TOPIC: Rule 110 – A.
Institution of Criminal Actions On October 9, 2003, respondents Antzoulatos and Gaza filed their joint
Republic of the Philippines
 7 Respondents Avgoustis and Alamil did not submit any counter-affidavit.
SUPREME COURT

Manila
SECOND DIVISION
G.R. No. 178607 December 5, 2012
DANTE LA. JIMENEZ, in his capacity as President and representative
of UNLAD SHIPPING & MANAGEMENT
CORPORATION, Petitioner, 

vs.
 Subsequently, in a December 14, 2004 resolution, the City Prosecutor
HON. EDWIN SORONGON (in his capacity as Presiding Judge of
Branch 214 of the Regional Trial Court of Mandaluyong City),
SOCRATES ANTZOULATOS, CARMEN ALAMIL, MARCELl
GAZA and MARKOS AVGOUSTIS, Respondents.
DECISION
BRION, J.:
We resolve the petition for review on certiorari[ 1] filed by Dante La.
Jimenez (petitioner) to challenge the twin resolutions of the Court of
Appeals ( CA) dated November 23, 20062 and June 28, 20073 in CA-G.R. SP
No. 96584, which dismissed the petitioner's petition for certiorari and
denied his motion for reconsideration, respectively.
The Factual Antecedents
The petitioner is the president of Unlad Shipping & Management
Corporation, a local manning agency, while Socrates Antzoulatos, Carmen
Alamil, Marceli Gaza, and Markos Avgoustis (respondents) are some of the
listed incorporators of Tsakos Maritime Services, Inc. (TMSI), another local
manning agency.
On August 19, 2003, the petitioner filed a complaint-affidavit4 with the
Office of the City Prosecutor of Mandaluyong City against the respondents
for syndicated and large scale illegal recruitment.5 The petitioner alleged
that the respondents falsely represented their stockholdings in TMSI’s
articles of incorporation6 to secure a license to operate as a recruitment
agency from the Philippine Overseas Employment Agency (POEA).
counter-affidavit denying the complaint-affidavit’s allegations.
In a May 4, 2004 resolution,8 the 3rd Assistant City Prosecutor
recommended the filing of an information for syndicated and large scale
illegal recruitment against the respondents. The City Prosecutor approved
his recommendation and filed the corresponding criminal information with
the Regional Trial Court (RTC) of Mandaluyong City (docketed as Criminal
Case No. MC04-8514 and raffled to Branch 212) presided by Judge
Rizalina T. Capco-Umali.
reconsidered the May 4, 2004 resolution and filed a motion with the RTC to
withdraw the information.9 The petitioner and respondents Antzoulatos and
Gaza filed their opposition10 and comment to the opposition, respectively.
In an August 1, 2005 resolution,11 the RTC denied the motion to withdraw
information as it found the existence of probable cause to hold the
respondents for trial.12 Thus, the RTC ordered the issuance of warrants of
arrest against the respondents.
On August 26, 2005, respondents Antzoulatos and Gaza filed an omnibus
motion for reconsideration and for deferred enforcement of the warrants of
arrest.13 In a September 2, 2005 order,14 the RTC denied the omnibus
motion, reiterating that the trial court is the sole judge on whether a criminal
case should be dismissed or not.
On September 26, 2005, respondent Alamil filed a motion for judicial
determination of probable cause with a request to defer enforcement of the
warrants of arrest.15
On September 29, 2005, the petitioner filed his opposition with motion to
expunge, contending that respondent Alamil, being a fugitive from justice,
had no standing to seek any relief and that the RTC, in the August 1, 2005
resolution, already found probable cause to hold the respondents for trial.16
In a September 30, 2005 order,17 the RTC denied respondent Alamil’s
motion for being moot and academic; it ruled that it had already found
probable cause against the respondents in the August 1, 2005 resolution,
which it affirmed in the September 2, 2005 order.
On October 10, 2005, respondent Alamil moved for reconsideration and for
the inhibition of Judge Capco-Umali, for being biased or partial.18 On
October 25, 2005, the petitioner filed an opposition with a motion to
expunge, reiterating that respondent Alamil had no standing to seek relief
from the RTC.19
In a January 4, 2006 order,20Judge Capco-Umali voluntarily inhibited
herself from the case and did not resolve respondent Alamil’s motion for
reconsideration and the petitioner’s motion to expunge. The case was later
re-raffled to Branch 214, presided by Judge Edwin D. Sorongon.
The RTC Rulings
In its March 8, 2006 order,21 the RTC granted respondent Alamil’s motion
for reconsideration. It treated respondent Alamil’s motion for judicial
determination as a motion to dismiss for lack of probable cause. It found:
(1) no evidence on record to indicate that the respondents gave any false
information to secure a license to operate as a recruitment agency from the
POEA; and (2) that respondent Alamil voluntarily submitted to the RTC’s
jurisdiction through the filing of pleadings seeking affirmative relief. Thus,
the RTC dismissed the case, and set aside the earlier issued warrants of
arrest.
On April 3, 2006, the petitioner moved for reconsideration, stressing the
existence of probable cause to prosecute the respondents and that
respondent Alamil had no standing to seek any relief from the RTC.22
On April 26, 2006, respondent Alamil moved to expunge the motion for
being a prohibited pleading since the motion did not have the public
prosecutor’s conformity.23
In its May 10, 2006 order,24 the RTC denied the petitioner’s motion for
reconsideration, finding that the petitioner merely reiterated arguments in
issues that had been finally decided. The RTC ordered the motion expunged
from the records since the motion did not have the public prosecutor’s
conformity.
On May 19, 2006, the petitioner filed a notice of appeal.25
On May 30, 2006, respondent Alamil moved to expunge the petitioner’s
notice of appeal since the public prosecutor did not authorize the appeal and
the petitioner had no civil interest in the case.26
On June 27, 2006, the petitioner filed his comment to the motion to
expunge, claiming that, as the offended party, he has the right to appeal the
RTC order dismissing the case; the respondents’ fraudulent acts in forming
TMSI greatly prejudiced him.27
In its August 7, 2006 joint order,28 the RTC denied the petitioner’s notice of
appeal since the petitioner filed it without the conformity of the Solicitor
General, who is mandated to represent the People of the Philippines in
criminal actions appealed to the CA. Thus, the RTC ordered the notice of
appeal expunged from the records.
On October 18, 2006, the petitioner elevated his case to the CA via a Rule
65 petition for certiorari assailing the RTC’s March 8, 2006, May 10, 2006,
and August 7, 2006 orders.
The CA Ruling
In its November 23, 2006 resolution,29 the CA dismissed outright the
petitioner’s Rule 65 petition for lack of legal personality to file the petition
on behalf of the People of the Philippines. It noted that only the Office of
the Solicitor General (OSG) has the legal personality to represent the
People, under Section 35(1), Chapter 12, Title III, Book IV of the 1987
Administrative Code. It also held that the petitioner was not the real party in
interest to institute the case, him not being a victim of the crime charged to
the respondents, but a mere competitor in their recruitment business. The
CA denied30 the motion for reconsideration31 that followed.
The Petition
The petitioner argues that he has a legal standing to assail the dismissal of
the criminal case since he is the private complainant and a real party in
interest who had been directly damaged and prejudiced by the respondents’
illegal acts; respondent Alamil has no legal standing to seek any relief from
the RTC since she is a fugitive from justice.
The Case for the Respondents
The respondents32 submit that the petitioner lacks a legal standing to assail
the dismissal of the criminal case since the power to prosecute lies solely
with the State, acting through a public prosecutor; the petitioner acted
independently and without the authority of a public prosecutor in the
prosecution and appeal of the case.
The Issue
The case presents to us the issue of whether the CA committed a reversible
error in dismissing outright the petitioner’s Rule 65 petition
for certiorari for lack of legal personality to file the petition on behalf of the
People of the Philippines.
Our Ruling
The petition lacks merit.
The petitioner has no legal personality to assail the dismissal of the
criminal case
It is well-settled that "every action must be prosecuted or defended in the
name of the real party in interest[,]" "who stands to be benefited or injured
by the judgment in the suit, or by the party entitled to the avails of the
suit."33Interest means material interest or an interest in issue to be affected
by the decree or judgment of the case, as distinguished from mere interest in
the question involved.34 By real interest is meant a present substantial
interest, as distinguished from a mere expectancy, or a future, contingent,
subordinate or consequential interest.35 When the plaintiff or the defendant
is not a real party in interest, the suit is dismissible.36
Procedural law basically mandates that "[a]ll criminal actions commenced
by complaint or by information shall be prosecuted under the direction and
control of a public prosecutor."37 In appeals of criminal cases before the CA
and before this Court, the OSG is the appellate counsel of the People,
pursuant to Section 35(1), Chapter 12, Title III, Book IV of the 1987
Administrative Code. This section explicitly provides:
SEC. 35. Powers and Functions. — The Office of the Solicitor General
shall represent the Government of the Philippines, its agencies and
instrumentalities and its officials and agents in any litigation, proceeding,
investigation or matter requiring the services of lawyers. . . . It shall have
the following specific powers and functions:
(1) Represent the Government in the Supreme Court and the Court of
Appeals in all criminal proceedings; represent the Government and its
officers in the Supreme Court and Court of Appeals, and all other courts or
tribunals in all civil actions and special proceedings in which the
Government or any officer thereof in his official capacity is a party.
(emphasis added)
The People is the real party in interest in a criminal case and only the OSG
can represent the People in criminal proceedings pending in the CA or in
this Court. This ruling has been repeatedly stressed in several cases38 and
continues to be the controlling doctrine.
While there may be rare occasions when the offended party may be allowed
to pursue the criminal action on his own behalf39 (as when there is a denial
of due process), this exceptional circumstance does not apply in the present
case.
In this case, the petitioner has no legal personality to assail the dismissal of
the criminal case since the main issue raised by the petitioner involved the
criminal aspect of the case, i.e., the existence of probable cause. The
petitioner did not appeal to protect his alleged pecuniary interest as an
offended party of the crime, but to cause the reinstatement of the criminal
action against the respondents. This involves the right to prosecute which
pertains exclusively to the People, as represented by the OSG.40
Respondent Alamil voluntarily submitted to the RTC’s jurisdiction
As a rule, one who seeks an affirmative relief is deemed to have submitted
to the jurisdiction of the court. Filing pleadings seeking affirmative relief
constitutes voluntary appearance, and the consequent jurisdiction of one's
person to the jurisdiction of the court.41
Thus, by filing several motions before the RTC seeking the dismissal of the
criminal case, respondent Alamil voluntarily submitted to the jurisdiction of
the RTC. Custody of the law is not required for the adjudication of reliefs
other than an application for bail.42
WHEREFORE, we hereby DENY the appeal. The twin resolutions of the
Court of Appeals dated November 23, 2006 and June 28, 2007 in CAG. R.
SP No. 96584 are AFFIRMED. Costs against the petitioner.
SO ORDERED.
 Indian Hemp weighing 2.194 kilos, from which dangerous drugs maybe
(sic) manufactured or derived, to the damage and prejudice of the
government of the Republic of the Philippines.
"That the property where the said seven (7) fully grown marijuana plants
were planted, cultivated and cultured shall be confiscated and escheated in
favor of the government.
"CONTRARY TO LAW."2
On November 15, 1996, appellant was arraigned and, with assistance of
counsel, pleaded not guilty to the charge. Trial on the merits then ensued.
TOPIC: Rule 110 – B. Sufficiency of Complaint or Information
The first witness for the prosecution was SPO3 Marcelo Tipay, a member of
Republic of the Philippines
 the police force of Villaverde, Nueva Vizcaya. He testified that at around
SUPREME COURT
 10:15 a.m. of September 24, 1996, he received a tip from an unnamed
Manila informer about the presence of a marijuana plantation, allegedly owned by
EN BANC appellant at Sitio Bulan, Ibung, Villaverde, Nueva Vizcaya.3 The prohibited
plants were allegedly planted close to appellant's hut. Police Inspector
G.R. No. 129296 September 25, 2000
Alejandro R. Parungao, Chief of Police of Villaverde, Nueva Vizcaya then
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, 
 formed a reaction team from his operatives to verify the report. The team
vs.
 was composed of SPO3 Marcelo M. Tipay, SPO2 Noel V. Libunao, SPO2
ABE VALDEZ y DELA CRUZ, accused-appellant. Pedro S. Morales, SPO1 Romulo G. Tobias and PO2 Alfelmer I. Balut.
DECISION Inspector Parungao gave them specific instructions to "uproot said
marijuana plants and arrest the cultivator of same."4
QUISUMBING, J.:
At approximately 5:00 o'clock A.M. the following day, said police team,
For automatic review is the decision1 promulgated on February 18, 1997, by accompanied by their informer, left for the site where the marijuana plants
the Regional Trial Court of Bayombong, Nueva Vizcaya, Branch 27, in were allegedly being grown. After a three-hour, uphill trek from the nearest
Criminal Case No. 3105. It found appellant Abe Valdez y Dela Cruz guilty barangay road, the police operatives arrived at the place pinpointed by their
beyond reasonable doubt for violating Section 9 of the Dangerous Drugs informant. The police found appellant alone in his nipa hut. They, then,
Act of 1972 (R.A. No. 6425), as amended by R.A. No. 7659. He was
proceeded to look around the area where appellant had his kaingin and saw
sentenced to suffer the penalty of death by lethal injection. seven (7) five-foot high, flowering marijuana plants in two rows,
In an Information dated September 26, 1996, appellant was charged as approximately 25 meters from appellant's hut.5 PO2 Balut asked appellant
follows:"That on or about September 25, 1996, at Sitio Bulan, Barangay who owned the prohibited plants and, according to Balut, the latter admitted
Sawmill, Municipality of Villaverde, Province of Nueva Vizcaya, that they were his.6 The police uprooted the seven marijuana plants, which
Philippines, and within the jurisdiction of this Honorable Court, the above- weighed 2.194 kilograms.7 The police took photos of appellant standing
named accused, who was caught in flagrante delicto and without authority beside the cannabis plants.8 Appellant was then arrested. One of the plants,
of law, did then and there wilfully (sic), unlawfully and feloniously plant, weighing 1.090 kilograms, was sent to the Philippine National Police Crime
cultivate and culture seven (7) fully grown marijuana plants known as Laboratory in Bayombong, Nueva Vizcaya for analysis.9 Inspector Prevy
Fabros Luwis, the Crime Laboratory forensic analyst, testified that upon
microscopic examination of said plant, she found cystolitic hairs containing
calcium carbonate, a positive indication for marijuana.10 She next conducted
a chemical examination, the results of which confirmed her initial
impressions. She found as follows:
"SPECIMEN SUBMITTED: Exh "A" - 1.090 grams of uprooted suspected
marijuana plant placed inside a white sack with markings.
xxx
"FINDINGS: Qualitative examination conducted on the above stated
specimen gave POSITIVE result to the test for Marijuana, a prohibited
drug."11
The prosecution also presented a certification from the Department of
Environment and Natural Resources that the land cultivated by appellant, on
which the growing marijuana plants were found, was Lot 3224 of
Timberland Block B, which formed part of the Integrated Social Forestry
Area in Villaverde, Nueva Vizcaya.12 This lot was part of the public domain.
Appellant was acknowledged in the certification as the occupant of the lot,
but no Certificate of Stewardship had yet been issued in his favor.13
As its sole witness, the defense presented appellant. He testified that at
around 10:00 o'clock A.M., September 25, 1996, he was weeding his
vegetable farm in Sitio Bulan when he was called by a person whose
identity he does not know. He was asked to go with the latter to "see
something."14 This unknown person then brought appellant to the place
where the marijuana plants were found, approximately 100 meters away
from his nipa hut.15 Five armed policemen were present and they made him
stand in front of the hemp plants. He was then asked if he knew anything
about the marijuana growing there. When he denied any knowledge thereof,
SPO2 Libunao poked a fist at him and told him to admit ownership of the
plants.16 Appellant was so nervous and afraid that he admitted owning the
marijuana.17
The police then took a photo of him standing in front of one of the
marijuana plants. He was then made to uproot five of the cannabis plants,
and bring them to his hut, where another photo was taken of him standing
next to a bundle of uprooted marijuana plants.18 The police team then
brought him to the police station at Villaverde. On the way, a certain Kiko
Pascua, a barangay peace officer of Barangay Sawmill, accompanied the
police officers. Pascua, who bore a grudge against him, because of his
refusal to participate in the former's illegal logging activities, threatened
him to admit owning the marijuana, otherwise he would "be put in a bad
situation."19 At the police headquarters, appellant reiterated that he knew
nothing about the marijuana plants seized by the police.20
On cross-examination, appellant declared that there were ten other houses
around the vicinity of his kaingin, the nearest house being 100 meters away.
21 The latter house belonged to one Carlito (Lito) Pascua, an uncle of the
barangay peace officer who had a grudge against him. The spot where the
marijuana plants were found was located between his house and Carlito
Pascua's.22
The prosecution presented SPO3 Tipay as its rebuttal witness. His testimony
was offered to rebut appellant's claim that the marijuana plants were not
planted in the lot he was cultivating.23 Tipay presented a sketch he made,
24 which showed the location of marijuana plants in relation to the old and
new nipa huts of appellant, as well as the closest neighbor. According to
Tipay, the marijuana plot was located 40 meters away from the old hut of
Valdez and 250 meters distant from the hut of Carlito Pascua.25 Tipay
admitted on cross-examination that no surveyor accompanied him when he
made the measurements.26 He further stated that his basis for claiming that
appellant was the owner or planter of the seized plants was the information
given him by the police informer and the proximity of appellant's hut to the
location of said plants.27
Finding appellant's defense insipid, the trial court held appellant liable as
charged for cultivation and ownership of marijuana plants as follows:
"WHEREFORE, finding the accused GUILTY beyond reasonable doubt of
cultivating marijuana plants punishable under section 9 of the Dangerous
Drugs Act of 1972, as amended, accused is hereby sentenced to death by
lethal injection. Costs against the accused.
"SO ORDERED."28
Appellant assigns the following errors for our consideration:
I
 THE TRIAL COURT GRAVELY ERRED IN ADMITTING AS
EVIDENCE THE SEVEN (7) MARIJUANA PLANTS DESPITE
THEIR INADMISSIBILITY BEING PRODUCTS OF AN
ILLEGAL SEARCH.
II
THE TRIAL COURT GRAVELY ERRED IN CONVICTING
APPELLANT OF VIOLATION OF SECTION 9, REPUBLIC
ACT NO. 6425 DESPITE THE INADMISSIBILITY OF
THE CORPUS DELICTI AND THE FAILURE OF THE
P R O S E C U T I O N TO P R O V E H I S G U I LT B E Y O N D
REASONABLE DOUBT.
III
THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE
SUPREME PENALTY OF DEATH UPON APPELLANT
DESPITE FAILURE OF THE PROSECUTION TO PROVE
THAT THE LAND WHERE THE MARIJUANA PLANTS WERE
PLANTED IS A PUBLIC LAND ON THE ASSUMPTION THAT
INDEED APPELLANT PLANTED THE SUBJECT
MARIJUANA.29
Simply stated, the issues are:
(1) Was the search and seizure of the marijuana plants in the
present case lawful?
(2) Were the seized plants admissible in evidence against the
accused?
(3) Has the prosecution proved appellant's guilt beyond reasonable
doubt?
(4) Is the sentence of death by lethal injection correct?
The first and second issues will be jointly discussed because they are
interrelated.
Appellant contends that there was unlawful search. First, the records show
that the law enforcers had more than ample time to secure a search warrant.
Second, that the marijuana plants were found in an unfenced lot does not
remove appellant from the mantle of protection against unreasonable
searches and seizures. He relies on the ruling of the US Supreme Court
in Terry v. Ohio, 392 US 1, 20 L. Ed 2d 898, 88 S. Ct. 1868 (1968), to the
effect that the protection against unreasonable government intrusion
protects people, not places.
For the appellee, the Office of the Solicitor General argues that the records
clearly show that there was no search made by the police team, in the first
place. The OSG points out that the marijuana plants in question were grown
in an unfenced lot and as each grew about five (5) feet tall, they were visible
from afar, and were, in fact, immediately spotted by the police officers
when they reached the site. The seized marijuana plants were, thus, in plain
view of the police officers. The instant case must, therefore, be treated as a
warrantless lawful search under the "plain view" doctrine.
The court a quo upheld the validity of the search and confiscation made by
the police team on the finding that:
"...It seems there was no need for any search warrant. The policemen went
to the plantation site merely to make a verification. When they found the
said plants, it was too much to expect them to apply for a search warrant. In
view of the remoteness of the plantation site (they had to walk for six hours
back and forth) and the dangers lurking in the area if they stayed overnight,
they had a valid reason to confiscate the said plants upon discovery without
any search warrant. Moreover, the evidence shows that the lot was not
legally occupied by the accused and there was no fence which evinced the
occupant's desire to keep trespassers out. There was, therefore, no privacy to
protect, hence, no search warrant was required."30
The Constitution31 lays down the general rule that a search and seizure must
be carried on the strength of a judicial warrant. Otherwise, the search and
seizure is deemed "unreasonable." Evidence procured on the occasion of an
unreasonable search and seizure is deemed tainted for being the proverbial
fruit of a poisonous tree and should be excluded.32 Such evidence shall be
inadmissible in evidence for any purpose in any proceeding.33
In the instant case, there was no search warrant issued by a judge after
personal determination of the existence of probable cause. From the
declarations of the police officers themselves, it is clear that they had at
least one (1) day to obtain a warrant to search appellant's farm. Their
informant had revealed his name to them. The place where the cannabis
plants were planted was pinpointed. From the information in their
possession, they could have convinced a judge that there was probable
cause to justify the issuance of a warrant. But they did not. Instead, they
uprooted the plants and apprehended the accused on the excuse that the trip
was a good six hours and inconvenient to them. We need not underscore
that the protection against illegal search and seizure is constitutionally
mandated and only under specific instances are searches allowed without
warrants.34 The mantle of protection extended by the Bill of Rights covers
both innocent and guilty alike against any form of high-handedness of law
enforcers, regardless of the praiseworthiness of their intentions.
We find no reason to subscribe to Solicitor General's contention that we
apply the "plain view" doctrine. For the doctrine to apply, the following
elements must be present:
(a) a prior valid intrusion based on the valid warrantless arrest in
which the police are legally present in the pursuit of their official
duties;
(b) the evidence was inadvertently discovered by the police who
have the right to be where they are; and
(c) the evidence must be immediately apparent; and
(d) plain view justified mere seizure of evidence without further
search.35
In the instant case, recall that PO2 Balut testified that they first located the
marijuana plants before appellant was arrested without a warrant.36 Hence,
there was no valid warrantless arrest which preceded the search of
appellant's premises. Note further that the police team was dispatched to
appellant's kaingin precisely to search for and uproot the prohibited flora.
The seizure of evidence in "plain view" applies only where the police
officer is not searching for evidence against the accused, but inadvertently
comes across an incriminating object.37 Clearly, their discovery of the
cannabis plants was not inadvertent. We also note the testimony of SPO2
Tipay that upon arriving at the area, they first had to "look around the area"
before they could spot the illegal plants.38 Patently, the seized marijuana
plants were not "immediately apparent" and a "further search" was needed.
In sum, the marijuana plants in question were not in "plain view" or "open
to eye and hand." The "plain view" doctrine, thus, cannot be made to apply.
Nor can we sustain the trial court's conclusion that just because the
marijuana plants were found in an unfenced lot, appellant could not invoke
the protection afforded by the Charter against unreasonable searches by
agents of the State. The right against unreasonable searches and seizures is
the immunity of one's person, which includes his residence, his papers, and
other possessions.39 The guarantee refers to "the right of personal
security"40 of the individual. As appellant correctly points out, what is
sought to be protected against the State's unlawful intrusion are persons, not
places.41 To conclude otherwise would not only mean swimming against the
stream, it would also lead to the absurd logic that for a person to be immune
against unreasonable searches and seizures, he must be in his home or
office, within a fenced yard or a private place. The Bill of Rights belongs as
much to the person in the street as to the individual in the sanctuary of his
bedroom.
We therefore hold, with respect to the first issue, that the confiscated plants
were evidently obtained during an illegal search and seizure. As to the
second issue, which involves the admissibility of the marijuana plants as
evidence for the prosecution, we find that said plants cannot, as products of
an unlawful search and seizure, be used as evidence against appellant. They
are fruits of the proverbial poisoned tree. It was, therefore, a reversible error
on the part of the court a quo to have admitted and relied upon the seized
marijuana plants as evidence to convict appellant.
We now proceed to the third issue, which revolves around the sufficiency of
the prosecution's evidence to prove appellant's guilt. Having declared the
seized marijuana plants inadmissible in evidence against appellant, we must
now address the question of whether the remaining evidence for the
prosecution suffices to convict appellant?
In convicting appellant, the trial court likewise relied on the testimony of
the police officers to the effect that appellant admitted ownership of the
marijuana when he was asked who planted them. It made the following
observation:
"It may be true that the admission to the police by the accused that he
planted the marijuana plants was made in the absence of any independent
and competent counsel. But the accused was not, at the time of police
verification; under custodial investigation. His admission is, therefore,
admissible in evidence and not violative of the constitutional fiat that
admission given during custodial investigation is not admissible if given
without any counsel."42
Appellant now argues that his admission of ownership of the marijuana
plants in question cannot be used against him for being violative of his right
to counsel during the police investigation. Hence, it was error for the trial
court to have relied upon said admission of ownership. He submits that the
investigation conducted by the police officers was not a general inquiry, but
