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Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 74457 March 20, 1987
RESTITUTO YNOT, petitioner,
vs.
INTERMEDIATE APPELLATE COURT, THE STATION COMMANDER, INTEGRATED
NATIONAL POLICE, BAROTAC NUEVO, ILOILO and THE REGIONAL DIRECTOR,
BUREAU OF ANIMAL INDUSTRY, REGION IV, ILOILO CITY, respondents.
Ramon A. Gonzales for petitioner.

CRUZ, J.:
The essence of due process is distilled in the immortal cry of Themistocles to Alcibiades
"Strike but hear me first!" It is this cry that the petitioner in effect repeats here as he
challenges the constitutionality of Executive Order No. 626-A.
The said executive order reads in full as follows:
WHEREAS, the President has given orders prohibiting the interprovincial
movement of carabaos and the slaughtering of carabaos not complying
with the requirements of Executive Order No. 626 particularly with respect
to age;
WHEREAS, it has been observed that despite such orders the violators
still manage to circumvent the prohibition against inter-provincial
movement of carabaos by transporting carabeef instead; and
WHEREAS, in order to achieve the purposes and objectives of Executive
Order No. 626 and the prohibition against interprovincial movement of
carabaos, it is necessary to strengthen the said Executive Order and
provide for the disposition of the carabaos and carabeef subject of the
violation;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the


Philippines, by virtue of the powers vested in me by the Constitution, do
hereby promulgate the following:
SECTION 1. Executive Order No. 626 is hereby amended such that
henceforth, no carabao regardless of age, sex, physical condition or
purpose and no carabeef shall be transported from one province to
another. The carabao or carabeef transported in violation of this Executive
Order as amended shall be subject to confiscation and forfeiture by the
government, to be distributed to charitable institutions and other similar
institutions as the Chairman of the National Meat Inspection Commission
may ay see fit, in the case of carabeef, and to deserving farmers through
dispersal as the Director of Animal Industry may see fit, in the case of
carabaos.
SECTION 2. This Executive Order shall take effect immediately.
Done in the City of Manila, this 25th day of October, in the year of Our
Lord, nineteen hundred and eighty.
(SGD.)
FERDINAND E.
MARCOS
Presid
ent
Republic of the
Philippines
The petitioner had transported six carabaos in a pump boat from Masbate to Iloilo on
January 13, 1984, when they were confiscated by the police station commander of
Barotac Nuevo, Iloilo, for violation of the above measure. 1 The petitioner sued for recovery, and the
Regional Trial Court of Iloilo City issued a writ of replevin upon his filing of a supersedeas bond of P12,000.00. After considering the merits of
the case, the court sustained the confiscation of the carabaos and, since they could no longer be produced, ordered the confiscation of the
bond. The court also declined to rule on the constitutionality of the executive order, as raise by the petitioner, for lack of authority and also for
its presumed validity.

The petitioner appealed the decision to the Intermediate Appellate Court, * 3 which upheld the trial court, **
and he has now come before us in this petition for review on certiorari.
The thrust of his petition is that the executive order is unconstitutional insofar as it authorizes outright confiscation of the carabao or carabeef
being transported across provincial boundaries. His claim is that the penalty is invalid because it is imposed without according the owner a
right to be heard before a competent and impartial court as guaranteed by due process. He complains that the measure should not have

been presumed, and so sustained, as constitutional. There is also a challenge to the improper exercise of the legislative power by the former
President under Amendment No. 6 of the 1973 Constitution.

While also involving the same executive order, the case of Pesigan v. Angeles 5 is not applicable here.
The question raised there was the necessity of the previous publication of the measure in the Official
Gazette before it could be considered enforceable. We imposed the requirement then on the basis of due
process of law. In doing so, however, this Court did not, as contended by the Solicitor General, impliedly
affirm the constitutionality of Executive Order No. 626-A. That is an entirely different matter.
This Court has declared that while lower courts should observe a becoming modesty in examining
constitutional questions, they are nonetheless not prevented from resolving the same whenever
warranted, subject only to review by the highest tribunal. 6 We have jurisdiction under the Constitution to
"review, revise, reverse, modify or affirm on appeal or certiorari, as the law or rules of court may provide,"
final judgments and orders of lower courts in, among others, all cases involving the constitutionality of
certain measures. 7 This simply means that the resolution of such cases may be made in the first instance
by these lower courts.
And while it is true that laws are presumed to be constitutional, that presumption is not by any means
conclusive and in fact may be rebutted. Indeed, if there be a clear showing of their invalidity, and of the
need to declare them so, then "will be the time to make the hammer fall, and heavily," 8 to recall Justice
Laurel's trenchant warning. Stated otherwise, courts should not follow the path of least resistance by
simply presuming the constitutionality of a law when it is questioned. On the contrary, they should probe
the issue more deeply, to relieve the abscess, paraphrasing another distinguished jurist, 9 and so heal the
wound or excise the affliction.
Judicial power authorizes this; and when the exercise is demanded, there should be no shirking of the
task for fear of retaliation, or loss of favor, or popular censure, or any other similar inhibition unworthy of
the bench, especially this Court.
The challenged measure is denominated an executive order but it is really presidential decree,
promulgating a new rule instead of merely implementing an existing law. It was issued by President
Marcos not for the purpose of taking care that the laws were faithfully executed but in the exercise of his
legislative authority under Amendment No. 6. It was provided thereunder that whenever in his judgment
there existed a grave emergency or a threat or imminence thereof or whenever the legislature failed or
was unable to act adequately on any matter that in his judgment required immediate action, he could, in
order to meet the exigency, issue decrees, orders or letters of instruction that were to have the force and
effect of law. As there is no showing of any exigency to justify the exercise of that extraordinary power
then, the petitioner has reason, indeed, to question the validity of the executive order. Nevertheless, since
the determination of the grounds was supposed to have been made by the President "in his judgment, " a
phrase that will lead to protracted discussion not really necessary at this time, we reserve resolution of
this matter until a more appropriate occasion. For the nonce, we confine ourselves to the more
fundamental question of due process.
It is part of the art of constitution-making that the provisions of the charter be cast in precise and
unmistakable language to avoid controversies that might arise on their correct interpretation. That is the
Ideal. In the case of the due process clause, however, this rule was deliberately not followed and the
wording was purposely kept ambiguous. In fact, a proposal to delineate it more clearly was submitted in
the Constitutional Convention of 1934, but it was rejected by Delegate Jose P. Laurel, Chairman of the
Committee on the Bill of Rights, who forcefully argued against it. He was sustained by the body. 10

