G.R. No.

133289 December 23, 1999

LICERIO A. ANTIPORDA, JR., ELITERIO RUBIACO, VICTOR GASCON and CAESAR TALIA petitioners,
vs.
HON. FRANCIS E. GARCHITORENA, HON. EDILBERTO G. SANDOVAL, HON. CATALINO CASTAÑEDA, JR. in their capacity as
Presiding Justice and Associate Justices of the Sandiganbayan, respondents.

FACTS:

This is a Petition for Certiorari and Prohibition with Preliminary Injunction and/or Temporary Restraining Order to restrain the
respondent Justices of the First Division of the Sandiganbayan from further proceeding with Crim. Case No. 24339 and from
enforcing the warrants for the arrest of the accused named therein (herein petitioners) or to maintain the status quo until further
orders from this Court.

The antecedent facts of the case are as follows:

Accused Licerio A. Antiporda, Jr., Eliterio Rubiaco, Victor Gascon, and Caesar Talla were charged with the crime of kidnapping
one Elmer Ramos in an Information dated September 18, 1997. It was filed with the First Division of the Sandiganbayan comprised
of the Honorable Francis E. Garchitorena, Edilberto E. Sandoval, and Catalino Castañeda, Jr. The Information reads as follows:

That on or about September 1, 1995, in the Municipality of Sanchez Mira, Province of Cagayan and within the
jurisdiction of this Honorable Court, the said accused Eliterio Rubiaco, Caesar Talla, Vicente Gascon and Licerio
Antiporda, Jr., armed with guns, conspiring together and helping one another, by means of force, violence and
intimidation and without legal grounds or any authority of law, did then and there willfully, unlawfully and feloniously
kidnap and carry away one Elmer Ramos from his residence in Marzan, Sanchez Mira, Cagayan against his will with
the use of a Maroon Tamaraw FX motor vehicle.

CONTRARY TO LAW. 1

On November 10, 1997, the Court issued an order giving the prosecution represented by Prosecutor Evelyn T. Lucero Agcaoili thirty (30)
days within which to submit the amendment to the Information. The said order is quoted in full as follows:

ORDER

This morning, the prosecution represented by Prosecutor Evelyn T. Lucero Agcaoili appeared in response to this Court's
Order of clarification on the propriety of proceeding with the Information as it stands.

On her own, Prosecutor Agcaoili informed the Court that were inadequacies in the allegations in the
Information for which reason she would beg leave to amend the same. The Court for its part expressed anxiety
as to the Court's jurisdiction over the case considering that it was not clear whether or not the subject matter
of the accusation was office related.

For this purpose, Prosecutor Agcaoili is given thirty (30) days within which to submit the amendment
embodying whatever changes she believes are appropriate or necessary in order for the Information to
effectively describe the offense herein charged. Within the same period, Prosecutor Agcaoili shall submit an
expansion of the recommendation to file the instant Information against the accused before this Court indicating thereon
the office related character of the accusation herein so that the Court might effectively exercise its jurisdiction over the
same.

SO ORDERED. 2

The prosecution on even date complied with the said order and filed an Amended Information, which was admitted by the
Sandiganbayan in a resolution dated November 24, 1997. 3 The Amended Information thus reads:

That on or about September 10, 1997, at Sanchez Mira, Cagayan and within the jurisdiction of this Honorable Court,
the accused Licerio Antiporda, Jr., being the Municipal Mayor of Buguey, Cagayan in the exercise of his official
duties as such and taking advantage of his position, ordered, confederated and conspired with Juan
Gallardo, Barangay Captain of San Lorenzo, Buguey, Cagayan (now deceased) and accused Eliterio
Rubiaco, barangay councilman of San Lorenzo, Buguey, Cagayan, Vicente Gascon and Caesar Talla with the use of
firearms, force, violence and intimidation, did then and there willfully, unlawfully and feloniously kidnap and abduct the
victim Elmer Ramos without any authority of law from his residence at Marzan, Sanchez Mira, Cagayan against his will,
 with the use of a Maroon Tamaraw FX motor vehicle and subsequently bring and detain him illegally at the
residence of accused Mayor Licerio Antiporda, Jr. for more than five (5) days.

CONTRARY TO LAW. 4

Accused then filed an Urgent Omnibus Motion dated November 16, 1997 praying that a reinvestigation of the case be conducted and the
issuance of warrants of arrest be deferred. 5

An order dated November 26, 1997 was penned by Prosecutor Evelyn T. Lucero-Agcaoili recommending the denial of the accused's
Urgent Omnibus Motion 6 was approved by Ombudsman Aniano A. Desierto on January 9,
1998. 7

The accused thereafter filed on March 5, 1998 a Motion for New Preliminary Investigation and to Hold in Abeyance and/or Recall Warrant
of Arrest Issued. 8 The same was denied in an order given in open court dated March 12, 1998 "on the ground that there was nothing in
the Amended Information that was added to the original Information so that the accused could not claim a right to be heard separately in
an investigation in the Amended Information. Additionally, the Court ruled that "since none of the accused have submitted themselves to
the jurisdiction of the Court, the accused are not in a position to be heard on this matter at this time" (p. 245, Record)." 9

Subsequently, the accused filed on March 24, 1998 a Motion to Quash the Amended Information for lack of jurisdiction over the
offense charged. 10

On March 27, 1998, the Sandiganbayan issued an Order, to wit:

The Motion to Quash filed in behalf of the accused by Atty. Orlando B. Consigna is ignored, it appearing that
the accused have continually refused or otherwise failed to submit themselves to the jurisdiction of this Court.
At all events there is an Amended Information here which makes an adequate description of the position of the accused
thus vesting this Court with the office related character of the offense of the accused.

SO ORDERED. 11

A motion for reconsideration was filed on April 3, 1998 by the accused wherein it was alleged that the filing of the Motion to
Quash and the appearance of their counsel during the scheduled hearing thereof amounted to their voluntary appearance and
invested the court with jurisdiction over their persons. 12

13
The Sandiganbayan denied the motion for reconsideration filed by the accused in its resolution dated April 24, 1998.

Hence, this petition filed by Licerio A. Antiporda, Jr., Eliterio Rubiaco, Victor Gascon, and Caesar Talla.

ISSUES:

a) CAN THE SANDIGANBAYAN, WHICH HAS NO JURISDICTION OVER THE OFFENSE CHARGED IN THE ORIGINAL
INFORMATION, SUBSEQUENTLY ACQUIRE SUCH JURISDICTION BY THE SIMPLE EXPEDIENT OF AMENDING THE
INFORMATION TO SUPPLY, FOR THE FIRST TIME, JURISDICTIONAL FACTS NOT PREVIOUSLY AVERRED IN THE ORIGINAL
INFORMATION? and

b) COROLLARILY, CAN THE AMENDED INFORMATION BE ALLOWED WITHOUT CONDUCTING ANEW A PRELIMINARY
INVESTIGATION FOR THE GRAVER OFFENSE CHARGED THEREIN?

RULING:

The petition is devoid of merit.

Jurisdiction is the power with which courts are invested for administering justice, that is, for hearing and deciding cases. In order for the
court to have authority to dispose of the case on the merits, it must acquire jurisdiction over the subject matter and the parties.

Sec. 4, paragraph (a) of P.D. No. 1606, as amended by P.D. No. 1861 provides for the jurisdiction of the Sandiganbayan:

Sec. 4. Jurisdiction. — The Sandiganbayan shall exercise:

(a) Exclusive original jurisdiction in all cases involving:

xxx xxx xxx

 (2) Other offenses or felonies committed by public officers and employees in relation to their office, including those
employed in government-owned or controlled corporations, whether simple or complexed with other crimes, where the
penalty prescribed by law is higher than prision correccionalor imprisonment for six (6) years, or a fine of
P6,000.00. Provided, however, That offenses or felonies mentioned in this paragraph where the penalty prescribed by
law does not exceed prision correccional or imprisonment for six (6) years or a fine of P6,000.00 shall be tried by the
proper Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court and Municipal Circuit Trial Court.

The Sandiganbayan exercises not only civil but also criminal jurisdiction. Criminal jurisdiction, as defined in the case of People
vs. Mariano, is necessarily the authority to hear and try a particular offense and impose the punishment for it.

The case of Arula vs. Espino enumerates the requirements wherein a court acquires jurisdiction to try a criminal case, to wit:

To paraphrase: beyond the pale of disagreement is the legal tenet that a court acquires jurisdiction to try a criminal
case only when the following requisites concur:

(1) the offense is one which the court is by law authorized to take cognizance of,

(2) the offense must have been committed within its territorial jurisdiction, and

(3) the person charged with the offense must have been brought in to its forum for trial, forcibly by warrant of
arrest or upon his voluntary submission to the court.

The petitioners argue that the Sandiganbayan had no jurisdiction to take cognizance of the case because the original information did not
allege that one of the petitioners, Licerio A. Antiporda, Jr., took advantage of his position as mayor of Buguey, Cagayan to order the
kidnapping of Elmer Ramos. They likewise assert that lacking jurisdiction a court can not order the amendment of the information. In the
same breath, they contend however that the Sandiganbayan had jurisdiction over the persons of the accused.

They question the assumption of jurisdiction by the Sandiganbayan over their case yet they insist that said court acquired jurisdiction over
their motion to quash. The petitioner can not have their cake and eat it too.

In the aforementioned case of Arula vs. Espino 17 it was quite clear that all three requisites, i.e., jurisdiction over the offense, territory and
person, must concur before a court can acquire jurisdiction to try a case.

It is undisputed that the Sandiganbayan had territorial jurisdiction over the case.

And we are in accord with the petitioners when they contended that when they filed a motion to quash it was tantamount to a
voluntary submission to the Court's authority. They cite the case of Layosa vs. Rodriguez in support of their contention. For
therein, it was ruled that the voluntary appearance of the accused at the pre-suspension hearing amounted to his submission
to the court's jurisdiction even if no warrant of arrest has yet been issued.

To counter this contention of the petitioners the prosecution adverted to case of de los Santos-Reyes vs.Montesa, Jr. 19 which was
decided some 28 years after the Layosa case. In this more recent case, it was held that:

. . . the accused . . . have no right to invoke the processes of the court since they have not been placed in the custody
of the law or otherwise deprived of their liberty by reason or as a consequence of the filling of the information. For the
same reason, the court had no authority to act on the petition.

We find that the case of Layosa and de los Santos-Reyes are not inconsistent with each other since both these cases discussed the rules
on when a court acquires jurisdiction over the persons of the accused, i.e., either through the enforcement of warrants of arrest or their
voluntary submission to the court.

The only difference, we find, is that the de los Santos-Reyes case harped mainly on the warrant of arrest angle while the Layosa case
dealt more on the issue of voluntary submission ruling, that the appearance at the hearing through a lawyer was a submission to the
court's jurisdiction.

Having discussed the third requirement we now come to the question of whether or not the Sandiganbayan had jurisdiction
over the offense charged.

We answer in the negative. The original Information filed with the Sandiganbayan did not mention that the offense committed
by the accused is office-related. It was only after the same was filed that the prosecution belatedly remembered that a
jurisdictional fact was omitted therein.
However, we hold that the petitioners are estopped from assailing the jurisdiction of the Sandiganbayan for in the supplemental
arguments to motion for reconsideration and/or reinvestigation dated June 10, 1997 filed with the same court, it was they who
"challenged the jurisdiction of the Regional Trial Court over the case and clearly stated in their Motion for Reconsideration that
the said crime is work connected, which is hereunder quoted, as follows:

Respondents (petitioners herein) have thoroughly scanned the entire records of the instant case and no where is there
any evidence to show that the Honorable Prosecution Office of the Province of Cagayan have been authorized by the
Office of the Honorable Ombudsman to conduct the Preliminary Investigation much less had the former office been
authorized to file the corresponding Information as the said case, if evidence warrants, fall exclusively with the
jurisdiction of the Honorable Sandiganbayan notwithstanding the presence of other public officers whose salary range
is below 27 and notwithstanding the presence of persons who are not public officers.