was meant to elicit information on the ownership of the marijuana plants.
Appellant theorizes that since the investigation had narrowed down to him,
competent and independent counsel should have assisted him, when the
police sought information from him regarding the ownership of the
prohibited plants. Appellant claims the presumption of regularity of duty of
officers cannot be made to apply to his purported voluntarily confession of
ownership of the marijuana plants. Nor can it override his constitutional
right to counsel during investigation.
The Office of the Solicitor General believes otherwise. The OSG avers that
appellant was not yet under custodial investigation when he admitted to the
police that he owned the marijuana plants. His right to competent and
independent counsel, accordingly, had not yet attached. Moreover,
appellant’s failure to impute any false motive for the police officers to
falsely accuse him indicates that the presumption of regularity in the
performance of official duties by police officers was not sufficiently
rebutted.
The Constitution plainly declares that any person under investigation for the
commission of an offense shall have the right: (1) to remain silent; (2) to
have competent and independent counsel preferably of his own choice; and
(3) to be informed of such rights. These rights cannot be waived except in
writing and in the presence of counsel.43 An investigation begins when it is
no longer a general inquiry but starts to focus on a particular person as a
suspect, i.e., when the police investigator starts interrogating or exacting a
confession from the suspect in connection with an alleged offense.44 The
moment the police try to elicit admissions or confessions or even plain
information from a person suspected of having committed an offense, he
should at that juncture be assisted by counsel, unless he waives the right in
writing and in the presence of counsel.45
In the instant case we find that, from the start, a tipster had furnished the
police appellant's name as well as the location of appellant's farm, where the
marijuana plants were allegedly being grown. While the police operation
was supposedly meant to merely "verify" said information, the police chief
had likewise issued instructions to arrest appellant as a suspected marijuana
cultivator. Thus, at the time the police talked to appellant in his farm, the
latter was already under investigation as a suspect. The questioning by the
police was no longer a general inquiry.46
Under cross-examination, PO2 Balut stated, he "did not yet admit that he is
the cultivator of that marijuana so we just asked him and I think there is no
need to inform (him of) his constitutional rights because we are just asking
him..."47 In trying to elicit information from appellant, the police was
already investigating appellant as a suspect. At this point, he was already
under custodial investigation and had a right to counsel even if he had not
yet been arrested. Custodial investigation is "questioning initiated by law
enforcement officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way."48 As a suspect,
two armed policemen interrogated appellant. Behind his inquisitors were a
barangay peace officer and three other armed policemen.49 All had been
dispatched to arrest him.50 From these circumstances, we may infer that
appellant had already been deprived of his freedom of action in a significant
way, even before the actual arrest. Note that even before he was arrested,
the police made him incriminatingly pose for photos in front of the
marijuana plants.
Moreover, we find appellant's extrajudicial confession flawed with respect
to its admissibility. For a confession to be admissible, it must satisfy the
following requirements: (1) it must be voluntary; (2) it must be made with
the assistance of competent and independent counsel; (3) it must be express;
and (4) it must be in writing.51 The records show that the admission by
appellant was verbal. It was also uncounselled. A verbal admission
allegedly made by an accused during the investigation, without the
assistance of counsel at the time of his arrest and even before his formal
investigation is not only inadmissible for being violative of the right to
counsel during criminal investigations, it is also hearsay.52 Even if the
confession or admission were "gospel truth", if it was made without
assistance of counsel and without a valid waiver of such assistance, the
confession is inadmissible in evidence, regardless of the absence of
coercion or even if it had been voluntarily given.53
It is fundamental in criminal prosecutions that before an accused may be
convicted of a crime, the prosecution must establish by proof beyond
reasonable doubt that a crime was committed and that the accused is the
author thereof.54 The evidence arrayed against the accused, however, must
not only stand the test of reason,55 it must likewise be credible and
competent.56 Competent evidence is "generally admissible" evidence.
57 Admissible evidence, in turn, is evidence "of such a character that the
court or judge is bound to receive it, that is, allow it to be introduced at
trial."58
In the instant case, the trial court relied on two pieces of probative matter to
convict appellant of the offense charged.1âwphi1 These were the seized
marijuana plants, and appellant's purportedly voluntary confession of
ownership of said marijuana plants to the police. Other than these proofs,
there was no other evidence presented to link appellant with the offense
charged. As earlier discussed, it was error on the trial court's part to have
admitted both of these proofs against the accused and to have relied upon
said proofs to convict him. For said evidence is doubly tainted.
First, as earlier pointed out, the seized marijuana plants were obtained in
violation of appellant's constitutional rights against unreasonable searches
and seizures. The search and seizure were void ab initio for having been
conducted without the requisite judicial warrant. The prosecution's very
own evidence clearly establishes that the police had sufficient time to obtain
a warrant. There was no showing of such urgency or necessity for the
warrantless search or the immediate seizure of the marijuana plants subject
of this case. To reiterate, said marijuana plants cannot be utilized to prove
appellant's guilt without running afoul of the constitutional guarantees
against illegal searches and the inadmissibility of evidence procured
pursuant to an unlawful search and seizure.
Second, the confession of ownership of the marijuana plants, which
appellant allegedly made to the police during investigation, is not only
hearsay but also violative of the Bill of Rights. The purported confession
was made without the assistance of competent and independent counsel, as
mandated by the Charter. Thus, said confession cannot be used to convict
appellant without running afoul of the Constitution's requirement that a
suspect in a criminal investigation must have the services of competent and
independent counsel during such investigation.
In sum, both the object evidence and the testimonial evidence as to
appellant's voluntary confession of ownership of the prohibited plants relied
upon to prove appellant's guilt failed to meet the test of Constitutional
competence.
The Constitution decrees that, "In all criminal prosecutions, the accused
shall be presumed innocent until the contrary is proved..."59 To justify the
conviction of the accused, the prosecution must adduce that quantum of
evidence sufficient to overcome the constitutional presumption of
innocence. The prosecution must stand or fall on its evidence and cannot
draw strength from the weakness of the evidence for the accused.60 Absent
the required degree of proof of an accused's guilt, he is entitled to an
acquittal.61 In this case, the seized marijuana plants linking appellant to the
crime charged are miserably tainted with constitutional infirmities, which
render these inadmissible "for any purpose in any proceeding."62 Nor can
the confession obtained during the uncounselled investigation be used
against appellant, "it being inadmissible in evidence against him."63 Without
these proffered but proscribed materials, we find that the prosecution's
remaining evidence did not even approximate the quantum of evidence
necessary to warrant appellant's conviction. Hence, the presumption of
innocence in his favor stands. Perforce, his acquittal is in order.
In acquitting an appellant, we are not saying that he is lily-white, or pure as
driven snow. Rather, we are declaring his innocence because the
prosecution's evidence failed to show his guilt beyond reasonable doubt. For
that is what the basic law requires. Where the evidence is insufficient to
overcome the presumption of innocence in favor of the accused, then his
"acquittal must follow in faithful obeisance to the fundamental law."64
WHEREFORE, the decision promulgated on February 18, 1997, by the
Regional Trial Court of Bayombong, Nueva Vizcaya, Branch 27, in
Criminal Case No. 3105, finding Abe Valdez y Dela Cruz, guilty beyond
reasonable doubt of violating Section 9 of the Dangerous Drugs Act of
1972, and imposing upon him the death penalty, is hereby REVERSED and
SET ASIDE for insufficiency of evidence. Appellant is ACQUITTED and
ordered RELEASED immediately from confinement unless held for another
lawful cause.
SO ORDERED.
Republic of the Philippines
 That on 10 January 1995 or sometime prior or subsequent thereto, in the
SUPREME COURT
 Municipality of Koronadal, South Cotabato, Philippines, and within the
Manila
SECOND DIVISION
G.R. No. 172035 July 4, 2012
FERNANDO Q. MIGUEL, Petitioner, 
 of his official position, conspiring and confederating with the private
vs.
 [individuals] xxx acting with evident bad faith and manifest partiality, did
THE HONORABLE SANDIGANBAYAN, Respondent.
DECISION
BRION, J.:
Before the Court is a petition for certiorari under Rule 651 filed by Fernando
Q. Miguel (petitioner), assailing the January 25, 2006 and March 27, 2006
resolutions2 of the Sandiganbayan. These resolutions (i) ordered the
petitioner’s suspension from public office and (ii) denied the petitioner’s
motion for reconsideration of the suspension order.
THE ANTECEDENT FACTS
On May 29, 1996, then Vice Mayor Mercelita M. Lucido and other local
officials3 of Koronadal City, South Cotabato filed a letter-complaint with the
Office of the Ombudsman-Mindanao (Ombudsman)4 charging the
petitioner, among others,5 with violation of Republic Act (R.A.) No. 3019,
in connection with the consultancy services for the architectural aspect, the
engineering design, and the construction supervision and management of
the proposed Koronadal City public market (project).6
In a June 27, 1996 order, the Ombudsman directed the petitioner, among
others, to submit his counter-affidavit. On October 23, 1996, after moving
for an extension, the petitioner filed his counter-affidavit.7 In its July 29,
1999 resolution, the Ombudsman found probable cause against the
petitioner and some private individuals for violation of R.A. No. 3019 and
against the petitioner alone for Falsification of Public Document under
Article 171, par. 4 of the Revised Penal Code.8
On March 1, 2000, the Ombudsman filed the corresponding informations
with the Sandiganbayan.9 The information for violation of Section 3(e) of
R.A. No. 3019 reads:
jurisdiction of this Honorable Court, the [petitioner], a high ranking public
officer in his capacity as former Municipal Mayor of Koronadal, South
Cotabato, and as such while in the performance of his official
functions, committing the offense in relation to his office, taking advantage
then and there willfully, unlawfully and criminally give unwarranted
benefits and advantages to said [accused], by inviting them to participate in
the prequalification of consultants to provide the Detailed Architectural &
Engineering Design and Construction Supervision and Management of the
proposed Koronadal Public Market, without causing the publication of said
invitation in a newspaper of general circulation, thereby excluding other
consultants from participating in said prequalification.10 (Emphases and
underscoring added)
On motions separately filed by two of the petitioner’s co-accused,11 the
Sandiganbayan ordered the Office of the Special Prosecutor (OSP) to
conduct a reinvestigation. On August 21, 2000, the petitioner, through
counsel, followed suit and orally moved for a reinvestigation, which the
Sandiganbayan likewise granted. The Sandiganbayan gave the petitioner ten
(10) days within which to file his counter-affidavit with the OSP.12
Instead of submitting his counter-affidavit, the petitioner asked13 the
Sandiganbayan for a thirty-day extension to submit his counter-affidavit.
Shortly before the expiry of the extension requested, the petitioner
asked14 the OSP for an additional thirty-day period to file his counter-
affidavit. Despite the two extensions asked and granted, the petitioner asked
the OSP anew for a twenty-day extension period.15
Despite the extension period asked and given, the petitioner failed to file his
counter-affidavit, prompting Prosecutor Norberto B. Ruiz to declare that the
petitioner had waived his right to submit countervailing evidence (April 25,
2001 resolution). On July 31, 2001, then Ombudsman Aniano Desierto
approved the resolution.16
On August 7, 2001, Prosecutor Ruiz asked the Sandiganbayan for the
arraignment and trial of the petitioner and of the other accused private
individuals.17
On August 6, 2002, after several extensions sought and granted, the
petitioner filed a Motion to Quash and/or Reinvestigation for the criminal
cases against him. On February 18, 2003, the Sandiganbayan denied the
petitioner’s motion because of the pending OSP reinvestigation – this,
despite the OSP’s earlier termination of the reinvestigation for the
petitioner’s continuous failure to submit his counter-affidavit.18 The
petitioner did not question the denial of his motion.
On November 3, 2004, the petitioner was arraigned; he pleaded not guilty in
both criminal cases.19
On April 28, 2005, the OSP filed a Motion to Suspend [the petitioner]
Pendente Lite. On June 27, 2005, the petitioner filed his "Vigorous
Opposition" based on the "obvious and fatal defect of the [i]nformation" in
failing to allege that the giving of unwarranted benefits and advantages was
done through manifest partiality, evident bad faith or gross inexcusable
negligence.20
On January 25, 2006, the Sandiganbayan promulgated the assailed
resolution21 suspending the petitioner pendente lite –
WHEREFORE, PREMISES CONSIDERED, the Prosecution’s Motion is
GRANTED. As prayed for, the Court hereby orders the suspension of [the
petitioner] from his position as City Mayor, Koronadal City, South
Cotabato, and from any other public position he now holds. His suspension
shall be for a period of ninety (90) days only.22
On February 2, 2006, the petitioner moved for reconsideration of his
suspension order and demanded for a pre-suspension hearing.23 The
Sandiganbayan denied his motion,24 prompting him to file this certiorari
petition to challenge the validity of his suspension order.
THE PETITION
The petitioner claims that the Sandiganbayan gravely abused its discretion
in ordering his suspension despite the failure of the information to allege
that the giving of unwarranted benefits and advantages by the petitioner was
made through "manifest partiality, evident bad faith or gross inexcusable
negligence." He alleges that the phrases "evident bad faith" and "manifest
partiality" actually refers not to him, but to his co-accused,25 rendering the
information fatally defective.
The petitioner bewails the lack of hearing before the issuance of his
suspension order. Citing Luciano, et al. v. Hon. Mariano, etc., et al.,26 he
claims that "[n]owhere in the records of the [case] can [one] see any order
or resolution requiring the [p]etitioner to show cause at a specific date of
hearing why he should not be ordered suspended."27 For the petitioner, the
requirement of a pre-suspension hearing can only be satisfied if the
Sandiganbayan ordered an actual hearing to settle the "defect" in the
information.
THE OSP’S COMMENT
The OSP argues for the sufficiency of the information since all the elements
of the offense under Section 3(b) of R.A. No. 3019 are specifically pleaded
by way of ultimate facts. These elements are:
1. The petitioner was the Municipal Mayor of Koronadal, South
Cotabato at the time material to the acts complained of;
2. The petitioner acted with manifest partiality and evident bad
faith when he invited only his co-accused private individuals to
participate in the prequalification of consultants for the project
instead of publishing it in a newspaper of general circulation; and
3. The petitioner’s actions, performed in relation to his office, gave
unwarranted benefits and advantages to his co-accused.28
The OSP faults the petitioner for his attempt to mislead the Court on the
sufficiency of the allegations in the information, by conveniently failing to
cite the phrase "acting with evident bad faith and manifest partiality" when
the petitioner quoted the "relevant" portions of the information in his
petition.
Citing Juan v. People,29 the OSP argues that while no actual pre-suspension
hearing was conducted, the events preceding the issuance of the suspension
order already satisfied the purpose of conducting a pre-suspension hearing –
i.e., basically, to determine the validity of the information. Here, the
petitioner was afforded his right to preliminary investigation both by the
Ombudsman and by the OSP (when the petitioner moved for a
reinvestigation with the Sandiganbayan); the acts for which the petitioner
was charged constitute a violation of R.A. No. 3019 and Title VII, Book II
of the Revised Penal Code; and the petitioner already moved to quash the
information, although unsuccessfully, after he had been declared to have
waived his right to submit countervailing evidence in the reinvestigation by
the OSP.30
ISSUES
There are only two issues presented for our resolution:
1. Whether the information, charging the petitioner with violation
of Section 3(e) of R.A. No. 3019, is valid; and
2. If it is valid, whether the absence of an actual pre-suspension
hearing renders invalid the suspension order against the petitioner.
THE COURT’S RULING
We dismiss the petition for failure to establish any grave abuse of discretion
in the issuance of the assailed resolutions.
The information for violation of R.A. No. 3019 is valid
In deference to the constitutional right of an accused to be informed of the
nature and the cause of the accusation against him,31 Section 6, Rule 110 of
the Revised Rules of Criminal Procedure (Rules)32 requires, inter alia, that
the information shall state the designation of the offense given by the statute
and the acts or omissions imputed which constitute the offense charged.
Additionally, the Rules requires that these acts or omissions and its
attendant circumstances "must be stated in ordinary and concise language"
and "in terms sufficient to enable a person of common understanding to
know what offense is being charged x x x and for the court to pronounce
judgment."33
The test of the information’s sufficiency is whether the crime is described in
intelligible terms and with such particularity with reasonable certainty so
that the accused is duly informed of the offense charged. In particular,
whether an information validly charges an offense depends on whether the
material facts alleged in the complaint or information shall establish the
essential elements of the offense charged as defined in the law. The raison
d’etre of the requirement in the Rules is to enable the accused to suitably
prepare his defense.34
In arguing against the validity of the information, the petitioner appears to
go beyond the standard of a "person of common understanding" in
appreciating the import of the phrase "acting with evident bad faith and
manifest partiality." A reading of the information clearly reveals that the
phrase "acting with evident bad faith and manifest partiality" was merely a
continuation of the prior allegation of the acts of the petitioner, and that he
ultimately acted with evident bad faith and manifest partiality in giving
unwarranted benefits and advantages to his co-accused private individuals.
This is what a plain and non-legalistic reading of the information would
yield.
Notably, in his petition, the petitioner would have us believe that this
elemental phrase was actually omitted in the information35 when, in his
reaction to the OSP’s comment, what the petitioner actually disputes is
simply the clarity of the phrase’s position, in relation with the other
averments in the information. Given the supposed ambiguity of the subject
being qualified by the phrase "acting with evident bad faith and manifest
partiality," the remedy of the petitioner, if at all, is merely to move for a bill
of particulars and not for the quashal of an information which sufficiently
alleges the elements of the offense charged.36
The pre-suspension order is valid
Section 13 of R.A. No. 3019 reads:
Section 13. Suspension and loss of benefits. Any public officer against
whom any criminal prosecution under a valid information under this Act or
under the provisions of the Revised Penal Code on bribery is pending in
court, shall be suspended from office. Should he be convicted by final
judgment, he shall lose all retirement or gratuity benefits under any law, but
if he is acquitted, he shall be entitled to reinstatement and to the salaries and
benefits which he failed to receive during suspension, unless in the
meantime administrative proceedings have been filed against him.
While the suspension of a public officer under this provision is mandatory,
37 the suspension requires a prior hearing to determine "the validity of the
information"38 filed against him, "taking into account the serious and far
reaching consequences of a suspension of an elective public official even
before his conviction."39 The accused public official’s right to challenge the
validity of the information before a suspension order may be issued includes
the right to challenge the (i) validity of the criminal proceeding leading to
the filing of an information against him, and (ii) propriety of his prosecution
on the ground that the acts charged do not constitute a violation of R.A. No.
3019 or of the provisions on bribery of the Revised Penal Code.40
In Luciano v. Mariano41 that the petitioner relied upon, the Court required,
"by way of broad guidelines for the lower courts in the exercise of the
power of suspension," that –
(c) …upon the filing of such information, the trial court should issue an
order with proper notice requiring the accused officer to show cause at a
specific date of hearing why he should not be ordered suspended from
office pursuant to the cited mandatory provisions of the Act. Where either
the prosecution seasonably files a motion for an order of suspension or the
accused in turn files a motion to quash the information or challenges the
validity thereof, such show-cause order of the trial court would no longer be
necessary. What is indispensable is that the trial court duly hear the parties
at a hearing held for determining the validity of the information, and
thereafter hand down its ruling, issuing the corresponding order of
suspension should it uphold the validity of the information or withholding
such suspension in the contrary case.
(d) No specific rules need be laid down for such pre-suspension hearing.
Suffice it to state that the accused should be given a fair and adequate
opportunity to challenge the validity of the criminal proceedings against
him, e.g. that he has not been afforded the right of due preliminary
investigation; that the acts for which he stands charged do not constitute a
violation of the provisions of Republic Act No. 3019 or of the bribery
provisions of the Revised Penal Code which would warrant his mandatory
suspension from office under section 13 of the Act; or he may present a
motion to quash the information on any of the grounds provided in Rule 117
of the Rules of Court. (Emphasis supplied)
The petitioner questions the absence of any show cause order issued by the
Sandiganbayan before his suspension in office was ordered. As clear as the
day, however, Luciano considered it unnecessary for the trial court to issue
a show cause order when the motion, seeking the suspension of the accused
pendente lite, has been submitted by the prosecution, as in the present case.
The purpose of the law in requiring a pre-suspension hearing is to determine
the validity of the information so that the trial court can have a basis to
either suspend the accused and proceed with the trial on the merits of the
case, withhold the suspension and dismiss the case, or correct any part of
the proceedings that impairs its validity.1âwphi1 That hearing is similar to a
challenge to the validity of the information by way of a motion to quash.42
While a pre-suspension hearing is aimed at securing for the accused fair and
adequate opportunity to challenge the validity of the information or the
regularity of the proceedings against him,43 Luciano likewise emphasizes
that no hard and fast rule exists in regulating its conduct.44 With the purpose
of a pre-suspension hearing in mind, the absence of an actual hearing alone
cannot be determinative of the validity of a suspension order.
In Bedruz v. Sandiganbayan,45 the Court considered the opposition of the
accused (to the prosecution’s motion to suspend pendente lite) as sufficient
to dispense with the need to actually set the prosecution’s motion for
hearing. The same conclusion was reached in Juan v. People,46 where the
Court ruled:
In the case at bar, while there was no pre-suspension hearing held to
determine the validity of the Informations that had been filed against
petitioners, we believe that the numerous pleadings filed for and against
them have achieved the goal of this procedure. The right to due process is
satisfied nor just by an oral hearing but by the filing and the consideration
by the court of the parties' pleadings, memoranda and other position papers.
Since a pre-suspension hearing is basically a due process requirement, when that preceded its filing vis-à-vis the merits of the defenses of the accused
an accused public official is given an adequate opportunity to be heard on cannot be measured alone by the absence or presence of an actual hearing.
his possible defenses against the mandatory suspension under R.A. No. An opportunity to be heard on one’s defenses, however unmeritorious it
3019, then an accused would have no reason to complain that no actual may be, against the suspension mandated by law equally and sufficiently
hearing was conducted.47 It is well settled that "to be heard" does not only serves both the due process right of the accused and the mandatory nature of
mean oral arguments in court; one may be heard also through pleadings. the suspension required by law.
Where opportunity to be heard, either through oral arguments or pleadings, Lest it be forgotten, Section 13 of R.A. No. 3019 reinforces the principle
has been accorded, no denial of procedural due process exists.48 enshrined in the Constitution that a public office is a public trust.56 In light
In the present case, the petitioner (i) filed his Vigorous Opposition (to the of the constitutional principle underlying the imposition of preventive
OSP’s Motion to Suspend Accused Pendente Lite), and after receiving an suspension of a public officer charged under a valid information and the
adverse ruling from the Sandiganbayan, (ii) moved for reconsideration of nature of this suspension, the petitioner’s demand for a trial-type hearing in
the suspension order issued against him, and (iii) filed a Reply to the OSP’s the present case would only overwhelmingly frustrate, rather than promote,
Opposition to his plea for reconsideration.49Given this opportunity, we find the orderly and speedy dispensation of justice.
that the petitioner’s continued demand for the conduct of an actual pre- WHEREFORE, we hereby DISMISS the petition for lack of merit.
suspension hearing – based on the same alleged "defect in the
information,"50 which we have found wanting – has legally nothing to SO ORDERED.
anchor itself on.
Another reason that militates against the petitioner’s position relates to the
nature of Section 13 of R.A. No. 3019; it is not a penal provision that would
call for a liberal interpretation in favor of the accused public official and a
strict construction against the State.51 The suspension required under this
provision is not a penalty, as it is not imposed as a result of judicial
proceedings; in fact, if acquitted, the accused official shall be entitled to
reinstatement and to the salaries and benefits which he failed to receive
during his suspension.52
Rather, the suspension under Section 13 of R.A. No. 3019 is a mere
preventive measure53 that arises from the legal presumption that unless the
accused is suspended, he may frustrate his prosecution or commit further
acts of malfeasance or do both, in the same way that upon a finding that Republic of the Philippines