The due process clause was kept intentionally vague so it would remain also conveniently resilient. This was felt necessary because due
process is not, like some provisions of the fundamental law, an "iron rule" laying down an implacable and immutable command for all
seasons and all persons. Flexibility must be the best virtue of the guaranty. The very elasticity of the due process clause was meant to make
it adapt easily to every situation, enlarging or constricting its protection as the changing times and circumstances may require.
Aware of this, the courts have also hesitated to adopt their own specific description of due process lest they confine themselves in a legal
straitjacket that will deprive them of the elbow room they may need to vary the meaning of the clause whenever indicated. Instead, they have
preferred to leave the import of the protection open-ended, as it were, to be "gradually ascertained by the process of inclusion and exclusion
in the course of the decision of cases as they arise." 11 Thus, Justice Felix Frankfurter of the U.S. Supreme Court, for example, would go no
farther than to define due process and in so doing sums it all up as nothing more and nothing less than "the embodiment of the sporting
Idea of fair play." 12
When the barons of England extracted from their sovereign liege the reluctant promise that that Crown would thenceforth not proceed
against the life liberty or property of any of its subjects except by the lawful judgment of his peers or the law of the land, they thereby won for
themselves and their progeny that splendid guaranty of fairness that is now the hallmark of the free society. The solemn vow that King John
made at Runnymede in 1215 has since then resounded through the ages, as a ringing reminder to all rulers, benevolent or base, that every
person, when confronted by the stern visage of the law, is entitled to have his say in a fair and open hearing of his cause.
The closed mind has no place in the open society. It is part of the sporting Idea of fair play to hear "the other side" before an opinion is
formed or a decision is made by those who sit in judgment. Obviously, one side is only one-half of the question; the other half must also be
considered if an impartial verdict is to be reached based on an informed appreciation of the issues in contention. It is indispensable that the
two sides complement each other, as unto the bow the arrow, in leading to the correct ruling after examination of the problem not from one or
the other perspective only but in its totality. A judgment based on less that this full appraisal, on the pretext that a hearing is unnecessary or
useless, is tainted with the vice of bias or intolerance or ignorance, or worst of all, in repressive regimes, the insolence of power.
The minimum requirements of due process are notice and hearing 13 which, generally speaking, may not be dispensed with because they
are intended as a safeguard against official arbitrariness. It is a gratifying commentary on our judicial system that the jurisprudence of this
country is rich with applications of this guaranty as proof of our fealty to the rule of law and the ancient rudiments of fair play. We have
consistently declared that every person, faced by the awesome power of the State, is entitled to "the law of the land," which Daniel Webster
described almost two hundred years ago in the famous Dartmouth College Case, 14 as "the law which hears before it condemns, which
proceeds upon inquiry and renders judgment only after trial." It has to be so if the rights of every person are to be secured beyond the reach
of officials who, out of mistaken zeal or plain arrogance, would degrade the due process clause into a worn and empty catchword.
This is not to say that notice and hearing are imperative in every case for, to be sure, there are a number of admitted exceptions. The
conclusive presumption, for example, bars the admission of contrary evidence as long as such presumption is based on human experience
or there is a rational connection between the fact proved and the fact ultimately presumed therefrom. 15 There are instances when the need
for expeditions action will justify omission of these requisites, as in the summary abatement of a nuisance per se, like a mad dog on the
loose, which may be killed on sight because of the immediate danger it poses to the safety and lives of the people. Pornographic materials,
contaminated meat and narcotic drugs are inherently pernicious and may be summarily destroyed. The passport of a person sought for a
criminal offense may be cancelled without hearing, to compel his return to the country he has fled. 16 Filthy restaurants may be summarily
padlocked in the interest of the public health and bawdy houses to protect the public morals. 17 In such instances, previous judicial hearing
may be omitted without violation of due process in view of the nature of the property involved or the urgency of the need to protect the
general welfare from a clear and present danger.
The protection of the general welfare is the particular function of the police power which both restraints and is restrained by due process. The
police power is simply defined as the power inherent in the State to regulate liberty and property for the promotion of the general welfare. 18
By reason of its function, it extends to all the great public needs and is described as the most pervasive, the least limitable and the most
demanding of the three inherent powers of the State, far outpacing taxation and eminent domain. The individual, as a member of society, is
hemmed in by the police power, which affects him even before he is born and follows him still after he is dead from the womb to beyond
the tomb in practically everything he does or owns. Its reach is virtually limitless. It is a ubiquitous and often unwelcome intrusion. Even
so, as long as the activity or the property has some relevance to the public welfare, its regulation under the police power is not only proper
but necessary. And the justification is found in the venerable Latin maxims, Salus populi est suprema lex and Sic utere tuo ut alienum non
laedas, which call for the subordination of individual interests to the benefit of the greater number.
It is this power that is now invoked by the government to justify Executive Order No. 626-A, amending the basic rule in Executive Order No.
626, prohibiting the slaughter of carabaos except under certain conditions. The original measure was issued for the reason, as expressed in
one of its Whereases, that "present conditions demand that the carabaos and the buffaloes be conserved for the benefit of the small farmers
who rely on them for energy needs." We affirm at the outset the need for such a measure. In the face of the worsening energy crisis and the
increased dependence of our farms on these traditional beasts of burden, the government would have been remiss, indeed, if it had not
taken steps to protect and preserve them.

A similar prohibition was challenged in United States v. Toribio, 19 where a law regulating the registration, branding and slaughter of large
cattle was claimed to be a deprivation of property without due process of law. The defendant had been convicted thereunder for having
slaughtered his own carabao without the required permit, and he appealed to the Supreme Court. The conviction was affirmed. The law was
sustained as a valid police measure to prevent the indiscriminate killing of carabaos, which were then badly needed by farmers. An epidemic
had stricken many of these animals and the reduction of their number had resulted in an acute decline in agricultural output, which in turn
had caused an incipient famine. Furthermore, because of the scarcity of the animals and the consequent increase in their price, cattlerustling had spread alarmingly, necessitating more effective measures for the registration and branding of these animals. The Court held that
the questioned statute was a valid exercise of the police power and declared in part as follows:
To justify the State in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the
public generally, as distinguished from those of a particular class, require such interference; and second, that the
means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon
individuals. ...
From what has been said, we think it is clear that the enactment of the provisions of the statute under consideration
was required by "the interests of the public generally, as distinguished from those of a particular class" and that the
prohibition of the slaughter of carabaos for human consumption, so long as these animals are fit for agricultural work or
draft purposes was a "reasonably necessary" limitation on private ownership, to protect the community from the loss of
the services of such animals by their slaughter by improvident owners, tempted either by greed of momentary gain, or
by a desire to enjoy the luxury of animal food, even when by so doing the productive power of the community may be
measurably and dangerously affected.
In the light of the tests mentioned above, we hold with the Toribio Case that the carabao, as the poor man's tractor, so to speak, has a direct
relevance to the public welfare and so is a lawful subject of Executive Order No. 626. The method chosen in the basic measure is also
reasonably necessary for the purpose sought to be achieved and not unduly oppressive upon individuals, again following the above-cited
doctrine. There is no doubt that by banning the slaughter of these animals except where they are at least seven years old if male and eleven
years old if female upon issuance of the necessary permit, the executive order will be conserving those still fit for farm work or breeding and
preventing their improvident depletion.
But while conceding that the amendatory measure has the same lawful subject as the original executive order, we cannot say with equal
certainty that it complies with the second requirement, viz., that there be a lawful method. We note that to strengthen the original measure,
Executive Order No. 626-A imposes an absolute ban not on the slaughter of the carabaos but on their movement, providing that "no carabao
regardless of age, sex, physical condition or purpose (sic) and no carabeef shall be transported from one province to another." The object of
the prohibition escapes us. The reasonable connection between the means employed and the purpose sought to be achieved by the
questioned measure is missing
We do not see how the prohibition of the inter-provincial transport of carabaos can prevent their indiscriminate slaughter, considering that
they can be killed anywhere, with no less difficulty in one province than in another. Obviously, retaining the carabaos in one province will not
prevent their slaughter there, any more than moving them to another province will make it easier to kill them there. As for the carabeef, the
prohibition is made to apply to it as otherwise, so says executive order, it could be easily circumvented by simply killing the animal. Perhaps
so. However, if the movement of the live animals for the purpose of preventing their slaughter cannot be prohibited, it should follow that there
is no reason either to prohibit their transfer as, not to be flippant dead meat.
Even if a reasonable relation between the means and the end were to be assumed, we would still have to reckon with the sanction that the
measure applies for violation of the prohibition. The penalty is outright confiscation of the carabao or carabeef being transported, to be meted
out by the executive authorities, usually the police only. In the Toribio Case, the statute was sustained because the penalty prescribed was
fine and imprisonment, to be imposed by the court after trial and conviction of the accused. Under the challenged measure, significantly, no
such trial is prescribed, and the property being transported is immediately impounded by the police and declared, by the measure itself, as
forfeited to the government.
In the instant case, the carabaos were arbitrarily confiscated by the police station commander, were returned to the petitioner only after he
had filed a complaint for recovery and given a supersedeas bond of P12,000.00, which was ordered confiscated upon his failure to produce
the carabaos when ordered by the trial court. The executive order defined the prohibition, convicted the petitioner and immediately imposed
punishment, which was carried out forthright. The measure struck at once and pounced upon the petitioner without giving him a chance to be
heard, thus denying him the centuries-old guaranty of elementary fair play.
It has already been remarked that there are occasions when notice and hearing may be validly dispensed with notwithstanding the usual
requirement for these minimum guarantees of due process. It is also conceded that summary action may be validly taken in administrative
20

In the exceptional cases accepted, however. there


is a justification for the omission of the right to a previous hearing, to wit, the immediacy of the problem
sought to be corrected and the urgency of the need to correct it.
proceedings as procedural due process is not necessarily judicial only.

