to assist Joseph Estrada to amass ill-gotten wealth, we hold that
petitioner can only be charged with having conspired with the other co-accused
named in sub-paragraph (a) by "receiving or collecting, directly or indirectly, on
several instances, money . . . from illegal gambling, . . . in consideration of toleration
or protection of illegal gambling. 81 Thus, with respect to petitioner, all that the
prosecution needs to adduce to prove that the evidence against him for the charge
of plunder is strong are those related to the alleged receipt or collection of money
from illegal gambling as described in sub-paragraph (a) of the amended Information.
With the joinder of the hearing of petitioner's petition for bail and the trial of the
former President, the latter will have the right to cross-examine intensively and
extensively the witnesses for the prosecution in opposition to the petition for bail of
petitioner. If petitioner will adduce evidence in support of his petition after the
prosecution shall have concluded its evidence, the former President may insist on
cross-examining petitioner and his witnesses. The joinder of the hearing of
petitioner's bail petition with the trial of former President Joseph E. Estrada will be
prejudicial to petitioner as it will unduly delay the determination of the issue of the
right of petitioner to obtain provisional liberty and seek relief from this Court if his
petition is denied by the respondent court. The indispensability of the speedy
resolution of an application for bail was succinctly explained by Cooley in his treatise
Constitutional Limitations, thus:

"For, if there were any mode short of connement which would with
reasonable certainty insure the attendance of the accused to answer the
accusation, it would not be justiable to inict upon him that indignity, when
the eect is to subject him in a greater or lesser degree, to the punishment
 of a guilty person, while as yet it is not determined that he has not
committed any crime." 82

While the Sandiganbayan, as the court trying Criminal Case No. 26558, is
empowered "to proceed with the trial of the case in the manner it determines best
conducive to orderly proceedings and speedy termination of the case," 83 the Court
nds that it gravely abused its discretion in ordering that the petition for bail of
petitioner and the trial of former President Joseph E. Estrada be held jointly. It bears
stressing that the Sandiganbayan itself acknowledged in its May 4, 2001 Order the
"pre-eminent position and superiority of the rights of [petitioner] to have the
matter of his provisional liberty resolved . . . without unnecessary delay," 84 only to
make a volte face and declare that after all the hearing of petition for bail of
petitioner and Jose "Jinggoy" Estrada and the trial as against former President
Joseph E. Estrada should be held simultaneously. In ordering that petitioner's
petition for bail to be heard jointly with the trial of the case against his co-accused
former President Joseph E. Estrada, the Sandiganbayan in eect allowed further and
unnecessary delay in the resolution thereof to the prejudice of petitioner. In ne
then, the Sandiganbayan committed a grave abuse of its discretion in ordering a
simultaneous hearing of petitioner's petition for bail with the trial of the case
against former President Joseph E. Estrada on its merits. HECaTD

With respect to petitioner's allegations that the prosecution tried to delay the bail
hearings by ling dilatory motions, the People aver that it is petitioner and his co-
accused who caused the delay in the trial of Criminal Case No. 26558 by their ling
of numerous manifestations and pleadings with the Sandiganbayan. 85 They assert
that they led the motion for joint bail hearing and motion for earlier arraignment
around the original schedule for the bail hearings which was on May 21-25, 2001. 86

They argue further that bail is not a matter of right in capital oenses. 87 In support
thereof, they cite Article III, Sec 13 of the Constitution, which states that

"All persons, except those charged with oenses punishable by reclusion

perpetua when evidence of guilt is strong, shall before conviction be bailable
by sucient sureties, or be released on recognizance as may be provided
by law. The right to bail shall not be impaired even when the privilege of the
writ of habeas corpus is suspended. Excessive bail shall not be required." 88

The People also cited Rule 114, Secs. 7 and 4 of the Revised Rules of Court which
provide:

"Sec. 7. Capital oense or an oense punishable by reclusion perpetua

or life imprisonment, not bailable. No person charged with a capital
offense, or an oense punishable by reclusion perpetua or life
imprisonment, shall be admitted to bail when evidence of guilt is strong,
regardless of the stage of the criminal prosecution.

Sec. 4. Bail, a matter of right, exception. All persons in custody shall

be admitted to bail as a matter of right, with sucient sureties, or released
on recognizance as prescribed by law or this Rule . . . (b) and before
conviction by the Regional Trial Court of an oense not punishable by death,
 reclusion perpetua or life imprisonment." 89

Irrefragably, a person charged with a capital oense is not absolutely denied the
opportunity to obtain provisional liberty on bail pending the judgment of his case.
However, as to such person, bail is not a matter of right but is discretionary upon
the court. 90 Had the rule been otherwise, the Rules would not have provided for an
application for bail by a person charged with a capital oense under Rule 114,
Section 8 which states:

"Sec. 8. Burden of proof in bail application. At the hearing of an

application for bail led by a person who is in custody for the commission of
an oense punishable by death, reclusion perpetua, or life imprisonment,
the prosecution has the burden of showing that the evidence of guilt is
strong. The evidence presented during the bail hearing shall be considered
automatically reproduced at the trial but, upon motion of either party, the
court may recall any witness for additional examination unless the latter is
dead, outside the Philippines, or otherwise unable to testify." 91

Under the foregoing provision, there must be a showing that the evidence of guilt
against a person charged with a capital oense is not strong for the court to grant
him bail. Thus, upon an application for bail by the person charged with a capital
oense, a hearing thereon must be conducted, where the prosecution must be
accorded an opportunity to discharge its burden of proving that the evidence of guilt
against an accused is strong. 92 The prosecution shall be accorded the opportunity to
present all the evidence it may deem necessary for this purpose. 93 When it is
satisfactorily demonstrated that the evidence of guilt is strong, it is the court's duty
to deny the application for bail. However, when the evidence of guilt is not strong,
bail becomes a matter of right. 94

In this case, petitioner is not entitled to bail as a matter of right at this stage of the
proceedings. Petitioner's claim that the prosecution had refused to present evidence
to prove his guilt for purposes of his bail application and that the Sandiganbayan has
refused to grant a hearing thereon is not borne by the records. The prosecution did
not waive, expressly or even impliedly, its right to adduce evidence in opposition to
the petition for bail of petitioner. It must be noted that the Sandiganbayan had
already scheduled the hearing dates for petitioner's application for bail but the same
were reset due to pending incidents raised in several motions led by the parties,
which incidents had to be resolved by the court prior to the bail hearings. The bail
hearing was eventually scheduled by the Sandiganbayan on July 10, 2001 but the
hearing did not push through due to the filing of this petition on June 29, 2001.

The delay in the conduct of hearings on petitioner's application for bail is therefore
not imputable solely to the Sandiganbayan or to the prosecution. Petitioner is also
partly to blame therefor, as is evident from the following list of motions led by him
and by the prosecution:

Motions filed by petitioner:

Urgent Omnibus Motion, dated April 6, 2001, for (1) leave to le

 motion for reconsideration/reinvestigation and to direct
ombudsman to conduct reinvestigation; (2) conduct a
determination of probable cause as would suggest the issuance of
house arrest; (3) hold in abeyance the issuance of warrant of
arrest and other proceedings pending determination of probable
cause;

Motion for Early Resolution, dated May 24, 2001;

Urgent Motion to Hold in Abeyance Implementation or Service of

Warrant of Arrest for Immediate Grant of bail or For Release on
Recognizance, dated April 25, 2001;

Urgent Motion to allow Accused Serapio to Vote at Obando,

Bulacan, dated May 11, 2001;

Urgent Motion for Reconsideration , dated May 22, 2001, praying

for Resolution of May 18, 2001 be set aside and bail hearings be
set at the earliest possible time;

Urgent Motion for Immediate Release on Bail or Recognizance ,

dated May 27, 2001;

Motion for Reconsideration of Denial of Urgent Omnibus Motion ,

dated June 13, 2001, praying that he be allowed to le a Motion
for Reinvestigation; and

Motion to Quash, dated June 26, 2001. 95

Motions filed by the prosecution:

Motion for Earlier Arraignment, dated May 8, 2001; 96

Motion for Joint Bail Hearings of Accused Joseph Estrada, Jose

"Jinggoy" Estrada and Edward Serapio, dated May 8, 2001; 97

Opposition to the Urgent Motion for Reconsideration and Omnibus

Motion to Adjust Earlier Arraignment, dated May 25, 2001; 98 and

Omnibus Motion for Examination, Testimony and Transcription in

Filipino, dated June 19, 2001. 99

The other accused in Criminal Case No. 26558 also contributed to the aforesaid
delay by their filing of the following motions:

Motion to Quash or Suspend, dated April 24, 2001, led by

Jinggoy Estrada, assailing the constitutionality of R.A. No. 7080
and praying that the Amended Information be quashed;

Very Urgent Omnibus Motion , dated April 30, 2001, led by

 Jinggoy Estrada, praying that he be (1) excluded from the
Amended Information for lack of probable cause; (2) released
from custody; or in the alternative, (3) be allowed to post bail;

Urgent Ex-Parte Motion to Place on House Arrest , dated April 25,

2001, led by Joseph and Jinggoy Estrada, praying that they be
placed on house arrest during the pendency of the case;

Position Paper [re: House Arrest] , dated May 2, 2001, led by

Joseph and Jinggoy Estrada;

Supplemental Position Paper [re: House Arrest] , dated May 2,

2001, filed by Joseph and Jinggoy Estrada;

Omnibus Motion, dated May 7, 2001, led by Joseph Estrada,

praying by reinvestigation of the case by the Ombudsman or the
outright dismissal of the case;

Urgent Ex-Parte Motion for Extension, dated May 2, 2001, led by

Jinggoy Estrada, requesting for ve (5) days within which to
respond to the Opposition to Motion to Quash in view of the
holidays and election-related distractions;

Opposition to Urgent Motion for Earlier Arraignment, dated May

10, 2001, filed by Joseph Estrada;

Omnibus Manifestation on Voting and Custodial Arrangement ,

dated May 11, 2001, led by Joseph and Jinggoy Estrada, praying
that they be placed on house arrest;

Manifestation Regarding House Arrest , dated May 6, 2001, led

by Joseph and Jinggoy Estrada;

Summation regarding house arrest, dated May 23, 2001, led by

Joseph and Jinggoy Estrada;

Urgent Manifestation & Motion, dated May 6, 2001 led by

Jinggoy Estrada;

Manifestation, dated May 28, 2001, led by Joseph and Jinggoy

Estrada, praying that they be allowed to be confined in Tanay;

Motion to Charge as Accused Luis "Chavit" Singson, led by

Joseph Estrada;

Omnibus Motion, dated June 11, 2001, filed by Joseph and Jinggoy
Estrada, seeking reconsideration of denial of requests for house
arrest, for detention in Tanay or Camp Crame; motion for
 inhibition of Justice Badoy;

Urgent Motion to Allow Accused to Clear His Desk as Mayor of San

Juan, Metro Manila, dated June 28, 2001, led by Jinggoy
Estrada;

Motion for Reconsideration , dated June 9, 2001, led by Joseph

and Jinggoy Estrada, praying that the resolution compelling them
to be present at petitioner Serapio's hearing for bail be
reconsidered;

Motion to Quash, dated June 7, 2001, filed by Joseph Estrada;

Still Another Manifestation, dated June 14, 2001, led by Joseph

and Jinggoy Estrada stating that Bishop Teodoro Bacani favors
their house arrest;

Manifestation, dated June 15, 2001, led by Joseph and Jinggoy

Estrada, waiving their right to be present at the June 18 and 21,
2001 bail hearings and reserving their right to trial with
assessors;

Omnibus Motion for Instructions: 30-Day House Arrest;

Production, Inspection and Copying of Documents; and Possible
Trial with Assessors , dated June 19, 2001, led by Joseph and
Jinggoy Estrada;

Urgent Motion for Additional Time to Wind Up Aairs, dated June

20, 2001, filed by Jinggoy Estrada;

Manifestation, dated June 22, 2001, led by Jinggoy Estrada,

asking for free dates for parties, claiming that denial of bail is
cruel and inhuman, reiterating request for gag order of
prosecution witnesses, availing of production, inspection and
copying of documents, requesting for status of alias case; and

Compliance, dated June 25, 2001, led by Jinggoy Estrada,

requesting for permission to attend some municipal aairs in San
Juan, Metro Manila. 100

Furthermore, the Court has previously ruled that even in cases where the
prosecution refuses to adduce evidence in opposition to an application for bail by an
accused charged with a capital oense, the trial court is still under duty to conduct a
hearing on said application. 101 The rationale for such requirement was explained in
Narciso vs. Sta. Romana-Cruz (supra), citing Basco vs. Rapatalo: 102
"When the grant of bail is discretionary, the prosecution has the burden of
showing that the evidence of guilt against the accused is strong. However,
the determination of whether or not the evidence of guilt is strong, being a
matter of judicial discretion, remains with the judge. This discretion by the
 very nature of things, may rightly be exercised only after the evidence is
submitted to the court at the hearing. Since the discretion is directed to the
weight of the evidence and since evidence cannot properly be weighed if not
duly exhibited or produced before the court, it is obvious that a proper
exercise of judicial discretion requires that the evidence of guilt be submitted
to the court, the petitioner having the right of cross-examination and to
introduce his own evidence in rebuttal." 103

Accordingly, petitioner cannot be released from detention until the Sandiganbayan

conducts a hearing of his application for bail and resolve the same in his favor. Even
then, there must rst be a nding that the evidence against petitioner is not strong
before he may be granted bail. CDHSac

Anent the issue of the propriety of the issuance of a writ of habeas corpus for
petitioner, he contends that he is entitled to the issuance of said writ because the
State, through the prosecution's refusal to present evidence and by the
Sandiganbayan's refusal to grant a bail hearing, has failed to discharge its burden of
proving that as against him, evidence of guilt for the capital oense of plunder is
strong. Petitioner contends that the prosecution launched "a seemingly endless
barrage of obstructive and dilatory moves" to prevent the conduct of bail hearings.
Specically, the prosecution moved for petitioner's arraignment before the
commencement of bail hearings and insisted on joint bail hearings for petitioner,
Joseph Estrada and Jinggoy Estrada despite the fact that it was only petitioner who
asked for a bail hearing; manifested that it would present its evidence as if it is the
presentation of the evidence in chief, meaning that the bail hearings would be
concluded only after the prosecution presented its entire case upon the accused; and
argued that petitioner's motion to quash and his petition for bail are inconsistent,
and therefore, petitioner should choose to pursue only one of these two remedies.
104 He further claims that the Sandiganbayan, through its questioned orders and
resolutions postponing the bail hearings eectively denied him of his right to bail
and to due process of law. 105

Petitioner also maintains that the issuance by the Sandiganbayan of new orders
canceling the bail hearings which it had earlier set did not render moot and
academic the petition for issuance of a writ of habeas corpus, since said orders have
resulted in a continuing deprivation of petitioner's right to bail. 106 He argues
further that the fact that he was arrested and is detained pursuant to valid process
does not by itself negate the ecacy of the remedy of habeas corpus. In support of
his contention, petitioner cites Moncupa vs.Enrile, 107 where the Court held that
habeas corpus extends to instances where the detention, while valid from its
inception, has later become arbitrary. 108

However, the People insist that habeas corpus is not proper because petitioner was
arrested pursuant to the amended information which was earlier led in court, 109
the warrant of arrest issuant pursuant thereto was valid, and petitioner voluntarily
surrendered to the authorities. 110

As a general rule, the writ of habeas corpus will not issue where the person alleged
to be restrained of his liberty in custody of an ocer under a process issued by the
court which jurisdiction to do so. 111 In exceptional circumstances, habeas corpus
may be granted by the courts even when the person concerned is detained pursuant
to a valid arrest or his voluntary surrender, for this writ of liberty is recognized as
"the fundamental instrument for safeguarding individual freedom against arbitrary
and lawless state action" due to "its ability to cut through barriers of form and
procedural mazes." 112 Thus, in previous cases, we issued the writ where the
deprivation of liberty, while initially valid under the law, had later become invalid,
113 and even though the persons praying for its issuance were not completely
deprived of their liberty. 114

The Court nds no basis for the issuance of a writ of habeas corpus in favor of
petitioner. The general rule that habeas corpus does not lie where the person
alleged to be restrained of his liberty is in the custody of an ocer under process
issued by a court which had jurisdiction to issue the same 115 applies, because
petitioner is under detention pursuant to the order of arrest issued by the
Sandiganbayan on April 25, 2001 after the ling by the Ombudsman of the
amended information for plunder against petitioner and his co-accused. Petitioner
had in fact voluntarily surrendered himself to the authorities on April 25, 2001 upon
learning that a warrant for his arrest had been issued. ADaECI

The ruling in Moncupa vs. Enrile 116 t h a t habeas corpus will lie where the
deprivation of liberty which was initially valid has become arbitrary in view of
subsequent developments nds no application in the present case because the
hearing on petitioner's application for bail has yet to commence. As stated earlier,
they delay in the hearing of petitioner's petition for bail cannot be pinned solely on
the Sandiganbayan or on the prosecution for that matter. Petitioner himself is
partly to be blamed. Moreover, a petition for habeas corpus is not the appropriate
remedy for asserting one's right to bail. 117 It cannot be availed of where accused is
entitled to bail not as a matter of right but on the discretion of the court and the
latter has not abused such discretion in refusing to grant bail, 118 or has not even
exercised said discretion. The proper recourse is to le an application for bail with
the court where the criminal case is pending and to allow hearings thereon to
proceed.

The issuance of a writ of habeas corpus would not only be unjustied but would also
preempt the Sandiganbayan's resolution of the pending application for bail of
petitioner. The recourse of petitioner is to forthwith proceed with the hearing on his
application for bail.

IN THE LIGHT OF ALL THE FOREGOING, judgment is hereby rendered as follows:

1. In G.R. No. 148769 and G.R. No. 149116, the petitions are DISMISSED. The
resolutions of respondent Sandiganbayan subject of said petitions are AFFIRMED;
and

2. In G.R. No. 148468, the petition is PARTIALLY GRANTED. The resolution of

respondent Sandiganbayan, Annex "L" of the petition, ordering a joint hearing of
petitioner's petition for bail and the trial of Criminal Case No. 26558 as against
former President Joseph E. Estrada is SET ASIDE; the arraignment of petitioner on
July 10, 2001 is also SET ASIDE.

No costs.

SO ORDERED.

Davide, Jr., C.J ., Bellosillo, Puno, Mendoza, Panganiban, Quisumbing, Austria-

Martinez, Corona, Carpio-Morales and Azcuna, JJ ., concur.

Vitug, J., see separate opinion.

Ynares-Santiago, J., joins the dissent of Justice Sandoval-Gutierrez.

Sandoval-Gutierrez, J., see dissenting opinion.

Carpio, J ., took no part, prior inhibition in plunder cases.

Separate Opinions

VITUG, J.:

I fully subscribe to the ponencia in G.R. No. 148468 that

a) The arraignment of an accused is not a prerequisite to the

conduct of hearings on a petition for bail. A person is allowed to
petition for bail as soon as he is deprived of his liberty by virtue of
his arrest or voluntary surrender.

b) There is no inconsistency between an application of an accused

for bail and his ling of a motion to quash, these two reliefs not
being necessarily antithetical to each other.

c) The joinder of hearing of herein petitioner's bail petition with the

trial of former President Joseph Estrada indeed could unduly
delay the determination of the issue of the right of petitioner to
obtain provisional liberty.

d) The claim of petitioner that the prosecution has refused to

present evidence to prove his guilt for purposes of his bail
application and that the Sandiganbayan has refused to grant a
hearing thereon hardly nds substantiation. Neither has the
prosecution waived, expressly or even impliedly, its right to
adduce evidence in opposition to the petition for bail of
petitioner.

e) There is no basis for the issuance of a writ of habeas corpus in

 favor of petitioner. Habeas corpus does not lie where the person
alleged to be restrained of his liberty is in the custody of an
ocer under process issued by a court having jurisdiction
thereover.

In G.R. No. 148769 and G.R. No. 149116, the issues for resolution are analogous to
those posed in G.R. No. 148965, entitled "Jose 'Jinggoy' Estrada vs. Sandiganbayan
[Third Division], People of the Philippines and Oce of the Ombudsman," decided by
the Court on 26 February 2002. Petitioner Atty. Edward Serapio stands indicted
with the former President, Mr. Joseph E. Estrada, for plunder. Petitioner is charged
with exactly the same degree of culpability as that of Mr. Jose "Jinggoy" Estrada,
thusly:

"AMENDED INFORMATION

"The undersigned Ombudsman Prosecutor and OIC-Director, EPIB, Oce of

the Ombudsman, hereby accuses former PRESIDENT OF THE REPUBLIC OF
THE PHILIPPINES, Joseph Ejercito Estrada a.k.a. 'ASIONG SALONGA' and
a.k.a. 'JOSE VELARDE', TOGETHER WITH Jose 'Jinggoy' Estrada, Charlie
'Atong' Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, JOHN DOE
a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia
Rajas, and John DOES & Jane Does, of the crime of Plunder, dened and
penalized under R.A. 7080, as amended by Sec. 12 of R.A. 7659, committed
as follows:

"That during the period from June, 1998 to January 2001, in the Philippines,
and within the jurisdiction of this Honorable Court, accused Joseph Ejercito
Estrada, THEN A PUBLIC OFFICER, BEING THEN THE PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES, by himself, AND/OR in
CONNIVANCE/CONSPIRACY with his co-accused, WHO ARE MEMBERS OF
HIS FAMILY, RELATIVES BY AFFINITY OR CONSANGUINITY, BUSINESS
ASSOCIATES, SUBORDINATES AND/OR OTHER PERSONS BY TAKING UNDUE
ADVANTAGE OF HIS OFFICIAL POSITION, AUTHORITY, RELATIONSHIP,
CONNECTION OR INFLUENCE , did then and there wilfully, unlawfully and
criminally amass, accumulate and acquire BY HIMSELF, DIRECTLY OR
INDIRECTLY, ill-gotten wealth in the aggregate amount OR TOTAL VALUE of
FOUR BILLION NINETY-SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND
ONE HUNDRED SEVENTY-THREE PESOS AND SEVENTEEN CENTAVOS
(P4,097,804,173.17), more or less, THEREBY UNJUSTLY ENRICHING
HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE DAMAGE OF THE
FILIPINO PEOPLE AND THE REPUBLIC OF THE PHILIPPINES, through ANY
OR A combination OR a series of overt OR criminal acts, OR SIMILAR
SCHEMES OR MEANS, described as follows:

"(a) by receiving OR collecting, directly or indirectly, on SEVERAL

INSTANCES, MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED
FORTY-FIVE MILLION PESOS (P545,000,000.00) MORE OR LESS, FROM
ILLEGAL GAMBLING, IN THE FORM OF GIFT, SHARE, PERCENTAGE,
KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in
connivance with co-accused CHARLIE 'ATONG' ANG , Jose 'Jinggoy' Estrada,
 Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND JANE DOES, in
consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING";

Atty. Serapio, in G.R. No. 148769, questions the denial by the Sandiganbayan of his
motion to quash the Amended Information on the ground that, among other things,
it alleges, at least as to him, neither a combination or series of overt acts
constitutive of plunder nor a pattern of criminal acts indicative of an overall
unlawful scheme in conspiracy with others. In G.R. No. 149116, petitioner claims
that the Sandiganbayan has committed grave abuse of discretion in denying his
omnibus motion to hold in abeyance the issuance of a warrant for his arrest, as well
as the proceedings in Criminal Case No. 26558), to conduct a determination of
probable cause, and to direct the Ombudsman to conduct a reinvestigation of the
charges against him. IaDcTC

In my separate opinion in G.R. No. 148965, which I now reiterate, I have said:

"Plunder may be committed by any public ocer either by himself or "in

connivance" with other persons; it may also be committed by a person who
participates with a public ocer in the commission of an oense
contributing to the crime of plunder. A person may thus be held accountable
under the law by conniving with the principal co-accused or by participating
in the commission of "an oense" contributing to the crime of plunder. The
term "in connivance" would suggest an agreement or consent to commit an
unlawful act or deed with or by another, to connive being to cooperate
secretly or privily with another. 1 Upon the other hand, to participate is to
have a part or a share in conjunction with another of the proceeds of the
unlawful act or deed.

"The amended Information alleged "connivance" and would assume that

petitioner and his co-accused had a common design in perpetrating the
violations complained of constitutive of "plunder."

"The Supreme Court in Estrada vs. Sandiganbayan 2 has declared the anti-
plunder law constitutional for being neither vague nor ambiguous on the
thesis that the terms "series" and "combination" are not unsusceptible to
rm understanding. "Series" refers to two or more acts falling under the
same category of the enumerated acts provided in Section 1(d) 3 of the
statute; "combination" pertains to two or more acts falling under at least two
separate categories mentioned in the same law. 4

"xxx xxx xxx

"The government argues that the illegal act ascribed to petitioner is a part of
the chain that links the various acts of plunder by the principal accused. It
seems to suggest that a mere allegation of conspiracy is quite enough to
hold petitioner equally liable with the principal accused for the latter's other
acts, even if unknown to him, in paragraph (a) of the indictment. This
contention is a glaring bent. It is, to my mind, utterly unacceptable, neither
right nor just, to cast criminal liability on one for the acts or deeds of plunder
that may have been committed by another or others over which he has not
 consented or acceded to, participated in, or even in fact been aware of.
Such vicarious criminal liability is never to be taken lightly but must always be
made explicit not merely at the trial but likewise, and no less important, in
the complaint or information itself in order to meet the fundamental right of
an accused to be fully informed of the charge against him. It is a
requirement that cannot be dispensed with if he were to be meaningfully
assured that he truly has a right to defend himself. Indeed, an unwarranted
generalization on the scope of the anti-plunder law would be a fatal blow to
maintaining its constitutionality given the ratio decidendi in the
pronouncement heretofore made by the Court upholding the validity of the
statute.

"Given the foregoing exegesis, the petitioner, although ineectively charged

in the Amended Information for plunder, could still be prosecuted and tried
for a lesser oense, for it is a recognized rule that an accused shall not be
discharged even when a mistake has been made in charging the proper
oense if he may still be held accountable for any other oense necessarily
included in the crime being charged. It is, however, the Sandiganbayan, not
this Court, which must make this determination on the basis of its own
findings."

WHEREFORE, I accept the ponencia in G.R. No. 148468 but, as regards G.R. No.
148769 and G.R. No. 149116, I vote for the remand of the case to the
Sandiganbayan for further proceedings on the bail application of petitioner and urge
that the incident be resolved with dispatch. acHCSD

SANDOVAL-GUTIERREZ, J., dissenting opinion:

Once again, the Amended Information dated April 18, 2001 in Criminal Case No.
26558 1 is subjected to judicial scrutiny, this time, via a petition for certiorari under
Rule 65 of the 1997 Rules of Civil Procedure (G.R. No. 148769) led by petitioner
Edward S. Serapio. For easy reference, let me quote the Amended Information,
thus:

"The undersigned Ombudsman Prosecutor and OIC-Director, EPIB, Oce of

the Ombudsman, hereby accuses former President of the Republic of the
Philippines, Joseph Ejercito Estrada a.k.a. 'Asiong Salonga' and a.k.a. 'Jose
Velarde,' together with Jose 'Jinggoy' Estrada, Charlie 'Atong' Ang, Edward
Serapio, Yolanda T. Ricaforte, Alma Alfaro, John Doe a.k.a Eleuterio Tan or
Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and John Does &
Jane Does, of the crime of Plunder, dened and penalized under R.A. No.
7080, as amended by Sec. 12 of R.A. No. 7659, committed as follows:

'That during the period from June 1998 to January, 2001, in the
Philippines, and within the jurisdiction of this Honorable Court, accused
Joseph Ejercito Estrada, then a public ocer, being then the President
of the Republic of the Philippines, by himself and/or in
connivance/conspiracy with his co-accused, who are members of his
family, relatives by anity or consanguinity, business associates,
subordinates and/or other persons, by taking undue advantage of his
ocial position, authority, relationship, connection, or inuence, did
then and there willfully, unlawfully and criminally amass, accumulate
and acquire by himself, directly or indirectly, ill-gotten wealth in the
aggregate amount or total value of four billion ninety-seven million
eight hundred four thousand one hundred seventy-three pesos and
seventeen centavos [P4,097,804,173.17], more or less, thereby
unjustly enriching himself or themselves at the expense and to the
damage of the Filipino people and the Republic of the Philippines
through any or a combination or a series of overt OR criminal acts, or
similar schemes or means, described as follows:

a) by receiving or collecting, directly or indirectly, an aggregate

amount of Five Hundred Forty-Five Million Pesos (P545,000,000.00),
more or less, from illegal gambling in the form of gift, share,
percentage kickback or any form of pecuniary benet, by himself
and/or in connivance with co-accused Charlie "Atong" Ang, Jose
'Jinggoy' Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN
DOES AND JANE DOES, in consideration OF TOLERATION OR
PROTECTION OF ILLEGAL GAMBLING;

b) by diverting, receiving, misappropriating, converting or

misusing directly or indirectly, for his or their personal gain and
benet, public funds in the amount of one hundred thirty million pesos
(P130,000,000.00) more or less, representing a portion of the Two
Hundred Million Pesos (P200,000,000.00) tobacco excise tax share
allocated for the Province of Ilocos Sur under R.A. No. 7171, by
himself and/or in connivance with co-accused Charlie 'Atong' Ang,
Alma Alfaro, John Doe a.k.a. Eleuterio Tan Or Eleuterio Ramos Tan or
Mr. Uy, and Jane Doe a.k.a Delia Rajas, and other John Does and Jane
Does;

c) by directing, ordering and compelling, for his personal gain and

benet, the Government Service Insurance System (GSIS) to
purchase, 351,878,000 shares of stock, more or less and the Social
Security System (SSS), 329,855,000 shares of stock, more or less, of
the Belle Corporation in the amount of more or less One Billion One
Hundred Two Million Nine Hundred Sixty-Five Thousand Six Hundred
Seven Pesos and Fifty Centavos [P1,102,965,607.50] and more or
less Seven Hundred Forty-Four Million Six Hundred Twelve Thousand
Four Hundred Fifty Pesos (P744,612,450.00], respectively, or a total
of a more or less One Billion Eight Hundred Forty-Seven Million Five
Hundred Seventy-Eight Thousand Fifty-Seven Pesos and fifty centavos
[P1,847,578,057.50]; and by collecting or receiving, directly or
indirectly, by himself and/or in connivance with John Does and Jane
Does, Commissions or percentages by reason of said purchases of
shares of stock in the amount of One Hundred Eighty-Nine Million
Seven Hundred Thousand Pesos [P189,700,000], more or less, from
the Belle Corporation, which became part of the deposit in the
Equitable-PCI Bank under the account of "Jose Velarde";
 d) by unjustly enriching himself FROM COMMISSIONS, gifts,
shares, percentages, kickbacks, or any form of pecuniary benets, in
connivance with John Does and Jane Does, in the amount of more or
less Three Billion Two Hundred Thirty-Three Million One Hundred Four
Thousand One Hundred Seventy-Three Pesos and Seventeen
Centavos [P3,233,104,173.17] and depositing the same under his
account name "Jose Velarde" at the Equitable-PCI Bank.

CONTRARY TO LAW.'" 2

In G.R. No. 148965, 3 I stood apart from the majority of my brethren in denying the
Petition for Certiorari and Mandamus led by Jose "Jinggoy" E. Estrada against the
Sandiganbayan, People of the Philippines and Oce of the Ombudsman. I
articulated in my Dissent the various reasons why I could not join the majority in
sustaining the afore-quoted Amended Information. Now, I am taking this second
occasion to reiterate them, hoping that the majority will have a change of mind and
resolve to re-examine its Decision.

Consistent with my previous Dissent, it is my view that petitioner Edward S.

Serapio, like Jose "Jinggoy" Estrada, may not be validly prosecuted for the crime of
plunder under the Amended Information.

To be forthright, the obvious error in the foregoing Information lies in the fact that
it joined together four distinct conspiracies in a single continuing conspiracy of
plunder and indiscriminately accused all the persons who participated therein of the
said resulting crime. Simply put, the Amended Information is a mere fusion of
separate conspiracies. It is akin to that of "separate spokes meeting at a common
center, without the rim of the wheel to enclose the spokes." This is legally
impermissible. Such kind of information places the accused's primary right to be
informed of the nature and cause of the accusation against him in jeopardy. AaHTIE

I must reiterate what I have pointed out in G.R. No. 148965.

There exists a distinction between separate conspiracies, where certain parties are
common to all the conspiracies, but with no overall goal or common purpose; and
one overall continuing conspiracy with various parties joining and terminating their
relationship at dierent times. 4 Distinct and separate conspiracies do not, in
contemplation of law, become a single conspiracy merely because one man is a
participant and key gure in all the separate conspiracies. 5 The present case is a
perfect example. The fact that former President Estrada is a common key gure in
the criminal acts recited under paragraphs (a), (b), (c) and (d) of the Amended
Information does not automatically give rise to a single continuing conspiracy of
plunder, particularly, with respect to petitioner Serapio whose participation is
limited to paragraph (a). To say otherwise is to impute to petitioner or to any of the
accused the acts and statements of the others without reference to whether or not
their acts are related to one scheme or overall plan. It could not have been the
intention of the Legislature, in drafting R.A. No. 7080, to authorize the prosecution
to chain together four separate and distinct crimes when the only nexus among
them lies in the fact that one man participated in all. There lies a great danger for
the transference of guilt from one to another across the line separating conspiracies.

The principle laid down above is no longer novel in other jurisdictions. Various
American decisions had expounded on the matter. In Battle vs. State, 6 a judgment
of conviction was reversed on the ground that the allegation of conspiracy in the
indictment was insufficient, thus:

"Among the requirements for the allegations in an indictment to be sucient

are (1) the specicity test, i.e., does the indictment contain all the elements
of the oense pleaded in terms sucient enough to apprise the accused of
what he must be prepared to meet, and (2) is the indictment pleaded in such
a manner as to enable the defendant to plead prior jeopardy as a defense if
additional charges are brought for the same oense. . . . Further, our
Supreme Court has recently considered the criteria for suciency in
conspiracy cases in Goldberg vs . State, 351 So. 2d 332 (Fla. 1977), 7 as this
court has likewise done in State vs . Giardino, 363 So. 2d 201 (Fla. 3d DCA
1978). 8 Applying the principles developed in the above cases to the instant
cause, we are of the opinion that Count I of the indictment was insucient.
It is impossible to ascertain whether the indictment charges that
appellant conspired with Acuna and Hernandez jointly or severally, or
whether appellant conspired entirely with persons unknown. Also, it is
impossible to tell whether appellant met with Acuna and Hernandez jointly or
severally, or whether appellant conspired entirely with persons unknown.
Also, it is impossible to tell whether appellant met with Acuna and Hernandez
jointly or severally, or whether appellant met with persons unknown to plan
the murder of Torres . Because appellant was left to guess who these other
conspirators might be and because the vagueness of the allegations did
nothing to protect him from further prosecution, we are of the opinion that
they were too vague and indenite to meet the requirements set forth
above. Accordingly, in our opinion the trial court erred in failing to dismiss
Count I of the indictment for conspiracy against appellant." (Footnote
supplied)

In State vs. Harkness, 9 a demurrer to the information was sustained on the ground
that an information charging two separate conspiracies is bad for misjoinder of
parties where the only connection between the two conspiracies was the fact that
one defendant participated in both. The Supreme Court of Washington ruled:

"[W]e see no ground upon which the counts against both the Harknesses
can be included in the same information. While they are charged with crimes
of the same class, the crimes are alleged to have been committed
independently and at dierent times. The crimes are related to each other
only by the fact that the prescriptions used were issued by the same
physician. . . . We nd ourselves unable to agree with the appellant that the
misjoinder is cured by the conspiracy charge. It is doubtful if the count is
sucient in form to charge a conspiracy. . . . Reference is made in the
count, to counts one to six, inclusive, for a specication of the acts
constituting the conspiracy. When these counts are examined, it will be seen
that they charge separate substantive oenses without alleging any concert
of action between the Harknesses."
Thus, when certain persons unite to perform certain acts, and some of them unite
with others who are engaged in totally dierent acts, it is error to join them in an
information. 10 Otherwise stated, defendants charged with two separate
conspiracies having one common participant are not, without more, properly joined,
and similarity of acts alone is insucient to indicate that series of acts exist. 11
Joinder may be permitted when the connection between the alleged oenses and
the parties is the accused's awareness of the identity and activity of the other
alleged participants. 12 There must be a showing of one overall common goal to
which the participants bind themselves.

Apparently, the factual recitals of the Amended Information fail to suciently allege
that petitioner Serapio deliberately agreed or banded with the rest of the accused
for the purpose of committing Plunder. There is no averment that he conspired with
them in committing the crimes specied in paragraphs (b), (c) and (d) of the
Amended Information, such as misappropriation of the tobacco excise tax share of
Ilocos Sur; receipt of commissions by reason of the purchase of shares of stock from
the Belle Corporation; and acquisition of unexplained wealth.

To my mind, the Amended Information only makes out a case of bribery "in
toleration or protection of illegal gambling." While he is being charged for the
"crime of Plunder, dened and penalized under R.A. No. 7080," his alleged
participation therein is limited to what is specied under paragraph (a) of the
Amended Information.

The essence of the law on plunder lies in the phrase "combination or series of overt
or criminal acts." The determining factor of R.A. No. 7080, as can be gleaned from
the Record of the Senate, is the plurality of the overt acts or criminal acts under a
grand scheme or conspiracy to amass ill-gotten wealth. Thus, even if the amassed
wealth equals or exceeds fty million pesos, a person cannot be prosecuted for the
crime of plunder if he performs only a single criminal act. 13

It is the majority's position that since there is an allegation of conspiracy at the

inception of the Amended Information, the criminal acts recited in paragraphs (b),
(c) and (d) pertain to petitioner as well, the act of one being the act of all. This is an
obvious non sequitur. Even the Amended Information, on its face, cannot admit
such a construction. HTSIEa

First, it bears noting that the Amended Information named the co-conspirators of
former President Estrada individually and separately in each of the four predicate
o enses. Paragraph (a) named petitioner Jose "Jinggoy" Estrada, "Atong" Ang,
Yolanda T. Ricaforte, Edward Serapio, John Does and Jane Does as co-conspirators in
the crime of bribery. Paragraph (b) named Alma Alfaro, "Atong" Ang, Eleuterio
Ramos Tan, Delia Rajas and other John Does and Jane Does as co-conspirators in the
crime of malversation of public funds representing a portion of the tobacco excise
tax share allocated to the Province of Ilocos Sur. Paragraph (c) and (d) named John
Does and Jane Does as co-conspirators in the purchase of the Belle's shares and in
the acquisition of ill-gotten wealth in the amount of P3,233,104,173.17 under the
account name "Jose Velarde."

Is it logical to infer from the Amended Information the existence of a single

continuing conspiracy of plunder when the factual recital thereof individually and
separately named the co-conspirators in each of the predicate oenses? I must
reecho my answer in G.R. No. 148965, i.e., an outright no. A single agreement to
commit several crimes constitutes one conspiracy. By the same reasoning, multiple
agreements to commit separate crimes constitute multiple conspiracies. To
individually and separately name the co-conspirators in each of the predicate
oenses is to reveal the absence of a common design. The explicit clustering of co-
conspirators for each predicate oense thwarts the majority's theory of a single
continuing conspiracy of plunder. It reveals a clear line segregating each predicate
offense from the other. Thus, the act of one cannot be considered as the act of all.

Second, the allegation of conspiracy at the inception of the Amended Information

basically pertains to former President Estrada as the common key gure in the four
predicate offenses. Allow me to quote the pertinent portion, thus:

"That during the period from June 1998 to January, 2001, in the Philippines,
and within the jurisdiction of this Honorable Court, accused Joseph Ejercito
Estrada, then a public ocer, being then the President of the Republic of the
Philippines, by himself and/or in connivance/conspiracy with his co-accused,
who are members of his family, relatives by anity or consanguinity,
business associates, subordinates and/or other persons, by taking undue
advantage of his ocial position, authority, relationship, connection, or
inuence, did then and there willfully, unlawfully and criminally amass,
accumulate and acquire by himself, directly or indirectly, ill-gotten wealth in
the aggregate amount or total value of four billion ninety-seven million eight
hundred four thousand one hundred seventy three pesos and seventeen
centavos [P4,097,804,173.17], more or less, thereby unjustly enriching
himself or themselves at the expense and to the damage of the Filipino
people and the Republic of the Philippines through any or a combination or a
series of overt OR criminal acts, or similar schemes or means, described as
follows: . . ."

From the foregoing allegation, it can be reasonably construed that former President
Estrada conspired with all the accused in committing the four predicate oenses.
However, whether his co-accused conspired with him jointly or individually for the
commission of all, or some or one of the predicate oenses is a question that may
be answered only after a reading of the entire Amended Information. I note with
particularity the phrase in the Amended Information stating, "by himself and/or 14
in connivance/conspiracy with his co-accused." The phrase indicates that former
President Estrada did not, in all instances, act in connivance with the other accused.
At times, he acted alone. Consequently, as alleged in the succeeding paragraphs (a),
(b), (c) and (d), his co-accused conspired with him individually and not jointly.
Petitioner Serapio cannot therefore be associated with the former President in all
the latter's alleged criminal activities.

Of course, I cannot ignore the use of the phrase "on several instances" and
"aggregate amount of P545,000,000.00" in paragraph (a) of the Amended
Information. At rst glance, this may be construed as attributing to petitioner
Serapio a "combination or series of overt act." However, a reading of the Amended
Information, in its entirety, readily reveals that the said phrases pertain to former
President Estrada, the principal accused in the case. Allegedly, the former President,
on several instances, received or collected an aggregate amount of
P545,000,000.00, more or less from illegal gambling in the form of gift, share,
percentage, kickback or any form of pecuniary benet "by himself and/or in
connivance with co-accused Charlie "Atong" Ang, Jose "Jinggoy" Estrada, Yolanda T.
Ricaforte, petitioner Serapio and John Does and Jane Does. We have already
explained the implication of the phrase "by himself and/or in connivance."
Consequently, the acts committed by former President Estrada on the several
instances referred to cannot automatically be attributed to petitioner.