It is a well-settled rule that a party cannot invoke the jurisdiction of a court to secure affirmative relief against his opponent,
and after obtaining or failing to obtain such relief, repudiate or question that same jurisdiction.

We therefore hold that the Sandiganbayan has jurisdiction over the case because of estoppel and it was thus vested with the
authority to order the amendment of the Information.

Rule 110, Section 14 of the Rules of Court provides thus:

Sec. 14. Amendment. — The information or complaint may be amended, in substance or form, without leave of court,
at any time before the accused pleads; and thereafter and during the trial as to all matters of form, by leave and at the
discretion of the court, when the same can be done without prejudice to the rights of the accused.

xxx xxx xxx

Petitioner prayed that a reinvestigation be made in view of the Amended Information.

We hold that the reinvestigation is not necessary anymore. A reinvestigation is proper only if the accused's substantial rights would
be impaired. In the case at bar, we do not find that their rights would be unduly prejudiced if the Amended Information is filed
without a reinvestigation taking place. The amendments made to the Information merely describe the public positions held by
the accused/petitioners and stated where the victim was brought when he was kidnapped.

It must here be stressed that a preliminary investigation is essentially inquisitorial, and it is often the only means of discovering
the persons who may be reasonably charged with a crime, to enable the prosecutor to prepare his complaint or information. It
is not a trial of the case on the merits and has no purpose except that of determining whether a crime has been committed and
whether there is probable cause to believe that the accused is guilty thereof, and it does not place the persons accused in
jeopardy. It is not the occasion for the full and exhaustive display of the parties' evidence; it is for the presentation of such
evidence only as may engender a well-grounded belief that an offense has been committed and that the accused is probably
guilty thereof. 22

The purpose of a preliminary investigation has been achieved already and we see no cogent nor compelling reason why a reinvestigation
should still be conducted.

As an aside, an offense is considered committed in relation to office when it is intimately connected with their respective offices
and was perpetrated while they were in the performance, though improper or irregular, of their official functions. 23

In the case of Cunanan vs. Arceo, it was held that:

. . . the absence in the information filed on 5 April 1991 before Branch 46 of the RTC of San Fernando, Pampanga, of
an allegation that petitioner had committed the offense charged in relation to his office is immaterial and easily
remedied. Respondent RTC judges had forwarded petitioner's case to the Sandiganbayan, and the complete records
transmitted thereto in accordance with the directions of this Court set out in the Asuncion case: ". . . As if it was originally
filed with [the Sandiganbayan]." That Information may be amended at any time before arraignment before
theSandiganbayan, and indeed, by leave of court at any time before judgment is rendered by
theSandiganbayan considering that such an amendment would not affect the juridical nature of the offense charged
(i.e. murder), the qualifying circumstances alleged in the information, or the defenses that petitioner may assert before
the Sandiganbayan. In other words, the amendment may be made before the Sandiganbayan without surprising the
petitioner or prejudicing his substantive rights. 24 (Emphasis Supplied)

WHEREFORE, IN VIEW OF THE FOREGOING, the petition is hereby DISMISSED.

G.R. No. L-14313 July 26, 1960

DIONISIO ESGUERRA, petitioner, vs. THE PEOPLE OF THE PHILIPPINES, respondent.

FACTS:

Appellant Dionisio Esguerra found by the Court of Appeals guilty of estafa, defined and penalized under Article 315, paragraph
3, 2 (a) of the Revised Penal Code, and sentenced to the penalty therein provided, has taken appeal by certiorari upon the
following assignment of errors:

1. The Court of Appeals erred in convicting the accused of estafa under Art. 315, paragraph 3, 2(a), that is, estafa
through false pretenses, when the trial court, the fiscal and the private prosecutor assured the accused at the trial that
he was being prosecuted for estafa under Art. 315, 1 (b), that is misappropriation of money received in trust or on
commission or for administration, although in fact the information did not charge estafa under any of those two
provisions, so that the motion to quash on the ground that the information did not state an offense should have been
sustained.

2. The Court of Appeals erred in holding that the accused offered to compromise the case, when the evidence to establish the
alleged offer of compromise was rejected by the trial court.

3. The Court of Appeals erred in not holding that the best evidence of the sum of P2,000 allegedly given to the accused on
March 11, 1952 was the receipt being prepared therefor when the accused left to catch a passing bus if in fact such sum was
received by defendant.

4. The Court of Appeals erred in not holding that on the undisputed documentary evidence of record, the obligation of the
accused, if any, was civil and not criminal.

5. The Court of Appeals erred in sentencing the accused to 2 months and 1 day of arresto mayor to 1 year and 6 months of
prison correccional and affirming the trial court's decision in all other respects, with cost, and in not acquitting the accused.

The information filed in the trial court reads, thus:

INFORMATION

The undersigned fiscal accused Dionisio Esguerra of the crime of "Estafa" defined and punished under Art. 315, 3rd paragraph
(b), committed as follows:

That on or about and during the period from January 12, 1952 to March 26, 1952, in the barrio of Siain, municipality of Atimonan,
province of Quezon, Philippines, and within the jurisdiction of this Honorable Court the said accused upon representations made
with Yu Yek Huy & Co., a business firm duly organized and existing under and by virtue of the laws of the Philippines,
thru the Manager of said Company, Yu Yek Bio, that the said accused had copras ready for delivery to it, took and
received from said Yu Yek Bio the sum of FOUR THOUSAND FOUR HUNDRED PESOS (P 4,400.00) under the express
obligation on part of the said accused to deliver to the said company the equivalent worth of copras at its bodega at
Siain, Atimonan, Quezon as follows: P2,400.00 worth of copras on or before January 31, 1952, and P2,000.00 worth of copras
on or before fifteen days from March 11, 1952, or the same sum of money on the respective dates aforestated but the said
accused once in possession of the said sum of money and far from complying with aforesaid obligation, despite
repeated demands made upon him to do so, did then and there wilfully, unlawfully and feloniously with intent to defraud
the aforesaid company, misapply, misappropriate and convert the said amount to his own personal use and benefit to
the damage and prejudice of the Yu Yek Huy & Co., in the aforestated amount of P4,400.00 Philippine Currency.

It is to be noted that the first paragraph for the Information specifically refers to the 3rd paragraph (b) of Article 315 of the Revised
Penal Code as the provision under which the accused was being prosecuted. This particular paragraph refers to estafa
committed in a gambling game. On the other hand, that part of the information referring to representations that the accused
had copras ready for delivery, would seem to imply that the estafa charged is that defined and penalized under paragraph 2 (a)
— by falsely pretending to possess ... properly, business, etc. The succeeding portion, however, of the same return the money
on the dates agreed, charges the accused of misappropriation and conversion under paragraph (b) of the same Article 315.

In view of this ambiguity in the information, a motion to quash was filed by the accused. (The motion to quash is not before us, but
from the statement of the Court of Appeals — "whether the allegations in the information constitute an offense or multiple offense, will be
taken up in subsequent legal incursions" — it would seem that the ground relied upon is that the allegations in the information
charge no offense, or if they do, they charge multiple offenses.) At the hearing of the motion, the fiscal and the private
prosecutor both manifested that there was clerical error in the first paragraph of the information and stated and assured that
the accused was being charged under paragraph 1 (b) of Article 315.The trial court admitted the correction and the accused
went to trial with that understanding and assurance. After trial in due time, the lower court found the accused guilty as thus
charged under Article 315, paragraph 1 (b) and sentenced him accordingly. On appeal to the Court of Appeals, where the accused
questioned the correctness of the judgment of conviction under the information as corrected and on the facts proven, the appellate court
modified the decision of the trial court and declared:

xxx xxx xxx

The evidence for the prosecution fully established the fact that the two sums of P2,400.00 and P2,000.00 were given to the
accused on the latter's pretense that he had copra in his bodega which he was drying. Yu Yek Bio testifying, said:

A. — He told me that he had many copras in his bodega and

that he will deliver to me the copras corresponding to
the amount of P2,000.00 together with the 10,000 kilos,
which he promised to deliver at first. (t.s.n., p. 5).

But the said appellant admittedly had no such copra then. Appellant, however, insisted that he had already delivered the copra
corresponding to the first payment of P2,400.00 and to prove this delivery, he presented in evidence Exhibits 1 to 1-K, the
purchase vouchers showing the receipt of copra by the complainant company on different dates from Felix Mendoza, Diego
Sulit, Diosdado Engco (2 vouchers), Jose Cal, Juanito Esguerra, Juan Gonzales (2 vouchers) and Tomas Luna. They were all
stamped paid. A great deal of misgiving, however, accompanies this proof; it is unbelievable.

xxx xxx xxx

Anent the second amount of P2,000.00, delivered on March 11, 1952, the appellant alleged that he did not receive the same,
as he was in his place at Malasak, Atimonan, conducting a liquidation with a copra dealer Amado Villamiel in the morning and
in the afternoon of the said day, he was delivering copra to Yang, the manager of Gua Chi Gan. But the evidence of the
prosecution belies these allegations in an immeasurable manner.

xxx xxx xxx

. . . We have no reason doubt the veracity and truthfulness of these State witnesses who testified in a direct, positive and
straightforward manner.

While we agree with counsel that the appellant cannot be held guilty of estafa under paragraph 1-b, Art. 315 of the Revised
Penal Code, we are nevertheless of the opinion, and so hold, that appellant is responsible for a violation of paragraph 3 (2-a) of
the same article, which penalizes any person who shall defraud another (2). By means of any of the following pretenses or
fraudulent acts executed prior to or simultaneously with the commission of the fraud; (a) by using fictitious name or falsely
pretending to possess power, influence, qualifications, property, credit, agency, business, or imaginary transactions or by means
of other similar deceits" (emphasis ours). The information describes and alleges this means of committing "swindling" and the
evidence adduced, amply substantiates said allegations.

Consequently, the Court of Appeals held appellant guilty of estafa under paragraph 3 (2-a) of Article 315. It is from this decision
that the accused has taken this present appealed by certiorari.

ISSUE:

The issue here is whether after denial of a motion to quash, precisely on the vagueness of the information, upon assurance by
the fiscal and the private prosecutor and accepted by the court that the offense for which the accused was being prosecuted is
that of misappropriation defined in paragraph 1 (b) of Articles 315, involving unfaithfulness or abuse of confidence and under which
the accused entered trial, the latter could, on appeal, be convicted of an entirely different offense with different elements, that of
false pretenses of possessing property or business made prior to or simultaneously with the commission of the fraud.

The appellant submits that he could not, especially when the latter offense is not adequately alleged in the information.

RULING:

We incline to agree with the appellant.

It is undisputed that the information contains no allegation of misrepresentation, bad faith or false pretense, essential element in
the crime of which appellant was found guilty by the Court of Appeals. This is so, evidently, because, as already stated, the fiscal
and the private prosecutor avowedly were prosecuting the accused for the crime of misappropriation and conversion committed with
unfaithfulness and abuse of confidence for which the appellant went to trial and was convicted by the lower court.
It is true the information states that "the accused, upon representations (not misrepresentations) that the accused had copras
ready for delivery to it, took and received" the sum of P4,400.00. Nowhere does it appear in the information that these
"representations" were false or fraudulent, or that the accused had no such copra at the time he allegedly made such
"representations".

The falsity or fraudulentness of the pretense or representation or act being the very constitutive element of the offense,
allegation to that effect, either in the words of the law or in any other language of similar import, must be made in the information
if the right of the accused to be informed of the nature and cause of the accusation against him is to be preserved.

In this case, for instance, since the representation wherefor the money was delivered is not being charged as false, and since,
if not false, the receipt of the money on such representation does not constitute an offense, the motion to quash the information
on the ground that it did not charge an offense or the allegations therein did not constitute an offense, should have been
granted. Instead, the fiscal and the private prosecutor assured the court, and both the court and the accused depended on the
assurance that the offense charged is not that of misrepresentation or false pretense, but that of misappropriation and
conversion, of unfaithfulness and abuse of confidence.

To convict him now of the very offense which he correctly assailed was not adequately alleged in the information and with
which the prosecution expressly stated they were not charging the accused, could result not only in violating appellant's
constitutional right to be informed of the nature and cause of the accusation against him, but in actually misleading him.