In the case before us, there was no such pressure of time or action calling for the petitioner's peremptory
treatment. The properties involved were not even inimical per se as to require their instant destruction.
There certainly was no reason why the offense prohibited by the executive order should not have been
proved first in a court of justice, with the accused being accorded all the rights safeguarded to him under
the Constitution. Considering that, as we held in Pesigan v. Angeles, 21 Executive Order No. 626-A is
penal in nature, the violation thereof should have been pronounced not by the police only but by a court of
justice, which alone would have had the authority to impose the prescribed penalty, and only after trial
and conviction of the accused.
We also mark, on top of all this, the questionable manner of the disposition of the confiscated property as
prescribed in the questioned executive order. It is there authorized that the seized property shall "be
distributed to charitable institutions and other similar institutions as the Chairman of the National Meat
Inspection Commission may see fit, in the case of carabeef, and to deserving farmers through dispersal
as the Director of Animal Industry may see fit, in the case of carabaos." (Emphasis supplied.) The phrase
"may see fit" is an extremely generous and dangerous condition, if condition it is. It is laden with perilous
opportunities for partiality and abuse, and even corruption. One searches in vain for the usual standard
and the reasonable guidelines, or better still, the limitations that the said officers must observe when they
make their distribution. There is none. Their options are apparently boundless. Who shall be the fortunate
beneficiaries of their generosity and by what criteria shall they be chosen? Only the officers named can
supply the answer, they and they alone may choose the grantee as they see fit, and in their own exclusive
discretion. Definitely, there is here a "roving commission," a wide and sweeping authority that is not
"canalized within banks that keep it from overflowing," in short, a clearly profligate and therefore invalid
delegation of legislative powers.
To sum up then, we find that the challenged measure is an invalid exercise of the police power because
the method employed to conserve the carabaos is not reasonably necessary to the purpose of the law
and, worse, is unduly oppressive. Due process is violated because the owner of the property confiscated
is denied the right to be heard in his defense and is immediately condemned and punished. The
conferment on the administrative authorities of the power to adjudge the guilt of the supposed offender is
a clear encroachment on judicial functions and militates against the doctrine of separation of powers.
There is, finally, also an invalid delegation of legislative powers to the officers mentioned therein who are
granted unlimited discretion in the distribution of the properties arbitrarily taken. For these reasons, we
hereby declare Executive Order No. 626-A unconstitutional.
We agree with the respondent court, however, that the police station commander who confiscated the
petitioner's carabaos is not liable in damages for enforcing the executive order in accordance with its
mandate. The law was at that time presumptively valid, and it was his obligation, as a member of the
police, to enforce it. It would have been impertinent of him, being a mere subordinate of the President, to
declare the executive order unconstitutional and, on his own responsibility alone, refuse to execute it.
Even the trial court, in fact, and the Court of Appeals itself did not feel they had the competence, for all
their superior authority, to question the order we now annul.
The Court notes that if the petitioner had not seen fit to assert and protect his rights as he saw them, this
case would never have reached us and the taking of his property under the challenged measure would
have become a fait accompli despite its invalidity. We commend him for his spirit. Without the present
challenge, the matter would have ended in that pump boat in Masbate and another violation of the
Constitution, for all its obviousness, would have been perpetrated, allowed without protest, and soon
forgotten in the limbo of relinquished rights.

The strength of democracy lies not in the rights it guarantees but in the courage of the people to invoke
them whenever they are ignored or violated. Rights are but weapons on the wall if, like expensive
tapestry, all they do is embellish and impress. Rights, as weapons, must be a promise of protection. They
become truly meaningful, and fulfill the role assigned to them in the free society, if they are kept bright and
sharp with use by those who are not afraid to assert them.
WHEREFORE, Executive Order No. 626-A is hereby declared unconstitutional. Except as affirmed above,
the decision of the Court of Appeals is reversed. The supersedeas bond is cancelled and the amount
thereof is ordered restored to the petitioner. No costs.
SO ORDERED.
Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez, Jr., Paras, Gancayco, Padilla Bidin Sarmiento and
Cortes, JJ., concur.
Melencio-Herrera and Feliciano, JJ., are on leave.

Republic of the Philippines


SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 125865

January 28, 2000

JEFFREY LIANG (HUEFENG), petitioner,


vs.
PEOPLE OF THE PHILIPPINES, respondent.
YNARES-SANTIAGO, J.:
Petitioner is an economist working with the Asian Development Bank (ADB). Sometime in
1994, for allegedly uttering defamatory words against fellow ADB worker Joyce Cabal, he was
charged before the Metropolitan Trial Court (MeTC) of Mandaluyong City with two counts of
grave oral defamation docketed as Criminal Cases Nos. 53170 and 53171. Petitioner was
arrested by virtue of a warrant issued by the MeTC. After fixing petitioner's bail at P2,400.00 per
criminal charge, the MeTC released him to the custody of the Security Officer of ADB. The next
day, the MeTC judge received an "office of protocol" from the Department of Foreign Affairs
(DFA) stating that petitioner is covered by immunity from legal process under Section 45 of the
Agreement between the ADB and the Philippine Government regarding the Headquarters of the
ADB (hereinafter Agreement) in the country. Based on the said protocol communication that
petitioner is immune from suit, the MeTC judge without notice to the prosecution dismissed the
two criminal cases. The latter filed a motion for reconsideration which was opposed by the DFA.
When its motion was denied, the prosecution filed a petition for certiorari and mandamus with
the Regional Trial Court (RTC) of Pasig City which set aside the MeTC rulings and ordered the
latter court to enforce the warrant of arrest it earlier issued. After the motion for reconsideration
was denied, petitioner elevated the case to this Court via a petition for review arguing that he is
covered by immunity under the Agreement and that no preliminary investigation was held before
the criminal cases were filed in court.1wphi1.nt
The petition is not impressed with merit.
First, courts cannot blindly adhere and take on its face the communication from the DFA that
petitioner is covered by any immunity. The DFA's determination that a certain person is covered
by immunity is only preliminary which has no binding effect in courts. In receiving ex-parte the
DFA's advice and in motu propio dismissing the two criminal cases without notice to the
prosecution, the latter's right to due process was violated. It should be noted that due process is a
right of the accused as much as it is of the prosecution. The needed inquiry in what capacity