Third, petitioner's criminal intent to advance the unlawful object of the conspiracy
(plunder) is not suciently alleged in the factual recitals of the Amended
Information. Corollarily, the intent required is the intent to advance or further the
unlawful object of the conspiracy. 15 This means that so far as the relevant
circumstances are concerned, both parties to the agreement must have mens rea. 16
There is no conspiracy to commit a particular crime unless the parties to the
agreement intend that the consequences, which are ingredients of that crime, shall
be caused. 17 In the present case, while there is an allegation that former President
Estrada "willfully, unlawfully and criminally" 18 amassed ill-gotten wealth in the
aggregate amount of P4,097,804,173.17, none is mentioned with regard to
petitioner. There is nothing in the Amended Information that suggests whether or
not petitioner has the mens rea to engage in the commission of the serious crime of
plunder. Indeed, there are no allegations that he " willfully, unlawfully or criminally"
joined with the rest of the accused to amass ill-gotten wealth. This renders the
Amended Information fatally defective with respect to petitioner. Every crime is
made up of certain acts and intent: these must be set forth in the complaint with
reasonable particularity. 19 Imperatively, an information charging that a defendant
conspired to commit an oense must allege that the defendant agreed with one or
more persons to commit the offense. 20

And fourth, the statement in the accusatory portion of the Amended Information
cumulatively charging all the accused of the crime of Plunder cannot be given much
weight in determining the nature of the oense charged. It is a jurisprudentially-
embedded rule that what determines the "nature and cause of accusation" against
an accused is the crime described by the facts stated in the information or complaint
and not that designated by the scal in the preamble thereof . 21 In the recent En
Banc ruling in Lacson vs. Executive Secretary , 22 citing the 1954 case of People vs.
Cosare 23 and People vs. Mendoza, 24 this Court held:
"The factor that characterizes the charge is the actual recital of the facts .
The real nature of the criminal charge is determined not from the caption or
preamble of the information nor from the specication of the provision of
law alleged to have been violated, they being conclusions of law, but by the
actual recital of facts in the complaint or information. " 25
Thus, in the event that the appellation of the crime charged, as determined by the
public prosecutor, does not exactly correspond to the actual crime constituted by the
criminal acts described in the information to have been committed by the accused,
what controls is the description of the said criminal acts and not the technical name
of the crime supplied by the public prosecutor. 26

There is a caveat that an information under the broad language of a general

conspiracy statute must be scrutinized carefully as to each of the charged
defendants because of the possibility, inherent in a criminal conspiracy charge, that
its wide net may ensnare the innocent as well as the culpable. 27

Let it be stressed that guilt should remain individual and personal, even as respect
conspiracies. It is not a matter of mass application. There are times when of
necessity, because of the nature and scope of a particular federation, large numbers
of persons taking part must be tried by their conduct. The proceeding calls for the
use of every safeguard to individualize each accused in relation to the mass.
Criminal they may be, but it is not the criminality of mass conspiracy. They do not
invite mass trial by their conduct. True, this may be inconvenient for the
prosecution. But the government is not one of mere convenience or eciency. It too
has a stake with every citizen, in his being aorded the individual protections,
including those surrounding criminal trials. 28 The shot-gun approach of a conspiracy
charge could amount to a prosecution for general criminality resulting in a nding of
guilt by association. The courts should, at all times, guard against this possibility so
that the constitutional rights of an individual are not curbed or clouded by the web
of circumstances involved in a conspiracy charge. 29

Corollarily, petitioner prays in G.R. No. 148468 for this Court to issue a writ of
habeas corpus. The Amended Information being fatally defective, it is imperative
that petitioner be dropped from the Amended Information and proceeded against
under a new one charging the proper oense. In the absence of a standing case
against him, the issuance of a writ of habeas corpus is in order." 30

WHEREFORE, I vote to GRANT the petitions in G.R. No. 148769 and G.R. No.
148468. aEAIDH

Footnotes

1. Rollo, G.R. No. 148468, pp. 49-51.

2. Rollo, G.R. No. 149116, p. 16.

3. Ibid., pp. 18, 249-281.

4. Ibid., pp. 16-17.

5. Rollo, G.R. No. 146468, p. 54.

6. Ibid., pp. 61-66.

7. Rollo, G.R. No. 149116, p. 412.

8. Rollo, G.R. No. 148468, p. 112.

9. Ibid., p. 114.

10. Ibid., pp. 147-164.

11. Ibid., pp. 43-44.

12. Rollo, G.R. No. 148769, pp. 165-197.

13. Rollo, pp. 17-18.

14. Rollo, p. 46.

15. Supra.

16. Jose "Jinggoy "Estrada vs . Sandiganbayan (Third Division), et al., G.R. No.
148965, February 26, 2002.

17. Luz Balitaan vs . Court of First Instance, et al., 115 SCRA 729 (1982).

18. People vs . Ronnie Quitlong, et al., 292 SCRA 360 (1998).

19. G.R. No. 148965, February 26, 2002.

20. Supra, p. 14.

21. Luz Balitaan vs . Court of First Instance of Batangas, supra.

22. See note 19.

23. People vs . Rodolfo Hilario, et al., 354 SCRA 534 (2001).

24. Territory vs . Goto, 27 Hawaii 65 (1923).

25. Rollo, pp. 194-195.

26. Rollo, p. 21.

27. Rollo, G.R. No. 149116, p. 21.

28. Ibid., p. 25.

29. Ibid., pp. 26-27.

30. Ibid., p. 30.

31. Ibid., pp. 30-33.

32. Ibid., pp. 33-36.

33. Ibid., p. 36.

34. Ibid., p. 39.

35. Ibid., pp. 43-44.

36. Ibid., pp. 295-298.

37. Ibid., p. 298.

38. Ibid., p. 301.

39. Ibid., p. 472.

40. Ibid., pp. 473-480.

41. Ibid., pp. 480-492.

42. 335 SCRA 581 (2000).

43. 233 SCRA 439 (1994).

44. Rollo, G.R. No. 148468, p. 59.

45. Ibid., pp. 408-409.

46. Rollo, G.R. No. 149116, pp. 412-413.

47. Rolito Go vs . Court of Appeals , 206 SCRA 138 (1992).

48. People vs . Madraga, 344 SCRA 628 (2000); Sanchez vs . Demetriou, 227 SCRA
627 (1993).

49. Rule 112, Sec. 1, Revised Rules of Criminal Procedure; Webb vs . De Leon, 247
SCRA 652 (1995).

50. Supra, pp. 675-676.

51. Metropolitan Bank & Trust Co . vs . Tonda , 338 SCRA 254 (2000); Raro vs .
Sandiganbayan, 335 SCRA 581 (2000).

52. Crespo vs . Mogul, 151 SCRA 462 (1987).

53. 206 SCRA 138 (1992).

54. Vide, Note 4.

55. Rollo, G.R. No. 148468, p. 366.

56. Ibid., pp. 366-367.

57. Ibid., p. 367.

58. Ibid., p. 368.

59. Ibid., p. 369.

60. Ibid., pp. 212-215.

61. Ibid., p. 215.

62. Ibid., p. 216.

63. Salonga vs . Cruz Pao, 134 SCRA 438, 463 (1985).

64. Mendoza vs . CFI of Quezon, 51 SCRA 369 (1973).

65. 324 SCRA 321 (2000).

66. Id., p. 330.

67. Herras Teehankee vs . Rovira, 75 Phil. 364 (1945).

68. Lavides vs . Court of Appeals, supra.

69. Rollo, G.R. No. 148468, pp. 37-38.

70. Ibid., p. 374.

71. Rule 114, Sec. 1, Revised Rules of Criminal Procedure.

72. Almeda vs . Villaluz , 66 SCRA 38 (1975).

73. Mendoza vs . CFI of Quezon, 51 SCRA 369 ( 1973).

74. Smith v. State, 78 S 530.

75. Rule 117, Section 1, Revised Rules of Criminal Procedure.

76. Rollo, G.R. No. 148468, p. 373.

77. Ibid., pp. 220-225.

78. Ibid., pp. 112-113.

79. Kotteakos vs . United States , 90 L. Ed. 1564 (1946).

80. 77 Phil. 55 (1946).

81. Vide, Note 16.

82. Ibid., pp. 643-644.

83. Rollo, G.R. No. 148468, p. 112.

84. Ibid., p. 68.

85. Ibid., 233-242.

86. Ibid., p. 188.

87. Ibid., p. 210.

88. Ibid., p. 211, [emphasis by respondents].

89. Ibid., p. 211, [emphasis by respondents].

90. People vs . Gako, Jr ., 348 SCRA 334 (2000); Goodman vs . De La Victoria, 325
SCRA 658 (2000).

91. Supra.

92. Narciso vs . Sta. Romana-Cruz , 328 SCRA 505 (2000); Tolentino vs . Camano, 322
SCRA 559 (2000).

93. People vs . Nano, 205 SCRA 155 (1992); Herras Teehankee v. Director of Prisons ,
76 Phil. 756 (1946).

94. Padilla vs . Court of Appeals , 260 SCRA 155 (1996).

95. Rollo, G.R. No. 148468, pp. 240-241.

96. Ibid., pp. 70-74.

97. Ibid., pp. 75-82.

98. Ibid., pp. 97-100.

99. Ibid., pp. 115-116.

100. Ibid., pp. 233-239.

101. Narciso vs . Sta. Romana-Cruz, supra; Tolentino vs. Canano, supra; Baylon vs.
Sison, 243 SCRA 284 (1995).

102. 269 SCRA 220 (1997).

103. Id., p. 513, (emphasis supplied).

104. Rollo, G.R. No. 148468, pp. 31-36.

105. Ibid., pp. 38-39.

106. Ibid., pp. 392-393.

107. 141 SCRA 233 (1986).

108. Rollo, G.R. No. 148468, p. 396.

109. Ibid., pp. 246-247.

110. Ibid., pp. 245-251.

111. Paredes vs . Sandiganbayan, 193 SCRA 464 (1991); Luna vs . Plaza, 26 SCRA
310 (1969).
112. Gumabon vs . Director of Prisons , 37 SCRA 420 (1971); citing Harris v. Nelson,
22 L Ed 2d 281.

113. Gumabon vs . Director of Prisons, supra.

114. Moncupa vs . Enrile, 141 SCRA 233 (1986); Caunca vs . Salazar, 85 Phil. 81
(1949); Villavicencio vs . Lukban, 39 Phil. 778.

115. Paredes vs . Sandiganbayan, supra; Luna vs . Plaza, supra.

116. Supra.

117. Galvez vs . Court of Appeals , 237 SCRA 685 (1994); Enrile vs . Salazar, 186 SCRA
217 (1990).

118. Herras Teehankee vs . Director of Prisons , 76 Phil. 756 (1946).

Vitug, J.

1. Black's Law Dictionary.

2. G.R. No. 148560.

3. Section 1(d)

"1) Through misappropriation, conversion, misuse or malversation of public

funds or raids on the public treasury;

"2) By receiving, directly or indirectly, any commission, gift, share, percentage,

kickbacks or any other form of pecuniary benet from any person and/or entity in
connection with any government contract or project or by reason of the oce of
position of the public officer concerned;

"3) By the illegal or fraudulent conveyance of disposition of assets belonging to

the National Government or any of its subdivisions, agencies or instrumentalities
or government-owned or controlled corporations and their subsidiaries;

"4) By obtaining, receiving or accepting directly or indirectly any shares of stock,

equity or any other form of interest or participation including the promise of future
employment in any business enterprise or undertaking;

"5) By establishing agricultural, industrial or commercial monopolies or other

combinations and/or implementation of decrees and orders intended to benet
particular persons or special interests; or

"6) By taking undue advantage of ocial position, authority, relationship,

connection or inuence to unjustly enrich himself or themselves at the expense
and to the damage and prejudice of the Filipino people and the Republic of the
Philippines."

4. Supra, p. 15.

Sandoval-Gutierrez, J.
1. Entitled "People of the Philippines, Plainti-versus-Joseph Ejercito Estrada a .k.a.
"Asiong Salonga" and a.k.a. "Jose Velarde" Former President of the Philippines, Jose
'Jinggoy' Estrada, Charlie 'Atong' Ang, Edward Serapio, Yolanda T . Ricaforte, Alma
Alfaro, John Doe a.k.a. Eleuterio Tan or Eleuterio Ramos Tan or Mr . Uy, Jane Doe
a.k.a. Delia Rajas, John Does and Jane Does, Accused"; For Plunder.

2. Annex "C", Petition, Rollo, pp. 46-49.

3. Entitled "Jose "Jinggoy" E. Estrada, petitioner, -versus- Sandiganbayan (Third

Division), People of the Philippines and Office of the Ombudsman, respondents ."

4. 16 Am Jur 2d 11, p. 209.

5. Id.

6. 365 So. 2d 1035 (1979).

7. 1) The indictment involved in the present case is clearly decient under the
criteria set forth by this Court in State vs . Smith, 240 So. 2d 807 (Fla. 1970): "An
indictment or information for conspiracy must contain a statement of the facts
relied on as constituting the oense in ordinary and concise language, with as
much certainty as the nature of the case will admit, in such a manner as to enable
a person of common understanding to know what is intended, and with such
precision that the accused may plead his acquittal or conviction to a separate
indictment or information based on the same facts."

Some of the more patent flaws found in the present indictment are as follows:

1) It is impossible to tell whether it charges that all four appellants jointly

conspired with "Rothstein . . . or MacLean, or both," or whether there were two
conspiracies, one between some of the appellants and Rothstein, and the other
between the remaining appellants and MacLean;

xxx xxx xxx

The prejudice to appellants resulting from the defective conspiracy count is

itself sucient to mandate a new trial on the remaining charges. However, the
record before us is replete with errors, several of which individually and all of which
cumulatively would warrant reversal. . . .."

8. Indictment which charged defendant with conspiracy to commit a felony which

failed to state with whom defendant had allegedly conspired, failed to state
unlawful object of charged conspiracy, and failed to state nature of charged
conspiracy under law since it did not suciently inform defendant of charges
against him.

9. 82 P. 2d 541.

10. Wilson vs . United States , 190 Federal Reporter 427 (1911).

11. United States vs . Welch, 656 F 2d 1039 (1981).

12. 41 Am Jur 2d 202.

13. "Senator Paterno. Mr. President, not too clear yet on the reason for trying to
define a crime of plunder. Could I get some further clarification?

Senator Taada. Yes, Mr. President.

Because of our experience in the former regime, we feel that there is a need for
Congress to pass the legislation which would cover a crime of this magnitude.
While it is true, we already have the Anti-Graft Law. But that does not directly deal
with plunder. That covers only the corrupt practices of public ocials as well as
their spouses and relatives within the civil degree, and the Anti-Graft law as
presently worded would not adequately or suciently address the problems that
we experienced during the past regime.

Senator Paterno. May I try to give the Gentleman, Mr. President, my

understanding of the bill?

Senator Taada. Yes.

Senator Paterno. I envision that this bill or this kind of plunder would cover a
discovered interconnection of certain acts, particularly, violations of Anti-Graft and
Corrupt Practices Act when, after the dierent acts are looked at, a scheme of
conspiracy can be detected, such scheme or conspiracy consummated by the
dierent criminal acts or violations of Anti-Graft and Corrupt Practices Act, such
that the scheme or conspiracy becomes a sin, as a large scheme to defraud the
public or rob the public treasury. It is parang robo and banda. It is considered as
that. And, the bill seeks to dene or says that P100 million is that level at which ay
talagang sobra na dapat nang parusahan ng husto. Would it be a correct
interpretation or assessment of the intent of the bill?

Senator Taada. Yes, Mr. President. The fact that under existing law, there can
be only one oense charged in the information, that makes it very cumbersome
and dicult to go after these grafters if we would not come out with this bill. That
is what is happening now; because of that rule that there can be only one oense
charged per information, then we are having diculty in charging all the public
ocials who would seem to have committed these corrupt practices. With this bill,
we could come out with just one information, and that would cover all the series of
criminal acts that may have been committed by him.

xxx xxx xxx

Senator Romulo. To follow up the interpolations of Senator Paterno and Maceda,

this crime of plunder as envisioned here contemplates of a series or a scheme as
responded by the distinguished Sponsor.

Senator Taada. That is correct, Mr. President. (Record of Senate, June 5, 1989,
Vol. IV, No. 140, p. 1315)

xxx xxx xxx

 Senator Romulo. Mr. President, I was going to suggest prior to Senator Maceda
that on line 24: "SHALL THROUGH ONE overt or criminal act OR. . . ." I was just
thinking of one which is really not a "series."

The President. If there is only one, then he has to be prosecuted under the
particular crime. But when we say "acts of plunder" there should be, at least, two
or more. (Record of the Senate, June 6, 1989, Vol. IV, No. 141, p. 1399).

14. The use of "or" a function word to indicate an alternative between dierent or
unlike things, state, or actions negates absolute commonality of design among the
former President and all his co-accused. Webster Third New International
Dictionary, 1993, p. 1585.

15. Establishing the intent necessary to sustain a conviction for conspiracy requires
showing not only that the conspirators intended to agree but also that they
intended to commit the elements of the underlying offense.

16. I n Estrada vs . Sandiganbayan, G.R. No. 148560, November 19, 2001, Justice
Josue N. Bellosillo quoting from the Concurring Opinion of Justice Vicente V.
Mendoza, held that "[p]lunder is a malum in se, requiring criminal intent. Precisely
because the constitutive crimes are mala in se the element of mens rea must be
proven in a prosecution for plunder. It is noteworthy that the amended
information alleges that the crime was committed "wilfully, unlawfully and
criminally." It thus allege guilty knowledge on the part of petitioner (Joseph Ejercito
Estrada).

17. Smith, Hogan, Criminal Law, Sixth Edition, 1988, p. 264.

18. This signifies the allegation of mens rea.

19. Pecho vs . People, 262 SCRA 518 (1996).

20. 16 Am Jur 2d 33.

21. United States vs . Lim San, 17 Phil. 273 (1910); United States vs . de Guzman, 19
Phil. 350 (1911).

22. 301 SCRA 298 (1999).

23. 95 Phil. 657, 660 (1954).

24. 175 SCRA 743 (1989).

25. Lacson vs . Executive Secretary, 301 SCRA 298 (1999).

26. Buhat vs . Court of Appeals , 265 SCRA 701 (1996).

27. 16 Am Jur 2d 32, p. 245. Dennis v. U.S., 384 U.S. 855, 86 Ct. 1840, 16 L Ed. 2d
973 (1966).

28. Kotteakos vs . U.S., 328 U.S. 750 (1946).

29. Goldberg vs . State, supra.

30. Aleria, Jr. vs . Velez , 298 SCRA 611 (1998).
 FIRST DIVISION

[G.R. No. 152398. April 14, 2005.]

EDGAR CRISOSTOMO, petitioner, vs. SANDIGANBAYAN ,

respondent.

DECISION

CARPIO, J :p

The Case

This is an appeal by certiorari under Rule 65 of the Revised Rules on Civil Procedure
of the Sandiganbayan Resolutions promulgated on 17 September 2001 and 14
January 2002, denying the Motion for Reconsideration led by petitioner SPO1
Edgar Crisostomo ("Crisostomo") assailing the court's Decision 1 promulgated on 28
November 2000. The Decision found Crisostomo guilty of the crime of murder and
sentenced him to suer the indeterminate penalty of twelve (12) years, ve (5)
months and eleven (11) days of prision mayor as minimum, to eighteen (18) years,
eight (8) months and one (1) day of reclusion temporal as maximum.

The Charge

On 19 October 1993, Crisostomo, a member of the Philippine National Police and a

jail guard at the Solano Municipal Jail was charged with the murder of Renato Suba
("Renato"), a detention prisoner at the Solano Municipal Jail. The Information
alleged that Crisostomo conspired with his co-accused, Dominador C. dela Cruz
("dela Cruz"), Efren M. Perez ("Perez"), Raki T. Anggo ("Anggo"), Randy A. Lumabo
("Lumabo"), Rolando M. Norberte ("Norberte") and Mario Calingayan
("Calingayan"), all inmates at the Solano Municipal Jail, in murdering Renato. The
Information reads in full:

That on or about the 14th day of February 1989, in Solano, Nueva Vizcaya,
Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused Pat. Edgar T. Crisostomo, a public ocer, being then a
member of the Philippine National Police (PNP) stationed at Solano Police
Station and a jailer thereat, taking advantage of his public position and thus
committing the oense in relation to his oce, conspiring, confederating
and conniving with his co-accused who are inmates of the Solano Municipal
Jail, namely: Dominador C. dela Cruz, Efren M. Perez, Raki T. Anggo, Randy
A. Lumabo, Rolando M. Norberte and Mario B. Calingayan, with intent to kill
and with treachery, taking advantage of superior strength and with the aid
of armed men or employing means to weaken the defense or of means or
persons to insure or aord impunity, did then and there wil[l]fully, unlawfully
and feloniously attack and assault one Renato Suba, a detention prisoner,
 with the use of rough-surfaced instruments, including st blows, inicting
upon him serious injuries causing his internal organs to be badly damaged
such as his liver, messentery and stomach resulting to the death of said
Renato Suba to the damage and prejudice of the heirs of the latter.

CONTRARY TO LAW. 2

Arraignment and Plea

On 15 December 1993, Crisostomo assisted by counsel, pleaded not guilty to the

crime charged. 3 Thereafter, trial ensued.

Version of the Prosecution

On 13 February 1989, Renato was detained at the municipal jail in Solano, Nueva
Vizcaya for allegedly hitting the head of one Diosdado Lacangan. The following day,
14 February 1989, at 5:00 p.m., Renato's brother Rizalino Suba ("Rizalino") visited
him at the municipal jail. Renato asked Rizalino to bring him blanket, toothbrush,
clothes and food. Rizalino left the municipal jail that day at 5:20 p.m. At that time,
Renato was in good physical condition and did not complain of any bodily pain.
Renato was 26 years old, single, and was employed in a logging concession.

At 9:00 p.m., a barangay councilman informed Rizalino that policemen assigned at

the Solano municipal jail wanted Rizalino to go to the municipal building. Rizalino
arrived at the municipal jail at 9:10 p.m. and saw his brother Renato already dead
on the floor outside his cell. HTCISE

Renato was detained alone in the third cell, one of the four cells at the municipal
jail. Although each of the four cells had an iron grill door equipped with a padlock,
the doors were usually left open. The keys to the padlocks were with the jail guard.
There was a common front door, which no one could enter but the jail guard. Only
one jail guard at a time was assigned at the municipal jail. Crisostomo was the one
on duty at the time of the death of Renato. At no time was Renato brought out of
the cell during his detention on 13 February 1989 until his death in the evening of
the following day. Crisostomo's position in relation to the cell where the victim was
killed was such that Crisostomo as jail guard could have heard if not seen what was
going on inside the cell at the time that Renato was killed.

There are unexplained discrepancies in the list of detainees/prisoners and police

blotter. The list of detainees/prisoners dated 20 February 1989 shows that there
were eight prisoners on 14 February 1989, including Renato, but after Renato's
death, only six were turned over by Crisostomo to the incoming jail guard. On 15
February 1989, nine "prisoners/detainees" were on the list, including Renato who
was already dead. However, the police blotter shows that only six prisoners were
under custody. The persons who were detained with Renato at the time of his death
were released without being investigated by the Solano police.

Renato did not commit suicide. His body bore extensive injuries that could have
been inicted by several persons. The exhumation and autopsy reports ruled out
suicide as the cause of Renato's death. The deafening silence of the inmates and the
jail guard, Crisostomo, point to a conspiracy. Crisostomo's guilt is made apparent
when he jumped bail during trial.

Version of the Defense

The presentation of evidence for Crisostomo's defense was deemed waived for his
failure to appear at the scheduled hearings despite notice.

Calingayan, Crisostomo's co-accused, was the sole witness for the defense.
Calingayan was only 16 years old at the time that he was charged with the murder
of Renato. Calingayan denied killing Renato.

Calingayan was detained at the Solano Municipal Jail on 12 February 1989 because
his brother-in-law, Patrolman Feliciano Leal ("Leal"), also a jail guard, had him
arrested for pawning some of the belongings of Leal. Leal told Calingayan that he
had him detained for safekeeping to teach him a lesson.

Renato was detained on 13 February 1989. Calingayan learned that Renato was
detained for hitting somebody's head.

There were four cells at the municipal jail. Calingayan was detained with ve other
inmates in the second cell. Renato was detained alone in the third cell. The four
cells had their own separate doors with padlocks but each door was always open. It
was up to the inmates to close the doors. A common door leading to the four cells
was always padlocked and no one could enter the door without the jail guard's
permission. The jail guard had the keys to the cells and the common door. Only one
jail guard was assigned to guard the cells. Crisostomo was the jail guard on duty at
the time that Renato died.

Calingayan was in jail for three days or until 15 February 1989. Calingayan last saw
Renato alive between 5 to 6 p.m. of 14 February 1989. Just as Calingayan was
about to take a bath after 6 p.m., he saw Renato lying down. One of the inmates
asked for Renato's food because he did not like to eat his food. After taking a bath,
Calingayan went back to his cell and played cards with his three cellmates whose
names he could not recall. Calingayan did not leave his cell during the four hours
that he played cards but one of his cellmates went out.

Calingayan discovered Renato's body on 14 February 1989 between 9:00 p.m. to

10:00 p.m. Calingayan went to the fourth cell, where the comfort room was
located, to urinate. While urinating, Calingayan saw at the corner of the cell a
shadow beside him. A bulb at the alley lighted the cell. Calingayan ran away and
called the other inmates, telling them that the person in cell number four was in
the dark place. The other inmates ran towards the place and shouted "si kuwan, si
kuwan." Crisostomo was in the room at the left side from where Calingayan was
detained, about fteen meters away. Upon hearing the shouts, Crisostomo opened
the main door. Once inside the cell, Crisostomo instructed the inmates to bring
down Renato's body that was hanging from the iron bars of the window of the cell.
At that time, Calingayan did not notice what was used in hanging Renato but when
the body was brought outside, Calingayan saw that Renato had hanged himself
with a thin blanket.

The four cells are not similar in area and size. The cell where Renato stayed is the
smallest. The cells are separated by a partition made of hollow blocks as high as the
ceiling. The four cells are in one line so that if you are in one cell you cannot see
what is happening in the other cells. The inmates could go to any of the four cells in
the prison but they could not get out of the main door without the permission of the
jail guard. The comfort room is in the fourth cell, which is also open so that the
inmates would not anymore ask for the key from the office of the jail guard.

The blanket that Renato used to hang himself was tied to the iron grills of the
window of the cell. The window is small, only about two feet by one and one-half
feet with eight iron bars. The window is nine feet from the floor.

No other person was admitted on 14 February 1989. Calingayan does not have a
grudge against Renato. He could not recall if there was any untoward incident
between Renato and the other inmates. The Solano police investigated Calingayan
the next morning.

The Ruling of the Sandiganbayan

Only Crisostomo and Calingayan stood trial. The other accused, dela Cruz, Perez,
Anggo, Lumabo and Norberte were at large. The Sandiganbayan found sucient
circumstantial evidence to convict Crisostomo and Calingayan of murder. The
Sandiganbayan relied on the autopsy and exhumation reports in disregarding the
defense theory that Renato committed suicide by hanging himself with a blanket.
The Sandiganbayan thus held:

Premises considered, accused Edgar Crisostomo and Mario Calingayan are

hereby found guilty of the crime of murder. EaICAD

xxx xxx xxx

There being no attending mitigating or aggravating circumstance in the case

of accused Edgar Crisostomo, and taking into consideration the
Indeterminate Sentence Law, he is hereby sentenced to suer the penalty of
imprisonment for the period from twelve (12) years, ve (5) months and
eleven (11) days of prision mayor, minimum, to eighteen (18) years, eight
(8) months and one (1) day of reclusion temporal, maximum.

xxx xxx xxx

As to the other accused, Dominador C. Dela Cruz, Efren M. Perez, Raki T.

Anggo, Randy A. Lumabo and Rolando M. Norberte, considering they are still
at-large up to the present time, let an alias warrant of arrest be issued
against them. In the meantime, the cases against them are hereby ordered
archived.
 SO ORDERED. 4

The Issues

Crisostomo continues to assail the Sandiganbayan's jurisdiction. He raises the

following issues:

WHETHER THE SANDIGANBAYAN HAS JURISDICTION OVER THE CRIME OF

MURDER CHARGED AGAINST CRISOSTOMO WHO IS A SENIOR POLICE
OFFICER 1 (SPO1) AT THE TIME OF THE FILING OF THE INFORMATION
AGAINST HIM.

EVEN ASSUMING ARGUENDO THAT THE RESPONDENT COURT HAS

JURISDICTION, WHETHER THE SANDIGANBAYAN COMMITTED GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN IT RULED THAT CRISOSTOMO IS GUILTY OF HAVING
CONSPIRED IN THE MURDER OF RENATO DESPITE THE SANDIGANBAYAN'S
ADMISSION IN ITS DECISION THAT THERE IS NO DIRECT EVIDENCE THAT
WILL SHOW THE PARTICIPATION OF CRISOSTOMO IN THE DEATH OF THE
VICTIM. 5

The Court's Ruling

The Sandiganbayan had jurisdiction to try the case. However, the prosecution failed
to prove Crisostomo and Calingayan's guilt beyond reasonable doubt. Thus, we
acquit Crisostomo and Calingayan.

The Sandiganbayan had Jurisdiction to Try the Case

Crisostomo argues that the Sandiganbayan was without jurisdiction to try the case.
Crisostomo points out that the crime of murder is not listed in Section 4 of
Presidential Decree No. 1606 ("PD 1606") as one of the crimes that the
Sandiganbayan can try. Crisostomo faults the Sandiganbayan for not applying the
ruling in Sanchez v. Demetriou 6 to this case. In Sanchez v. Demetriou, the
Court ruled that public oce must be a constituent element of the crime as dened
in the statute before the Sandiganbayan could acquire jurisdiction over a case.
Crisostomo insists that there is no direct relation between the commission of
murder and Crisostomo's public oce. Crisostomo further contends that the mere
allegation in the Information that the oense was committed in relation to
Crisostomo's oce is not sucient to confer jurisdiction on the Sandiganbayan.
Such allegation without the specic factual averments is merely a conclusion of law,
not a factual averment that would show the close intimacy between the oense
charged and the discharge of Crisostomo's official duties.

We are not convinced.

Since the crime was committed on 14 February 1989, the applicable provision of
law is Section 4 of PD 1606, as amended by Presidential Decree No. 1861 ("PD
1861"), which took effect on 23 March 1983. The amended provision reads:
 Sec. 4. Jurisdiction. The Sandiganbayan shall exercise:

(a) Exclusive original jurisdiction in all cases involving:

xxx xxx xxx

(2) Other oenses or felonies committed by public ocers and

employees in relation to their oce, including those employed in
government-owned or controlled corporations, whether simple or
complexed with other crimes, where the penalty prescribed by law is
higher than prision correccional or imprisonment for six (6) years, or
a ne of P6,000.00: PROVIDED, HOWEVER, that oenses or felonies
mentioned in this paragraph where the penalty prescribed by law does
not exceed prision correccional or imprisonment for six (6) years or a
ne of P6,000.00 shall be tried by the proper Regional Trial Court,
Metropolitan Trial Court, Municipal Trial Court and Municipal Circuit Trial
Court.

Crisostomo was charged with murder, the penalty for which is reclusion temporal
in its maximum period to death, a penalty within the jurisdiction of the
Sandiganbayan.

Crisostomo would have the Court believe that being a jail guard is a mere incidental
circumstance that bears no close intimacy with the commission of murder.
Crisostomo's theory would have been tenable if the murdered victim was not a
prisoner under his custody as a jail guard. The function of a jail guard is to insure the
safe custody and proper confinement of persons detained in the jail. In this
case, the Information alleges that the victim was a detention prisoner when
Crisostomo, the jail guard, conspired with the inmates to kill him.

Indeed, murder and homicide will never be the main function of any public oce.
No public oce will ever be a constituent element of murder. When then would
murder or homicide, committed by a public ocer, fall within the exclusive and
original jurisdiction of the Sandiganbayan? People v. Montejo 7 provides the
answer. The Court explained that a public ocer commits an oense in relation to
his oce if he perpetrates the oense while performing, though in an improper or
irregular manner, his ocial functions and he cannot commit the oense without
holding his public oce. In such a case, there is an intimate connection between the
oense and the oce of the accused. If the information alleges the close connection
between the oense charged and the oce of the accused, the case falls within the
jurisdiction of the Sandiganbayan. People v. Montejo is an exception that
Sanchez v. Demetriou recognized. ACcaET

Thus, the jurisdiction of the Sandiganbayan over this case will stand or fall on this
test: Does the Information allege a close or intimate connection between the
offense charged and Crisostomo's public office?

The Information passes the test.

The Information alleged that Crisostomo "a public ocer, being then a member of
the Philippine National Police (PNP) stationed at Solano Police Station and a jailer
thereat, taking advantage of his public position and thus committing the oense in
relation to his oce" conspired, confederated and connived with his co-accused who
are inmates of the Solano Municipal Jail to kill Renato, "a detention prisoner."

If the victim were not a prisoner, the Information would have to state particularly
the intimate relationship between the oense charged and the accused public
ocer's oce to vest jurisdiction on the Sandiganbayan. This is not the case here.
The law restrains the liberty of a prisoner and puts him under the custody and
watchful eyes of his jail guard. Again, the two-fold duties of a jail guard are to insure
the safe custody and proper confinement of persons detained in the jail. The
law restricts access to a prisoner. However, because of the very nature of the work
of a jail guard, he has access to the prisoner. Crisostomo, as the jail guard, could
not have conspired with the inmates to murder the detention prisoner in
his cell if Crisostomo were not a "jailer."

The Information accused Crisostomo of murdering a detention prisoner, a crime that

collides directly with Crisostomo's oce as a jail guard who has the duty to insure
the safe custody of the prisoner. Crisostomo's purported act of killing a detention
prisoner, while irregular and contrary to Crisostomo's duties, was committed while
he was performing his ocial functions. The Information suciently apprised
Crisostomo that he stood accused of committing the crime in relation to his oce, a
case that is cognizable by the Sandiganbayan, not the Regional Trial Court. There
was no prejudice to Crisostomo's substantive rights.

Assuming that the Information failed to allege that Crisostomo committed the
crime in relation to his oce, the Sandiganbayan still had jurisdiction to try the
case. The Information was led with the Sandiganbayan on 19 October 1993.
Deloso v. Domingo , 8 promulgated on 21 November 1990, did not require that
the information should allege that the accused public ocer committed the oense
in relation to his oce before the Sandiganbayan could assume jurisdiction over the
case. The ruling in Deloso v. Domingo relied solely on PD 1606.

Aguinaldo v. Domagas , 9 promulgated on 26 September 1991, modied Deloso

v. Domingo . Aguinaldo v. Domagas claried that oenses specied in Section
4(a)(2) of PD 1606, as amended by PD 1861, must be committed by public ocers
and employees in relation to their oce and the information must allege this fact.
The succeeding cases of Sanchez v. Demetriou 10 an d Natividad v. Felix , 11
reiterated the Aguinaldo v. Domagas ruling.

However, despite the subsequent cases clarifying Deloso v. Domingo, the Court in
Republic v. Asuncion, 12 promulgated on 11 March 1994, applied the ruling in
Deloso v. Domingo . Since the eects of the misapprehension of Deloso v.
Domingo doctrine were still persistent, the Court set out the following directives in
Republic v. Asuncion:
The dismissal then of Criminal Case No. Q-91-23224 solely on the basis of
Deloso vs. Domingo was erroneous. In the light of Aguinaldo and Sanchez ,
and considering the absence of any allegation in the information that the
 oense was committed by private respondent in relation to his oce, it
would even appear that the RTC has exclusive jurisdiction over the case.
However, it may yet be true that the crime of homicide charged therein was
committed by the private respondent in relation to his oce, which fact,
however, was not alleged in the information probably because Deloso vs.
Domingo did not require such an allegation. In view of this eventuality and
the special circumstances of this case, and to avoid further delay, if not
confusion, we shall direct the court a quo to conduct a preliminary hearing in
this case to determine whether the crime charged in Criminal Case No. Q-91-
23224 was committed by the private respondent in relation to his oce. If it
be determined in the armative, then it shall order the transfer of the case
to the Sandiganbayan which shall forthwith docket and proceed with the
case as if the same were originally led with it. Otherwise, the court a quo
shall set aside the challenged orders, proceed with the trial of the case, and
render judgment thereon.

Republic v. Asuncion ordered the trial court to conduct a preliminary hearing to

determine whether the accused public ocer committed the crime charged while
performing his oce. If so, the trial court must order the transfer of the case to
the Sandiganbayan as if the same were originally led with the
Sandiganbayan.

In the present case, the Information was led with the Sandiganbayan upon the
recommendation of the Oce of the Deputy Ombudsman in a Resolution dated 30
June 1993. That Crisostomo committed the crime in relation to his oce can be
gleaned from the Deputy Ombudsman's resolution as it stated that: (1) Crisostomo
was the jail guard on duty at the time that Renato was killed; (2) from the time
that Crisostomo assumed his duty up to the discovery of Renato's body, no one had
entered the jail and no one could enter the jail, as it was always locked, without the
permission of the jail guard; (3) the key is always with the jail guard; (4) Renato
sustained severe and multiple injuries inicted by two or more persons indicating
conspiracy; and (5) the relative position of the jail guard to the cell is in such a way
that any activity inside the cell could be heard if not seen by the jail guard. ISTHED

Based on the foregoing ndings, as well as on the Deloso v. Domingo ruling and
the Court's instructions in Republic v. Asuncion, the Sandiganbayan had every
reason to assume jurisdiction over this case. Crisostomo waited until the very last
stage of this case, the rendition of the verdict, before he questioned the
Sandiganbayan's jurisdiction. Crisostomo is already estopped from questioning the
Sandiganbayan's jurisdiction. 13

Crisostomo's Guilt was not Proven Beyond Reasonable Doubt

In the exercise of the Court's judicial discretion, this petition for certiorari will be
treated as an appeal from the decision of the Sandiganbayan to prevent the
manifest miscarriage of justice 14 in a criminal case involving a capital oense. An
appeal in a criminal case opens the entire case for review. 15 The reviewing tribunal
can correct errors though unassigned in the appeal, or even reverse the lower
court's decision on grounds other than those the parties raised as errors. 16

In this case, the prosecution had the burden to prove rst, the conspiracy to murder
Renato, and second, Crisostomo's complicity in the conspiracy. The prosecution
must prove that Renato's death was not the result of suicide but was produced by a
deliberate intent to kill him with the attendant circumstances that would qualify
the killing to murder. Since Crisostomo had no direct hand in the killing of Renato,
the conviction could only be sustained if the murder was carried out through a
conspiracy between Crisostomo and his co-accused, the inmates. It must be proven
beyond reasonable doubt that Crisostomo's action and inaction were all part of a
scheme to murder Renato.

Renato was Killed with Deliberate Intent

To prove that Renato's death is a case of homicide or murder, there must be

incontrovertible evidence, direct or circumstantial, that he was deliberately killed. 17
Intent to kill can be deduced from the weapons used by the malefactors, the nature,
location and number of wounds sustained by the victim and the words uttered by
the malefactors before, at the time or immediately after the killing of the victim. 18
If the victim dies because of a deliberate act of the malefactor, intent to kill is
conclusively presumed. 19

The prosecution established that Renato did not commit suicide. Witnesses for the
prosecution vouched that Renato was in good health prior to his death. Calingayan,
the sole witness for the defense, did not point out that there was any thing wrong
with Renato prior to his death. The autopsy and exhumation reports debunked the
defense's theory that Renato hanged himself to death. Renato's injuries were so
massive and grave that it would have been impossible for these injuries to have
been self-inflicted by Renato.

The extent of Renato's injuries indicates the perpetrators' deliberate intent to kill
him. Dr. Ruben M. Agobung ("Dr. Agobung"), the NBI Medico Legal Ocer 20 who
exhumed and re-autopsied Renato's body, stated in his adavit 21 that Renato
sustained several external and internal injuries, the most signicant of which are
the ruptured liver, torn messentery and torn stomach. The injuries caused massive
intra-abdominal hemorrhage that ultimately caused Renato's death. Dr. Agobung
further declared that Renato's injuries could bring about death in a matter of
minutes to a few hours from the time of iniction, if not promptly and properly
attended to by a competent surgeon.

Renato's internal injuries were so severe that the injuries could not have been
sustained prior to his detention at the Solano Municipal Jail. If this were so, Renato
would have experienced continuous and severe body pains and he would have fallen
into shock, which could have been obvious even to those who are not doctors. Dr.
Agobung also concluded that Renato's injuries could have been inicted by the
application of considerable force with the use of a hard and rough surface as well as
hard smooth surface instruments, fist blows included.
While the blanket that was tied around Renato's neck caused abrasion and
contusion on the neck area, these injuries, however, did not cause Renato's death
because the blood vessels on his neck were still intact. 22 The Exhumation Report 23
and Exhumation Findings 24 stated that Renato died due to hemorrhagic shock,
secondary to multiple internal organ injuries. These ndings lead to the inevitable
conclusion that Renato was killed with deliberate intent and his body was hanged
just to simulate suicide.

Prosecution Failed to Prove Crisostomo's Involvement in the Killing

No direct evidence linked Crisostomo to the killing of Renato. The prosecution relied
on circumstantial evidence to prove that there was a conspiracy to kill Renato and
Crisostomo participated in carrying out the conspiracy. Circumstantial evidence
consists of proof of collateral facts and circumstances from which the existence of
the main fact may be inferred according to reason and common experience. 25
Section 4, Rule 133 of the Revised Rules of Evidence states that circumstantial
evidence is sucient if: (a) there is more than one circumstance; (b) the facts from
which the inferences are derived are proven; (c) the combination of all the
circumstances is such as to produce a conviction beyond reasonable doubt.

In convicting Crisostomo, the Sandiganbayan cited the following circumstantial

evidence:

1. The deceased, Renato Suba, was brought to the police station on the
night of February 13, 1989 for investigation for allegedly hitting the head of
a certain Diosdado Lacangan; and that after investigation, the deceased was
brought to the detention cell (tsn, hearing of April 21, 1994, pp. 5-11).

2. On the following day at 5:00 o'clock in the afternoon, the deceased

was visited by his brother, Rizalino Suba; that the deceased asked his
brother to bring him a blanket, toothbrush, clothes and foods ( ibid, pp. 13-
14).

3. Rizalino Suba left the municipal jail on February 14, 1989, at almost
5:20 p.m., while his other brother, Rolando, brought the things to the
deceased in jail; and that Rolando left their house at about 5:30 p.m. and
came back at 6:00 o'clock in which Rizalino asked him (Rolando) if he
(Renato Suba) was able to nish the food that he sent and he answered in
the affirmative (ibid, pp. 16, 18-19).