Pertinent on this point is Section 4 of Rule 116 of the Rules of Court which provides:

SEC. 4. Judgment in case of variance between allegation and proof. — When there is variance between the offense charged in
the complaint or information, and that proved or established by the evidence, and the offense as charged is included in or
necessarily includes the offense proved, the defendant shall be convicted of the offense proved included in that which is charged,
or of the offense charged included in that which is proved.

Stated differently, an accused may be convicted of an offense proved provided it is included in the charge, or of an offense
charged which is included in that proved. Still stated differently, an accused can be convicted offense only when it is both
charged and proved. If it is not charged, the accused cannot be convicted thereof. In other words, variance between the allegation
and proof cannot justify conviction for either the offense charged or the offense proved unless either is included in the other.

On the merits, there is reasons to believe that the responsibility of herein appellant is only civil in nature. Exhibit A, upon the
strength of which the prosecution mainly relies, reads:

RECEIVED from Messrs. YU YEK HUY & CO., the sum of Two Thousand four hundred Pesos (P2,400.00) only representing
advance payment of 10,000 kilos of copra which I sold them and shall be delivered in their bodega at Siain, P.I., on or before
Jan. 31, 1952.

Jan. 12, 1952

(Sgd.) D. ESGUERRA
Signature of Seller

The language of this receipt, together with the finding of the Court of Appeals that "Factually, the appellant used to supply copra not only
to complainant, but also to other copra exporters in Siain", clearly indicate, in our opinion, that the transaction was that of sale of copra
for future delivery. Obviously, an advance payment is subject to the disposal of the vendor. If the transaction fails, the liability
arising therefrom is of a civil and not of a criminal nature.2

In view of the foregoing, the decision appealed from is reversed; the accused is acquitted, with cost de oficio, and the bond given for his
provisional liberty cancelled. So ordered.
G.R. No. 179962 June 11, 2014

DR. JOEL C. MENDEZ, Petitioner, vs. PEOPLE OF THE PHILIPPINES and COURT OF TAX APPEALS, Respondents.

DECISION

BRION, J.:

Before the Court is a petition for certiorari and prohibition under Rule 65 1 filed by Dr. Joel C. Mendez (petitioner) assailing the June 12,
2007 and August 13, 2007 resolutions2 of the Court of Tax Appeals (CTA)3 The assailed resolutions granted the prosecution's Motion to
Amend Information with Leave of Court and denied the petitioner's motion for reconsideration.

ANTECEDENTS

The Bureau of Internal Revenue (BIR) filed a complaint-affidavit4 with the Department of Justice against the petitioner. The BIR alleged
that the petitioner had been operating as a single proprietor doing business and/or exercising his profession for taxable years 2001 to
2003.

Based on these operations, the BIR alleged that petitioner failed to file his income tax returns for taxable years 2001 to 2003 and,
consequently evaded his obligation to pay the correct amount of taxes due the government.6

In his defense, the petitioner admitted that he has been operating as a single proprietor under these trade names in Quezon City, Makati,
Dagupan and San Fernando. However, he countered that he did not file his income tax returns in these places because his business
establishments were registered only in 2003 at the earliest; thus, these business establishments were not yet in existence at the time of
his alleged failure to file his income tax return. 7

After a preliminary investigation, State Prosecutor Juan Pedro Navera found probable cause against petitioner for non-filing of income
tax returns for taxable years 2001 and 2002 and for failure to supply correct and accurate information as to his true income for taxable
year 2003, in violation of the National Internal Revenue Code.8Accordingly an Information9 was filed with the CTA charging the petitioner
with violation of Section 255 of Republic Act No. 8424 (Tax Reform Act of 1997). The Information reads:

That on or about the 15th day of April, 2002, at Quezon City, and within the jurisdiction of [the CTA] the above named accused, a duly
registered taxpayer, and sole proprietor of "Weigh Less Center" with principal office at No. 31 Roces Avenue, Quezon City, and with
several branches in Quezon City, Makati, San Fernando and Dagupan City, did then and there, wilfully, unlawfully and feloniously fail to
file his Income Tax Return (ITR) with the Bureau of Internal Revenue for the taxable year 2001, to the damage and prejudice of the
Government in the estimated amount of ₱1,089,439.08, exclusive of penalties, surcharges and interest.

CONTRARY TO LAW.10

The accused was arraigned11 and pleaded not guilty on March 5, 2007. 12 On May 4, 2007, the prosecution filed a "Motion to Amend
Information with Leave of Court."13 The amended information reads:

That on or about the 15th day of April, 2002, at Quezon City, and within the jurisdiction of [the CTA] the above named accused, doing
business under the name and style of "Weigh Less Center"/Mendez Medical Group", with several branches in Quezon City, Muntinlupa
City, Mandaluyong City and Makati City, did then and there, wilfully, unlawfully and feloniously fail to file his income tax return (ITR) with
the Bureau of Internal Revenue for income earned for the taxable year 2001, to the damage and prejudice of the Government in the
estimated amount of ₱1,089,439.08, exclusive of penalties, surcharges and interest (underscoring and boldfacing in the original). 14

The petitioner failed to file his comment to the motion within the required period; thus on June 12, 2007,the CTA First Division granted
the prosecution’s motion.15 The CTA ruled that the prosecution’s amendment is merely a formal one as it "merely states with additional
precision something already contained in the original information."16The petitioner failed to show that the defenses applicable under the
original information can no longer be used under the amended information since both the original and the amended information charges
the petitioner with the same offense (violation of Section 255). The CTA observed:

the change in the name of his business to include the phrase "Mendez Medical Group" does not alter the fact the [petitioner] is being
charged with failure to file his Income Tax Return... The change in the branches of his business, likewise did not relieve [the petitioner] of
his duty to file an ITR. In addition, the places where the accused conducts business does not affect the Court’s jurisdiction... nor ... change
the nature of the offense charged, as only one [ITR] is demanded of every taxpayer. We likewise see no substantial difference on the
information with the insertion of the phrase ‘for income earned’ for it merely stated the normal subject matter found in every income tax
return.

The petitioner filed the present petition after the CTA denied his motion for reconsideration. 17 THE PETITION
The petitioner claims in his petition that the prosecution’s amendment is a substantial amendment prohibited under Section 14, Rule 110
of the Revised Rules of Criminal Procedure. It is substantial in nature because its additional allegations alter the prosecution’s theory of
the case so as to cause surprise to him and affect the form of his defense. 18 Thus, he was not properly informed of the nature and cause
of the accusation against him.

Adopting the observation of a dissenting CTA justice, he claims that to change the allegation on the locations of his business from San
Fernando, Pampanga and Dagupan City to Muntinlupa and Mandaluyong cities would cause surprise to him on the form of defense he
would have to assume.

The petitioner adds that the change in the date of the commission of the crime from 2001 to 2002 would also alter his defense considering
that the difference in taxable years would mean requiring a different set of defense evidence. The same is true with the new allegation of
"Mendez Medical Group" since it deprived him of the right, during the preliminary investigation, to present evidence against the alleged
operation and or existence of this entity.19 In sum, the amendments sought change the subject of the offense and thus
substantial.20RESPONDENTS’ COMMENT

The respondents claim that the petitioner availed of the wrong remedy in questioning the CTA resolutions. Under Rule 9, Section 9 of the
Revised Rules of CTA, the remedy of appeal to the CTA en banc is the proper remedy, to be availed of within fifteen days from receipt of
the assailed resolution. The filing of the present petition was clearly a substitute for a lost appeal. Even assuming that certiorari is the
proper remedy, the CTA did not commit an error of jurisdiction or act with grave abuse of discretion. On the contrary, the assailed
resolutions were in accord with jurisprudence. The amended information could not have caused surprise to the petitioner since the
amendments do not change the nature and cause of accusation against him. The offense the petitioner probably committed and the acts
or omissions involved remain the same under the original and the amended information, i.e., his failure to file his ITR in 2002 for income
earned in 2001 from the operation of his businesses.21

Neither would the change in the date of the commission of the crime nor the inclusion of the phrase "Mendez Medical Group" cause
surprise to the petitioner since he was fully apprised of these facts during the preliminary investigation. Likewise, the original information
already alleged that the petitioner’s failure to file an ITR refers to "taxable year 2001."

Contrary to the petitioner’s contention, the preparation of the defense contemplated in the law does not strictly include the presentation
of evidence during the preliminary investigation because this stage is not the occasion for the full and exhaustive display of the parties’
evidence.

ISSUES:

1. Is the remedy of certiorari proper?

2. Whether the prosecution’s amendments made after the petitioner’s arraignment are substantial in nature and must perforce
be denied?

COURT’S RULING

We resolve to dismiss the petition.

Preliminary consideration

The petitioner correctly availed of the remedy of certiorari. Under Rule 65 of the Rules of Court, certiorari is available when there is no
appeal or any plain, speedy and adequate remedy in the ordinary course of law. After failing in his bid for the CTA to reconsider its
admission of the amended information, the only remedy left to the petitioner is to file a petition for certiorari with this Court.

Contrary to the prosecution’s argument, the remedy of appeal to the CTA en banc is not available to the petitioner. In determining the
appropriate remedy or remedies available, a party aggrieved by a court order, resolution or decision must first correctly identify the nature
of the order, resolution or decision he intends to assail. What Section 9 Rule 922 of the Rules of the CTA provides is that appeal to the
CTA en banc may be taken from a decision or resolution of the CTA division in criminal cases by filing a petition for review under Rule 43
of the Rules of Court. Under Section 1, Rule 43, the remedy of a petition for review is available only against a judgments or a final order.

A judgment or order is considered final if it disposes of the action or proceeding completely, or terminates a particular stage of the same
action; in such case, the remedy available to an aggrieved party is appeal. If the order or resolution, however, merely resolves incidental
matters and leaves something more to be done to resolve the merits of the case, as in the present case, the order is interlocutory and
the aggrieved party’s only remedy after failing to obtain a reconsideration of the ruling is a petition for certiorari under Rule 65.

Nonetheless, while we rule that the petitioner availed of the correct remedy, we resolve to dismiss the petition for failure to establish that
the CTA abused its discretion, much less gravely abused its discretion.
Amendment of information

Section 14, Rule 110 of the Revised Rules of Criminal Procedure governs the matter of amending the information:

Amendment or substitution. — A complaint or information may be amended, in form or in substance, without leave of court, at any time
before the accused enters his plea. After the plea and during the trial, a formal amendment may only be made with leave of court and
when it can be done without causing prejudice to the rights of the accused.

However, any amendment before plea, which downgrades the nature of the offense charged in or excludes any accused from the
complaint or information, can be made only upon motion by the prosecutor, with notice to the offended party and with leave of court. The
court shall state its reasons in resolving the motion and copies of its order shall be furnished all parties, especially the offended party.

There is no precise definition of what constitutes a substantial amendment. According to jurisprudence, substantial matters in the
complaint or information consist of the recital of facts constituting the offense charged and determinative of the jurisdiction of the
court.23 Under Section 14, however, the prosecution is given the right to amend the information, regardless of the nature of the
amendment, so long as the amendment is sought before the accused enters his plea, subject to the qualification under the second
paragraph of Section 14.

Once the accused is arraigned and enters his plea, however, Section 14 prohibits the prosecution from seeking a substantial amendment,
particularly mentioning those that may prejudice the rights of the accused. 24 One of these rights is the constitutional right of the accused
to be informed of the nature and cause of accusation against him, a right which is given life during the arraignment of the accused of the
charge of against him. The theory in law is that since the accused officially begins to prepare his defense against the accusation on the
basis of the recitals in the information read to him during arraignment, then the prosecution must establish its case on the basis of the
same information.

To illustrate these points, in Almeda v. Judge Villaluz,25 the prosecution wanted to additionally alleged recidivism and habitual delinquency
in the original information. In allowing the amendment, the Court observed that the amendment sought relate only to the range of the
penalty that the court might impose in the event of conviction. Since they do not have the effect of charging an offense different from the
one charged (qualified theft of a motor vehicle) in the information, nor do they tend to correct any defect in the trial court’s jurisdiction over
the subject-matter, the amendment sought is merely formal.