petitioner was acting at the time of the alleged utterances requires for its resolution evidentiary
basis that has yet to be presented at the proper time.1 At any rate, it has been ruled that the mere
invocation of the immunity clause does not ipso facto result in the dropping of the charges.2
Second, under Section 45 of the Agreement which provides:
Officers and staff of the Bank including for the purpose of this Article experts and
consultants performing missions for the Bank shall enjoy the following privileges and
immunities:
a.) immunity from legal process with respect to acts performed by them in their
official capacity except when the Bank waives the immunity.
the immunity mentioned therein is not absolute, but subject to the exception that the acts was
done in "official capacity." It is therefore necessary to determine if petitioner's case falls within
the ambit of Section 45(a). Thus, the prosecution should have been given the chance to rebut the
DFA protocol and it must be accorded the opportunity to present its controverting evidence,
should it so desire.
Third, slandering a person could not possibly be covered by the immunity agreement because our
laws do not allow the commission of a crime, such as defamation, in the name of official duty.3
The imputation of theft is ultra vires and cannot be part of official functions. It is well-settled
principle of law that a public official may be liable in his personal private capacity for whatever
damage he may have caused by his act done with malice or in bad faith or beyond the scope of
his authority or jurisdiction.4 It appears that even the government's chief legal counsel, the
Solicitor General, does not support the stand taken by petitioner and that of the DFA.
Fourth, under the Vienna Convention on Diplomatic Relations, a diplomatic agent, assuming
petitioner is such, enjoys immunity from criminal jurisdiction of the receiving state except in the
case of an action relating to any professional or commercial activity exercised by the diplomatic
agent in the receiving state outside his official functions.5 As already mentioned above, the
commission of a crime is not part of official duty.
Finally, on the contention that there was no preliminary investigation conducted, suffice it to say
that preliminary investigation is not a matter of right in cases cognizable by the MeTC such as
the one at bar.6 Being purely a statutory right, preliminary investigation may be invoked only
when specifically granted by law.7 The rule on the criminal procedure is clear that no preliminary
investigation is required in cases falling within the jurisdiction of the MeTC.8 Besides the
absence of preliminary investigation does not affect the court's jurisdiction nor does it impair the
validity of the information or otherwise render it defective.9

WHEREFORE, the petition is DENIED.


SO ORDERED.1wphi1.nt
Davide, Jr., C.J., Puno, Kapunan and Pardo, JJ., concur.

Republic of the Philippines


SUPREME COURT
Manila
FIRST DIVISION

G.R. No. 127107 October 12, 1998


PETER PAUL DIMATULAC and VERONICA DIMATULAC, petitioners,
vs.
HON. SESINANDO VILLON in his capacity as Presiding Judge of the Regional Trial Court of Pampanga, Branch 54; HON. TEOFISTO
GUINGONA, in his capacity as Secretary of Justice; MAYOR SANTIAGO YABUT, SERVILLANO YABUT, MARTIN YABUT and
FORTUNATO MALLARI, respondents.

DAVIDE, JR., J.:

and by the Office of the Solicitor General in its Comment 2 in


this special civil action for certiorari, prohibition and mandamus under Rule 65 of the Rules of Court filed
by petitioners, children of the deceased Police Officer 3 (PO3) Virgilio Dimatulac of Masantol, Pampanga,
may be summarized as follows:
The issues raised by petitioners in their Memorandum

A. WHETHER THE OFFICE OF THE PROVINCIAL PROSECUTOR


COMMITTED GRAVE ABUSE OF DISCRETION IN: (1) GIVING DUE
COURSE TO THE MOTION FOR REINVESTIGATION BY PRIVATE
RESPONDENTS AGAINST WHOM WARRANTS OF ARREST WERE
ISSUED BUT WHO HAD NOT YET BEEN BROUGHT INTO THE
CUSTODY Of THE LAW; and (2) FILING THE INFORMATION FOR
HOMICIDE DESPITE KNOWLEDGE OF THE APPEAL FROM SAID
PROSECUTOR'S RESOLUTION TO THE OFFICE OF THE
SECRETARY OF JUSTICE.
B. WHETHER PUBLIC RESPONDENT JUDGE ACTED IN EXCESS OF
JURISDICTION IN PROCEEDING WITH THE ARRAIGNMENT AND IN
DENYING PETITIONERS' MOTIONS TO SET ASIDE ARRAIGNMENT
AND RECONSIDERATION THEREOF DESPITE HIS KNOWLEDGE OF
THE PENDENCY OF THE APPEAL AND THE SUBMISSION OF VITAL
EVIDENCE TO PROVE THAT MURDER AND NOT HOMICIDE WAS
COMMITTED BY THE ACCUSED.
C. WHETHER PUBLIC RESPONDENT SECRETARY OF JUSTICE
COMMITTED GRAVE ABUSE OF DISCRETION IN RECONSIDERING
HIS ORDER FINDING THAT THE CRIME COMMITTED WAS MURDER
AND DIRECTING THE PROVINCIAL PROSECUTOR TO AMEND THE
INFORMATION FROM HOMICIDE TO MURDER.
The records and the pleadings of the parties disclose the antecedents.

On 3 November 1995, SPO3 Virgilio Dimatulac was shot dead at his residence in Barangay San Nicolas,
Masantol, Pampanga.
On 5 November 1995, a complaint for Murder was filed before the Municipal Circuit Trial Court (MCTC) of
Macabebe-Masantol in Macabebe, Pampanga, by SPO1 Renato Layug of the Masantol Police Station
against private respondents Mayor Santiago Yabut, Martin Yabut, Servillano Yabut, Evelino David, Justino
Mandap, Casti David, Francisco Yambao, Juan Magat, Arturo Naguit, Fortunato Mallari, Jesus de la Cruz,
Joselito Miranda, SPO3 Gilberto Malabanan, Aniano Magnaye, Vladimir Yumul, a certain "Danny," and a
certain "Koyang/Arding." The complaint was docketed as Criminal Case No. 95-360. After conducting a
preliminary examination in the form of searching questions and answers, and finding probable cause,
Judge Designate Serafin B. David of the MCTC issued warrants for the arrest of the accused and directed
them to file their counter-affidavits.
Only accused Evelino David, Justino Mandap, Juan Magat and Francisco Yambao were arrested; while
only Francisco Yambao submitted his counter affidavit. 3
On 1 December 1995, after appropriate proceedings, Judge David issued a Resolution 4 in Criminal Case
No. 95-360 finding reasonable ground to believe that the crime of murder had been committed and that
the accused were probably guilty thereof. His findings of fact and conclusions were as follows:
That on or about November 3, 1995, all the accused under the leadership of Mayor
Santiago "Docsay" Yabut, including two John Does identified only as Dan/Danny and
Koyang/Arding, went to Masantol, Pampanga for the purpose of looking for a certain PO3
Virgilio Dimatulac.
At first, the accused, riding on [sic] a truck, went to the Municipal Hall of Masantol,
Pampanga inquiring about PO3 Virgilio Dimatulac. Thereafter, they went to the house of
Mayor Lacap for the purpose of inquiring [about] the [the location of the] house of PO3
Virgilio Dimatulac, until finally, they were able to reach the house of said Virgilio
Dimatulac at San Nicolas, Masantol, Pampanga.
Upon reaching the house of PO3 Virgilio Dimatulac, the truck the accused were all riding,
stopped and parked in front of the house of said PO3 Virgilio Dimatulac, some of the
accused descended from the truck and positioned themselves around the house while
others stood by the truck and the Mayor stayed [in] the truck with a bodyguard.
Accused Billy Yabut, Kati Yabut and Francisco Yambao, went inside the house of Virgilio
Dimatulac [and] were even offered coffee.
[A]ccused Yabut brothers (Kati and Billy) strongly suggested to Virgilio Dimatulac to go
down to see the Mayor outside in front of his house to say sorry.
[W]hen Virgilio Dimatulac went down his house, suddenly [a] gun shot was heard and
then, the son of Virgilio Dimatulac, Peter Paul, started to shout the following words: "What
did you do to my father?!"