4. At that time, the deceased was in good health and in good condition
and that he was not complaining anything about his body; and that the
deceased was then 26 years old, single and had nished advance ROTC and
worked in a logging concession (ibid, pp. 16-18).cIHSTC

5. Accused Mario Calingayan saw the deceased still alive lying down after
6:00 p.m. when he was about to take a bath; and that after taking a bath, he
(witness) went to his cell and played cards with his three (3) cellmates
(whose names he could not recall) for about four (4) hours (tsn, hearing of
April 4, 1995, pp. 16-17).
6. At around 9:00 o'clock of the same day, Mr. Baldovino, a barangay
councilman, informed them that they should go to the municipal building as
per request of the policemen; that Rizalino Suba, rst asked his uncle David
Suba and Manuel Rollo, a barangay councilman, to accompany him; that they
arrived at the municipal building at 9:10 p.m. and they saw that the
deceased was already lying dead on the cement oor outside the cell in the
municipal building (tsn, hearing of April 21, 1994, pp. 20-22).

7. Accused Mario Calingayan was detained with ve (5) others at the

second cell among four (4) cells in the jail; that the deceased, Renato Suba,
was detained alone at the third cell (tsn, hearing of April 4, 1995, pp. 6-7).

8. The four (4) cells, although having their own separate doors, made of
iron grills and equipped each with a padlock, were always open; that it was
up to them whether to close the doors; that the keys of the padlocks are
held by the guard; and that any detention prisoner could go to any cell inside
the prison (ibid, pp. 7-8, 21, 23).

9. There was a common door located in front, leading inside to the cells
which no one could enter because it is padlocked, except with the jail guard's
permission; and that the comfort room is located in the 4th cell which is not
equipped with a padlock so that if you want to go to the comfort room, you
do not anymore need the key in the office of the jail guard (ibid, p. 22).

10. There is only one guard assigned in the cells and accused Edgar
Crisostomo was the one who was rendering duty at the time of the death of
the victim (ibid, pp. 9, 13).

11. There was no other person who was admitted on February 12, 13
and 14, 1989, and there was no instance when Suba was brought out of the
prison cell from the time he was detained on February 14, 1989 (ibid, p. 29).

12. The persons who were detained together with the deceased at the
time of his death were released without any investigation having been
conducted by the local police (tsn, hearing of April 21, 1994, pp. 28-29).

13. The apparent inconsistency in the list of detainees/prisoners dated

February 20, 1989 (Exhibit "I") and the police blotter (Exhibits "J" and "J-1")
whereby in the former there were eight prisoners on February 14, 1989
including the victim but only six were turned over by accused Crisostomo to
the incoming jail guard after the death of the victim; the list contains nine (9)
detainees/prisoners on February 15, 1989 which includes the victim, who
was then dead, while the police blotter shows that only six prisoners were
under their custody. Why the apparent inconsistency?

14. Accused Mario Calingayan's claim that he was detained on February

12, 1989, which is contrary to the master list of detainees showing that he
was detained only on February 14, 1989 (tsn, hearing of April 4, 1995, p.
19).
 15. Accused Mario Calingayan's allegation that when Renato Suba was
brought outside, he saw that he hanged himself with a thin blanket (tsn,
hearing of April 4, 1995, pp. 12-13) which was what the policemen also told
the brother of the victim (tsn, hearing of April 21, 1994, pp. 23-24).

16. After the prosecution rested its case and after co-accused Mario
Calingayan was nished with his testimony in court, accused Edgar
Crisostomo jumped bail and up to this day had remained at large (Rollo, pp.
297-298, 305).

17. The fact that accused Dominador C. Dela Cruz, Efren M. Perez, Raki
T. Anggo, Randy A. Lumabo and Rolando M. Norberte are also still at-large.
26

The Sandiganbayan also relied on the Memorandum Report 27 dated 22 October

1991 of Oscar Oida, then National Bureau of Investigation ("NBI") Regional Director
for Region II, who evaluated the NBI's investigation of the case. The Sandiganbayan
quoted the following portions of the report:

xxx xxx xxx

5. That when he [victim] was brought to the Solano Municipal Jail at

around 12:00 midnight on 14 February 1989 (the same was corrected
by witness Oscar Oida to be February 13, 1989 when he testied in
open court), he was accompanied by his brother, Rizalino Suba, his
cousin, Rodolfo Suba and Brgy. Councilman Manuel Rulloda in good
physical condition with no injuries[;]

6. That when Luis Suba, father of the victim, Renato Suba, visited him in
jail at around 8:00 a.m., on February 14, 1989 and brought food for
his breakfast, he was in good physical condition, and did not complain
of any physical injury or pain. In fact, he was able to eat all the food[;]

7. That when Rizalino Suba, brother of the victim, visited the latter at
around 5:00 o'clock p.m. on 14 February 1989, victim was in good
spirit and never complained of any injury or bodily pain. He was in
good physical condition. He even requested that he be brought his
clothes, beddings and food[;]

8. That when Rolando Suba, another brother of victim, brought the

clothes, bedding and food as requested by the latter at around 6:00
o'clock p.m. on 14 February 1989, he was in good physical condition
and did not complain of any injury or body pain[;]

9. That the good physical condition of victim, Renato Suba was even
corroborated by his four co-inmates, namely, Arki Anggo, Randy A.
Lumabo, Rolando M. Norberte and Mario B. Calingayan and by the
jailer, Pat. Edgar T. Crisostomo, when he was placed under detention
in the Solano Municipal Jail;
TaSEHC

10. That the jailer Pat. Edgar Crisostomo from the time he assumed his
tour of duty from 4:00 o'clock p.m. on 14 February 1989, up to the
 time the victim was discovered allegedly dead and hanging inside the
jail at 9:00 o'clock p.m. on that same day, nobody entered the jail and
no one would enter said jail, as it was always locked, without the
permission of the jailer. The key is always with the jailer;

11. That the only companions of the victim at the time of the discovery
of his death on 14 February 1989 at around 9:00 p.m. were his six (6)
co-inmates namely: Dominador C. dela Cruz, Edren M. Perez, Raki T.
Anggo, Randy A. Luma[b]o, Rolando M. Norbert[e] and Mario
Calingayan;

12. That denitely the cause of death was not suicide by hanging but
due to several injuries sustained by the victim. The most signicant
and remarkable of which are the ruptured liver, torn messentery and a
torn stomach which injuries resulted into massive intra-abdominal
hemorrhage that ultimately caused the death of said victim per
autopsy examination;

13. That said injuries can bring about death in a matter of minutes to a
few hours if not promptly and properly attended by a competent
surgeon;

14. That said injuries could not have been sustained by victim before he
was detained at the Solano Municipal Jail as he could have been
experiencing continuous severe pain which can easily be observed by
the policemen who arrested him on 14 February 1989 at around
12:00 midnight and therefore should have been brought to the
hospital and not confined in the detention cell;

15. That the several injuries sustained by victim were caused by hard
rough-surfaced as well as hard smooth surfaced instruments, st
blows included;

16. That the multiple injuries and the gravity of the injuries sustained by
victim indicate that they were inflicted by more than two persons;

17. That the nature of the injuries sustained by victim were almost in one
particular part of the body, shown by the fact that the internal organs
badly damaged were the liver, messentery and stomach indicating that
the victim was defenseless and helpless thus aording the assailants
to pounce on continuously with impunity almost on one spot of the
body of the victim. The victim could have been held by two or more
assailants while the others were alternately or giving victim blows on
his body with hard rough surfaced as well as hard smooth surfaced
instruments, fist blows included;

18. That with the location and gravity of the injuries sustained by victim,
the persons who inicted the injuries know fully well that victim will die
and knew the consequences of their acts;

19. That the motive was revenge, as victim before he was killed, hit in the
 head a certain Diosdado Lacangan with a wood causing serious injury.
Lacangan was in serious condition at the time victim was killed[;]

20. That the claims of the Solano police and the six (6) co-inmates of
victim that the latter committed suicide by hanging is only a cover up
to hide a heinous offense[;]

21. That the extreme silence of the suspects regarding the death of
victim is so deafening that it established only one thing, conspiracy. It
is unusual for a person not to volunteer information as to who could
be the author of the oense if he is not a participant to a heinous
oense particularly in this case where the circumstances show that
there can be no other person responsible for the death of the victim
except the suspects in this instant case[;]

22. That the victim was killed between 6:00 PM to 9:00 PM on 14

February 1989 inside the Solano Municipal Jail[;]

xxx xxx xxx

The relative position of the jailer to the cell where victim was killed was such
that the jailer and the policemen present, could hear if not see what was
going inside the cell at the time the victim was killed. The injuries sustained by
victim could not be inicted without victim shouting and crying for help. Even
the assailants when they inicted these injuries on victim could not avoid
making loud noises that could attract the attention of the police ocers
present. Conspiracy to kill the victim among the inmates and the police
ocers was clearly established from the circumstances preceding and after
the killing of victim. 28

In sum, the Sandiganbayan believed that Crisostomo took part in the conspiracy to
kill Renato because of these three circumstances: (1) Crisostomo as the jail guard
on duty at the time of Renato's killing had in his possession the keys to the main
door and the cells; (2) Crisostomo was in such a position that he could have seen or
heard the killing of Renato; and (3) there are discrepancies between the list of
detainees/prisoners and the police blotter. According to the Sandiganbayan, there is
a prima facie case against Crisostomo.

Except for the extensive injuries that Renato's body bore, there is no other evidence
that proves that there was a prior agreement between Crisostomo and the six
inmates to kill Renato. In People v. Corpuz , 29 one of the inmates killed by the
other inmates sustained stab wounds that were possibly inicted by ten persons.
The Court ruled that conspiracy could not be inferred from the manner that the
accused inmates attacked their fellow inmate because there was no sucient
showing that all the accused inmates acted pursuant to a previous common accord.
Each of the accused inmates was held liable for his individual act. cEHSIC

Although no formal agreement is necessary to establish conspiracy because

conspiracy may be inferred from the circumstances attending the commission of the
crime, yet conspiracy must be established by clear and convincing evidence. 30 Even
if all the malefactors joined in the killing, such circumstance alone does not satisfy
the requirement of conspiracy because the rule is that neither joint nor
simultaneous action is per sesucient proof of conspiracy. 31 Conspiracy must be
shown to exist as clearly and convincingly as the commission of the oense itself. 32

Thus, even assuming that Renato was simultaneously attacked, this does not prove
conspiracy. The malefactors who inicted the fatal injuries may have intended by
their own separate acts to bring about the death of the victim. 33 No evidence was
presented to show that Crisostomo and the inmates planned to kill Renato or that
Crisostomo's overt acts or inaction facilitated the alleged plan to kill Renato. The
prosecution had the burden to show Crisostomo's intentional participation to the
furtherance of the common design and purpose.

The pieces of circumstantial evidence are not sucient to create a prima facie case
against Crisostomo. When the three circumstances are examined with the other
evidence on record, it becomes all the more clear that these circumstances do not
lead to a logical conclusion that Crisostomo lent support to an alleged conspiracy to
murder Renato.

First, while Crisostomo as jail guard had in his possession the keys to the main door
and individual cells, there is no proof that Crisostomo allowed an outsider inside the
prison. Calingayan, the sole witness for the defense, testied that no new detainee
was admitted from 13 to 14 of February 1989. 34 The NBI Report 35 relied upon by
the Sandiganbayan conrms Calingayan's testimony that nobody entered the jail
and that Renato's only companions inside the jail were the six inmates. 36

There is also no proof that Crisostomo purposely left the individual cells open to
allow the inmates to attack Renato who was alone in the third cell. Calingayan,
who was detained ahead of Renato, 37 testied that while each of the four cells had
a padlock, the cells had always been kept open. 38 The inmates had always been
allowed to enter the cells and it was up to the inmates to close the doors of the
cells. 39 The inmates could freely go to the fourth cell, which was the inmates'
comfort room so that they would no longer ask for the key from the jail guard every
time the inmates would use the comfort room. 40

Second, the Sandiganbayan should not have absolutely relied on the NBI Report 41
stating that Crisostomo as jail guard was in such a position that he could have seen
or heard the killing. The prosecution failed to establish that Crisostomo actually
saw and heard the killing of Renato.

Based on Calingayan's testimony, it was not impossible for Crisostomo not to have
actually seen and heard the killing of Renato. On cross-examination, Calingayan
testied that all of the cells were in one line. 42 Crisostomo's oce was at the left
side of the cells about 15 meters away from cell number two, the cell where
Calingayan was detained. 43 Hollow blocks from the oor to the ceiling separated
each of the four cells. 44 With the partition, an inmate in one cell could not see what
was happening in the other cells. 45 Calingayan further testied that Renato's body
was in a dark place, 46 as it was lighted from outside only by a bulb "at the alley,"
"at the corridor." 47

Since Renato's body was found in cell number four, this would make the distance
between Crisostomo's oce and the crime scene more than 15 meters. Crisostomo
could not have had a full view of cell number four because of the distance between
Crisostomo's oce and cell number four, the partitions of the four cells and poor
lighting in the jail.

Calingayan's description of the jail, the cells, the location of Renato's body and
Crisostomo's actual position was not contradicted by the prosecution. There is no
other evidence on record that describes the layout and conditions of the jail at the
time of Renato's death.

The prosecution had the burden to present evidence that Crisostomo indeed saw
and heard Renato's killing and Crisostomo consented to the killing as part of the
plan to kill Renato. The absence of such evidence does not preclude the possibility
that Renato was covertly killed and the sounds were mued to conceal the crime
from Crisostomo, the jail guard. Or Crisostomo as jail guard was simply negligent in
securing the safety of the inmates under his custody. If Crisostomo were negligent,
this would be incompatible with conspiracy because negligence denotes the absence
of intent while conspiracy involves a meeting of the minds to commit a crime. 48 It
was the prosecution's burden to limit the possibilities to only one: that Crisostomo
conspired with the inmates to kill Renato. The prosecution failed to do so.

Third, the prosecution was not clear as to the implication of the discrepancies
between the list of "detainees/prisoners" and police blotter to the conspiracy to
murder Renato. The prosecution did not even pinpoint which of the two documents
is the accurate document. The prosecution merely asked: why the apparent
inconsistency? 49

Courts must judge the guilt or innocence of the accused based on facts and not on
mere conjectures, presumptions or suspicions. 50 The inconsistency between the two
documents without anything more remains as merely that an inconsistency. The
inconsistency does not even have any bearing on the prosecution's conspiracy
theory. The NBI Report and Calingayan's testimony stated that six inmates were
with Renato inside the jail. This was also the same number of inmates turned over
by Crisostomo to the incoming jail guard after Renato's death. 51

The alleged motive for Renato's killing was to avenge the attack on Lacangan who
was then in a serious condition because Renato hit him on the head with a piece of
wood. No evidence was presented to link Crisostomo to Lacangan or to show what
compelling motive made Crisostomo, a jail guard, abandon his duty and instead
facilitate the killing of an inmate under his custody. Motive is generally held to be
immaterial because it is not an element of the crime. 52 However, motive becomes
important when the evidence on the commission of the crime is purely
circumstantial or inconclusive. 53 Motive is thus vital in this case.
TcEaAS

Clearly, the Sandiganbayan had no basis to convict Crisostomo because the

prosecution failed to produce the evidence necessary to overturn the presumption of
innocence. The insuciency of evidence was the same reason why the National
Police Commission dismissed the administrative case for grave misconduct (murder)
against Crisostomo on 24 October 1990. 54 The circumstances in this case did not
constitute an unbroken chain that would lead to a reasonable conclusion that
Crisostomo played a role in the inmates' supposed preconceived eort to kill
Renato. Thus, Crisostomo must be acquitted.

The "deafening silence" of all of the accused does not necessarily point to a
conspiracy. In the rst place, not all of the accused remained silent. Calingayan put
himself on the witness stand. Calingayan further claimed that the Solano police
investigated him and his handwritten statements were taken the morning following
Renato's death. 55 Secondly, an accused has the constitutional right to remain silent
and to be exempt from being compelled to be a witness against himself. 56

A judgment of conviction must be predicated on the strength of the evidence for the
prosecution and not on the weakness of the evidence for the defense. 57 The
circumstantial evidence in this case is not sucient to create a prima facie case to
shift the burden of evidence to Crisostomo. Moreover, Calingayan's testimony
inured to Crisostomo's favor. The supposed waiver of presentation of evidence did
not work against Crisostomo because the prosecution failed to prove Crisostomo's
guilt beyond reasonable doubt.

I n Salvatierra v. CA , 58 upon ruling for the defendants' acquittal, the Court

disregarded the issue of whether the defendants jumped bail for failing to attend
trial and whether their absence should be considered as ight and as evidence of
guilt. Even with this ruling in Salvatierra v. CA , which is applicable to this case,
and Crisostomo's failure to question the violation of his right to procedural due
process before the Court, we cannot simply ignore the Sandiganbayan's grave abuse
of discretion.

The records show that the Sandiganbayan set the hearing of the defense's
presentation of evidence on 21, 22 and 23 June 1995. The 21 June 1995 hearing
was cancelled because of "lack of quorum in the regular membership" of the
Sandiganbayan's Second Division and upon the agreement of the parties. 59 The
hearing was reset the next day, 22 June 1995. Crisostomo and his counsel failed to
attend the 22 June 1995 hearing. The Sandiganbayan, on the very same day, issued
an order 60 directing the issuance of a warrant for the arrest of Crisostomo and
ordering the conscation of his surety bond. The order further declared that
Crisostomo had waived his right to present evidence because of his non-appearance
at "yesterday's and today's scheduled hearings." 61 The Sandiganbayan terminated
the trial and gave the parties thirty days within which to le their memoranda,
after which, with or without the memoranda, the case would still be deemed
submitted for decision.

The Sandiganbayan's error is obvious. Strictly speaking, Crisostomo failed to appear

only on the 22 June 1995 hearing. Crisostomo's appearance on the 21 June 1995
hearing would not have mattered because the hearing on this date was cancelled
for lack of quorum of justices in the Sandiganbayan's Second Division.

Under Section 2(c), Rule 114 and Section 1(c), Rule 115 of the Rules of Court,
Crisostomo's non-appearance during the 22 June 1995 trial was merely a waiver of
his right to be present for trial on such date only and not for the succeeding trial
dates. 62 Section 1(c) of Rule 115 clearly states that:

. . . The absence of the accused without any justiable cause at the trial on a
particular date of which he had notice shall be considered a waiver of his
right to be present during that trial. When an accused under custody had
been notied of the date of the trial and escapes, he shall be deemed to
have waived his right to be present on said date and on all subsequent trial
dates until custody is regained.

Moreover, Crisostomo's absence on the 22 June 1995 hearing should not have been
deemed as a waiver of his right to present evidence. While constitutional rights may
be waived, such waiver must be clear and must be coupled with an actual intention
to relinquish the right. 63 Crisostomo did not voluntarily waive in person or even
through his counsel the right to present evidence. The Sandiganbayan imposed the
waiver due to the agreement of the prosecution, Calingayan, and Calingayan's
counsel.

In criminal cases where the imposable penalty may be death, as in the present case,
the court is called upon to see to it that the accused is personally made aware of the
consequences of a waiver of the right to present evidence. 64 In fact, it is not enough
that the accused is simply warned of the consequences of another failure to attend
the succeeding hearings. 65 The court must rst explain to the accused personally in
clear terms the exact nature and consequences of a waiver. 66 Crisostomo was not
even forewarned. The Sandiganbayan simply went ahead to deprive Crisostomo of
his right to present evidence without even allowing Crisostomo to explain his
absence on the 22 June 1995 hearing.

Clearly, the waiver of the right to present evidence in a criminal case involving a
grave penalty is not assumed and taken lightly. The presence of the accused and his
counsel is indispensable so that the court could personally conduct a searching
inquiry into the waiver. 67 Moreover, the searching inquiry must conform to the
procedure recently reiterated in People v. Beriber, 68 to wit:

1. The trial court shall hear both the prosecution and the accused with
their respective counsel on the desire or manifestation of the accused to
waive the right to present evidence and be heard.

2. The trial court shall ensure the attendance of the prosecution and
especially the accused with their respective counsel in the hearing which
must be recorded. Their presence must be duly entered in the minutes of
the proceedings. DSacAE

3. During the hearing, it shall be the task of the trial court to

 a. ask the defense counsel a series of question[s] to determine
whether he had conferred with and completely explained to the
accused that he had the right to present evidence and be heard
as well as its meaning and consequences, together with the
signicance and outcome of the waiver of such right. If the
lawyer for the accused has not done so, the trial court shall give
the latter enough time to fulfill this professional obligation.

b. inquire from the defense counsel with conformity of the

accused whether he wants to present evidence or submit a
memorandum elucidating on the contradictions and
insuciency of the prosecution evidence, if any or in default
thereof, le a demurrer to evidence with prior leave of court, if
he so believes that the prosecution evidence is so weak that it
need not even be rebutted. If there is a desire to do so, the trial
court shall give the defense enough time for this purpose.

c. elicit information about the personality prole of the accused,

such as his age, socio-economic status, and educational
background, which may serve as a trustworthy index of his
capacity to give a free and informed waiver.

d. all questions posed to the accused should be in a language

known and understood by the latter, hence, the record must
state the language used for this purpose as well as reect the
corresponding translation thereof in English.

If no waiver of the right to present evidence could be presumed from Crisostomo's

failure to attend the 22 June 1995 hearing, with more reason that ight could not
be logically inferred from Crisostomo's absence at that hearing. Crisostomo's
absence did not even justify the forfeiture of his bail bond. A bail bond may be
forfeited only in instances where the presence of the accused is specically required
by the court or the Rules of Court and, despite due notice to the bondsmen to
produce him before the court on a given date, the accused fails to appear in person
as so required. 69 Crisostomo was not specically required by the Sandiganbayan or
the Rules of Court to appear on the 22 June 1995 hearing. Thus, there was no basis
for the Sandiganbayan to order the conscation of Crisostomo's surety bond and
assume that Crisostomo had jumped bail.

Prior to his absence on the 22 June 1995 hearing, Crisostomo had regularly
attended the hearings of the case. When it was Crisostomo's turn to present his
evidence, Atty. Anecio R. Guades ("Atty. Guades"), Crisostomo's former counsel,
instructed Crisostomo to wait for the notice of hearing from him and the
Sandiganbayan. Crisostomo did not receive any notice from the Sandiganbayan or
from Atty. Guades who disappeared without informing Crisostomo of his new oce
address. Upon notication of the promulgation of the case scheduled on 28
November 2000, Crisostomo voluntarily appeared before the Sandiganbayan.
Crisostomo then terminated the services of Atty. Guades and engaged the services
of another counsel. In the omnibus motion for new trial led by Crisostomo's new
counsel, Crisostomo denied that he went into hiding. If given the chance,
Crisostomo would have presented his pay slips and certicates of attendance to
prove that he had been reporting for work at the Police Station in Solano, Nueva
Vizcaya. 70

We could not absolutely fault the Sandiganbayan for not correcting its 22 June 1995
Order. The Sandiganbayan lost the opportunity to review the order when
Crisostomo's new counsel changed his legal strategy by withdrawing the omnibus
motion for new trial and instead sought the nullication of the Sandiganbayan's
decision for lack of jurisdiction over the case.

However, the withdrawal of the omnibus motion could not erase the
Sandiganbayan's violation of Crisostomo's right to procedural due process and Atty.
Guades' gross negligence. Atty. Guades failed to protect his client's interest when he
did not notify Crisostomo of the scheduled hearings and just vanished without
informing Crisostomo and the Sandiganbayan of his new oce address. The 22 June
1995 Order was served on Atty. Guades but he did not even comply with the
directive in the Order to explain in writing his absence at the 21 and 22 June 1995
hearings. Atty. Guades did not file the memorandum in Crisostomo's behalf required
by the same Order. Atty. Guades did not also question the violation of Crisostomo's
right to procedural due process. The subsequent notices of hearing and
promulgation were not served on Atty. Guades as he could not be located in the
building where his office was located. 71

Clearly, Atty. Guades's negligence was so gross that it should not prejudice
Crisostomo's constitutional right to be heard, 72 especially in this case when the
imposable penalty may be death. At any rate, the remand of the case is no longer
necessary. 73 The prosecution's evidence failed to overturn the constitutional
presumption of innocence warranting Crisostomo's acquittal.

The Sandiganbayan imposed an indeterminate sentence on Crisostomo. The

Indeterminate Sentence Law ("ISL") is not applicable to persons convicted of
oenses punished with the death penalty or reclusion perpetua. 74 Since Crisostomo
was accused of murder, the penalty for which is reclusion temporal in its maximum
period to death, the Sandiganbayan should have imposed the penalty in its medium
period since it found no aggravating circumstance. 75 The medium period of the
penalty is reclusion perpetua.ECISAD

Calingayan must be also Acquitted

The Sandiganbayan cited only two circumstances as evidence of Calingayan's guilt.

The Sandiganbayan held that Calingayan's claim that he was detained on 12
February 1989 is contrary to the master list of detainees showing that Calingayan
was detained on 14 February 1989. 76 Second is Calingayan's allegation that "when
Renato Suba was brought outside, he saw that he hanged himself with a thin
blanket, which was what the policemen also told the brother of the victim." 77 The
Sandiganbayan did not elaborate on this circumstance. The Sandiganbayan was
apparently suspicious of Renato's knowledge of the material that was used to hang
Renato.
Renato could have been killed by two or more inmates or possibly even by all of the
inmates. However, since no conspiracy was proven to exist in this case, the
perpetrators of the crime needed to be identied and their independent acts had to
be proven. 78 The two circumstances that were held against Calingayan are not
sucient proof that Calingayan was one of the inmates who killed Renato. Thus,
Calingayan must be also acquitted.

Section 11(a) of Rule 122 of the Rules of Court provides that "[a]n appeal taken by
one or more [of] several accused shall not aect those who did not appeal, except
insofar as the judgment of the appellant court is favorable and applicable to the
latter." In this case, only Crisostomo questioned the jurisdiction and decision of the
Sandiganbayan. However, the evidence against Crisostomo and Calingayan are
inextricably linked as their conviction hinged on the prosecution's unproven theory
of conspiracy. Thus, Crisostomo's acquittal, which is favorable and applicable to
Calingayan, should benefit Calingayan. 79

WHEREFORE, the Decision of the Sandiganbayan in Criminal Case No. 19780

convicting appellant EDGAR CRISOSTOMO and co-accused MARIO B. CALINGAYAN is
hereby REVERSED. EDGAR CRISOSTOMO and co-accused MARIO B. CALINGAYAN are
ACQUITTED of the crime of murder and ordered immediately released from prison,
unless held for another lawful cause. The Director of Prisons is directed to report to
this Court compliance within five (5) days from receipt of this Decision. No costs.

SO ORDERED.

Davide, Jr., C.J., Quisumbing, Ynares-Santiago and Azcuna, JJ., concur.

Footnotes

1. Penned by Associate Justice Ma. Cristina Cortez-Estrada with Associate Justices

(now Associate Justice of this Court) Minita V. Chico-Nazario and Anacleto D.
Badoy Jr., concurring.

2. Records, Vol. 1, pp. 1-2.

3. Ibid., p. 43.

4. Rollo, pp. 77-78.

5. Ibid., p. 10.

6. G.R. Nos. 111771-77, 9 November 1993, 227 SCRA 627.

7. 108 Phil. 613 (1960). Reported as People v. Hon. Montejo, etc., et al.

8. G.R. No. 90591, 21 November 1990, 191 SCRA 545.

9. G.R. No. 98452, en banc Resolution, 26 September 1991. Cited in Republic v.

Asuncion, G.R. No. 108208, 11 March 1994, 231 SCRA 211.
10. Supra note 6.

11. G.R. No. 111616, 4 February 1994, 229 SCRA 680.

12. G.R. No. 108208, 11 March 1994, 231 SCRA 211.

13. See Antiporda, Jr. v. Hon. Garchitorena, 378 Phil. 1166 (1999).

14. Escudero v. Dulay, G.R. No. 60578, 23 February 1988, 158 SCRA 69.

15. People v. Saludes , G.R. No. 144157, 10 June 2003, 403 SCRA 590; People v.
Jubail, G.R. No. 143718, 19 May 2004, 428 SCRA 478.

16. Ibid.

17. People v. Delim, G.R. No. 142773, 28 January 2003, 396 SCRA 386.

18. Ibid.

19. Ibid.

20. NBI Cagayan Valley Regional Office, Ilagan, Isabela.

21. Memorandum Report, Exhibit "C."

22. Exhibit "B-1," Exhumation findings.

23. Exhibit "B."

24. Exhibit "B-1."

25. See People v. Delim, supra note 17.

26. Rollo, pp. 69-70.

27. Exhibit "C."

28. Rollo, pp. 73-75.

29. G.R. No. 36234, 10 February 1981, 102 SCRA 675.

30. People v. Agda, et al., 197 Phil. 306 (1982).

31. People v. Dorico, 153 Phil. 458 (1973).

32. Ibid.

33. Ibid.

34. TSN, 4, April 1995, p. 29.

35. Rollo, pp. 73-75.

36. TSN, 4 April 1995, pp. 6-7.

37. Ibid., pp. 8-9.

38. Ibid., pp. 7-8.

39. Ibid., p. 8.

40. Ibid., pp. 22-23.

41. Rollo, pp. 73-75.

42. TSN, 4 April 1995, p. 20.

43. Ibid., p. 25.

44. Ibid., p. 20.

45. Ibid., p. 20.

46. Ibid., p. 12.

47. Ibid., p. 24.

48. ANTONIO L. GREGORIO, FUNDAMENTALS OF CRIMINAL LAW REVIEW, 1997, 9th

Ed., p. 45.

49. Rollo, p. 70.

50. See People v. Legaspi, 387 Phil. 108 (2000).

51. Rollo, p. 70.

52. People v. Flores , 389 Phil. 532 (2000).

53. Ibid.

54. Records, Vol. 1, pp. 26-29.

55. TSN, 4 April 1995, p. 28.

56. Section 12 (1) and Section 17, Article III of the 1987 Constitution.

57. People v. Legaspi, supra note 50.

58. 389 Phil. 66 (2000).

59. Records, Vol. I, p. 296.

60. Issued by Associate Justices Romeo M. Escareal (Chairman), Cipriano A. Del

Rosario, and Roberto M. Lagman.

61. Records, Vol. 1, p. 297.

62. Marcos v. Ruiz , G.R. Nos. 70746-47, 1 September 1992, 213 SCRA 177.
63. Ibid.

64. People v. Macarang, G.R. Nos. 151249-50, 26 February 2004, 424 SCRA 18.

65. Ibid.

66. Marcos v. Ruiz , supra note 62.

67. See People v. Beriber , G.R. No. 151198, 8 June 2004, 431 SCRA 332; People v.
Diaz , 370 Phil. 607 (1999).

68. Ibid., citing People v. Bodoso, 446 Phil. 838 (2003).

69. Marcos v. Ruiz , supra note 62.

70. Records, Vol. I, pp. 370-377.

71. Records, Vol. I, pp. 314 and 320.

72. See Reyes v. Court of Appeals , G.R. No. 111682, 6 February 1997, 267 SCRA
543.

73. Salvatierra v. CA, supra note 58.

74. People v. Saberola, 358 Phil. 387 (1998).

75. Art. 64 of the Revised Penal Code provides:

Art. 64. Rules for the application of penalties which contain three periods . In
cases in which the penalties prescribed by law contain three periods, whether it be
a single divisible penalty or composed of three dierent penalties, each one of
which forms a period in accordance with the provisions of Articles 76 and 77, the
court shall observe for the application of the penalty the following rules, according
to whether there are or are no mitigating or aggravating circumstances:

1. When there are neither aggravating nor mitigating circumstances, they

shall impose the penalty prescribed by law in its medium period.

2. When only a mitigating circumstance is present in the commission of the

act, they shall impose the penalty in its minimum period.

3. When only an aggravating circumstance is present in the commission of

the act, they shall impose the penalty in its maximum period.

4. When both mitigating and aggravating circumstances are present, the

court shall reasonably oset those of one class against the other according to
their relative weight.

5. When there are two or more mitigating circumstances and no

aggravating circumstances are present, the court shall impose the penalty next
lower to that prescribed by law, in the period that it may deem applicable,
according to the number and nature of such circumstances.
 6. Whatever may be the number and nature of the aggravating
circumstances, the courts shall not impose a greater penalty than that prescribed
by law, in its maximum period.

7. Within the limits of each period, the courts shall determine the extent of
the penalty according to the number and nature of the aggravating and mitigating
circumstances and the greater or lesser extent of the evil produced by the crime.

76. Rollo, p. 70.

77. Ibid.

78. People v. Dela Cruz , 383 Phil. 213 (2000); People v. Corpuz , supra note 29.

79. See Salvatierra v. CA , supra note 58; People v. Rodriguez , G.R. No. 129211, 2
October 2000, 341 SCRA 645.
 THIRD DIVISION

[G.R. No. 135222. March 4, 2005.]

PETER ANDRADA, petitioner, vs. THE PEOPLE OF THE

PHILIPPINES, respondent.

DECISION

SANDOVAL-GUTIERREZ, J : p

Before us is a petition for review on certiorari led by Peter Andrada, petitioner,

assailing the Decision 1 of the Court of Appeals dated September 18, 1997 in CA-
G.R. CR No. 15851 and its Resolution 2 dated August 13, 1998.

In an Information dated January 7, 1987, the Oce of the City Prosecutor of Baguio
City charged petitioner with frustrated murder committed as follows:

That on or about the 24th day of September 1986, in the City of Baguio,
Philippines and within the jurisdiction of this Honorable Court, the above-
named accused with intent to kill, with evident premeditation and with
treachery, did then and there willfully, unlawfully, and feloniously attack,
assault and hack one ARSENIO UGERIO on the head twice with a bolo
thereby inicting upon latter: hacking wound, head, resulting in 1) skull and
scalp avulsion vertex; 2) depressed comminuted skull fracture, right parieto
occipital with signicant brain laceration; operation done; craniectomy;
vertex debridement; craniectomy; right parieto occipital; dural repair;
debridement, thus performing all the acts of execution which would produce
the crime of Murder as a consequence thereof, but nevertheless, the felony
was not consummated by reason of causes independent of the will of the
accused, that is, by the timely medical attendance extended to Arsenio
Ugerio which prevented his death. iatdcjur

CONTRARY TO LAW. 3

When arraigned on February 9, 1987, petitioner, with the assistance of counsel de

parte, pleaded not guilty to the crime charged. The hearing of the case ensued. CSTDIE

Evidence for the prosecution shows that on September 23, 1986, at around 11:30 in
the evening, T/Sgt. Teodolfo Sumabong, of the defunct Philippine Constabulary (PC),
was resting in the PC barracks at Camp Dado Dangwa, La Trinidad, Benguet when
one Rommel Alcate called up requesting police assistance. Alcate claimed that a
group of persons was suspiciously roaming around his boarding house in Ferguson
Street, Baguio City.

Sgt. Sumabong and two of his companions, Sgt. Gaces and Cpl. Arsenio Ugerio, went
to Alcete's boarding house, arriving there past midnight. However, according to
Alcate, the suspicious persons have left.

On their way back to the camp at around 1:15 in the morning, the group dropped by
Morlow's Restaurant, Bokawkan Street, Baguio City, for a snack. They ordered
coffee and sandwiches.

While they were waiting to be served, a woman passed by their table. While Cpl.
Ugerio was talking to her, a man, later identied as Peter Andrada, herein
petitioner, approached the former and scolded him. Sgt. Sumabong, identifying
himself as a PC non-commissioned ocer, advised petitioner to pay his bill and go
home as he was apparently drunk.

Petitioner heeded Sgt. Sumabong's advice for he paid his bill and left the restaurant
with his companions. While Sgt. Sumabong was paying his bill, he heard Cpl.
Ugerio, seated about a meter away, moaning in pain. When Sgt. Sumabong turned
around, he saw Cpl. Ugerio sprawled on the oor. Petitioner was hacking him on the
head with a bolo. Sgt. Sumabong approached them but petitioner ran away,
followed by a companion. Sgt. Sumabong chased them but to no avail.

Upon Sgt. Sumabong's instruction, Sgt. Gaces brought Cpl. Ugerio, the victim, to the
St. Louis University Hospital. Then Sgt. Sumabong reported the incident to the
police station at Camdas Road and thereafter proceeded to the hospital. When he
returned to the police station, he learned that petitioner was arrested in a waiting
shed at the corner of Camdas Road and Magsaysay Avenue.

The arresting ocers then brought petitioner back to the restaurant where they
recovered the bolo used in hacking the victim. Witnesses to the incident were
interviewed by the police and they pointed to petitioner as the culprit.

Dr. Francisco Fernandez, a neuro-surgery consultant, found that the victim suered
two (2) major injuries. The rst was a "scalping avulsion," around 5 centimeters
wide, i.e., the chopping o of a part of the victim's skull. The second was a
depressed fracture, about 6 centimeters wide, found on the right parieto occipital
area of the skull. Either wound, being fatal, would have caused the death of the
victim had it not been for a timely medical treatment. After three (3) days, the
victim was transferred to the V. Luna Hospital in Quezon City. Because of the
injuries he sustained, he has remained incapable to remember or recall visual
stimuli or information. DHcSIT

Petitioner interposed self-defense and invoked the mitigating circumstance of

voluntary surrender. His version is that he and one Romy Ramos were drinking beer
with a hospitality girl named "Liza" inside Morlow's Restaurant, when three military
men occupied the table next to them. They had pistols tucked in their waists.
Without any warning or provocation, two of the men, whom he identied as Cpl.
Ugerio and Sgt. Sumabong, approached him, slapped his face several times and
pointed their guns to his head. They cursed him and threatened to summarily
execute him because he was "so boastful." Cpl. Ugerio then "collared" him and
dragged him outside the restaurant, while Sgt. Sumabong followed. Fearful that he
might be killed, petitioner pulled out his bolo, wrapped in a newspaper, from his
waist and swung it at the two military men. He did not see if he hit any of them.
Then he ran to his house in Camdas Subdivision. He checked to see if his mother or
grandmother was at home so either of them could assist him in surrendering to the
police. But neither was present. On his way to surrender to the police, he met his
mother accompanied by a policeman. They then proceeded to the police sub-station
at Magsaysay Avenue where he surrendered. DTcHaA

After hearing, the trial court rendered its Decision, the dispositive portion of which is
quoted below, thus:

WHEREFORE, premises considered, the Court nds the accused PETER

ANDRADA guilty beyond reasonable doubt of the crime of frustrated
murder.

The Court hereby sentences him to suer the penalty of imprisonment of 8

years and 20 days as MINIMUM to 14 years, 10 months and 20 days as
MAXIMUM; to indemnify the sum of P3,000.00, representing part of the
victim's expenses for medical services and medicine, and to pay the costs.

SO ORDERED. 4

On appeal, the Court of Appeals armed with modication the trial court's Decision,
thus:

WHEREFORE, THE DECISION APPEALED FROM IS HEREBY AFFIRMED WITH

THE MODIFICATION THAT THE APPELLANT IS SENTENCED TO AN
INDETERMINATE PENALTY OF FOUR (4) YEARS AND TWO (2) MONTHS OF
PRISION CORRECCIONAL, AS MINIMUM, TO EIGHT (8) YEARS AND TWENTY
(20) DAYS OF PRISION MAYOR, AS MAXIMUM.

SO ORDERED. 5

The Court of Appeals, in modifying the imposable penalty, found that petitioner is
entitled to the privileged mitigating circumstance of minority as he was only 17
years, 9 months and 20 days old at the time of the incident.

Petitioner then led a motion for reconsideration, but this was denied by the
Appellate Court in its Resolution dated August 13, 1998.

Hence, the instant petition.

The issues for our resolution are: (1) whether petitioner's right to due process was
violated; (2) whether his plea of self-defense is in order; (3) whether the crime
committed is frustrated murder or frustrated homicide; and (4) whether he is
entitled to any mitigating circumstance, assuming he is guilty.

On the rst issue, petitioner argues that the Court of Appeals erred in not holding
that the trial court violated his constitutional right to due process. He contends that
his counsel:

1. Failed to present all the witnesses who could have testied that
 he is innocent of the crime charged;

2. Failed to present the medical certicate showing the injuries

inflicted upon him by the victim; IDScTE

3. Did not notify him to attend the hearing when Sgt. Sumabong
was cross-examined; and

4. Failed to submit a memorandum.

In sum, petitioner ascribes gross incompetence or gross negligence to his counsel.

The Oce of the Solicitor General (OSG) counters that there was no violation of
petitioner's right to due process. Petitioner was represented by counsel of his choice.
If the latter's performance and competence fell short of petitioner's expectations,
then he should not blame either the trial court or the Court of Appeals.

In criminal cases, the negligence or incompetence of counsel to be deemed gross

must have prejudiced the constitutional right of an accused to be heard. 6

In the following cases, we held that there has been gross negligence or
incompetence on the part of counsel for the accused, thus:

In US v. Gimenez, 7 we remanded a criminal case for new trial when counsel for an
accused inadvertently substituted a plea of guilty for an earlier plea of not guilty,
thus resulting in the precipitate conviction of his client.

I n Aguilar v. Court of Appeals and People , 8 we ordered a dismissed appeal from a

conviction for estafa to be reinstated after it was shown that the failure to le the
appellant's brief on time was due to sheer irresponsibility on the part of appellant's
counsel.

In De Guzman v. Sandiganbayan, 9 we remanded the case for reception of evidence

after counsel for the accused led a demurrer to the evidence notwithstanding that
his motion for leave of court was denied, thus precluding the accused to present his
evidence.

In Reyes v. Court of Appeals, 10 we ordered a new trial after a showing that counsel
for the accused abandoned her without explanation.

I n People v . Bascuiguin, 11 we held that the arraignment is not valid. The accused
was not properly represented by counsel de ocio since he merely conferred with
his client for a few minutes and advised him to plead guilty to the crime of rape
with homicide.