In Teehankee, Jr. v. Madayag,26 the prosecution sought during trial to amend the information from frustrated to consummated murder
since the victim died after the information for frustrated murder was filed. The accused refused to be arraigned under the amended
information without the conduct of a new preliminary investigation. In sustaining the admission of the amended information, the Court
reasoned that the additional allegation, that is, the supervening fact of the death of the victim was merely supplied to aid the trial court in
determining the proper penalty for the crime. Again, there is no change in the nature of offense charged; nor is there a change in the
prosecution’s theory that the accused committed a felonious act with intent to kill the victim; nor does the amendment affect whatever
defense the accused originally may have.

In short, amendments that do not charge another offense different from that charged in the original one; 27 or do not alter the prosecution's
theory of the case so as to cause surprise to the accused and affect the form of defense he has or will assume are considered merely as
formal amendments.

In the present case, the amendments sought by the prosecution pertains to (i) the alleged change in the date in the commission of the
crime from 2001 to 2002; (ii) the addition of the phrase "doing business under the name and style of Mendez Medical Group;" (iii) the
change and/or addition of the branches of petitioner’s operation; and (iv) the addition of the phrase "for income earned." We cannot see
how these amendments would adversely affect any substantial right of the petitioner as accused.

The "change" in the date from 2001 to 2002 and the addition of the phrase "for income earned"

At the outset we note that the actual year of the commission of the offense has escaped both the petitioner and prosecution. In its Motion
to Amend the Information, the prosecution mistakenly stated that the information it originally filed alleged the commission of the offense
as "on or about the 15th day of April, 2001" – even if the record is clear that that the actual year of commission alleged is 2002. The
petitioner makes a similar erroneous allegation in its petition before the Court.

Interestingly, in its August 13, 2007 resolution, denying the petitioner’s motion for reconsideration, the CTA implicitly ruled that there was
in fact no amendment of the date in the information by correctly citing what the original information alleges. This, notwithstanding, the
petitioner still baselessly belaboured the point in its present petition by citing the erroneous content of the prosecution’s motion to amend
instead of the original information itself.28 This kind of legal advocacy obviously added nothing but confusion to what is otherwise a simple
case and another docket to the High Court’s overwhelming caseload.

That the actual date of the commission of the offense pertains to the year 2002 is only consistent with the allegation in the information on
the taxable year it covers, i.e., for the taxable year 2001. Since the information alleges that petitioner failed to file his income tax return
for the taxable year 2001, then the offense could only possibly be committed when petitioner failed to file his income tax return before the
due date of filing, which is on April of the succeeding year, 2002. Accordingly, the addition of the phrase "for the income earned" before
the phrase "for the taxable year 2001" cannot but be a mere formal amendment since the added phrase merely states with additional
precision something that is already contained in the original information, i.e., the income tax return is required to be filed precisely for the
income earned for the preceding taxable year.

The nature of the remaining two items of amendment would be better understood, not only in the context of the nature of the offense
charged under the amended information, but likewise in the context of the legal status of the "Mendez Medical Group."

The addition of the phrase "doing business

under the name and style of Mendez
Medical Group and the change and/or
addition of the branches of petitioner’s
operation

Under the National Internal Revenue Code (NIRC), a resident citizen who is engaged in the practice of a profession within the Philippines
is obligated to file in duplicate an income tax return on his income from all sources, regardless of the amount of his gross income.29 In
complying with this obligation, this type of taxpayer ought to keep only two basic things in mind: first is where to file the return; and second
is when to file the return. Under Section 51 B of the NIRC, the return should "be filed with an authorized agent bank, Revenue District
Officer, Collection Agent or duly authorized Treasurer of the city or municipality in which such person has his legal residence or principal
place of business in the Philippines."

On the other hand, under Section 51 C of the NIRC, the same taxpayer is required to file his income tax return on or before the fifteenth
(15th) day of April of each year covering income for the preceding taxable year.30 Failure to comply with this requirement would result in
a violation of Section 255 of the NIRC which reads:

Section 255. Failure to File Return, Supply Correct and Accurate Information, Pay Tax Withhold and Remit Tax and Refund Excess Taxes
Withheld on Compensation. - Any person required under this Code or by rules and regulations promulgated thereunder to pay any tax,
make a return, keep any record, or supply any correct and accurate information, who wilfully fails to pay such tax, make such return, keep
such record, or supply correct and accurate information, or withhold or remit taxes withheld, or refund excess taxes withheld on
compensation, at the time or times required by law or rules and regulations shall, in addition to other penalties provided by law, upon
conviction thereof, be punished by a fine of not less than Ten thousand pesos (₱10,000) and suffer imprisonment of not less than one (1)
year but not more than ten (10) years. [emphasis supplied]

Since the petitioner operates as a sole proprietor from taxable years 2001 to 2003, the petitioner should have filed a consolidated return
in his principal place of business, regardless of the number and location of his other branches. Consequently, we cannot but agree with
the CTA that the change and/or addition of the branches of the petitioner’s operation in the information does not constitute substantial
amendment because it does not change the prosecution’s theory that the petitioner failed to file his income tax return.

Still, the petitioner cites the case of Matalam v. Sandiganbayan, Second Division 31 in claiming that the deletion of San Fernando
(Pampanga City) and Dagupan City deprives him of the defenses he raised in his counter-affidavit.

In Matalam, the prosecution charged the accused with violation of RA No. 3019 for "[c]ausing undue injury to several [government
employees] thru evident bad faith xxx by illegally and unjustifiably refusing to pay [their] monetary claims xxx in the nature of unpaid
salaries during the period when they have been illegally terminated, including salary differentials and other benefits." After a
reinvestigation, the prosecution sought to amend the information to allege that the accused –

[c]ause[d] undue injury by illegally dismissing from the service [several government] employees, xxx to their damage and prejudice
amounting to ₱1,606,788.50 by way of unpaid salaries during the period when they have been illegally terminated including salary
differentials and other benefits.32

The accused moved to dismiss the amended information for charging an entirely new cause of action and asked for preliminary
investigation on this new charge of illegal dismissal.

The Sandiganbayan observed that (i) there is a clear change in the cause of action (from refusal to pay to illegal dismissal); and (ii) the
main defense of all the accused in the original information – the lack of a corresponding appropriation for the payment of the monetary
claims of the complaining witnesses – would no longer be available under the amendment. After finding, however, that the complainants’
demand for monetary claim actually arose from their alleged illegal dismissal, the Sandiganbayan allowed the amendment because an
"inquiry to the allegations in the original information will certainly and necessarily elicit substantially the same facts to the inquiry of the
allegations in the Amended Information." 33

As to when the rights of an accused are prejudiced by an amendment made after he had pleaded to the original information,
Montenegroruled34 that prejudice exists when a defense under the original information would no longer be available after the amendment
is made, and when any evidence the accused might have, would be inapplicable to the Information as amended. 35 Applying this test, the
Court disallowed the amendment for being substantial in nature as the recital of facts constituting the offense charged was altered.36
The inapplicability of Matalam to the present case is obvious. Here, the prosecution’s theory of the case, i.e., that petitioner failed to file
his income tax return for the taxable year 2001 did not change. The prosecution’s cause for filing an information remained the same as
the cause in the original and in the amended information. For emphasis, the prosecution’s evidence during the preliminary investigation
of the case shows that petitioner did not file his income tax return in his place of legal residence37 or principal place of business in Quezon
City or with the Commissioner. In short, the amendment sought did not alter the crime charged.

At first, a change in the location of branches alleged in the information may appear to deprive the petitioner of his defense in the original
information, i.e., the petitioner’s branches in Dagupan and San Fernando were registered only in 2003 and were therefore "in existent" in
2001. However, this is not the kind of defense contemplated under the Rules of Criminal Procedure, and broadly under the due process
of law.

Contrary to the petitioner’s claim, the opportunity given to the accused to present his defense evidence during the preliminary investigation
is not exhaustive. In the same manner that the complainant’s evidence during preliminary investigation is only required to establish the
minimal evidentiary threshold of probable cause, the evidence that the respondent may present during trial is not limited to what he had
presented during the preliminary investigation, so long as the evidence for both parties supports or negates the elements of the offense
charged.

To be sure, the jurisprudential test on whether a defendant is prejudiced by the amendment of an information pertains to the availability
of the same defense and evidence that the accused previously had under the original information. This test, however, must be read
together with the characteristic thread of formal amendments, which is to maintain the nature of the crime or the essence of the offense
charged.38

In the present case, this thread remained consistently under the amended information, alleging the petitioner’s failure to file his return
and consequently to pay the correct amount of taxes. Accordingly, the petitioner could not have been surprised at all.

We also reject for lack of merit petitioner’s claim that the inclusion of the phrase "doing business under the name and style of Mendez
Medical Group" after his preliminary investigation and arraignment deprives him of the right to question the existence of this "entity."

The petitioner however has not drawn our attention to any of his related operations that actually possesses its own juridical personality.
In the original information, petitioner is described as "sole proprietor of Weigh Less Center." A sole proprietorship is a form of business
organization conducted for profit by a single individual, and requires the proprietor or owner thereof, like the petitioner-accused, to secure
licenses and permits, register the business name, and pay taxes to the national government without acquiring juridical or legal personality
of its own.39

In the amended information, the prosecution additionally alleged that petitioner is "doing business under the name and style of ‘Weigh
Less Center’/Mendez Medical Group.’" Given the nature of a sole proprietorship, the addition of the phrase "doing business under the
name and style" is merely descriptive of the nature of the business organization established by the petitioner as a way to carry out the
practice of his profession. As a phrase descriptive of a sole proprietorship, the petitioner cannot feign ignorance of the "entity" "Mendez
Medical Group" because this entity is nothing more than the shadow of its business owner - petitioner himself.

At any rate, we agree with the prosecution that petitioner has no reason to complain for the inclusion of the phrase "Mendez Medical
Group." In the Reply-Affidavit it submitted during the preliminary investigation, the prosecution has attached copies of petitioner's paid
advertisements making express reference to "Mendez Medical Group." 40

WHEREFORE, premises considered, we DISMISS the petition for lack of merit, with costs against the petitioner.

SO ORDERED.
G.R. No. L-45772 March 25, 1988

PEOPLE OF THE PHILIPPINES, petitioner, vs. Hon. EDUARDO MONTENEGRO, Presiding Judge, Branch IV-B, CFI Rizal, Quezon
City; ANTONIO CIMARRA, ULPIANO VILLAR, BAYANI CATINDIG, and AVELINO DE LEON, respondents.

PADILLA, J.:

This is a petition for certiorari with preliminary injunction and/or restraining order, to set aside the order of the respondent court, dated 10
February 1977, denying petitioner's Motion to Admit Amended Information and the order, dated 22 February 1977, of the same court,
denying the Motion for Reconsideration of said earlier order.

On 21 March 1977, the court issued a temporary restraining order enjoining respondent court from proceeding to hear and decide the
case until further orders from the Court.

The facts of the case are as follows:

On 20 September 1976, the City Fiscal of Quezon City, thru Assistant Fiscal Virginia G, Valdez, filed an Information for "Roberry" before
the Court of First Instance of Rizal, Branch IV-B, Quezon City, docketed as Criminal Case No. Q-6821, against Antonio Cimarra, Ulpiano
Villar, Bayani Catindig and Avelino de Leon. Said accused (now private respondents) were all members of the police force of Quezon
City and were charged as accessories-after-the-fact in the robbery committed by the minor Ricardo Cabaloza, who had already pleaded
guilty and had been convicted in Criminal Case No. QF-76-051 before the Juvenile and Domestic Relations Court of Quezon City. Ricardo
Cabaloza was convicted for the robbery of the same items, articles and jewelries belonging to Ding Velayo, Inc. valued at P 75,591.40
and enumerated in the original information 1 against herein private respondents.