there is probable cause to believe that a crime has been committed and that SUPREME COURT

the accused is probably guilty thereof, the law requires the judge to issue a Manila
warrant for the arrest of the accused.54 SECOND DIVISION
Suspension under R.A. No. 3019 being a mere preventive measure whose G.R. No. 179031 February 24, 2014
duration shall in no case exceed ninety (90) days,55 the adequacy of the
opportunity to contest the validity of the information and of the proceedings
PEOPLE OF THE PHILIPPINES, Plaintiff Appellee, 
 1. By the death of the convict, as to the personal penalties; and as to
vs.
 pecuniary penalties, liability therefor is extinguished only when the death of
BENJAMIN SORIA y GOMEZ, Accused-Appellant.
RESOLUTION
DEL CASTILLO, J.:
On November 14, 2012, this Court rendered its Decision1 in this case
finding accused-appellant Benjamin Soria y Gomez guilty beyond
reasonable doubt of rape. The dispositive portion of the Decision reads:
WHEREFORE, the December 29, 2006 Decision of the Court of Appeals in
CA-GR. CR-H.C. No. 01442 is AFFIRMED with MODIFICATIONS.
Accused-appellant Benjamin Soria y Gomez is found guilty beyond
reasonable doubt of the crime of rape by sexual assault and is sentenced to
suffer the penalty of twelve (12) years of prision mayor, as minimum, to
twenty (20) years of reclusion temporal, as maximum. He is also ordered to
pay "AAA" the amounts of ₱30,000.00 as civil indemnity, ₱30,000.00 as
moral damages, and ₱30,000.00 as exemplary damages. "AAA" is entitled
to an interest on all damages awarded at the legal rate of 6% per
annum :from the date of finality of this judgment until fully paid.
SO ORDERED.2
The said Decision supposedly became final and executory on December 20,
2012.3 Subsequently, however, the Court received a letter from the Bureau
of Corrections informing us of the death of accused-appellant on August 16,
2012. In compliance with our directive, the Director of the Bureau of
Corrections submitted on November 11, 2013, a certified true copy of the
death certificate4 of accused-appellant.
Clearly, accused-appellant’s demise on August 16, 2012 transpired before
the promulgation of this Court’s Decision on November 14, 2012 or before
its finality on December 20, 2012. Therefore, when accused-appellant died,
his appeal before this Court was still pending resolution.
Article 89 of the Revised Penal Code pertinently provides:
ART. 89. How criminal liability is totally extinguished. - Criminal liability
is totally extinguished:
the offender occurs before final judgment;
xxxx
In People v. Amistoso,5 this Court encountered a similar situation wherein
the accused-appellant died before his appeal could be resolved. The Court
explained the implications of the accused-appellant’s demise as follows:
Given the foregoing, it is clear that the death of the accused pending appeal
of his conviction extinguishes his criminal liability, as well as his civil
liability ex delicto. Since the criminal action is extinguished inasmuch as
there is no longer a defendant to stand as the accused, the civil action
instituted therein for recovery of civil liability ex delicto is ipso facto
extinguished, grounded as it is on the criminal case.
Undeniably, Amistoso’s death on December 11, 2012 preceded the
promulgation by the Court of its Decision on January 9, 2013. When
Amistoso died, his appeal before the Court was still pending and
unresolved.1âwphi1 The Court ruled upon Amistoso’s appeal only because
it was not immediately informed of his death.
Amistoso’s death on December 11, 2012 renders the Court’s Decision dated
January 9, 2013, even though affirming Amistoso’s conviction, irrelevant
and ineffectual. Moreover, said Decision has not yet become final, and the
Court still has the jurisdiction to set it aside.
The Court had no course of action but to set aside its Decision and dismiss
the criminal case against Amistoso by reason of his death.
Likewise, the November 14, 2012 Decision of this Court finding accused-
appellant guilty beyond reasonable doubt of the crime of rape had become
irrelevant and ineffectual by reason of his death on August 16, 2012.
Consequently, the same must be set aside and the case against accused-
appellant must consequently be dismissed.
ACCORDINGLY, the November 14, 2012 Decision of this Court is SET
ASIDE and Criminal Case No. Q-01-98692 before the Regional Trial Court
of Quezon City, Branch 94, is DISMISSED on account of accused-
appellant's demise.
SO ORDERED.
TOPIC: Rule 110 – D. Place Where Action is Instituted
Republic of the Philippines
 another tribunal or agency, accused knowing well that said material
SUPREME COURT
 statement was false thereby making a willful and deliberate assertion of
Manila
EN BANC
G.R. No. 192565 February 28, 2012
UNION BANK OF THE, PHILIPPINES and DESI
TOMAS, Petitioners, 
 City on April 13, 1998. The second complaint, docketed as Civil Case No.
vs.
 342-000, was filed on March 15, 2000 and raffled to the MeTC, Branch 47,
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
BRION, J.:
We review in this Rule 45 petition, the decision1 of the Regional Trial Court,
Branch 65, Makati City (RTC-Makati City) in Civil Case No. 09-1038. The
petition seeks to reverse and set aside the RTC-Makati City decision
dismissing the petition for certiorari of petitioners Union Bank of the
Philippines (Union Bank) and Desi Tomas (collectively, the petitioners).
The RTC found that the Metropolitan Trial Court, Branch 63, Makati City
(MeTC-Makati City) did not commit any grave abuse of discretion in
denying the motion to quash the information for perjury filed by Tomas.
The Antecedents
Tomas was charged in court for perjury under Article 183 of the Revised
Penal Code (RPC) for making a false narration in a Certificate against
Forum Shopping. The Information against her reads:
That on or about the 13th day of March 2000 in the City of Makati, Metro
Manila, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, did then and there willfully, unlawfully and
feloniously make untruthful statements under oath upon a material matter
before a competent person authorized to administer oath which the law
requires to wit: said accused stated in the Verification/Certification/
Affidavit of merit of a complaint for sum of money with prayer for a writ of
replevin docketed as [Civil] Case No. 342-00 of the Metropolitan Trial
Court[,] Pasay City, that the Union Bank of the Philippines has not
commenced any other action or proceeding involving the same issues in
falsehood.2
The accusation stemmed from petitioner Union Bank’s two (2) complaints
for sum of money with prayer for a writ of replevin against the spouses
Eddie and Eliza Tamondong and a John Doe. The first complaint, docketed
as Civil Case No. 98-0717, was filed before the RTC, Branch 109, Pasay
Pasay City. Both complaints showed that Tomas executed and signed the
Certification against Forum Shopping. Accordingly, she was charged of
deliberately violating Article 183 of the RPC by falsely declaring under oath
in the Certificate against Forum Shopping in the second complaint that she
did not commence any other action or proceeding involving the same issue
in another tribunal or agency.
Tomas filed a Motion to Quash,3 citing two grounds. First, she argued that
the venue was improperly laid since it is the Pasay City court (where the
Certificate against Forum Shopping was submitted and used) and not the
MeTC-Makati City (where the Certificate against Forum Shopping was
subscribed) that has jurisdiction over the perjury case. Second, she argued
that the facts charged do not constitute an offense because: (a) the third
element of perjury – the willful and deliberate assertion of falsehood – was
not alleged with particularity without specifying what the other action or
proceeding commenced involving the same issues in another tribunal or
agency; (b) there was no other action or proceeding pending in another
court when the second complaint was filed; and (c) she was charged with
perjury by giving false testimony while the allegations in the Information
make out perjury by making a false affidavit.
The MeTC-Makati City denied the Motion to Quash, ruling that it has
jurisdiction over the case since the Certificate against Forum Shopping was
notarized in Makati City.4 The MeTC-Makati City also ruled that the
allegations in the Information sufficiently charged Tomas with perjury.5 The
MeTC-Makati City subsequently denied Tomas’ motion for reconsideration.
6 improper since the petitioners can later appeal the decision in the principal
The petitioners filed a petition for certiorari before the RTC-Makati City to
annul and set aside the MeTC-Makati City orders on the ground of grave
abuse of discretion. The petitioners anchored their petition on the rulings in
United States v. Canet7 and Ilusorio v. Bildner8 which ruled that venue and
jurisdiction should be in the place where the false document was presented.
The Assailed RTC Decision
In dismissing the petition for certiorari, the RTC-Makati City held:
[I]nsofar as the petitioner’s stance is concerned[,] the more recent case of
[Sy Tiong Shiou v. Sy] (GR Nos. 174168 & 179438, March 30, 2009)
however, reaffirms what has been the long standing view on the venue with
respect to perjury cases. In this particular case[,] the high court reiterated
the rule that the criminal action shall be instituted and tried in the court of
the municipality or territory where the offense was committed, or where any
of its essential ingredients occurred. It went on to declare that since the
subject document[,] the execution of which was the subject of the charge[,]
was subscribed and sworn to in Manila[,] then the court of the said
territorial jurisdiction was the proper venue of the criminal action[.]
xxxx
x x x Given the present state of jurisprudence on the matter, it is not amiss
to state that the city court of Makati City has jurisdiction to try and decide
the case for perjury inasmuch as the gist of the complaint itself which
constitute[s] the charge against the petitioner dwells solely on the act of
subscribing to a false certification. On the other hand, the charge against the
accused in the case of Ilusorio v. Bildner, et al., based on the complaint-
affidavits therein[,] was not simply the execution of the questioned
documents but rather the introduction of the false evidence through the
subject documents before the court of Makati City.9 (emphasis ours)
The RTC-Makati City ruled that the MeTC-Makati City did not commit
grave abuse of discretion since the order denying the Motion to Quash was
based on jurisprudence later than Ilusorio. The RTC-Makati City also
observed that the facts in Ilusorio are different from the facts of the present
case. Lastly, the RTC-Makati City ruled that the Rule 65 petition was
case. The RTC-Makati City subsequently denied the petitioner’s motion for
reconsideration.10
The Petition
The petitioners pray that we reverse the RTC-Makati City decision and
quash the Information for perjury against Tomas. The petitioners contend
that the Ilusorio ruling is more applicable to the present facts than our ruling
in Sy Tiong Shiou v. Sy Chim.11 They argued that the facts in Ilusorio
showed that the filing of the petitions in court containing the false
statements was the essential ingredient that consummated the perjury. In Sy
Tiong, the perjurious statements were made in a General Information Sheet
(GIS) that was submitted to the Securities and Exchange Commission
(SEC).
Interestingly, Solicitor General Jose Anselmo I. Cadiz shared the
petitioners’ view. In his Manifestation and Motion in lieu of Comment
(which we hereby treat as the Comment to the petition), the Solicitor
General also relied on Ilusorio and opined that the lis mota in the crime of
perjury is the deliberate or intentional giving of false evidence in the court
where the evidence is material. The Solicitor General observed that the
criminal intent to assert a falsehood under oath only became manifest before
the MeTC-Pasay City.
The Issue
The case presents to us the issue of what the proper venue of perjury under
Article 183 of the RPC should be – Makati City, where the Certificate
against Forum Shopping was notarized, or Pasay City, where the
Certification was presented to the trial court.
The Court’s Ruling
We deny the petition and hold that the MeTC-Makati City is the proper
venue and the proper court to take cognizance of the perjury case against
the petitioners.
Venue of Action and Criminal Jurisdiction
Venue is an essential element of jurisdiction in criminal cases. It determines
not only the place where the criminal action is to be instituted, but also the
court that has the jurisdiction to try and hear the case. The reason for this
rule is two-fold. First, the jurisdiction of trial courts is limited to well-
defined territories such that a trial court can only hear and try cases
involving crimes committed within its territorial jurisdiction.12 Second,
laying the venue in the locus criminis is grounded on the necessity and
justice of having an accused on trial in the municipality of province where
witnesses and other facilities for his defense are available.13
Unlike in civil cases, a finding of improper venue in criminal cases carries
jurisdictional consequences. In determining the venue where the criminal
action is to be instituted and the court which has jurisdiction over it, Section
15(a), Rule 110 of the 2000 Revised Rules of Criminal Procedure provides:
(a) Subject to existing laws, the criminal action shall be instituted
and tried in the court or municipality or territory where the offense
was committed or where any of its essential ingredients occurred.
[emphasis ours]
The above provision should be read in light of Section 10, Rule 110 of the
2000 Revised Rules of Criminal Procedure which states:
Place of commission of the offense. – The complaint or information is
sufficient if it can be understood from its allegations that the offense was
committed or some of its essential ingredients occurred at some place
within the jurisdiction of the court, unless the particular place where it was
committed constitutes an essential element of the offense charged or is
necessary for its identification.
Both provisions categorically place the venue and jurisdiction over criminal
cases not only in the court where the offense was committed, but also where
any of its essential ingredients took place. In other words, the venue of
action and of jurisdiction are deemed sufficiently alleged where the
Information states that the offense was committed or some of its essential
ingredients occurred at a place within the territorial jurisdiction of the court.
Information Charging Perjury
Section 5, Rule 7 of the 1997 Rules of Civil Procedure, as amended,
contains the requirement for a Certificate against Forum Shopping. The
Certificate against Forum Shopping can be made either by a statement
under oath in the complaint or initiatory pleading asserting a claim or relief;
it may also be in a sworn certification annexed to the complaint or initiatory
pleading. In both instances, the affiant is required to execute a statement
under oath before a duly commissioned notary public or any competent
person authorized to administer oath that: (a) he or she has not theretofore
commenced any action or filed any claim involving the same issues in any
court, tribunal or quasi-judicial agency and, to the best of his or her
knowledge, no such other action or claim is pending therein; (b) if there is
such other pending action or claim, a complete statement of the present
status thereof; and (c) if he or she should thereafter learn that the same or
similar action or claim has been filed or is pending, he or she shall report
that fact within five days therefrom to the court wherein his or her aforesaid
complaint or initiatory pleading has been filed. In relation to the crime of
perjury, the material matter in a Certificate against Forum Shopping is the
truth of the required declarations which is designed to guard against
litigants pursuing simultaneous remedies in different fora.14
In this case, Tomas is charged with the crime of perjury under Article 183 of
the RPC for making a false Certificate against Forum Shopping. The
elements of perjury under Article 183 are:
(a) That the accused made a statement under oath or executed an
affidavit upon a material matter.
(b) That the statement or affidavit was made before a competent
officer, authorized to receive and administer oath.
(c) That in the statement or affidavit, the accused made a willful
and deliberate assertion of a falsehood.
(d) That the sworn statement or affidavit containing the falsity is
required by law or made for a legal purpose.15(emphasis ours)
Where the jurisdiction of the court is being assailed in a criminal case on
the ground of improper venue, the allegations in the complaint and
information must be examined together with Section 15(a), Rule 110 of the
2000 Revised Rules of Criminal Procedure. On this basis, we find that the
allegations in the Information sufficiently support a finding that the crime of
perjury was committed by Tomas within the territorial jurisdiction of the
MeTC-Makati City.
The first element of the crime of perjury, the execution of the subject
Certificate against Forum Shopping was alleged in the Information to have
been committed in Makati City. Likewise, the second and fourth elements,
requiring the Certificate against Forum Shopping to be under oath before a
notary public, were also sufficiently alleged in the Information to have been
made in Makati City:
That on or about the 13th day of March 2000 in the City of Makati, Metro
Manila, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, did then and there willfully, unlawfully and
feloniously make untruthful statements under oath upon a material matter
before a competent person authorized to administer oath which the law
requires to wit: said accused stated in the Verification/Certification/
Affidavit x x x.16
We also find that the third element of willful and deliberate falsehood was
also sufficiently alleged to have been committed in Makati City, not Pasay
City, as indicated in the last portion of the Information:
[S]aid accused stated in the Verification/Certification/Affidavit of merit of a
complaint for sum of money with prayer for a writ of replevin docketed as
[Civil] Case No. 342-00 of the Metropolitan Trial Court[,] Pasay City, that
the Union Bank of the Philippines has not commenced any other action or
proceeding involving the same issues in another tribunal or agency, accused
knowing well that said material statement was false thereby making a
willful and deliberate assertion of falsehood.17 (underscoring ours)
Tomas’ deliberate and intentional assertion of falsehood was allegedly
shown when she made the false declarations in the Certificate against
Forum Shopping before a notary public in Makati City, despite her
knowledge that the material statements she subscribed and swore to were
not true. Thus, Makati City is the proper venue and MeTC-Makati City is
the proper court to try the perjury case against Tomas, pursuant to Section
15(a), Rule 110 of the 2000 Revised Rules of Criminal Procedure as all the
essential elements constituting the crime of perjury were committed within
the territorial jurisdiction of Makati City, not Pasay City.
Referral to the En Banc
The present case was referred to the En Banc primarily to address the
seeming conflict between the division rulings of the Court in the Ilusorio
case that is cited as basis of this petition, and the Sy Tiong case that was the
basis of the assailed RTC-Makati City ruling.
The Cited Ilusorio and Sy Tiong Cases
The subject matter of the perjury charge in Ilusorio involved false
statements contained in verified petitions filed with the court for the
issuance of a new owner’s duplicate copies of certificates of title. The
verified petitions containing the false statements were subscribed and sworn
to in Pasig City, but were filed in Makati City and Tagaytay City. The
question posed was: which court (Pasig City, Makati City and/or Tagaytay
City) had jurisdiction to try and hear the perjury cases?
We ruled that the venues of the action were in Makati City and Tagaytay
City, the places where the verified petitions were filed. The Court reasoned
out that it was only upon filing that the intent to assert an alleged falsehood
became manifest and where the alleged untruthful statement found
relevance or materiality. We cited as jurisprudential authority the case of
United States. v. Cañet18 which ruled:
It is immaterial where the affidavit was subscribed and sworn, so long as it
appears from the information that the defendant, by means of such affidavit,
"swore to" and knowingly submitted false evidence, material to a point at
issue in a judicial proceeding pending in the Court of First Instance of Iloilo
Province. The gist of the offense charged is not the making of the affidavit
in Manila, but the intentional giving of false evidence in the Court of First
Instance of Iloilo Province by means of such affidavit. [emphasis and
underscoring deleted]
In Sy Tiong, the perjured statements were made in a GIS which was
subscribed and sworn to in Manila. We ruled that the proper venue for the
perjury charges was in Manila where the GIS was subscribed and sworn to.
We held that the perjury was consummated in Manila where the false
statement was made. As supporting jurisprudence, we cited the case of
Villanueva v. Secretary of Justice19 that, in turn, cited an American case
entitled U.S. v. Norris.20 We ruled in Villanueva that –
Perjury is an obstruction of justice; its perpetration well may affect the
dearest concerns of the parties before a tribunal. Deliberate material
falsification under oath constitutes the crime of perjury, and the crime is
complete when a witness' statement has once been made.
The Crime of Perjury: A Background
To have a better appreciation of the issue facing the Court, a look at the
historical background of how the crime of perjury (specifically, Article 183
of the RPC) evolved in our jurisdiction.
The RPC penalizes three forms of false testimonies. The first is false
testimony for and against the defendant in a criminal case (Articles 180 and
181, RPC); the second is false testimony in a civil case (Article 182, RPC);
and the third is false testimony in other cases (Article 183, RPC). Based on
the Information filed, the present case involves the making of an untruthful
statement in an affidavit on a material matter.
These RPC provisions, however, are not really the bases of the rulings cited
by the parties in their respective arguments. The cited Ilusorio ruling,
although issued by this Court in 2008, harked back to the case of Cañet
which was decided in 1915, i.e., before the present RPC took effect.21 Sy
Tiong, on the other hand, is a 2009 ruling that cited Villanueva, a 2005 case
that in turn cited United States v. Norris, a 1937 American case.
Significantly, unlike Canet, Sy Tiong is entirely based on rulings rendered
after the present RPC took effect.22
The perjurious act in Cañet consisted of an information charging perjury
through the presentation in court of a motion accompanied by a false sworn
affidavit. At the time the Cañet ruling was rendered, the prevailing law on
perjury and the rules on prosecution of criminal offenses were found in
Section 3, Act No. 1697 of the Philippine Commission, and in Subsection 4,
Section 6 of General Order No. 5823 for the procedural aspect.
Section 3 of Act No. 1697 reads:
Sec. 3. Any person who, having taken oath before a competent tribunal,
officer, or person, in any case in which a law of the Philippine Islands
authorizes an oath to be administered, that he will testify, declare, depose, or
certify truly, or that any written testimony, declaration, disposition, or
certificate by him subscribed is true, willfully and contrary to such oath
states or subscribes any material matter which he does not believe to be
true, is guilty of perjury, and shall be punished by a fine of not more than
two thousand pesos and by imprisonment for not more than five years; and
shall moreover, thereafter be incapable of holding any public office or of
giving testimony in any court of the Philippine Islands until such time as the
judgment against him is reversed.
This law was copied, with the necessary changes, from Sections 539224 and
539325 of the Revised Statutes of the United States.26 Act No. 1697 was
intended to make the mere execution of a false affidavit punishable in our
jurisdiction.27
In turn, Subsection 4, Section 6 of General Order No. 58 provided that the
venue shall be the court of the place where the crime was committed.
As applied and interpreted by the Court in Cañet, perjury was committed by
the act of representing a false document in a judicial proceeding.28 The
venue of action was held by the Court to be at the place where the false
document was presented since the presentation was the act that
consummated the crime.
The annotation of Justices Aquino and Griño-Aquino in their textbook on
the RPC29 interestingly explains the history of the perjury provisions of the
present RPC and traces as well the linkage between Act No. 1697 and the
present Code. To quote these authors:30
Art. 180 was taken from art. 318 of the Old Penal Code and art. 154 of Del
Pan’s Proposed Correctional Code, while art. 181 was taken from art. 319 of
the old Penal Code and Art. 157 of Del Pan’s Proposed Correctional Code.
Said arts. 318 and 319, together with art. 321 of the old Penal Code, were
impliedly repealed by Act 1697, the Perjury Law, passed on August 23,
1907, which in turn was expressly repealed by the Administrative Code of
1916, Act 2657. In view of the express repeal of Act 1697, arts. 318 and 321
of the old Penal Code were deemed revived. However, Act 2718 expressly
revived secs. 3 and 4 of the Perjury Law. Art. 367 of the Revised Penal
Code repealed Act Nos. 1697 and 2718.
It should be noted that perjury under Acts 1697 and 2718 includes false
testimony, whereas, under the Revised Penal Code, false testimony includes
perjury. Our law on false testimony is of Spanish origin, but our law on
perjury (art. 183 taken from sec. 3 of Act 1697) is derived from American
statutes. The provisions of the old Penal Code on false testimony embrace
perjury committed in court or in some contentious proceeding, while
perjury as defined in Act 1697 includes the making of a false affidavit. The
provisions of the Revised Penal Code on false testimony "are more severe
and strict than those of Act 1697" on perjury. [italics ours]
With this background, it can be appreciated that Article 183 of the RPC
which provides:
The penalty of arresto mayor in its maximum period to prision correccional
in its minimum period shall be imposed upon any person, who knowingly
makes untruthful statements and not being included in the provisions of the
next preceding articles, shall testify under oath, or make an affidavit, upon
any material matter before a competent person authorized to administer an
oath in cases in which the law so requires. [emphasis supplied; emphases
ours]
in fact refers to either of two punishable acts – (1) falsely testifying under
oath in a proceeding other than a criminal or civil case; and (2) making a
false affidavit before a person authorized to administer an oath on any
material matter where the law requires an oath.
As above discussed, Sy Tiong – decided under Article 183 of the RPC –
essentially involved perjured statements made in a GIS that was subscribed
and sworn to in Manila and submitted to the SEC in Mandaluyong City.
Thus, the case involved the making of an affidavit, not an actual testimony
in a proceeding that is neither criminal nor civil. From this perspective, the
situs of the oath, i.e., the place where the oath was taken, is the place where
the offense was committed. By implication, the proper venue would have
been the City of Mandaluyong – the site of the SEC – had the charge
involved an actual testimony made before the SEC.
In contrast, Cañet involved the presentation in court of a motion supported
and accompanied by an affidavit that contained a falsity. With Section 3 of
Act No. 1697 as basis, the issue related to the submission of the affidavit in
a judicial proceeding. This came at a time when Act No. 1697 was the
perjury law, and made no distinction between judicial and other
proceedings, and at the same time separately penalized the making of false
statements under oath (unlike the present RPC which separately deals with
false testimony in criminal, civil and other proceedings, while at the same
time also penalizing the making of false affidavits). Understandably, the
venue should be the place where the submission was made to the court or
the situs of the court; it could not have been the place where the affidavit
was sworn to simply because this was not the offense charged in the
Information.
The case of Ilusorio cited the Cañet case as its authority, in a situation
where the sworn petitions filed in court for the issuance of duplicate
certificates of title (that were allegedly lost) were the cited sworn statements
to support the charge of perjury for the falsities stated in the sworn petitions.
The Court ruled that the proper venue should be the Cities of Makati and
Tagaytay because it was in the courts of these cities "where the intent to
assert an alleged falsehood became manifest and where the alleged
untruthful statement finds relevance or materiality in deciding the issue of
whether new owner’s duplicate copies of the [Certificate of Condominium
Title] and [Transfer Certificates of Title] may issue."31 To the Court,
"whether the perjurious statements contained in the four petitions were
subscribed and sworn in Pasig is immaterial, the gist of the offense of
perjury being the intentional giving of false statement,"32citing Cañet as
authority for its statement.
The statement in Ilusorio may have partly led to the present confusion on
venue because of its very categorical tenor in pointing to the considerations
to be made in the determination of venue; it leaves the impression that the
place where the oath was taken is not at all a material consideration,
forgetting that Article 183 of the RPC clearly speaks of two situations while
Article 182 of the RPC likewise applies to false testimony in civil cases.
The Ilusorio statement would have made perfect sense had the basis for the
charge been Article 182 of the RPC, on the assumption that the petition
itself constitutes a false testimony in a civil case. The Cañet ruling would
then have been completely applicable as the sworn statement is used in a in cases in which the law so requires." The constitutive act of the offense is
civil case, although no such distinction was made under Cañet because the the making of an affidavit; thus, the criminal act is consummated when the
applicable law at the time (Act No. 1697) did not make any distinction. statement containing a falsity is subscribed and sworn before a duly
authorized person.
If Article 183 of the RPC were to be used, as what in fact appears in the
Ilusorio ruling, then only that portion of the article, referring to the making Based on these considerations, we hold that our ruling in Sy Tiong is more
of an affidavit, would have been applicable as the other portion refers to in accord with Article 183 of the RPC and Section 15(a), Rule 110 of the
false testimony in other proceedings which a judicial petition for the 2000 Revised Rules of Criminal Procedure. To reiterate for the guidance of
issuance of a new owner’s duplicate copy of a Certificate of Condominium the Bar and the Bench, the crime of perjury committed through the making
Title is not because it is a civil proceeding in court. As a perjury based on of a false affidavit under Article 183 of the RPC is committed at the time
the making of a false affidavit, what assumes materiality is the site where the affiant subscribes and swears to his or her affidavit since it is at that time
the oath was taken as this is the place where the oath was made, in this case, that all the elements of the crime of perjury are executed. When the crime is
Pasig City. committed through false testimony under oath in a proceeding that is neither
criminal nor civil, venue is at the place where the testimony under oath is
Procedurally, the rule on venue of criminal cases has been subject to various
given. If in lieu of or as supplement to the actual testimony made in a
changes from the time General Order No. 58 was replaced by Rules 106 to
proceeding that is neither criminal nor civil, a written sworn statement is
122 of the Rules of Court on July 1, 1940. Section 14, Rule 106 of the Rules
submitted, venue may either be at the place where the sworn statement is
of Court provided for the rule on venue of criminal actions and it expressly
submitted or where the oath was taken as the taking of the oath and the
included, as proper venue, the place where any one of the essential
submission are both material ingredients of the crime committed. In all
ingredients of the crime took place.1âwphi1 This change was followed by
cases, determination of venue shall be based on the acts alleged in the
the passage of the 1964 Rules of Criminal Procedure,33 the 1985 Rules of
Information to be constitutive of the crime committed.
Criminal Procedure,34 and the 2000 Revised Rules of Criminal Procedure
which all adopted the 1940 Rules of Criminal Procedure’s expanded venue WHEREFORE, premises considered, we hereby DENY the petition for lack
of criminal actions. Thus, the venue of criminal cases is not only in the of merit. Costs against the petitioners.
place where the offense was committed, but also where any of its essential SO ORDERED.
ingredients took place.
In the present case, the Certification against Forum Shopping was made
integral parts of two complaints for sum of money with prayer for a writ of
replevin against the respondent spouses Eddie Tamondong and Eliza B.
Tamondong, who, in turn, filed a complaint-affidavit against Tomas for
violation of Article 183 of the RPC. As alleged in the Information that
followed, the criminal act charged was for the execution by Tomas of an
affidavit that contained a falsity.
Under the circumstances, Article 183 of the RPC is indeed the applicable
provision; thus, jurisdiction and venue should be determined on the basis of
this article which penalizes one who "make[s] an affidavit, upon any
material matter before a competent person authorized to administer an oath
TOPIC: Rule 111 – A. Civil Liability Arising from the Offense
is Deemed Instituted
Republic of the Philippines
 attending physicians.12
SUPREME COURT
 Upon a finding of probable cause, the City Prosecutor’s Office filed an
Manila
FIRST DIVISION
G.R. No. 192123 March 10, 2014
DR. FERNANDO P. SOLIDUM, Petitioner, 

vs.

PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
BERSAMIN, J.:
This appeal is taken by a physician-anesthesiologist who has been
pronounced guilty of reckless imprudence resulting in serious physical
injuries by the Regional Trial Court (RTC) and the Court of Appeals (CA).
He had been part of the team of anesthesiologists during the surgical pull-
through operation conducted on a three-year old patient born with an
imperforate anus.1
The antecedents are as follows:
Gerald Albert Gercayo (Gerald) was born on June 2, 19922 with an
imperforate anus. Two days after his birth, Gerald underwent colostomy, a
surgical procedure to bring one end of the large intestine out through the
abdominal wall,3 enabling him to excrete through a colostomy bag attached
to the side of his body.4
On May 17, 1995, Gerald, then three years old, was admitted at the Ospital
ng Maynila for a pull-through operation.5Dr. Leandro Resurreccion headed
the surgical team, and was assisted by Dr. Joselito Luceño, Dr. Donatella
Valeña and Dr. Joseph Tibio. The anesthesiologists included Dr. Marichu
Abella, Dr. Arnel Razon and petitioner Dr. Fernando Solidum (Dr.
Solidum).6 During the operation, Gerald experienced bradycardia,7 and
went into a coma.8His coma lasted for two weeks,9 but he regained
consciousness only after a month.10 He could no longer see, hear or move.11
Agitated by her son’s helpless and unexpected condition, Ma. Luz Gercayo
(Luz) lodged a complaint for reckless imprudence resulting in serious
physical injuries with the City Prosecutor’s Office of Manila against the
information solely against Dr. Solidum,13alleging: –
That on or about May 17, 1995, in the City of Manila, Philippines, the said
accused, being then an anesthesiologist at the Ospital ng Maynila, Malate,
this City, and as such was tasked to administer the anesthesia on three-year
old baby boy GERALD ALBERT GERCAYO, represented by his mother,
MA. LUZ GERCAYO, the former having been born with an imperforate
anus [no anal opening] and was to undergo an operation for anal opening
[pull through operation], did then and there willfully, unlawfully and
feloniously fail and neglect to use the care and diligence as the best of his
judgment would dictate under said circumstance, by failing to monitor and
regulate properly the levels of anesthesia administered to said GERALD
ALBERT GERCAYO and using 100% halothane and other anesthetic
medications, causing as a consequence of his said carelessness and
negligence, said GERALD ALBERT GERCAYO suffered a cardiac arrest
and consequently a defect called hypoxic encephalopathy meaning
insufficient oxygen supply in the brain, thereby rendering said GERALD
ALBERT GERCAYO incapable of moving his body, seeing, speaking or
hearing, to his damage and prejudice.
Contrary to law.14
The case was initially filed in the Metropolitan Trial Court of Manila, but
was transferred to the RTC pursuant to Section 5 of Republic Act No. 8369
(The Family Courts Act of 1997),15 where it was docketed as Criminal Case
No. 01-190889.
Judgment of the RTC
On July 19, 2004, the RTC rendered its judgment finding Dr. Solidum guilty
beyond reasonable doubt of reckless imprudence resulting to serious
physical injuries,16 decreeing:
WHEREFORE, premises considered, the Court finds accused DR.
FERNANDO P. SOLIDUM GUILTY beyond reasonable doubt as principal
of the crime charged and is hereby sentenced to suffer the indeterminate
penalty of TWO (2) MONTHS and ONE (1) DAY of arresto mayor as
minimum to ONE (1) YEAR, ONE (1) MONTH and TEN (10) DAYS of
prision correccional as maximum and to indemnify, jointly and severally
with the Ospital ng Maynila, Dr. Anita So and Dr. Marichu Abella, private
complainant Luz Gercayo, the amount of ₱500,000.00 as moral damages
and ₱100,000.00 as exemplary damages and to pay the costs.
Accordingly, the bond posted by the accused for his provisional liberty is
hereby CANCELLED.
SO ORDERED.17
Upon motion of Dr. Anita So and Dr. Marichu Abella to reconsider their
solidary liability,18 the RTC excluded them from solidary liability as to the
damages, modifying its decision as follows:
WHEREFORE, premises considered, the Court finds accused Dr. Fernando
Solidum, guilty beyond reasonable doubt as principal of the crime charged
and is hereby sentenced to suffer the indeterminate penalty of two (2)
months and one (1) day of arresto mayor as minimum to one (1) year, one
(1) month and ten (10) days of prision correccional as maximum and to
indemnify jointly and severally with Ospital ng Maynila, private
complainant Luz Gercayo the amount of ₱500,000.00 as moral damages
and ₱100,000 as exemplary damages and to pay the costs.
Accordingly, the bond posted by the accused for his provisional liberty is
hereby cancelled.19
Decision of the CA
On January 20, 2010, the CA affirmed the conviction of Dr. Solidum,
20 pertinently stating and ruling:
The case appears to be a textbook example of res ipsa loquitur.
xxxx
x x x [P]rior to the operation, the child was evaluated and found fit to
undergo a major operation. As noted by the OSG, the accused himself
testified that pre-operation tests were conducted to ensure that the child
could withstand the surgery. Except for his imperforate anus, the child was
healthy. The tests and other procedures failed to reveal that he was suffering
from any known ailment or disability that could turn into a significant risk.
There was not a hint that the nature of the operation itself was a causative
factor in the events that finally led to hypoxia.
In short, the lower court has been left with no reasonable hypothesis except
to attribute the accident to a failure in the proper administration of
anesthesia, the gravamen of the charge in this case. The High Court
elucidates in Ramos vs. Court of Appeals 321 SCRA 584 –
In cases where the res ipsa loquitur is applicable, the court is permitted to
find a physician negligent upon proper proof of injury to the patient,
without the aid of expert testimony, where the court from its fund of
common knowledge can determine the proper standard of care.
Where common knowledge and experience teach that a resulting injury
would not have occurred to the patient if due care had been exercised, an
inference of negligence may be drawn giving rise to an application of the
doctrine of res ipsa loquitur without medical evidence, which is ordinarily
required to show not only what occurred but how and why it occurred.
When the doctrine is appropriate, all that the patient must do is prove a
nexus between the particular act or omission complained of and the injury
sustained while under the custody and management of the defendant
without need to produce expert medical testimony to establish the standard
of care. Resort to res ipsa loquitur is allowed because there is no other way,
under usual and ordinary conditions, by which the patient can obtain redress
for injury suffered by him.
The lower court has found that such a nexus exists between the act
complained of and the injury sustained, and in line with the hornbook rules
on evidence, we will afford the factual findings of a trial court the respect
they deserve in the absence of a showing of arbitrariness or disregard of
material facts that might affect the disposition of the case. People v. Paraiso
349 SCRA 335.
The res ipsa loquitur test has been known to be applied in criminal cases.
Although it creates a presumption of negligence, it need not offend due
process, as long as the accused is afforded the opportunity to go forward
with his own evidence and prove that he has no criminal intent. It is in this
light not inconsistent with the constitutional presumption of innocence of an
accused.
IN VIEW OF THE FOREGOING, the modified decision of the lower court
is affirmed.
SO ORDERED.21
Dr. Solidum filed a motion for reconsideration, but the CA denied his
motion on May 7, 2010.22
Hence, this appeal.
Issues
Dr. Solidum avers that:
I.
THE HONORABLE COURT OF APPEALS ERRED IN
AFFIRMING THE DECISION OF THE LOWER COURT IN
UPHOLDING THE PETITIONER’S CONVICTION FOR THE
CRIME CHARGED BASED ON THE TRIAL COURT’S
OPINION, AND NOT ON THE BASIS OF THE FACTS
ESTABLISHED DURING THE TRIAL. ALSO, THERE IS A
CLEAR MISAPPREHENSION OF FACTS WHICH IF
CORRECTED, WILL RESULT TO THE ACQUITTAL OF THE
PETITIONER. FURTHER, THE HONORABLE COURT ERRED
IN AFFIRMING THE SAID DECISION OF THE LOWER
COURT, AS THIS BREACHES THE CRIMINAL LAW
PRINCIPLE THAT THE PROSECUTION MUST PROVE THE
ALLEGATIONS OF THE INFORMATION BEYOND
REASONABLE DOUBT, AND NOT ON THE BASIS OF ITS
PRESUMPTIVE CONCLUSION.
II.
THE HONORABLE COURT OF APPEALS ERRED IN
APPLYING THE PRINCIPLE OF RES IPSA LOQUITOR (sic)
WHEN THE DEFENSE WAS ABLE TO PROVE THAT THERE
IS NO NEGLIGENCE ON THE PART OF THE PETITIONER,
AND NO OVERDOSING IN THE APPLICATION OF THE
ANESTHETIC AGENT BECAUSE THERE WAS NO 100%
HALOTHANE ADMINISTERED TO THE CHILD, BUT ONLY
ONE (1%) PERCENT AND THE APPLICATION THEREOF,
WAS REGULATED BY AN ANESTHESIA MACHINE. THUS,
THE APPLICATION OF THE PRINCIPLE OF RES IPSA
LOQUITOR (sic) CONTRADICTED THE ESTABLISHED
FACTS AND THE LAW APPLICABLE IN THE CASE.
III.
THE AWARD OF MORAL DAMAGES AND EXEMPLARY
DAMAGES IS NOT JUSTIFIED THERE BEING NO
NEGLIGENCE ON THE PART OF THE PETITIONER.
ASSUMING THAT THE CHILD IS ENTITLED TO FINANCIAL
CONSIDERATION, IT SHOULD BE ONLY AS A FINANCIAL
ASSISTANCE, BECAUSE THERE WAS NO NEGLIGENCE,
AND NO OVERDOSING OF ANESTHETIC AGENT AND AS
SUCH, THE AWARD IS SO EXCESSIVE, AND NO FACTUAL
AND LEGAL BASIS.23
To simplify, the following are the issues for resolution, namely: (a) whether
or not the doctrine of res ipsa loquitur was applicable herein; and (b)
whether or not Dr. Solidum was liable for criminal negligence.
Ruling
The appeal is meritorious.
Applicability of the Doctrine of Res Ipsa Loquitur
Res ipsa loquitur is literally translated as "the thing or the transaction speaks
for itself." The doctrine res ipsa loquitur means that "where the thing which
causes injury is shown to be under the management of the defendant, and
the accident is such as in the ordinary course of things does not happen if
those who have the management use proper care, it affords reasonable
evidence, in the absence of an explanation by the defendant, that the
accident arose from want of care."24 It is simply "a recognition of the
postulate that, as a matter of common knowledge and experience, the very
nature of certain types of occurrences may justify an inference of
negligence on the part of the person who controls the instrumentality
causing the injury in the absence of some explanation by the defendant who
is charged with negligence. It is grounded in the superior logic of ordinary
human experience and on the basis of such experience or common
knowledge, negligence may be deduced from the mere occurrence of the
accident itself.
Hence, res ipsa loquitur is applied in conjunction with the doctrine of
common knowledge."25
Jarcia, Jr. v. People26 has underscored that the doctrine is not a rule of
substantive law, but merely a mode of proof or a mere procedural
convenience. The doctrine, when applicable to the facts and circumstances
of a given case, is not meant to and does not dispense with the requirement
of proof of culpable negligence against the party charged. It merely
determines and regulates what shall be prima facie evidence thereof, and
helps the plaintiff in proving a breach of the duty. The doctrine can be
invoked when and only when, under the circumstances involved, direct
evidence is absent and not readily available.27
The applicability of the doctrine of res ipsa loquitur in medical negligence
cases was significantly and exhaustively explained in Ramos v. Court of
Appeals,28 where the Court said –
Medical malpractice cases do not escape the application of this doctrine.
Thus, res ipsa loquitur has been applied when the circumstances attendant
upon the harm are themselves of such a character as to justify an inference
of negligence as the cause of that harm. The application of res ipsa loquitur
in medical negligence cases presents a question of law since it is a judicial
function to determine whether a certain set of circumstances does, as a
matter of law, permit a given inference.
Although generally, expert medical testimony is relied upon in malpractice
suits to prove that a physician has done a negligent act or that he has
deviated from the standard medical procedure, when the doctrine of res ipsa
loquitur is availed by the plaintiff, the need for expert medical testimony is
dispensed with because the injury itself provides the proof of negligence.
The reason is that the general rule on the necessity of expert testimony
applies only to such matters clearly within the domain of medical science,
and not to matters that are within the common knowledge of mankind
which may be testified to by anyone familiar with the facts. Ordinarily, only
physicians and surgeons of skill and experience are competent to testify as
to whether a patient has been treated or operated upon with a reasonable
degree of skill and care. However, testimony as to the statements and acts of
physicians and surgeons, external appearances, and manifest conditions
which are observable by any one may be given by non-expert witnesses.
Hence, in cases where the res ipsa loquitur is applicable, the court is
permitted to find a physician negligent upon proper proof of injury to the
patient, without the aid of expert testimony, where the court from its fund of
common knowledge can determine the proper standard of care. Where
common knowledge and experience teach that a resulting injury would not
have occurred to the patient if due care had been exercised, an inference of
negligence may be drawn giving rise to an application of the doctrine of res
ipsa loquitur without medical evidence, which is ordinarily required to show
not only what occurred but how and why it occurred. When the doctrine is
appropriate, all that the patient must do is prove a nexus between the
particular act or omission complained of and the injury sustained while
under the custody and management of the defendant without need to
produce expert medical testimony to establish the standard of care. Resort
to res ipsa loquitur is allowed because there is no other way, under usual
and ordinary conditions, by which the patient can obtain redress for injury
suffered by him.
Thus, courts of other jurisdictions have applied the doctrine in the following
situations: leaving of a foreign object in the body of the patient after an
operation, injuries sustained on a healthy part of the body which was not
under, or in the area, of treatment, removal of the wrong part of the body
when another part was intended, knocking out a tooth while a patient’s jaw
was under anesthetic for the removal of his tonsils, and loss of an eye while
the patient plaintiff was under the influence of anesthetic, during or
following an operation for appendicitis, among others.
Nevertheless, despite the fact that the scope of res ipsa loquitur has been
measurably enlarged, it does not automatically apply to all cases of medical
negligence as to mechanically shift the burden of proof to the defendant to
show that he is not guilty of the ascribed negligence. Res ipsa loquitur is not
a rigid or ordinary doctrine to be perfunctorily used but a rule to be
cautiously applied, depending upon the circumstances of each case. It is
generally restricted to situations in malpractice cases where a layman is able
to say, as a matter of common knowledge and observation, that the
consequences of professional care were not as such as would ordinarily
have followed if due care had been exercised. A distinction must be made
between the failure to secure results, and the occurrence of something more
unusual and not ordinarily found if the service or treatment rendered
followed the usual procedure of those skilled in that particular practice. It
must be conceded that the doctrine of res ipsa loquitur can have no
application in a suit against a physician or surgeon which involves the
merits of a diagnosis or of a scientific treatment. The physician or surgeon
is not required at his peril to explain why any particular diagnosis was not
correct, or why any particular scientific treatment did not produce the
desired result. Thus, res ipsa loquitur is not available in a malpractice suit if
the only showing is that the desired result of an operation or treatment was
not accomplished. The real question, therefore, is whether or not in the
process of the operation any extraordinary incident or unusual event outside
of the routine performance occurred which is beyond the regular scope of
customary professional activity in such operations, which, if unexplained
would themselves reasonably speak to the average man as the negligent
cause or causes of the untoward consequence. If there was such extraneous
intervention, the doctrine of res ipsa loquitur may be utilized and the
defendant is called upon to explain the matter, by evidence of exculpation,
if he could.
In order to allow resort to the doctrine, therefore, the following essential
requisites must first be satisfied, to wit: (1) the accident was of a kind that
does not ordinarily occur unless someone is negligent; (2) the
instrumentality or agency that caused the injury was under the exclusive
control of the person charged; and (3) the injury suffered must not have
been due to any voluntary action or contribution of the person injured.29
The Court considers the application here of the doctrine of res ipsa loquitur
inappropriate. Although it should be conceded without difficulty that the
second and third elements were present, considering that the anesthetic
agent and the instruments were exclusively within the control of Dr.
Solidum, and that the patient, being then unconscious during the operation,
could not have been guilty of contributory negligence, the first element was
undeniably wanting. Luz delivered Gerald to the care, custody and control
of his physicians for a pull-through operation. Except for the imperforate
anus, Gerald was then of sound body and mind at the time of his submission
to the physicians. Yet, he experienced bradycardia during the operation,
causing loss of his senses and rendering him immobile. Hypoxia, or the
insufficiency of oxygen supply to the brain that caused the slowing of the
heart rate, scientifically termed as bradycardia, would not ordinarily occur
in the process of a pull-through operation, or during the administration of
anesthesia to the patient, but such fact alone did not prove that the
negligence of any of his attending physicians, including the
anesthesiologists, had caused the injury. In fact, the anesthesiologists
attending to him had sensed in the course of the operation that the lack of
oxygen could have been triggered by the vago-vagal reflex, prompting them
to administer atropine to the patient.30
This conclusion is not unprecedented. It was similarly reached in Swanson
v. Brigham,31 relevant portions of the decision therein being as follows:
On January 7, 1973, Dr. Brigham admitted 15-year-old Randall Swanson to
a hospital for the treatment of infectious mononucleosis. The patient's
symptoms had included a swollen throat and some breathing difficulty.
Early in the morning of January 9 the patient was restless, and at 1:30 a.m.
Dr. Brigham examined the patient. His inspection of the patient's air passage
revealed that it was in satisfactory condition. At 4:15 a.m. Dr. Brigham
received a telephone call from the hospital, advising him that the patient
was having respiratory difficulty. The doctor ordered that oxygen be
administered and he prepared to leave for the hospital. Ten minutes later,
4:25 a.m., the hospital called a second time to advise the doctor that the
patient was not responding. The doctor ordered that a medicine be
administered, and he departed for the hospital. When he arrived, the
physician who had been on call at the hospital had begun attempts to revive
the patient. Dr. Brigham joined him in the effort, but the patient died.
The doctor who performed the autopsy concluded that the patient died
between 4:25 a.m. and 4:30 a.m. of asphyxia, as a result of a sudden, acute
closing of the air passage. He also found that the air passage had been
adequate to maintain life up to 2 or 3 minutes prior to death. He did not
know what caused the air passage to suddenly close.
xxxx
It is a rare occurrence when someone admitted to a hospital for the
treatment of infectious mononucleosis dies of asphyxiation. But that is not
sufficient to invoke res ipsa loquitur. The fact that the injury rarely occurs
does not in itself prove that the injury was probably caused by someone's
negligence. Mason v. Ellsworth, 3 Wn. App. 298, 474 P.2d 909 (1970). Nor
is a bad result by itself enough to warrant the application of the doctrine.
Nelson v. Murphy, 42 Wn.2d 737, 258 P.2d 472 (1953). See 2 S. Speiser,
The Negligence Case – Res Ipsa Loquitur § 24:10 (1972). The evidence
presented is insufficient to establish the first element necessary for
application of res ipsa loquitur doctrine. The acute closing of the patient’s
air passage and his resultant asphyxiation took place over a very short
period of time. Under these circumstances it would not be reasonable to
infer that the physician was negligent. There was no palpably negligent act.
The common experience of mankind does not suggest that death would not
be expected without negligence. And there is no expert medical testimony
to create an inference that negligence caused the injury.
Negligence of Dr. Solidum
In view of the inapplicability of the doctrine of res ipsa loquitur, the Court
next determines whether the CA correctly affirmed the conviction of Dr.
Solidum for criminal negligence.
Negligence is defined as the failure to observe for the protection of the
interests of another person that degree of care, precaution, and vigilance that
the circumstances justly demand, whereby such other person suffers injury.
32Reckless imprudence, on the other hand, consists of voluntarily doing or
failing to do, without malice, an act from which material damage results by
reason of an inexcusable lack of precaution on the part of the person
performing or failing to perform such act.33
Dr. Solidum’s conviction by the RTC was primarily based on his failure to
monitor and properly regulate the level of anesthetic agent administered on
Gerald by overdosing at 100% halothane. In affirming the conviction, the
CA observed:
On the witness stand, Dr. Vertido made a significant turnaround. He
affirmed the findings and conclusions in his report except for an observation
which, to all intents and purposes, has become the storm center of this
dispute. He wanted to correct one piece of information regarding the dosage
of the anesthetic agent administered to the child. He declared that he made a
mistake in reporting a 100% halothane and said that based on the records it
should have been 100% oxygen.
The records he was relying on, as he explains, are the following:
(a) the anesthesia record – A portion of the chart in the record was
marked as Exhibit 1-A and 1-B to indicate the administration at
intervals of the anesthetic agent.
(b) the clinical abstract – A portion of this record that reads as
follows was marked Exhibit 3A. 3B – Approximately 1 hour and
45 minutes through the operation, patient was noted to have
bradycardia (CR = 70) and ATSO4 0.2 mg was immediately
administered. However, the bradycardia persisted, the inhalational
agent was shut off, and the patient was ventilated with 100%
oxygen and another dose of ATSO4 0.2 mg was given. However,
the patient did not respond until no cardiac rate can be auscultated
and the surgeons were immediately told to stop the operation. The
patient was put on a supine position and CPR was initiated. Patient
was given 1 amp of epinephrine initially while continuously doing
cardiac massage – still with no cardiac rate appreciated; another
ampule of epinephrine was given and after 45 secs, patient’s vital
signs returned to normal. The entire resuscitation lasted
approximately 3-5 mins. The surgeons were then told to proceed to
the closure and the child’s vital signs throughout and until the end
of surgery were: BP = 110/70; CR = 116/min and RR = 20-22
cycles/min (on assisted ventilation).
Dr. Vertido points to the crucial passage in the clinical abstract that the
patient was ventilated with 100% oxygen and another dose of ATSO4 when
the bradycardia persisted, but for one reason or another, he read it as 100%
halothane. He was asked to read the anesthesia record on the percentage of
the dosage indicated, but he could only sheepishly note I can’t understand
the number. There are no clues in the clinical abstract on the quantity of the
anesthetic agent used. It only contains the information that the anesthetic
plan was to put the patient under general anesthesia using a nonrebreathing
system with halothane as the sole anesthetic agent and that 1 hour and 45
minutes after the operation began, bradycardia occurred after which the
inhalational agent was shut off and the patient administered with 100%
oxygen. It would be apparent that the 100% oxygen that Dr. Vertido said
should be read in lieu of 100% halothane was the pure oxygen introduced
after something went amiss in the operation and the halothane itself was
reduced or shut off.
The key question remains – what was the quantity of halothane used before
bradycardia set in?
The implication of Dr. Vertido’s admission is that there was no overdose of
the anesthetic agent, and the accused Dr. Solidum stakes his liberty and
reputation on this conclusion. He made the assurance that he gave his
patient the utmost medical care, never leaving the operating room except for
a few minutes to answer the call of nature but leaving behind the other
members of his team Drs. Abella and Razon to monitor the operation. He
insisted that he administered only a point 1% not 100% halothane, receiving
corroboration from Dr. Abella whose initial MA in the record should be
enough to show that she assisted in the operation and was therefore
conversant of the things that happened. She revealed that they were using a
machine that closely monitored the concentration of the agent during the
operation.
But most compelling is Dr. Solidum’s interpretation of the anesthesia record
itself, as he takes the bull by the horns, so to speak. In his affidavit, he says,
reading from the record, that the quantity of halothane used in the operation
is one percent (1%) delivered at time intervals of 15 minutes. He studiedly
mentions – the concentration of halothane as reflected in the anesthesia
record (Annex D of the complaint-affidavit) is only one percent (1%) – The
numbers indicated in 15 minute increments for halothane is an indication
that only 1% halothane is being delivered to the patient Gerard Gercayo for
his entire operation; The amount of halothane delivered in this case which is
only one percent cannot be summated because halothane is constantly being
rapidly eliminated by the body during the entire operation.
xxxx
In finding the accused guilty, despite these explanations, the RTC argued
that the volte-face of Dr. Vertido on the question of the dosage of the
anesthetic used on the child would not really validate the non-guilt of the
anesthesiologist. Led to agree that the halothane used was not 100% as
initially believed, he was nonetheless unaware of the implications of the
change in his testimony. The court observed that Dr. Vertido had described
the condition of the child as hypoxia which is deprivation of oxygen, a
diagnosis supported by the results of the CT Scan. All the symptoms
attributed to a failing central nervous system such as stupor, loss of
consciousness, decrease in heart rate, loss of usual acuity and abnormal
motor function, are manifestations of this condition or syndrome. But why
would there be deprivation of oxygen if 100% oxygen to 1% halothane was
used? Ultimately, to the court, whether oxygen or halothane was the object
of mistake, the detrimental effects of the operation are incontestable, and
they can only be led to one conclusion – if the application of anesthesia was
really closely monitored, the event could not have happened.34
The Prosecution did not prove the elements of reckless imprudence beyond
reasonable doubt because the circumstances cited by the CA were
insufficient to establish that Dr. Solidum had been guilty of inexcusable lack
of precaution in monitoring the administration of the anesthetic agent to
Gerald. The Court aptly explained in Cruz v. Court of Appeals35 that:
Whether or not a physician has committed an "inexcusable lack of
precaution" in the treatment of his patient is to be determined according to
the standard of care observed by other members of the profession in good
standing under similar circumstances bearing in mind the advanced state of
the profession at the time of treatment or the present state of medical
science. In the recent case of Leonila Garcia-Rueda v. Wilfred L. Pacasio,
et. al., this Court stated that in accepting a case, a doctor in effect represents
that, having the needed training and skill possessed by physicians and
surgeons practicing in the same field, he will employ such training, care and
skill in the treatment of his patients. He therefore has a duty to use at least
the same level of care that any other reasonably competent doctor would use
to treat a condition under the same circumstances. It is in this aspect of
medical malpractice that expert testimony is essential to establish not only
the standard of care of the profession but also that the physician's conduct in
the treatment and care falls below such standard. Further, inasmuch as the
causes of the injuries involved in malpractice actions are determinable only
in the light of scientific knowledge, it has been recognized that expert
testimony is usually necessary to support the conclusion as to causation.
xxxx
In litigations involving medical negligence, the plaintiff has the burden of
establishing appellant's negligence and for a reasonable conclusion of
negligence, there must be proof of breach of duty on the part of the surgeon
as well as a causal connection of such breach and the resulting death of his
patient. In Chan Lugay v. St Luke's Hospital, Inc., where the attending
physician was absolved of liability for the death of the complainant’s wife
and newborn baby, this Court held that:
"In order that there may be a recovery for an injury, however, it must be
shown that the ‘injury for which recovery is sought must be the legitimate
consequence of the wrong done; the connection between the negligence and
the injury must be a direct and natural sequence of events, unbroken by
intervening efficient causes.’ In other words, the negligence must be the
proximate cause of the injury. For, ‘negligence, no matter in what it
consists, cannot create a right of action unless it is the proximate cause of
the injury complained of.’ And ‘the proximate cause of an injury is that
cause, which, in natural and continuous sequence, unbroken by any efficient
intervening cause, produces the injury, and without which the result would
not have occurred.’"
An action upon medical negligence – whether criminal, civil or
administrative – calls for the plaintiff to prove by competent evidence each
of the following four elements, namely: (a) the duty owed by the physician
to the patient, as created by the physician-patient relationship, to act in
accordance with the specific norms or standards established by his
profession; (b) the breach of the duty by the physician’s failing to act in
accordance with the applicable standard of care; (3) the causation, i.e., there
must be a reasonably close and causal connection between the negligent act
or omission and the resulting injury; and (4) the damages suffered by the
patient.36
In the medical profession, specific norms or standards to protect the patient
against unreasonable risk, commonly referred to as standards of care, set the
duty of the physician to act in respect of the patient. Unfortunately, no clear
definition of the duty of a particular physician in a particular case exists.
Because most medical malpractice cases are highly technical, witnesses
with special medical qualifications must provide guidance by giving the
knowledge necessary to render a fair and just verdict. As a result, the
standard of medical care of a prudent physician must be determined from
expert testimony in most cases; and in the case of a specialist (like an
anesthesiologist), the standard of care by which the specialist is judged is
the care and skill commonly possessed and exercised by similar specialists
under similar circumstances. The specialty standard of care may be higher
than that required of the general practitioner.37
The standard of care is an objective standard by which the conduct of a
physician sued for negligence or malpractice may be measured, and it does
not depend, therefore, on any individual physician’s own knowledge either.
In attempting to fix a standard by which a court may determine whether the
physician has properly performed the requisite duty toward the patient,
expert medical testimony from both plaintiff and defense experts is
required. The judge, as the trier of fact, ultimately determines the standard
of care, after listening to the testimony of all medical experts.38
Here, the Prosecution presented no witnesses with special medical
qualifications in anesthesia to provide guidance to the trial court on what
standard of care was applicable. It would consequently be truly difficult, if
not impossible, to determine whether the first three elements of a
negligence and malpractice action were attendant.
Although the Prosecution presented Dr. Benigno Sulit, Jr., an
anesthesiologist himself who served as the Chairman of the Committee on
Ethics and Malpractice of the Philippine Society of Anesthesiologists that
investigated the complaint against Dr. Solidum, his testimony mainly
focused on how his Committee had conducted the investigation.39 Even
then, the report of his Committee was favorable to Dr. Solidum,40 to wit:
Presented for review by this committee is the case of a 3 year old male who
underwent a pull-thru operation and was administered general anesthesia by
a team of anesthesia residents. The patient, at the time when the surgeons
was manipulating the recto-sigmoid and pulling it down in preparation for
the anastomosis, had bradycardia. The anesthesiologists, sensing that the
cause thereof was the triggering of the vago-vagal reflex, administered
atropine to block it but despite the administration of the drug in two doses,
cardiac arrest ensued. As the records show, prompt resuscitative measures
were administered and spontaneous cardiac function re-established in less
than five (5) minutes and that oxygen was continuously being administered
throughout, unfortunately, as later become manifest, patient suffered
permanent irreversible brain damage.
In view of the actuations of the anaesthesiologists and the administration of
anaesthesia, the committee find that the same were all in accordance with
the universally accepted standards of medical care and there is no evidence
of any fault or negligence on the part of the anaesthesiologists.
Dr. Antonio Vertido, a Senior Medico-Legal Officer of the National Bureau
of Investigation, was also presented as a Prosecution witness, but his
testimony concentrated on the results of the physical examination he had
conducted on Gerald, as borne out by the following portions of his direct
examination, to wit:
FISCAL CABARON Doctor, what do you mean by General Anesthetic
Agent?
WITNESS General Anesthetic Agent is a substance used in the conduction
of Anesthesia and in this case, halothane was used as a sole anesthetic
agent.
xxxx
Q Now under paragraph two of page 1 of your report you mentioned that
after one hour and 45 minutes after the operation, the patient experienced a
bradycardia or slowing of heart rate, now as a doctor, would you be able to
tell this Honorable Court as to what cause of the slowing of heart rate as to
Gerald Gercayo?
WITNESS Well honestly sir, I cannot give you the reason why there was a
bradycardia of time because is some reason one way or another that might
caused bradycardia.
FISCAL CABARON What could be the possible reason?
A Well bradycardia can be caused by anesthetic agent itself and that is a
possibility, we’re talking about possibility here.
Q What other possibility do you have in mind, doctor?
A Well, because it was an operation, anything can happen within that
situation.
FISCAL CABARON Now, this representation would like to ask you about
the slowing of heart rate, now what is the immediate cause of the slowing of
the heart rate of a person?
WITNESS Well, one of the more practical reason why there is slowing of
the heart rate is when you do a vagal reflex in the neck wherein the vagal
receptors are located at the lateral part of the neck, when you press that, you
produce the slowing of the heart rate that produce bradycardia.
Q I am pro[p]ounding to you another question doctor, what about the
deficiency in the supply of oxygen by the patient, would that also cause the
slowing of the heart rate?
A Well that is a possibility sir, I mean not as slowing of the heart rate, if
there is a hypoxia or there is a low oxygen level in the blood, the normal
thing for the heart is to pump or to do not a bradycardia but a … to counter
act the Hypoxia that is being experienced by the patient
(sic).
xxxx
Q Now, you made mention also doctor that the use of general anesthesia
using 100% halothane and other anesthetic medications probably were
contributory to the production of hypoxia.
A Yes, sir in general sir.41
On cross-examination, Dr. Vertido expounded more specifically on his
interpretation of the anesthesia record and the factors that could have caused
Gerald to experience bradycardia, viz:
ATTY. COMIA I noticed in, may I see your report Doctor, page 3, will you
kindly read to this Honorable court your last paragraph and if you will
affirm that as if it is correct?
A "The use of General Anesthesia, that is using 100% Halothane probably
will be contributory to the production of Hypoxia and - - - -"
ATTY COMIA And do you affirm the figure you mentioned in this Court
Doctor?
WITNESS Based on the records, I know the - - -
Q 100%?
A 100% based on the records.
Q I will show you doctor a clinical record. I am a lawyer I am not a doctor
but will you kindly look at this and tell me where is 100%, the word "one
hundred" or 1-0-0, will you kindly look at this Doctor, this Xerox copy if
you can show to this Honorable Court and even to this representation the
word "one hundred" or 1-0-0 and then call me.
xxxx
ATTY. COMIA Doctor tell this Honorable Court where is that 100, 1-0-0
and if there is, you just call me and even the attention of the Presiding Judge
of this Court. Okay, you read one by one.
WITNESS Well, are you only asking 100%, sir?
ATTY. COMIA I’m asking you, just answer my question, did you see there
100% and 100 figures, tell me, yes or no?
WITNESS I’m trying to look at the 100%, there is no 100% there sir.
ATTY. COMIA Okay, that was good, so you Honor please, may we request
also temporarily, because this is just a xerox copy presented by the fiscal,
that the percentage here that the Halothane administered by Dr. Solidum to
the patient is 1% only so may we request that this portion, temporarily your
Honor, we are marking this anesthesia record as our Exhibit 1 and then this
1% Halothane also be bracketed and the same be marked as our Exhibit "1-
A".
xxxx
ATTY. COMIA Doctor, my attention was called also when you said that
there are so many factors that contributed to Hypoxia is that correct?
WITNESS Yes, sir.
Q I remember doctor, according to you there are so many factors that
contributed to what you call hypoxia and according to you, when this
Gerald suffered hypoxia, there are other factors that might lead to this
Hypoxia at the time of this operation is that correct?
WITNESS The possibility is there, sir.
Q And according to you, it might also be the result of such other, some or it
might be due to operations being conducted by the doctor at the time when
the operation is being done might also contribute to that hypoxia is that
correct?
A That is a possibility also.
xxxx
ATTY. COMIA How will you classify now the operation conducted to this
Gerald, Doctor?
WITNESS Well, that is a major operation sir.
Q In other words, when you say major operation conducted to this Gerald,
there is a possibility that this Gerald might [be] exposed to some risk is that
correct?
A That is a possibility sir.
Q And which according to you that Gerald suffered hypoxia is that correct?
A Yes, sir.
Q And that is one of the risk of that major operation is that correct?
A That is the risk sir.42
At the continuation of his cross-examination, Dr. Vertido maintained that
Gerald’s operation for his imperforate anus, considered a major operation,
had exposed him to the risk of suffering the same condition.43 He then
corrected his earlier finding that 100% halothane had been administered on
Gerald by saying that it should be 100% oxygen.44
Dr. Solidum was criminally charged for "failing to monitor and regulate
properly the levels of anesthesia administered to said Gerald Albert Gercayo
and using 100% halothane and other anesthetic medications."45However, the
foregoing circumstances, taken together, did not prove beyond reasonable
doubt that Dr. Solidum had been recklessly imprudent in administering the
anesthetic agent to Gerald. Indeed, Dr. Vertido’s findings did not preclude
the probability that other factors related to Gerald’s major operation, which
could or could not necessarily be attributed to the administration of the
anesthesia, had caused the hypoxia and had then led Gerald to experience
bradycardia. Dr. Vertido revealingly concluded in his report, instead, that
"although the anesthesiologist followed the normal routine and
precautionary procedures, still hypoxia and its corresponding side effects
did occur."46
The existence of the probability about other factors causing the hypoxia has
engendered in the mind of the Court a reasonable doubt as to Dr. Solidum’s
guilt, and moves us to acquit him of the crime of reckless imprudence
resulting to serious physical injuries. "A reasonable doubt of guilt,"
according to United States v. Youthsey:47
x x x is a doubt growing reasonably out of evidence or the lack of it. It is
not a captious doubt; not a doubt engendered merely by sympathy for the
unfortunate position of the defendant, or a dislike to accept the
responsibility of convicting a fellow man. If, having weighed the evidence
on both sides, you reach the conclusion that the defendant is guilty, to that
degree of certainty as would lead you to act on the faith of it in the most
important and crucial affairs of your life, you may properly convict him.
Proof beyond reasonable doubt is not proof to a mathematical
demonstration. It is not proof beyond the possibility of mistake.
We have to clarify that the acquittal of Dr. Solidum would not immediately
exempt him from civil liability.1âwphi1 But we cannot now find and
declare him civilly liable because the circumstances that have been
established here do not present the factual and legal bases for validly doing
so. His acquittal did not derive only from reasonable doubt. There was
really no firm and competent showing how the injury to Gerard had been
caused. That meant that the manner of administration of the anesthesia by
Dr. Solidum was not necessarily the cause of the hypoxia that caused the
bradycardia experienced by Gerard. Consequently, to adjudge Dr. Solidum
civilly liable would be to speculate on the cause of the hypoxia. We are not
allowed to do so, for civil liability must not rest on speculation but on
competent evidence.
Liability of Ospital ng Maynila
Although the result now reached has resolved the issue of civil liability, we
have to address the unusual decree of the RTC, as affirmed by the CA, of
expressly holding Ospital ng Maynila civilly liable jointly and severally
with Dr. Solidum. The decree was flawed in logic and in law.
In criminal prosecutions, the civil action for the recovery of civil liability
that is deemed instituted with the criminal action refers only to that arising
from the offense charged.48 It is puzzling, therefore, how the RTC and the
CA could have adjudged Ospital ng Maynila jointly and severally liable
with Dr. Solidum for the damages despite the obvious fact that Ospital ng
Maynila, being an artificial entity, had not been charged along with Dr.
Solidum. The lower courts thereby acted capriciously and whimsically,
which rendered their judgment against Ospital ng Maynila void as the
product of grave abuse of discretion amounting to lack of jurisdiction.
Not surprisingly, the flawed decree raises other material concerns that the
RTC and the CA overlooked. We deem it important, then, to express the
following observations for the instruction of the Bench and Bar.
For one, Ospital ng Maynila was not at all a party in the proceedings.
Hence, its fundamental right to be heard was not respected from the outset.
The R TC and the CA should have been alert to this fundamental defect.
Verily, no person can be prejudiced by a ruling rendered in an action or
proceeding in which he was not made a party. Such a rule would enforce the
constitutional guarantee of due process of law.
Moreover, Ospital ng Maynila could be held civilly liable only when
subsidiary liability would be properly enforceable pursuant to Article 103 of
the Revised Penal Code. But the subsidiary liability seems far-fetched here.
The conditions for subsidiary liability to attach to Ospital ng Maynila
should first be complied with. Firstly, pursuant to Article 103 of the Revised
Penal Code, Ospital ng Maynila must be shown to be a corporation
"engaged in any kind of industry." The term industry means any department
or branch of art, occupation or business, especially one that employs labor
and capital, and is engaged in industry.49 However, Ospital ng Maynila,
being a public hospital, was not engaged in industry conducted for profit but
purely in charitable and humanitarian work.50 Secondly, assuming that
Ospital ng Maynila was engaged in industry for profit, Dr. Solidum must be
shown to be an employee of Ospital ng Maynila acting in the discharge of
his duties during the operation on Gerald. Yet, he definitely was not such
employee but a consultant of the hospital. And, thirdly, assuming that civil
liability was adjudged against Dr. Solidum as an employee (which did not
happen here), the execution against him was unsatisfied due to his being
insolvent.
WHEREFORE, the Court GRANTS the petition for review on certiorari; with estafa under Article 315, paragraph 2 (a) of the Revised Penal Code in
REVERSES AND SETS ASIDE the decision promulgated on January 20, an Information2 which reads:
2010; ACQUITS Dr. Fernando P. Solidum of the crime of reckless That during the period from March 2001 up to May 2002, in the City of Las
imprudence resulting to serious physical injuries; and MAKES no Piñas, Philippines, and within the jurisdiction of this Honorable Court, the
pronouncement on costs of suit. above-named accused, conspiring and confederating together and both of
SO ORDERED. them mutually helping and aiding one another, with intent to gain and by
means of false pretenses or fraudulent acts executed prior to or
simultaneously with the commission of the fraud, did then and there
willfully, unlawfully and feloniously defraud the complainant CRISTINA B.
CASTILLO, in the amount of US$100,000.00 in the following manner, to
wit: Respondents convinced the complainant to invest into the remittance
business in the name of accused PHILLIP R. SALVADOR in Hongkong,
representing to her that they will personally take charge of the operations
and marketing of the said business, assuring her with huge profits because
of the popularity of accused PHILLIP R. SALVADOR, knowing very well
that the said manifestations/representations and fraudulent manifestations
were false and were intended only to exact money from the Complainant,
and by reason of the said false representations made by both accused, the
Complainant gave and entrusted to the accused the amount of
Republic of the Philippines
 US$100,000.00 as seed money to start the operations of the business and
SUPREME COURT
 the said accused, once in the possession of the said amount of money,
Manila misappropriated, misapplied and/or converted the same to their own
personal use and benefit, to the damage and prejudice of the Complainant in
THIRD DIVISION
the aforementioned amount of US$100,000.00.
G.R. No. 191240 July 30, 2014
CONTRARY TO LAW.3
CRISTINA B. CASTILLO, Petitioner, 