None of the foregoing incidents is present in the instant case. Instead, records show
that counsel for petitioner actively participated in the cross-examination of the
witnesses for the prosecution to test their credibility. At any rate, the fact that he
did not choose to present other witnesses did not aect any of petitioner's
substantial rights. Besides, said counsel might have valid reasons why he did not
call to the witness stand those witnesses. ICESTA

We note that petitioner was present during the hearing. If he believed that his
counsel de parte was not competent, he could have secured the services of a new
counsel. He did not. Having decided to retain the services of his counsel during the
entire proceedings, petitioner must be deemed bound by any mistake committed by
him. For if an accused feels that his counsel is inept, he should take action by
discharging him earlier, instead of waiting until an adverse decision is rendered and
thereupon blame his counsel for incompetence. 12

The long-standing rule in this jurisdiction is that a client is bound by the mistakes of
his lawyer. Mistakes of attorneys as to the competency of a witness, the suciency,
relevancy or irrelevancy of certain evidence, the proper defense or the burden of
proof, failure to introduce evidence, to summon witnesses, and to argue the case,
unless they prejudice the client and prevent him from properly presenting his case,
do not constitute gross incompetence or negligence. 13

Having found that petitioner's counsel was not so inept or motivated by bad faith, or
so careless and negligent of his duties as to seriously prejudice the substantial rights
of petitioner or prevent him from putting up a proper defense, we hold that he is
bound by the decisions of his counsel regarding the conduct of the case. 14

On the second issue, petitioner invokes self-defense. Hence, it is incumbent upon

him to prove by clear and convincing evidence that he indeed acted in defense of
himself. For in invoking self-defense, the accused admits killing or seriously
wounding the victim and thus, has the burden to justify his act. 15 The requisites of
self-defense are: (1) unlawful aggression; (2) reasonable necessity of the means
employed to repel or prevent it; and (3) lack of sucient provocation of the part of
the person defending himself. 16

We nd that the petitioner has not adequately discharged his burden of proving the
elements of self-defense. The trial court and the Court of Appeals found that at the
time he hacked the victim, the latter was still seated while he (petitioner) was
behind him . Indeed, how could there be an unlawful aggression on the part of the
victim at that instance? Petitioner's bare assertions that the victim slapped him,
poked a handgun at him, and threatened to "salvage" him were not duly proved by
the evidence for the defense. Rather, the prosecution established that it was
petitioner who unexpectedly attacked the victim from behind. Clearly, the aggressor
was petitioner. Since the rst element of self-defense is not present here, such
defense must fail.

On the third issue, petitioner contends that assuming he is guilty, he should only be
convicted of frustrated homicide, not frustrated murder. He insists that treachery
was not present. His hacking the victim was a "spur-of-the-moment" act prompted
by self-preservation.

We are not persuaded. There is alevosia when the oender commits any of the
crimes against persons employing means, methods, or forms in the execution
thereof which tend directly and especially to ensure the execution of the crime
without risk to himself from any defense which the oended party might make. 17
We agree with the lower courts that the petitioner planned to kill the victim with
treachery in mind. At that time, the victim was seated, having just nished a meal
at a late hour. His back was towards petitioner when the latter, without warning,
hacked him twice on his head with a bolo. The attack was so sudden and
unexpected that the victim had no opportunity either to avert the attack or to
defend himself.

Considering that petitioner had performed all the acts of execution which would
have resulted in the death of the victim, had it not been for timely medical
assistance, a cause not of the will of the petitioner, and considering further the
presence of treachery, then, the crime committed is frustrated murder, not
frustrated homicide.

On the fourth issue, petitioner insists that the mitigating circumstance of voluntary
surrender should have been appreciated in his favor.

Evidence for the prosecution shows that petitioner, after attacking the victim, ran
away. He was apprehended by responding police ocers in the waiting shed at the
corner of Cambas Road and Magsaysay Avenue. For voluntary surrender to be
appreciated, the surrender must be spontaneous, made in such a manner that it
shows the interest of the accused to surrender unconditionally to the authorities,
either because he acknowledges his guilt or wishes to save them the trouble and
expenses that would be necessarily incurred in his search and capture. 18 Here, the
surrender was not spontaneous.

Anent the modification of the penalty by the Court of Appeals, the same is in order.

WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals dated
September 18, 1997 and its Resolution dated August 13, 1998 in CA-G.R. CR No.
15851 are AFFIRMED. Costs against petitioner.

SO ORDERED.

Panganiban, Corona, Carpio Morales and Garcia, JJ., concur.

Footnotes

1. Rollo at 41-52. Penned by Associate Justice Gloria C. Paras (deceased) and

concurred in by Associate Justices Lourdes K.T. Jaguros (retired) and Salvador J.
Valdez, Jr.

2. Id. at 53-54. Per Associate Justice Salvador J. Valdez, Jr., with Associate Justices
Eduardo C. Montenegro (retired) and Renato C. Dacudao, concurring.

3. Id. at 55.

4. Id. at 61-62.
5. Id. at 51-52.

6. Reyes v. Court of Appeals , 335 Phil. 206, 215 (1997).

7. 34 Phil. 74 (1916).

8. 320 Phil. 456 (1995).

9. G.R. No. 103276, April 11, 1996, 256 SCRA 171.

10. G.R. No. 111682, February 6, 1997, 267 SCRA 543.

11. 418 Phil. 209 (2001)

12. People v. Salido, G.R. No. 116208, July 5, 1996, 258 SCRA 291, 296.

13. Tesoro v. Court of Appeals , G.R. No. 36666, December 19, 1973, 54 SCRA 296,
304 citing People v . Ner, G.R. No. 25504, July 31, 1969, 28 SCRA 1151, Rivero v.
Santos et al., 98 Phil. 500 (1956), Isaac v. Mendoza, 89 Phil. 279 (1951); Montes v.
CFI of Tayabas , 48 Phil. 640 (1926); People v. Manzanilla, 43 Phil. 167 (1922); US v.
Dungca, 27 Phil. 274 (1914); US v. Umali, 15 Phil. 33 (1910).

14. Del Mar v. Court of Appeals , 429 Phil 19, 29 (2002).

15. People v. Ambrocio, et al., G.R. No. 140267, June 29, 2004 at 18-19, citing People
v. Cabical, G.R. No. 148519, May 29, 2003, 403 SCRA 268.

16. People v. Pateo and Batuto, G.R. No. 156786, June 3, 2004 at 6.

17. People v . Escote, et al., G.R. No. 151834, June 8, 2004 at 6, citing People v .
Conde, 386 Phil. 859 (2000).

18. People v . Marcelo, G.R. No. 140385, April 14, 2004 at 15, citing People v . Oco,
G.R. Nos. 137370-71, September 25, 2003, 412 SCRA 190.
 FIRST DIVISION

[G.R. No. 163866. July 29, 2005.]

ISIDRO OLIVAREZ, petitioner, vs. COURT OF APPEALS and

PEOPLE OF THE PHILIPPINES, respondents.

Fortun Narvasa & Salazar for petitioner.

The Solicitor General for respondents.

SYLLABUS

1. CRIMINAL LAW; RA 7610 ON CHILD PROTECTION AGAINST ABUSES; SEXUAL

ABUSE; ELEMENTS; LASCIVIOUS CONDUCT; DEFINED. The elements of sexual
abuse under Section 5, Article III of R.A. 7610 are as follows: 1. The accused
commits the act of sexual intercourse or lascivious conduct. 2. The said act is
performed with a child exploited in prostitution or subjected to other sexual abuse.
3. The child, whether male or female, is below 18 years of age. Section 32, Article
XIII, of the Implementing Rules and Regulations of R.A. 7610 denes lascivious
conduct as follows: [T]he intentional touching, either directly or through clothing, of
the genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of any
object into the genitalia, anus or mouth, of any person, whether of the same or
opposite sex, with an intent to abuse, humiliate, harass, degrade, or arouse or
gratify the sexual desire of any person, bestiality, masturbation, lascivious
exhibition of the genitals or pubic area of a person. The rst element obtains in this
case. It was established beyond reasonable doubt that petitioner kissed Cristina and
touched her breasts with lewd designs as inferred from the nature of the acts
themselves and the environmental circumstances.

2. ID.; ID.; ID.; ID.; ID.; PERFORMED WITH CHILD SUBJECTED TO OTHER
SEXUAL ABUSE; ELUCIDATED. The second element, i.e., that the act is performed
with a child exploited in prostitution or subjected to other sexual abuse, is likewise
present. As succinctly explained in People v. Larin: A child is deemed exploited in
prostitution or subjected to other sexual abuse, when the child indulges in sexual
intercourse or lascivious conduct (a) for money, prot, or any other considerations,
or (b) under the coercion or inuence of any adult, syndicate or group. It must be
noted that the law covers not only a situation in which a child is abused for prot,
but also one in which a child, through coercion or intimidation, engages in lascivious
conduct. We reiterated this ruling in Amployo v. People. Thus, a child is deemed
subjected to other sexual abuse when the child indulges in lascivious conduct under
the coercion or inuence of any adult. In this case, Cristina was sexually abused
because she was coerced or intimidated by petitioner to indulge in a lascivious
conduct. Furthermore, it is inconsequential that the sexual abuse occurred only
once. As expressly provided in Section 3 (b) of R.A. 7610, the abuse may be habitual
or not. It must be observed that Article III of R.A. 7610 is captioned as "Child
Prostitution and Other Sexual Abuse" because Congress really intended to cover a
situation where the minor may have been coerced or intimidated into lascivious
conduct, not necessarily for money or prot, the law covers not only child
prostitution but also other forms of sexual abuse.

3. REMEDIAL LAW; CRIMINAL PROCEDURE; COMPLAINT/INFORMATION;

SUFFICIENCY; CASE AT BAR. Petitioner makes much of the failure to allege in the
information that Cristina was a child below 18 years of age at the time the oense
was committed. In all criminal prosecutions, the accused is entitled to be informed
of the nature and cause of the accusation against him. A complaint is sucient if it
states the name of the accused; the designation of the oense given by the statute;
the acts or omissions complained of as constituting the oense; the name of the
oended party; the approximate date of the commission of the oense; and the
place where the oense was committed. The complaint or information shall state
the designation of the oense given by the statute, aver the acts or omissions
constituting the oense, and specify its qualifying and aggravating circumstances. If
there is no designation of the oense, reference shall be made to the section or
subsection of the statute punishing it. The acts or omissions complained of as
constituting the oense 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 sucient to enable a person of common understanding to
know what oense is being charged as well as its qualifying and aggravating
circumstances and for the court to pronounce judgment. However, while it is
necessary to allege the essential elements of the crime in the information, the
failure to do so is not an irremediable vice. When the complaint or the resolution by
the public prosecutor which contain the missing averments is attached to the
information and form part of the records, the defect in the latter is eectively cured,
and the accused cannot successfully invoke the defense that his right to be informed
is violated. In the instant case, the missing averment in the information is supplied
by the Complaint. Petitioner was furnished a copy of the Complaint which was
mentioned in the information, hence he was adequately informed of the age of the
complainant. The information merely states that petitioner was being charged for
the crime of "violation of R.A. 7610" without citing the specic sections alleged to
have been violated by petitioner. Nonetheless, we do not nd this omission
sucient to invalidate the information. The character of the crime is not
determined by the caption or preamble of the information nor from the specication
of the provision of law alleged to have been violated, they may be conclusions of
law, but by the recital of the ultimate facts and circumstances in the complaint or
information. The suciency of an information is not negated by an incomplete or
defective designation of the crime in the caption or other parts of the information
but by the narration of facts and circumstances which adequately depicts a crime
and suciently apprise the accused of the nature and cause of the accusation
against him. True, the information herein may not refer to specic Section/s of R.A.
7610 alleged to have been violated by the petitioner, but it is all too evident that
the body of the information contains an averment of the acts alleged to have been
performed by petitioner which unmistakably refers to acts punishable under Section
5 of R.A. 7610. As to which Section of R.A. 7610 is being violated by petitioner is
inconsequential. What is determinative of the oense is the recital of the ultimate
facts and circumstances in the complaint or information.

4. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; FINDINGS OF TRIAL

COURT, RESPECTED. The prosecution has proved beyond reasonable doubt that
petitioner committed acts of sexual abuse against Cristina. The trial court found
Cristina's testimony to be clear, candid, and straightforward. Her testimony, given
in a categorical, straightforward, spontaneous and candid manner, is worthy of faith
and belief. In the face of the accusations against him, petitioner could only interpose
uncorroborated alibi and denial. Denial, like alibi, is an inherently weak defense and
cannot prevail over the positive and categorical identication provided by
eyewitnesses. Not only did Cristina identify the petitioner as her assailant but no ill-
motive was adduced why she would impute against him so grave a charge. This
Court will not interfere with the trial court's assessment of the credibility of
witnesses, absent any indication that some material fact was overlooked or a grave
abuse of discretion committed. None of the exceptions obtain in the instant case.

5. CRIMINAL LAW; RA 7610; SEXUAL ABUSE; CIVIL DAMAGES. In addition to

moral damages of P15,000.00, a ne in the amount of P15,000.00 should likewise
be imposed pursuant to our ruling in Amployo v. People.

CARPIO, J., dissenting:

1. CRIMINAL LAW; ACTS OF LASCIVIOUSNESS; ELEMENTS. The essential

elements of acts of lasciviousness under Article 336 of the RPC are as follows: 1.
That the oender commits any act of lasciviousness or lewdness; 2. That the act of
lasciviousness is committed against a person of either sex; 3. That it is done under
any of the following circumstances: a. By using force or intimidation, . . . .

2. ID.; RA 7610, SEC. 5, ON SEXUAL ABUSE; ELEMENTS. The elements of

sexual abuse under Section 5, Article III of R.A. 7610 are as follows: 1. The accused
commits the acts of sexual or lascivious conduct. 2. The said act is performed with a
child exploited in prostitution or subjected to other sexual abuse. 3. The child,
whether male or female, is below 18 years of age.

3. ID.; ID.; ID.; FIRST AND SECOND ELEMENTS; DISCUSSED. The majority
opinion correctly distinguishes the rst element from the second element. The rst
element refers to the acts of lasciviousness that the accused performs on the child.
The second element refers to the special circumstance that the "child (is) exploited
in prostitution or subjected to other sexual abuse." This special circumstance already
exists when the accused performs acts of lasciviousness on the child. In short, the
acts of lasciviousness that the accused performs on the child are separate and
dierent from the child's exploitation in prostitution or subjection to "other sexual
abuse."

4. ID.; ID.; ID.; OTHER SEXUAL ABUSE; ELUCIDATED. Under Article 336 of the
RPC, the accused performs the acts of lasciviousness on a child who is neither
exploited in prostitution nor subjected to "other sexual abuse." In contrast, under
Section 5 of RA 7610, the accused performs the acts of lasciviousness on a child who
is either exploited in prostitution or subjected to "other sexual abuse." Section 5 of
RA 7610 deals with a situation where the acts of lasciviousness are committed on a
child already either exploited in prostitution or subjected to "other sexual abuse."
Clearly, the acts of lasciviousness committed on the child are separate and distinct
from the other circumstance that the child is either exploited in prostitution or
subjected to "other sexual abuse." The phrase "other sexual abuse" refers to any
sexual abuse other than the acts of lasciviousness complained of and other than
exploitation in prostitution. Such "other sexual abuse" could fall under acts
encompassing "[O]bscene publications and indecent shows" mentioned in Section 3
(d) (3) of RA 7610. Thus, a child performing in indecent shows in a cabaret is a child
subjected to "other sexual abuse." A customer in such cabaret who commits acts of
lasciviousness on the child is liable for violation of Section 5 of RA 7610. Also, a
photographer who commits acts of lasciviousness on a child he is shooting for an
obscene publication is liable for violation of Section 5 of RA 7610. The penalty for
such acts of lasciviousness is more severe than if the acts are committed without
the special circumstances of the child's subjection to "other sexual abuse." Section 5
of RA 7610 penalizes those "who commit the act of sexual intercourse or lascivious
conduct with a child exploited in prostitution or subjected to other sexual abuse."
The act of sexual intercourse or lascivious conduct may be committed on a child
already exploited in prostitution, whether the child engages in prostitution for prot
or someone coerces her into prostitution against her will. The element of prot or
coercion refers to the practice of prostitution, not to the sexual intercourse or
lascivious conduct committed by the accused. A person may commit acts of
lasciviousness even on a prostitute, as when a person mashes the private parts of a
prostitute against her will. The sexual intercourse or act of lasciviousness may be
committed on a child already subjected to other sexual abuse. The child may be
subjected to such other sexual abuse for prot or through coercion, as when the
child is employed or coerced into pornography. A complete stranger, through force or
intimidation, may commit acts of lasciviousness on such child in violation of Section
5 of RA 7610. The phrase "other sexual abuse" plainly means that the child is
already subjected to sexual abuse other than the crime for which the accused is
charged under Section 5 of RA 7610. The "other sexual abuse" is an element
separate and distinct from the acts of lasciviousness that the accused performs on
the child. The majority opinion admits this when it enumerates the second element
of the crime under Section 5 of RA 7610 that the lascivious "act is performed
with a child . . . subjected to other sexual abuse."

5. REMEDIAL LAW; CRIMINAL PROCEDURE; SUFFICIENCY OF INFORMATION; ALL

ESSENTIAL ELEMENTS OF THE CRIME MUST BE ALLEGED; CASE AT BAR. The
fundamental rule is that the Information must allege all the elements of the crime.
Sections 6 and 9, Rule 110 of the Rules of Court mandate that the Information
must allege all essential elements of the crime. Section 6 of Rule 110 provides that
the "information is sucient if it states . . . the acts or omissions complained of as
constituting the oense." Section 9 of Rule 110 further provides that the "acts or
omissions complained of as constituting the oense . . . must be stated in ordinary
and concise language." In the present case, since the Information failed to allege the
second essential element of the crime as dened in Section 5 of RA 7610, Olivarez
cannot be convicted for violation of RA 7610. The Information is void to charge
Olivarez for violation of Section 5 of RA 7610. Otherwise, Olivarez would be
deprived of his constitutional right to be informed of the charge against him.
However, the Information is sucient to charge Olivarez for violation of Article 336
of the RPC. The special circumstance that the child is "subjected to other sexual
abuse" is not an element in the crime of acts of lasciviousness under Article 336 of
the RPC. Thus, the Information remains valid to charge Olivarez with acts of
lasciviousness, not under Section 5 of RA 7610, but under Article 336 of the RPC.

DECISION

YNARES-SANTIAGO, J : p

For review is the Court of Appeals' decision in CA-G.R. CR No. 22860 1 which
armed the judgment 2 rendered by the Regional Trial Court of San Pedro, Laguna,
Branch 93, 3 in Crim. Case No. 0505-SPL nding petitioner Isidro Olivarez guilty of
violating Section 5, Republic Act No. 7610; 4 and its resolution denying
reconsideration thereof. 5

The case originated from a complaint led by the oended party with the Municipal
Trial Court of San Pedro, Laguna which was the basis upon which an information for
violation of R.A. 7610 was filed against Isidro Olivarez, to wit:

The undersigned 4th Assistant Provincial Prosecution (sic) of Laguna upon a

sworn complaint led by the private complainant, CRISTINA B. ELITIONG,
hereby accuses ISIDRO OLIVAREZ of the crime of "VIOLATION OF RA
7610", committed as follows:

That on or about July 20, 1997, in the Municipality of San

Pedro, Province of Laguna, within the jurisdiction of this
Honorable Court, said accused actuated by lewd design did then
and there wilfully, unlawfully and feloniously by means of force
and intimidation commit acts of lasciviousness on the person of
one CRISTINA B. ELITIONG, by touching her breasts and kissing
her lips, against her will, to her damage and prejudice.

CONTRARY TO LAW. 6

The established facts of this case are as follows:

. . . The oended party Cristina Elitiong was a 16-year old high school
student who with her brothers were employed by the accused, 64-year old
Isidro Olivarez, in the making of sampaguita garlands. For one year she had
been reporting for work during weekends at the residence of the accused.
Within the compound and at about three armslength from the main door of
the house was her workplace.

At about 11:30 o'clock in the morning of July 20, 1997, Cristina, her two
 brothers Macoy and Dodong, and one named Liezel were at their work when
the accused who was near the main door called for her. She dutifully
approached him. The accused asked her if she had told her mother that he
gave her money, and when she said that she did not, he embraced her and
held her breast. The workers were facing the street so that the two were
not seen. He pulled her to the kitchen and, closing the kitchen door, kissed
her on the lips. She pushed him away and went back to her station. Her
brother Macoy saw her crying when she came out of the house. She did not
say a word, but went to the faucet and washed her face.

The oended party continued to nish the garlands she was working on,
and waited until the afternoon for her wages. When she arrived at her
home, she rst told her mother that she no longer wished to go back. When
pressed for a reason, she said basta po mama ayaw ko ng magtuhog .
Finally, she told her mother what happened.

Aurora Elitiong, the mother, accompanied the oended party to the San
Vicente Barangay Hall on July 26 to report the incident and give a statement.
Days later, Cristina gave another statement to the local police.

In the defense version, the oended party and her brothers had slept
overnight in the house of the accused. When Isidro woke up in the early
morning to relieve himself, he saw the girl sleeping on the sofa. He
admonished her to join her brothers in the basement. He went back to his
room and slept until 8 A.M. Two hours later, at 10 A.M., he left for the Caltex
Service Station which was only a ve minute ride from his home by tricycle.
His daughter Analee Olivarez was staying in another house in the compound
and attended a morning mass. When she returned at 10:30 A.M., she no
longer saw her father. Maritess Buen, the laundrywoman, who was washing
clothes outside the kitchen, saw the accused earlier. By 10 A.M., when she
entered the house, he already left. He returned by noontime.

The accused testied that he was at the Caltex station for two and a half
hours waiting for the shipment of owers from Pampanga. The goods
arrived at 12:15 P.M. He left shortly thereafter and passed by the market
before going home. He arrived at 12:30 P.M. The next several days were
uneventful for him until his laundrywoman Maritess told him that there was a
complaint against him at the barangay oce. A meeting took place between
him and the girl's family in the presence of the barangay authorities. The
girl's mother was demanding P30,000 for the settlement of the case, but he
refused to cave in and told a barangay ocial Jaime Ramos that he would
rather see his accusers in court than give a centavo because he did not
commit the crime. 7

The trial court found Olivarez guilty of violating Section 5 of R.A. 7610 and
sentenced him to suer an indeterminate penalty of imprisonment from eight (8)
years and one (1) day of prision mayor as minimum to seventeen (17) years, four
(4) months and one (1) day of reclusion temporal as maximum, to indemnify the
minor Cristina Elitiong in the amount of P15,000.00 as moral damages and to pay
the costs.
On appeal, the decision of the trial court 8 was armed by the Court of Appeals. The
motion for reconsideration 9 led by the accused was denied. 10 Hence, this petition
for review 11 on the following grounds:

I. The Honorable Court of Appeals committed grave abuse of discretion in

not holding that the essential elements in Violation of Section 5, Article
III of Republic Act 7610, which are age of the oended party and that
she is an abused or exploited child as dened in the law, not having
been alleged in the Information, petitioner/accused cannot be found
guilty of said offense and must be acquitted.

II. The Honorable Court of Appeals erred and committed grave abuse of
discretion in holding that the Information charging petitioner/accused
of Violation of Section 5, Republic Act 7610, but failing to allege the
essential elements of said oense, had substantially complied with the
requirements of due process for the accused.

III. The Honorable Court of Appeals erred and gravely abused its
discretion in not reversing the judgment of the trial court convicting
the accused/petitioner and sentencing him to suer the penalty of
imprisonment for alleged Violation of Section 5, Republic Act 7610,
which was not alleged in the Information. 12

Petitioner alleges that his right to be informed of the nature and cause of the
accusation against him was violated for failure to allege in the information the
essential elements of the offense for which he is being charged.

Section 5, Article III of R.A. 7610 states:

SEC. 5. Child Prostitution and Other Sexual Abuse. Children, whether

male or female, who for money, prot, or any other consideration or due to
the coercion or inuence of any adult, syndicate or group, indulge in sexual
intercourse or lascivious conduct, are deemed to be children exploited in
prostitution and other sexual abuse. aCHcIE

The penalty of reclusion temporal in its medium period to reclusion perpetua

shall be imposed upon the following:

xxx xxx xxx

(b) Those who commit the act of sexual intercourse or lascivious

conduct with a child exploited in prostitution or subjected to other sexual
abuse: Provided, That when the victim is under twelve (12) years of age, the
perpetrators shall be prosecuted under Article 335, paragraph 3, for rape
and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for
rape or lascivious conduct, as the case may be: Provided, That the penalty
for lascivious conduct when the victim is under twelve (12) years of age shall
be reclusion temporal in its medium period; . . ." (Italics supplied)

The elements of sexual abuse under Section 5, Article III of R.A. 7610 are as follows:
 1. The accused commits the act of sexual intercourse or lascivious
conduct.

2. The said act is performed with a child exploited in prostitution or

subjected to other sexual abuse.

3. The child, whether male or female, is below 18 years of age. 13

Section 32, Article XIII, of the Implementing Rules and Regulations of R.A. 7610
defines lascivious conduct as follows:

[T]he intentional touching, either directly or through clothing, of

the genitalia, anus, groin, breast, inner thigh, or buttocks, or the
introduction of any object into the genitalia, anus or mouth, of any person,
whether of the same or opposite sex, with an intent to abuse, humiliate,
harass, degrade, or arouse or gratify the sexual desire of any person,
bestiality, masturbation, lascivious exhibition of the genitals or pubic area of
a person. 14 (Emphasis supplied)

The rst element obtains in this case. It was established beyond reasonable doubt
that petitioner kissed Cristina and touched her breasts with lewd designs as inferred
from the nature of the acts themselves and the environmental circumstances. 15

The second element, i.e., that the act is performed with a child exploited in
prostitution or subjected to other sexual abuse, is likewise present. As succinctly
explained in People v. Larin: 16

A child is deemed exploited in prostitution or subjected to other

sexual abuse, when the child indulges in sexual intercourse or
lascivious conduct (a) for money, prot, or any other consideration; or (b)
under the coercion or influence of any adult, syndicate or group. . .
.

It must be noted that the law covers not only a situation in which a child is
abused for prot, but also one in which a child, through coercion or
intimidation, engages in lascivious conduct. (Emphasis supplied)

We reiterated this ruling in Amployo v. People: 17

. . . As we observed in People v. Larin , Section 5 of Rep. Act No. 7610 does

not merely cover a situation of a child being abused for prot, but also one
in which a child engages in any lascivious conduct through coercion or
intimidation. . .

Thus, a child is deemed subjected to other sexual abuse when the child indulges in
lascivious conduct under the coercion or inuence of any adult. In this case, Cristina
was sexually abused because she was coerced or intimidated by petitioner to
indulge in a lascivious conduct. Furthermore, it is inconsequential that the sexual
abuse occurred only once. As expressly provided in Section 3 (b) of R.A. 7610, the
abuse may be habitual or not. It must be observed that Article III of R.A. 7610 is
captioned as "Child Prostitution and Other Sexual Abuse" because Congress really
intended to cover a situation where the minor may have been coerced or
intimidated into lascivious conduct, not necessarily for money or prot. The law
covers not only child prostitution but also other forms of sexual abuse. This is clear
from the deliberations of the Senate:

Senator Angara. I refer to line 9, 'who for money or prot.' I would like to
amend this, Mr. President, to cover a situation where the minor may have
been coerced or intimidated into this lascivious conduct, not necessarily for
money or prot, so that we can cover those situations and not leave
loophole in this section.CSHEca

The proposal I have is something like this: WHO FOR MONEY, PROFIT, OR
ANY OTHER CONSIDERATION OR DUE TO THE COERCION OR INFLUENCE
OF ANY ADULT, SYNDICATE OR GROUP INDULGE, et cetera.

The President Pro Tempore . I see. That would mean also changing the
subtitle of Section 4. Will it no longer be child prostitution?

Senator Angara. No, no. Not necessarily, Mr. President, because we are still
talking of the child who is being misused for sexual purposes either for
money or for consideration. What I am trying to cover is the other
consideration. Because, here, it is limited only to the child being abused or
misused for sexual purposes, only for money or profit.

I am contending, Mr. President, that there may be situations where the child
may not have been used for profit or . . .

The President Pro Tempore. So, it is no longer prostitution. Because the

essence of prostitution is profit.

Senator Angara. Well, the Gentleman is right. Maybe the heading ought to be
expanded. But, still, the President will agree that that is a form or manner of
child abuse.

The President Pro Tempore. What does the Sponsor say? Will the Gentleman
kindly restate the amendment?

ANGARA AMENDMENT

Senator Angara. The new section will read something like this, Mr. President:
MINORS, WHETHER MALE OR FEMALE, WHO FOR MONEY, PROFIT, OR ANY
OTHER CONSIDERATION OR INFLUENCE OF ANY ADULT, SYNDICATE OR
GROUP INDULGE IN SEXUAL INTERCOURSE, et cetera.

Senator Lina. It is accepted, Mr. President.

The President Pro Tempore . Is there any objection? [Silence] Hearing none,
the amendment is approved.

How about the title, "Child Prostitution," shall we change that too?
 Senator Angara. Yes, Mr. President, to cover the expanded scope.

The President Pro Tempore . Is that not what we would call probable 'child
abuse'?

Senator Angara. Yes, Mr. President.

The President Pro Tempore . Subject to rewording. Is there any objection?

[Silence] Hearing none, the amendment is approved. . . . . (Italicization
supplied) 18

Petitioner makes much of the failure to allege in the information that Cristina was a
child below 18 years of age at the time the oense was committed. He insists that
the Court of Appeals mistakenly relied on the case of People v. Rosare 19 because
unlike in Rosare, he had no personal knowledge of Cristina's age, which he claims
was not proven beyond reasonable doubt.

In all criminal prosecutions, the accused is entitled to be informed of the nature and
cause of the accusation against him. 20 A complaint is sucient if it states the name
of the accused; the designation of the oense given by the statute; the acts or
omissions complained of as constituting the oense; the name of the oended
party; the approximate date of the commission of the oense; and the place where
the offense was committed. 21

The complaint or information shall state the designation of the oense given by the
statute, aver the acts or omissions constituting the oense, and specify its
qualifying and aggravating circumstances. If there is no designation of the oense,
reference shall be made to the section or subsection of the statute punishing it. 22
The acts or omissions complained of as constituting the oense 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 sucient to enable
a person of common understanding to know what oense is being charged as well
as its qualifying and aggravating circumstances and for the court to pronounce
judgment. 23

In the present case, the Court of Appeals found the information to be sucient.
Relying on the principle laid down in People v. Rosare, it held:

Before us is an information for violation of RA 7610 that, as in Rosare, fails

to mention an indispensable element of the oense, the age of the oended
party, but makes allusion to another document, the sworn complaint of the
oended party, and declares it to be the basis upon which the information
was led. This instrument is the complaint led by the oended party with
the Municipal Trial Court of San Pedro, Laguna in which she stated that she
was 16 years old at the time of the oense. It forms part of the initial
records of the case and comes before the posting of bail and entry of the
plea of not guilty before the RTC. It appears that after the charge was led
with the MTC, and as the preliminary investigation went underway, the
accused led a manifestation stating that he had led a counter-adavit to
the charge and reserved the right to le a motion to quash the information if
 it was led. The MTC found probable cause against him and elevated the
records to the provincial prosecutor for filing of the information.
IDSaEA

A complaint is under the Rules one of the two charging instruments for the
oense of which the accused was tried and convicted here. While the
criminal action was instituted by the complaint of the oended party, the
information signed only by the scal ushered in the formal trial process. But
both are accusations in writing against the accused and serve the purpose
of enabling him to take the necessary legal steps for his defense. What is
important is that the information states that the accused is being charged of
an oense under RA 7610 based on the complaint of the oended party, to
which the accused had adequately responded. Under these conditions, the
accused was fully apprised of the accusation against him. The purpose and
objective of the constitutional mandate are discharged and satised. The
accused may not be said to be taken by surprise by the failure of the
information to state the age of the oended party, when he had received
the initiatory complaint where he was told how old the oended party was.
24

We agree with the ruling of the Court of Appeals. In People v. Rosare , the
information did not allege that the victim was a mental retardate which is an
essential element of the crime of statutory rape. This Court however sustained the
trial court's judgment of conviction holding that the resolution of the investigating
prosecutor which formed the basis of the information, a copy of which is attached
thereto, stated that the oended party is suering from mental retardation. It ruled
that there was substantial compliance with the mandate that an accused be
informed of the nature of the charge against him. Thus:

Appellant contends that he cannot be convicted of statutory rape because

the fact that the victim was a mental retardate was never alleged in the
information and, absent this element, the acts charged negate the
commission of the offense for which he was convicted by the lower court.

Pursuant to Section 8, Rule 112 of the Rules of Court, we have decided to

motu proprio take cognizance of the resolution issued by the investigating
prosecutor in I.S. No. 92-0197 dated June 2, 1992, which formed the basis
of and a copy of which was attached to the information for rape led against
herein appellant. Therein, it is clearly stated that the oended party is
suering from mental retardation. We hold, therefore, that this should be
deemed a substantial compliance with the constitutional mandate that an
accused be informed of the nature of the charge against him. . . . 25

I n People v. Villamor , 26 the information failed to allege the age of the oended
party but since a copy of the order issued by the investigating judge was attached in
the record of the preliminary investigation clearly stating that the complainant was
nine years old, it was held that there was substantial compliance with the mandate
to inform the accused of the nature of the accusation. It was also declared that the
defense cannot invoke the element of surprise as to deprive it of the opportunity to
suitably prepare for the accused's defense, thus:
 . . . Furthermore, even if the information led did not allege that the
complainant was nine years old, there was substantial compliance with the
constitutional mandate that an accused be informed of the nature of the
charge against him when the Order issued by the investigating judge, a copy
of which was attached in the record of the preliminary investigation, clearly
stated that the complainant was nine years old. Consequently, the defense
cannot invoke the element of surprise as to deprive it of the opportunity to
suitably prepare for the accused's defense. 27

I n People v. Galido , 28 the information for rape failed to allege the element of force
or intimidation. The Court ruled that this omission is not fatal since the complaint
specically charged the accused with three counts of rape committed by means of
force and intimidation. Thus:

Appellant avers that because the Informations on which he was arraigned

and convicted did not allege the element of force or intimidation, he was
deprived of his constitutional right to be informed of the nature and cause of
the accusation against him. He insists that such failure was a fatal defect
that rendered the Informations void. CEaDAc

As a rule, the accused cannot be convicted of an oense, unless it is clearly

charged in the complaint or information. Otherwise, their constitutional right
to be informed of the nature and cause of the accusation against them
would be violated.

In the present case, appellant correctly pointed out that the element of
"force or intimidation" should have been expressly alleged in the
Informations. This omission is not fatal, however, because the Complaint
specically accused him of three counts of rape committed by means of
force and intimidation. . . 29

The same ground was adopted in People v. Mendez 30 which involved an

information for rape that failed to allege force or intimidation. We ruled therein that
it was not a fatal omission because it was stated in the complaint that accused
Rosendo raped Virginita "by means of force."

I n People v. Torellos , 31 the Court treated the information for rape which failed to
allege force and intimidation as merely defective and that the deciency was cured
by the failure of the accused to assail the insuciency of the allegations in the
Information and by competent evidence presented during trial.

Thus, while it is necessary to allege the essential elements of the crime in the
information, the failure to do so is not an irremediable vice. When the complaint or
the resolution by the public prosecutor which contain the missing averments is
attached to the information and form part of the records, the defect in the latter is
eectively cured, and the accused cannot successfully invoke the defense that his
right to be informed is violated.
In the instant case, the missing averment in the information is supplied by the
Complaint which reads in full:

COMPLAINT

The undersigned complainant, accuses ISIDRO OLIVAREZ, of the crime of

VIOLATION OF RA 7610, committed as follows:

That on or about 11:30 A.M. of July 20, 1997 at Brgy. San Vicente, San
Pedro, Laguna, Philippines and within the jurisdiction of this Honorable Court
the said accused with lewd design did then and there willfully, unlawfully and
feloniously commit an act of lasciviousness against one CRISTINA ELITIONG
Y BALDONO, 16 years old, by kissing and touching her private parts and
embracing her against her will.

CONTRARY TO LAW. 32

Petitioner was furnished a copy of the Complaint which was mentioned in the
information, hence he was adequately informed of the age of the complainant. The
prosecution has also established the minority of the oended party through
competent evidence. Cristina testied that she was 16 years old and a certication
from the Oce of the Local Registrar of San Pedro, Laguna was presented showing
that she was born on October 17, 1980. 33 The third element of sexual abuse is
therefore present.

The information merely states that petitioner was being charged for the crime of
"violation of R.A. 7610" without citing the specic sections alleged to have been
violated by petitioner. Nonetheless, we do not nd this omission sucient to
invalidate the information. The character of the crime is not determined by the
caption or preamble of the information nor from the specication of the provision of
law alleged to have been violated, they may be conclusions of law, but by the recital
of the ultimate facts and circumstances in the complaint or information. 34 The
suciency of an information is not negated by an incomplete or defective
designation of the crime in the caption or other parts of the information but by the
narration of facts and circumstances which adequately depicts a crime and
suciently apprise the accused of the nature and cause of the accusation against
him.

True, the information herein may not refer to specic section/s of R.A. 7610 alleged
to have been violated by the petitioner, but it is all to evident that the body of the
information contains an averment of the acts alleged to have been performed by
petitioner which unmistakably refers to acts punishable under Section 5 of R.A.
7610. As to which section of R.A. 7610 is being violated by petitioner is
inconsequential. What is determinative of the oense is the recital of the ultimate
facts and circumstances in the complaint or information. DEcSaI

The prosecution has proved beyond reasonable doubt that petitioner committed acts
of sexual abuse against Cristina. The trial court found Cristina's testimony to be
clear, candid, and straightforward. 35 Her testimony, given in a categorical,
straightforward, spontaneous and candid manner, is worthy of faith and belief. 36 In
the face of the accusations against him, petitioner could only interpose
uncorroborated alibi and denial. Denial, like alibi, is an inherently weak defense and
cannot prevail over the positive and categorical identication provided by
eyewitnesses. 37 Not only did Cristina identify the petitioner as her assailant but no
ill-motive was adduced why she would impute against him so grave a charge. This
Court will not interfere with the trial court's assessment of the credibility of
witnesses, absent any indication that some material fact was overlooked or a grave
abuse of discretion committed. None of the exceptions obtain in the instant case. 38

In addition to moral damages, a ne in the amount of P15,000.00 should likewise

be imposed pursuant to our ruling in Amployo v. People: 39

It does not end there. In People v. Abadies , and with respect specically to
lascivious conduct amounting to child abuse under Section 5(b) of Rep. Act
No. 7610, we imposed a ne of P30,000 for each count of lascivious
conduct in addition to the award of moral damages on the justication that

It will be noted that Section 5, Article II of Republic Act No.

7610 provides for the penalty of imprisonment. Nevertheless,
Section 31(f), Article XII (Common Penal Provisions) thereof
allows the imposition of a ne subject to the discretion of the
court, provided that the same is to be administered as a cash
fund by the Department of Social Welfare and Development and
disbursed for the rehabilitation of each child victim, or any
immediate member of his family if the latter is the perpetrator of
the oense. This provision is in accord with Article 39 of the
Convention on the Rights of the Child, to which the Philippines
became a party on August 21, 1990, which stresses the duty of
states parties to ensure the physical and psychological recovery
and social reintegration of abused and exploited children in an
environment which fosters their self-respect and human dignity.

With the case of Abadies as guidepost, we impose a ne of Fifteen

Thousand Pesos (P15,000.00) on petitioner.

WHEREFORE, the petition is DENIED. The decision of the Court of Appeals dated
January 9, 2004 in CA-G.R. CR No. 22860 and its resolution dated June 4, 2004, are
AFFIRMED with MODIFICATION. In addition to the award of P15,000.00 as moral
damages, petitioner Isidro Olivarez is also ordered to pay a ne in the amount of
P15,000.00.

SO ORDERED.

Quisumbing and Azcuna, JJ., concur.

Davide, Jr., C.J., I join Mr. Justice Carpio in his dissent.

Carpio, J., see dissenting opinion.

 Separate Opinions
CARPIO, J., dissenting:

I dissent from the majority opinion.

I vote to declare petitioner Isidro Olivarez ("Olivarez") guilty of acts of lasciviousness

under Article 336 of the Revised Penal Code ("RPC"), and not of acts of
lasciviousness under Section 5 of Republic Act No. 7610 ("RA 7610"). 1 The penalty
under Article 336 of the RPC is prision correccional, while the penalty under Section
5 of RA 7610 is reclusion temporal in its medium period to reclusion perpetua. ACTISE

I anchor my dissent on two grounds. First, the Information only charged Olivarez
with acts of lasciviousness under Article 336 of the RPC and not with acts of
lasciviousness under Section 5 of RA 7610. Second, the prosecution proved that
Olivarez committed acts of lasciviousness under Article 336 of the RPC and not acts
of lasciviousness under Section 5 of RA 7610.

Article 336 of the RPC provides as follows:

Art. 336. Acts of lasciviousness . Any person who shall commit any act
of lasciviousness upon other persons of either sex, under any of the
circumstances mentioned in the preceding article, shall be punished by
prision correccional.

The essential elements of acts of lasciviousness under Article 336 of the RPC are as
follows:

1. That the offender commits any act of lasciviousness or lewdness;

2. That the act of lasciviousness is committed against a person of either

sex;

3. That it is done under any of the following circumstances:

a. By using force or intimidation; or

b. When the oended party is deprived of reason or otherwise

unconscious; [or]

c. By means of fraudulent machination or grave abuse of authority;

or

d. When the oended party is under 12 years of age or is

demented. 2 (Emphasis supplied)

On the other hand, Section 5 of RA 7610 provides as follows:

SEC. 5. Child Prostitution and Other Sexual Abuse. Children,

whether male or female, who for money, prot, or any other
consideration or due to the coercion or inuence of any adult,
 syndicate or group, indulge in sexual intercourse or lascivious
conduct, are deemed to be children exploited in prostitution and
other sexual abuse.

The penalty of reclusion temporal in its medium period to reclusion perpetua

shall be imposed upon the following:

(a) Those who engage in or promote, facilitate or induce child prostitution

which include, but are not limited to, the following:

(1) Acting as a procurer of a child prostitute;

(2) Inducing a person to be a client of a child prostitute by means

of written or oral advertisements or other similar means;

(3) Taking advantage of inuence or relationship to procure a child

as prostitute;

(4) Threatening or using violence towards a child to engage him as

a prostitute; or

(5) Giving monetary consideration, goods or other pecuniary

benefit to a child with the intent to engage such child in prostitution.

(b) Those who commit the act of sexual intercourse or

lascivious conduct with a child exploited in prostitution or subject
to other sexual abuse: Provided, That when the victims is under twelve
(12) years of age, the perpetrators shall be prosecuted under Article 335,
paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the
Revised Penal Code, for rape or lascivious conduct, as the case may be:
Provided, That the penalty for lascivious conduct when the victim is under
twelve (12) years of age shall be reclusion temporal in its medium period;
and ADEaHT

(c) Those who derive profit or advantage therefrom, whether as manager

or owner of the establishment where the prostitution takes place, or of the
sauna, disco, bar, resort, place of entertainment or establishment serving as
a cover or which engages in prostitution in addition to the activity for which
the license has been issued to said establishment. (Emphasis supplied)

The majority opinion correctly enumerates the essential elements of the crime of
acts of lasciviousness under Section 5 of RA 7610. The majority opinion states:

The elements of sexual abuse under Section 5, Article III of R.A. 7610 are as
follows:

1. The accused commits the acts of sexual intercourse or lascivious

conduct.