Upon arraignment on 25 October 1976, all of the accused (now private respondents) entered a plea of "not guilty" to the charge filed
against them. Accordingly, trial on the merits was scheduled by the respondent court. However, before the trial could proceed, the
prosecuting fiscal filed a Motion to Admit Amended Information, dated 28 December 1976, seeking to amend the original information by:
(1) changing the offense charged from "Robbery" to "Robbery in an Uninhabited Place," (2) alleging conspiracy among all the accused,
and (3) deleting all items, articles and jewelries alleged to have been stolen in the original Information and substituting them with a different
set of items valued at P71,336.80 Private respondents opposed the admission of the Amended Information. The respondent court
resolved to deny the proposed amendments contained in the Amended Information in the previously referred to order dated 10 February
1977. Petitioner moved for reconsideration of the aforesaid order but the respondent court, on 22 February 1977, denied said motion;
hence, this petition.

Amendment of an information under Sec. 14, Rule 110 of the 1985 Rules on Criminal Procedure (formerly, Section 13, Rule 110 of the
old Rules on Criminal Procedure) may be made at any time before the accused enters a plea to the charge. Thereafter and during the
trial, amendments to the information may also be allowed, as to matters of form, provided that no prejudice is caused to the rights of the
accused. The test as to when the rights of an accused are prejudiced by the amendment of a complaint or information is when a defense
under the complaint or information, as it originally stood, would no longer be available after the amendment is made, and when any
evidence the accused might have, would be inapplicable to the complaint or information as amended. 3

On the other hand, an amendment which merely states with additional precision something which is already contained in the original
information, and which, therefore, adds nothing essential for conviction for the crime charged is an amendment to form that can be made
at anytime. 4

The proposed amendments in the amended information, in the instant case, are clearly substantial and have the effect of changing the
crime charged from "Robbery" punishable under Article 209 to "Robbery in an Uninhabited Place" punishable under Art. 302 of the
Revised Penal Code, thereby exposing the private respondents-accused to a higher penalty as compared to the penalty imposable for
the offense charged in the original information to which the accused had already entered a plea of "not guilty" during their arraignment.

Moreover, the change in the items, articles and jewelries allegedly stolen into entirely different articles from those originally complained
of, affects the essense of the imputed crime, and would deprive the accused of the opportunity to meet all the allegations in the amended
information, in the preparation of their defenses to the charge filed against them. It will be observed that private respondents were accused
as accessories-after-the-fact of the minor Ricardo Cabaloza who had already been convicted of robbery of the items listed in
the originalinformation. To charge them now as accessories-after-the-fact for a crime different from that committed by the principal, would
be manifestly incongruous as to be allowed by the Court.

The allegation of conspiracy among all the private respondents-accused, which was not previously included in the original information, is
likewise a substantial amendment saddling the respondents with the need of a new defense in order to meet a different situation in the
trial court. In People v. Zulueta, 5 it was held that:

Surely the preparations made by herein accused to face the original charges will have to be radically modified to meet
the new situation. For undoubtedly the allegation of conspiracy enables the prosecution to attribute and ascribe to the
accused Zulueta all the acts, knowledge, admissions and even omissions of his co-conspirator Angel Llanes in
 furtherance of the conspiracy. The amendment thereby widens the battlefront to allow the use by the prosecution of
newly discovered weapons, to the evident discomfiture of the opposite camp. Thus it would seem inequitable to sanction
the tactical movement at this stage of the controversy, bearing in mind that the accused is only guaranteed two-days'
preparation for trial. Needless to emphasize, as in criminal cases, the liberty, even the life, of the accused is at stake,
it is always wise and proper that he be fully apprised of the charges, to avoid any possible surprise that may lead to
injustice. The prosecution has too many facilities to covet the added advantage of meeting unprepared adversaries.

To allow at this stage the proposed amendment alleging conspiracy among all the accused, will make all of the latter liable not only for
their own individual transgressions or acts but also for the acts of their co-conspirators.

WHEREFORE, the petition is DISMISSED. The orders of the respondent court, dated 10 February 1977 and 22 February 1977 are
AFFIRMED. The temporary restraining order issued on 21 March 1977 is LIFTED.

This decision is immediately executory.

SO ORDERED.

Yap (Chairman), Melencio-Herrera, Paras and Sarmiento, JJ., concur.

G.R. No. 135109-13 December 18, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOSE PAJO y BAGTONG and IMELDA LIQUIGAN y KASIBAYAN, accused-
appellants.

DECISION

PER CURIAM:

Jose Pajo y Bagtong was found guilty beyond reasonable doubt and convicted of three counts of rape and two counts of acts of
lasciviousness in Criminal Cases Nos. 97-233, 97-664 to 97-667 while his co-accused, Imelda Liquigan y Kasibayan, was found guilty
beyond reasonable doubt as an accomplice of the crime of rape in Criminal case No. 97-664 by the Regional Trial Court (RTC) of Makati
City, Branch 143. Due to the imposition of the death penalty in Criminal Cases Nos. 97-233, 97-664 and 97-665, the Decision1 of the RTC
dated July 6, 1998 imposing the death penalty therein is now before us on automatic review.

On February 21, 1997, an Information2 for rape was filed against the accused Jose Pajo y Bagtong (PAJO) upon the complaint of his
daughter, AAA3 committed as follows:

"The undersigned Assistant Prosecutor upon prior sworn statement of AAA, a minor, assisted by her Aunt Marianita Ferriol y Pajo, a copy
of which is hereto attached as Annex "A", accuses JOSE PAJO y BAGTONG of the crime of Rape (Art. 335, R.P.C., in relation to R.A.
7610), committed as follows:

That on or about the 31st day of January 1997, in the City of Makati, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, being the father of said AAA, a 13 year old minor, by means of force, violence and intimidation, did then and there
willfully, unlawfully and feloniously have carnal knowledge with the said AAA, without her consent and against her will, to her damage
and prejudice."

The case was docketed as Criminal Case No. 97-233. Upon arraignment, the accused with the assistance of counsel entered a plea of
not guilty.4 Thereafter, trial ensued.

During the pendency of the trial, four more informations were filed against PAJO upon the complaint of AAA and his other daughter, BBB,
as follows:

In Criminal Case No. 97-664, PAJO together with his co-accused Imelda Liquigan y Kasibayan were charged, as principal and accomplice
respectively, with the crime of rape commited against AAA as follows:

"The undersigned Assistant Prosecutor upon prior sworn statement of AAA, a minor, assisted by her Aunt Marianita P. Ferriol, a copy of
which is hereto attached as Annex "A", accused JOSE PAJO Y BAGTONG as principal and IMELDA LIQUIGAN Y KASIBAYAN as
accomplice, of the crime of Rape in relation to R.A. 7610, committed as follows:

That in or about during the month of August 1996, in the City of Makati, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, JOSE PAJO, being the father of said AAA, a 13 year old minor by means of force, violence and intimidation,
did then and there willfully, unlawfully and feloniously have carnal knowledge with the said AAA, without her consent and against her will
while accused Imelda Liquigan cooperated in the said act, by holding her legs open, to facilitate the commission thereof by accused Jose
Pajo y Bagtong, to her damage and prejudice."

In Criminal Case No. 97-665, PAJO was charged with the crime of rape committed against AAA as follows:

"The undersigned Assistant Prosecutor upon prior sworn statement of AAA, a minor, assisted by her Aunt Marianita Ferriol y Pajo, a copy
of which is the crime of Rape (Art. 355, RPC in relation to R.A. 7610, committed as follows:

That on or about the 18the day of September 1996, in the City of Makati, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, being the father of said AAA, a 13 year old minor, by means of force, violence and intimidation did then and
there willfully, unlawfully and feloniously have carnal knowledge with the said AAA, without her consent and against her will, to her damage
and prejudice."

In Criminal Case No. 97-666, PAJO was charged with the crime of acts of lasciviousness committed against BBB as follows:

"The undersigned Assistant Prosecutor on the basis of the sworn statement of BBB, 12 years old, assisted by her Aunt Marianita P.
Ferriol, a copy of which is hereto attached as Annex "A", accuses JOSE PAJO y BAGTONG of the crime of Acts of Lasciviousness, in
relation to Sec. 5 (b), Article III, R.A. 7610, committed as follows:
That in or about the month of August 1996, in the City of Makati, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, with lewd design, did then and there willfully, unlawfully and feloniously commits acts of lasciviousness upon one BBB,
a 12 year old minor, by then and there ordering her to hold and suck his sex organ against her will and consent, to her damage and
prejudice."

In Criminal case No. 97-667, PAJO was charged with the crime of acts of lasciviousness committed against AAA as follows:

"The undersigned Assistant Prosecutor on the basis of the sworn statement of AAA, 13 years old, assisted by her Aunt Marianita P.
Ferriol, a copy of which is hereto attached as Annex 'A", accuses JOSE PAJO y BAGTONG of the crime of Acts of Lasciviousness in
relation to Sec. 5 (b), Article III, R.A. 7610, committed as follows:

That on or about the 15th day of November 1996, in the City of Makati, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, with lewd design, did then and there willfully, unlawfully and feloniously commit acts of lasciviousness upon
one AAA, a 13 year old minor, by then and there touching and holding her vagina, against her will and consent, to her damage and
prejudice."

On June 4, 1997, both PAJO and his co-accused Imelda Liquigan y Kasibayan (LIQUIGAN) with the assistance of counsel pleaded not
guilty to the crimes charged.5

Subsequently, on June 23, 1997, Judge Roberto C. Diokno ordered the consolidation of Criminal Cases Nos. 97-664, 97-665, 97-666,
97-667 with Criminal Case No. 97-233.6

The trial court stated the facts of the case viz:

"Accused JOSE is an ex-convict. He served a prison term for the crime of theft. Accused IMELDA is his live-in partner.

Complainants AAA and BBB are the minor children of JOSE with Dolores Navarro. AAA is now 14 years old while BBB is 12. (Exhibits
"I" and "J"). their natural mother left them when they were still very young.

Upon being released from prison, JOSE moved in with IMELDA at their present residence at No. 85-C 31st Street, Brgy. West Rembo,
Ft. Bonifacio, Makati City.

Subsequently, JOSE took back AAA and BBB from his brother who took care of them while he was in prison.

The family occupied the room at the 2nd floor of their house. The ground floor is rented out to some boarders. At night, JOSE and
IMELDA, together with their two-year old baby would sleep together in bed while AAA and BBB would sleep on the floor. At times, only a
curtain would separate the bed from the floor where the sisters would be sleeping.

JOSE drinks a lot and is frequently drunk. He would usually drink two bottles of beer before going to bed.

On February 18, 1997, Marianita Fatima Pajo had a chance to talk to BBB, her niece. BBB then confided to Marianita how their father
had been molesting her and her sister (AAA).

The following day, Marianita and Emmanuel Pajo, their youngest brother brought BBB and AAA to the barangay center. There, they
related the ordeal of the two sisters. The Complaint Center, in turn, notified the Office of the Department of Social Welfare and
Development (DSWD).

With DSWD Social Workers, the group of Marianita proceeded to Police Precinct No.7 at West Rembo, Makati city and sought police
assistance for the arrest of JOSE and IMELDA. The two suspects were arrested and their case referred to the Station Investigation
Division of the Makati Police.

SPO1 Lilia Hogar and Police Inspector Angelita Alvarico of the Women's Desk Section, investigated the complaint. The written statements
of AAA and BBB were taken (Exhibits "A" and "B"). thereafter, AAA was referred to the National Bureau of Investigation and PNP Crime
Laboratory for examination (TSN, March 17, 1997).

On February 20, 1997, the Final Investigation Report was issued by SPOI Lilia Hogar with the recommendation that the complaint of AAA
and BBB be referred to the City Prosecutor for proper disposition (Exhibit "C").

After inquest, the preliminary investigation, the Makati Prosecution Office filed with the Court three informations for Rape against JOSE
(Criminal Case Nos. 97-233, 97-664 and 97-665) and 2 counts of Acts of Lasciviousness (Criminal Case Nos. 97-666 and 97-667).
IMELDA was indicted as an accomplice in the charge for rape in Criminal Case No.97-664.
AAA narrated in court how she and her younger sister BBB have been molested by their father on different occasions between August
1996 to January 1997. She testified that the first incident occurred in the night of August 18, 1996. They were all inside their common
sleeping area. She was already fearful as her father was them again drunk.