Upon their arraignment, respondentand his brother Ramon pleaded not
vs.

PHILLIP R. SALVADOR, Respondent. guilty4 to the offense charged.
Trial on the merits thereafter ensued.
DECISION
Petitioner Cristina B. Castillo testified that she is engaged in real estate
PERALTA, J.:
business, educational institution, boutique, and trading business.5 She met
Before us is a petition for review on certiorari which assails the respondent through a common friend in December 2000 and became close
Decision1 dated February 11, 2010 of the Court of Appeals (CA) in CA- since then. Respondent had told her that his friends, Jinggoy Estrada and
G.R. CR No. 30151 with respect only to the civil aspect of the case as Rudy Fernandez, were engaged in the freight and remittance business and
respondent Phillip R. Salvador had been acquitted of the crime of estafa. that Jinggoy even brought him toHong Kong and Singapore to promote the
Respondent Phillip Salvador and his brother Ramon Salvador were charged former's business.6 Petitioner eventually met respondent’s brother and
manager, Ramon Salvador, to whom she volunteered to financially help
respondent in his bid for the Vice-Mayoralty race in Mandaluyong.7 It was
also in the same meeting that they talked about the matter of engaging in a
freight and remittance business.8 Respondent enticed petitioner to go to
Hong Kong to see for herself the viability of such business and Ramon
suggested to use respondent’s name to attract the overseas contract workers.
9
In March 2001, petitioner and her husband, together with respondent and a
certain Virgilio Calubaquib wentto Hong Kong and they witnessed
respondent’s popularity among the Filipino domestic helpers.10 In April
2001, the same group, with Ramon this time, went to Bangkok where
respondent’s popularity was again shown among the overseas Filipinos.11 In
both instances, respondent promoted their prospective business. In both
trips, petitioner paid for all the travelexpenses and even gave respondent
US$10,000.00 as pocket money for the Hong Kong trip and another
US$10,000.00 for the Bangkok trip.12 Her accountant introduced her to a
certain Roy Singun who is into the freight and money remittance business.
13 In August 2001, respondent initiated a trip to Palau, to observe Singun’s
business thereat to which petitioner acceded.14 Petitioner paid for the travel
expenses and even gaverespondent US$20,000.00.15 In October 2001, she
and respondent had a training at Western Union at First World Center in
Makati City.16
As petitioner had deeply fallen in love with respondent and since she trusted
him very much as heeven acted as a father to her children when her
annulment was ongoing, she agreed to embark on the remittance business.
In December 2001, she, accompanied by her mother, Zenaida G. Bondoc
(Zenaida), and Ramon, went to Hong Kong and had the Phillip Salvador
Freight and Remittance International Limited registered on December 27,
2001.17 A Memorandum of Articles of Incorporation and a Certificate of
Incorporation were issued.18 They also rented an office space in
Tsimshatsui, Kowloon, Hong Kong which they registered as their office
address as a requirement for opening a business in Hong Kong, thus, a
Notification of Situation of Registered Office was also issued.19 She agreed
with respondent and Ramon that any profit derived from the business would
be equally divided among them and thatrespondent would be in charge of
promotion and marketing in Hong Kong,while Ramon would take charge of
the operations of business in the Philippines and she would be financing the
business.20
The business has not operated yet as petitioner was still raising the amount
of US$100,000.00 as capital for the actual operation.21 When petitioner
already had the money, she handed the same to respondent in May 2002 at
her mother’s house in Las Piñas City, which was witnessed by her disabled
half-brother Enrico B. Tan (Enrico).22 She also gave respondent
₱100,000.00 in cash to begiven to Charlie Chau, who is a resident of Hong
Kong, as payment for the heart-shaped earrings she bought from him while
she was there. Respondent and Ramon went to Hong Kong in May 2002.
However, the proposed business never operated as respondent only stayed
in Hong Kongfor three days. When she asked respondent about the money
and the business, the latter told her that the money was deposited in a bank.
23 However, upon further query, respondent confessed that he used the
money to pay for his other obligations.24 Since then, the US$100,000.00
was not returned at all.
On cross-examination, petitioner testified that she fell deeply in love with
respondent and was convinced thathe truly loved her and intended to marry
her once there would beno more legal impediment;25 that she helped in
financing respondent’s campaign in the May 2001 elections.26 As she loved
respondent so much, she gave him monthly allowances amounting to
hundreds of thousands of pesos because he had no work back then.27 She
filed the annulment case against her husband on November 21, 2001 and
respondent promised her marriage.28 She claimed that respondent and
Ramon lured her with sweet words in going into the freight and remittance
business, which never operated despite the money she had given
respondent.29 She raised the US$100,000.00 by means of selling and
pawning her pieces of diamond jewelry.30
Petitioner admitted being blinded by her love for respondent which made
her follow all the advice given by him and his brother Ramon, i.e., to save
money for her and respondent’s future because after the annulment, they
would get married and to give the capital for the remittance business in cash
so as not to jeopardize her annulment case.31She did not ask for a receipt for
the US$100,000.00 she gave to respondent as it was for the operational
expenses of a business which will be for their future, as all they needed to
do was to get married.32 She further testified that after the US$100,000.00
was not returned, she still deposited the amount of ₱500,000.00 in equipment, personnel and money to operate the same.53 Upon his return to
respondent’s UCPB bank account33 and also to Ramon’s bank accounts. the Philippines, petitioner never asked him about the business as she never
34 And while respondent was in the United States in August 2003, she still gave him such amount.54 In October 2002, he intimated that he and
gave him US$2,000.00as evidenced by a Prudential Telegraphic Transfer petitioner even went to Hong Kong again to buy some goods for the latter’s
Application35 dated August 27, 2003. boutique.55 He admitted that he loved petitioner and her children very much
as there was a time when petitioner’s finances were short, he gave her
Petitioner’s mother, Zenaida, corroborated her daughter’s testimony that she
₱600,000.00 for the enrollment of her children in very expensive schools.
was with her and Ramon when they went to Hong Kong in December 2001
56 It is also not true that he and Ramon initiated the Hong Kong and
to register the freight and remittance business.36 She heard Charlie Chau,
Bangkok trips.57
her daughter's friend, that a part of his office building will be used for the
said remittance business.37 Enrico Tan, also corroborated her sister's claim Ramon testified that it was his brother respondent who introduced petitioner
that she handed the money to respondent in his presence.38 to him.58 He learned of petitioner’s plan of a remittance business in July
2001 and even told her that they should study it first.59 He was introduced to
Respondent testified that he and petitioner became close friends and
Roy Singun who operates a remittancebusiness in Pasay and who suggested
eventually fell in love and had an affair.39 They traveled to Hong Kong and
that their group observehis remittance business in Palau. After their Palau
Bangkok where petitioner saw how popular he was among the Filipino
trip, petitioner decided to put up a similar business in Hong Kong and it was
domestic helpers,40 which led her to suggest a remittance business.
him who suggested to use respondent’s name because of name recall.60 It
Although hesitant, he has friends with such business.41He denied that
was decided thathe would manage the operation in Manila and respondent
petitioner gave him US$10,000.00 whenhe went to Hong Kong and
would be in charge of promotion and marketing in Hong Kong, while
Bangkok.42 In July 2001, after he came back from the United States,
petitioner would be in charge of all the business finances.61 He admitted that
petitioner had asked him and his brother Ramon for a meeting.43 During the
he wentto Hong Kong with petitioner and her mother to register said
meeting, petitioner brought up the money remittance business, but Ramon
business and also to buy goods for petitioner’s boutique.62 He said that it
told her that they should make a study of it first.44 He was introduced to
was also impossible for Chau to offer a part of his office building for the
Roy Singun, owner of a money remittance business in Pasay City.45 Upon
remittance business because there was no more space to accommodate it.
the advise of Roy, respondent and petitioner, her husband and Ramon went
63 He and respondent went to Hong Kong in May 2002 to examine the
to Palau in August 2001.46 He denied receiving US$20,000.00 from
office recommended by Chau and the warehouse of Rudy Fernandez
petitioner but admitted that it was petitioner who paid for the plane tickets.
47 After their Palau trip, they went into training at Western Union at the First thereatwho also offered to help.64 He then told Chau that the remittance
office should be in Central Park, Kowloon, because majority of the
World Center in Makati City.48 It was only in December 2001 that Ramon,
Filipinos in Hong Kong live there.65 He concluded that it was impossible for
petitioner and her mother went to Hong Kong to register the business, while
the business to operate immediately because they had no office, no
he took care of petitioner’s children here.49 In May 2002, he and Ramon
personnel and no license permit.66 He further claimed that petitioner never
went back to Hong Kong but deniedhaving received the amount of
mentioned to him about the US$100,000.00 she gave to respondent,67 and
US$100,000.00 from petitioner but then admitted receipt of the amount of
that he even traveled again with petitioner to Bangkok in October 2002, and
₱100,000.00 which petitioner asked him to give to Charlie Chau as payment
in August 2003.68 He denied Enrico’s allegation that he saw him at his
for the pieces of diamond jewelry she got from him,50 which Chau had duly
mother’s house as he only saw Enrico for the first time in court.69
acknowledged.51 He denied Enrico’s testimony that petitioner gave him the
amount of US$100,000.00 in his mother’s house.52 He claimed that no On April 21, 2006, the RTC rendered a Decision,70 the dispositive portion of
remittance business was started in Hong Kong as they had no license, which reads: WHEREFORE, accused PHILLIP SALVADOR is found
GUILTY beyond reasonable doubt of the crime ofEstafa under Article 315,
par. 2 (a) of the Revised Penal Code and is hereby sentenced to suffer the
indeterminate sentence of four (4) years, two (2) months and one (1) day of
prisyon (sic) correctional (sic)maximum as minimum to twenty (20) years
of reclusion temporal maximumas maximum and to indemnify the private
complainant in the amount of ONE HUNDRED THOUSAND DOLLARS
(US$100,000.00) or its equivalent in Philippine currency. With respect to
accused RAMON SALVADOR, he is ACQUITTED for insufficiency of
evidence. SO ORDERED.71
Respondent appealed his conviction to the CA. The parties filed their
respective pleadings, after which, the case was submitted for decision.
On February 11, 2010, the CA rendered its Decision reversing the decision
of the RTC, the decretal portion of which reads:
WHEREFORE, premises considered, the appealed decision of Branch 202
of the RTC of Las Piñas City, dated April 21, 2006, is hereby REVERSED
AND SET ASIDE and accused appellant PHILLIP R. SALVADOR is
ACQUITTED of the crime of Estafa.72
Petitioner files the instant petition onthe civil aspect of the case alleging
that:
THE TRIAL COURT WAS CORRECT IN CONVICTING THE
RESPONDENT SO THAT EVEN IF THE COURT OF APPEALS
DECIDED TO ACQUIT HIM IT SHOULD HAVE AT LEAST RETAINED
THE AWARD OF DAMAGES TO THE PETITIONER.73
We find no merit in the petition.
To begin with, in Manantan v. CA,74 we discussed the consequences of an
acquittal on the civil liability of the accused as follows:
Our law recognizes two kinds of acquittal, with different effects on the civil
liability of the accused. First is an acquittal on the ground that the accused is
not the author of the actor omission complained of. This instance closes the
door to civil liability, for a person who has been found to be not the
perpetrator of any act or omission cannot and can never be held liable for
such act oromission. There being no delict, civil liability ex delictois out of
the question, and the civil action, if any, which may be instituted must be
based on grounds other than the delict complained of. This is the situation
contemplated in Rule III of the Rules of Court. The second instance is an
acquittal based on reasonable doubt on the guilt of the accused. In this case,
even if the guilt of the accused has not been satisfactorily established, he is
not exempt from civil liability which may be proved by preponderance of
evidence only. This is the situation contemplated in Article 29 of the Civil
Code, where the civil action for damages is "for the same act or omission."
x x x.75
A reading of the CA decision would show that respondent was acquitted
because the prosecution failed to prove his guilt beyond reasonable doubt.
Said the CA:
The evidence for the prosecution being insufficient to prove beyond
reasonable doubt that the crime as charged had been committed by
appellant, the general presumption, "that a person is innocent of the crime
or wrong, stands in his favor. The prosecution failed to prove that all the
elements of estafa are present in this case as would overcome the
presumption of innocence in favor of appellant. For in fact, the
prosecution's primary witness herself could not even establish clearly and
precisely how appellant committed the alleged fraud. She failed to convince
us that she was deceived through misrepresentations and/or insidious
actions, in venturing into a remittance business. Quite the contrary, the
obtaining circumstance inthis case indicate the weakness of her
submissions.76
Thus, since the acquittal is based on reasonable doubt, respondent is not
exempt from civil liability which may be proved by preponderance of
evidence only. In Encinas v. National Bookstore, Inc.,77 we explained the
concept of preponderance of evidence as follows:
x x x Preponderance of evidence is the weight, credit, and value of the
aggregate evidence on either side and is usually considered to be
synonymous with the term "greater weight of the evidence" or "greater
weight of the credible evidence." Preponderance of evidence is a phrase
which, in the last analysis, means probability of the truth. It is evidence
which is more convincing to the court as worthy of belief than that which is
offered in opposition thereto.78
The issue of whether petitioner gave respondent the amount of
US$100,000.00 is factual. While we are not a trier of facts, there are
instances, however, when we are called upon to re-examine the factual
findings of the trial court and the Court of Appeals and weigh, after
considering the records of the case, which of the conflicting findings is
more in accord with law and justice.79 Such is the case before us.
In discrediting petitioner’s allegation that she gave respondent
US$100,000.00 in May 2002, the CA found that: (1) petitioner failed to
show how she was able to raise the money in such a short period of time
and even gave conflicting versions on the source of the same; (2) petitioner
failed to require respondent to sign a receipt so she could have a record of
the transaction and offered no plausible reason why the money was
allegedly hand-carried toHong Kong; (3) petitioner’s claim of trust as
reason for not requiring respondent to sign a receipt was inconsistent with
the way she conducted her previous transactions with him; and (4)
petitioner’s behavior after the alleged fraud perpetrated against her was
inconsistent with the actuation ofsomeone who had been swindled.
We find no reversible error committed by the CA in its findings.
Petitioner failed to prove on how she raised the money allegedly given to
respondent. She testified that from December 2001 to May 2002, she was
raising the amount of US$100,000.00 as the capital for the actual operation
of the Phillip Salvador Freight and Remittance International Limited in
Hong Kong,80 and that she was ableto raise the same in May 2002.81 She
did so by selling82 or pawning83 her pieces of diamond jewelry. However,
there was no documentary evidence showing those transactions within the
period mentioned. Upon further questioning on cross-examination on where
she got the money, she then said that she had plenty of dollars as she is a
frequent traveler to Hong Kong and Bangkok to shop for her boutique in
Glorietta and Star Mall.84 Such testimony contradicts her claim that she was
still raising the money for 5 months and that she was only able to formally
raise the money in May 2002.
There was also no receipt that indeed US$100,000.00 was given by
petitioner to respondent.1âwphi1 Petitioner in her testimony, both in the
direct and cross examinations, said that the US$100,000.00 given to
respondent was for the actual expenses for setting up the office and the
operation of the business in Hong Kong.85 She claimed that she treated the
freight and remittance business like any of her businesses;86 that she,
respondent, and the latter’s brother even agreed to divide whatever profits
they would have from the business;87 and that giving US$100,000.00 to
respondent was purely business to her.88 She also said that she kept records
of all her business, such that, if there are no records, there are no funds
entrusted89 . Since petitioner admitted that giving the money to respondent
was for business, there must be some records ofsuch transaction as what she
did in her other businesses.
In fact, it was not unusual for petitioner to ask respondent for some
documents evidencing the latter's receipt of money for the purpose of
business as this was done in her previous business dealings with respondent.
She had asked respondent to execute a real estate mortgage on his
condominium unit90 for the ₱5 million she loaned him in August 2001.
Also, when petitioner gave respondent an additional loan of ₱10 million in
December 2001, for the latter to redeem the title to his condominium unit
from the bank, she had asked him to sign an acknowledgment receipt for the
total amount of ₱15 million he got from her.91 She had done all these
despite her testimony that she trusted respondent from the day they met in
December 2000 until the day he ran away from her in August 2003.92
Petitioner insists that she did not ask for any acknowledgment receipt from
respondent, because the latter told her not to have traces that she was giving
money to him as it might jeopardize her then ongoing annulment
proceedings. However, petitioner's testimony would belie such claim of
respondent being cautious of the annulment proceedings. She declared that
when she and her husband separated, respondent stood as a father to her
children.93 Respondent attended school programs of her children,94 and
fetched them from school whenever the driver was not around.95 In fact, at
the time the annulment case was already pending, petitioner registered the
freight and remittance business under respondent’s name and the local
branch office of the business would be in petitioner's condominium unit in
Makati.96 Also, when petitioner went with her mother and Ramon to Hong
Kong to register the business, it was respondent who tookcare of her
children. She intimated that it was respondent who was insistent in going to
their house.
Worthy to mention is that petitioner deposited the amount of ₱500,000.00 to
respondent's account with United Coconut Planters Bank (UCPB) in July
2003.97 Also, when respondent was in New York in August 2003, petitioner
sent him the amount of US$2,000.00 by telegraphic transfer.98 Petitioner's
act ofdepositing money to respondent's account contradicted her claim that
there should be no traces that she was giving money to respondent during
the pendency of the annulment case.
Petitioner conceded that she could have either bought a manager's check in
US dollars from the bank orsend the money by bank transfer, but she did not
do so on the claim that there might be traces of the transaction.99 However,
the alleged US$100,000.00was supposed to be given to respondent because
of the freight and remittance business; thus, there is nothing wrong to have
a record of the same, specially since respondent had to account for the valid TOPIC: Rule 111 – B. Suspension of Civil Action
expense she incurred with the money.100
Republic of the Philippines

The testimony of Enrico, petitioner's brother, declaring that he was present SUPREME COURT

when petitioner gave respondent the US$100,000.00 did not help. Enrico Manila
testified that when petitioner filed the instant case in September 2004,
another case was also filed by petitioner against respondent and his brother FIRST DIVISION
Ramon in the same City Prosecutor's office in Las Piñas where Enrico had G.R. No. 175256 August 23, 2012
submitted his affidavit. Enrico did not submit an affidavit in this case even
LILY LIM, Petitioner, 

when he allegedly witnessed the giving of the money to respondent as
vs.

petitioner told him that he could just testify for the other case. However,
KOU CO PING a.k.a. CHARLIE CO, Respondent.
when the other case was dismissed, it was then that petitioner told him to be
a witness in this case. Enrico should have been considered at the first x-----------------------x
opportunity if he indeed had personal knowledge of the alleged giving of G.R. No. 179160
money to respondent. Thus, presenting Enrico as a witness only after the
other case was dismissed would create doubt as to the veracity of his KOU CO PING a.k.a. CHARLIE CO, Petitioner, 

testimony. vs.