2. The said act is performed with a child exploited in prostitution

 or subjected to other sexual abuse.

3. The child, whether male or female, is below 18 years of age. 3

(Emphasis supplied)

The majority opinion correctly distinguishes the rst element from the second
element. The rst element refers to the acts of lasciviousness that the accused
performs on the child. The second element refers to the special circumstance that
the "child (is) exploited in prostitution or subjected to other sexual abuse." This
special circumstance already exists when the accused performs acts of
lasciviousness on the child. In short, the acts of lasciviousness that the accused
performs on the child are separate and dierent from the child's exploitation in
prostitution or subjection to "other sexual abuse."

Under Article 336 of the RPC, the accused performs the acts of lasciviousness on a
child who is neither exploited in prostitution nor subjected to "other sexual
abuse." In contrast, under Section 5 of RA 7610, the accused performs the acts of
lasciviousness on a child who is either exploited in prostitution or subjected to
"other sexual abuse."

Section 5 of RA 7610 deals with a situation where the acts of lasciviousness are
committed on a child already either exploited in prostitution or subjected to "other
sexual abuse." Clearly, the acts of lasciviousness committed on the child are
separate and distinct from the other circumstance that the child is either
exploited in prostitution or subjected to "other sexual abuse."

The phrase "other sexual abuse" refers to any sexual abuse other than the acts of
lasciviousness complained of and other than exploitation in prostitution. Such
"other sexual abuse" could fall under acts encompassing "[O]bscene publications
and indecent shows" mentioned in Section 3(d)(3) of RA 7610. 4

Thus, a child performing in indecent shows in a cabaret is a child subjected to "other

sexual abuse." A customer in such cabaret who commits acts of lasciviousness on
the child is liable for violation of Section 5 of RA 7610. Also, a photographer who
commits acts of lasciviousness on a child he is shooting for an obscene publication is
liable for violation of Section 5 of RA 7610. The penalty for such acts of
lasciviousness is more severe than if the acts are committed without the special
circumstances of the child's subjection to "other sexual abuse."

Section 5 of RA 7610 penalizes those "who commit the act of sexual intercourse or
lascivious conduct with a child exploited in prostitution or subjected to other sexual
abuse." The act of sexual intercourse or lascivious conduct may be committed on a
child already exploited in prostitution, whether the child engages in prostitution
for prot or someone coerces her into prostitution against her will. The element of
prot or coercion refers to the practice of prostitution, not to the sexual intercourse
or lascivious conduct committed by the accused. A person may commit acts of
lasciviousness even on a prostitute, as when a person mashes the private parts of a
prostitute against her will.
ECaAHS
The sexual intercourse or act of lasciviousness may be committed on a child
already subjected to other sexual abuse. The child may be subjected to such
other sexual abuse for prot or through coercion, as when the child is employed or
coerced into pornography. A complete stranger, through force or intimidation, may
commit acts of lasciviousness on such child in violation of Section 5 of RA 7610.

The phrase "other sexual abuse" plainly means that the child is already subjected
to sexual abuse other than the crime for which the accused is charged under
Section 5 of RA 7610. The "other sexual abuse" is an element separate and
distinct from the acts of lasciviousness that the accused performs on the child. The
majority opinion admits this when it enumerates the second element of the crime
under Section 5 of RA 7610 that the lascivious "act is performed with a child . . .
subjected to other sexual abuse."

The Information filed against Olivarez for violation of RA 7610 states as follows:

The undersigned 4th Assistant Provincial Prosecution (sic) of Laguna upon a

sworn complaint led by the private complainant, CRISTINA B. ELITIONG,
hereby accuses ISIDRO OLIVAREZ of the crime of "VIOLATION OF RA
7610", committed as follows:

That on or about July 20, 1997, in the Municipality of San Pedro, Province of
Laguna, within the jurisdiction of this Honorable Court, said accused
actuated by lewd design did then and there wilfully, unlawfully and feloniously
by means of force and intimidation commit acts of lasciviousness on the
person of one CRISTINA B. ELITIONG, by touching her breasts and kissing
her lips, against her will, to her damage and prejudice.

CONTRARY TO LAW.

There is nothing in the Information that alleges that the child Cristina B. Elitiong
("Cristina") was exploited in prostitution or subjected to "other sexual abuse"
when the accused performed the acts of lasciviousness on her.

Even the Complaint signed by Cristina does not state that she was a child exploited
in prostitution or subjected to "other sexual abuse." The Complaint alleges as
follows:

COMPLAINT

The undersigned complainant, accuses ISIDRO OLIVAREZ, of the crime of

VIOLATION OF RA 7610, committed as follows:

That on or about 11:30 A.M. of July 20, 1997 at Brgy. San Vicente, San
Pedro, Laguna, Philippines and within the jurisdiction of this Honorable Court
the said accused with lewd design did then and there wilfully, unlawfully and
feloniously commit an act of lasciviousness against one CRISTINA ELITIONG
Y BALDONO, 16 years old, by kissing and touching her private parts and
embracing her against her will.

CONTRARY TO LAW.
 Even assuming that the Complaint can cure the defects in the Information, the
Complaint does not state that Cristina is a child subjected to "other sexual
abuse."

In short, the Information does not specically allege the second essential element of
the crime of acts of lasciviousness under Section 5 of RA 7610. The majority opinion
states that the second element of the crime is that "[T]he said act is performed
with a child exploited in prostitution or subjected to other sexual abuse."
This special circumstance, warranting the imposition of a much heavier penalty for
acts of lasciviousness, is not alleged either in the Information or in the Complaint.
cSaADC

The fundamental rule is that the Information must allege all the elements of the
crime. Sections 6 5 and 9, 6 Rule 110 of the Rules of Court mandate that the
Information must allege all essential elements of the crime. Section 6 of Rule 110
provides that the "information is sucient if it states . . . the acts or omissions
complained of as constituting the oense." Section 9 of Rule 110 further provides
that the "acts or omissions complained of as constituting the oense . . . must be
stated in ordinary and concise language."

Thus, in Balitaan v. Court of First Instance of Batangas, 7 the Court held:

It is fundamental that every element of which the oense is

composed must be alleged in the complaint or information. What
facts and circumstances are necessary to be stated must be determined by
reference to the definitions and the essentials of the specific crimes.

xxx xxx xxx

The main purpose of requiring the various elements of a crime to be set out
in an information is to enable the accused to suitably prepare his defense.
He is presumed to have no independent knowledge of the facts that
constitute the offense. (Emphasis supplied)

The Court has reiterated this ruling in subsequent cases. 8

In the present case, since the Information failed to allege the second essential
element of the crime as dened in Section 5 of RA 7610, Olivarez cannot be
convicted for violation of RA 7610. The Information is void to charge Olivarez for
violation of Section 5 of RA 7610. Otherwise, Olivarez's would be deprived of his
constitutional right to be informed of the charge against him.

However, the Information is sucient to charge Olivarez for violation of Article 336
of the RPC. The special circumstance that the child is "subjected to other sexual
abuse" is not an element in the crime of acts of lasciviousness under Article 336 of
the RPC. Thus, the Information remains valid to charge Olivarez with acts of
lasciviousness, not under Section 5 of RA 7610, but under Article 336 of the RPC.

During trial, the prosecution proved that Olivarez used force on Cristina when
Olivarez "pulled her to the kitchen and, closing the kitchen door, kissed her on the
lips." 9 Olivarez also "embraced (Cristina) and held her breast." 10 Clearly, Olivarez
committed acts of lasciviousness using force on the complainant. This is sucient to
convict Olivarez for violation of Article 336 of the RPC.

The records, however, are bereft of any shred of evidence showing that Cristina was
"subjected to other sexual abuse" when Olivarez committed the acts of
lasciviousness on her. Olivarez employed Cristina, with her two brothers, to stitch
sampaguita flowers. This was gainful and decent employment.

If a child works as a nude model for an obscene magazine, then any act of
lasciviousness committed on such a child would warrant imposition of the heavier
penalty under Section 5 of RA 7610. However, the Information must allege the
special circumstance that the child is "subjected to other sexual abuse," which
circumstance the prosecution must prove during trial.

In the present case, the special circumstance that the complainant was "subjected
to other sexual abuse" was neither alleged in the Information nor proved during
the trial.
AEScHa

Accordingly, I vote to convict Olivarez for violation of Article 336 of the RPC and to
impose on him the penalty of prision correccional in its medium period, there being
no aggravating or mitigating circumstances.

Footnotes

1. Rollo, pp. 7-16. Penned by Associate Justice Mario L. Guaria III and concurred in
by Associate Justices Martin S. Villarama, Jr. and Jose C. Reyes, Jr.

2. CA Rollo, pp. 12-16.

3. Penned by Judge Francisco Dizon Pao.

4. AN ACT PROVIDING FOR STRONGER DETERRENCE AND SPECIAL PROTECTION

AGAINST CHILD ABUSE, EXPLOITATION AND DISCRIMINATION, PROVIDING
PENALTIES FOR ITS VIOLATION, AND FOR OTHER PURPOSES.

5. Rollo, p. 18.

6. Original Records, p. 1.

7, Rollo, pp. 11-13.

8. CA Rollo, pp. 12-16.

9. Id. at 206-213.

10. Rollo, p. 18.

11. Id. at 20-34.

12. Id. at 24.

13. Amployo v. People, G.R. No. 157718, 26 April 2005.

14. People v. Bon , G.R. No. 149199, 28 January 2003, 396 SCRA 506, 514-515;
Amployo v. People, supra.

15. Amployo v. People, supra.

16. 357 Phil. 987, 998 (1998).

17. Supra.

18. People v. Larin, supra at 998-999.

19. 332 Phil. 435 (1996).

20. Section 1(b), Rule 115, The Revised Rules of Criminal Procedure.

21. Section 6, Rule 110, id.

22. Section 8, id.

23. Section 9, id.

24. Rollo, pp. 9-10.

25. People v. Rosare, supra at 442-443.

26. 357 Phil. 940 (1998).

27. Id. at 949.

28. G.R. Nos. 148689-92, 30 March 2004, 426 SCRA 502.

29. Id. at 510-511.

30. 390 Phil. 449 (2000).

31. G.R. No. 143084, 1 April 2003, 400 SCRA 243.

32. Original Records, p. 6.

33. Id. at 60.

34. Reyes v. Camilon, et al., G.R. No. 46198, 20 December 1990, 192 SCRA 445, 453.

35. TSN, 20 October 1997, pp. 6-7.

36. People v. Gecomo, 324 Phil. 297 (1996).

37. People v. Zamora, 343 Phil. 574, 590 (1997).

38. People v. Dadles , 343 Phil. 916, 929 (1997).

39. Supra.

CARPIO, J., dissenting:

1. Special Protection of Children Against Child Abuse, Exploitation and Discrimination

Act.

2. Luis B. Reyes, Revised Penal Code, Book Two, p. 862 (2001).

3. Majority Opinion, p. 5.

4. Section 3 of RA 7610 provides as follows: "SEC. 3. Definition of Terms .

(a) "Children" refers to person below eighteen (18) years of age or those over but
are unable to fully take care of themselves or protect themselves from abuse,
neglect, cruelty, exploitation or discrimination because of a physical or mental
disability or condition;

(b) "Child abuse" refers to the maltreatment, whether habitual or not, of the child
which includes any of the following:

(1) Psychological and physical abuse, neglect, cruelty, sexual abuse and emotional
maltreatment;

(2) Any act by deeds or words which debases, degrades or demeans the intrinsic
worth and dignity of a child as a human being;

(3) Unreasonable deprivation of his basic needs for survival, such as food and
shelter; or

(4) Failure to immediately give medical treatment to an injured child resulting in

serious impairment of his growth and development or in his permanent incapacity
or death.

(c) "Circumstances which gravely threaten or endanger the survival and normal
development of children include, but are not limited to, the following:

(1) Being in a community where there is armed conict or being aected by

armed conflict-related activities;

(2) Working under conditions hazardous to life, safety and morals which unduly
interfere with their normal development;

(3) Living in or fending for themselves in the streets of urban or rural areas
without the care of parents or a guardian or any adult supervision needed for their
welfare;

(4) Being a member of a indigenous cultural community and/or living under

conditions of extreme poverty or in an area which is underdeveloped and/or lacks
or has inadequate access to basic services needed for a good quality of life;

(5) Being a victim of a man-made or natural disaster or calamity; or

 (6) Circumstances analogous to those abovestated which endanger the life,
safety or normal development of children.

(d) "Comprehensive program against child abuse, exploitation and discrimination"

refers to the coordinated program of services and facilities to protect children
against:

(1) Child Prostitution and other sexual abuse;

(2) Child trafficking;

(3) Obscene publications and indecent shows;

(4) Other acts of abuses; and

(5) Circumstances which threaten or endanger the survival and normal

development of children. (Emphasis supplied)

5. Section 6 of Rule 110 provides as follows: "Suciency of complaint or information .

A complaint or information is sucient if it states the name of the accused; the
designation of the oense by the statute; the acts or omissions complained of as
constituting the oense; the name of the oended party; the approximate time of
the commission of the offense, and the place wherein the offense was committed.

When an oense is committed by more than one person, all of them shall be
included in the complaint or information."

6. Section 9 of Rule 110 provides as follows: "Cause of accusation. The acts or

omissions complained of as constituting the oense must be stated in ordinary
and concise language without repetition, not necessarily in the terms of the statute
dening the oense, but in such form as is sucient to enable a person of
common understanding to know what oense is intended to be charged and
enable the court to pronounce proper judgment."

7. 201 Phil. 311 (1982). Reported as Balitaan v. CFI of Batangas, Branch II, et al.

8. Garcia v. People , G.R. No. 144785, 11 September 2003, 410 SCRA 582; People v.
Bernas , 427 Phil. 649 (2002); Bautista v. Court of Appeals , 413 Phil. 159 (2001);
People v. Larena, 368 Phil. 614 (1999); People v. Ramos , 357 Phil. 559 (1998).

9. Rollo, p. 11.

10. Ibid.
 FIRST DIVISION

[G.R. No. 154363. September 13, 2005.]

JOEL P. LIBUIT , petitioner, vs. PEOPLE OF THE PHILIPPINES,

respondent.

Siguion Reyna Montecillo & Ongsiako and Monina V. Vierneza-Dejon for

petitioner.

The Solicitor General for respondent.

SYLLABUS

1. CRIMINAL LAW; ESTAFA WITH ABUSE OF CONFIDENCE; ELEMENTS. The

elements of estafa under Article 315 1 (b) of the Revised Penal Code are as follows:
(1) that money, goods, or other personal properties are received by the oender in
trust, or on commission, or for administration, or under any other obligation
involving the duty to make delivery of, or to return, the same; (2) that there is a
misappropriation or conversion of such money or property by the oender or denial
on his part of such receipt; (3) that such misappropriation or conversion or denial is
to the prejudice of another; and, (4) that there is a demand made by the oended
party on the offender.

2. REMEDIAL LAW; CIVIL PROCEDURE; APPEAL; PETITION FOR REVIEW; ONLY

QUESTIONS OF LAW MAY BE RAISED THEREIN. Given the circumstances on
record, we nd the petitioner's acts inexcusable and his testimony on the witness
stand unconvincing. Petitioner's allegations now are nothing but a rehash of
arguments he unsuccessfully raised before the trial court and the Court of Appeals.
It must be stressed that except for the petitioner's claim that he was deprived of his
constitutional right to counsel, all the grounds raised by him now involve factual
issues already passed upon twice below, and are inappropriate in a petition for
review under Rule 45, which allows only questions of law to be raised.

3. ID.; EVIDENCE; FACTUAL FINDINGS OF THE APPELLATE COURT GENERALLY

CONCLUSIVE AND CARRY EVEN MORE WEIGHT WHEN SAID COURT AFFIRMS THE
FINDINGS OF THE TRIAL COURT. Factual ndings and conclusions of the trial
court and the Court of Appeals are entitled to great weight and respect, and will not
be disturbed on review by us, in the absence of any clear showing that the lower
courts overlooked certain facts or circumstances which would substantially aect
the disposition of the case. The jurisdiction of this Court over cases elevated from
the Court of Appeals is limited to reviewing or revising errors of law ascribed to the
Court of Appeals. The factual findings of the appellate court generally are conclusive,
and carry even more weight when said court arms the ndings of the trial court,
absent any showing that the ndings are totally devoid of support in the record or
that they are so glaringly erroneous as to constitute grave abuse of discretion.
4. POLITICAL LAW; CONSTITUTIONAL LAW; RIGHTS OF THE ACCUSED; RIGHT TO
COUNSEL; COURT IS NOT DUTY BOUND TO APPOINT A COUNSEL DE OFICIO FOR
THE ACCUSED WHERE THE LATTER HAS PROCEEDED TO ARRAIGNMENT AND THEN
TRIAL WITH A COUNSEL OF HIS OWN CHOICE; CASE AT BAR. The duty of the
court to appoint a counsel de ocio for the accused who has no counsel of choice and
desires to employ the services of one is mandatory only at the time of arraignment.
No such duty exists where the accused has proceeded to arraignment and then trial
with a counsel of his own choice. Worth noting, when the time for the presentation
of evidence for the defense arrived, and the defendant appeared by himself alone,
the absence of his counsel was inexcusable. In the present case, since the petitioner
was represented by counsel de parte at the arraignment and trial, the trial court
could not be deemed duty-bound to appoint a counsel de ocio for the continuation
of his cross-examination. Indeed, after his initial cross-examination, the trial court
granted the petitioner's motion to postpone, giving him sucient time to engage
the services of another counsel. The failure of Atty. Jose Dimayuga, his newly hired
lawyer, to appear at the subsequent hearings without reason was sucient legal
basis for the trial court to order the striking from the records of his direct testimony,
and thereafter render judgment upon the evidence already presented. In fact, the
repeated failure to appear of defendant's counsel at the trial may even be taken as
a deliberate attempt to delay the court's proceedings.

5. ID.; ID.; ID.; ID.; DISCRETION OF THE TRIAL COURT TO APPOINT A COUNSEL
DE OFICIO FOR THE ACCUSED WILL NOT BE INTERFERED WITH ABSENT GRAVE
ABUSE OF DISCRETION. At the most, the appointment of a counsel de ocio in a
situation like the present case would be discretionary with the trial court, which
discretion will not be interfered with in the absence of grave abuse. This Court is
convinced that the trial court had been liberal in granting postponements asked by
the petitioner himself. We think that such liberality removes any doubt that its
order was tainted with grave abuse of discretion.

DECISION

QUISUMBING, J : p

Before us is the petition for review on certiorari led by Joel P. Libuit, seeking to
reverse and set aside the Decision 1 dated March 11, 2002, of the Court of Appeals
in CA-G.R. CR No. 22766. The assailed decision armed the petitioner's conviction
by the Regional Trial Court of Lipa City, Branch 85, for estafa as dened and
penalized under Article 315 1(b) of the Revised Penal Code. 2

The Amended Information filed against the petitioner reads as follows:

That during the period from May 1993 to August 31, 1994, at Lipa City,
Philippines and within the jurisdiction of this Honorable Court, the above-
named accused wilfully, unlawfully and feloniously committed the crime of
estafa in the manner, to wit: sometime in May 1993, Domingo del Mundo
 delivered and brought his car, described as follows: Make & Type Chevy
2dr. HT: Plate No. EDD-725, Motor No. 18R-9597750, Chassis No.
1Y17H4W151340 valued at P60,000.00, to the motor shop located at Brgy.
Sico, Lipa City, and owned and/or operated by Joel Libuit and Julius Libuit for
repair of its damaged parts, which car was received by Jose Bautista, then
mechanic in the said motor shop, but accused Joel Libuit, once in possession
of the said car, and far from complying with his obl[i]gation or duty to make
the appropriate repairs and to return or deliver the said car as properly
repaired to Domingo del Mundo, with intent to defraud and with abuse of
condence, wilfully, unlawfully and feloniously misappropriated, converted
and/or misapplied the said car to his own personal use and benet and
despite repeated demands to return the said car to the owner thereof,
accused refused and failed to do so, to the damage and prejudice of
Domingo del Mundo, owner of the said car, in the amount of P60,000.00,
Philippine Currency.

Contrary to law. 3

On arraignment, the petitioner, assisted by counsel, pleaded not guilty.

It appears from the prosecution evidence that sometime in May 1993, the private
complainant, Domingo del Mundo, brought his car for repair at the Paeng
Motorworks operated by the petitioner. The car was received by Jose Bautista, a
mechanic, in the presence of the petitioner who assured the private complainant
that it would be safe in his motor shop.

When private complainant del Mundo returned to the motor shop in January 1994,
he saw his car by the roadside while the engine was inside the shop. Bautista
explained that the engine was pulled out because it also needed repairs.
Nevertheless, the petitioner and Bautista assured him that they would nish the
repair work and deliver the car to del Mundo's house after two weeks. However, the
petitioner failed to deliver the car to the owner. Private complainant gave him
another two weeks to nish the repairs. Thereafter, the private complainant
returned to the motor shop and found that his car was already missing. He reported
the matter to the police, who discovered that the petitioner had sold the car's
differential and cylinder head, while the engine could no longer be found.

The petitioner (Libuit) testied on direct examination. However, his defense

counsel, Atty. Glenn P. Mendoza of De Jesus Linatoc and Associates, withdrew from
the case after his initial cross-examination. 4 On motion of the petitioner, the
continuation of his cross-examination was reset to give him time to engage the
services of another counsel. 5 The petitioner eventually secured the services of Atty.
Jose Dimayuga. ACIDSc

At the subsequent hearings on October 13, 1997, and November 26, 1997, Atty.
Dimayuga failed to appear despite notices. On motion of the prosecution, the trial
court issued an Order dated November 26, 1997, 6 striking from the records the
petitioner's direct testimony and declaring the case submitted for decision on the
basis of the evidence already on record.
After further proceedings, the trial court rendered judgment on January 27, 1999,
nding herein petitioner guilty beyond reasonable doubt of the crime of estafa. The
dispositive portion of the RTC decision reads:

WHEREFORE, the foregoing premises considered, judgment is hereby

rendered nding the accused JOEL LIBUIT guilty beyond reasonable doubt of
the crime of Estafa, as the same is dened and penalized under Article 315
1(b) of the Revised Penal Code, and, with the application of the
Indeterminate Sentence Law, the Court sentences him to suer the penalty
of imprisonment ranging from Eight (8) years and Eight (8) months of
Prision Mayor as minimum to Fourteen (14) years and Ten (10) months of
Reclusion Temporal as maximum. The accused is moreover ordered to pay
Domingo del Mundo the amount of P60,000.00 representing the value of the
car, plus costs of suit.

SO ORDERED. 7

On appeal, the Court of Appeals armed in toto the decision of the trial court. The
appellate court gave credence to the trial court's ndings that the elements of the
crime of estafa with abuse of condence were present. The private complainant's
car was received at the motor shop operated by the petitioner who was under the
obligation to repair and deliver it to the private complainant's house. Although it
was Bautista, the petitioner's mechanic, who personally received the car, the fact
remained that the petitioner was then present and even assured the private
complainant that the car would be safe in his motor shop. Like the trial court, the
Court of Appeals ruled that the private complainant would not have returned to the
petitioner's motor shop after the two-week extension were it not precisely to
demand for the return of his car.

The Court of Appeals likewise held that the trial court never deprived the petitioner
of his right to counsel as he was represented by a counsel de parte, Atty. Glenn P.
Mendoza. When said counsel withdrew, the trial court allowed the resetting of the
petitioner's cross-examination to give him time to engage the services of another
counsel. It ordered the striking of his testimony from the records only after his new
counsel failed to appear at the subsequent hearings. SECcAI

Before us, the petitioner raises now the following issues:

WHETHER THE COURT OF APPEALS GRAVELY ERRED WHEN IT DID NOT

CONSIDER THAT THE PROSECUTION FAILED TO PROVE THAT THE SUBJECT
VEHICLE WAS ENTRUSTED TO THE PETITIONER-ACCUSED.

II

WHETHER THE COURT OF APPEALS GRAVELY ERRED WHEN IT AFFIRMED

THE TRIAL COURT'S FINDING OF GUILT AGAINST THE PETITIONER-
ACCUSED DESPITE THE ABSENCE OF FORMAL DEMAND FOR THE
PETITIONER-ACCUSED TO FULFILL THE TRUST OR TO RETURN THE THING
 RECEIVED.

III

WHETHER THE COURT OF APPEALS GRAVELY ERRED WHEN IT RULED THAT

THE TRIAL COURT NEVER DEPRIVED THE PETITIONER-ACCUSED OF HIS
CONSTITUTIONAL RIGHT TO COUNSEL. 8

Simply put: the issues for our resolution are: (1) Was there sucient evidence to
sustain the petitioner's conviction? (2) Was petitioner deprived of his right to
counsel?

Petitioner argues on the rst issue, that the Court of Appeals committed a reversible
error in convicting him without sucient evidence of his guilt. He contends that the
trial court gravely misapprehended the facts in nding that the elements of estafa
with abuse of condence, under Article 315 1(b) of the Revised Penal Code, were
present. He stresses that the car was not entrusted to him and that he had no duty
to deliver it to the private complainant. He adds that the private complainant did
not demand for the return of his car.

The elements of estafa under Article 315 1(b) of the Revised Penal Code are as
follows: (1) that money, goods, or other personal properties are received by the
oender in trust, or on commission, or for administration, or under any other
obligation involving the duty to make delivery of, or to return, the same; (2) that
there is a misappropriation or conversion of such money or property by the oender
or denial on his part of such receipt; (3) that such misappropriation or conversion or
denial is to the prejudice of another; and, (4) that there is a demand made by the
offended party on the offender. 9

Based on the evidence, we entertain no doubt that petitioner operated the Paeng
Motorworks. Private complainant Domingo del Mundo categorically identied the
petitioner as the owner. 10 There is no denying that Jose Bautista, to whom the car
was entrusted, was a mechanic in petitioner's shop. Petitioner could not disclaim
responsibility for the return of the car simply because it was his mechanic who
received it. In fact, when the car was left with Bautista, the petitioner was present,
and petitioner even assured the private complainant that it would be safe in his
motor shop. 11

Even if we give credence to petitioner's allegation that at the time the car was left,
it was Bautista who operated the motor shop by virtue of a verbal lease with his
mother, he is still liable for estafa. As alleged by the petitioner himself, Bautista
abandoned the motor shop on October 1993. Yet, he never denied the fact that
when the private complainant returned to the motor shop in January 1994, the car
and its engine were still there. By then, the petitioner should have been put on
notice as to the car's ownership. Notwithstanding this information, however,
petitioner still sold its differential and cylinder head.

On the issue of demand, it is our view that demand was properly made when the
private complainant returned to the motor shop after giving the petitioner a two-
week extension to complete the car's repair. When the private complainant went to
the motor shop on January 1994, the petitioner promised to deliver the car after
two weeks. When he failed in his promise, petitioner was given by the private
complainant another two-week extension. It was only when the car was still not
delivered to the private complainant, that he went back to the motor shop again,
and finally discovered that his car was missing there.cCTIaS

Given the circumstances on record, we nd the petitioner's acts inexcusable and his
testimony on the witness stand unconvincing. Petitioner's allegations now are
nothing but a rehash of arguments he unsuccessfully raised before the trial court
and the Court of Appeals. It must be stressed that except for the petitioner's claim
that he was deprived of his constitutional right to counsel, all the grounds raised by
him now involve factual issues already passed upon twice below, and are
inappropriate in a petition for review under Rule 45, which allows only questions of
law to be raised.

Factual ndings and conclusions of the trial court and the Court of Appeals are
entitled to great weight and respect, and will not be disturbed on review by us, in
the absence of any clear showing that the lower courts overlooked certain facts or
circumstances which would substantially aect the disposition of the case. The
jurisdiction of this Court over cases elevated from the Court of Appeals is limited to
reviewing or revising errors of law ascribed to the Court of Appeals. The factual
ndings of the appellate court generally are conclusive, and carry even more weight
when said court arms the ndings of the trial court, absent any showing that the
ndings are totally devoid of support in the record or that they are so glaringly
erroneous as to constitute grave abuse of discretion. 12

Now, in this case, the only question of law properly raised is whether the petitioner
was deprived of his constitutional right to counsel. In his Reply, 13 petitioner
contends that the trial court should have appointed a counsel de ocio when his
counsel consistently failed to appear for his cross-examination.

The duty of the court to appoint a counsel de ocio for the accused who has no
counsel of choice and desires to employ the services of one is mandatory only at the
time of arraignment. No such duty exists where the accused has proceeded to
arraignment and then trial with a counsel of his own choice. Worth noting, when
the time for the presentation of evidence for the defense arrived, and the defendant
appeared by himself alone, the absence of his counsel was inexcusable. 14

In the present case, since the petitioner was represented by counsel de parte at the
arraignment and trial, the trial court could not be deemed duty-bound to appoint a
counsel de ocio for the continuation of his cross-examination. Indeed, after his
initial cross-examination, the trial court granted the petitioner's motion to
postpone, giving him sucient time to engage the services of another counsel. The
failure of Atty. Jose Dimayuga, his newly hired lawyer, to appear at the subsequent
hearings without reason was sucient legal basis for the trial court to order the
striking from the records of his direct testimony, and thereafter render judgment
upon the evidence already presented. In fact, the repeated failure to appear of
defendant's counsel at the trial may even be taken as a deliberate attempt to delay
the court's proceedings.

At the most, the appointment of a counsel de ocio in a situation like the present
case would be discretionary with the trial court, which discretion will not be
interfered with in the absence of grave abuse. 15 This Court is convinced that the
trial court had been liberal in granting postponements asked by the petitioner
himself. We think that such liberality removes any doubt that its order was tainted
with grave abuse of discretion. cTDaEH

WHEREFORE, the instant petition is DENIED. The decision dated March 11, 2002, of
the Court of Appeals upholding the decision of the Regional Trial Court of Lipa City,
Branch 85, in Criminal Case No. 972-94 is hereby AFFIRMED.

No pronouncement as to costs.

SO ORDERED.

Davide, Jr., C.J., Ynares-Santiago, Carpio and Azcuna, JJ., concur.

Footnotes

1. Rollo, pp. 21-31. Penned by Associate Justice Cancio C. Garcia (now a member of
this Court), with Associate Justices Marina L. Buzon, and Alicia L. Santos
concurring.

2. Art. 315. Swindling (estafa). Any person who shall defraud another by any of the
means mentioned hereinbelow shall be punished by:

xxx xxx xxx

1. With unfaithfulness or abuse of confidence, namely:

xxx xxx xxx

(b) By misappropriating or converting, to the prejudice of another, money, goods or any

other personal property received by the oender in trust, or on commission, or
for administration, or under any other obligation involving the duty to make
delivery of, or to return the same, even though such obligation be totally or
partially guaranteed by a bond; or by denying having received such money, goods,
or other property;

xxx xxx xxx

3. Records, pp. 38-39.

4. Id. at 175.

5. Id. at 177-178.

6. Id. at 180.
7. Id. at 200-201.

8. Rollo, pp. 7-8.

9. Filadams Pharma, Inc. v. Court of Appeals , G.R. No. 132422, 30 March 2004, 426
SCRA 460, 467-468.

10. TSN, 25 September 1995, p. 4 (Domingo del Mundo).

11. Id. at 8.

12. Ty v. People, G.R. No. 149275, 27 September 2004, 439 SCRA 220, 228-229; See
Lim v. People, G.R. No. 143231, 26 October 2001, 368 SCRA 436, 441.

13. Rollo, pp. 68-71.

14. JOAQUIN G. BERNAS, S.J., THE 1987 CONSTITUTION OF THE REPUBLIC OF THE
PHILIPPINES: A COMMENTARY 502 (2003 ed.); See Sayson v. People, No. L-51745,
28 October 1988, 166 SCRA 680, 690-691; People v. Serzo, Jr. , G.R. No. 118435,
20 June 1997, 274 SCRA 553, 567.

15. Sayson v. People, id. at 691.

 EN BANC

[A.M. No. CA-05-20-P. September 9, 2005.]

(Formerly OCA IPI No. 05-81-CA-P)

ASSOCIATE JUSTICE DELILAH VIDALLON-MAGTOLIS, COURT OF

APPEALS, complainant, vs. CIELITO M. SALUD, CLERK IV, COURT
OF APPEALS, respondent.

Rosero Law Office for respondent.

SYLLABUS

1. POLITICAL LAW; ADMINISTRATIVE LAW; SUPREME COURT; ADMINISTRATIVE

SUPERVISION OVER COURT PERSONNEL; INEFFICIENCY; PRESENT WHERE A
COURT EMPLOYEE DID NOT IMMEDIATELY RETURN TO HIS STATION AFTER
SERVING THE COPY OF THE RESOLUTION AND ORDER OF RELEASE TO THE PRISON
DIRECTOR; CASE AT BAR. On the charge of ineciency, the respondent is clearly
administratively liable. After serving Lagua's copy of the resolution and order of
release to the prison Director, he should have immediately returned to his station or
served the other resolutions and documents for personal service. As an ocer of the
court, the respondent plays an essential part in the administration of justice. He is
required to live up to the stringent standards of his oce, and his conduct must, at
all times, be above reproach and suspicion. He must steer clear of any act which
would tend to undermine his integrity, or erode somehow the people's faith and
trust in the courts. As the respondent himself admitted, he stayed on until 2:30 p.m.
without any valid reason, despite the fact that he knew he still had to serve several
orders and resolutions. As pointed out by the Investigating Ocer, "ineciency and
incompetence in the performance of ocial duties" is classied as a grave oense,
and is punishable by suspension for six months and one day to one year.

2. ID.; ID.; ADMINISTRATIVE PROCEEDINGS; THE QUANTUM OF PROOF

REQUIRED TO ESTABLISH MALFEASANCE IS ONLY SUBSTANTIAL EVIDENCE.
Indeed, the complainant in administrative proceedings has the burden of proving
the allegations in the complaint by substantial evidence. If a court employee is to be
disciplined for a grave oense, the evidence against him must be competent and
derived from direct knowledge; as such, charges based on mere suspicion and
speculation cannot be given credence. Thus, if the complainant fails to substantiate
a claim of corruption and bribery, relying on mere conjectures and suppositions, the
administrative complaint must be dismissed for lack of merit. However, in
administrative proceedings, the quantum of proof required to establish malfeasance
is not proof beyond reasonable doubt but substantial evidence, i.e., that amount of
relevant evidence that a reasonable mind might accept as adequate to support a
conclusion, is required. The ndings of investigating magistrates on the credibility of
witnesses are given great weight by reason of their unmatched opportunity to see
the deportment of the witnesses as they testified.

3. ID.; ID.; CREDIBILITY OF WITNESSES; TESTIMONY OF A WITNESS MUST BE

CONSIDERED IN ITS ENTIRETY AND NOT IN TRUNCATED PARTS. To determine
the credibility and probative weight of the testimony of a witness, such testimony
must be considered in its entirety and not in truncated parts. To determine which
contradicting statements of a witness is to prevail as to the truth, the other
evidence received must be considered.

4. ID.; ID.; ADMISSIBILITY; TEXT MESSAGES SHALL BE PROVEN BY THE

TESTIMONY OF A PERSON WHO WAS A PARTY TO THE SAME OR HAS PERSONAL
KNOWLEDGE THEREOF. The respondent's claim that the admission of the text
messages as evidence against him constitutes a violation of his right to privacy is
unavailing. Text messages have been classied as "ephemeral electronic
communication" under Section 1 (k), Rule 2 of the Rules on Electronic Evidence,
and "shall be proven by the testimony of a person who was a party to the same or
has personal knowledge thereof." Any question as to the admissibility of such
messages is now moot and academic, as the respondent himself, as well as his
counsel, already admitted that he was the sender of the rst three messages on
Atty. Madarang's cell phone.

5. ID.; ID.; CREDIBILITY OF WITNESSES; THE FUNCTION OF EVALUATING IT IS

PRIMARILY LODGED IN THE INVESTIGATING JUDGE. The Investigating Ocer
also found that the respondent was "high-strung" during his testimony, and this
nding must be accorded respect. Indeed, when the issue is the credibility of
witnesses, the function of evaluating it is primarily lodged in the investigating
judge. The rule which concedes due respect, and even nality, to the assessment of
the credibility of witnesses by trial judges in civil and criminal cases where
preponderance of evidence and proof beyond reasonable doubt, respectively, are
required, applies a fortiori in administrative cases where the quantum of proof
required is only substantial evidence. The investigating judge is in a better position
to pass judgment on the credibility of witnesses, having personally heard them
when they testified, and observed their deportment and manner of testifying.

6. POLITICAL LAW; ADMINISTRATIVE LAW; CODE OF CONDUCT FOR COURT

PERSONNEL; THE CONDUCT AND BEHAVIOR OF COURT PERSONNEL MUST ALWAYS
BE BEYOND REPROACH AND CIRCUMSCRIBED WITH THE HEAVY BURDEN OF
RESPONSIBILITY. Indeed, the Court is looked upon by people with high respect, a
sacred place where litigants are heard, rights and conicts settled and justice
solemnly dispensed with. Misbehavior within or around the vicinity diminishes its
sanctity and dignity. The conduct and behavior required of every court personnel,
from the presiding judge to the lowliest clerk, must always be beyond reproach and
circumscribed with the heavy burden of responsibility. Their conduct must, at all
times, be characterized by, among other things, propriety and decorum so as to earn
and keep the public's respect and condence in the judicial service. Public service
requires the utmost integrity and strictest discipline. Thus, a public servant must
exhibit at all times the highest sense of honesty and integrity not only in the
performance of his ocial duties but in his personal and private dealings with other
people.

7. ID.; ID.; CIVIL SERVICE RULES; GROSS MISCONDUCT; ELUCIDATED. While

there is no direct evidence to suggest that he actually extorted money to "facilitate"
the issuance of the appeal bond and release order which he himself served, the
surrounding circumstances, as well as the inconsistencies in his testimony, point
towards administrative culpability. The respondent's actuations fall short of the
standard required of a public servant. He is guilty of gross or grave misconduct.
Misconduct is a transgression of some established and denite rule of action, a
forbidden act, a dereliction from duty, unlawful behavior, willful in character,
improper or wrong behavior, while "gross," has been dened as "out of all measure;
beyond allowance; agrant; shameful; such conduct as is not to be excused." Under
the Omnibus Civil Service Rules and Regulations, grave misconduct is punishable by
dismissal from the service even for the rst oense, as it is classied as a grave
oense. However, considering that the respondent has not been previously charged
nor administratively sanctioned, the Court nds that a penalty of suspension for one
year and six months will serve the purpose of disciplining the respondent.

8. ID.; ID.; COURT PERSONNEL; ANY CONDUCT WHICH TENDS TO DIMINISH THE
IMAGE OF THE JUDICIARY CANNOT BE COUNTENANCED. Court personnel, from
the lowliest employee to the clerk of court or any position lower than that of a judge
or justice, are involved in the dispensation of justice, and parties seeking redress
from the courts for grievances look upon them as part of the Judiciary. They serve as
sentinels of justice, and any act of impropriety on their part immeasurably affect the
honor and dignity of the Judiciary and the people's condence in it. Thus, any
conduct which tends to diminish the image of the Judiciary cannot be countenanced.

DECISION

CALLEJO, SR., J :p

Cielito Salud, Clerk IV, Mailing Section of the Judicial Records Division, Court of
Appeals (CA) stands charged with the following offenses:

1. Inefficiency and incompetence in the performance of official duties;

2. Conduct grossly prejudicial to the best interest of the service; and

3. Directly or indirectly having nancial and material interest in an ocial

transaction, under Section 22, paragraphs (p), (t) and (u), Rule XIV of
the Omnibus Rules Implementing the Civil Service Law. 1

The Facts

Melchor Lagua was found guilty of homicide in Criminal Case Nos. 118032-H and
118033-H before the Regional Trial Court of Pasig City, Branch 163. 2 On appeal,
the case was assigned to the Sixth Division of the Court of Appeals, docketed as CA-
G.R. CR No. 27423. Lagua, who was then detained at the Bureau of Prisons National
Penitentiary in Muntinlupa City, led a Very Urgent Petition for Bail. Finding the
petition well-taken, the appellate court issued a Resolution on October 9, 2003,
directing him to post a P200,000.00 bond.

Lagua's bond was approved in a Resolution 3 dated November 6, 2003, where the
appellate court also directed the issuance of an order of release in favor of Lagua.
The resolution was then brought to the Oce of the Division Clerk of Court, Atty.
Maria Isabel M. Pattugalan-Madarang, for promulgation.

Irma Del Rosario, Utility Worker, noticed the respondent's unusual interest in the
Lagua case. The respondent had apparently been making inquiries whether the
appellate court had already directed the issuance of an order of release in the said
case and was initially told there was none yet. Due to his persistence, the records of
the case were eventually found. 4 Atty. Madarang then directed the typing of the
Order of Release Upon Bond, 5 and to notify the mailing section that there were
orders requiring personal service. 6 At around 4:00 p.m., the respondent then went
to Atty. Madarang's oce and assisted in arranging and stapling the papers for
release. He brought the said resolutions and other papers himself to the Mailing
Section. 7

On November 7, 2003, the respondent went to the National Penitentiary to serve

the resolution and order of release in the Lagua case. The respondent left the prison
compound at around 2:30 p.m. 8

In the meantime, Atty. Madarang received a telephone call from a certain Melissa
Melchor, who introduced herself as Lagua's relative. It was about 2:00 p.m. The
caller asked her how much more they had to give to facilitate Lagua's provisional
liberty. The caller also told Atty. Madarang that they had sought the help of a
certain Rhodora Valdez of the Regional Trial Court (RTC) of Pasig, where the
criminal case originated, but were told that they still had a balance to be given to
Justice Magtolis and Atty. Madarang through the respondent. Atty. Madarang then
called the said court and asked to speak to Ms. Valdez, pretending to be Lagua's
relative.HSDIaC

What transpired thereafter is contained in Atty. Madarang's Adavit dated

December 8, 2003, as follows:

4. That upon telephone queries made with the oce of the Clerk of Court
of RTC Pasig, I learned that Rhodora Valdez is the incumbent Process
Server of RTC, [Branch] 163, Pasig City, from which the original case
against accused-appellant Lagua originated. Disguising myself as
accused-appellant Lagua's relative, I dialed [Branch] 163, RTC, Pasig
(6314273) but Rhodora Valdez did not report for work that day,
according to Baby (also known as Ester), her ocemate (who)
answered my call. She added that Rhodora Valdez has been waiting
for us (Lagua's relatives) to call. Her exact words were these: "Wala si
Rhodora. Meron lang siyang nilakad. Pero kahapon pa nya hinihintay
ang tawag nyo. May kulang pa kayo eh. Kailangan kasing i-en banc sa
 Court of Appeals ang kaso ni Lagua."