JOSE and IMELDA were already without clothes and in bed when her father called her. She was ordered to undress and to climb in bed.

BBB has been ordered by JOSE to stand guard at their door.

Once in bed, JOSE told IMELDA to spread open AAA'S legs. JOSE then called BBB to come near and to suck his penis so he could have
an erection.

BBB obeyed her father's command. Thereupon, JOSE laid on top of AAA while IMELDA was holding her legs apart. AAA felt her lower
abdomen moving up and down. She told her father that she was hurting already. But still, he did not withdraw his penis.

After a while, JOSE told IMELDA to lie down. JOSE then withdrew from AAA and went on top of IMELDA.

While JOSE and IMELDA were copulating, JOSE told AAA to suck IMELDA's breast.

The abominable scene finally stopped when they heard some noises outside.

AAA further testified that this incident was repeated on September 18, 1996. She was then watching a VHS tape at their uncle's place
when her father told her to go upstairs to their room.

Inside their room, JOSE and IMELDA started to take off their clothes. JOSE ordered AAA to take off hers too. Her father was again drunk.
He laid on top of her while IMELDA held her legs apart.

JOSE would even slap IMELDA whenever she fails to hold AAA's legs apart.

Again, the detestable incident ended with JOSE and IMELDA having sexual intercourse.

The father again molested AAA in November 1996. AAA though could not remember the exact date.

She testified that she woke up one night when she felt someone touching her most private part. She discovered her father beside her on
the floor . She became upset. Her father withdrew her hand. Fortunately for AAA, her father desisted from pursuing his woeful intentions.
JOSE climbed back to his bed and slept beside IMELDA.

According to AAA, the last incident happened on January 31, 1997 at about 12:00 o'clock in the evening. She was awaken (sic) by
someone tapping her feet.

It was her father again. She was told to go the bathroom downstairs. She thought she would just be asked to fetch water. When she
entered the bathroom, her father was already there and naked. She was told to remove her shorts and underwear. Her father was drunk
again.

AAA was told to lean back on the wall and open her legs. Thereupon, JOSE proceeded to penetrate AAA. Then she felt pain, and deep
inside her she wished her father would die so that her ordeal would stop.

Her father stopped when he heard their dog barking. He then instructed her daughter to bring a pail of water upstairs.

JOSE then woke up IMELDA and told her to prepare coffee. Thereafter, IMELDA told AAA to go back to sleep. AAA went to sleep with
IMELDA massaging JOSE. (TSN, April 28, 1997, pp. 18-39; April 30, 1997, pp. 2-22; August 11, 1997, pp. 11-34; August 15, 1997, pp.
3- 15).

BBB, the other victim, narrated too in Court how she and her sister were molested by her father and his live-in partner in August 1996.
She was only 12 years old then.

They were all inside their one-room quarters. Her father was drunk. She was told to stand guard at their door by her father. later, she was
called by her father to the bed and ordered to suck his penis so he could have an erection. AAA was already in bed and without clothes,
and so was her father.

JOSE then laid on top of AAA while IMELDA was holding AAA's legs apart.
In the meantime, BBB was again told to stand guard at the door (TSN, August 18, 1997, pp. 2-33).

AAA and BBB are one in telling the Court that they are fearful of their father, especially when he is drunk. They were often beaten up by
their father should they refuse or fail to obey his command or wishes. They strongly believe too that their father is on drugs.

Dr. Tomas Suguitan, the Medico-legal Officer from the PNP Crime laboratory, identified his report on the examination conducted on
CHRISTALLIN (Exhibit "C"). He confirmed that the "subject is in non-virgin state physically" with "deep healed laceration at 6 o'clock and
shallow healed lacerations at 3, 7 and 10 o'clock" in her fleshy-type hymen.

However, the prosecution failed to clarify what appears to be a contradictory report rendered by the NBI Medico-legal Division (Exh. "D")
showing that subject's hymen is "intact and its orifice small (2.0 cm. in diameter) as to preclude complete penetration by an average sized
adult male organ in full erection without producing genital injury". Further, in Exhibit "C", witness Suguitan found no external signs of
application of any form of violence". While in Exhibit "D", "physical injuries were noted on the body of the subject at the time of
examination", consisting of, - scar, brownish 0.8 x 0.3 cm., left temple area; scars brownish, two (2) in number, one is 1.0 x 0.3 cm., the
other 1.0 x 0.4 cm. left leg, upper 3rd, anterior aspect, and scar, reddish, 4.0 x 6.0 cms. right gluteal area.

Prosecution witnesses Marianita Fatima Pajo Periol and SPO1 lilia Hogar testified too in court. Marianita narrated how she discovered
the sexual abuse committed by her brother JOSE and IMELDA on her nieces (TSN, March 17, 1997, pp. 2-17).

SPO1 Hogar testified on the investigation conducted by the Criminal Investigation Division of the Makati Police Station on the complaint
lodged by the victims (TSN, April 23, 1997, pp. 2-19).

Accused JOSE AND IMElDA denied the imputations against them. They advanced the following reasons as possible motive for the false
accusations, to wit -

a) He (JOSE) chastised AAA and BBB for "stealing" ₱2,000.00 in school;

b) His brother and sister are interested in having possession of their house; and

c) His brother and sister are envious of his work entitled "Destiny Philippines 2000" which he allegedly tried to have then
President Fidel Ramos and Vice President Joseph Estrada be interested in."7

On July 6, 1998 the RTC rendered a decision finding both accused guilty beyond reasonable doubt of the crimes charged. The dispositive
portion of the decision reads:

"WHEREFORE, the Court finds Jose Pajo y Bagtong and Imelda Liquigan y Kasibayan GUILTY beyond reasonable doubt of the offenses
charged.

Accordingly, accused Jose Pajo y Bagtong is hereby sentenced to suffer the following penalties,

1. DEATH for consummated rape as charged in Criminal Case No. 97-97-233;

2. DEATH for consummated rape as charged in Criminal Case No. 97-664;

3. DEATH for consummated rape as charged in Criminal Case No. 97-665;

4. TEN (10) YEARS & ONE (1) DAY of prision mayor as minimum to SEVENTEEN (17) YEARS & FOUR (4) MONTHS of
reclusion temporal as maximum for acts of lasciviousness as charged in Criminal Case No. 97-666; and

5. TEN (10) YEARS & ONE (1) DAY of prision mayor as minimum to SEVENTEEN (17) YEARS & FOUR (4) MONTHS of
reclusion temporal as maximum for acts lasciviousness as charged in Criminal Case No.97-667.

Accused Imelda Liquigan y Kasibayan is hereby sentenced to a prison term of TWELVE (12) YEARS & ONE (1) DAY to FOURTEEN
(14) YEARS & EIGHT (8) MONTHS of reclusion temporal as an accomplice in the crime of rape as charged in Criminal Case No. 97-664.

Jose Pajo y Bagtong is ORDERED to INDEMNIFY complainants AAA Joy Pajo and BBB Joy Pajo in the amount of ₱50,000.00 each for
each count of rape and acts of lasciviousness committed, and to pay the costs.

SO ORDERED."8

At the outset, we resolve to dismiss the appeals in Criminal Cases Nos. 97-666 and 97-667, wherein the RTC convicted PAJO of two
counts of acts of lasciviousness and sentenced him to ten (10) years and one (1) day ofprision mayor as minimum to seventeen (17)
years and four (4) months of reclusion temporal as maximum for each count, considering that PAJO failed to file notices of appeal for
said cases. Under Section 1 (b), Rule 122 of the Rules on Criminal Procedure, the appeal of a judgment rendered by the regional trial
court in its original jurisdiction sentencing the accused to other than life imprisonment 9 or death must be taken to the Court of Appeals by
the filing of a notice of appeal with the court which rendered the judgment or order appealed from, and by serving a copy thereof on the
adverse party.10

We likewise dismiss the appeal of PAJO's co-accused, LIQUIGAN, for the reason that she similarly failed to file a notice of appeal of the
judgment convicting her as an accomplice to the crime of rape in Criminal case No. 97-664. The appeal to the Supreme Court in cases
where the penalty imposed is life imprisonment 11 or where a lesser penalty is imposed but involving offenses committed on the same
occasion or arising out of the same occurrence that gave rise to the more serious offense for which the penalty of death or life
imprisonment is imposed shall be by filing a notice of appeal with the court which rendered the judgment or order appealed from, and by
serving a copy thereof upon the adverse party. 12

Inasmuch as both PAJO and LIQUIGAN have taken no appeal with respect to these cases, they became final and executory after the
lapse of fifteen (15) days, the period for perfecting an appeal. 13 On the other hand, Criminal Cases Nos. 97-233, 97-664 and 97-665 are
now before this Court on automatic review in view of the imposition of the death penalty. It is only in cases where the accused is sentenced
to death when the appeal of the decision to the Supreme Court is automatic. 14 We thus limit our discussion to Criminal Cases Nos. 97-
233, 97-664 and 97- 665 where the death penalty was imposed on PAJO.

In his brief, PAJO assigns the following error allegedly committed by the RTC:

"THE LOWER COURT ERRED IN FINDING THE ACCUSED-APPELLANTS GUILTY OF THE CRIMES CHARGED, WITHOUT THEIR
GUILT HAVING BEEN PROVED BEYOND A SHADOW OF A DOUBT."15

PAJO maintains that the prosecution failed to establish his guilt beyond reasonable doubt. In support of this claim, PAJO asserts that:

1. In her testimony, AAA was uncertain as to whether or not her father penetrated her on August 18, 1996.

2. He merely used his two daughters to arouse him in order for him to "trigger" his libido and "to put in action and activate his
admitted onset of impotency" caused by his state of alcoholism in order to satisfy the passion of his live-in partner.

3. It is unlikely that he committed the alleged rapes and acts of lasciviousness because they admittedly transpired inside their
house and in the presence of all the other members of the family. There was no evidence on record to prove that PAJO was
sick of some form of medical perversion or that showed him to be of such a detestable human nature.

4. It is unbelievable that it took AAA exactly six (6) months and one (1) day or after being assaulted three times and only after
her younger sister, BBB revealed the commission of the crime against her that she revealed the assaults committed against her
by her father.

5. AAA and BBB filed the cases against their own father due to the improper suggestions and desire for revenge of their aunt
and uncle (the brother and sister of PAJO) who reared and took care of AAA and BBB.

6. Had the cases been filed with the noblest intention of seeking justice, then it would have been for the best interest of the two
children to include LIQUIGAN as co-principal in the alleged crimes of rape and not merely as an accomplice to the rape allegedly
committed on August 18, 1996.

7. There is an irreconcilable conflict between the findings of the physical examination conducted on AAA by the National Police
Commission - Philippine National Police Crime Laboratory Group (PNP) and that conducted by the National Bureau of
Investigation (NBI) contained in the two medical reports16 submitted to the RTC. The report of the PNP showed that there was
no external signs of application of any form of violence while in the NBI report, physical injuries were noted on the body of AAA
at the time of her examination. Further, the NBI report showed that the hymen of AAA was intact and its orifice small as to
preclude complete penetration by an averaged sized adult male organ in full erection without producing genital injury.

Based on the foregoing arguments, PAJO prays for his acquittal for failure of the prosecution to prove his guilt beyond reasonable doubt.17

After a meticulous review of the case, we resolve to affirm the judgment of the RTC.

The prosecution convincingly established the commission of the three rapes by PAJO against AAA through her testimony wherein she
identified the accused-appellant PAJO as her father and narrated the manner by which he thrice raped her sometime in August 1996,
September 18, 1996 and January 31, 1997. AAA first testified in Criminal Case No. 97-233 to prove the rape committed on January 31,
1997 as follows:

"PUBLIC PROSECUTOR:
Could I request the assistance of Court Interpreter.

And do you know the accused Mr. Pajo in this case?

WITNESS:

Yes, Sir.

PUBLIC PROSECUTOR:

Why do you know him?

WTNESS:

Because he is my father, Sir.

PUBLIC PROSECUTOR:

Could you point your father, Mr. Pajo, if he is here in this court

INTERPRETER:

Witness, is pointing to a male person seated on the second row wearing a yellow T-shirt who response in the name of Jose Pajo.