LILY LIM, Respondent.
WHEREFORE, the petition for review is DENIED. The Decision dated
February 11, 2010, of the Court of Appeals in CA-G.R. CR No. 30151, is LEONARDO-DE CASTRO,*
hereby AFFIRMED. PERLAS-BERNABE,**
SO ORDERED. DECISION
DEL CASTILLO, J.:
Is it forum shopping for a private complainant to pursue a civil complaint
for specific performance and damages, while appealing the judgment on the
civil aspect of a criminal case for estafa?
Before the Court are consolidated Petitions for Review assailing the
separate Decisions of the Second and Seventeenth Divisions of the Court of
Appeals (CA) on the above issue.
Lily Lim’s (Lim) Petition for Review1 assails the October 20, 2005
Resolution2 of the Second Division in CA-G.R. CV No. 85138, which ruled
on the above issue in the affirmative:
Due to the filing of the said civil complaint (Civil Case No. 5112396),
Charlie Co filed the instant motion to dismiss [Lily Lim’s] appeal, alleging
that in filing said civil case, Lily Lim violated the rule against forum
shopping as the elements of litis pendentia are present.
This Court agrees.3
xxxx
IN VIEW OF THE FOREGOING, the appeal is DISMISSED.
SO ORDERED.4
On the other hand, Charlie Co’s (Co) Petition for Review5 assails the April
10, 2007 Decision6 of the Seventeenth Division in CA-G.R. SP No. 93395
for ruling on the same issue in the negative:
We find no grave abuse of discretion committed by respondent judge. The
elements of litis pendentiaand forum-shopping were not met in this case.7
xxxx
WHEREFORE, in view of the foregoing, the instant petition is DENIED.
This case is REMANDED to the court of origin for further proceedings.
SO ORDERED.8
Factual Antecedents
In February 1999, FR Cement Corporation (FRCC), owner/operator of a
cement manufacturing plant, issued several withdrawal authorities9 for the
account of cement dealers and traders, Fil-Cement Center and Tigerbilt.
These withdrawal authorities state the number of bags that the dealer/trader
paid for and can withdraw from the plant. Each withdrawal authority
contained a provision that it is valid for six months from its date of
issuance, unless revoked by FRCC Marketing Department.
Fil-Cement Center and Tigerbilt, through their administrative manager, Gail
Borja (Borja), sold the withdrawal authorities covering 50,000 bags of
cement to Co for the amount of ₱ 3.15 million or ₱ 63.00 per bag.10 On
February 15, 1999, Co sold these withdrawal authorities to Lim allegedly at
the price of ₱ 64.00 per bag or a total of ₱ 3.2 million.11
Using the withdrawal authorities, Lim withdrew the cement bags from
FRCC on a staggered basis. She successfully withdrew 2,800 bags of
cement, and sold back some of the withdrawal authorities, covering 10,000
bags, to Co.
Sometime in April 1999, FRCC did not allow Lim to withdraw the
remaining 37,200 bags covered by the withdrawal authorities. Lim clarified
the matter with Co and Borja, who explained that the plant implemented a
price increase and would only release the goods once Lim pays for the price
difference or agrees to receive a lesser quantity of cement. Lim objected and
maintained that the withdrawal authorities she bought were not subject to
price fluctuations. Lim sought legal recourse after her demands for Co to
resolve the problem with the plant or for the return of her money had failed.
The criminal case
An Information for Estafa through Misappropriation or Conversion was
filed against Co before Branch 154 of the Regional Trial Court (RTC) of
Pasig City. The accusatory portion thereof reads:
On or about between the months of February and April 1999, in San Juan,
Metro Manila and within the jurisdiction of this Honorable Court, the
accused, with intent to defraud Lily Lim, with grave abuse of confidence,
with unfaithfulness, received in trust from Lily Lim cash money in the
amount of ₱ 2,380,800.00 as payment for the 37,200 bags of cement, under
obligation to deliver the 37,200 bags of cement to said Lily Lim, but far
from complying with his obligation, misappropriated, misapplied and
converted to his own personal use and benefit the said amount of ₱
2,300,800.00 [sic] and despite demands, the accused failed and refused to
return said amount, to the damage and prejudice of Lily Lim in the amount
of ₱ 2,380,800.00.
Contrary to Law.12
The private complainant, Lily Lim, participated in the criminal proceedings
to prove her damages. She prayed for Co to return her money amounting to
₱ 2,380,800.00, foregone profits, and legal interest, and for an award of
moral and exemplary damages, as well as attorney’s fees.13
On November 19, 2003, the RTC of Pasig City, Branch 154, rendered its
Order14 acquitting Co of the estafa charge for insufficiency of evidence. The
criminal court’s Order reads:
The first and second elements of the crime of estafa [with abuse of
confidence under Article 315, paragraph 1(b)] for which the accused is
being charged and prosecuted were not established by the prosecution’s
evidence.
xxxx
In view of the absence of the essential requisites of the crime of estafa for
which the accused is being charged and prosecuted, as above discussed, the
Court has no alternative but to dismiss the case against the accused for
insufficiency of evidence.15
WHEREFORE, in view of the foregoing, the Demurrer to
Evidence is GRANTED, and the accused is hereby ACQUITTED of the
crime of estafa charged against him under the present information for
insufficiency of evidence.
Insofar as the civil liability of the accused is concerned, however, set this
case for the reception of his evidence on the matter on December 11, 2003
at 8:30 o’clock [sic] in the morning.
SO ORDERED.16
After the trial on the civil aspect of the criminal case, the Pasig City RTC
also relieved Co of civil liability to Lim in its December 1, 2004 Order.
17 The dispositive portion of the Order reads as follows:
WHEREFORE, premises considered, judgment is hereby rendered holding
the accused CHARLIE COnot civilly liable to the private complainant Lily
Lim.
SO ORDERED.18
Lim sought a reconsideration of the above Order, arguing that she has
presented preponderant evidence that Co committed estafa against her.19
The trial court denied the motion in its Order20 dated February 21, 2005.
On March 14, 2005, Lim filed her notice of appeal21 on the civil aspect of
the criminal case. Her appeal was docketed as CA-G.R. CV No. 85138 and
raffled to the Second Division of the CA.
The civil action for specific performance
On April 19, 2005, Lim filed a complaint for specific performance and
damages before Branch 21 of the RTC of Manila. The defendants in the
civil case were Co and all other parties to the withdrawal authorities,
Tigerbilt, Fil-Cement Center, FRCC, Southeast Asia Cement, and La Farge
Corporation. The complaint, docketed as Civil Case No. 05-112396,
asserted two causes of action: breach of contract and abuse of rights. Her
allegations read:
ALLEGATIONS COMMON

TO ALL CAUSES OF ACTION
xxxx
23. Charlie Co obligated himself to deliver to Lily Lim 50,000 bags of
cement of ₱ 64.00 per bag on an x-plant basis within 3 months from the
date of their transaction, i.e. February 15, 1999. Pursuant to said agreement,
Lily Lim paid Charlie Co ₱ 3.2 Million while Charlie Co delivered to Lily
Lim FR Cement Withdrawal Authorities representing 50,000 bags of
cement.
24. The withdrawal authorities issued by FR Cement Corp. allowed the
assignee or holder thereof to withdraw within a six-month period from date
a certain amount of cement indicated therein. The Withdrawal Authorities
given to Lily Lim were dated either 3 February 1999 or 23 February 1999.
The Withdrawal Authorities were first issued to Tigerbilt and Fil-Cement
Center which in turn assigned them to Charlie Co. Charlie Co then assigned
the Withdrawal Authorities to Lily Lim on February 15, 1999. Through
these series of assignments, Lily Lim acquired all the rights (rights to
withdraw cement) granted in said Withdrawal Authorities.
25. That these Withdrawal Authorities are valid is established by the fact
that FR Cement earlier allowed Lily Lim to withdraw 2,800 bags of cement
on the basis thereof.
26. However, sometime 19 April 1999 (within the three (3)-month period
agreed upon by Charlie Co and Lily Lim and certainly within the six (6)-
month period indicated in the Withdrawal Authorities issued by FR Cement
Corp.), Lily Lim attempted but failed to withdraw the remaining bags of
cement on account of FR Cement’s unjustified refusal to honor the
Withdrawal Authorities. x x x
xxxx
FIRST CAUSE OF ACTION:
 deemed to have come into possession of money at the expense of Lily Lim
BREACH OF CONTRACT
30. Charlie Co committed and is therefore liable to deliver to Lily Lim
37,200 bags of cement. If he cannot, then he must pay her the current fair
market value thereof.
31. FR Cement Corporation is also liable to deliver to Lily Lim the amount
of cement as indicated in the Withdrawal Authorities it issued. xxx FR
Cement Corporation has no right to impose price adjustments as a
qualification for honoring the Withdrawal Authorities.
32. Fil-Cement Center, Tigerbilt and Gail Borja as the original holders/
assignees of the Withdrawal Authorities repeatedly assured Lily Lim that
the same were valid and would be honored. They are liable to make good on
their assurances.
SECOND CAUSE OF ACTION:
 damages, Co filed motions to dismiss the said civil case24 and Lim’s appeal
ABUSE OF RIGHTS AND UNJUST ENRICHMENT
33. Charlie Co’s acts of falsely representing to Lily Lim that she may be
able to withdraw the cement from FR Cement Corp. caused Lily Lim to
incur expenses and losses. Such act was made without justice, without
giving Lily Lim what is due her and without observing honesty and good
faith, all violative of the law, more specifically Articles 19 and 20 of the
Civil Code. Such willful act was also made by Charlie Co in a manner
contrary to morals, good customs or public policy, in violation of Article 21
of the Civil Code.
34. FR Cement Corporation’s unjust refusal to honor the Withdrawal
Authorities they issued also caused damage to Lily Lim. Further, FR
Cement Corporation’s act of withholding the 37,200 bags of cement despite
earning income therefor constitutes as an unjust enrichment because FR
Cement Corporation acquired income through an act or performance by
another or any other means at the expense of another without just or legal
ground in violation of Article 22 of the Civil Code.
35. Fil-Cement Center, Tigerbilt and Gail Borja’s false assurances that Lily
Lim would be able to withdraw the remaining 37,200 bags of cement
caused Lily Lim to incur expenses and losses. x x x Moreover, Fil-Cement
Center admitted receiving payment for said amount of cement, thus they are
without just or legal ground, in violation of Article 22 of the Civil Code.
THIRD CAUSE OF ACTION:

MORAL AND EXEMPLARY DAMAGES and

ATTORNEY’S FEES AND COSTS OF SUIT22
Lim prayed for Co to honor his contractual commitments either by
delivering the 37,200 bags of cement, making arrangements with FRCC to
allow Lim to withdraw the cement, or to pay for their value. She likewise
asked that the defendants be held solidarily liable to her for the damages she
incurred in her failed attempts to withdraw the cement and for the damages
they inflicted on her as a result of their abuse of their rights.23
Motions to dismiss both actions
In reaction to the filing of the civil complaint for specific performance and
in the civil aspect of the estafa case or CA-G.R. CV No. 85138.25 He
maintained that the two actions raise the same issue, which is Co’s liability
to Lim for her inability to withdraw the bags of cement,26 and should be
dismissed on the ground of lis pendens and forum shopping.
Ruling of the Court of Appeals Second Division in CA-G.R CV No. 85138
The appellate court (Second Division) favorably resolved Co’s motion and
dismissed Lim’s appeal from the civil aspect of the estafa case. In its
Resolution dated October 20, 2005, the CA Second Division held that the
parties, causes of action, and reliefs prayed for in Lim’s appeal and in her
civil complaint are identical. Both actions seek the same relief, which is the
payment of the value of the 37,200 bags of cement.27 Thus, the CA Second
Division dismissed Lim’s appeal for forum shopping.28 The CA
denied29 Lim’s motion for reconsideration.30
Lim filed the instant petition for review, which was docketed as G.R. No.
175256.
Ruling of the Manila Regional Trial Court in Civil Case No. 05-112396
Meanwhile, the Manila RTC denied Co’s Motion to Dismiss in an
Order31 dated December 6, 2005. The Manila RTC held that there was no
forum shopping because the causes of action invoked in the two cases are
different. It observed that the civil complaint before it is based on an
obligation arising from contract and quasi-delict, whereas the civil liability
involved in the appeal of the criminal case arose from a felony.
Co filed a petition for certiorari,32 docketed as CA-G.R. SP No. 93395,
before the appellate court. He prayed for the nullification of the Manila
RTC’s Order in Civil Case No. 05-112396 for having been issued with
grave abuse of discretion.33
Ruling of the Court of Appeals Seventeenth Division in CA-G.R. SP No.
93395
The CA Seventeenth Division denied Co’s petition and remanded the civil
complaint to the trial court for further proceedings. The CA Seventeenth
Division agreed with the Manila RTC that the elements of litis pendentia
and forum shopping are not met in the two proceedings because they do not
share the same cause of action.34
The CA denied35 Co’s motion for reconsideration.36
Co filed the instant Petition for Review, which was docketed as G.R. No.
179160.
Upon Co’s motion,37 the Court resolved to consolidate the two petitions.38
Kou Co Ping’s arguments
Co maintains that Lim is guilty of forum shopping because she is asserting
only one cause of action in CA-G.R. CV No. 85138 (the appeal from the
civil aspect of Criminal Case No. 116377) and in Civil Case No. 05-112396,
which is for Co’s violation of her right to receive 37,200 bags of cement.
Likewise, the reliefs sought in both cases are the same, that is, for Co to
deliver the 37,200 bags of cement or its value to Lim. That Lim utilized
different methods of presenting her case – a criminal action for estafa and a
civil complaint for specific performance and damages – should not detract
from the fact that she is attempting to litigate the same cause of action
twice.39
Co makes light of the distinction between civil liability ex contractu and ex
delicto. According to him, granting that the two civil liabilities are
independent of each other, nevertheless, the two cases arising from them
would have to be decided using the same evidence and going over the same
set of facts. Thus, any judgment rendered in one of these cases will
constitute res judicata on the other.40
In G.R. No. 179160, Co prays for the annulment of the CA Decision and
Resolution in CA-G.R. SP No. 93395, for a declaration that Lim is guilty of
forum shopping, and for the dismissal of Civil Case No. 05-112396.41
In G.R. No. 175256, Co prays for the affirmation of the CA Decision in CA-
G.R. CV No. 85138 (which dismissed Lim’s appeal from the trial court’s
decision in Criminal Case No. 116377).42
Lily Lim’s arguments
Lim admits that the two proceedings involve substantially the same set of
facts because they arose from only one transaction.43 She is quick to add,
however, that a single act or omission does not always make a single cause
of action.44 It can possibly give rise to two separate civil liabilities on the
part of the offender – (1) ex delicto or civil liability arising from crimes, and
(2) independent civil liabilities or those arising from contracts or intentional
torts. The only caveat provided in Article 2177 of the Civil Code is that the
offended party cannot recover damages twice for the same act or omission.
45 Because the law allows her two independent causes of action, Lim
contends that it is not forum shopping to pursue them.46
She then explains the separate and distinct causes of action involved in the
two cases. Her cause of action in CA-G.R CV No. 85138 is based on the
crime of estafa. Co violated Lim’s right to be protected against swindling.
He represented to Lim that she can withdraw 37,200 bags of cement using
the authorities she bought from him. This is a fraudulent representation
because Co knew, at the time that they entered into the contract, that he
could not deliver what he promised.47 On the other hand, Lim’s cause of
action in Civil Case No. 05-112396 is based on contract. Co violated Lim’s
rights as a buyer in a contract of sale. Co received payment for the 37,200
bags of cement but did not deliver the goods that were the subject of the
sale.48
In G.R. No. 179160, Lim prays for the denial of Co’s petition.49 In G.R. No.
175256, she prays for the reversal of the CA Decision in CA-G.R. CV No.
85138, for a declaration that she is not guilty of forum shopping, and for the
reinstatement of her appeal in Criminal Case No. 116377 to the CA.50
Issue
Did Lim commit forum shopping in filing the civil case for specific
performance and damages during the pendency of her appeal on the civil
aspect of the criminal case for estafa?
Our Ruling
A single act or omission that causes damage to an offended party may give
rise to two separate civil liabilities on the part of the offender51 (1) civil
liability ex delicto, that is, civil liability arising from the criminal offense
under Article 100 of the Revised Penal Code,−-52 and (2) independent civil
liability, that is, civil liability that may be pursued independently of the
criminal proceedings. The independent civil liability may be based on "an
obligation not arising from the act or omission complained of as a felony,"
as provided in Article 31 of the Civil Code (such as for breach of contract or
for tort53 ). It may also be based on an act or omission that may constitute
felony but, nevertheless, treated independently from the criminal action by
specific provision of Article 33 of the Civil Code ("in cases of defamation,
fraud and physical injuries").
The civil liability arising from the offense or ex delicto is based on the acts
or omissions that constitute the criminal offense; hence, its trial is inherently
intertwined with the criminal action. For this reason, the civil liability ex
delicto is impliedly instituted with the criminal offense.54 If the action for
the civil liability ex delicto is instituted prior to or subsequent to the filing
of the criminal action, its proceedings are suspended until the final outcome
of the criminal action.55 The civil liability based on delict is extinguished
when the court hearing the criminal action declares that "the act or omission
from which the civil liability may arise did not exist."56
On the other hand, the independent civil liabilities are separate from the
criminal action and may be pursued independently, as provided in Articles
31 and 33 of the Civil Code, which state that:
ART. 31. When the civil action is based on an obligation not arising from
the act or omission complained of as a felony, such civil action may proceed
independently of the criminal proceedings and regardless of the result of the
latter. (Emphasis supplied.)
ART. 33. In cases of defamation, fraud, and physical injuries a civil action
for damages, entirely separate and distinct from the criminal action, may be
brought by the injured party. Such civil action shall proceed independently
of the criminal prosecution, and shall require only a preponderance of
evidence. (Emphasis supplied.)
Because of the distinct and independent nature of the two kinds of civil
liabilities, jurisprudence holds that the offended party may pursue the two
types of civil liabilities simultaneously or cumulatively, without offending
the rules on forum shopping, litis pendentia, or res judicata.57 As explained
in Cancio, Jr. v. Isip:58
One of the elements of res judicata is identity of causes of action. In the
instant case, it must be stressed that the action filed by petitioner is an
independent civil action, which remains separate and distinct from any
criminal prosecution based on the same act. Not being deemed instituted in
the criminal action based on culpa criminal, a ruling on the culpability of
the offender will have no bearing on said independent civil action based on
an entirely different cause of action, i.e., culpa contractual.
In the same vein, the filing of the collection case after the dismissal of the
estafa cases against the offender did not amount to forum-shopping. The
essence of forum shopping is the filing of multiple suits involving the same
parties for the same cause of action, either simultaneously or successively,
to secure a favorable judgment. Although the cases filed by [the offended
party] arose from the same act or omission of [the offender], they are,
however, based on different causes of action. The criminal cases for estafa
are based on culpa criminal while the civil action for collection is anchored constitute tortious conduct (abuse of rights under the Human Relations
on culpa contractual. Moreover, there can be no forum-shopping in the provisions of the Civil Code).
instant case because the law expressly allows the filing of a separate civil Thus, Civil Case No. 05-112396 involves only the obligations arising from
action which can proceed independently of the criminal action.59 contract and from tort, whereas the appeal in the estafa case involves only
Since civil liabilities arising from felonies and those arising from other the civil obligations of Co arising from the offense charged. They present
sources of obligations are authorized by law to proceed independently of different causes of action, which under the law, are considered "separate,
each other, the resolution of the present issue hinges on whether the two distinct, and independent"62 from each other. Both cases can proceed to their
cases herein involve different kinds of civil obligations such that they can final adjudication, subject to the prohibition on double recovery under
proceed independently of each other. The answer is in the affirmative. Article 2177 of the Civil Code.63
The first action is clearly a civil action ex delicto, it having been instituted WHEREFORE, premises considered, Lily Lim’s Petition in G.R. No.
together with the criminal action.60 175256 is GRANTED. The assailed October 20, 2005 Resolution of the
Second Division of the Court of Appeals in CA-G.R. CV No. 85138
On the other hand, the second action, judging by the allegations contained
is REVERSED and SET ASIDE. Lily Lim’s appeal in CA-G.R. CV No.
in the complaint,61 is a civil action arising from a contractual obligation and
85138 is ordered REINSTATED and the Court of Appeals
for tortious conduct (abuse of rights). In her civil complaint, Lim basically
is DIRECTED to RESOLVE the same with DELIBERATE DISPATCH.
alleges that she entered into a sale contract with Co under the following
terms: that she bought 37,200 bags of cement at the rate of ₱ 64.00 per bag Charlie Co’s Petition G.R. No. 179160 is DENIED. The assailed April 10,
from Co; that, after full payment, Co delivered to her the withdrawal 2007 Decision of the Seventeenth Division of the Court of Appeals in CA-
authorities issued by FRCC corresponding to these bags of cement; that G.R. SP No. 93395 is AFFIRMED in toto.
these withdrawal authorities will be honored by FRCC for six months from SO ORDERED.
the dates written thereon. Lim then maintains that the defendants breached
their contractual obligations to her under the sale contract and under the
withdrawal authorities; that Co and his co-defendants wanted her to pay
more for each bag of cement, contrary to their agreement to fix the price at
₱ 64.00 per bag and to the wording of the withdrawal authorities; that
FRCC did not honor the terms of the withdrawal authorities it issued; and
that Co did not comply with his obligation under the sale contract to deliver
the 37,200 bags of cement to Lim. From the foregoing allegations, it is
evident that Lim seeks to enforce the defendants’ contractual obligations,
given that she has already performed her obligations. She prays that the
defendants either honor their part of the contract or pay for the damages that TOPIC: Rule 111 – C. Independent Civil Action
their breach has caused her.
Republic of the Philippines

Lim also includes allegations that the actions of the defendants were SUPREME COURT

committed in such manner as to cause damage to Lim without regard for
Manila
morals, good customs and public policy. These allegations, if proven, would
THIRD DIVISION
G.R. No. 145391 August 26, 2002
AVELINO CASUPANAN and ROBERTO CAPITULO, petitioners, 

vs.