5. That I coordinated with Ms. Cecil Secarro, the Acting Chief of the
Mailing Section, to inquire if it was usual/normal for her to text her
process servers on the eld for an update of their deliveries, to which
she answered in the armative. While she was in the oce, she
texted Salud for his whereabouts and he replied, that he was on his
way back to Quezon City. That was before 4 p.m., adding that his
deliveries were ok.

6. That I got Salud's mobile phone number from Ms. Secarro and started
texting him at about the same time Ms. Secarro did. I represented
myself as Arlyn, Lagua's relative. Most of his text messages are still
stored in my mobile phone. In fact, I received one text message from
him while I was at the oce of Justice Magtolis, (the Chairman of the
6th Division and the ponente of C.R. No. 27423) in the late afternoon
of November 7, 2003 while reporting to her this incident. Those stored
in my phone are the following:

1. bkit, C rhodora to. 639204439082. Nov. 2003, 15:36:15

2. CNO KAMAGANAK AT ANONG PANGALAN MO

639204439082, 7 Nov 2003 16:14:47

3. SINO K KC NAGHIWALAY N KAMI 639204439082, 7 Nov 2003

16:40:21

4. TAWAG K S AKIN 639204439082 7 Nov 2003 17:18:47

5. NARELEASE N C MR. LAGUA. NAGKITA N B KAYO

639204439082 7 Nov 2003 19:44:52

6. Magkano b and binigay nyo sa middle nyo. Puede bang malaman

639184470111 7 Nov 2003 20:32:05

7. Gud evening. May gusto lng akong malaman. Sana alang

makaalam kahit cino. Lito 639184470111 7 Nov. 2003 19:54:20

8. Cno ang kausap n Rhodora. Pwede bang malaman

639184470111 7 Nov 2003 20:37:57

9. May landline ka. Tawagan kta bukas nang umaga

639184470111 7 Nov 2003 20:56:31

10. Wag s Court of Appeal. Txt na lang kta kung saan.

639184470111 7 Nov 2003 20:52:58

11. Gusto mo bukas nang umaga magkita tyo. 639184470111 7

Nov 2003 20:57:10

12. D ba pwede bukas tyo kita. May gusto lang ako malaman
639184470111 7 Nov 2003 21:02:41
 13. D 2ngkol kay rhodora duon sa kasama ko kaninang lalakeng
pinsan 639184470111 7 Nov 2003, 21:04:28

14. Ala po ako sa Lunes sa opis. Sa hapon po puede kyo

639184470111, 7 Nov 2003 21:07:23

15. Kay Melchor Lagua 639184470111 7 Nov 2003 21:08:19

16. Kasama ko cya kanina nang lumabas 639184470111 7

Nov. 2003 21:13:05

17. Ano m ba Melchor Lagua 639184470111 7 Nov 2003

21:15:52

18. Between 5 and 5:30 ng hapon. Bkit. 639184470111 7 Nov.

2003 21:54:24

19 3 PM PUWEDE KB 639004039082 10 Nov 2003 12:09:32

20. Kilala mo b c rhodora. Nagkita na b kayo. Ala naman problema

sa kanya. Ok naman 639184470111 7 Nov 2003, 21:57:13

21. MAGKITA N LANG TAYO 639204439082 10 Nov. 2003,

12:20:16

22. A, OK, NAGKITA N B KAYO NG KAMAGANAK MO

639204439082 10 Nov 2003 15:12:14

23. D TALAGA AKO DARATING DAHIL WALA AKONG KAILANGAN S

IYO. 639204439082 10 Nov 2003 18:36:03

7. That Salud called me up in the morning of November 8, 2003 at

around 7:33 but I purposely did not answer him. Why did he need to
call me up? CSDcTA

8. That I personally called up the Bureau of Prisons for the exact time the
Order of Release was delivered and when accused appellant Lagua
was released. I learned that the Order of Release was received at 9:15
A.M. and that Lagua was released between 5-5:30 P.M. of November
7, 2003.

9. That I was able to talk to Rhodora Valdez the following Monday,

November 10, 2003. Again, I introduced myself as Lagua's relative,
Arlyn and told her I only wanted to know how much more we had to
pay for Lagua's release. She refused to entertain me because
according to her, "Hindi ikaw ang kausap ko. Duda ako sa yo. Kung
gusto mo, puntahan mo ako dito bukas, para magkita tayo. Pero
lumabas na si Lagua. Itinawag sa akin ni Lito Salud." Then, she [hung]
up.

10. That on Tuesday, November 11, 2003, I brought Salud, accompanied

by Ms. Secarro to Justice Magtolis. Out of the confrontation, we
 discovered that Salud did not properly serve the copies of the
Resolution and Order of Release upon the accused-appellant and his
counsel, Atty. Salvador C. Quimpo of the Quimpo Dingayan-Quimpo
and Associates. He gave them to a certain Art, allegedly Lagua's
relative who he claimed approached him at the Bureau of Prisons in
the morning of November 7, 2003. He told Justice Magtolis that he
gave these documents to Art, who promised to take care of them,
even before he could deliver the copy addressed to the Director of
Prisons. He never mentioned that this Art was connected with the
oce of accused-appellant's counsel. Because of this information
from Salud himself, I did not sign the Certificate of Service, Annex "C".

11. That several days later, Salud accompanied by Ms. Secarro, came to
my oce to apologize. But before he could even say a word, he broke
down in [wails]. In between his loud cries, he uttered, "Boss, patawad
po, alang-alang sa aking mga anak." 9

On November 11, 2003, Justice Magtolis called the respondent to her oce. When
confronted, the respondent denied extorting or receiving money for Lagua's release,
or in any other case. He, however, admitted serving the copies of resolution and
order of release intended for Lagua and his counsel to Art Baluran. 10 Justice
Magtolis then called the respondent to a meeting with Clerk of Court Atty. Tessie L.
Gatmaitan, who stated that she would transfer the respondent to another oce
which has nothing to do with cases.

Justice Magtolis lodged the complaint against the respondent in a Letter dated
November 14, 2003, containing, among others, the following allegations:

The delivery of resolutions/orders to unauthorized persons and "complete

strangers" who promised to "take care thereof" ("siya na raw ang bahala")
constitutes not only neglect of duty but also conduct prejudicial to the best
interest of the service. Staying for the whole day within the vicinity of the
National Bilibid Prisons to the point of failing to fulll his other duties for the
day constitutes ineciency and incompetence in the performance of ocial
duties. On the other hand, the use of my name and that of our Division Clerk
of Court to illegally solicit nancial or material benet from parties with
pending cases before this Court is illegal per se.

In view of the foregoing, it is respectfully requested that Cielito Salud be

subjected to an administrative investigation and disciplinary action. 11

Attached to the complaint were the following documents to support the charges:

ANNEX "A" Record of the cases received by Salud on November 6, 2003

for delivery/service the following day, November 7, 2003. Please note that in
each of the 3 cases assigned to him, there are several parties/counsels to
be served.

ANNEX "B" Certicate of Service signed by Salud, attested by the Acting

 Chief of the Mailing Section and Division Clerk of Court Ma. Ramona L.
Ledesma, showing that the parties/counsel in SP-67586 were served only on
November 10, 2003 (not on November 7, 2003).

ANNEX "C" Certicate of Service for CR-27423, and corresponding

Delivery Receipts.

"C-1" Delivery Receipts for Defense Counsel Salvador Quimpo signed by

someone whose signature was identied by Salud [as] "Art" a cousin of
appellant Melchor Lagua.

"C-2" Delivery Receipt for the accused-appellant, received by the same

"Art" and not served thru the Director of Prisons.

"C-3" Delivery Receipt for the OSG, showing that it was delivered/received
by the said office on November 10, 2003, not on November 7, 2003.

"C-4" Delivery Receipt for the Director of Prisons showing receipt on

November 7, 2003.

ANNEX "D" Record of Resolutions in 3 other cases (SP-80241, SP-65404

and SP-77957) received for service by Salud on November 10, 2003. The
resolutions/processes in these 3 cases were delivered/served to the
parties/counsel on November 10, 2003 together with undelivered resolutions
left unserved/undelivered on November 7, 2003.

ANNEX "E" Certication signed by Salud showing service to

parties/counsel in SP-65404 (received by Salud on November 10, 2003) on
November 10, 2003 (same date)

ANNEX "F", "F-1" & "F-2" Delivery Receipts for parties/counsel in SP-
65404, showing service/delivery on November 10, 2003 in contrast to his
minimal delivery/services on November 7, 2003 only in Muntinlupa.

ANNEX "G" Copy of the resolution dated November 6, 2003 of the 6th
Division approving the appellant's bond and directing the issuance of an
order of release.TSIEAD

ANNEX "H" Copy of the Order of Release upon Bond, which Salud was
supposed to deliver, among others on November 7, 2003 to the defense
counsel, the appellant and the OSG. 12

In his counter-affidavit, 13 the respondent vehemently denied the charges. He never

demanded money from Lagua's relative; his name had been used by someone and
was, thus, a mere victim of the circumstances. Moreover, the fact that he
immediately released the CA order in question was clear proof that he had no
nancial interest in the transaction. His version of the events that occurred that day
is as follows:

4.1 That on November 6, 2003 at around 1:38 p.m. the Acting Chief of
the Mailing Section gave me an assignment to deliver the Writ of
 Habeas Corpus (hearing on November 26, 2003 at RTC, Zamboanga)
for CA-G.R. SP No. 80238 for delivery to NBI, PAO, Quezon City,
Muntinlupa;

4.2 That I delivered a copy of the Writ of Habeas Corpus to [the National]
Bureau of Investigation (NBI);

4.3 That while I was at the NBI, I received a text message from my boss,
requesting me to return to the oce immediately because there is
another notice of resolution coming from Atty. Ledesma which I have
to serve to Quezon City and Las Pias;

4.4 In compliance with the request, I returned to the Oce and arrived at
around 3:15 p.m.;

4.5 That when I received the resolution, I read the same and found out
that the hearing is still scheduled on December 10, 2003 at 10:30
a.m.;

4.6 That when I was about to leave to deliver the Writ of Habeas Corpus
and the Notice of Hearing to the PAO, Quezon City, my ocemate Jun
Vicencio told me to wait because Irma, the sta of Atty. Madarang
requested me to standby because I need to deliver the Order of
Release to the New Bilibid Prison, Muntinlupa;

4.7 That because of the request I waited until 4:00 p.m.;

4.8 That because its already late, I decided to go to Atty. Madarang's

oce to inquire about the Order of Release which I need to deliver to
the New Bilibid Prison, Muntinlupa;

4.9 That Atty. Madarang told me to wait a little while because the order is
about to be finished. So I waited.

4.10 That Atty. Madarang gave to me the Order of Release at 4:15 p.m.

4.11 That because I am aware that I may not reach [the] New Bilibid
Prison on time, I told Atty. Madarang that I can deliver it on November
7, 2003, early in the morning. She agreed and told me "THANK YOU"
Ikaw na ang bahala;

4.12 That I informed my boss about the Order of Release that was
assigned to me and she had it listed in our logbook. I asked my boss
[Cecil Secarro] if I can deliver the Notice of Hearing for SP 67586 and
the others on Monday if I cannot nish delivering them on November
7, 2003. She agreed but told me to be sure that the Order of Release
will be served rst and the others be served not later than Monday,
November 10, 2003. Thereafter, I went home.

4.13 That on November 7, 2003, I went straight to [the] New Bilibid

Prison and arrived there before 8:00 [a.m.] Unfortunately, all the sta
wearing white uniforms and the security guards were falling in line in
 front of the building of the New Bilibid Prison. So I could not enter the
administration office.

4.14 That while I was standing in front of the building where the
administrative oce is located, a certain ART approached me and
asked me if I am the personnel of the Court of Appeals who will deliver
the Order of Release.

4.15 That I said yes, and he told me his name and said that he is a
relative of MELCHOR LAGUA (prisoner) and is connected with the
office of Atty. [Quimpo].

4.16 That at around 9:30 [a.m.] I was able to enter the administrative
oces but because there was no sta inside I went to the
documentation oce. The sta in the documentation oce told me to
submit the Order of Release to the administrative oce. He said that
they will prepare the documents of MELCHOR LAGUA (prisoner) but
also told me that the prisoner might be released on Monday yet
because the signatories are busy attending the ongoing 98
anniversary celebration;

4.17 That I returned to the administrative oce and was able to nd Mr.
JUANITO TORRES, Administrative Ocer III, who received the copy for
the Director but refused to receive the copy of Mr. LAGUA. He told me
to wait for his staff to receive the copy of Mr. LAGUA;

4.18 That because the sta were not around, I went to the canteen to
buy softdrinks to quench my thirst;

4.19 That Mr. ART followed me in the canteen and told me to assist in the
release of Mr. LAGUA because there were no personnel attending to
the Order of Release;

4.20 That since my boss told me to insure the release of the prisoner, I
waited for my staff to arrive who will attend to the matter;

4.21 That I delivered the copy of Mr. LAGUA to the sta. But ART told
them he can receive the copy of Mr. LAGUA because he is his relative
so, the staff told me to give the copy to ART. ESCacI

4.22 That I gave the copy of the Order of Release for the accused to
ART. ART also told me that he is authorized to receive the copy for
Atty. Quimpo because he is also the representative of the law oce.
Hence, I also gave the copy for Atty. Quimpo to ART;

4.23 That I was able to nish my duty at the New Bilibid Prison at around
2:30 [p.m.] and I proceeded to Purok I, 6A Bayanan, Muntinlupa to
serve the Writ of Habeas Corpus in CA-G.R. SP No. 80238;

4.24 That because of [sic] the address of the addressee was incomplete,
I found a hard time locating the address of the addressee and when I
found Purok I, 6A, the persons thereat do not know JOEL DE LA PAZ.
 I asked for their help but nobody in the place knew JOEL DE LA PAZ;

4.25 That I left Muntinlupa late in the afternoon and due to the lack of
time I decided to deliver the other documents on the next working day
which is Monday, November 10, 2003;

4.26 That I delivered the other documents on Monday, November 10,

2003, without any problem;

4.27 That I was surprised when Atty. Madarang later on accused me that
I used her name and the name of Justice Magtolis to demand money
from Mr. LAGUA'S relative. 14

Considering the gravity of the charges, then Acting Presiding Justice Cancio C.
Garcia 15 referred the matter to Atty. Elisa B. Pilar-Longalong, Assistant Clerk of
Court, for investigation, report, and recommendation.

The Investigation

The requisite hearings were held from December 12, 2003 to August 4, 2004.

Atty. Madarang armed the contents of her Adavit 16 dated December 8, 2003.
She testied that the respondent later came to her oce along with Ms. Secarro.
Amidst his cries, he pleaded, "Boss, patawad po, alang-alang sa aking mga anak."
She replied, "Wait, wala ka namang kasalanan sa akin. Ikaw ang nagpasimuno ng
lahat ng ito." The respondent repeated, "Boss, patawad po alang alang sa aking mga
anak," and Atty. Madarang answered, " Okey lang, pinatawad na kita. Hindi naman
ako galit sa iyo." 17

Justice Magtolis testied that Atty. Madarang reported having received a telephone
call from the alleged relative of Lagua. She narrated that she gave the name "Arlyn"
to the caller, and, thereafter, exchanged text messages with the respondent. Justice
Magtolis instructed Atty. Madarang to continue communicating with the respondent
and, if possible, to see it through a possible pay-o where a National Bureau of
Investigation (NBI) agent would be asked to assist them. However, the entrapment
did not materialize. The respondent thereafter came to her oce, where he was
asked why he was unable to serve all the other papers and documents that day. 18
He also admitted that he served a copy of the resolution to the wrong person
(Baluran). Justice Magtolis also stated that she threatened to transfer the
respondent, and that the latter vehemently objected, pleaded, and cried saying,
"Huwag naman pong pa-transfer." When asked why, the respondent said that he
has children in school and something like, "Dyan po ako kumikita." 19

Another witness was Cristy Flores, convicted of three counts of estafa who served
time at the Correctional Institute for Women in Batangas City. She testied that
the respondent was introduced to her in December 1998 by a certain Crisanta
Gamil. 20 Gamil was also detained at the correctional facility; the respondent had
worked on her appeal bond papers and asked for P20,000.00 to facilitate the
issuance of the appeal bond. 21 The payment was made right in front of her, and the
respondent issued a receipt. 22 The witness also testied that Gamil told her, "O, at
least dyan mo ipalakad ang papel mo. Okay 'yan, sigurado. " 23 The respondent
visited her in May 1999, as she had asked him to x her appeal bond. During the
visit, the respondent took the pertinent documents from her. 24 The witness also
stated that she gave the respondent a partial payment of P7,000.00 25 on May 16,
1999 and he issued a receipt. 26 They then proceeded to the Documents Section
where they secured copies of the court decision, certicate of manifestation and her
picture. She made the last payment of P13,000.00 in June 13, 1999, and also issued
a receipt. The respondent was also asking for an additional payment of P15,000.00,
which she was unable to give.

Flores narrated that she introduced another detainee to the respondent,

Dalawangbayan, whom the latter was also able to "help". She stated that according
to Dalawangbayan, the respondent asked for P200,000.00. She further testied
that she knew the respondent as Joselito M. Salud, and not Cielito Salud. 27 After
the incident, she wrote a letter to Associate Justice Conrado Vasquez, Jr. to ask for
assistance regarding her appeal bond.

Atty. Salvador Quimpo, Lagua's counsel, testied that it was Engineer Art Baluran
who hired him as counsel of the said accused. He stated that he gave an oral
authorization to Baluran to get the CA resolutions or orders; Baluran was the one
who furnished him a copy of the resolution. 28 He called Mr. Baluran to say that an
order for Lagua's release had already been issued by the appellate court. The
witness stated, however, that he had never seen the respondent before. 29

The respondent testied that he has been a CA employee since 1991. He admitted
that he knew Flores, and met her in January 1999 when he brought Gamil's order
of release in the Batangas City Jail. He claimed that he was waiting for the relatives
of Gamil as they were the ones who would pay for his fare home, and while waiting,
he talked to the jailguard/warden. Flores then approached him and asked him if he
was from the CA. When the respondent answered in the armative, Flores replied
that Justice Vasquez was her neighbor in Bian, Laguna.

The respondent admitted that he was in the Correctional Institute for Women in
Mandaluyong City on May 16, 1999, as he was then visiting Vilma Dalawangbayan.
He also saw Flores. 30 When asked why he visited Dalawangbayan, the respondent
replied that Flores had written a letter to him (which he dubbed as "maintrigang
sulat" ) 31 addressed "Lito Salud, Mailing Section, Court of Appeals." In the said
letter, Flores asked him to help Dalawangbayan, just like he had helped Gamil. The
respondent then showed the letter to then Chief of Oce Prudencio B. Aguilar, who
told him, "Puntahan mo yan, Lito at maintriga 'yang sulat na yan, baka tayo
mapahamak dyan." 32 Thus, he went to the Correctional Institute in Mandaluyong
City to "sort things out" with Dalawangbayan and Gamil. The respondent, however,
stated that he could not find the letter anywhere and had already been lost. 33

During his May 16, 1999 visit to the correctional facility, Flores approached him in
the visiting hall, and said suddenly, "Sandali lang, Kuya ," then left. He then talked
to Dalawangbayan about the "controversial" letter, explaining that his job in the
Court of Appeals was only to remand the records and deliver the Orders for release,
just like what he did in Gamil's case. 34 He again visited Dalawangbayan on June 13,
1999 35 as evidenced by the entries in the visitor's logbook. He was no longer able
to speak to Flores, but made ve other such visits to Dalawangbayan in the
correctional facility.
AISHcD

The Findings of the Investigating Officer

In her Report dated January 21, 2005, Atty. Longalong found that the respondent
was guilty as charged, and made the following recommendation:

In view of all the foregoing, there is substantial evidence to hold respondent

liable for the oenses charged. He is liable for ineciency and incompetence
in the performance of his ocial duties and for conduct prejudicial to the
best interest of the service when he admittedly served the copies of the
resolution and order of release in the Lagua case intended for detained
appellant and his counsel on Mr. Baluran whom he admitted to have met
only on that day, against the rules and normal oce procedure on personal
service. His long stay in the Bureau of Prisons also caused the delay in the
service of other court processes assigned to him for service on that day. He
is also liable for having nancial or material interest in an ocial transaction
considering his undue interest in the service of the order of release and
actual release of Lagua to the point of staying almost the whole day in the
Bureau of Prisons and the aborted "deal" as can be concluded from the
phone call of Melissa Melchor to Atty. Madarang and subsequent exchange
of text messages with Atty. Madarang disguising as Lagua's relative. . . .

RECOMMENDATION:

1. Rule IV, Section 52 of Civil Service Commission Memorandum Circular

No. 19, S. 1999, issued pursuant to Book V of the Administrative Code of
1987, provides that the penalty for the rst oense of ineciency and
incompetence in the performance of ocial duties, for conduct prejudicial to
the best interest of the service and for directly or indirectly having nancial
and material interest in any ocial transaction is suspension for a period of
6 months, 1 day to 1 year. Pursuant to Section 55 of the same
Memorandum Circular, if the respondent is found guilty of 2 or more
charges, the penalty to be imposed should be that corresponding to the
most serious charge and the rest shall be considered as aggravating
circumstances. Section 54-c of the same Memorandum Circular provides
that the maximum of the penalty shall be imposed where only aggravating
and no mitigating circumstances are present. Since in this case, the penalty
is the same for all 3 oenses, the maximum of the penalty for the rst
oense which is suspension for 1 year [may be] imposed on the
respondent.

2. Considering that the prescribed penalty for the oense exceeds one
month suspension, the case may now be referred to the Supreme Court for
appropriate action, pursuant to Circular No. 30-91 of the Oce of the Court
 Administrator. 36

The Ruling of the Court

On the charge of ineciency, the respondent is clearly administratively liable. After

serving Lagua's copy of the resolution and order of release to the prison Director, he
should have immediately returned to his station or served the other resolutions and
documents for personal service. As an ocer of the court, the respondent plays an
essential part in the administration of justice. He is required to live up to the
stringent standards of his oce, and his conduct must, at all times, be above
reproach and suspicion. He must steer clear of any act which would tend to
undermine his integrity, or erode somehow the people's faith and trust in the
courts. 37 As the respondent himself admitted, he stayed on until 2:30 p.m. without
any valid reason, despite the fact that he knew he still had to serve several orders
and resolutions. As pointed out by the Investigating Ocer, "ineciency and
incompetence in the performance of ocial duties" is classied as a grave oense,
and is punishable by suspension for six months and one day to one year. 38

Indeed, the complainant in administrative proceedings has the burden of proving

the allegations in the complaint by substantial evidence. If a court employee is to be
disciplined for a grave oense, the evidence against him must be competent and
derived from direct knowledge; as such, charges based on mere suspicion and
speculation cannot be given credence. Thus, if the complainant fails to substantiate
a claim of corruption and bribery, relying on mere conjectures and suppositions, the
administrative complaint must be dismissed for lack of merit. 39 However, in
administrative proceedings, the quantum of proof required to establish malfeasance
is not proof beyond reasonable doubt but substantial evidence, i.e., that amount of
relevant evidence that a reasonable mind might accept as adequate to support a
conclusion, is required. 40 The ndings of investigating magistrates on the credibility
of witnesses are given great weight by reason of their unmatched opportunity to
see the deportment of the witnesses as they testified. 41

To determine the credibility and probative weight of the testimony of a witness,

such testimony must be considered in its entirety and not in truncated parts. To
determine which contradicting statements of a witness is to prevail as to the truth,
the other evidence received must be considered. 42 Thus, while it is true that there
is no direct evidence that the respondent received any money to "facilitate" the
release of detained Lagua, the following circumstances must be taken as contrary to
the respondent's plea of innocence:

First. The respondent admitted that he was the sender of the rst three text
messages in Atty. Madarang's cellphone: "bkit, C rhodora to"; "CNO KAMAGANAK AT
ANONG PANGALAN MO"; and "SINO K KC NAGHIWALAY N KAMI." The respondent's
testimony on the matter is as follows:

Q: In the hearing of December 2, 2003, in the TSN on page 32 onwards .

..
ATTY. ROSERO:

Is that the testimony of Atty. Madarang, Justice?

JUSTICE MAGTOLIS:

Oo. I will just refer to your admission through your counsel that Cellphone
No. 6392044390[8]2 is yours. You admitted that?

ATTY. ROSERO:

I think we made an admission as to that matter, Justice. We'll just check the
affidavit of Atty. Madarang.

JUSTICE MAGTOLIS:

Here, admitted. Basahin mo.

ATTY. ROSERO:

Yes, Justice, admitted but not the cellphone number . . .

JUSTICE MAGTOLIS:

Sige, ulitin natin, 6392044390[9]2.

ATTY. ROSERO:

Yes, admitted. That is his cellphone.

JUSTICE MAGTOLIS:

This cellphone is yours.

Q: Do you also admit that you called Atty. Madarang several times on
November 7, 2003?

ATTY. ROSERO:

November 7 is . . . a Friday. Tumawag ka daw several times kay Atty.

Madarang, November 7?

JUSTICE MAGTOLIS:

Texted, I'm sorry I will correct that, texted.

A: Nauna po siyang magtext sa akin, Justice, hindi po ako nagtext sa

kanya. Nagtext po siya sa akin sumagot po ako sa kanya.

Q: There was an exchange several times?

A: Nuong pong text niya sa akin . . . hindi po several times dahil . . . kung
makita 'nyo po dyan.
 JUSTICE MAGTOLIS:

Let me see the adavit of Atty. Madarang. After this question, may I ask for
a continuance? AECacT

ATTY. ROSERO:

No objection, Your Honor.

JUSTICE MAGTOLIS:

All these text messages were checked by us with your counsel in the
cellphone of Atty. Madarang which were preserved until we allowed
her to erase these. There are exchanges here: 6392044390[8]2,
November 7. When she texted she answered, "Bkit c Rhodora 2" and
then second was, "Cnong kamaganak anong pangalan mo?" This is
addressed to you, this is your telephone?

A: Opo.

Q: But the one who answered is Rhodora?

A: Ako po 'yun.

Q: Ikaw ang sumasagot. Why did you say that you are Rhodora?

A: Justice, nung ma-receive ko po 'yong text niya apat na beses ko pong

na-receive ang text ni Arlene.

INVESTIGATOR:

Who is Arlene?

A: Atty. Madarang. Arlene, sa text po niya sa akin, "Sir Lito, kamaganak

po ito ni Mr. Lagua. Magkano pa po ba ang kakulangang pera para
ibigay ko sa inyo. Si Rhodora ba kasama?" Hindi ko po sinagot yon.
Pangalawa, 'yun din po ang message nya. Ano ito? Sa akin pong kuan,
sa pag-iisip ko lang po, bakit dahil si Mr. Art Baluran kamag-anak na,
ano ito? Text pa ulit pa sya ng pangatlo. Nang-iintriga na 'to. Pang-
apat, intriga 'to. Text ko nga rin 'to, lokohan lang tayo. "Bkit si Rhodora
'to" yun po ang sagot ko sa kanya.

Q: So at that time you already knew about Rhodora?

A: Hindi po, dun, duon po sa text niya nakalagay po dun eh, "Si Rhodora
kasama ba"? So ikinuan ko po na si Rhodora 'to, dun po sa text nya.

Q: Nakipaglokohan ka?

A: Sa text niya nakalagay dun na "Si Rhodora ba kasama" kaya po ako

nakipaglokohan dun. 43

As pointed out by the Investigating Ocer, the respondent's claim of "joking

around" ("nakipaglokohan") with an unknown sender of a text message by replying
thereto is contrary to a normal person's reaction. This is made even more apparent
by the fact that the respondent even admitted that he called Atty. Madarang twice,
and when asked why, gave a vague answer, and, when further questioned, even
broke down in tears. 44

The respondent's claim that the admission of the text messages as evidence against
him constitutes a violation of his right to privacy is unavailing. Text messages have
been classied as "ephemeral electronic communication" under Section 1(k), Rule 2
of the Rules on Electronic Evidence, 45 and "shall be proven by the testimony of a
person who was a party to the same or has personal knowledge thereof." Any
question as to the admissibility of such messages is now moot and academic, as the
respondent himself, as well as his counsel, already admitted that he was the sender
of the first three messages on Atty. Madarang's cell phone.

This was also the ruling of the Court in the recent case of Zaldy Nuez v. Elvira Cruz-
Apao. 46 In that case, the Court, in nding the respondent therein guilty of
dishonesty and grave misconduct, considered text messages addressed to the
complainant asking for a million pesos in exchange for a favorable decision in a case
pending before the CA. The Court had the occasion to state:

. . . The text messages were properly admitted by the Committee since the
same are now covered by Section 1(k), Rule 2 of the Rules on Electronic
Evidence, which provides:

"Ephemeral electronic communication" refers to telephone conversations,

text messages . . . and other electronic forms of communication the
evidence of which is not recorded or retained."

Under Section 2, Rule 11 of the [said rules], "Ephemeral electronic

communications shall be proven by the testimony of a person who was a
party to the same or who has personal knowledge thereof . . . ." In this
case, complainant who was the recipient of the said messages and therefore
had personal knowledge thereof testied on their contents and import.
Respondent herself admitted that the cellphone number reected in
complainant's cellphone from which the messages originated was hers.
Moreover, any doubt respondent may have had as to the admissibility of the
text messages had been laid to rest when she and her counsel signed and
attested to the veracity of the text messages between her and complainant.
It is also well to remember that in administrative cases, technical rules of
procedure and evidence are not strictly applied. We have no doubt as to the
probative value of the text messages as evidence in determining the guilt or
lack thereof of respondent in this case.

Second. The respondent's testimony during the hearings held before Investigating
Ocer Atty. Longalong is replete with inconsistencies and "loopholes." He claimed
that he made inquiries from other CA sta and learned that there was indeed a deal
between someone in the criminal section and a certain Rhodora of the RTC, Pasig.
He further claimed that the said parties wanted to get back at him for "immediately
serving" the release order which prevented them from demanding the balance of
the deal from Lagua's relative. However, this bare claim was not corroborated by
any witness. Moreover, the respondent alleged that two anonymous callers claimed
to know something about the case against him; when asked about it, he stated that
he no longer exerted eorts to nd out who they were as they did not give out their
names:
JUSTICE MAGTOLIS:

Q: On page 5 of your adavit, you said in paragraph 8 "That I made

some inquiry and some personnel of the Court of Appeals told me that
there is indeed a deal between a sta in the Criminal Section and
Rhodora of RTC, Pasig. Can you tell us who is this staff? IacHAE

A: Ah dito po Justice, hindi po siya nagpakilala, sa telephono po.

INVESTIGATOR:

Sino siya?

A: Hindi po siya . . . 'yong tawag po niya sa akin sa telepono nang

malaman po dito sa CA na ako ay kinasuhan ninyo tumawag po siya sa
Personnel.

JUSTICE MAGTOLIS:

Q: Who is siya?

A: Ay hindi po siya nagpakilala.

INVESTIGATOR:

Lalaki o babae?

A: Una po babae tapos 'yong pangalawa po lalaki.

INVESTIGATOR:

Sinong kinakausap?

A: Ako po.

INVESTIGATOR:

Hinahanap ka?

A: Hinahanap po nila ako.

JUSTICE MAGTOLIS:

Q: What did he tell you? He, lalaki, ano?

A: Sa babae muna po?

Q: Oo, babae't lalake ba?

A: Opo.

Q: Who was the first caller, the lady or the gentleman?

A: Babae po.

Q: Were you the one who answered the phone?

A: Hindi po.

INVESTIGATOR:

Hinahanap daw siya.

JUSTICE MAGTOLIS:

Q: Hinahanap ka, okay, when you answered the phone, what did you
say?

A: Ang sabi ko po sa kanya, "pupuwede mo ba akong matulungan sa

paggawa ng affidavit dahil kinasuhan nga ako ni Justice Magtolis."

Q: But you do not know who you were talking to?

A: Tinanong ko nga po kung sino siya eh tumutulong lang daw siya sa

akin dahil ang naririnig niyang tsismis din dyan eh baka po si Rhodora
ang may ka-kuan sa Criminal.

Q: Saan 'yong ka-kuan?

A: Ang may kausap sa Criminal.

Q: Who said "na baka si Rhodora ang may kausap sa Criminal"?

A: 'Yon pong kausap ko sa kabilang linya.

Q: The name you do not know?

A: Eh tinanong ko naman po kung sino siya ayaw naman po niyang

magpakilala. Matutulungan mo ba ako, ibinaba na po ang telepono.

INVESTIGATOR:

Anonymous caller.

JUSTICE MAGTOLIS:

You are very fond of answering calls. You don't even know the name.

Q: That anonymous caller told you that there must be some deals
between Rhodora and someone from the Criminal Section?
A: 'Yun din daw po ang naririnig niyang tsismis dyan sa labas.

Q: Tsismis, that was that the caller told you?

A: Opo.

Q: And she wanted to help you?

A: Kaya po sinabi din sa akin na tsismis eh hindi pa po pwedeng . . .

Q: What did you answer her?

INVESTIGATOR:

Anong sagot mo raw? cDTSHE

JUSTICE MAGTOLIS:

Q: Anong sagot niya sa tulungan kasi nakakarinig siyang tsismis?

INVESTIGATOR:

Q Ano ang sagot mo?

A: Eh iyon nga ang gusto kong malaman, ang katotohanan. Baka naman
pupuwede mo akong matulungan. Sino ba 'to?

JUSTICE MAGTOLIS:

Q: Di ba she was the one who offered to help?

A: Ay ayaw daw po naman niyang masabit po ang pangalan niya.

Q: But she was the one who called you?

A: Opo.

Q: Okay. How did your talk end with this girl or lady?

A: Nung pagsalita ko nga pong baka pupuwede akong tulungan, wala na.

Q: How about the man, the gentleman or the boy who called?

A: Same kuan din po ang kanilang kuan e.

JUSTICE MAGTOLIS:

Don't use kuan.

ATTY. ROSERO:

Sige, Lito, ipaliwanag mo.

A: Same kuento rin po, sinabi niya na ganuon din po na narinig din po
 niya sa labas.

JUSTICE MAGTOLIS:

Q: Alright, you were not the one who answered the call?

A: Hindi po.

Q: Somebody called you that there's a phone call?

A: Opo.

Q: When you answered, what was your first word?

A: Hello!

Q: What was the answer at the other end of the line?

A: Hello rin po.

Q: What next?

A: Alam mo, ang sabi po niya sa akin ganito po . . .

Q: Who was the first one who said something other than hello?

A: Siya po ang nauna.

Q: What did she say, the exact words?

A: Exact words, sa naalala kong sinabi niya "Alam mo, Mr. Salud," Salud
po ang kuan niya sa akin, "narinig ko sa labas, istoryahan dyan sa
labas na baka si Rhodora ang may ka-kuan dito sa Criminal." Ang sabi
ko po sa kanya "Iyan din ang itinawag sa akin kahapon. Eh dalawa na
kayo eh baka naman pupuwede nyo akong matulungan. Puede ko
bang malaman ang pangalan mo?" Ganun din po, ayaw na pong
magsalita ibinaba na [ang] telepono.

Q: Do you know Rhodora?

A: Hindi po.

Q: You never met her?

A: Hindi po.

Q: You never talked to her?

A: Nung pong ipinakiusap nyo sa akin sa telepono po nung tayo po'y

xxx xxx xxx

 Q: After the conversation with the lady and that gentleman who called
you to oer some help and afterwards did not help at all, what
happened?

A: Wala na po.

Q: Did you not check with Rhodora, "What is this they are talking about
that it might be between you and someone in the Criminal Section?"
You never asked her that?

A: Hindi ko na rin po . . .

Q: You did not. But I thought you wanted help from those people who
can help you?

A: Eh hindi na nga po sila nagbanggit po ng pangalan dahil po sabi ng

unang babae ayaw nga rin po niyang sumabit sa kaso. 47

This respondent's actuation on this matter, if at all true, is again contrary to the
normal reaction of one who has been administratively charged, and wants to clear
his name of any wrongdoing. EcHTDI

The respondent also admitted visiting an inmate (Vilma Dalawangbayan) at the

correctional facility eight times for no apparent reason. This admission lends some
credence to the testimony of Flores, that she was the one who introduced him to
Dalawangbayan, the person he was visiting. When asked why he frequently visited,
he stated that he found her beautiful ("Maganda po siya, Justice"), and was on the
verge of courting her ("Para na nga po akong nanliligaw "). The Court believes that
this allegation was concocted by the respondent as a mere afterthought, to cover up
for his misdeeds.

The Investigating Ocer also found that the respondent was "high-strung" during
his testimony, and this nding must be accorded respect. Indeed, when the issue is
the credibility of witnesses, the function of evaluating it is primarily lodged in the
investigating judge. The rule which concedes due respect, and even nality, to the
assessment of the credibility of witnesses by trial judges in civil and criminal cases
where preponderance of evidence and proof beyond reasonable doubt, respectively,
are required, applies a fortiori in administrative cases where the quantum of proof
required is only substantial evidence. The investigating judge is in a better position
to pass judgment on the credibility of witnesses, having personally heard them
when they testied, and observed their deportment and manner of testifying. 48
Thus, the following findings of Atty. Longalong are well taken:

However, respondent denied receiving P20,000 from Gamil and P15,000

from Flores and signing "LM Salud" on Flores' notebooks (Exhibits E-1 and F-
1) but admitted visiting Vilma at the Correctional Institute for Women 8 times
from May to August 1999. Respondent's denial here appears self-serving
and incredible considering his admission of going to the Correctional
Institute for Women several times for no valid ocial reason. Moreover,
although Flores is a convict for estafa, her testimony on the matter was
 more consistent and credible. Likewise, respondent admitted seeing Flores
at the Correctional Institute for Women and that Flores mailed her letter to
him on May 16, 1999 which he called "maintriga." He also admitted that he
told Flores to seek the help of Justice Vasquez on her case. The foregoing,
plus the fact that Flores eventually wrote Justice Vasquez, confirms the truth
of Flores' testimony on the matter.

With the aforecited admissions by respondent, the substantial evidence

presented by the complainant and her witnesses with their positive and
forthright testimonies deserve more credence than respondent's self-
serving denial and inconsistent and vague testimony. Even the demeanor of
complainant and her witnesses give credence to their testimonies than the
nervous and [high-strung] demeanor of respondent during his testimony.
Moreover, complainant and her witnesses, including the superiors of
respondent, have no reason or motive whatsoever to testify falsely against
him. Respondent's defense of denial is inherently a weak defense. It is well
settled that denial, to be believed, must be buttressed by strong evidence of
non-culpability, otherwise the denial is purely self-serving and with nil
evidentiary value (People of the Philippines v. Arlee , 323 SCRA 201). Like the
defense of alibi, denial crumbles in the light of positive declarations (People
of the Philippines vs. Ricafranca, 323 SCRA 652).

Indeed, the Court is looked upon by people with high respect, a sacred place where
litigants are heard, rights and conicts settled and justice solemnly dispensed with.
Misbehavior within or around the vicinity diminishes its sanctity and dignity. The
conduct and behavior required of every court personnel, from the presiding judge to
the lowliest clerk, must always be beyond reproach and circumscribed with the
heavy burden of responsibility. Their conduct must, at all times, be characterized by,
among other things, propriety and decorum so as to earn and keep the public's
respect and condence in the judicial service. 49 Public service requires the utmost
integrity and strictest discipline. Thus, a public servant must exhibit at all times the
highest sense of honesty and integrity not only in the performance of his ocial
duties but in his personal and private dealings with other people. 50

While there is no direct evidence to suggest that he actually extorted money to

"facilitate" the issuance of the appeal bond and release order which he himself
served, the surrounding circumstances, as well as the inconsistencies in his
testimony, point towards administrative culpability. The respondent's actuations fall
short of the standard required of a public servant. He is guilty of gross or grave
misconduct. Misconduct is a transgression of some established and denite rule of
action, a forbidden act, a dereliction from duty, unlawful behavior, willful in
character, improper or wrong behavior, 51 while "gross," has been dened as "out of
all measure; beyond allowance; agrant; shameful; such conduct as is not to be
excused." 52 Under the Omnibus Civil Service Rules and Regulations, grave
misconduct is punishable by dismissal from the service even for the rst oense, as
it is classied as a grave oense. However, considering that the respondent has not
been previously charged nor administratively sanctioned, the Court nds that a
penalty of suspension for one year and six months will serve the purpose of
disciplining the respondent.
Court personnel, from the lowliest employee to the clerk of court or any position
lower than that of a judge or justice, are involved in the dispensation of justice, and
parties seeking redress from the courts for grievances look upon them as part of the
Judiciary. They serve as sentinels of justice, and any act of impropriety on their part
immeasurably aect the honor and dignity of the Judiciary and the people's
condence in it. 53 Thus, any conduct which tends to diminish the image of the
Judiciary cannot be countenanced. HESAIT

IN LIGHT OF ALL THE FOREGOING, respondent Cielito M. Salud is found GUILTY of

ineciency and gross misconduct. He is SUSPENDED for a period of One (1) Year
and Six (6) Months, eective immediately. He is further DIRECTED to inform the
Court as to the date of his receipt of this Decision to determine when his suspension
shall have taken effect.

The Oce of the Court Administrator is also DIRECTED to conduct a discreet

investigation on the possible involvement of Rhodora Valdez (Utility Worker), and
other personnel of the Regional Trial Court of Pasig City, Branch 163. AcCTaD

SO ORDERED.

Panganiban, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Tinga, Chico-

Nazario and Garcia, JJ., concur.

Davide, Jr., C.J., Puno, Quisumbing, Ynares-Santiago, Carpio Morales and Azcuna, JJ.,
are on official leave.

Footnotes

1. Rollo, p. 2.

2. Id. at 14.

3. Id. at 13.

4. Exhibit "C," Rollo, pp. 34-35.

5. Rollo, p. 14.

6. Exhibit "B," Rollo, pp. 26-29.

7. Exhibit "C," Id. at 34-35.

8. Exhibit "7."

9. Rollo, pp. 27-29.

10. Exhibits "B" and "7."

11. Rollo, p. 3.

12. Rollo, pp. 3-4.

13. Id. at 19-24.

14. Rollo, pp. 20-23.

15. Now an Associate Justice of the Supreme Court.

16. Exhibit "B," Rollo, pp. 26-29.

17. TSN, 12 December 2003, p. 12.

18. TSN, 13 January 2004, p. 19.

19. TSN, 13 January 2004, pp. 19-20.

20. TSN, 22 January 2004, pp. 13-14.

21. Id. at 15.

22. Id. at 18.

23. Id. at 16.

24. Id. at 21-22.

25. Id. at 24.

26. TSN, 4 March 2004, p. 13.

27. TSN, 22 January 2004, p. 38.

28. Id. at 40-45.

29. Id. at 47.

30. TSN, 25 May 2004, p. 7.

31. Ibid.

32. Id. at 9.

33. Id.

34. Id. at 11-12.

35. Id. at 12.

36. Report dated 1 January 2005, pp. 6-7.

37. Albello v. Galvez , A.M. No. P-01-1476, 16 January 2003, 395 SCRA 251.

38. Section 23(p), Rule XIV, Omnibus Civil Service Rules and Regulations.

39. Fernandez v. Versola, A.M. No. CA-04-40, 13 August 2004, 436 SCRA 369.
40. Avancena v. Judge Liwanag, 446 Phil. 710 (2003).