PUBLIC PROSECUTOR:

Why did you file this complaint against your father?

WITNESS:

Because I don't want him to attack me more than 4 times, Sir.

PUBLIC PROSECUTOR:

Let's go to specific, on January 31, 1997 at 12:00 in the evening, could you recall, where were you?

WITNESS:

I was in the house sleeping, Sir.

PUBLIC PROSECUTOR:

Kindly tell the court where is your house located, street, number or city?

WITNESS:

No. 85-C, 31st West Rembo Makati City

PUBLIC PROSECUTOR:

Okay, while you were sleeping inside your house, at 85-C, 31st West Rembo Makati City, could you recall any unusual incident, occur?

WITNESS:

Yes, Sir.

PUBLIC PROSECUTOR:

Kindly, tell the court what was the unusual incident which occurred?
WITNESS:

My father arrived and he woke me up by tapping me on my feet and he whispered and told me to go down to the bathroom, so I went
down to the bathroom thinking that he would ask me to fetch water and as I went inside the bathroom he was already naked.

PUBLIC PROSECUTOR:

What else happened after you went down to the bathroom and saw your father already naked?

WITNESS:

As he told me, he instructed me to remove my short and my panty, Sir.

PUBLIC PROSECUTOR:

Did you follow the order of your father to remove your panty and short?

WITNESS:

Yes, Sir.

PUBLIC PROSECUTOR:

Why did you follow the order of your father to remove your underwear?

WITNESS:

Because, I was afraid of him.

PUBLIC PROSECUTOR:

Why are you afraid of him?

WITNESS:

Because, whenever he is drunk, he spanks us, he electrocutes us, he even tie cord around our neck, Sir.

PUBLIC PROSECUTOR:

This things that your father did to you, since when did it start to happen to you?

ATTY. OLIVA:

At this state, Your Honor, I would like to put strike off, the case being heard on January 3, 1997 was immediately.

COURT:

Answer may remain on record. It is part of the narration being made by the witness as to how all this things happen.

PUBLIC PROSECUTOR:

I would like to make it clear to counsel, that I am only doing this January 31, 1997 incident. However, the other incident could not be
entouched specially the elements thereof, only this January 31, 1997 incident.

ATTY. OLIVA:

We submit, Your Honor.

WITNESS:
The first time, my father treated me harshly, when he frustrate me when I was sleeping he kept confitting (sic) me with the pillow on my
face and then covering it.

PUBLIC PROSECUTOR:

Could you recall what was that incident, more or less the date and the year?

WITNESS:

Yes, Sir. August of 1996.

PUBLIC PROSECUTOR:

In what place did it occur?

WITNESS:

In the house, Sir of 85-C, 31st St. West Rembo, Makati City.

PUBLIC PROSECUTOR:

Likewise, a while ago, you mentioned or referred that on the word "PINAPARUSAHAN KAMI", to whom are you referring, aside from
you?

WITNESS:

My sister and I, Sir, are the one being maltreated.

PUBLIC PROSECUTOR:

What is the name of your, sister?

WITNESS:

Crystielline Pajo, Sir.

PUBLIC PROSECUTOR:

How old is she?

WITNESS:

She is 12 years old, Sir.

PUBLIC PROSECUTOR

Aside from the sister of yours, do you have any brothers and sister?

WITNESS:

I have another brother who is in Cotabato, Sir .

PUBLIC PROSECUTOR:

Why is he in Cotabato?

WITNESS:

My aunties and my uncles told me that my mother left my father, because my father always hurt my mother.
PUBLIC PROSECUTOR:

Could you know more or less, when did your mother left your father?

WITNESS:

They told me that I was very young and small, Sir at that time when she left us.

PUBLIC PROSECUTOR:

AAA, this residence you mentioned at Ft. Bonifacio, when this incident occurred, who are the persons staying the house?

WITNESS:

My Tita Marianita and my uncle Emman Feriol, Sir.

PUBLIC PROSECUTOR:

Let’s go back to the incident on January 31, 1997, in the evening, kindly tell the court what happen (sic) after you followed the order of
your father to remove your panty and short? What happened next, if any?

WITNESS:

When I took off my short and panty he told me to "SUMANDAL DAW PO AKO SA DINGDING" and he was trying to insert his penis, Sir.

PUBLIC PROSECUTOR:

While he was trying to insert his penis on your vagina, what did you do?

WITNESS:

I was in standing position and when I told him that It hurts, he does not want to remove it, Sir.

PUBLIC PROSECUTOR:

What was hurting you?

WITNESS:

In my vagina, Sir. There was an object going up and down.

PUBLIC PROSECUTOR:

What was this object going up and down inside your vagina?

WITNESS:

All I felt, Sir, it was very painful and there was something going up and down in my vagina.

PUBLIC PROSECUTOR:

Did the accused Mr. Pajo, was he able to insert his penis to your vagina?

WITNESS:

Yes, sir.

PUBLIC PROSECUTOR:
For how long, did he insert his penis to your vagina?

WITNESS:

I could not remember it, Sir.

PUBLIC PROSECUTOR:

What did you do during the time he was inserting his penis to your vagina?

WITNESS:

I kept silent. I was thinking and I kept it to my mind that I hope, he die to stop him from doing like this.

PUBLIC PROSECUTOR:

Madam Witness, could you stand up and could you demonstrate, what was your position inside the bathroom when accused fit you on
the wall?

INTERPRETER:

Witness demonstrating leaning of the courtroom wall and mentioned that accused instructed her to open her legs.

PUBLIC PROSECUTOR:

How about your two hands, where was in position at the time when the accused was forcing you at the wall and insert his penis in your
vagina?

WITNESS:

The accused instructed me to put my hands over his back.

PUBLIC PROSECUTOR:

Ms. Witness, after that, he was able to insert his penis to your vagina, what did he do?

WITNESS:

He heard our dog bark loudly and then he instructed me to get a pail of water, Sir." 18

After the cases were ordered consolidated, AAA again testified on the two prior rapes committed against her by PAJO. The pertinent
portions of AAA's testimony are quoted hereunder:

"Q: How many times were you raped by your father?

A: Three (3) times, Sir.

Q: Let's go to specific, when was the first time that your father raped or abused you?

A: The first incident did my father abuse me was on August.

Q: On what year, Lenlen?

A: 1996, Sir.

Q: In what place where you abused by your father?

A: At 85-C 21st St., Barangay West Rembo, Fort Bonifacio, Makati City.
Q: Could you recall more or less what was the time?

A: around 8:00 o'clock in the evening.

Q: Kindly narrate briefly what happened during the night of August 18, 1996 at your house?

A: Everybody at that time were in the house. And my father called me and he told me to remove my short and panty.

Q: You said, 'EVERYBODY', who were the persons in your house?

A: My father, my mother, my sister Christilline and my two (2) year old sister and myself, Sir.

Q: By the way, your referred to your Mama, what is the name of your Mama?

A: Imelda Liquigan, Sir.

Q: Is she inside the Courtroom?

A: Yes, Sir.

COURT INTERPRETER:

Witness is pointing to a female person seated on the second row wearing a yellow shirt and as mentioned by the witness-she is Imelda
Laquigan.

PUBLIC PROSECUTOR:

Q: What's the name of your father?

A: Jose Bagtong Pajo, Sir.

A: Is he inside the Courtroom?

A: Yes, Sir.

COURT INTERPRETER:

Witness is pointing to a male person wearing a yellow shirt and seated on the second row and as mentioned by the witness - he is Jose
Pajo.

PUBLIC PROSECUTOR:

Q: By the way, is Imelda is your natural mother?

A: No, Sir.

Q: Why do you call her Mama?

Q: Where is your natural mother?

A: She is in Cotabato, Sir. She got separated with my father, Sir.

Q: When was that?

A: When we were still small, Sir.

Q: When did Imelda come to your house?

A: I could not recall, Sir because we were not staying at that house when Mama Imelda arrived.
Q: Let's go back to the night of August 18, 1996 incident, when your father ordered you to undress, where was your father at that time?
What portion of the house?

A: She was also at the bed, Sir.

Q: How about Christilline, your sister, where was she at that time?

A: She was told by my father to watch the door, Sir.

Q: Did you follow the order of your father to undress?

A: Yes, Sir.

Q: What kind of dress were you wearing at that time?

A: I was just wearing T -Shirt, Sir.

Q: Did you remove our T-shirt at that time?

A: I removed my T-Shirt when I was about to lay down, Sir.

Q: How about your underwear, did you also remove your underwear?

A: Yes, Sir.

Q: Why did you follow the order of your father?

A: Because he was drunk at that time and I'm afraid to him whenever he is drunk, Sir.

Q: Why, What does he do to you when he is drunk?

A: Because when he is drunk he hits us on the heads, Sir.

Q: After undressing, you went to the bed with your father, what else happened after that?

A: My father told my Mama to spread my legs.

Q: Did, you are referring to Imelda, did Imelda indeed spread or open your legs as told by your father?

A: Yes, Sir.

Q: Imelda, your Mama and Jose Pajo were both lying at the bed at that time when he ordered you to open your legs or Imelda opened
your two thighs.

A: Yes, Sir.

Q: Lenlen, what were did they wearing at that time Jose and Imelda?

A None, Sir.

Q: You mean all of them are already naked at that time?

A. Yes, Sir.

Q: How about you, when Imelda open your legs, you were also naked?

A: Yes, Sir.

Q: What else happened after Imelda open your legs at that time?
A: Before my father inserted his penis of my genital, my father called upon Christilline my sister.

Q: Did Christilline follow the order of your father?

A: Yes, Sir.

Q: What did your father ordered Christilline to do if any at that time?

A: My father told my sister Christilline 'come here and suck my penis I just want to know if you could give me an erection.

Q: Did Christilline follow the order of your father?

A: Yes, Sir.

Q: After that what else happened?

A: After my sister suck my father's penis he inserted his penis to my vagina.

Q: What was your position at that time that your father inserted his penis to your vagina?

A: I was lying down on the bed while my Mama Imelda was holding my legs apart.

Q: How about your father, what was his position when he inserted his penis to your vagina when you are lying on the bed and your two
legs were open by your Mama Imelda?

A: My father was lying on top of me while he was inserted (sic) his penis to my vagina.

Q: Was he able to insert his penis to your vagina?

A: I am not sure anymore, Sir, if he penetrated me. All I felt was my lower abdomen going up and down, Sir.

Q: While he was inserting his penis to your vagina, why did you not resist?

A: He kept on whispering that I may not be noisy or else something happen to me, Sir.

Q: Where was Christilline at that time that your father inserted his penis to your vagina?

A: He told Christilline to go back to that door.

Q: How long did your father inserted his penis in your vagina?

A: I could no longer recalled how long it took but I told him that it already hurts and at that time he is still not remove yet his penis and
after sometime he inserted his penis to Mama Imelda

Q: Where was Imelda at that time that your father inserted his penis in your vagina?

A: At that time my Mama Imelda was behind my father while she was holding my legs apart and then my father told her to lye down and
that is the time that his penis inserted to my Mama Imelda.

Q: After that, when your father went to Imelda and inserted his penis, what did you do?

A: He told me to suck the breast of my Mama Imelda.

Q: Did you suck the breast of your Mama Imelda?

A: No, Sir. I only touched her breast.

Q: You mean, Lenlen you touch the breast of Imelda by your lips?
A: Yes, Sir.

Q: How long?

A: I remove it whenever my father would tell me.

Q: After touching the breast of Imelda with your lips, what else happened?

A: Natigil po iyong pag-ano ng Papa ko dahil po sa ingay sa labas.

Q: Okay, let's go to another incident. After that night on August 18, 196 when the first rape by your father and Imelda assisting him, did
this incident occurred?

A: Yes, Sir.

Q: When was that incident again occurred?

A: September, Sir.

Q: September, of what year or month?

A: 1996, Sir.

COURT:

September 1996.

A: Yes, Your Honor. September 18, 196 before I had my menstruation on the 23rd, Your Honor. It was September 18, 1996 the second
incident.

COURT:

The second incident was September 18, 1996.