MARIO LLAVORE LAROYA, respondent.
CARPIO, J.:
The Case
This is a petition for review on certiorari to set aside the Resolution1 dated
December 28, 1999 dismissing the petition for certiorari and the
Resolution2 dated August 24, 2000 denying the motion for reconsideration,
both issued by the Regional Trial Court of Capas, Tarlac, Branch 66, in
Special Civil Action No. 17-C (99).
The Facts
Two vehicles, one driven by respondent Mario Llavore Laroya ("Laroya"
for brevity) and the other owned by petitioner Roberto Capitulo ("Capitulo"
for brevity) and driven by petitioner Avelino Casupanan ("Casupanan" for
brevity), figured in an accident. As a result, two cases were filed with the
Municipal Circuit Trial Court ("MCTC" for brevity) of Capas, Tarlac.
Laroya filed a criminal case against Casupanan for reckless imprudence
resulting in damage to property, docketed as Criminal Case No. 002-99. On
the other hand, Casupanan and Capitulo filed a civil case against Laroya for
quasi-delict, docketed as Civil Case No. 2089.
When the civil case was filed, the criminal case was then at its preliminary
investigation stage. Laroya, defendant in the civil case, filed a motion to
dismiss the civil case on the ground of forum-shopping considering the
pendency of the criminal case. The MCTC granted the motion in the Order
of March 26, 1999 and dismissed the civil case.
On Motion for Reconsideration, Casupanan and Capitulo insisted that the
civil case is a separate civil action which can proceed independently of the
criminal case. The MCTC denied the motion for reconsideration in the
Order of May 7, 1999. Casupanan and Capitulo filed a petition for certiorari
under Rule 65 before the Regional Trial Court ("Capas RTC" for brevity) of
Capas, Tarlac, Branch 66,3 assailing the MCTC’s Order of dismissal.
The Trial Court’s Ruling
The Capas RTC rendered judgment on December 28, 1999 dismissing the
petition for certiorari for lack of merit. The Capas RTC ruled that the order
of dismissal issued by the MCTC is a final order which disposes of the case
and therefore the proper remedy should have been an appeal. The Capas
RTC further held that a special civil action for certiorari is not a substitute
for a lost appeal. Finally, the Capas RTC declared that even on the premise
that the MCTC erred in dismissing the civil case, such error is a pure error
of judgment and not an abuse of discretion.
Casupanan and Capitulo filed a Motion for Reconsideration but the Capas
RTC denied the same in the Resolution of August 24, 2000.
Hence, this petition.
The Issue
The petition premises the legal issue in this wise:
"In a certain vehicular accident involving two parties, each one of
them may think and believe that the accident was caused by the
fault of the other. x x x [T]he first party, believing himself to be the
aggrieved party, opted to file a criminal case for reckless
imprudence against the second party. On the other hand, the second
party, together with his operator, believing themselves to be the
real aggrieved parties, opted in turn to file a civil case for quasi-
delict against the first party who is the very private complainant in
the criminal case."4
Thus, the issue raised is whether an accused in a pending criminal case for
reckless imprudence can validly file, simultaneously and independently, a
separate civil action for quasi-delict against the private complainant in the
criminal case.
The Court’s Ruling
Casupanan and Capitulo assert that Civil Case No. 2089, which the MCTC
dismissed on the ground of forum-shopping, constitutes a counterclaim in
the criminal case. Casupanan and Capitulo argue that if the accused in a
criminal case has a counterclaim against the private complainant, he may
file the counterclaim in a separate civil action at the proper time. They
contend that an action on quasi-delict is different from an action resulting
from the crime of reckless imprudence, and an accused in a criminal case
can be an aggrieved party in a civil case arising from the same incident.
They maintain that under Articles 31 and 2176 of the Civil Code, the civil
case can proceed independently of the criminal action. Finally, they point
out that Casupanan was not the only one who filed the independent civil
action based on quasi-delict but also Capitulo, the owner-operator of the
vehicle, who was not a party in the criminal case.
In his Comment, Laroya claims that the petition is fatally defective as it
does not state the real antecedents. Laroya further alleges that Casupanan
and Capitulo forfeited their right to question the order of dismissal when
they failed to avail of the proper remedy of appeal. Laroya argues that there
is no question of law to be resolved as the order of dismissal is already final
and a petition for certiorari is not a substitute for a lapsed appeal.
In their Reply, Casupanan and Capitulo contend that the petition raises the
legal question of whether there is forum-shopping since they filed only one
action - the independent civil action for quasi-delict against Laroya.
Nature of the Order of Dismissal
The MCTC dismissed the civil action for quasi-delict on the ground of
forum-shopping under Supreme Court Administrative Circular No. 04-94.
The MCTC did not state in its order of dismissal5 that the dismissal
was with prejudice. Under the Administrative Circular, the order of
dismissal is without prejudice to refiling the complaint, unless the order of
dismissal expressly states it is with prejudice.6 Absent a declaration that the
dismissal is with prejudice, the same is deemed without prejudice. Thus, the
MCTC’s dismissal, being silent on the matter, is a dismissal without
prejudice.
Section 1 of Rule 417 provides that an order dismissing an action without
prejudice is not appealable. The remedy of the aggrieved party is to file a
special civil action under Rule 65. Section 1 of Rule 41 expressly states that
"where the judgment or final order is not appealable, the aggrieved party
may file an appropriate special civil action under Rule 65." Clearly, the
Capas RTC’s order dismissing the petition for certiorari, on the ground that
the proper remedy is an ordinary appeal, is erroneous.
Forum-Shopping
The essence of forum-shopping is the filing of multiple suits involving the
same parties for the same cause of action, either simultaneously or
successively, to secure a favorable judgment.8 Forum-shopping is present
when in the two or more cases pending, there is identity of parties, rights of
action and reliefs sought.9 However, there is no forum-shopping in the
instant case because the law and the rules expressly allow the filing of a
separate civil action which can proceed independently of the criminal
action.
Laroya filed the criminal case for reckless imprudence resulting in damage
to property based on the Revised Penal Code while Casupanan and Capitulo
filed the civil action for damages based on Article 2176 of the Civil Code.
Although these two actions arose from the same act or omission, they have
different causes of action. The criminal case is based on culpa criminal
punishable under the Revised Penal Code while the civil case is based on
culpa aquiliana actionable under Articles 2176 and 2177 of the Civil Code.
These articles on culpa aquiliana read:
"Art. 2176. Whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the damage
done. Such fault or negligence, if there is no pre-existing
contractual relation between the parties, is called a quasi-delict and
is governed by the provisions of this Chapter.
Art. 2177. Responsibility for fault or negligence under the
preceding article is entirely separate and distinct from the civil
liability arising from negligence under the Penal Code. But the
plaintiff cannot recover damages twice for the same act or
omission of the defendant."
Any aggrieved person can invoke these articles provided he proves, by
preponderance of evidence, that he has suffered damage because of the fault
or negligence of another. Either the private complainant or the accused can
file a separate civil action under these articles. There is nothing in the law or
rules that state only the private complainant in a criminal case may invoke
these articles.
Moreover, paragraph 6, Section 1, Rule 111 of the 2000 Rules on Criminal
Procedure ("2000 Rules" for brevity) expressly requires the accused to
litigate his counterclaim in a separate civil action, to wit:
 "SECTION 1. Institution of criminal and civil actions. – (a) x x x.
No counterclaim, cross-claim or third-party complaint may be filed
by the accused in the criminal case, but any cause of action which
could have been the subject thereof may be litigated in a separate
civil action." (Emphasis supplied)
Since the present Rules require the accused in a criminal action to file his
counterclaim in a separate civil action, there can be no forum-shopping if
the accused files such separate civil action.
Filing of a separate civil action
Section 1, Rule 111 of the 1985 Rules on Criminal Procedure ("1985 Rules"
for brevity), as amended in 1988, allowed the filing of a separate civil
action independently of the criminal action provided the offended party
reserved the right to file such civil action. Unless the offended party
reserved the civil action before the presentation of the evidence for the
prosecution, all civil actions arising from the same act or omission were
deemed "impliedly instituted" in the criminal case. These civil actions
referred to the recovery of civil liability ex-delicto, the recovery of damages
for quasi-delict, and the recovery of damages for violation of Articles 32, 33
and 34 of the Civil Code on Human Relations.
Thus, to file a separate and independent civil action for quasi-delict under
the 1985 Rules, the offended party had to reserve in the criminal action the
right to bring such action. Otherwise, such civil action was deemed
"impliedly instituted" in the criminal action. Section 1, Rule 111 of the 1985
Rules provided as follows:
"Section 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 offended party waives the action, reserves his right to institute
it separately, or institutes the civil action prior to the criminal
action.
Such civil action includes 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.
A waiver of any of the civil actions extinguishes the others. The
institution of, or the reservation of the right to file, any of said civil
actions separately waives the others.
The reservation of the right to institute the separate civil actions
shall be made before the prosecution starts to present its evidence
and under circumstances affording the offended party a reasonable
opportunity to make such reservation.
In no case may the offended party recover damages twice for the
same act or omission of the accused.
x x x." (Emphasis supplied)
Section 1, Rule 111 of the 1985 Rules was amended on December 1, 2000
and now provides as follows:
"SECTION 1. Institution of criminal and civil actions. – (a) When
a criminal action is instituted, the civil action for the recovery of
civil liability arising from the offense charged shall be deemed
instituted with the criminal action unless the offended party
waives the civil action, reserves the right to institute it separately
or institutes the civil action prior to the criminal action.
The reservation of the right to institute separately the civil action
shall be made before the prosecution starts presenting its evidence
and under circumstances affording the offended party a reasonable
opportunity to make such reservation.
xxx
(b) x x x
Where the civil action has been filed 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." (Emphasis supplied)
Under Section 1 of the present Rule 111, what is "deemed instituted" with
the criminal action is only the action to recover civil liability arising from
the crime or ex-delicto. All the other civil actions under Articles 32, 33, 34
and 2176 of the Civil Code are no longer "deemed instituted," and may be
filed separately and prosecuted independently even without any reservation
in the criminal action. The failure to make a reservation in the criminal
action is not a waiver of the right to file a separate and independent civil
action based on these articles of the Civil Code. The prescriptive period on
the civil actions based on these articles of the Civil Code continues to run
even with the filing of the criminal action. Verily, the civil actions based on
these articles of the Civil Code are separate, distinct and independent of the
civil action "deemed instituted" in the criminal action.10
Under the present Rule 111, the offended party is still given the option to
file a separate civil action to recover civil liability ex-delicto by reserving
such right in the criminal action before the prosecution presents its
evidence. Also, the offended party is deemed to make such reservation if he
files a separate civil action before filing the criminal action. If the civil
action to recover civil liability ex-delicto is filed separately but its trial has
not yet commenced, the civil action may be consolidated with the criminal
action. The consolidation under this Rule does not apply to separate civil
actions arising from the same act or omission filed under Articles 32, 33, 34
and 2176 of the Civil Code.11
Suspension of the Separate Civil Action
Under Section 2, Rule 111 of the amended 1985 Rules, a separate civil
action, if reserved in the criminal action, could not be filed until after final
judgment was rendered in the criminal action. If the separate civil action
was filed before the commencement of the criminal action, the civil action,
if still pending, was suspended upon the filing of the criminal action until
final judgment was rendered in the criminal action. This rule applied only to
the separate civil action filed to recover liability ex-delicto. The rule did not
apply to independent civil actions based on Articles 32, 33, 34 and 2176 of
the Civil Code, which could proceed independently regardless of the filing
of the criminal action.
The amended provision of Section 2, Rule 111 of the 2000 Rules continues
this procedure, to wit:
"SEC. 2. When separate civil action is suspended. – After the
criminal action has been commenced, the separate civil action
arising therefrom cannot be instituted until final judgment has been
entered in the criminal action.
If the criminal action is filed after the said civil action has
already been instituted, the latter shall be suspended in whatever
stage it may be found before judgment on the merits. The
suspension shall last until final judgment is rendered in the
criminal action. Nevertheless, before judgment on the merits is
rendered in the civil action, the same may, upon motion of the
offended party, be consolidated with the criminal action in the
court trying the criminal action. In case of consolidation, the
evidence already adduced in the civil action shall be deemed
automatically reproduced in the criminal action without prejudice
to the right of the prosecution to cross-examine the witnesses
presented by the offended party in the criminal case and of the
parties to present additional evidence. The consolidated criminal
and civil actions shall be tried and decided jointly.
During the pendency of the criminal action, the running of the
period of prescription of the civil action which cannot be instituted
separately or whose proceeding has been suspended shall be tolled.
x x x." (Emphasis supplied)
Thus, Section 2, Rule 111 of the present Rules did not change the rule that
the separate civil action, filed to recover damages ex-delicto, is suspended
upon the filing of the criminal action. Section 2 of the present Rule 111 also
prohibits the filing, after commencement of the criminal action, of a
separate civil action to recover damages ex-delicto.
When civil action may proceed independently
The crucial question now is whether Casupanan and Capitulo, who are not
the offended parties in the criminal case, can file a separate civil action
against the offended party in the criminal case. Section 3, Rule 111 of the
2000 Rules provides as follows:
"SEC 3. When civil action may proceed independently. - In the
cases provided in Articles 32, 33, 34 and 2176 of the Civil Code of
the Philippines, the independent civil action may be brought by
the offended party. It shall proceed independently of the criminal
 action and shall require only a preponderance of evidence. In no
case, however, may the offended party recover damages twice for
t h e s a m e a c t o r o m i s s i o n c h a rg e d i n t h e c r i m i n a l
action." (Emphasis supplied)
Section 3 of the present Rule 111, like its counterpart in the amended 1985
Rules, expressly allows the "offended party" to bring an independent civil
action under Articles 32, 33, 34 and 2176 of the Civil Code. As stated in
Section 3 of the present Rule 111, this civil action shall proceed
independently of the criminal action and shall require only a preponderance
of evidence. In no case, however, may the "offended party recover damages
twice for the same act or omission charged in the criminal action."
There is no question that the offended party in the criminal action can file
an independent civil action for quasi-delict against the accused. Section 3 of
the present Rule 111 expressly states that the "offended party" may bring
such an action but the "offended party" may not recover damages twice for
the same act or omission charged in the criminal action. Clearly, Section 3
of Rule 111 refers to the offended party in the criminal action, not to the
accused.
Casupanan and Capitulo, however, invoke the ruling in Cabaero vs.
Cantos12 where the Court held that the accused therein could validly
institute a separate civil action for quasi-delict against the private
complainant in the criminal case. In Cabaero, the accused in the criminal
case filed his Answer with Counterclaim for malicious prosecution. At that
time the Court noted the "absence of clear-cut rules governing the
prosecution on impliedly instituted civil actions and the necessary
consequences and implications thereof." Thus, the Court ruled that the
trial court should confine itself to the criminal aspect of the case and
disregard any counterclaim for civil liability. The Court further ruled that
the accused may file a separate civil case against the offended party "after
the criminal case is terminated and/or in accordance with the new Rules
which may be promulgated." The Court explained that a cross-claim,
counterclaim or third-party complaint on the civil aspect will only
unnecessarily complicate the proceedings and delay the resolution of the
criminal case.
Paragraph 6, Section 1 of the present Rule 111 was incorporated in the 2000
Rules precisely to address the lacunamentioned in Cabaero. Under this
provision, the accused is barred from filing a counterclaim, cross-claim or
third-party complaint in the criminal case. However, the same provision
states that "any cause of action which could have been the subject (of the
counterclaim, cross-claim or third-party complaint) may be litigated in a
separate civil action." The present Rule 111 mandates the accused to file his
counterclaim in a separate civil actiosn which shall proceed independently
of the criminal action, even as the civil action of the offended party is
litigated in the criminal action.
Conclusion
Under Section 1 of the present Rule 111, the independent civil action in
Articles 32, 33, 34 and 2176 of the Civil Code is not deemed instituted with
the criminal action but may be filed separately by the offended party even
without reservation. The commencement of the criminal action does not
suspend the prosecution of the independent civil action under these articles
of the Civil Code. The suspension in Section 2 of the present Rule 111
refers only to the civil action arising from the crime, if such civil action is
reserved or filed before the commencement of the criminal action.
Thus, the offended party can file two separate suits for the same act or
omission. The first a criminal case where the civil action to recover civil
liability ex-delicto is deemed instituted, and the other a civil case for quasi-
delict - without violating the rule on non-forum shopping. The two cases
can proceed simultaneously and independently of each other. The
commencement or prosecution of the criminal action will not suspend the
civil action for quasi-delict. The only limitation is that the offended party
cannot recover damages twice for the same act or omission of the
defendant. In most cases, the offended party will have no reason to file a
second civil action since he cannot recover damages twice for the same act
or omission of the accused. In some instances, the accused may be
insolvent, necessitating the filing of another case against his employer or
guardians.
Similarly, the accused can file a civil action for quasi-delict for the same act
or omission he is accused of in the criminal case. This is expressly allowed
in paragraph 6, Section 1 of the present Rule 111 which states that the
counterclaim of the accused "may be litigated in a separate civil action."
This is only fair for two reasons. First, the accused is prohibited from
setting up any counterclaim in the civil aspect that is deemed instituted in
the criminal case. The accused is therefore forced to litigate separately his
counterclaim against the offended party. If the accused does not file a
separate civil action for quasi-delict, the prescriptive period may set in since
the period continues to run until the civil action for quasi-delict is filed.
Second, the accused, who is presumed innocent, has a right to invoke
Article 2177 of the Civil Code, in the same way that the offended party can
avail of this remedy which is independent of the criminal action. To
disallow the accused from filing a separate civil action for quasi-delict,
while refusing to recognize his counterclaim in the criminal case, is to deny
him due process of law, access to the courts, and equal protection of the law.
Thus, the civil action based on quasi-delict filed separately by Casupanan
and Capitulo is proper. The order of dismissal by the MCTC of Civil Case
No. 2089 on the ground of forum-shopping is erroneous.
We make this ruling aware of the possibility that the decision of the trial
court in the criminal case may vary with the decision of the trial court in the
independent civil action. This possibility has always been recognized ever
since the Civil Code introduced in 1950 the concept of an independent civil
action under Articles 32, 33, 34 and 2176 of the Code. But the law itself, in
Article 31 of the Code, expressly provides that the independent civil action
"may proceed independently of the criminal proceedings and regardless of
the result of the latter." In Azucena vs. Potenciano,13the Court declared:
"x x x. There can indeed be no other logical conclusion than this,
for to subordinate the civil action contemplated in the said articles
to the result of the criminal prosecution — whether it be conviction
or acquittal — would render meaningless the independent
character of the civil action and the clear injunction in Article 31
that this action 'may proceed independently of the criminal
proceedings and regardless of the result of the latter.’"
More than half a century has passed since the Civil Code introduced the
concept of a civil action separate and independent from the criminal action
although arising from the same act or omission. The Court, however, has yet
to encounter a case of conflicting and irreconcilable decisions of trial courts,
one hearing the criminal case and the other the civil action for quasi-delict.
The fear of conflicting and irreconcilable decisions may be more apparent
than real. In any event, there are sufficient remedies under the Rules of
Court to deal with such remote possibilities.
One final point. The Revised Rules on Criminal Procedure took effect on
December 1, 2000 while the MCTC issued the order of dismissal on
December 28, 1999 or before the amendment of the rules. The Revised
Rules on Criminal Procedure must be given retroactive effect considering
the well-settled rule that -
"x x x statutes regulating the procedure of the court will be
construed as applicable to actions pending and undetermined at the
time of their passage. Procedural laws are retroactive in that sense
and to that extent."14
WHEREFORE, the petition for review on certiorari is hereby GRANTED.
The Resolutions dated December 28, 1999 and August 24, 2000 in Special
Civil Action No. 17-C (99) are ANNULLED and Civil Case No. 2089
is REINSTATED.
SO ORDERED.
TOPIC: Rule 111 – D. Effect of Death on the Civil Action
Republic of the Philippines

SUPREME COURT

Manila
FIRST DIVISION
G.R. No. 112985 April 21, 1999
PEOPLE OF THE PHILIPPINES, plaintiff-appellee 

vs.

MARTIN L. ROMERO and ERNESTO C. RODRIGUEZ, accused-
appellants.
PARDO, J
The case before the Court is an appeal of accused Martin L. Romero and
Ernesto C. Rodriguez from the Joint Judgment1 of the Regional Trial Court,
Branch 2, Butuan City, convicting each of them of estafa under Article 315,
par. 2 (d) of the Revised Penal Code, in relation to Presidential Decree No.
1689, for widescale swindling, and sentencing each of them to suffer the
penalty of life imprisonment and to jointly and severally pay Ernesto A.
Ruiz the amount of one hundred fifty thousand pesos (P150,000.00), with
interest at the rate of twelve percent (12%) per annum, starting September
14, 1989, until fully paid, and to pay ten thousand pesos (P10,000.00), as
moral damages.
On October 25, 1989, Butuan City acting fiscal Ernesto M. Brocoy filed
with the Regional Trial Court, Butuan City, in Information against the two
(2) accused estafa,2 as follows:
That on or about September 14, 1989, at Butuan City,
Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused being the General
Manager and Operation Manager which solicit funds from
the general public for investment, conspiring,
confederating together and mutually helping, one another,
by means of deceit and false pretense, did then and there
willfully, unlawfully and feloniously deliberately defraud
one Ernesto A. Ruiz by convincing the latter to invest his
money in the amount of P150,000.00 with a promise
return of 800 % profit within 21 days and in the process
caused the issuance of Butuan City Rural [sic] Bank
Check No. 158181 postdated to October 5, 1989 in the
amount of One Million Two Hundred Thousand Pesos
(P1,200,000.00) Philippine Currency, that upon
presentation of said check to the drawee bank for payment
the same was dishonored and that notwithstanding
repeated demands made on said accused to pay and/or
change the check to cash, they consistently failed and
refused and still fail and refuse to pay or redeem the
check, to the damage and prejudice of the complainant in
the aforestated amount of P1,200,000.00.3
On the same day, the city fiscal filed with the same court another
information against the two (2) accused for violation of Batas Pambansa
Bilang 22, arising from the issuance of the same check.4
On January 11, 1990, both accused were arraigned before the Regional Trial
Court, Branch 5, 5 Butuan City, where they plead not guilty to both
informations.
The prosecution presented its evidence on January 10, 1991, with
complainant, Ernesto A. Ruiz, and Daphne Parrocho, the usher/collector of
the corporation being managed by accused, testifying for the prosecution.
On August 12, 1991, the defense presented its only witness, accused Martin
L. Romero.
On November 13, 1992, the parties submitted a joint stipulation of facts,
signed only by their respective counsels. Thereafter, the case was submitted
for decision.
On March 30, 1993, the trail court promulgated a Joint Judgment dated
March 25, 1993. The trial court acquitted the accused in Criminal Case No.
38066 based on reasonable doubt, but convicted them in Criminal Case No.
38087and accordingly sentenced each of them, as follows:
IN VIEW OF THE FOREGOING, the Court hereby
renders judgments, finding or declaring —
(a) Accused Martin L. Romero and Ernesto C. Rodriguez
innocent on reasonable doubt in Criminal Case No. 3806,
for violation of Batas Pambansa Bilang 22;
(b) Accused Martin L. Romero and Ernesto C. Rodriguez
guilty beyond reasonable doubt in Criminal Case No.
3808 for estafa under P.D. 1689 for wide scale [sic]
swindling and accordingly sentences them to suffer life
 imprisonment (Section 1 P.D. 1689) and ordered jointly
and severally to return to Ernesto A. Ruiz the amount of
One Hundred Fifty Thousand Pesos (P150,000.00) with
interest thereon at the rate of Twelve percent (12%) per
annum starting from September 14, 1989 until fully paid
and to pay the amount Of Ten Thousand Pesos
(P10,000.00) as moral damages.
In the service of their sentence, the accused pursuant to
R.A. 6127, shall be credited for the preventive
imprisonment they have undergone (PP vs. Ortencio, 38
Phil 941; PP vs. Gabriel, No. L-13750, October 30, 1959,
cited in Gregorio's "Fundamentals of Criminal Law
Review", P. 178, Seventh Edition, 1985).8
On March 31, 1993, accused filed their notice of appeal, which the trial
court gave due course on April 5, 1993. On March 16, 1994, this Court
ordered the, accused to file their appellants' brief.
Accused-appellants filed their brief on October 30, 1995, while the Solicitor
General filed the appellee's brief on March 8, 1996.
During the pendency of the appeal, on November 12, 1997, accused Ernesto
Rodriguez died. 9 As a consequence of his death before final judgment, his
criminal and civil liability ex delicto, were extinguished. 10
Complainant Ernesto A. Ruiz was a radio commentator of Radio DXRB,
Butuan City. In August, 1989, he came to know the business of Surigao San
Andres Industrial Development Corporation (SAIDECOR), when he
interviewed accused Martin Romero and Ernesto Rodriguez regarding the
corporation's investment operations in Butuan City and Agusan del Norte.
Romero was the president and general manager of SAIDECOR, while
Rodriguez was the operations manager.
SAIDECOR started its operation on August 24, 1989 as a marketing
business. Later, it engaged in soliciting funds and investments from the
public. The corporation guaranteed an 800% return on investment within
fifteen (15) or twenty one (21) days. Investors were given coupons
containing the capital and the return on the capital collectible on the date
agreed upon. It stopped operations in September, 1989.
On September 14, 1989, complainant Ernesto A. Ruiz went to SAIDECOR
office in Butuan City to make an investment, accompanied by his friend
Jimmy Acebu, and SAIDECOR collection agent Daphne Parrocho. After
handing over the amount of one hundred fifty thousand pesos (P150,000.00)
to Ernesto Rodriguez, complainant received a postdated Butuan City Rural
Bank check instead of the usual redeemable coupon. The check indicated
P1,000,200.00 as the amount in words, but the amount in figures was for
P1,200,000.00, as the return on the investment. Compliant did not notice the
discrepancy.
When the check was presented to the bank for payment on October 5, 1989,
it was dishonored for insufficiency of funds, as evidenced by the check
return slip issued by the bank. 11 Both accused could not be located and
demand for payment was made only sometime in November 1989 during
the preliminary investigation of this case. Accused responded that they had
no money.
Daphne Parrocho, 12 testified that on September 14, 1989, complainant,
with his friend Jimmy Acebu, approached her to invest the amount of
P150,000.00 at SAIDECOR. As she has reached her quota, and therefore,
no longer authorized to receive the amount, she accompanied them to the
office of SAIDECOR at Ong Yiu District, Butuan City. Accused Ernesto
Rodriguez accepted the investment and issued the check signed by him and
Martin Romero.
For their defense, accused Martin Romero13 testified that on September 14,
1989, he issued a check in the amount of P1,2000,000.00 corresponding to
the total of the P150,000.00 investment and the 800% return thereon. He
claimed that the corporation had a deposit of fourteen million pesos
(P14,000,000.00) at the time of the issuance of the check and four million
pesos (P4,000,000.00) at the time SAIDDECOR stopped operations.
Romero knew these things because he used to monitor the funds of the
corporation with the bank. He was not aware that the check he issued was
dishonored because he never had the occasion to meet the complainant
again after the September 14, 1989 transaction. He only came to know
about this when the case was already filed in court sometime in the second
or third week of January 1990.
In this appeal, both accused did not deny that complainant made an
investment with SAIDECOR in the amount of P150,000.00. However, they
denied that deceit was employed in the transaction. They assigned as errors:
(1) their conviction under P.D. 1689 due to the prosecution's failure to
establish their guilt beyond reasonable doubt; and (2) the trial court's failure
to consider the joint stipulation of facts in their favor. 15
There is no merit in this appeal. We sustain accused-appellant's conviction.
Under paragraph 2 (d) of Article 315, as amended by R.A. 4885, 16 the
elements of estafa are: (1) a check was postdated or issued in payment of an
obligation contracted at the time it was issued; (2) lack or insufficiency of
funds to cover the check; (3) damage to the payee thereof. 17 The
prosecution has satisfactorily established all these elements.
Fraud, in its general sense, is deemed to comprise anything calculated to
deceive, including all acts, omissions, and concealment involving a breach
of legal equitable duty, trust, or confidence justly reposed, resulting in
damage to another, or by which an undue and unconscientious advantage is
taken of another. 18 It is a generic term embracing all multifarious means
which human ingenuity can device, and which are resorted to by one
individual to secure an advantage over another by false suggestions or by
suppression of truth and includes all surprise, trick, cunning, dissembling
and any unfair way by which another is cheated. 19
Deceit is a specific of fraud. It is actual fraud, and consists in any false
representation or contrivance whereby one person overreaches and misleads
another, to his hurt. Deceit excludes the idea of mistake. 20 There is deceit
when one is misled, either by guide or trickery or by other means, to believe
to be true what is really false. 21 In this case, there was deception when
accused fraudulently represented to complainant that his investment with
the corporation would have an 800% return in 15 or 21 days.
Upon receipt of the money, accused-appellant Martin Romero issued a
postdated check. Although accused-appellant contends that sufficient funds
were deposited in the bank when the check was issued, he presented no
officer of the bank to substantiate the contention. The check was dishonored
when presented for payment, and the check return slip submitted in
evidence indicated that it was dishonored due to insufficiency of funds.
Even assuming for the sake of argument that the check was dishonored
without any fraudulent pretense or fraudulent act of the drawer, the latter's
failure to cover the amount within three days after notice creates a
rebuttable presumption of fraud. 22
Admittedly (1) the check was dishonored for insufficiency of funds as
evidenced by the check return slip; (2) complainant notified accused of the
dishonor; and (3) accused failed to make good the check within three days.
Presumption of deceit remained since accused failed to prove otherwise.
Complainant sustained damage in the amount of P150,000.00.
Accused-appellant also contends that had the trial court admitted the
Admission and Stipulaion of Facts of November 9, 1992, it would prove
that SAIDECOR had sufficient funds in the bank.
Accused-appellant relies on the fact that there was a discrepancy between
the amount in words and the amount in figures in the check that was
dishonored. The amount in words was P1,000,200.00, while the amount in
figures was P1,200,000.00. It is admitted that the corporation had in the
bank P1,144,760.00 on September 28, 1989, and P1,124,307.14 on April 2,
1990. The check was presented for payment on October 5, 1989. The rule in
the Negotiable Instruments Law is that when there is ambiguity in the
amount in words and the amount in figures, it would be the amount in
words that would prevail. 23
However, this rule of interpretation finds no application in the case. The
agreement was perfectly clear that at the end of twenty one (21) days, the
investment of P150,000.00 would become P1,200,000.00. Even if the trial
court admitted the stipulation of facts, it would not be favorable to accused-
appellant.
The factual narration in this case established a kind of Ponzi scheme. 24 This
is "an investment swindle in which high profits are promised from fictitious
sources and early investors are paid off with funds raised from later ones."
It is sometimes called a pyramid scheme because a broader base of gullible
investors must support the structure as time passes.
In the recent case of People vs. Priscilla Balasa, 25 this Court held that a
transaction similar to the case at hand is not an investment strategy but a
gullibility scheme, which works only as long as there is an ever increasing
number of new investors joining the scheme. It is difficult to sustain over a
long period of time because the operator needs an ever larger pool of later
investors to continue paying the promised profits to early investors. The
idea behind this type of swindle is that the "con-man" collects his money
from his second or third round of investors and then absconds before
anyone else shows up to collect. Necessarily, these schemes only last weeks,
or months at most, just like what happened in this case.
The Court notes that one of the accused-appellants, Ernesto Rodriguez, died
pending appeal. Pursuant to the doctrine established in People vs.
Bayotas, 26 the death of the accused pending appeal of his conviction
extinguishes his criminal liability as well as the civil liability ex delicto. The
criminal action is extinguished inasmuch as there is no longer a defendant
to stand as the accused, the civil action instituted therein for recovery of
civil liability ex delicto is ipso facto extinguished, grounded as it is on the
criminal case. Corollarily, the claim for civil liability survives
notwithstanding the death of the accused, if the same may also be predicted
on a source of obligation other than delicit. 27
Thus, the outcome of this appeal pertains only remaining accused-appellant,
Martin L. Romero. The trail court considered the swindling involved in this
case as having been committed by a syndicate 28 and sentenced the accused
to life imprisonment based on the provisions of Presidential Decree 1689,
which increased the penalty for certain forms of swindling or
estafa. 29 However, the prosecution failed to clearly establish that the
corporation was a syndicate, as defined under the law. The penalty of life
imprisonment cannot be imposed. What would be applicable in the present
case is the second paragraph of a Presidential Decree No. 1689, Section 1,
which provides that:
When not committed by a syndicate as above defined, the
penalty imposable shall be reclusion temporal to reclusion
perpetua if the amount of the fraud exceeds 100.000
pesos.
Art. 77 of the Revised Penal Code on complex penalties provides that
"whenever the penalty prescribed does not have one of the forms specially
provided for in this Code, the periods shall be distributed, applying by
analogy the prescribed rules," that is, those in Articles 61 and 76. 30 Hence,
where as in this case, the penalty provided by Section 1 of Presidential
Decree No. 1689 for estafa under Articles 315 and 316 of the Code
is reclusion temporal to reclusion perpetua, the minimum period thereof is
twelve (12) year and one (1) day to sixteen (16) years of reclusion temporal;
the medium period is sixteen (16) years and one (1) day to twenty (20)
years of reclusion temporal; and the maximum period is reclusion perpetua.
In the case at bar, no mitigating or aggravating circumstance has been
alleged or proved. Applying the rules in the Revised Penal Code for
graduating penalties by degreses 31 to determine the proper period, 32 the
penalty for the offense of estafa under Article 315, 2(d) as amended by P.D.
1689 involving the amount of P150,000.00 is the medium of the period of
the complex penalty in said Section 1, that is, sixteen (16) years and one (1)
day to twenty (20) years. This penalty, being that which is to be actually
imposed in accordance with the therefor and not merely imposable as a
general prescription under the law, shall be the maximum range of the
indeterminate sentence. 33The minimum thereof shall be taken, as aforesaid,
from any period of the penalty next lower in degree which isprision mayor.
To enable the complainant to obtain means, diversion or amusements that
will serve to alleviate the moral sufferings undergone by him, by reason of
the failure of the accused to return his money, moral damages are imposed
against accused-appellant Martin L. Romero in the amount of twenty
thousand pesos (P20,000.00), 34 To serve as an example for the public good,
exemplary damages are awarded against him in the amount of fifteen
thousand pesos (P15,000. 00). 35
WHEREFORE, the Court hereby AFFIRMS WITH MODIFICATION the
appealed judgment. The Court hereby sentences accused-appellant Martin
Romero to suffer an indeterminate penalty of ten (10) years and one (1) day
ofprision mayor, as minimum, to sixteen (16) years and one (1) day
of reclusion temporal, as maximum, to indemnify Ernesto A. Ruiz in the
amount of one hundred fifty thousand pesos (P150,000.00) with interest
thereon at six (6%)per centrum per annum from September 14, 1989, until
fully paid, to pay twenty thousand pesos (P20,000.00) as moral damages
and fifteen thousand pesos (P15,000.00), as exemplary damages, and the
costs.1âwphi1.nêt
SO ORDERED.
 The Antecedent Facts
The facts are stated in the Court of Appeals’ decision:
On 25 October 2004, Maria Chrysantine Pimentel y Lacap (private
respondent) filed an action for frustrated parricide against Joselito R.
Pimentel (petitioner), docketed as Criminal Case No. Q-04-130415, before
the Regional Trial Court of Quezon City, which was raffled to Branch 223
(RTC Quezon City).
On 7 February 2005, petitioner received summons to appear before the
Regional Trial Court of Antipolo City, Branch 72 (RTC Antipolo) for the
pre-trial and trial of Civil Case No. 04-7392 (Maria Chrysantine Lorenza L.
Pimentel v. Joselito Pimentel) for Declaration of Nullity of Marriage under
Section 36 of the Family Code on the ground of psychological incapacity.
On 11 February 2005, petitioner filed an urgent motion to suspend the
proceedings before the RTC Quezon City on the ground of the existence of
a prejudicial question. Petitioner asserted that since the relationship between
the offender and the victim is a key element in parricide, the outcome of
TOPIC: Rule 111 – E. Prejudicial Question
Civil Case No. 04-7392 would have a bearing in the criminal case filed
Republic of the Philippines
 against him before the RTC Quezon City.
SUPREME COURT