One of the men of Mayor "Docsay" Yabut shot Virgilio Dimatulac, and as a consequence,
he died; and before he expired, he left a dying declaration pointing to the group of Mayor
"Docsay" Yabut as the one responsible.
That right after Virgilio Dimatulac was shot, accused "Docsay" Yabut ordered his men to
go on board the truck and immediately left away leaving Virgilio Dimatulac bleeding and
asking for help.
On their way home to Minalin, accused Santiago "Docsay" Yabut gave money to accused
John Doe Dan/Danny and Francisco "Boy" Yambao was asked to bring the accused John
Doe to Nueva Ecija which he did.
Further, accused Santiago "Docsay" Yabut told his group to deny that they ever went to
Masantol.
The court, after having conducted preliminary examination on the complainant and the
witnesses presented, [is] satisfied that there is a [sic] reasonable ground to believe that
the crime of murder was committed and that the accused in conspiring and confederating
with one another are probably guilty thereof.
Circumstantial evidence strongly shows the presence of conspiracy.
That in order not to frustrate the ends of justice, warrants of arrest were issued against
Santiago Yabut, Martin Yabut, Servillano Yabut, Francisco Yambao, Avelino David, Casti
David, Catoy Naguit, Fortunato Mallari, Boy dela Cruz, Lito Miranda and Juan Magat with
no bail recommended.
However, with respect to accused Dan/Danny and Koyang/Arding, the court directed the
police authorities to furnish the court [a] description personae of the accused for the
purpose of issuing the needed warrant of arrest.
The accused were furnish [sic] copies of the complaint and affidavits of witnesses for
them to file their counter-affidavits in accordance to [sic] law.
As of this date, only accused Francisco "Boy" Yambao filed his counter-affidavit and all
the others waived the filing of the same.
A close evaluation of the evidence submitted by the accused Francisco Yambao which
the court finds it [sic] straightforward and more or less credible and seems to be
consistent with truth, human nature and [the] natural course of things and lack of motives
[sic], the evidence of guilt against him is rather weak [compared to] the others, which [is
why] the court recommends a cash bond of P50,000.00 for his provisional liberty, and the
court's previous order of no bail for said accused is hereby reconsidered.
WHEREFORE, premises considered, the Clerk of Court is directed to forward he entire
records of the case to the Office of the Provincial Prosecutor of Pampanga for further
action, together with the bodies of accused Francisco Yambao and Juan Magat to be
remanded to the provincial Jail of Pampanga. 5 (emphasis supplied)

In a sworn statement, 6 petitioner Peter Paul Dimatulac narrated that Mayor Santiago Yabut, accompanied
by a number of bodyguards, went to the residence of PO3 Virgilio Dimatulac to talk about a problem
between the Mayor and Peter Paul's uncle, Jun Dimatulac. Virgilio warmly welcomed the group and even
prepared coffee for them. Servillano and Martin Yabut told Virgilio to come down from his house and
apologize to the Mayor, but hardly had Virgilio descended when Peter Paul heard a gunshot. While Peter
Paul did not see who fired the shot, he was sure it was one of Mayor Yabut's companions. Peter Paul
opined that his father was killed because the latter spoke to the people of Minalin, Pampanga, against the
Mayor, Peter Paul added in a supplemental statement (Susog na Salaysay) 7 that he heard Mayor Yabut
order Virgilio killed.
It his Sinumpaang Salaysay, 8 Police Officer Leopoldo Soriano of the Masantol Municipal Police Station in
Masantol, Pampanga, declared that on 3 November 1995, between 3:30 and 4:00 p.m., while he was at
the polite station, three men approached him and asked for directions to the house of Mayor Epifanio
Lacap. Soriano recognized one of the men as SPO1 Labet Malabanan of Minalin, Pampanga. The group
left after Soriano gave them directions, but one of the three returned to ask whether PO3 Virgilio
Dimatulac was on duty, to which Soriano replied that Dimatulac was at home. The group left on board a
military truck headed for San Nicolas, Masantol, Pampanga. Later that day, SPO2 Michael Viray received
a telephone call at the police station reporting that someone had shot Virgilio Dimatulac.
Thereafter, Pampanga Assistant Provincial Prosecutor Sylvia Q. Alfonso-Flores conducted a
reinvestigation. However, it is not clear from the record whether she conducted the same motu proprio or
upon motion of private respondents Santiago Yabut, Servillano Yabut and Martin Yabut (hereafter
YABUTs). All of the accused who had not submitted their counter-affidavits before the MCTC, except
accused "Danny" and "Koyang/Arding," submitted their counter-affidavits to Assistant Provincial
Prosecutor Alfonso Flores.
In her Resolution dated 29 January 1996, 9 Assistant Provincial Prosecutor Alfonso-Flores found that the
YABUTs and the assailant Danny, to the exclusion of the other accused, were in conspiracy with one
another, but that the offense committed was only homicide, not murder. In support of such finding,
Alfonso-Flores reasoned thus:
The complainant in this case charges the crime of Murder qualified by treachery. It must
be noted that to constitute treachery, two conditions must be present, to wit, 1) the
employment of the [sic] means of execution were give [sic] the person attacked no
opportunity to defend himself or to retaliate; and 2) the means of execution were
deliberately or consciously adopted . . . .
In the instant case, the presence of the first requisite was clearly established by the
evidence, such that the attack upon the victim while descending the stairs was so sudden
and unexpected as to render him no opportunity to defend himself or to retaliate.
However, the circumstances, as portrayed by witness Peter Paul Dimatulac, negate the
presence of the second requisite. According to the said witness, the victim was already
descending when Mayor Yabut commanded the assailant to shoot him, and immediately
thereafter, he heard the gunshot. This would therefore show that the assailant did not
consciously adopt the position of the victim at the time he fired the fatal shot. The
command of Mayor Yabut to shoot came so sudden as to afford no opportunity for the
assailant to choose the means or method of attack. The act of Mayor Yabut in giving the
command to shoot further bolster[s] the fact that the conspirator did not concert the

means and method of attack nor the manner thereof. Otherwise there would have been
no necessity for him to give the order to the assailant. The method and manner of attack
was adopted by the assailant at the spur of the moment and the vulnerable position of the
victim was not deliberately and consciously adopted. Treachery therefore could not be
appreciated and the crime reasonably believe[d] to have been committed is Homicide as
no circumstance would qualify the killing to murder.
Alfonso-Flores then ruled:
WHEREFORE, in view of the foregoing, it is hereby recommended that:
1. An information be filed with the proper court charging
Santiago, Servillano and Martin all surnamed Yabut, and
one John Doe alias Danny as conspirators in the crime
of Homicide;
2. The case be dismissed against accused Evelino
David, Justino Mandap a.k.a. Casti David, Francisco
Yambao, Juan Magat, Arturo Naguit, Bladimir Dimatulac,
Fortunato Mallari, Aniano Magnaye, Gilberto Malabanan,
Jesus dela Cruz and Joselito Miranda.
Bail of P20,000.00 for each of the accused is likewise recommended.
The Resolution discloses that Alfonso-Flores conducted a hearing on 11 January 1996 and clarificatory
questions were propounded only to Peter Paul Dimatulac.
On 23 February 1996, before the Information for homicide was filed, complainants, herein petitioners,
appealed the resolution of Alfonso-Flores to the Secretary of the Department of Justice (DOJ). 10 They
alleged in their appeal that:
1. THE ASSISTANT PROVINCIAL PROSECUTOR NOT ONLY ERRED
IN RULING THAT THERE WAS NO TREACHERY TO QUALIFY THE
CRIME TO MURDER, BUT LIKEWISE ERRED IN NOT APPRECIATING
THE PRESENCE OF OTHER QUALIFYING CIRCUMSTANCES, TO
WIT:
(A) THAT THE ACCUSED COMMITTED THE CRIME
WITH THE AID OF ARMED MEN AND WITH THE USE
OF A PERSON TO INSURE OR AFFORD IMPUNITY;
(B) THAT THE CRIME WAS COMMITTED IN
CONSIDERATION OF A PRICE, REWARD, OR
PROMISE;
(C) THAT THE CRIME WAS COMMITTED ON THE
OCCASION OF A DESTRUCTIVE CYCLONE, WHEN