41. Magarang v. Judge Jardin, Sr., 386 Phil. 273 (2000).

42. Oce of the Court Administrator v. Morante , A.M. No. P-02-1555, 16 April 2004,
428 SCRA 1, 20.

43. TSN, 15 June 2004, pp. 58-61.

44. TSN, 29 June 2004, p. 4.

45. A.M. No. 01-7-01-SC, 17 July 2001. The Rules took effect on August 1, 2001.

46. A.M. No. CA-05-18-P, 12 April 2005.

47. TSN, 15 June 2004, pp. 53-58.

48. Meneses v. Zaragosa, A.M. No. P-04-1768, 11 February 2004, 422 SCRA 434.

49. Policarpio v. Fortus , A.M. No. P-95-1114, 18 September 1995, 248 SCRA 272.

50. Concerned Citizens of Laoag City v. Arzaga, A.M. No. P-94-1067, 30 January
1997, 267 SCRA 176.

51. BLACK'S LAW DICTIONARY, 5th ed. (1979), p. 901.

52. Id. at 632, citing State Board of Dental Examiners v. Savelle, 90 Colo. 177, 8 P. 2d
693, 697.

53. A.M. No. 03-06-13-SC, CODE OF CONDUCT FOR COURT PERSONNEL which took
effect on June 1, 2004.
 FIRST DIVISION

[G.R. No. 148220. June 15, 2005.]

ROSENDO HERRERA, petitioner, vs. ROSENDO ALBA, minor,

represented by his mother ARMI A. ALBA, and HON. NIMFA
CUESTA-VILCHES, Presiding Judge, Branch 48, Regional Trial
Court, Manila, respondents.

DECISION

CARPIO, J :p

The Case

This is a petition for review 1 to set aside the Decision 2 dated 29 November 2000 of
the Court of Appeals ("appellate court") in CA-G.R. SP No. 59766. The appellate
court armed two Orders 3 issued by Branch 48 of the Regional Trial Court of
Manila ("trial court") in SP No. 98-88759. The Order dated 3 February 2000 directed
Rosendo Herrera ("petitioner") to submit to deoxyribonucleic acid ("DNA") paternity
testing, while the Order dated 8 June 2000 denied petitioner's motion for
reconsideration.

The Facts

On 14 May 1998, then thirteen-year-old Rosendo Alba ("respondent"), represented

by his mother Armi Alba, led before the trial court a petition for compulsory
recognition, support and damages against petitioner. On 7 August 1998, petitioner
led his answer with counterclaim where he denied that he is the biological father
of respondent. Petitioner also denied physical contact with respondent's mother.

Respondent led a motion to direct the taking of DNA paternity testing to

abbreviate the proceedings. To support the motion, respondent presented the
testimony of Saturnina C. Halos, Ph.D. When she testied, Dr. Halos was an
Associate Professor at De La Salle University where she taught Cell Biology. She was
also head of the University of the Philippines Natural Sciences Research Institute
("UP-NSRI"), a DNA analysis laboratory. She was a former professor at the
University of the Philippines in Diliman, Quezon City, where she developed the
Molecular Biology Program and taught Molecular Biology. In her testimony, Dr.
Halos described the process for DNA paternity testing and asserted that the test had
an accuracy rate of 99.9999% in establishing paternity. 4

Petitioner opposed DNA paternity testing and contended that it has not gained
acceptability. Petitioner further argued that DNA paternity testing violates his right
against self-incrimination.
 The Ruling of the Trial Court

In an Order dated 3 February 2000, the trial court granted respondent's motion to
conduct DNA paternity testing on petitioner, respondent and Armi Alba. Thus:

In view of the foregoing, the motion of the petitioner is GRANTED and

the relevant individuals, namely: the petitioner, the minor child, and
respondent are directed to undergo DNA paternity testing in a laboratory
of their common choice within a period of thirty (30) days from receipt of
the Order, and to submit the results thereof within a period of ninety (90)
days from completion. The parties are further reminded of the hearing set
on 24 February 2000 for the reception of other evidence in support of the
petition.

IT IS SO ORDERED. 5 (Emphasis in the original)

Petitioner led a motion for reconsideration of the 3 February 2000 Order. He

asserted that "under the present circumstances, the DNA test [he] is compelled to
take would be inconclusive, irrelevant and the coercive process to obtain the
requisite specimen . . ., unconstitutional."

In an Order dated 8 June 2000, the trial court denied petitioner's motion for
reconsideration. 6

On 18 July 2000, petitioner led before the appellate court a petition for certiorari
under Rule 65 of the 1997 Rules of Civil Procedure. He asserted that the trial court
rendered the Orders dated 3 February 2000 and 8 June 2000 "in excess of, or
without jurisdiction and/or with grave abuse of discretion amounting to lack or
excess of jurisdiction." Petitioner further contended that there is "no appeal nor any
[other] plain, adequate and speedy remedy in the ordinary course of law." Petitioner
maintained his previous objections to the taking of DNA paternity testing. He
submitted the following grounds to support his objection:

1. Public respondent misread and misapplied the ruling in Lim vs. Court
of Appeals (270 SCRA 2). HASTCa

2. Public respondent ruled to accept DNA test without considering the

limitations on, and conditions precedent for the admissibility of DNA
testing and ignoring the serious constraints aecting the reliability of
the test as admitted by private respondent's "expert" witness.

3. Subject Orders lack legal and factual support, with public respondent
relying on scientic ndings and conclusions unt for judicial notice
and unsupported by experts in the field and scientific treatises.

4. Under the present circumstances the DNA testing petitioner [is]

compelled to take will be inconclusive, irrelevant and the coercive
process to obtain the requisite specimen from the petitioner,
unconstitutional. 7

The Ruling of the Court of Appeals

On 29 November 2000, the appellate court issued a decision denying the petition
and arming the questioned Orders of the trial court. The appellate court stated
that petitioner merely desires to correct the trial court's evaluation of evidence.
Thus, appeal is an available remedy for an error of judgment that the court may
commit in the exercise of its jurisdiction. The appellate court also stated that the
proposed DNA paternity testing does not violate his right against self-incrimination
because the right applies only to testimonial compulsion. Finally, the appellate court
pointed out that petitioner can still refute a possible adverse result of the DNA
paternity testing. The dispositive portion of the appellate court's decision reads:

WHEREFORE, foregoing premises considered, the Petition is hereby DENIED

DUE COURSE, and ordered dismissed, and the challenged orders of the Trial
Court AFFIRMED, with costs to Petitioner.

SO ORDERED. 8

Petitioner moved for reconsideration, which the appellate court denied in its
Resolution dated 23 May 2001. 9

Issues

Petitioner raises the issue of whether a DNA test is a valid probative tool in this
jurisdiction to determine liation. Petitioner asks for the conditions under which
DNA technology may be integrated into our judicial system and the prerequisites for
the admissibility of DNA test results in a paternity suit. 10

Petitioner further submits that the appellate court gravely abused its discretion
when it authorized the trial court "to embark in [sic] a new procedure . . . to
determine liation despite the absence of legislation to ensure its reliability and
integrity, want of ocial recognition as made clear in Lim vs. Court of Appeals and
the presence of technical and legal constraints in respect of [sic] its
implementation." 11 Petitioner maintains that the proposed DNA paternity testing
violates his right against self-incrimination. 12

The Ruling of the Court

The petition has no merit.

Before discussing the issues on DNA paternity testing, we deem it appropriate to

give an overview of a paternity suit and apply it to the facts of this case. We shall
consider the requirements of the Family Code and of the Rules of Evidence to
establish paternity and filiation.

An Overview of the Paternity and Filiation Suit

Filiation proceedings are usually led not just to adjudicate paternity but also to
secure a legal right associated with paternity, such as citizenship, 13 support (as in
the present case), or inheritance. The burden of proving paternity is on the person
who alleges that the putative father is the biological father of the child. There are
four signicant procedural aspects of a traditional paternity action which parties
have to face: a prima facie case, armative defenses, presumption of legitimacy,
and physical resemblance between the putative father and child. 14

A prima facie case exists if a woman declares that she had sexual relations with the
putative father. In our jurisdiction, corroborative proof is required to carry the
burden forward and shift it to the putative father. 15

There are two armative defenses available to the putative father. The putative
father may show incapability of sexual relations with the mother, because of either
physical absence or impotency. 16 The putative father may also show that the
mother had sexual relations with other men at the time of conception.

A child born to a husband and wife during a valid marriage is presumed legitimate.
17 The child's legitimacy may be impugned only under the strict standards provided
by law. 18

Finally, physical resemblance between the putative father and child may be oered
as part of evidence of paternity. Resemblance is a trial technique unique to a
paternity proceeding. However, although likeness is a function of heredity, there is
no mathematical formula that could quantify how much a child must or must not
look like his biological father. 19 This kind of evidence appeals to the emotions of the
trier of fact.

In the present case, the trial court encountered three of the four aspects. Armi Alba,
respondent's mother, put forward a prima facie case when she asserted that
petitioner is respondent's biological father. Aware that her assertion is not enough
to convince the trial court, she oered corroborative proof in the form of letters and
pictures. Petitioner, on the other hand, denied Armi Alba's assertion. He denied ever
having sexual relations with Armi Alba and stated that respondent is Armi Alba's
child with another man. Armi Alba countered petitioner's denial by submitting
pictures of respondent and petitioner side by side, to show how much they resemble
each other.

Paternity and liation disputes can easily become credibility contests. We now look
to the law, rules, and governing jurisprudence to help us determine what evidence
of incriminating acts on paternity and filiation are allowed in this jurisdiction. TEHIaD

Laws, Rules, and Jurisprudence

Establishing Filiation

The relevant provisions of the Family Code provide as follows:

ART. 175. Illegitimate children may establish their illegitimate liation in

the same way and on the same evidence as legitimate children.

xxx xxx xxx

ART. 172. The liation of legitimate children is established by any of the

 following:

(1) The record of birth appearing in the civil register or a nal

judgment; or

(2) An admission of legitimate liation in a public document or a

private handwritten instrument and signed by the parent
concerned.

In the absence of the foregoing evidence, the legitimate liation shall be

proved by:

(1) The open and continuous possession of the status of a

legitimate child; or

(2) Any other means allowed by the Rules of Court and special
laws.

The Rules on Evidence include provisions on pedigree. The relevant sections of Rule
130 provide:

SEC. 39. Act or declaration about pedigree. The act or declaration of a

person deceased, or unable to testify, in respect to the pedigree of another
person related to him by birth or marriage, may be received in evidence
where it occurred before the controversy, and the relationship between the
two persons is shown by evidence other than such act or declaration. The
word "pedigree" includes relationship, family genealogy, birth, marriage,
death, the dates when and the places where these facts occurred, and the
names of the relatives. It embraces also facts of family history intimately
connected with pedigree.

SEC. 40. Family reputation or tradition regarding pedigree. The

reputation or tradition existing in a family previous to the controversy, in
respect to the pedigree of any one of its members, may be received in
evidence if the witness testifying thereon be also a member of the family,
either by consanguinity or anity. Entries in family bibles or other family
books or charts, engraving on rings, family portraits and the like, may be
received as evidence of pedigree.

This Court's rulings further specify what incriminating acts are acceptable as
evidence to establish liation. In Pe Lim v. CA , 20 a case petitioner often cites, we
stated that the issue of paternity still has to be resolved by such conventional
evidence as the relevant incriminating verbal and written acts by the putative
father. Under Article 278 of the New Civil Code, voluntary recognition by a parent
shall be made in the record of birth, a will, a statement before a court of record, or
in any authentic writing. To be eective, the claim of liation must be made by the
putative father himself and the writing must be the writing of the putative father.
21 A notarial agreement to support a child whose liation is admitted by the
putative father was considered acceptable evidence. 22 Letters to the mother
vowing to be a good father to the child and pictures of the putative father cuddling
the child on various occasions, together with the certicate of live birth, proved
liation. 23 However, a student permanent record, a written consent to a father's
operation, or a marriage contract where the putative father gave consent, cannot be
taken as authentic writing. 24 Standing alone, neither a certicate of baptism 25 nor
family pictures 26 are sufficient to establish filiation.

So far, the laws, rules, and jurisprudence seemingly limit evidence of paternity and
filiation to incriminating acts alone. However, advances in science show that sources
of evidence of paternity and filiation need not be limited to incriminating acts. There
is now almost universal scientic agreement that blood grouping tests are
conclusive on non-paternity, although inconclusive on paternity. 27

I n Co Tao v. Court of Appeals , 28 the result of the blood grouping test showed that
the putative father was a "possible father" of the child. Paternity was imputed to
the putative father after the possibility of paternity was proven on presentation
during trial of facts and circumstances other than the results of the blood grouping
test.

I n Jao v. Court of Appeals, 29 the child, the mother, and the putative father agreed
to submit themselves to a blood grouping test. The National Bureau of Investigation
("NBI") conducted the test, which indicated that the child could not have been the
possible ospring of the mother and the putative father. We held that the result of
the blood grouping test was conclusive on the non-paternity of the putative father.

The present case asks us to go one step further. We are now asked whether DNA
analysis may be admitted as evidence to prove paternity.

DNA Analysis as Evidence

DNA is the fundamental building block of a person's entire genetic make-up. DNA is
found in all human cells and is the same in every cell of the same person. Genetic
identity is unique. Hence, a person's DNA profile can determine his identity. 30

DNA analysis is a procedure in which DNA extracted from a biological sample

obtained from an individual is examined. The DNA is processed to generate a
pattern, or a DNA prole, for the individual from whom the sample is taken. This
DNA prole is unique for each person, except for identical twins. 31 We quote
relevant portions of the trial court's 3 February 2000 Order with approval:

Everyone is born with a distinct genetic blueprint called DNA

(deoxyribonucleic acid). It is exclusive to an individual (except in the rare
occurrence of identical twins that share a single, fertilized egg), and DNA is
unchanging throughout life. Being a component of every cell in the human
body, the DNA of an individual's blood is the very DNA in his or her skin cells,
hair follicles, muscles, semen, samples from buccal swabs, saliva, or other
body parts. TcHCDE

The chemical structure of DNA has four bases. They are known as A
(adenine), G (guanine), C (cystosine) and T (thymine). The order in which
the four bases appear in an individual's DNA determines his or her physical
makeup. And since DNA is a double-stranded molecule, it is composed of
 two specic paired bases, A-T o r T-A and G-C or C-G. These are called
"genes ."

Every gene has a certain number of the above base pairs distributed in a
particular sequence. This gives a person his or her genetic code.
Somewhere in the DNA framework, nonetheless, are sections that dier.
They are known as "polymorphic loci," which are the areas analyzed in DNA
typing (proling, tests, ngerprinting, or analysis/DNA ngerprinting/genetic
tests or ngerprinting). In other words, DNA typing simply means
determining the "polymorphic loci."

How is DNA typing performed? From a DNA sample obtained or extracted, a

molecular biologist may proceed to analyze it in several ways. There are ve
(5) techniques to conduct DNA typing. They are: the RFLP (restriction
fragment length polymorphism); "reverse dot blot" or HLA DQ a/Pm loci
which was used in 287 cases that were admitted as evidence by 37 courts in
the U.S. as of November 1994; mtDNA process; VNTR (variable number
tandem repeats); and the most recent which is known as the PCR-
([polymerase] chain reaction) based STR (short tandem repeats) method
which, as of 1996, was availed of by most forensic laboratories in the world.
PCR is the process of replicating or copying DNA in an evidence sample a
million times through repeated cycling of a reaction involving the so-called
DNA polymerize enzyme. STR, on the other hand, takes measurements in 13
separate places and can match two (2) samples with a reported theoretical
error rate of less than one (1) in a trillion.

Just like in ngerprint analysis, in DNA typing, "matches " are determined. To
illustrate, when DNA or ngerprint tests are done to identify a suspect in a
criminal case, the evidence collected from the crime scene is compared with
the "known" print. If a substantial amount of the identifying features are the
same, the DNA or ngerprint is deemed to be a match. But then, even if
only one feature of the DNA or ngerprint is different, it is deemed not to
have come from the suspect.

As earlier stated, certain regions of human DNA show variations between

people. In each of these regions, a person possesses two genetic types
called "allele", one inherited from each parent. In [a] paternity test, the
forensic scientist looks at a number of these variable regions in an individual
to produce a DNA prole. Comparing next the DNA proles of the mother
and child, it is possible to determine which half of the child's DNA was
inherited from the mother. The other half must have been inherited from the
biological father. The alleged father's prole is then examined to ascertain
whether he has the DNA types in his prole, which match the paternal types
in the child. If the man's DNA types do not match that of the child, the man
i s excluded as the father. If the DNA types match, then he is not
excluded as the father. 32 (Emphasis in the original)

Although the term "DNA testing" was mentioned in the 1995 case of People v.
Teehankee, Jr ., 33 it was only in the 2001 case of Tijing v. Court of Appeals 34 that
more than a passing mention was given to DNA analysis. In Tijing, we issued a writ
o f habeas corpus against respondent who abducted petitioners' youngest son.
Testimonial and documentary evidence and physical resemblance were used to
establish parentage. However, we observed that:

Parentage will still be resolved using conventional methods unless we adopt

the modern and scientic ways available. Fortunately, we have now the
facility and expertise in using DNA test for identication and parentage
testing. The University of the Philippines Natural Science Research Institute
(UP-NSRI) DNA Analysis Laboratory has now the capability to conduct DNA
typing using short tandem repeat (STR) analysis. . . . For it was said, that
courts should apply the results of science when completely obtained in aid
of situations presented, since to reject said result is to deny progress.
Though it is not necessary in this case to resort to DNA testing, in [the]
future it would be useful to all concerned in the prompt resolution of
parentage and identity issues.

Admissibility of
DNA Analysis as Evidence

The 2002 case of People v. Vallejo 35 discussed DNA analysis as evidence. This may
be considered a 180 degree turn from the Court's wary attitude towards DNA
testing in the 1997 Pe Lim case, 36 where we stated that "DNA, being a relatively
new science, . . . has not yet been accorded ocial recognition by our courts." In
Vallejo, the DNA prole from the vaginal swabs taken from the rape victim matched
the accused's DNA prole. We armed the accused's conviction of rape with
homicide and sentenced him to death. We declared:

In assessing the probative value of DNA evidence, therefore, courts should

consider, among other things, the following data: how the samples were
collected, how they were handled, the possibility of contamination of the
samples, the procedure followed in analyzing the samples, whether the
proper standards and procedures were followed in conducting the tests,
and the qualification of the analyst who conducted the tests. 37

Vallejo discussed the probative value, not admissibility, of DNA evidence. By 2002,
there was no longer any question on the validity of the use of DNA analysis as
evidence. The Court moved from the issue of according "ocial recognition" to DNA
analysis as evidence to the issue of observance of procedures in conducting DNA
analysis.

In 2004, there were two other cases that had a signicant impact on jurisprudence
on DNA testing: People v. Yatar 38 a n d In re: The Writ of Habeas Corpus for
Reynaldo de Villa . 39 I n Yatar, a match existed between the DNA prole of the
semen found in the victim and the DNA prole of the blood sample given by
appellant in open court. The Court, following Vallejo's footsteps, armed the
conviction of appellant because the physical evidence, corroborated by
circumstantial evidence, showed appellant guilty of rape with homicide. In De Villa,
the convict-petitioner presented DNA test results to prove that he is not the father
of the child conceived at the time of commission of the rape. The Court ruled that a
dierence between the DNA prole of the convict-petitioner and the DNA prole of
the victim's child does not preclude the convict-petitioner's commission of rape. TIHDAa

In the present case, the various pleadings led by petitioner and respondent refer to
two United States cases to support their respective positions on the admissibility of
DNA analysis as evidence: Frye v. U.S. 40 a n d Daubert v. Merrell Dow
Pharmaceuticals. 41 I n Frye v. U.S. , the trial court convicted Frye of murder. Frye
appealed his conviction to the Supreme Court of the District of Columbia. During
trial, Frye's counsel oered an expert witness to testify on the result of a systolic
blood pressure deception test 42 made on defendant. The state Supreme Court
armed Frye's conviction and ruled that "the systolic blood pressure deception test
has not yet gained such standing and scientic recognition among physiological and
psychological authorities as would justify the courts in admitting expert testimony
deduced from the discovery, development, and experiments thus far made." The
Frye standard of general acceptance states as follows:
Just when a scientic principle or discovery crosses the line between the
experimental and demonstrable stages is dicult to dene. Somewhere in
this twilight zone the evidential force of the principle must be recognized,
and while courts will go a long way in admitting expert testimony deduced
from a well recognized scientic principle or discovery, the thing from which
the deduction is made must be suciently established to have gained
general acceptance in the particular field in which it belongs.

In 1989, State v. Schwartz 43 modied the Frye standard. Schwartz was charged
with stabbing and murder. Bloodstained articles and blood samples of the accused
and the victim were submitted for DNA testing to a government facility and a
private facility. The prosecution introduced the private testing facility's results over
Schwartz's objection. One of the issues brought before the state Supreme Court
included the admissibility of DNA test results in a criminal proceeding. The state
Supreme Court concluded that:

While we agree with the trial court that forensic DNA typing has gained
general acceptance in the scientic community, we hold that admissibility of
specic test results in a particular case hinges on the laboratory's
compliance with appropriate standards and controls, and the availability of
their testing data and results. 44

In 1993, Daubert v. Merrell Dow Pharmaceuticals, Inc. 45 further modied the Frye-
Schwartz standard. Daubert was a product liability case where both the trial and
appellate courts denied the admissibility of an expert's testimony because it failed
to meet the Frye standard of "general acceptance." The United States Supreme
Court ruled that in federal trials, the Federal Rules of Evidence have superseded the
Frye standard. Rule 401 denes relevant evidence, while Rule 402 provides the
foundation for admissibility of evidence. Thus:

Rule 401. "Relevant evidence" is dened as that which has any "tendency
to make the existence of any fact that is of consequence to the
 determination of the action more probable or less probable than it would be
without the evidence.

Rule 402. All relevant evidence is admissible, except as otherwise

provided by the Constitution of the United States, by Act of Congress, by
these rules, or by other rules prescribed by the Supreme Court pursuant to
statutory authority. Evidence which is not relevant is not admissible.

Rule 702 of the Federal Rules of Evidence governing expert testimony provides:

If scientic, technical, or other specialized knowledge will assist the trier of

fact to understand the evidence or to determine a fact in issue, a witness
qualied as an expert by knowledge, skill, experience, training, or education,
may testify thereto in the form of an opinion or otherwise.

Daubert cautions that departure from the Frye standard of general acceptance does
not mean that the Federal Rules do not place limits on the admissibility of scientic
evidence. Rather, the judge must ensure that the testimony's reasoning or method
is scientically valid and is relevant to the issue. Admissibility would depend on
factors such as (1) whether the theory or technique can be or has been tested; (2)
whether the theory or technique has been subjected to peer review and publication;
(3) the known or potential rate of error; (4) the existence and maintenance of
standards controlling the technique's operation; and (5) whether the theory or
technique is generally accepted in the scientific community.

Another product liability case, Kumho Tires Co. v. Carmichael , 46 further modied
the Daubert standard. This led to the amendment of Rule 702 in 2000 and which
now reads as follows:

If scientic, technical or other specialized knowledge will assist the trier of

fact to understand the evidence or to determine a fact in issue, a witness
qualied as an expert by knowledge, skill, experience, training, or education,
may testify thereto in the form of an opinion or otherwise, if (1) the
testimony is based upon sucient facts or data, (2) the testimony is the
product of reliable principles and methods, and (3) the witness has applied
the principles and methods reliably to the facts of the case.

We now determine the applicability in this jurisdiction of these American cases.

Obviously, neither the Frye-Schwartz standard nor the Daubert-Kumho standard is
controlling in the Philippines. 47 At best, American jurisprudence merely has a
persuasive eect on our decisions. Here, evidence is admissible when it is relevant
to the fact in issue and is not otherwise excluded by statute or the Rules of Court. 48
Evidence is relevant when it has such a relation to the fact in issue as to induce
belief in its existence or non-existence. 49 Section 49 of Rule 130, which governs the
admissibility of expert testimony, provides as follows:

The opinion of a witness on a matter requiring special knowledge, skill,

experience or training which he is shown to possess may be received in
evidence.
 This Rule does not pose any legal obstacle to the admissibility of DNA analysis as
evidence. Indeed, even evidence on collateral matters is allowed "when it tends
in any reasonable degree to establish the probability or improbability of the fact
in issue." 50

Indeed, it would have been convenient to merely refer petitioner to our decisions in
Tijing, Vallejo and Yatar to illustrate that DNA analysis is admissible as evidence. In
our jurisdiction, the restrictive tests for admissibility established by Frye-Schwartz
and Daubert-Kumho go into the weight of the evidence. EHDCAI

Probative Value of
DNA Analysis as Evidence

Despite our relatively liberal rules on admissibility, trial courts should be cautious in
giving credence to DNA analysis as evidence. We reiterate our statement in Vallejo:

In assessing the probative value of DNA evidence, therefore, courts should

consider, among other things, the following data: how the samples were
collected, how they were handled, the possibility of contamination of the
samples, the procedure followed in analyzing the samples, whether the
proper standards and procedures were followed in conducting the tests,
and the qualification of the analyst who conducted the tests. 51

We also repeat the trial court's explanation of DNA analysis used in paternity cases:

In [a] paternity test, the forensic scientist looks at a number of these

variable regions in an individual to produce a DNA prole. Comparing next
the DNA proles of the mother and child, it is possible to determine which
half of the child's DNA was inherited from the mother. The other half must
have been inherited from the biological father. The alleged father's prole is
then examined to ascertain whether he has the DNA types in his prole,
which match the paternal types in the child. If the man's DNA types do not
match that of the child, the man is excluded as the father. If the DNA types
match, then he is not excluded as the father. 52

It is not enough to state that the child's DNA prole matches that of the putative
father. A complete match between the DNA prole of the child and the DNA
prole of the putative father does not necessarily establish paternity. For this
reason, following the highest standard adopted in an American jurisdiction, 53
trial courts should require at least 99.9% as a minimum value of the Probability
of Paternity ("W") prior to a paternity inclusion. W is a numerical estimate for
the likelihood of paternity of a putative father compared to the probability of a
random match of two unrelated individuals. An appropriate reference population
database, such as the Philippine population database, is required to compute for
W. Due to the probabilistic nature of paternity inclusions, W will never equal to
100%. However, the accuracy of W estimates is higher when the putative father,
mother and child are subjected to DNA analysis compared to those conducted
between the putative father and child alone. 54
DNA analysis that excludes the putative father from paternity should be conclusive
proof of non-paternity. If the value of W is less than 99.9%, the results of the DNA
analysis should be considered as corroborative evidence. If the value of W is 99.9%
or higher, then there is refutable presumption of paternity. 55 This refutable
presumption of paternity should be subjected to the Vallejo standards.

Right Against
Self-Incrimination

Section 17, Article 3 of the 1987 Constitution provides that "no person shall be
compelled to be a witness against himself." Petitioner asserts that obtaining
samples from him for DNA testing violates his right against self-incrimination.
Petitioner ignores our earlier pronouncements that the privilege is applicable only to
testimonial evidence. Again, we quote relevant portions of the trial court's 3
February 2000 Order with approval:

Obtaining DNA samples from an accused in a criminal case or from the

respondent in a paternity case, contrary to the belief of respondent in this
action, will not violate the right against self-incrimination. This privilege
applies only to evidence that is "communicative" in essence taken under
duress (People vs. Olvis , 154 SCRA 513, 1987). The Supreme Court has
ruled that the right against self-incrimination is just a prohibition on the use
of physical or moral compulsion to extort communication (testimonial
evidence) from a defendant, not an exclusion of evidence taken from his
body when it may be material. As such, a defendant can be required to
submit to a test to extract virus from his body (as cited in People vs. Olvis,
Supra); the substance emitting from the body of the accused was received
as evidence for acts of lasciviousness (US vs. Tan Teng , 23 Phil. 145);
morphine forced out of the mouth was received as proof (US vs. Ong Siu
Hong, 36 Phil. 735); an order by the judge for the witness to put on pair of
pants for size was allowed (People vs. Otadora, 86 Phil. 244); and the court
can compel a woman accused of adultery to submit for pregnancy test
(Villaor vs. Summers , 41 Phil. 62), since the gist of the privilege is the
restriction on "testimonial compulsion." 56

The policy of the Family Code to liberalize the rule on the investigation of the
paternity and liation of children, especially of illegitimate children, is without
prejudice to the right of the putative parent to claim his or her own defenses. 57
Where the evidence to aid this investigation is obtainable through the facilities of
modern science and technology, such evidence should be considered subject to the
limits established by the law, rules, and jurisprudence.

WHEREFORE, we DISMISS the petition. We AFFIRM the Decision of the Court of

Appeals dated 29 November 2000 in CA-G.R. SP No. 59766. We also AFFIRM the
Orders dated 3 February 2000 and 8 June 2000 issued by Branch 48 of the Regional
Trial Court of Manila in Civil Case No. SP-98-88759. IaEACT

SO ORDERED.

Davide, Jr., C.J., Quisumbing, Ynares-Santiago and Azcuna, JJ., concur.

Footnotes

1. Under Rule 45 of the Rules of Court.

2. Penned by Associate Justice Jose L. Sabio, Jr., with Associate Justices

Buenaventura J. Guerrero and Eliezer R. De Los Santos, concurring.

3. Penned by Judge Nimfa Cuesta-Vilches.

4. Rollo, pp. 318-325, 332-338.

5. Ibid., p. 92.

6. Ibid., p. 93.

7. Ibid., p. 59.

8. Ibid., p. 48.

9. Ibid., pp. 51-52.

10. Ibid., p. 22.

11. Ibid., p. 18.

12. Ibid., p. 34.

13. See Tecson v. Commission on Elections , G.R. No. 161434, 3 March 2004, 424
SCRA 277; Co v. Electoral Tribunal of the House of Representatives , G.R. Nos.
92191-92, 30 July 1991, 199 SCRA 692; Board of Commissioners (CID) v. Dela
Rosa, G.R. Nos. 95612-13, 31 May 1991, 197 SCRA 854.

14. See E. Donald Shapiro, Stewart Reier, and Claudia L. Psome, The DNA Paternity
Test: Legislating the Future Paternity Action, 7 J.L. & Health 1, 7-19 (1993).

15. See Executive Order No. 209, otherwise known as the Family Code of the
Philippines ("Family Code"), Arts. 172-173, 175; Rule 130, Sections 39-40.

16. See Family Code, Art. 166.

17. See Family Code, Arts. 165, 167.

18. See Family Code, Arts. 166-167, 170-171.

19. See Cabatania v. Court of Appeals , G.R. No. 124814, 21 October 2004.

20. 336 Phil. 741 (1997).

21. Heirs of Raymundo C. Baas v. Heirs of Bibiano Baas , L-25715, 31 January

1985, 134 SCRA 260.

22. Marcayda v. Naz , 210 Phil. 386 (1983).

23. Supra note 20.

24. Reyes, et al. v. CA, et al., 220 Phil. 116 (1985).

25. Ibid.

26. Colorado v. Court of Appeals , No. L-39948, 28 February 1985, 135 SCRA 47.

27. Jao v. Court of Appeals , No. L-49162, 28 July 1987, 152 SCRA 359.

28. 101 Phil. 188 (1957).

29. Supra note 27.

30. See Maria Corazon A. De Ungria, Ph.D., Forensic DNA Analysis in Criminal and
Civil Cases , 1 CONTINUING LEGAL EDUC. L.J. 57 (2001).

31. See The UP-NSRI DNA Analysis Laboratory, A Primer on DNA-based Paternity
Testing (2001).

32. Rollo, pp. 89-90.

33. People v. Teehankee, Jr., 319 Phil. 128 (1995).

34. G.R. No. 125901, 8 March 2001, 354 SCRA 17.

35. 431 Phil. 798 (2002).

36. Supra note 20.

37. Supra note 35.

38. G.R. No. 150224, 19 May 2004, 428 SCRA 504.

39. G.R. No. 158802, 17 November 2004.

40. 54 App. D.C. 46, 293 F. 1013 (1923).

41. 509 US 579, 113 S.Ct. 2786 (1993).

42. This form of lie detector test asserts that "blood pressure is inuenced by
change in the emotions of the witness, and that the systolic blood pressure rises
are brought about by nervous impulses sent to the sympathetic branch of the
nervous system."

43. 447 N.W.2d 422 (Minn. Sup. Ct. 1989).

44. Ibid.

45. Supra note 41.

46. 526 U.S. 137, 119 S.Ct. 1167 (1999).

47. See People v. Joel Yatar , G.R. No. 150224, 19 May 2004, 428 SCRA 504. See
alsoPacico Agabin, Integrating DNA Technology in the Judicial System , 1
CONTINUING LEGAL EDUC. L.J. 27 (2001); Patricia-Ann T. Prodigalidad,
 Assimilating DNA Testing into the Philippine Criminal Justice System: Exorcising the
Ghost of the Innocent Convict, 79 PHIL. L.J. 930 (2005).

48. Rule 128, Section 3.

49. Rule 128, Section 4.

50. Rule 128, Section 4.

51. Supra note 35.

52. Rollo, p. 90.

53. The State of Louisiana. See Maria Corazon A. De Ungria, Ph.D., Forensic DNA
Analysis in Criminal and Civil Cases , 1 CONTINUING LEGAL EDUC. L.J. 57 (2001).

54. Ibid. See also Maria Corazon A. De Ungria, Ph.D., Kristina A. Tabada, Frederick C.
Deln, Alma M. Frani, Michelle M.F. Magno, Gayvelline C. Calacal, and Saturnina C.
Halos, Resolving Questioned Paternity Issues Using a Philippine Genetic Database ,
14 SCIENCE DILIMAN 8 (January to June 2002).

55. See note 54.

56. Rollo, p. 91.

57. See Mendoza v. Court of Appeals , G.R. No. 86302, 24 September 1991, 201
SCRA 675.
 THIRD DIVISION

[G.R. No. 142762. March 4, 2005.]

LILANY YULO y BILLONES , petitioner, vs. THE PEOPLE OF THE

PHILIPPINES, respondent.

DECISION

SANDOVAL-GUTIERREZ, J : p

Before us is a petition for review on certiorari under Rule 45 of the 1997 Rules of
Civil Procedure, as amended, seeking to reverse the Decision 1 of the Court of
Appeals dated January 31, 1997 in CA-G.R. CR No. 17513 and its Resolution 2 dated
March 16, 2000.

The facts, as culled from the ndings of the trial court and armed by the Court of
Appeals are:

Sometime in August 1992, Lilany B. Yulo, petitioner, and Josena Dimalanta went
to the house of Myrna Roque, private complainant, in Caloocan City. Josena,
introduced to Myrna petitioner Yulo as her best friend and a good payer. Josena
told Myrna that petitioner wanted her checks encashed. In view of Josena's
assurance that petitioner is trustworthy, Myrna agreed to encash the checks.
Petitioner then issued to Myrna three checks: (a) Equitable Bank (EB) Check No.
237936 in the amount of P40,000.00, postdated September 30, 1992; (b) EB Check
No. 237941 in the amount of P16,200.00; and (c) Bank of the Philippine Islands
(BPI) Check No. 656602 in the amount of P40,000.00, postdated November 18,
1992. IEAacS

When Myrna presented the checks for payment to the drawee banks, they were
dishonored. The EB checks were "Drawn Against Insucient Funds," while the BPI
check was stamped "Account Closed."

As Myrna did not know petitioner's address, she immediately informed Josena
about the dishonored checks. The latter told Myrna not to worry and repeated her
assurance that petitioner is her best friend and a good payer. Myrna tried to get
petitioner's address from Josena, but the latter refused and instead made the
assurance that she will inform petitioner that the checks were dishonored.
iatdcjur

When no payment was forthcoming, Myrna lodged a complaint against petitioner

with the Office of the City Prosecutor of Caloocan City.

On August 23, 1993, three (3) Informations were led by the Caloocan City
Prosecutor with the Regional Trial Court, Branch 130, same city, for violation of
Batas Pambansa Blg. 22, docketed as Criminal Cases Nos. C-44774, 44775, and
44776.

When arraigned with the assistance of counsel de parte, petitioner pleaded not
guilty to the charges. The cases were then consolidated and jointly heard.

Petitioner admitted having issued the checks in question but claimed that she
merely lent them to Josena. In turn, Josena delivered the checks to her friend
who showed them to a jeweler as "show money." It was understood that the checks
were not to be deposited. Petitioner vehemently denied having any transaction with
Myrna.

Petitioner also claimed that when she issued the checks, she knew she had no funds
in the banks; and that she was aware that the checks would be dishonored if
presented for payment.

After hearing, the trial court rendered its Decision, the dispositive portion of which
reads:

WHEREFORE, the Court nds the accused LILANY YULO y BILLONES, guilty
beyond reasonable doubt of a violation of Batas Pambansa Blg. 22, and is
hereby sentenced as follows:

(1) In Criminal Case No. C-44774, to an imprisonment of ONE (1) YEAR,

and to indemnify the oended party Myrna Roque in the amount of
P16,200.00, representing the face value of Equitable Bank Check No.
227941, and to pay the costs;

(2) In Criminal Case No. C-44775, to an to an imprisonment of ONE (1)

YEAR, and to indemnify the oended party Myrna Roque in the
amount of P40,000.00, representing the face value of Bank of the
Philippine Islands Check No. 656602, and to pay the costs;

(3) In Criminal Case No. C-44776, to an imprisonment of ONE (1) YEAR,

and to indemnify the oended party Myrna Roque in the amount of
P40,000.00, representing the face value of Equitable Bank Check No.
237936, and to pay the costs.ASaTHc

Pursuant to Rule 114, Section 2(a) of the Rules of Court, as amended, the
bail bond of the accused is cancelled and the accused is hereby committed
to the City Jail.

SO ORDERED. 3

Upon appeal, docketed as CA-G.R. CR No. 17513, the Court of Appeals armed in
toto the Decision of the trial court.

Petitioner filed a motion for reconsideration but was denied.

Hence, the instant petition raising the following assignments of error:

 "I. WHETHER OR NOT THE PETITIONER WAS DEPRIVED OF HER RIGHT
TO SPEEDY DISPOSITION OF CASES;

II. WHETHER OR NOT THE COURT OF APPEALS ERRED IN AFFIRMING

THE CONVICTION FOR VIOLATION OF BATAS PAMBANSA BLG. 22.
EVEN IF THE REQUISITES THEREFORE ARE NOT COMPLETE;

III. WHETHER OR NOT THE COURT OF APPEALS ERRED IN AFFIRMING

THE DECISION OF THE TRIAL COURT ALTHOUGH THE LATTER'S
DECISION WAS BASED ON THE UNCORROBORATED, INCREDIBLE,
AND UNNATURAL STATEMENTS OF THE COMPLAINANT AND
ALTHOUGH THE TESTIMONY OF THE ACCUSED WAS SUPPORTED BY
CORROBORATING EVIDENCE. 4

The issues for our resolution are: (1) whether the Court of Appeals violated
petitioner's right to a speedy trial; and (2) whether the same court erred in holding
that the prosecution has proved petitioner's guilt beyond reasonable doubt.

On the first issue, petitioner contends that the Court of Appeals resolved her motion
for reconsideration only after three (3) years from its ling. Such inaction violates
her right to a speedy disposition of her case.

In his comment, the Solicitor General counters that the Appellate Court has
explained satisfactorily why petitioner's motion for reconsideration was not resolved
immediately.

Article III, Section 16 of the Constitution provides:

SEC. 16. All persons shall have the right to a speedy disposition of their
cases before all judicial, quasi-judicial, or administrative bodies.

Under the foregoing provision, any party to a case has the right to demand on all
ocials tasked with the administration of justice to expedite its disposition.
However, the concept of speedy disposition is a relative term and must necessarily
be a exible concept. 5 A mere mathematical reckoning of the time involved is not
su cient. 6 In applying the Constitutional guarantee, particular regard must be
taken of the facts and circumstances of each case.

The right to a speedy disposition of a case, like the right to speedy trial, 7 is deemed
violated only when the proceedings are attended by vexatious, capricious, and
oppressive delays, or when unjustied postponements of the trial are asked for and
secured, or when without cause or justiable motive a long period of time is allowed
to elapse without the party having his case tried. 8 To determine whether the right
has been violated, the following factors may be considered: (1) the length of the
delay; (2) the reasons for such delay; (3) the assertion or failure to assert such right
by the accused; and (4) the prejudice caused by the delay. 9

In the instant case, we agree with the Solicitor General that the delay was
suciently explained by the Court of Appeals. The ponente of the decision in CA-
G.R. CR No. 17513, Associate Justice Jainal D. Rasul, retired during the pendency of
petitioner's motion for reconsideration led on March 4, 1997. However, the case
was assigned to Associate Justice Mercedes Gozo-Dadole only on February 28, 2000
and brought to her attention on March 2, 2000. We note that it took Justice Gozo-
Dadole only two (2) weeks from notice to resolve the motion. Clearly, she did not
incur any delay. We, therefore, rule that there has been no violation of the
petitioner's right to a speedy trial.

On the second issue, petitioner submits that the prosecution failed to prove her guilt
beyond reasonable doubt. Not all the elements of the oense of violation of Batas
Pambansa Blg. 22 were adequately established. For one, Myrna Roque, private
complainant, did not send her any notice of dishonor. It was Josena whom Myrna
contacted, not her. For another, petitioner merely lent the checks to Josena to be
shown by her friend to a jeweler.

Petitioner's arguments are simply untenable.