PUBLIC PROSECUTOR:

Kindly again narrate and tell the Court how were you abused by your father on September 18, 1996?

A: At that time my Mama Imelda and my father were upstairs and I and my two other sisters were watching VHS downstairs at my uncle's
place, Sir.

Q: What time was that?

A: Evening, Sir.

Q: What time, give time?

A: Around 8:00 o'clock in the evening, Sir.

Q: Who were again the persons insider your house?

A: Me and my mother.

Q: And this two year old baby of Imelda was also inside your house?

A: Yes, Sir. She was with us.

Q: The three of you including the two year old girl and Christilline were watching VAS inside your house?
A: We were watching VHS at my uncle's house, Sir.

Q: Where is your uncle's house located?

A: -My father's house is a two storey house and my uncle's means at the ground floor.

Q: While you were watching VHS together with q your sisters, what else happened after that?

A: My father called me and told me to go upstairs.

Q: And did you follow the order to go upstairs?

A: Yes, Sir.

Q: What happened if anything when you went upstairs?

A: He told me to remove my panty and short, Sir.

Q: Where was your father at that time, what portion of the house?

A: My father and my Mama Imelda were laid down on the bed.

Q: Where these two people wearing anything at that time?

A: They removed their clothes, Sir.

Q: How about you, did you remove your clothes as ordered by your father?

A: Yes, Sir.

Q: By the way, what were you wearing at that time?

A: 'Wala na po'.

Q: What did you remove?

A: Panty, short and T -Shirt.

Q: Why did you follow again the order of your father?

A: He was drunk.

Q: What he do to you when he was drunk?

A: He again told my Mama Imelda to open my legs, Sir.

Q: What else happened after that?

A: My father lay down on top of me and whenever my Mama Imelda wasn't spreading my legs my father slap Mama Imelda.

Q: That night of September 18, 1996, did Jose Pajo your father slap Imelda?

A: Yes, Sir.

Q: At the time does Imelda was spreading your legs, what did you do?

A: I was just lying down on the bed, Sir.

Q: You did not try to resist?

A: I could not resist, Sir because I am very afraid at that time.

Q: After your father Jose Pajo slap Imelda what else happened after that?

A: When my Mama Imelda the way she open my legs that is the time my father penetrated me and when I was hurting already my Mama
Imelda laid down on top of me while my father was behind my Mama I melda .

Q: What was your father doing to your Mama Imelda at that time in that position?

A: While my father's penis was inside Mama Imelda's vagina he was ordering me to also insert my fingers inside the vagina of Mama
Imelda.

Q: What else happened after that?

A: While my other hand was inside Mama Imelda's vagina, my other hand was holding the breas of her.

Q: What else happened after that?

A: 'May naramdaman po akong bumulwak sa ari nilang dalawa, kulay puti na mabaho'.

Q: What else happened after that?

A: They still did'nt stop what they were doing, Sir. They only stop when the lights went off.

Q: Lenlen, after that September 18, 1996, incident, did this special abuse again happened to you?

A: It's a different thing, Sir.

Q: On what date or time?

A: November, Sir.

Q: Of what year?

A: The end of November, Sir.

Q: In what place did I occur?

A: Still in our house, Sir.

Q: What was that incident?

A: I was sleeping at that time and my father laid beside me.

Q: What time did it happen?

A: Past 9:00 o'clock, Sir, almost 10:00.

Q: In the evening?

A: Yes, Sir.

Q: In what portion or place of the house?

A: Upstairs, Sir.

Q: In the bed of your father?

A: No, Sir on the floor.

Q: Who were the persons at that time?

A: My mama Imelda ad my two year old sister were on the bed and I and my sister Christilline were on the floor.

Q: What did your father do to you?

A: He held my vagina, Sir.

Q: What were you wearing at that time or did you wear at that time?

A: There was, Sir.

Q: What were you wearing at that time?

A: Panty, short and t-shirt.

Q: What were you doing at that time? before your father held your vagina?

A: I was sleeping, Sir.

Q: And, what did you do when you noticed that your father was holding our vagina.

A: I was upset, Sir.

Q: What else happened after that?

A: May father off his hand and he went back beside Mama Imelda.

Q: What did your father do after that to Imelda?

A: They slept, Sir.

Q: After that November 5, 1996. did it occur again this sexual abuse?

A: January, Sir.

Q: January of what year?

A: 1997.

A: That was the incident which your earlier testified?

A: Yes, Sir.

PUBLIC PROSECUTOR:

For the record, Your Honor, she testified on that January 31, 1997.

COURT:

In that testimony, case number is?

PUBLIC PROSECUTOR:

97-233 accused Jose Pajo only, Your Honor." 19

The testimony of AAA is corroborated fully by the testimony of her younger sister, BBB, who was also a victim of PAJO's sexual assault.20
The denial of PAJO cannot prevail over the categorical testimony of AAA and BBB that he raped the former. There was no showing that
they were motivated to falsely implicate him in the commission of such a heinous crime and the absence of convincing evidence showing
any improper motive on the part of the principal witnesses for the prosecution strongly tends to sustain the conclusion that no such
improper motive exists, and that their testimonies are worthy of full faith and credit.21

Moreover, it is long settled by jurisprudence that the determination of the competence and credibility of a child to testify rests primarily
with the trial judge who sees the witness, notices her manner, her apparent possession or lack of intelligence, as well as her understanding
of the obligation of an oath.22 The findings of the trial court on the credibility of witnesses and their testimonies are accorded great respect
unless the court a quo overlooked substantial facts and circumstances, which if considered, would materially affect the result of the
case.23 The evaluation or assessment made by the trial court acquires greater significance in rape cases because from the nature of the
offense, the only evidence that can oftentimes be offered to establish the guilt of the accused is the complainant's testimony. 24 In the
present case, we find no cogent basis to disturb the trial court's finding disregarding the testimonies of the defense witnesses and
upholding the credibility of the complainants AAA and BBB who stood firm on their assertions and remained unfaltering in their testimony
on the unfortunate incidents.

PAJO's claim that there was no evidence to show that he was sick of some form of medical perversion or that showed him to be of such
detestable human nature to enable him to rape AAA in the presence of other persons deserves no sympathy. It has been repeatedly held
that lust is no respecter of time or place. 25 Besides, the mere act of a father of raping his daughter is abhorrent and this Court strongly
condemns the perverse acts committed by PAJO against his daughters and is appalled by his defense that he merely used them to
arouse him in order for him to "trigger" his libido and "to put in action and activate his admitted onset of impotency" caused by his state
of alcoholism to enable him to satisfy the passion of his live-in partner.26 The bestiality in man whose conscience has been seared by his
insatiable greed for lust shows no respect for blood or close kinship with his victim. 27

PAJO's claim that AAA and BBB filed the cases against their own father due to the improper suggestions and desire for revenge of their
aunt and uncle is not believable. PAJO's and LIQUIGAN's bare assertion that the cases were filed against him to allegedly get back at
him for scolding AAA and CHRISTIELLYN for stealing two thousand (₱2,000.00) from their teacher and that his brother and sister were
allegedly envious of him because they wanted his house and because he was being commissioned by the then President Fidel V. Ramos
to write a book entitled Destiny 2000 is uncorroborated and is highly unbelievable. It has been consistently held that no member of a rape
victim's family would dare encourage the victim to publicly expose the dishonor to the family unless the crime was in fact
committed.28 Given the circumstances of the resent case, it is most unlikely that AAA nor her aunt, Marianita Ferriol y Pajo (MARIANITA)
who happens to be the sister of PAJO, would subject AAA to the embarrassment and stigma incident to a rape trial if the charges were
not true.

Pajo's inistence that LIQUIGAN should have been charged as a co-principal in all three rapes and not merely an accomplice to one rape,
does not affect the culpability of PAJO for the crimes charged and is not enough reason to acquit him. In criminal prosecutions, it is the
prosecution that determines the charges to be filed and how the legal and factual elements in the case shall be utilized as components
of the information.29 It is basically the fiscal's function to the fiscal to determine what degree of complicity to the commission of a crime a
person should be charged with, whether as principal, accomplice or accessory.

PAJO makes much of the fact that it took AAA exactly six (6) months and one (1) day or after being assaulted three times and only after
her younger sister, BBB revealed the commission of the crime against her that she revealed the assaults committed against her by her
father. However, this Court has time and again ruled that the fact that the failure of the complainant to report the rape to the immediate
members of her family or to the police does not detract from her credibility for her hesitation can be attributed to her age and the moral
ascendancy of the accused and his threats against the former. 30 We find this to be true in the present case.

Finally, the alleged inconsistency between the findings of the medical examinations conducted on AAA contained in the medical reports
prepared by the PNP31 and the NBI32 is not sufficient to warrant the reversal of the judgment of conviction. The overwhelming evidence
consisting of the testimonies of both AAA and BBB, which were thoroughly consistent with each other, is sufficient to establish PAJO's
guilt beyond reasonable doubt. Moreover, the inconsistency between the two medical reports only gives rise to the question of whether
AAA was subjected to force and violence as shown by the presence of external signs of physical injuries. Even assuming that no physical
injuries were found on AAA's body, such does not negate that PAJO raped her nor does it render the evidence submitted by the
prosecution insufficient to establish the element of force or violence. When a father commits rape against his own daughter, the former's
moral ascendancy and influence over the latter substitutes for violence or intimidation. 33

In sum, AAAS's clear and straightforward testimony, as corroborated by that of BBB, leads to the inescapable conclusion that the crimes
of rape have been committed and PAJO is guilty of these crimes.

Article 335 of the Revised Penal Code, as amended by Republic Act No.7659, provides:

"The death penalty shall be imposed if the crime of rape is committed with any of the following attendant circumstances:

1. when the victim is under eighteen (18) years of age and the offender is a parent, ascendant, stepparent, guardian, relative by
consanguinity or affinity within the third civil degree or the common-law spouse of the parent of the victim."
The three informations charging, PAJO with three counts of rape clearly alleged that he had carnal knowledge with his daughter, AAA,
who was 13 years old at the time of the rapes as shown by her certificate of live birth 34 having been born on April 13, 1983. Her birth
certificate likewise shows that PAJO is her father. Moreover, the prosecution presented AAA's aunt, MARIANITA, who testified that AAA
was her niece and that she was the daughter of PAJO who is her brother. 35 Moreover, PAJO in his testimony admitted that AAA was his
daughter.36

The concurrence of minority of the AAA and her relationship to PAJO, having been alleged in the information and duly proved with
certainty and clearness as the crime itself during trial, constrains the Court to affirm the conviction of PAJO of three counts of qualified
rape, justifying the imposition of the death penalty for each count on him. As to PAJO's civil liability, we award AAA the amounts of
₱75,000.00 as civil indemnity and ₱50,000.00 as moral damages for each count of rape considering that the crime was committed under
circumstances which justify the imposition of the death penalty in accordance with prevailing jurisprudence. 37

Four justices of the Court maintain that R.A. 7659 is unconstitutional insofar as it prescribes the death penalty; nevertheless they submit
to the ruling of the majority to the effect that the law is constitutional and that the death penalty can be lawfully imposed in the case at
bar.1âwphi1

WHEREFORE, the appealed decision of the Regional Trial Court finding the accused JOSE PAJO y BAGTONG guilty beyond reasonable
doubt of three counts of qualified rape in Criminal Cases Nos. 97-233, 97-664 and 97-665 is AFFIRMED. The accused-appellant is hereby
sentenced to DEATH and he is further ordered to pay the victim, AAA Pajo y Navarro, the amounts of ₱75,000.00 as civil indemnity and
₱50,000.00 as moral damages for each count of rape.

The appeals of JOSE PAJO y BAGTONG in Criminal Cases Nos. 97-666 and 97-667 and the appeal of IMELDA LIQUIGAN y KASIBAYAN
in Criminal Case No. 97-664 are hereby DISMISSED and the decisions therein are final and executory.

Upon finality of this decision, let certified true copies thereof as well as the records of this case be forthwith forwarded to the Office of the
President for possible exercise of his pardoning power.

No pronouncement as to costs.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-
Santiago, and De Leon, JJ., concur.