THE SUPER-TYPHOON "ROSING" WAS RAGING ON


NOVEMBER 3, 1995;
(D) THAT THE CRIME WAS COMMITTED WITH
EVIDENT PREMEDITATION;
2. THAT THE HONORABLE INVESTIGATING ASSISTANT
PROSECUTOR ERRED IN DISMISSING THE COMPLAINT AGAINST
FORTUNATO MALLARI AND FRANCISCO YAMBAO BY RULING OUT
CONSPIRACY WITH THE YABUT BROTHERS AS AGAINST
FORTUNATO MALLARI AND NOT CHARGING FRANCISCO YAMBAO
AS AN ACCESSORY TO MURDER.
To refute Alfonso-Flores' finding that the means of execution were not deliberately adopted, petitioners
asserted that the meeting of the accused and the victim was not accidental as the former purposely
searched for the victim at the height of a typhoon, while accused Mayor Santiago Yabut even remarked to
his co-accused "Danny," "Dikitan mo lang, alam mo na kung ano ang gagawin mo, bahala ka na" (Just
stay close to him, you know what to do). Thus, Danny positioned himself near the stairs to goad the victim
to come out of his house, while Fortunato Mallari represented to the deceased that the latter was being
invited by a certain General Ventura. When the victim declined the invitation by claiming he was sick,
accused Servillano Yabut persuaded the victim to come down by saying, "[T]o settle this matter, just
apologize to the Mayor who is in the truck." In view of that enticement, the victim came down, while Danny
waited in ambush. To emphasize the accused's resolve to kill the deceased, petitioners further narrated
that when the deceased ran away after the first shot, the gunman still pursued him, while Mayor Santiago
Yabut, who was a doctor, kept away at a safe distance and told everyone in the truck, "Tama na, bilisan
ninyo," (That's enough, move quickly) without giving medical assistance to the deceased and without
exerting any effort to arrest the gunman.
The Office of the Provincial Prosecutor of Pampanga was furnished with a copy of the Appeal.
On 26 February 1996, Provincial Prosecutor Jesus Y. Manarang issued a Resolution 11 ordering the
release of accused Evelino David, Justino Mandap, Juan Magat and Arturo Naguit (who were then
detained) in view of the aforementioned resolution of Alfonso-Flores, which, as stated in the order, the
Provincial Prosecutor approved "on February 7, 1996."
On 28 February 1996, an Information 12 for Homicide, signed by Assistant Provincial Prosecutor Flores
and Provincial Prosecutor Jesus Y. Manarang, was filed before Branch 55 of the Regional Trial Court
(RTC) in Macabebe, Pampanga, against the YABUTs and John Doe alias "Danny Manalili" and docketed
as Criminal Case No. 96-1667(M). The accusatory portion of the information read as follows:
That on or about the 3rd day of November, 1995, in the municipality of Masantol,
province of Pampanga, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring and confederating together and mutually helping one
another, with deliberate intent to take the life of PO3 Virgilio A. Dimatulac, did then and
there wilfully, unlawfully and feloniously shoot the said PO3 Virgilio A. Dimatulac on his
abdomen with the use of a handgun, thereby inflicting, upon him a gunshot wound which
cause[d] the death of the said victim.

All contrary to law.


The Information, although dated 29 January 1996 was signed by Provincial Prosecutor Manarang on
"2/27/96", i.e., a day before its filing in court.
On 28 February 1996, Judge Reynaldo V. Roura, presiding judge of Branch 55, approved the cash bonds
of the YABUTs, each in the amount of P20,000.00, and recalled the warrants for their arrest. 13
On 29 February 1996, Atty. Amado Valdez, who had entered his appearance as private prosecutor, filed
two (2) motions with the trial court: (1) a Motion to Issue Hold Departure Order Against All Accuseds 14
[sic]; and an (2) Urgent Motion to Defer Proceedings, 15 copies of which were furnished the Office of the
Provincial Prosecutor of Pampanga. The second motion was grounded on the pendency of the appeal
before the Secretary of Justice and a copy thereof was attached to the motion. Judge Roura set the
motions for hearing on 8 March 1996. 16
On 7 March 1996, Judge Roura ordered the arrest of the remaining accused, Danny Manalili.

17

On 8 March 1996, the YABUTs filed their opposition 18 to the Motion to Issue Hold Departure Order and
the Motion to Defer Proceedings. The YABUTs asserted that, as to the first, by posting bail bonds, they
submitted to the jurisdiction of the trial court and were bound by the condition therein to "surrender
themselves whenever so required by the court, and to seek permission from the court should any one of
them desire to travel;" and, as to the second, the pendency of the appeal before the Secretary of Justice
was not a ground to defer arraignment; moreover, the trial court had to consider their right to a speedy
trial, especially since there was no definite date for the resolution of the appeal. Then invoking this Court's
rulings in Crespo v. Mogul 19 and Balgos v. Sandiganbayan, 20 the YABUTs further asserted that petitioners
should have filed a motion to defer the filing of the information for homicide with the Office of the
Provincial Prosecutor, or sought, from the Secretary of Justice, an order directing the Provincial
Prosecutor to defer the filing of the information in court.
In a Reply 21 to the opposition, the private prosecution, citing Section 20 of Rule 114 of the Rules of Court,
insisted on the need for a hold-departure order against the accused; argued that the accused's right to a
speedy trial would not be impaired because the appeal to the Secretary of Justice was filed pursuant to
Department Order No. 223 of the DOJ and there was clear and convincing proof that the killing was
committed with treachery and other qualifying circumstances not absorbed in treachery; and contended
that the accused's invocation of the right to a speedy trial was inconsistent with their filing of various
dilatory motions during the preliminary investigation. The YABUTs filed a Rejoinder 22 to this Opposition.
On 26 March 1996, Judge Roura deferred resolution of the Motion to Issue a Hold Departure Order until
"such time that all the accused who are out on bail are arraigned," but denied the Motion to Defer
Proceedings as he found no compelling reason therefor, considering that although the appeal was filed on
23 February 1996, "the private prosecution has not shown any indication that [the] appeal was given due
course by the Secretary of Justice." Judge Roura also set the arraignment of the accused on 12 April
1996. 23
It would appear that the private prosecution moved to reconsider the order denying the Motion to Defer
Proceedings since, on 12 April 1996, Judge Roura issued an Order 24 giving the private prosecutor "ten
(10) days from today within which to file a petition for certiorari questioning the order of the Court denying

his motion for reconsideration of the order of March 26, 1996." Arraignment was then reset to 3 May
1996.
On 19 April 1996, petitioners filed a motion to inhibit Judge Roura 25 from hearing Criminal Case No. 961667(M) on the ground that he: (a) hastily set the case for arraignment while the former's appeal in the
DOJ was still pending evaluation; and (b) prejudged the matter, having remarked in open court that there
was "nothing in the records of the case that would qualify the case into Murder." At the same time,
petitioners filed a petition for prohibition 26 with the Court of Appeals docketed therein as CA-G.R. SP No.
40393, to enjoin Judge Roura from proceeding with the arraignment in Criminal Case No. 96-1667(M).
On 24 April 1996, Public Prosecutor Olimpio R. Datu filed a Manifestation and Comment 27 with the trial
court wherein he opposed the motion to inhibit Judge Roura; manifested that "there is nothing in the
record . . . which shows that the subject killing is qualified into murder;" and announced that he "will no
longer allow the private prosecutor to participate or handle the prosecution of [the] case" in view of the
latter's petition to inhibit Judge Roura.
On 29 April 1996, Judge Roura voluntarily inhibited himself and ordered the case transferred to Branch 54
of the RTC, presided over by herein public respondent Judge Sesinando Villon. 28
On 30 April 1996, the Branch Clerk of Court of Branch 54 of the RTC received the record of Criminal
Case No. 96-1667(M). 29
On 30 April 1996, petitioners filed with the trial court a Manifestation 30 submitting, in connection with their
Motion to Defer Proceedings and Motion to Inhibit Judge Roura, documentary evidence to support their
contention that the offense committed was murder, not homicide. The documents which they claimed
were not earlier submitted by the public prosecution were the following:
a. Counter-Affidavit of SPO1 Gilberto D. Malabanan.
b. Sinumpaang Salaysay of Vladimir Yumul y Dimatulac.
c. Counter-Affidavit of Francisco I. Yambao.
d. Counter-Affidavit of SPO2 Fortunato Mallari.
e. Sinumpaang Salaysay of Aniano Magnaye.
f. Sinumpaang Salaysay of Leopoldo Soriano.
g. Transcript of Stenographic Notes of the Preliminary Investigation of
Criminal Case No. 95-360, containing the testimony of:
a. Peter Paul Dimatulac
b. Vladimir D. Yumul
c. SPO1 Gilberto Malabanan