The elements of the oense penalized by Batas Pambansa Blg. 22 are: (1) the
making, drawing, and issuance of any check to apply for account or for value; (2)
the knowledge of the maker, drawer, or issuer that at the time of issue he does not
have sucient funds in or credit with the drawee bank for the payment of the check
in full upon its presentment; and (3) the subsequent dishonor of the check by the
drawee bank for insucient funds or credit or dishonor for the same reason had not
the drawer, without any valid cause, ordered the bank to stop payment. 10

We agree with the Court of Appeals that the prosecution has proved all the
elements of the offense. IDATCE

Petitioner admitted having issued the three dishonored checks for value. Her
purpose was to encash them. She also admitted that at the time she issued the
checks, she was aware that she had only P1,000.00 in her account with the
Equitable Bank and that her BPI account was already closed. Signicantly, what
Batas Pambansa Blg. 22 penalizes is the issuance of a bouncing check. It is not the
non-payment of an obligation which the law punishes, but the act of making and
issuing a check that is dishonored upon presentment for payment. 11 The purpose
for which the check was issued and the terms and conditions relating to its issuance
are immaterial. What is primordial is that the issued checks were worthless and the
fact of worthlessness was known to the petitioner at the time of their issuance, as
in this case. This is because under Batas Pambansa Blg. 22, the mere act of issuing a
worthless check is malum prohibitum . 12

We likewise nd no reason to sustain petitioner's contention that she was not given
any notice of dishonor. Myrna had no reason to be suspicious of petitioner. It will be
recalled that Josena Dimalanta assured Myrna that petitioner is her "best friend"
and "a good payer." Consequently, when the checks bounced, Myrna would
naturally turn to Josena for help. We note that Josena refused to give Myrna
petitioner's address but promised to inform petitioner about the dishonored checks.

The Court of Appeals armed the ndings of the trial court. Settled is the rule that
factual ndings of the trial court which have been armed in toto by the Court of
Appeals are entitled to great weight and respect by this Court and will not be
disturbed absent any showing that the trial court overlooked certain facts and
circumstances which could substantially aect the outcome of the case. 13 This
exception is not present here. That Myrna was the sole witness for the prosecution
is of no moment. There is no law requiring that the testimony of a single witness
must be corroborated. The rule in this jurisdiction is that the testimony of witnesses
is weighed, not numbered, and the testimony of a single witness, if found
trustworthy and credible, as in this case, is sufficient to sustain a conviction. 14

WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals dated
January 31, 1997 and its Resolution dated March 16, 2000, in CA-G.R. CR No.
17513, sustaining the Joint Decision of the trial court in Criminal Cases Nos. C-
44774, C-44775, and C-44776 are AFFIRMED. Costs against petitioner.

SO ORDERED.

Panganiban, Corona, Carpio Morales and Garcia, JJ., concur.

Footnotes

1. Rollo at 37-44. Penned by Associate Justice Jainal D. Rasul (deceased) and

concurred in by Associate Justices Hector L. Holea and Artemio G. Toquero
(both retired).

2. Id. at 46-47. Per Associate Justice Mercedes Gozo-Dadole with Associate Justices
Buenaventura J. Guerrero and Hilarion L. Aquino (both retired), concurring.

3. Id. at 57-58.

4. Id. at 37.

5. Alvizo v. Sandiganbayan, G.R. No. 101689, March 17, 1993, 220 SCRA 55, 63;
Caballero v. Alfonso, Jr., G.R. No. 45647, August 21, 1987, 153 SCRA 153, 163.

6. Binay v. Sandiganbayan, 374 Phil. 413, 447 (1999), citing Socrates v.

Sandiganbayan, 253 SCRA 773 (1996).

7. CONST. ART. III, Sec. 14(2).

8. Ty-Dazo v . Sandiganbayan, 424 Phil. 945, 950-951 (2002), citing Binay v.

Sandiganbayan, supra; Gonzales v. Sandiganbayan, 199 SCRA 298 (1991).

9. Blanco v. Sandiganbayan, G.R. Nos. 136757-58, November 27, 2000, 346 SCRA
108, 114 citing Alvizo v. Sandiganbayan, supra.

10. Tan v . Mendez, Jr., 432 Phil. 760, 769 (2002) citing Lim v. People, 420 Phil. 506
(2001).
11. Ibasco v. Court of Appeals , G.R. No. 117488, September 5, 1996, 261 SCRA
449, 463, citing Caram v. Contreras , 237 SCRA 724 (1994).

12. Llamado v. Court of Appeals , G.R. No. 99032, March 26, 1997, 270 SCRA 423,
431 citing People v. Nitafan, 215 SCRA 79 (1992).

13. Lim v. People, 420 Phil. 506, 512 (2001), citing American Home Assurance Co. v.
Chua, 309 SCRA 250 (1999).

14. People v. Pirame, 384 Phil. 286, 297 (2000).

 FIRST DIVISION

[G.R. No. 158763. March 31, 2006.]

JOSE C. MIRANDA, ALBERTO P. DALMACIO, and ROMEO B.

OCON, petitioners, vs. VIRGILIO M. TULIAO, respondent.

DECISION

CHICO-NAZARIO, J : p

This is a petition for review on certiorari under Rule 45 of the Rules of Court,
assailing the 18 December 2002 Decision 1 of the Court of Appeals in CA-G.R. SP No.
67770 and its 12 June 2003 Resolution denying petitioners' Motion for
Reconsideration. The dispositive portion of the assailed decision reads as follows:

WHEREFORE, nding public respondent Judge Anastacio D. Anghad to have

acted with grave abuse of discretion amounting to lack or excess of
jurisdiction in issuing the assailed Orders, the instant petition for certiorari,
mandamus and prohibition is hereby GRANTED and GIVEN DUE COURSE,
and it is hereby ordered:

1. The assailed Joint Order dated August 17, 2001, Order dated
September 21, 2001, Joint Order dated October 16, 2001 and
Joint Order dated November 14, 2001 dismissing the two (2)
Informations for Murder, all issued by public respondent Judge
Anastacio D. Anghad in Criminal Cases Nos. 36-3523 and 36-
3524 are hereby REVERSED and SET ASIDE for having been
issued with grave abuse of discretion amounting to lack or
excess of jurisdiction, and another entered UPHOLDING,
AFFIRMING[,] and REINSTATING the Order dated June 25, 2001
and Joint Order dated July 6, 2001 issued by the then acting
Presiding Judge Wilfredo Tumaliuan;

2. Criminal Cases Nos. 36-3523 and 36-3524 are hereby ordered

REINSTATED in the docket of active criminal cases of Branch 36
of the Regional Trial Court of Santiago City, Isabela; and

3. Public respondent Judge Anastacio D. Anghad is DIRECTED to

ISSUE forthwith Warrants of Arrest for the apprehension of
private respondents Jose "Pempe" Miranda, SPO3 Alberto P.
Dalmacio, PO3 Romeo B. Ocon and accused Rodel T. Maderal in
said Criminal Cases Nos. 36-3523 and 36-3524. 2

The factual and procedural antecedents of the case are as follows:

On 8 March 1996, two burnt cadavers were discovered in Purok Nibulan, Ramon,
Isabela, which were later identied as the dead bodies of Vicente Bauzon and Elizer
Tuliao, son of private respondent Virgilio Tuliao who is now under the witness
protection program.

Two informations for murder were led against SPO1 Wilfredo Leao, SPO1
Ferdinand Marzan, SPO1 Ruben B. Agustin, SPO2 Alexander Micu, SPO2 Rodel
Maderal, and SPO4 Emilio Ramirez in the Regional Trial Court (RTC) of Santiago
City.

The venue was later transferred to Manila. On 22 April 1999, the RTC of Manila
convicted all of the accused and sentenced them to two counts of reclusion perpetua
except SPO2 Maderal who was yet to be arraigned at that time, being at large. The
case was appealed to this Court on automatic review where we, on 9 October 2001,
acquitted the accused therein on the ground of reasonable doubt.

Sometime in September 1999, SPO2 Maderal was arrested. On 27 April 2001, he

executed a sworn confession and identied petitioners Jose C. Miranda, PO3 Romeo
B. Ocon, and SPO3 Alberto P. Dalmacio, a certain Boyet dela Cruz and Amado Doe,
as the persons responsible for the deaths of Vicente Bauzon and Elizer Tuliao.

Respondent Tuliao led a criminal complaint for murder against petitioners, Boyet
dela Cruz, and Amado Doe, and submitted the sworn confession of SPO2 Maderal.
On 25 June 2001, Acting Presiding Judge Wilfredo Tumaliuan issued warrants of
arrest against petitioners and SPO2 Maderal.

On 29 June 2001, petitioners led an urgent motion to complete preliminary

investigation, to reinvestigate, and to recall and/or quash the warrants of arrest.

In the hearing of the urgent motion on 6 July 2001, Judge Tumaliuan noted the
absence of petitioners and issued a Joint Order denying said urgent motion on the
ground that, since the court did not acquire jurisdiction over their persons, the
motion cannot be properly heard by the court. In the meantime, petitioners
appealed the resolution of State Prosecutor Leo T. Reyes to the Department of
Justice.

On 17 August 2001, the new Presiding Judge Anastacio D. Anghad took over the
case and issued a Joint Order reversing the Joint Order of Judge Tumaliuan.
Consequently, he ordered the cancellation of the warrant of arrest issued against
petitioner Miranda. He likewise applied this Order to petitioners Ocon and Dalmacio
in an Order dated 21 September 2001. State Prosecutor Leo S. Reyes and
respondent Tuliao moved for the reconsideration of the said Joint Order and prayed
for the inhibition of Judge Anghad, but the motion for reconsideration was denied in
a Joint Order dated 16 October 2001 and the prayer for inhibition was denied in a
Joint Order dated 22 October 2001.

On 25 October 2001, respondent Tuliao filed a petition for certiorari, mandamus and
prohibition with this Court, with prayer for a Temporary Restraining Order, seeking
to enjoin Judge Anghad from further proceeding with the case, and seeking to nullify
the Orders and Joint Orders of Judge Anghad dated 17 August 2001, 21 September
2001, 16 October 2001, and 22 October 2001.

On 12 November 2001, this Court issued a Resolution resolving to grant the prayer
for a temporary restraining order against Judge Anghad from further proceeding
with the criminal cases. Shortly after the aforesaid resolution, Judge Anghad issued
a Joint Order dated 14 November 2001 dismissing the two Informations for murder
against petitioners. On 19 November 2001, this Court took note of respondent's
cash bond evidenced by O.R. No. 15924532 dated 15 November 2001, and issued
the temporary restraining order while referring the petition to the Court of Appeals
for adjudication on the merits. SHTcDE

Respondent Tuliao led with this Court a Motion to Cite Public Respondent in
Contempt, alleging that Judge Anghad "deliberately and willfully committed
contempt of court when he issued on 15 November 2001 the Order dated 14
November 2001 dismissing the informations for murder." On 21 November 2001,
we referred said motion to the Court of Appeals in view of the previous referral to it
of respondent's petition for certiorari, prohibition and mandamus.

On 18 December 2002, the Court of Appeals rendered the assailed decision granting
the petition and ordering the reinstatement of the criminal cases in the RTC of
Santiago City, as well as the issuance of warrants of arrest against petitioners and
SPO2 Maderal. Petitioners moved for a reconsideration of this Decision, but the
same was denied in a Resolution dated 12 June 2003.

Hence, this petition.

The facts of the case being undisputed, petitioners bring forth to this Court the
following assignments of error:

FIRST ASSIGNMENT OF ERROR

With all due respect, the Honorable Court of Appeals gravely erred in
reversing and setting aside the Joint Order of Judge Anastacio D. Anghad
dated August 17, 2001, September 21, 2001, October 16, 2001 and
November 14, 2001 issued in criminal cases numbered 36-3523 and 36-
3524; and, erred in upholding, arming and reinstating the Order dated July
6, 2001 issued by then Acting Presiding Judge Wilfredo Tumaliuan, on the
alleged rule that an accused cannot seek any judicial relief if he does not
submit his person to the jurisdiction of the court.

SECOND ASSIGNMENT OF ERROR

With all due respect, the Honorable Court of Appeals gravely erred in
directing the reinstatement of Criminal Cases No. 36-3523 and 36-3524 in
the docket of Active Criminal Cases of Branch 36 of the Regional Trial Court
of Santiago City, Philippines, and in ordering the public respondent to re-
issue the warrants of arrest against herein petitioners.

THIRD ASSIGNMENT OF ERROR

 Wit all due respect, the Honorable Court of Appeals committed a reversible
error in ordering the reinstatement of Criminal Cases No. 36-3523 and No.
36-3524 in the docket of active criminal cases of Branch 36 of the regional
trial court of Santiago City, Philippines, and in ordering the public respondent
to issue warrants of arrest against herein petitioners, the order of dismissal
issued therein having become final and executory.

Adjudication of a motion to quash a

warrant of arrest requires neither
jurisdiction over the person of the
accused, nor custody of law over the
body of the accused.

The rst assignment of error brought forth by the petitioner deals with the Court of
Appeals' ruling that:

[A]n accused cannot seek any judicial relief if he does not submit his person
to the jurisdiction of the court. Jurisdiction over the person of the accused
may be acquired either through compulsory process, such as warrant of
arrest, or through his voluntary appearance, such as when he surrenders to
the police or to the court. It is only when the court has already acquired
jurisdiction over his person that an accused may invoke the processes of
the court (Pete M. Pico vs. Alfonso V. Combing, Jr., A.M. No. RTJ-91-764,
November 6, 1992). Thus, an accused must rst be placed in the custody of
the law before the court may validly act on his petition for judicial reliefs. 3

Proceeding from this premise, the Court of Appeals ruled that petitioners Miranda,
Ocon and Dalmacio cannot seek any judicial relief since they were not yet arrested
or otherwise deprived of their liberty at the time they led their "Urgent Motion to
complete preliminary investigation; to reinvestigate; to recall and/or quash
warrants of arrest." 4

Petitioners counter the nding of the Court of Appeals by arguing that jurisdiction
over the person of the accused is required only in applications for bail. Furthermore,
petitioners argue, assuming that such jurisdiction over their person is required
before the court can act on their motion to quash the warrant for their arrest, such
jurisdiction over their person was already acquired by the court by their ling of the
above Urgent Motion.

In arguing that jurisdiction over the person is required only in the adjudication of
applications for bail, petitioners quote Retired Court of Appeals Justice Oscar
Herrera:

Except in applications for bail, it is not necessary for the court to rst
acquire jurisdiction over the person of the accused to dismiss the case or
grant other relief. The outright dismissal of the case even before the court
acquires jurisdiction over the person of the accused is authorized under
Section 6(a), Rule 112 of the Revised Rules of Criminal Procedure and the
 Revised Rules on Summary Procedure (Sec. 12a). In Allado vs. Diokno
(232 SCRA 192), the case was dismissed on motion of the accused for
lack of probable cause without the accused having been arrested. In Paul
Roberts vs. Court of Appeals (254 SCRA 307), the Court was ordered
to hold the issuance of a warrant of arrest in abeyance pending review by
the Secretary of Justice. And in Lacson vs. Executive Secretary (301
SCRA 102 5 ), the Court ordered the case transferred from the
Sandiganbayan to the RTC which eventually ordered the dismissal of the
case for lack of probable cause. 6

In arguing, on the other hand, that jurisdiction over their person was already
acquired by their ling of the above Urgent Motion, petitioners invoke our
pronouncement, through Justice Florenz D. Regalado, in Santiago v. Vasquez 7 :

The voluntary appearance of the accused, whereby the court acquires

jurisdiction over his person, is accomplished either by his pleading to the
merits (such as by ling a motion to quash or other pleadings requiring the
exercise of the court's jurisdiction thereover, appearing for arraignment,
entering trial) or by ling bail. On the matter of bail, since the same is
intended to obtain the provisional liberty of the accused, as a rule the same
cannot be posted before custody of the accused has been acquired by the
judicial authorities either by his arrest or voluntary surrender.

Our pronouncement in Santiago shows a distinction between custody of the law and
jurisdiction over the person. Custody of the law is required before the court can act
upon the application for bail, but is not required for the adjudication of other reliefs
sought by the defendant where the mere application therefor constitutes a waiver
of the defense of lack of jurisdiction over the person of the accused. 8 Custody of the
law is accomplished either by arrest or voluntary surrender, 9 while jurisdiction over
the person of the accused is acquired upon his arrest or voluntary appearance. 10
One can be under the custody of the law but not yet subject to the jurisdiction of the
court over his person, such as when a person arrested by virtue of a warrant les a
motion before arraignment to quash the warrant. On the other hand, one can be
subject to the jurisdiction of the court over his person, and yet not be in the custody
of the law, such as when an accused escapes custody after his trial has commenced.
11 Being in the custody of the law signies restraint on the person, who is thereby
deprived of his own will and liberty, binding him to become obedient to the will of
the law. 12 Custody of the law is literally custody over the body of the accused. It
includes, but is not limited to, detention.

The statement in Pico v. Judge Combong, Jr ., 13 cited by the Court of Appeals should
not have been separated from the issue in that case, which is the application for
admission to bail of someone not yet in the custody of the law. The entire paragraph
of our pronouncement in Pico reads:

A person applying for admission to bail must be in the custody of the law or
otherwise deprived of his liberty. A person who has not submitted himself to
the jurisdiction of the court has no right to invoke the processes of that
court. Respondent Judge should have diligently ascertained the whereabouts
 of the applicant and that he indeed had jurisdiction over the body of the
accused before considering the application for bail. 14

While we stand by our above pronouncement in Pico insofar as it concerns bail, we

clarify that, as a general rule, one who seeks an armative relief is deemed to have
submitted to the jurisdiction of the court. 15 As we held in the aforecited case of
Santiago, seeking an armative relief in court, whether in civil or criminal
proceedings, constitutes voluntary appearance. HTDCAS

Pico deals with an application for bail, where there is the special requirement of the
applicant being in the custody of the law. In Feliciano v. Pasicolan , 16 we held that "
[t]he purpose of bail is to secure one's release and it would be incongruous to grant
bail to one who is free. Thus, 'bail is the security required and given for the release
of a person who is in the custody of law.'" The rationale behind this special rule on
bail is that it discourages and prevents resort to the former pernicious practice
wherein the accused could just send another in his stead to post his bail, without
recognizing the jurisdiction of the court by his personal appearance therein and
compliance with the requirements therefor. 17

There is, however, an exception to the rule that ling pleadings seeking armative
relief constitutes voluntary appearance, and the consequent submission of one's
person to the jurisdiction of the court. This is in the case of pleadings whose prayer
is precisely for the avoidance of the jurisdiction of the court, which only leads to a
special appearance. These pleadings are: (1) in civil cases, motions to dismiss on the
ground of lack of jurisdiction over the person of the defendant, whether or not other
grounds for dismissal are included; 18 (2) in criminal cases, motions to quash a
complaint on the ground of lack of jurisdiction over the person of the accused; and
(3) motions to quash a warrant of arrest. The rst two are consequences of the fact
that failure to le them would constitute a waiver of the defense of lack of
jurisdiction over the person. The third is a consequence of the fact that it is the very
legality of the court process forcing the submission of the person of the accused that
is the very issue in a motion to quash a warrant of arrest.

To recapitulate what we have discussed so far, in criminal cases, jurisdiction over

the person of the accused is deemed waived by the accused when he les any
pleading seeking an armative relief, except in cases when he invokes the special
jurisdiction of the court by impugning such jurisdiction over his person. Therefore, in
narrow cases involving special appearances, an accused can invoke the processes of
the court even though there is neither jurisdiction over the person nor custody of
the law. However, if a person invoking the special jurisdiction of the court applies for
bail, he must first submit himself to the custody of the law.

In cases not involving the so-called special appearance, the general rule applies, i.e.,
the accused is deemed to have submitted himself to the jurisdiction of the court
upon seeking armative relief. Notwithstanding this, there is no requirement for
him to be in the custody of the law. The following cases best illustrate this point,
where we granted various reliefs to accused who were not in the custody of the law,
but were deemed to have placed their persons under the jurisdiction of the court.
Note that none of these cases involve the application for bail, nor a motion to quash
an information due to lack of jurisdiction over the person, nor a motion to quash a
warrant of arrest:

1. I n Allado v. Diokno , 19 on the prayer of the accused in a petition

for certiorari on the ground of lack of probable cause, we issued a
temporary restraining order enjoining PACC from enforcing the
warrant of arrest and the respondent judge therein from further
proceeding with the case and, instead, to elevate the records to
us.

2. I n Roberts, Jr. v. Court of Appeals , 20 upon the accused's Motion

to Suspend Proceedings and to Hold in Abeyance Issuance of
Warrants of Arrest on the ground that they led a Petition for
Review with the Department of Justice, we directed respondent
judge therein to cease and desist from further proceeding with
the criminal case and to defer the issuance of warrants of arrests
against the accused.

3. In Lacson v. Executive Secretary , 21 on the prayer of the accused

in a petition for certiorari on the ground of lack of jurisdiction on
the part of the Sandiganbayan, we directed the Sandiganbayan
to transfer the criminal cases to the Regional Trial Court even
before the issuance of the warrants of arrest.

We hold that the circumstances forcing us to require custody of the law in

applications for bail are not present in motions to quash the warrant of arrest. If we
allow the granting of bail to persons not in the custody of the law, it is foreseeable
that many persons who can aord the bail will remain at large, and could elude
being held to answer for the commission of the oense if ever he is proven guilty.
On the other hand, if we allow the quashal of warrants of arrest to persons not in
the custody of the law, it would be very rare that a person not genuinely entitled to
liberty would remain scot-free. This is because it is the same judge who issued the
warrant of arrest who will decide whether or not he followed the Constitution in his
determination of probable cause, and he can easily deny the motion to quash if he
really did find probable cause after personally examining the records of the case.

Moreover, pursuant to the presumption of regularity of ocial functions, the

warrant continues in force and eect until it is quashed and therefore can still be
enforced on any day and at any time of the day and night. 22 Furthermore, the
continued absence of the accused can be taken against him in the determination of
probable cause, since flight is indicative of guilt.

In ne, as much as it is incongruous to grant bail to one who is free, it is likewise

incongruous to require one to surrender his freedom before asserting it. Human
rights enjoy a higher preference in the hierarchy of rights than property rights, 23
demanding that due process in the deprivation of liberty must come before its
taking and not after.
 Quashing a warrant of arrest based
on a subsequently filed petition for
review with the Secretary of Justice
and based on doubts engendered by
the political climate constitutes
grave abuse of discretion.

We nevertheless nd grave abuse of discretion in the assailed actions of Judge

Anghad. Judge Anghad seemed a little too eager of dismissing the criminal cases
against the petitioners. First, he quashed the standing warrant of arrest issued by
his predecessor because of a subsequently led appeal to the Secretary of Justice,
and because of his doubts on the existence of probable cause due to the political
climate in the city. Second, after the Secretary of Justice armed the prosecutor's
resolution, he dismissed the criminal cases on the basis of a decision of this Court in
another case with dierent accused, doing so two days after this Court resolved to
issue a temporary restraining order against further proceeding with the case.

After Judge Tumaliuan issued warrants for the arrest of petitioners, petitioner
Miranda appealed the assistant prosecutor's resolution before the Secretary of
Justice. Judge Anghad, shortly after assuming oce, quashed the warrant of arrest
on the basis of said appeal. According to Judge Anghad, ". . . prudence dictates (that)
and because of comity, a deferment of the proceedings is but proper." 24

Quashal on this basis is grave abuse of discretion. It is inconceivable to charge Judge

Tumaliuan as lacking in prudence and oblivious to comity when he issued the
warrants of arrest against petitioners just because the petitioners might, in the
future, appeal the assistant prosecutor's resolution to the Secretary of Justice. But
even if the petition for review was led before the issuance of the warrants of
arrest, the fact remains that the pendency of a petition for the review of the
prosecutor's resolution is not a ground to quash the warrants of arrest. cCEAHT

I n Webb v. de Leon , 25 we held that the petitioners therein cannot assail as

premature the ling of the information in court against them on the ground that
they still have the right to appeal the adverse resolution of the DOJ Panel to the
Secretary of Justice. Similarly, the issuance of warrants of arrest against petitioners
herein should not have been quashed as premature on the same ground.

The other ground invoked by Judge Anghad for the quashal of the warrant of arrest
is in order if true: violation of the Constitution. Hence, Judge Anghad asked and
resolved the question:

In these double murder cases, did this Court comply or adhere to the
above-quoted constitutional proscription, which is Sec. 2, Article III Bill of
Rights; to Sec. 6(a), Rule 112, Rules of Criminal Procedure and to the above-
cited decisional cases? To this query or issue, after a deep perusal of the
arguments raised, this Court, through [its] regular Presiding Judge, nds
merit in the contention of herein accused-movant, Jose "Pempe" Miranda. 26
Judge Anghad is referring to the following provision of the Constitution as having
been violated by Judge Tumaliuan:

Sec. 2. The right of the people to be secure in their persons, houses,

papers and eects 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 armation 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. 27

However, after a careful scrutiny of the records of the case, including the supporting
evidence to the resolution of the prosecutor in his determination of probable cause,
we find that Judge Anghad gravely abused his discretion.

According to petitioners:

In this case, the nullity of the order of Judge Tumaliuan, for the arrest of the
petitioners is apparent from the face of the order itself, which clearly stated
that the determination of probable cause was based on the certication,
under oath, of the scal and not on a separate determination personally
made by the Judge. No presumption of regularity could be drawn from the
order since it expressly and clearly showed that it was based only on the
fiscal's certification. 28

Petitioners' claim is untrue. Judge Tumaliuan's Joint Order contains no such

indication that he relied solely on the prosecutor's certication. The Joint Order
even indicated the contrary:

Upon receipt of the information and resolution of the prosecutor, the Court
proceeded to determine the existence of a probable cause by personally
evaluating the records . . . . 29

The records of the case show that the prosecutor's certication was accompanied by
supporting documents, following the requirement under Lim, Sr. v. Felix 30 and
People v. Inting. 31 The supporting documents are the following:
1. Resolution dated 21 June 2001 of State Prosecutor Leo S. Reyes;
2. Affidavit dated 22 May 2001 of Modesto Gutierrez;
3. Affidavit dated 19 May 2001 of Romeo B. Ocon;
4. Joint Counter Adavit dated 23 May 2001 of Mayor Jose C. Miranda
and Reynaldo de la Cruz;
5. Affidavit dated 19 May 2001 of Alberto Dalmacio;
6. Decision dated 22 April 1999 of the Regional Trial Court of Manila,
Branch 41 in Criminal Case No. 97-160355;
7. Sworn statement dated 27 April 2001 of Rodel Maderal;
8. Information dated 22 June 2001;
9. Affidavit-complaint of Virgilio Tuliao; and
 10. Medico-legal Reports of the cadavers of Elezer Tuliao and Vicente
Buazon.

Hence, procedurally, we can conclude that there was no violation on the part of
Judge Tumaliuan of Article III, Section 2, of the Constitution. Judge Anghad,
however, focused on the substantive part of said section, i.e., the existence of
probable cause. In failing to nd probable cause, Judge Anghad ruled that the
confession of SPO2 Maderal is incredible for the following reasons: (1) it was given
after almost two years in the custody of the National Bureau of Investigation; (2) it
was given by someone who rendered himself untrustworthy for being a fugitive for
ve years; (3) it was given in exchange for an obvious reward of discharge from the
information; and (4) it was given during the election period amidst a "politically
charged scenario where "Santiago City voters were pitted against each other along
the lines of the Miranda camp on one side and former City Mayor Amelita S.
Navarro, and allegedly that of DENR Secretary Heherson Alvarez on the other." 32

We painstakingly went through the records of the case and found no reason to
disturb the findings of probable cause of Judge Tumaliuan.

It is important to note that an exhaustive debate on the credibility of a witness is

not within the province of the determination of probable cause. As we held in Webb
33 :

A nding of probable cause needs only to rest on evidence showing that

more likely than not a crime has been committed and was committed by the
suspects. Probable cause need not be based on clear and convincing
evidence of guilt, neither on evidence establishing guilt beyond reasonable
doubt and denitely, not on evidence establishing absolute certainty of guilt.
As well put in Brinegar v. United States , while probable cause demands more
than "bare suspicion," it requires "less than evidence which would justify . . .
conviction." A nding of probable cause merely binds over the suspect to
stand trial. It is not a pronouncement of guilt.

. . . Probable cause merely implies probability of guilt and should be

determined in a summary manner. Preliminary investigation is not a part of
trial . . . .

Dismissing a criminal case on the

basis of a decision of this Court in
another case with different accused
constitutes grave abuse of
discretion.

Judge Anghad had quashed the warrant of arrest on the ground, among other
things, that there was a petition for review of the assistant prosecutor's resolution
before the Secretary of Justice. However, after the Secretary of Justice armed the
prosecutor's resolution, Judge Anghad summarily dismissed the two criminal cases
against the petitioners on the basis of the following explanation:

Rodel Maderal was one of the accused in People vs. Wilfredo Leano, et al.,
 RTC, Branch 41, Manila, and based from his sworn statements, he
pinpointed to Mr. Miranda the mastermind and with him and the other
police ocers as the direct perpetrators, the October 9, 2001 Decision of
the Supreme Court absolving the ve cops of murder, certainly makes his
sworn Statements a "narration of falsehood and lies" and that because of
the decision acquitting said ocers "who were likewise falsely linked by said
Rodel Maderal in his April 27, 2001 statements, it is now beyond doubt that
Rodel Maderal made untruthful, fabricated and perjured statements and
therefore the same is without probable value." This Court agrees with the
defense's views. Indeed, of what use is Maderal's statements when the
Supreme Court rejected the prosecution's evidence presented and adduced
in Criminal Case No. 97-160355. Rodel Maderal is supposed to turn state
witness in these two (2) cases but with the Supreme Court decision
adverted to, the probative value of his statements is practically nil.
EaCDAT

xxx xxx xxx

This Court nds merit to the manifestation of the accused Miranda dated
October 18, 2001, praying for the summary dismissal of the two (2) murder
charges in view of the latest decision of the Supreme Court in People of the
Philippines vs. Wilfredo Leao, et al., G.R. No. 13886, acquitting the accused
therein and in eect disregarding all the evidence presented by the
prosecution in that case. Accordingly, the two (2) informations [for] murder
filed against Jose Miranda are ordered dismissed. 34

This is a clear case of abuse of discretion. Judge Anghad had no right to twist our
decision and interpret it to the discredit of SPO2 Maderal, who was still at large
when the evidence of the prosecution in the Leao case was presented. A decision,
even of this Court, acquitting the accused therein of a crime cannot be the basis of
the dismissal of criminal case against dierent accused for the same crime. The
blunder of Judge Anghad is even more pronounced by the fact that our decision in
Leao was based on reasonable doubt. We never ruled in Leao that the crime did
not happen; we just found that there was reasonable doubt as to the guilt of the
accused therein, since the prosecution in that case relied on circumstantial evidence,
which interestingly is not even the situation in the criminal cases of the petitioners
in the case at bar as there is here an eyewitness: Rodel Maderal. The accused in
Leao furthermore had no motive to kill respondent Tuliao's son, whereas
petitioners herein had been implicated in the testimony of respondent Tuliao before
the Senate Blue Ribbon Committee.

It is preposterous to conclude that because of our nding of reasonable doubt in

Leao, "it is now beyond doubt that Rodel Maderal made untruthful, fabricated and
perjured statements and therefore the same is without probable value." 35 On the
contrary, if we are to permit the use of our decision in Leao, an acquittal on the
ground of reasonable doubt actually points to the probability of the prosecution's
version of the facts therein. Such probability of guilt certainly meets the criteria of
probable cause.
We cannot let unnoticed, too, Judge Anghad's dismissal of the informations two
days after we resolved to issue, upon the ling of a bond, a temporary restraining
order prohibiting him from further proceeding with the case. The bond was led the
day after the informations were dismissed. While the dismissal of the case was able
to beat the eectivity date of the temporary restraining order, such abrupt dismissal
of the informations (days after this Court's resolve to issue a TRO against Judge
Anghad) creates wild suspicions about the motives of Judge Anghad.

Nullification of a proceeding
necessarily carries with it the
reinstatement of the orders set
aside by the nullified proceeding.

In their second assignment of error, petitioners claim that the Court of Appeals did
not recall or reinstate the warrants of arrest issued by Judge Tumaliuan, but instead
directed Judge Anghad to issue apparently new warrants of arrest. 36 According to
the petitioners, it was an error for the Court of Appeals to have done so, without a
personal determination of probable cause.

We disagree. Whether the Court of Appeals ordered the issuance of new warrants of
arrest or merely ordered the reinstatement of the warrants of arrest issued by Judge
Tumaliuan is merely a matter of scrupulous semantics, the slight inaccuracy
whereof should not be allowed to aect the dispositions on the merits, especially in
this case where the other dispositions of the Court of Appeals point to the other
direction. Firstly, the Court of Appeals had reinstated the 25 June 2001 Order of
Judge Tumaliuan, 37 which issued the warrants of arrest. Secondly, the Court of
Appeals likewise declared the proceedings conducted by Judge Anghad void.
Certainly, the declaration of nullity of proceedings should be deemed to carry with it
the reinstatement of the orders set aside by the nullied proceedings. Judge
Anghad's order quashing the warrants of arrest had been nullied; therefore those
warrants of arrest are henceforth deemed unquashed.

Even if, however, the Court of Appeals had directed the issuance of new warrants of
arrest based on a determination of probable cause, it would have been legally
permissible for them to do so. The records of the preliminary investigation had been
available to the Court of Appeals, and are also available to this Court, allowing both
the Court of Appeals and this Court to personally examine the records of the case
and not merely rely on the certication of the prosecutor. As we have ruled in Allado
v. Diokno and Roberts v. Court of Appeals , the determination of probable cause does
not rest on a subjective criteria. As we had resolved in those cases to overrule the
nding of probable cause of the judges therein on the ground of grave abuse of
discretion, in the same vein, we can also overrule the decision of a judge reversing a
finding of probable cause, also on the ground of grave abuse of discretion.

There is no double jeopardy in the

reinstatement of a criminal case
dismissed before arraignment

In their third assignment of error, petitioners claim that the Court of Appeals
committed a reversible error in ordering the reinstatement of Criminal Cases No.
36-3523 and No. 36-3524, alleging that the order of dismissal issued therein had
become final and executory. According to petitioners:

It is also worthy to point out at this juncture that the Joint Order of Judge
Anghad dated November 14, 2001 is NOT ONE of those Orders which were
assailed in the private respondent Tuliao's Petition for Certiorari, Mandamus
and Prohibition led by the private respondent before the Court of Appeals.
As carefully enumerated in the rst page of the assailed Decision, only the
following Orders issued by Judge Anghad were questioned by private
respondent, to wit:

1.) Joint Order dated August 17, 2001;

2.) Order dated September 21, 2001;

3.) Joint Order dated October 16, 2001; and

4.) Joint Order dated October 22, 2001.

Obviously, the Joint Order dated November 14, 2001 of Judge Anghad,
which ultimately dismissed Criminal Cases Nos. 36-3523 AND 36-3524 is
NOT included in the list of the assailed Order/Joint Orders. Hence, the Court
of Appeals should not have passed upon the validity or nullity of the Joint
Order of November 14, 2001. 38

Petitioners must have forgotten that respondent Tuliao's Petition for Certiorari,
Prohibition and Mandamus was led not with the Court of Appeals, but with this
Court. The Court of Appeals decided the case because we referred the same to them
in our 19 November 2001 Resolution. Such petition was led on 25 October 2001,
around three weeks before the 14 November 2001 Order. Upon receipt of the 14
November 2001 Order, however, respondent Tuliao lost no time in ling with this
Court a Motion to Cite Public Respondent in Contempt, alleging that Judge Anghad
"deliberately and willfully committed contempt of court when he issued on 15
November 2001 the Order dated 14 November 2001 dismissing the informations for
murder." On 21 November 2001, we referred said motion to the Court of Appeals, in
view of the previous referral of respondent Tuliao's petition for certiorari, prohibition
and mandamus. EDATSI

Our referral to the Court of Appeals of the Motion to Cite Public Respondent in
Contempt places the 14 November 2001 Order within the issues of the case decided
by the Court of Appeals. In claiming that Judge Anghad committed contempt of this
Court in issuing the 14 November 2001 Order, respondent Tuliao had ascribed to
Judge Anghad an act much more serious than grave abuse of discretion.

Respondent Tuliao claims that Judge Anghad issued the 14 November 2001 Order
on 15 November 2001, antedating it so as to avoid the eects of our 12 November
2001 Resolution. In said 12 November 2001 Resolution, we resolved to issue a
temporary restraining order enjoining Judge Anghad from further proceeding with
the criminal cases upon the respondent Tuliao's ling of a bond in the amount of
P20,000.00. Respondent Tuliao had filed the bond on 15 November 2005.

While we cannot immediately pronounce Judge Anghad in contempt, seeing as

disobedience to lawful orders of a court and abuse of court processes are cases of
indirect contempt which require the granting of opportunity to be heard on the part
of respondent, 39 the prayer to cite public respondent in contempt and for other
reliefs just and equitable under the premises should be construed to include a prayer
for the nullification of said 14 November 2001 Order.

In any case, the reinstatement of a criminal case dismissed before arraignment does
not constitute double jeopardy. Double jeopardy cannot be invoked where the
accused has not been arraigned and it was upon his express motion that the case
was dismissed. 40

As to respondent Tuliao's prayer (in both the original petition for certiorari as well as
in his motion to cite for contempt) to disqualify Judge Anghad from further
proceeding with the case, we hold that the number of instances of abuse of
discretion in this case are enough to convince us of an apparent bias on the part of
Judge Anghad. We further resolve to follow the case of People v. SPO1 Leao , 41 by
transferring the venue of Criminal Cases No. 36-3523 and No. 36-3524 to the City
of Manila, pursuant to Article VIII, Section 4, of the Constitution.

WHEREFORE, the petition is DENIED. The Decision dated 18 December 2002 and
the Resolution dated 12 June 2003 of the Court of Appeals are hereby AFFIRMED,
with the modication that Criminal Cases No. 36-3523 and No. 36-3524 be
transferred to and raed in the Regional Trial Court of the City of Manila. In this
connection,

1) Let a copy of this decision be furnished the Executive Judge of

the RTC of the City of Santiago, Isabela, who is directed to eect
the transfer of the cases within ten (10) days after receipt hereof;

2) The Executive Judge of the RTC of the City of Santiago, Isabela,

is likewise directed to report to this Court compliance hereto
within ten (10) days from transfer of these cases;

3) The Executive Judge of the City of Manila shall proceed to rae

the criminal cases within ten (10) days from the transfer;

4) The Executive Judge of the City of Manila is likewise directed to

report to this Court compliance with the order to rae within ten
(10) days from said compliance; and

5) The RTC Judge to whom the criminal cases are raed is directed
to act on said cases with reasonable dispatch. HAEIac

6) Finally, Judge Anastacio D. Anghad is directed to issue forthwith

warrants of arrest for the apprehension of petitioners Jose C.
Miranda, Alberto P. Dalmacio, Romeo B. Ocon, and accused Rodel
 T. Maderal, conformably with the decision of the Court of Appeals
dated 18 December 2002.

The Temporary Restraining Order issued by this Court dated 4 August 2003 is
hereby LIFTED. Costs against Petitioners.

SO ORDERED.

Panganiban, C.J., Ynares-Santiago, Austria-Martinez and Callejo, Sr., JJ., concur.

Footnotes

1. Penned by Associate Justice Sergio L. Pestao with Acting Presiding Justice (now
Supreme Court Associate Justice) Cancio C. Garcia and Associate Justice Eloy R.
Bello, Jr., concurring.

2. Rollo, pp. 109-110.

3. Id., p. 103.

4. Id.

5. This should have been 301 SCRA 298.

6. Oscar Herrera, REMEDIAL LAW, Vol. IV, pp. 38-39 (2001 ed.).

7. G.R. Nos. 99289-90, 27 January 1993, 217 SCRA 633, 643.

8. Id.

9. Paderanga v. Court of Appeals , G.R. No. 115407, 28 August 1995, 247 SCRA 741,
750; Dinapol v. Baldado, A.M. No. RTJ-92-898, 5 August 1993, 225 SCRA 110, 116-
117. In some jurisprudence, voluntary surrender is termed as "voluntary
submission to the jurisdiction of the court by surrender to the proper authorities."

10. Layosa v. Rodriguez , G.R. No. L-46080, 10 November 1978, 86 SCRA 300, 303;
People v. Umbrero, G.R. No. 93021, 8 May 1991, 196 SCRA 821, 829.

11. This is because of the rule that jurisdiction, once acquired, attaches until the nal
disposition of the case. In such a situation, the escapee's right to confrontation
and cross-examination of witnesses are deemed waived by his failure to appear
during the trial of which he has notice (Gimenez v. Nazareno, G.R. No. L-37933, 15
April 1988, 160 SCRA 1, 5).

12. See Larranaga v. Court of Appeals , 351 Phil. 75, 88-89 (1998).

13. A.M. No. RTJ-91-764, 6 November 1992, 215 SCRA 421.

14. Id., at 424.

15. Sapugay v. Court of Appeals , G.R. No. 86792, 21 March 1990, 183 SCRA 464,
 471.

16. Feliciano v. Pasicolan, 112 Phil. 781, 783 (1961).

17. Paderanga v. Court of Appeals, supra note 9, p. 749. This is what the Court of
Appeals erroneously rephrased just before quoting Pico. Cf. note 1.

18. RULES OF COURT, Rule 15, Section 20.

19. G.R. No. 113630, 5 May 1994, 232 SCRA 192, 198.

20. 324 Phil. 568, 590 (1996).

21. 361 Phil. 251, 284 (1999).

22. RULES OF COURT, Rule 113, Section 6.

23. Phil. Blooming Mills Employees Orga. v. Phil. Blooming Mills Inc ., 151-A Phil. 656,
676 (1973).

24. Joint Order dated 17 August 2001, rollo, p. 204.

25. 317 Phil. 758, 796 (1995).

26. Joint Order dated 17 October 2001, rollo, p. 196.

27. CONSTITUTION, Art. III, Sec. 2.

28. Petitioner's Memorandum, rollo, pp. 477-478.

29. Judge Tumaliuan's Joint Order dated 6 July 2001, rollo, p. 193.

30. G.R. Nos. 94054-57, 19 February 1991, 194 SCRA 292, 300.

31. G.R. No. 88919, 25 July 1990, 187 SCRA 788, 792.

32. Joint Order dated 17 August 2001, rollo pp. 197-201.

33. Webb v. De Leon, supra note 25, pp. 675-676.

34. Joint Order dated 14 November 2001, rollo, pp. 271-272.

35. Id.

36. Petitioners' Memorandum, rollo, p. 493.

37. Rollo, pp. 150-151.

38. Id., pp. 498-499.

39. RULES OF COURT, Rule 71, Section 3 (b) and (c).

40. People v. Monteiro, G.R. No. 49454, 21 December 1990, 192 SCRA 548, 553.
41. 419 Phil. 241 (2001).