The Decision of the Trial Court
Manila
The RTC Quezon City issued an Order dated 13 May 20053 holding that the
SECOND DIVISION
pendency of the case before the RTC Antipolo is not a prejudicial question
G.R. No. 172060 September 13, 2010 that warrants the suspension of the criminal case before it. The RTC Quezon
City held that the issues in Criminal Case No. Q-04-130415 are the injuries
JOSELITO R. PIMENTEL, Petitioner, 

vs.
 sustained by respondent and whether the case could be tried even if the
validity of petitioner’s marriage with respondent is in question. The RTC
MARIA CHRYSANTINE L. PIMENTEL and PEOPLE OF THE
PHILIPPINES, Respondents. Quezon City ruled:

DECISION WHEREFORE, on the basis of the foregoing, the Motion to Suspend

Proceedings On the [Ground] of the Existence of a Prejudicial Question is,
CARPIO, J.: for lack of merit, DENIED.
The Case SO ORDERED.4
Before the Court is a petition for review1 assailing the Decision2 of the Petitioner filed a motion for reconsideration. In its 22 August 2005 Order,
Court of Appeals, promulgated on 20 March 2006, in CA-G.R. SP No. 5 the RTC Quezon City denied the motion.
91867.
Petitioner filed a petition for certiorari with application for a writ of
preliminary injunction and/or temporary restraining order before the Court
of Appeals, assailing the 13 May 2005 and 22 August 2005 Orders of the
RTC Quezon City.
The Decision of the Court of Appeals
In its 20 March 2006 Decision, the Court of Appeals dismissed the petition.
The Court of Appeals ruled that in the criminal case for frustrated parricide,
the issue is whether the offender commenced the commission of the crime
of parricide directly by overt acts and did not perform all the acts of
execution by reason of some cause or accident other than his own
spontaneous desistance. On the other hand, the issue in the civil action for
annulment of marriage is whether petitioner is psychologically
incapacitated to comply with the essential marital obligations. The Court of
Appeals ruled that even if the marriage between petitioner and respondent
would be declared void, it would be immaterial to the criminal case because
prior to the declaration of nullity, the alleged acts constituting the crime of
frustrated parricide had already been committed. The Court of Appeals
ruled that all that is required for the charge of frustrated parricide is that at
the time of the commission of the crime, the marriage is still subsisting.
Petitioner filed a petition for review before this Court assailing the Court of
Appeals’ decision.
The Issue
The only issue in this case is whether the resolution of the action for
annulment of marriage is a prejudicial question that warrants the suspension
of the criminal case for frustrated parricide against petitioner.
The Ruling of this Court
The petition has no merit.
Civil Case Must be Instituted
 innocence of the accused, and for it to suspend the criminal action, it must
Before the Criminal Case
Section 7, Rule 111 of the 2000 Rules on Criminal Procedure6 provides:
Section 7. Elements of Prejudicial Question. - The elements of a prejudicial
question are: (a) the previously instituted civil action involves an issue
similar or intimately related to the issue raised in the subsequent criminal
action and (b) the resolution of such issue determines whether or not the
criminal action may proceed.
The rule is clear that the civil action must be instituted first before the filing
of the criminal action. In this case, the Information7 for Frustrated Parricide
was dated 30 August 2004. It was raffled to RTC Quezon City on 25
October 2004 as per the stamped date of receipt on the Information. The
RTC Quezon City set Criminal Case No. Q-04-130415 for pre-trial and trial
on 14 February 2005. Petitioner was served summons in Civil Case No.
04-7392 on 7 February 2005.8 Respondent’s petition9 in Civil Case No.
04-7392 was dated 4 November 2004 and was filed on 5 November 2004.
Clearly, the civil case for annulment was filed after the filing of the criminal
case for frustrated parricide. As such, the requirement of Section 7, Rule
111 of the 2000 Rules on Criminal Procedure was not met since the civil
action was filed subsequent to the filing of the criminal action.
Annulment of Marriage is not a Prejudicial Question

in Criminal Case for Parricide
Further, the resolution of the civil action is not a prejudicial question that
would warrant the suspension of the criminal action.
There is a prejudicial question when a civil action and a criminal action are
both pending, and there exists in the civil action an issue which must be
preemptively resolved before the criminal action may proceed because
howsoever the issue raised in the civil action is resolved would be
determinative of the guilt or innocence of the accused in the criminal case.
10 A prejudicial question is defined as:
x x x one that arises in a case the resolution of which is a logical antecedent
of the issue involved therein, and the cognizance of which pertains to
another tribunal. It is a question based on a fact distinct and separate from
the crime but so intimately connected with it that it determines the guilt or
appear not only that said case involves facts intimately related to those upon
which the criminal prosecution would be based but also that in the
resolution of the issue or issues raised in the civil case, the guilt or
innocence of the accused would necessarily be determined.11
The relationship between the offender and the victim is a key element in the
crime of parricide,12 which punishes any person "who shall kill his father,
mother, or child, whether legitimate or illegitimate, or any of his ascendants
or descendants, or his spouse."13 The relationship between the offender and
the victim distinguishes the crime of parricide from murder14 or homicide.
15 However, the issue in the annulment of marriage is not similar or
intimately related to the issue in the criminal case for parricide. Further, the
relationship between the offender and the victim is not determinative of the
guilt or innocence of the accused.
marriage on the ground of psychological incapacity is of absolutely no
moment insofar as the State’s penal laws are concerned."19
In view of the foregoing, the Court upholds the decision of the Court of
Appeals. The trial in Criminal Case No. Q-04-130415 may proceed as the
resolution of the issue in Civil Case No. 04-7392 is not determinative of the
guilt or innocence of petitioner in the criminal case.
WHEREFORE, we DENY the petition. We AFFIRM the 20 March 2006
Decision of the Court of Appeals in CA-G.R. SP No. 91867.

The issue in the civil case for annulment of marriage under Article 36 of the SO ORDERED.
Family Code is whether petitioner is psychologically incapacitated to
comply with the essential marital obligations. The issue in parricide is
whether the accused killed the victim. In this case, since petitioner was
charged with frustrated parricide, the issue is whether he performed all the
acts of execution which would have killed respondent as a consequence but
which, nevertheless, did not produce it by reason of causes independent of
petitioner’s will.16 At the time of the commission of the alleged crime,
petitioner and respondent were married. The subsequent dissolution of their
marriage, in case the petition in Civil Case No. 04-7392 is granted, will
have no effect on the alleged crime that was committed at the time of the
subsistence of the marriage. In short, even if the marriage between
petitioner and respondent is annulled, petitioner could still be held
criminally liable since at the time of the commission of the alleged crime,
he was still married to respondent.1avvphi1
We cannot accept petitioner’s reliance on Tenebro v. Court of Appeals17 that
"the judicial declaration of the nullity of a marriage on the ground of
psychological incapacity retroacts to the date of the celebration of the
marriage insofar as the vinculum between the spouses is concerned x x x."
First, the issue in Tenebro is the effect of the judicial declaration of nullity
of a second or subsequent marriage on the ground of psychological
incapacity on a criminal liability for bigamy. There was no issue of
prejudicial question in that case. Second, the Court ruled in Tenebro that Republic of the Philippines

"[t]here is x x x a recognition written into the law itself that such a marriage, SUPREME COURT

although void ab initio, may still produce legal consequences."18 In fact, the Manila
Court declared in that case that "a declaration of the nullity of the second THIRD DIVISION
G.R. No. 208587 July 29, 2015
JM DOMINGUEZ AGRONOMIC COMPANY, INC., HELEN D. 1. Helen D. Dagdagan as President
DAGDAGAN, PATRICK PACIS, KENNETH PACIS, and SHIRLEY 2. Patrick D. Pacis as Vice-President
DOMINGUEZ, Petitioners, 

vs.
 3. Kenneth D. Pacis as Secretary
CECILIA LICLICAN, NORMA D. ISIP, and PURITA 4. Shirley C. Dominguez as Treasurer
DOMINGUEZ, Respondents.
After staging the walk-out, respondents, on even date, executed a Board
DECISION Resolution certifying that in the stockholders meeting, the following were
VELASCO, JR., J.: elected directors and officers of JMD:5 Board of Directors:

Nature of the Case 1. Cecilia D. Liclican – Chairman and Presiding Officer

Petitioners, through the instant Petition for Review on Certiorari under Rule 2. Norma D. Isip
45 of the Rules of Court, seek the reversal of the Court of Appeals (CA) 3. Purita C. Dominguez
Decision1 dated August 30, 2012 and its Resolution2 dated July 15, 2013 in
4. Tessie C. Dominguez, and
CA-G.R. SP No. 108617. Said rulings nullified the Orders authorizing the
issuance of the assailed warrants of arrest against respondents for allegedly 5. Shirley C. Dominguez
having been issued in grave abuse of discretion. Officers:
The Facts 1. Cecilia D. Liclican as President and Presiding Officer
During the annual stockholders meeting of petitioner JM Dominguez 2. Norma D. Isip as Vice-President
Agronomic Company, Inc. (JMD) held on December 29, 2007 at the Baguio
City Country Club, the election for its new set of directors was conducted. 3. Gerald B. Cabrera as Corporate Secretary/Treasurer and
This event was presided by then company president, and herein respondent, 4. Oscar Aquino – Financial Consultant Auditor
Cecilia Liclican (Liclican), and attended by her co-respondents Norma Isip
In reaction to the foregoing developments, petitioners Dagdagan, Patrick
(Isip) and Purita Rodriguez, and by petitioners Helen Dagdagan
and Kenneth Pacis, and Dominguez filed a Complaint against respondents
(Dagdagan), Patrick Pacis, Kenneth Pacis, and Shirley Dominguez
before the Regional Trial Comi of Baguio City (RTC) for nullification of
(Dominguez) as well. Conflict ensued when petitioners Patrick and Kenneth
meetings, election and acts of directors and officers, injunction and other
Pacis were allegedly not allowed to vote on the ground that they are not
reliefs, raffled to Branch 59 of the court. Docketed as Civil Case No. 6623-
registered stockholders of JMD. As pointed out, it was their mother and
R, the case, after a failed mediation, was referred for appropriate Judicial
grandmother, both deceased, who are the stockholders in JMD, and that
Dispute Resolution (JDR) to Branch 7 of the RTC. Meanwhile, petitioner
there is still no settlement of their respective estates to effectively transfer
stockholders immediately took hold of corporate properties, represented
their shares in the company to Patrick and Kenneth Pacis.3
themselves to JMD's tenants as the true and lawful directors of the
Tensions rose and respondents, allegedly, walked out of the meeting. But company, and collected and deposited rents due the company to its bank
since the remaining stockholders with outstanding shares constituted a account.6
quorum, the election of officers still proceeded, which yielded the following
Subsequently, JMD, represented by petitioners Dagdagan and Patrick Pacis,
result: 4
executed an Affidavit-Complaint7 dated December 15, 2008 charging
Officers:
respondents Liclican and Isip with qualified theft. Petitioners alleged in the
complaint, docketed as I.S. No. 3011 with the Office of the City Prosecutor
in Baguio City, that on January 2, 2008, Liclican and Isip, without any
authority whatsoever, conspired to withdraw the amount of ₱852,024.19
from the corporation's savings account with the Equitable-PCI Bank; and
that the following day, they issued Check No. C00024899018 in the amount
of ₱200,000, payable to cash, and to be drawn against JMD's account with
Robinson's Savings Bank.9
In a separate complaint,10 docketed as I.S. No. 3118, the corporation
claimed that respondents Liclican and Isip likewise issued Equitable-PCI
Bank Check No. 32095311 payable to one Atty. Francisco Lava, Jr. for
₱200,000 to be debited from the corporation's account.
After due proceedings, the Office of the City Prosecutor of Baguio City, by
Joint Resolution of February 2, 2009, recommended the filing of
informations as follows:12
WHEREFORE, premises considered. the undersigned recommends for
approval the attached Informations for Qualified Theft against LICLICAN
and ISIP in LS. No. 3011 and another against LICLICAN in LS. No. 3118.
When filed, the informations were eventually raffled to Branch 7 of the
RTC, the same court overseeing the JDR,13presided over by Judge Mona
Lisa V. Tiongson-Tabora (Judge Tiongson-Tabora). The criminal cases for
qualified theft were then docketed as Criminal Case Nos. 29176-R (based
on I.S. No. 3118) and 29175-R (based on I.S. No. 3111).
On March 10, 2009, Judge Tiongson-Tabora issued an Order14 in Criminal
Case No. 29176-R, finding probable cause for the issuance of a warrant of
arrest against Liclican, thus: WHEREFORE. the Information filed herein is
hereby given due course. Let the corresponding warrant of arrest be issued
against the accused. As recommended, the bail is hereby fixed as Php
80,000.00.
SO ORDERED.
A similar Order,15 also dated March 10, 2009, was issued in Criminal Case
No. 29175-R likewise finding probable cause against respondents Liclican
and Isip, viz:
WHEREFORE, the Information filed herein is hereby given due course. Let
the corresponding warrant of arrest be issued against the accused. As
recommended, the bail is hereby fixed at Php 80,000.00 each.
Considering that the address provided for accused Norma Isip is
Washington, U.S.A., the private complainants are hereby given fifteen ( 15)
days from receipt hereof to provide the Court with a local address for the
said accused if she may be found in the Philippines.
SO ORDERED.
Consequently, the corresponding warrants were issued for the arrests of Isip
and Liclican.16 In due time, respondents lodged a petition for certiorari with
the CA, docketed as CA-G.R. SP No. 108617, to annul and set aside the two
(2) March I 0, 2009 Orders by the RTC Branch 7, anchored, among others,
on the alleged existence of a prejudicial question. According to respondents,
petitioner stockholders, by filing the complaint-affidavit, are already
assuming that they are the legitimate directors of JMD, which is the very
issue in the intra-corporate dispute pending in the RTC, Branch 59.
Ruling of the Court of Appeals
In its assailed Decision, the CA granted the petition for certiorari, disposing
as follows: WHEREFORE, the challenged Orders both dated March 10.
2009 are hereby ANNULLED and SET ASIDE for having been issued with
grave abuse of discretion amounting to lack or excess of jurisdiction.
SO ORDERED.
The appellate court held that Judge Tiongson-Tabora should have refrained
from determining probable cause since she is well aware of the pendency of
the issue on the validity of JMD's elections in Civil Case No. 6623-R. As
the judge overseeing the JDR of the said intra-corporate dispute, she knew
that there was still doubt as to who the rightfully elected directors of JMD
are and, corollarily, who would have the authority to initiate the criminal
proceedings for qualified theft.17
The CA further noted that even as corporate officers, as they claim to be,
petitioners Dagdagan and Patrick Pacis cannot file the Complaint-Affidavit
in the exercise of corporate powers without authority from the board of
directors under Sec. 23,18 in relation to Sec. 2519 of the Corporation Code.
20 Any doubt cast on the validity of the board elections would then
necessarily extend to the authority of the officers to act.
As further held by the CA:
x x x Since there is doubt in the instant case as to the sufficiency of the
authority of a corporate officer, Judge Tiongson-Tabora should have
exercised prudence by holding the criminal cases in abeyance pending
resolution of the intra-corporate dispute which private respondents
themselves instituted.21
Aggrieved, individual petitioners moved for reconsideration, on the main
contention that their election as officers and directors of JMD has already
been sustained by the trial court via its Judgment in Civil Case No. 6623-R
dated May 6, 2011. They likewise claimed that the issue on whether or not
the R TC, Branch 7 committed grave abuse of discretion is already rendered
moot and academic by the judge's inhibition in Criminal Case Nos. 29175-R
and 29176-R, and the termination of the JDR proceedings in Civil Case No.
6623-R. Petitioners' motion, however, proved futile as the appellate court
denied the same in its July 15, 2013 Resolution.22 Hence, the instant
recourse.
The Issues
Plainly, the resolution of the extant case depends on whether or not there
exists a prejudicial question that could affect the criminal proceedings for
qualified theft against respondents. In the concrete, the issues are (i)
whether or not Civil Case No. 6623-R constituted a prejudicial question
warranting the suspension of the proceedings in Criminal Case Nos. 29175-
R and 29176-R; and (ii) whether or not grave abuse of discretion attended
the issuance of the two assailed March 10, 2009 Orders in Criminal Case
Nos. 29175-R and 29176-R.
The Court's Ruling
The petition lacks merit.
The challenged Orders of the trial court
 be seated at the company's helm. Without Civil Case No. 6623-R's
were issued in grave abuse of discretion
We have previously ruled that grave abuse of discretion may arise when a
lower court or tribunal violates or contravenes the Constitution, the law or
existing jurisprudence. By grave abuse of discretion is meant, such
capricious and whimsical exercise of judgment as is equivalent to lack of
jurisdiction. The abuse of discretion must be grave as where the power is
exercised in an arbitrary or despotic manner by reason of passion or
personal hostility and must be so patent and gross as to amount to an
evasion of positive duty or to a virtual refusal to perform the duty enjoined
by or to act at all in contemplation of law. The word "capricious," usually
used in tandem with the term "arbitrary," conveys the notion of willful and
unreasoning action. Thus, when seeking the corrective hand of certiorari, a
clear showing of caprice and arbitrariness in the exercise of discretion is
imperative.23
In the case at bar, the CA correctly ruled that Judge Tiongson-Tabora acted
with grave abuse of discretion when she ordered the arrests of respondents
Isip and Liclican despite the existence of a prejudicial question.
As jurisprudence elucidates, a prejudicial question generally exists in a
situation where a civil action and a criminal action are both pending, and
there exists in the former an issue that must be pre-emptively resolved
before the latter may proceed, because howsoever the issue raised in the
civil action is resolved would be determinative Juris et de Jure of the guilt
or innocence of the accused in the criminal case.24 The rationale behind the
principle is to avoid two conflicting decisions,25 and its existence rests on
the concurrence of two essential elements: (i) the civil action involves an
issue similar or intimately related to the issue raised in the criminal action;
and (ii) the resolution of such issue determines whether or not the criminal
action may proceed.26
Here, the CA aptly observed that Civil Case No. 6623-R, the intra-corporate
dispute, posed a prejudicial question to Criminal Case Nos. 29175-R and
29176-R. To be sure, Civil Case No. 6623-R involves the same parties
herein, and is for nullification of JMD's meetings, election and acts of its
directors and officers, among others. Court intervention was sought to
ascertain who between the two contesting group of officers should rightfully
resolution, petitioners' authority to commence and prosecute Criminal Case
Nos. 29175-R and 29176-R against respondents for qualified theft in JMD's
behalf remained questionable, warranting the suspension of the criminal
proceedings.
Judge Tiongson-Tabora cannot deny knowledge of the pendency of Civil
Case No. 6623-R as the judge presiding over its JDR. As correctly held by
the CA:
Judge Tiongson-Tabora is well-aware of the existence of said prejudicial
question that should have barred the filing of the criminal complaint against
petitioners Liclican and Isip, for the simple reason that a juridical person
can only act through its officers, and the issue in the main case submitted
for JDR before Judge Tiongson-Tabora is one for nullification of meetings,
election and act of directors and officers, injunction and other reliefs Thus,
she knows for a fact that there is a question as to who are the legitimate
directors of JMD such that there is doubt as to whether private respondents
are in a position to act for JMD. (emphasis added)
Verily, the RTC ought to have suspended the proceedings, instead of issuing
the challenged Orders issued by the RTC.
The subsequent resolution of the prejudicial

question did not cure the defect
It may be, as the petitioners pointed out in their motion for reconsideration
filed before the CA, that Civil Case No. 6623-R was eventually resolved in
their favor through a Judgment27 dated May 6, 2011 rendered by the RTC,
Branch 59, the dispositive portion of which reads: WHEREFORE, from all
the foregoing disquisitions, the Court hereby declares that the plaintiffs
[petitioners herein] are the duly elected board of directors and officers of the
JM Dominguez Agronomic Company, Inc. for the year 2008 and hold-over
capacity unless here had already been an election of new officers.
Consequently, all Corporate Acts which the defendants [herein respondents
and one Gerald Cabrera and one Oscar Aquino] have done and performed
and all documents they have executed and issued have no force and effect.
Considering that the amount of Php850,000.00 which defendants have
withdrawn under the account of JM Dominguez Agronomic Company, Inc.
from the Equitable – PCI Bank (now Banco de Oro) is the same subject in
CC no. 29175-R entitled Pp. vs. Cecilia Liclican and Norma D. Isip for
Qualified Theft, the Court will no longer dwell on the same.
xxxx
SO ORDERED. (emphasis and words in bracket added)
This Judgment has, on June 6, 2011, become final and executory, as per the
Notice of Entry of Judgment issued by the same trial court.28 Evidently,
whatever cloud of doubt loomed over petitioners' actuations has already
been dispelled. Petitioners then postulate that the question on whether or not
the challenged Orders were issued in grave abuse of discretion has already
been rendered moot and academic by the June 6, 2011 ruling and by Judge
Tiongson-Tabora's subsequent inhibition in the criminal proceedings.
Consequently, they argue that their motion for reconsideration should have
been granted by the appellate court.
We are not convinced.
The resolution of the prejudicial question did not, in context, cure the grave
abuse of discretion already committed. The fact remains that when the RTC,
Branch 7 issued its challenged Orders on March 10, 2009, the Judg1pent in
favor of petitioners was not yet rendered. Consequently, there was still, at
that time, a real dispute as to who the rightful set of officers were. Plainly,
Judge Tiongson-Tabora should not have issued the challenged Orders and
should have, instead, suspended the proceedings until Civil Case No. 6623-
R was resolved with finality.
To grant the instant petition and rule that the procedural infirmity has
subsequently been cured either by the Judgment or by Judge Tiongson-
Tabora's inhibition would mean condoning the continuation of the criminal
proceedings despite, at that time, the existence of a prejudicial question.
Such condonation would create a precedent that renders inutile the doctrine
on prejudicial question, such that the court trying the criminal case will be
permitted to proceed with the trial in the aberrant assumption that the
resolution of the prior instituted civil case would benefit the private
complainant in the criminal proceedings. To reiterate, there was no certainty
yet on how the RTC, Branch 59 would rule; thus, no assumption on Civil
Case No. 6623-R's resolution can be made when the challenged Orders
were issued. Indeed, had the RTC, Branch 59 not given credence to
petitioners' arguments, it would have led to an awkward situation wherein
much time and effort is wasted by the RTC, Branch 7 in trying criminal
cases it should not have entertained.
The foregoing notwithstanding, it should be made clear that the nullification
of the March 10, 2009 Orders does not, under the premises.1âwphi1 entail
the dismissal of the instituted criminal cases, but would merely result in the
suspension of the proceedings in view of the prejudicial question. However,
given the resolution of the prejudicial question and Judge Tiongson-Tabora's
inhibition, Criminal Case Nos. 29175-R and 29176-R may already proceed,
and ought to be re-raffled to re-determine the existence of probable cause
for the issuance of warrants of arrest against respondents.
WHEREFORE, premises considered, the petition is hereby DENIED for
lack of merit. The Court of Appeals' August 30, 2012 Decision and July 15,
2013 Resolution in CA-G.R. SP No. 108617 are hereby AFFIRMED.
Criminal Case Nos. 29175-R and 29176-R are hereby REMANDED to the
Executive Judge of the Regional Trial Court of Baguio City to be re-raffled
to one of its branches other than Branch 7.
SO ORDERED.