d. PO3 Alfonso Canilao


h. Investigation Report-dated November 4, 1995.
i. Dying declaration of Virgilio Dimatulac.
j. Sketch
k. Unscaled Sketch
Likewise on 30 April 1996, the Court of Appeals promulgated, in CA-G.R. SP No. 40393, a Resolution 31
directing respondent therein to file his comment to the petition within ten days from notice and to show
cause within the same period "why no writ of preliminary injunction should be issued as prayed for in the
petition." However, the Court of Appeals "deferred action" on the prayer for a temporary restraining order
"until after the required comment [was] submitted."
On 3 May 1996, petitioners filed an Ex-Parte Manifestation 32 with the RTC, furnishing the trial court with a
copy of the aforementioned resolution of the Court of Appeals and drawing the attention of the trial court
to the rulings of this Court in "Valdez vs. Aquilisan, (133 SCRA 150), Galman vs. Sandiganbayan, and
Eternal Gardens Memorial Park Corp. vs. Court of Appeals . . . as well as the decision in Paul G. Roberts
vs. The Court of Appeals."
On 3 May 1996, Judge Villon issued an order resetting arraignment of the accused to 20 May 1996.
the latter date, the YABUTs each entered a plea of not guilty. 34

33

On

Alarmed by the conduct of arraignment, petitioners filed, on 27 May 1996, an Urgent Motion to Set Aside
Arraignment, 35 citing the resolution of 30 April 1996 of the Court of Appeals in CA-G.R. SP No. 40393
which, inter alia, deferred resolution on the application for a temporary restraining order "until after the
required comment is submitted by the respondent;" stressed that the filing of the information for the lesser
offense of homicide was "clearly unjust and contrary to law in view of the unquestionable attendance of
circumstances qualifying the killing to murder;" and asserted that a number of Supreme Court decisions
supported suspension of the proceedings in view of the pendency of their appeal before the DOJ.
On 31 May 1997, Judge Villon issued an Order 36 directing the accused to file their comment on the
Urgent Motion to Set Aside Arraignment within fifteen days from notice.
In a letter 37 addressed to the Provincial Prosecutor dated 7 June 1996, public respondent Secretary
Teofisto Guingona of the DOJ resolved the appeal in favor of petitioners. Secretary Guingona ruled that
treachery was present and directed the Provincial Prosecutor of San Fernando, Pampanga "to amend the
information filed against the accused from homicide to murder," and to include Fortunato Mallari as
accused in the amended information. The findings and conclusions of Secretary Guingona read as
follows:
Contrary to your findings, we find that there is treachery that attended the killing of PO3
Dimatulac. Undisputedly, the victim was suddenly shot while he was descending the
stairs. The attack was unexpected as the victim was unarmed and on his way to make
peace with Mayor Yabut, he was unsuspecting so to speak. From the circumstances

surrounding his killing, PO3 Dimatulac was indeed deprived of an opportunity to defend
himself or to retaliate.
Corollarily, we are also convinced that such mode of attack was consciously and
deliberately adopted by the respondents to ensure the accomplishment of their criminal
objective. The admission of respondent Malabanan is replete with details on how the
principal respondent, Mayor Yabut, in conspiracy with the assailant and others, had
consciously and deliberately adopted means to ensure the execution of the crime.
According to him, while they were on their way to the victim's house, Mayor Yabut already
instructed Danny, the assailant, that, "Dikitan mo lang, alam no na king ano ang gagawin
mo, bahala ka na" This explains why Danny positioned himself near the stairs of the
victim's house armed with a handgun, such positioning was precisely adopted as a
means to ensure the accomplishment of their evil design and Mayor Yabut ordered
nobody else but Danny to shoot the victim while descending the stairs as his position was
very strategic to ensure the killing of the victim.
As has been repeatedly held, to constitute treachery, two conditions must be present, to
wit: (1) employment of means of execution that gives the person [attacked] no opportunity
to defend himself or retaliate; and (2) the means of execution were deliberately or
consciously adopted (People vs. Talaver, 230 SCRA 281 [1994]). In the case at bar, these
two (2) requisites are present as established from the foregoing discussion. Hence, there
being a qualifying circumstance of treachery, the crime committed herein is murder, not
homicide (People vs. Gapasin, 231 SCRA 728 [1994]).
Anent the alleged participation of respondents Fortunato Mallari and Francisco Yambao,
we find sufficient evidence against Mallari as part of the conspiracy but not against
Yambao. As can be gleaned from the sworn-statement of Yambao, which appears to be
credible, Mallari tried also to persuade the victim to go with them, using as a reason that
he (victim) was being invited by General Ventura. He was also seen trying to fix the gun
which was used in killing the victim. These actuations are inconsistent with the claim that
his presence at the crime scene was merely passive.
On the other hand, we find credible the version and explanation of Yambao. Indeed,
under the obtaining circumstances, Yambao had no other option but to accede to the
request of Mayor Yabut to provide transportation to the assailant. There being an actual
danger to his life then, and having acted under the impulse of an uncontrollable fear,
reason dictates that he should be freed from criminal liability. 38
The YABUTs moved to reconsider the resolution,
Order No. 223 of the DOJ." 40

39

citing Section 4 of "Administrative/Administration

In an Ex-Parte Manifestation 41 dated 21 June 1996, petitioners called the trial court's attention to the
resolution of the Secretary of Justice, a copy of which was attached thereto. Later, in a Manifestation and
Motion 42 dated 1 July 1996, petitioners asked the trial court to grant their motion to set aside arraignment.
Attached thereto was a copy of the Manifestation and Motion 43 of the Solicitor General dated 18 June
1996 filed with the Court of Appeals in CA-G.R. SP No. 40393 wherein the Solicitor General joined cause
with petitioners and prayed that "in the better interest of justice, [the] Petition for Prohibition be GRANTED
and a writ of prohibition be ISSUED forthwith." In support of said prayer, the Solicitor General argued:

2. There is merit to the cause of petitioners. If the Secretary of Justice


would find their Appeal meritorious, the Provincial Prosecutor would be
directed to upgrade the Information to Murder and extreme prejudice if
not gross injustice would thereby have been avoided.
3. Consequently, the undersigned counsel interpose no objection to the
issuance of a writ of prohibition enjoining respondent Judge from holding
further proceedings in Criminal Case No. 96-1667-M, particularly in
holding the arraignment of the accused, pending resolution of the
Appeals with the Secretary of Justice.
The YABUTs opposed 44 petitioner's Manifestation and Motion dated 1 July 1996 because they
had already been arraigned and, therefore, would be placed in double jeopardy; and that the
public prosecutor not the private prosecutor had control of the prosecution of the case.
In his letter 45 dated 1 July 1996 addressed to the Provincial Prosecutor of Pampanga, the Secretary of
Justice set aside his order to amend the information from homicide to murder considering that the appeal
was rendered moot and academic by the arraignment of the accused for homicide and their having
entered their pleas of not guilty. The Secretary stated:
Considering that Santiago Yabut, Servillano Yabut and Martin Yabut had already been
arraigned on May 20, 1996 and had pleaded not guilty to the charge of homicide, as
shown by a copy of the court order dated May 20, 1996, the petition for review insofar as
the respondents-Yabut are concerned has been rendered moot and academic.
However, the Secretary reiterated that Fortunato Mallari should be included in the information for
homicide.
On 30 July 1996, Public Prosecutor Jaime Bustos filed a Motion for Leave to Amend Information and to
Admit Amended Information. 46 The Amended Information 47 merely impleaded Fortunato Mallari as one of
the accused.
In his Order 48 of 1 August 1996, Judge Villon denied petitioners' motion to set aside arraignment, citing
Section 4, DOJ Department Order No. 223, and the letter of the Secretary of Justice of 1 July 1996.
Petitioners forthwith moved for reconsideration 49 of the order, arguing that the Motion to Defer the
Proceedings filed by petitioners was meritorious and did not violate the accused's right to speedy trial;
and that the DOJ had ruled that the proper offense to be charged was murder and did not reverse such
finding. Petitioners also cited the Solicitor General's stand 50 in CA-G.R. SP No. 40393 that holding
accused's arraignment in abeyance was proper under the circumstances. Finally, petitioners contended
that in proceeding with the arraignment despite knowledge of a petition for prohibition pending before the
Court of Appeals, the trial court violated Section 3(d), Rule 71 of the Rules of Court on indirect contempt.
The YABUTs opposed the motion on the ground that it raised no argument which had not yet been
resolved. 51
On 3 September 1996, petitioners filed a Motion to Defer Arraignment of Accused Fortunato Mallari, 52
which the trial court granted in view of petitioners' motion for reconsideration of the court's order denying
petitioners' motion to set aside private respondents' arraignment. 53 As expected, Mallari moved to
reconsider the trial court's order and clamored for consistency in the trial court's rulings. 54

In an order 55 dated 15 October 1996, Judge Villon denied reconsideration of the order denying
petitioners' motion to set aside arraignment, citing the YABUTs' right to a speedy trial and explaining that
the prosecution of an offense should be under the control of the public prosecutor, whereas petitioners did
not obtain the conformity of the prosecutor before they filed various motions to defer proceedings.
Considering said order, Judge Villon deemed accused Mallari's motion for reconsideration moot and
academic. 56
On 16 October 1996, the Court of Appeals promulgated its decision 57 in CA-G.R. SP No. 40393
dismissing the petition therein for having become moot and academic in view of Judge Roura's voluntary
inhibition, the arraignment of the YABUTs and the dismissal, by the Secretary of Justice, of petitioners'
appeal as it had been mooted by said arraignment.
Judge Villon was later detailed to Branch 24 of the Regional Trial Court of Manila, and Judge Roura was
ordered by the Supreme Court to preside over cases pending in Branch 54 of the Regional Trial Court of
Macabebe, Pampanga, which was previously presided over by Judge Villon. 58 Judge Roura informed the
Office of the Court Administrator and this Court that he had already inhibited himself from hearing
Criminal Case No. 96-1667(M). 59
On 28 December 1996, petitioners filed the instant Petition for Certiorari/Prohibition and Mandamus. They
urge this Court to reverse the order of respondent Judge denying their Motion to Set Aside Arraignment;
set aside arraignment of private respondents; order that no further action be taken by any court in
Criminal Case No. 96-1667(M) until this petition is resolved; and order respondents Secretary of Justice
and the prosecutors concerned to amend the information from homicide to murder.
Petitioners insist that the killing of PO3 Virgilio Dimatulac was attended by treachery since private
respondents tricked the victim into coming out of his house and then shot him while he was going down
the stairs. There was, petitioners claim, "an orchestrated effort on the part of [private respondents] to
manipulate the rules on administrative appeals with the end in view of evading prosecution for the [nonbailable] offense of murder," as shown by the following events or circumstances:
(1) Assistant Provincial Prosecutor Alfonso-Flores downgraded the
nature of the crime committed to homicide, a bailable offense, on
strength of a motion for reinvestigation filed by the YABUTs who had not
yet been arrested.
(2) Respondent Mayor and his companions returned to Minalin after the
killing and went into hiding for four (4) months until the offense charged
was downgraded.
(3) The information for homicide was nevertheless filed despite notice to
the Office of the Provincial Prosecutor of the appeal filed with the
Secretary of Justice and request to defer any action on the case.
(4) The Office of the Public Prosecutor of Pampanga disallowed the
private prosecutor from further participating in the case.
(5) Judge Roura denied the motion to defer proceedings and declared in
open court that there was no prima facie case for murder,

notwithstanding the pendency of petitioners' appeal with respondent


Secretary of Justice.
(6) Even before receipt by petitioners of Judge Roura's order inhibiting
himself and the order regarding the transfer of the case to Branch 54,
public respondent Judge Villon set the case for arraignment and, without
notice to petitioners, forthwith arraigned the accused on the information
for homicide on 20 May 1996, despite the pendency of the petition for
prohibition before the Court of Appeals and of the appeal before the DOJ.
(7) The Pampanga Provincial Prosecutor's Office did not object to the
arraignment nor take any action to prevent further proceedings on the
case despite knowledge of the pendency of the appeal.
(8) The Provincial Prosecutor did not comply with the resolution of 7 June
1996 of the Secretary of Justice directing the amendment of the
information to charge the crime of murder.
Petitioners argue that in light of Roberts, Jr., v. Court of Appeals, 60 respondent Judge acted in excess of
his jurisdiction in proceeding with private respondents' arraignment for homicide and denying petitioners'
motion to set aside arraignment. Moreover, although respondent Judge Villon was not the respondent in
CA-G.R. SP No. 40393; he should have deferred the proceedings just the same as the very issue in said
case was whether or not the RTC could proceed with the arraignment despite the pending review of the
case by respondent Secretary of Justice. Further, Judge Villon unjustly invoked private respondents' right
to a speedy trial, after a lapse of barely three (3) months from the filing of the information on 23 February
1996; overlooked that private respondents were estopped from invoking said right as they went into hiding
after the killing, only to resurface when the charge was reduced to homicide; and failed to detect the
Provincial Prosecutor's bias in favor of private respondents. Judge Villon should have been more
circumspect as he knew that by proceeding with the arraignment, the appeal with the DOJ would be
rendered technically nugatory.
Finally, petitioners submit that the DOJ rule prohibiting appeals from resolutions of prosecutors to the
Secretary of Justice once the accused had already been arraigned applies only to instances where the
appellants are the accused, since by submitting to arraignment, they voluntarily abandon their appeal.
In their comment, private respondents contend that no sufficient legal justification exists to set aside
private respondents' arraignment, it having already been reset twice from 12 April 1996 to 3 may 1996,
due to petitioners' pending appeals with the DOJ; and from 3 May 1996 to 20 May 1996, due to the
transfer of this case to Branch 54. Moreover, as of the latter date, the DOJ had not yet resolved
petitioners' appeal and the DOJ did not request that arraignment be held in abeyance, despite the fact
that petitioners' appeal had been filed as early as 23 February 1996, at least 86 days prior to private
respondents' arraignment. They point out that petitioners did not move to reconsider the RTC's 26 March
1996 denial of the Motion to Defer, opting instead for Judge Roura's recusal and recourse to the Court of
Appeals, and as no restraining order was issued by the Court of Appeals, it was but proper for respondent
Judge to proceed with the arraignment of private respondent, to which the public and private prosecutors
did not object.

Private respondents further argue that the decision of respondent Secretary, involving as it did the
exercise of discretionary powers, is not subject to judicial review. Under the principle of separation of
powers, petitioners' recourse should have been to the President. While as regards petitioners' plea that
the Secretary be compelled to amend the information from homicide to murder, private respondents
submit that mandamus does not lie, as the determination as to what offense was committed is a
prerogative of the DOJ, subject only to the control of the President.
As regards DOJ Department Order No. 223, private respondents theorize that appeal by complainants is
allowed only if the complaint is dismissed by the prosecutor and not when there is a finding of probable
cause, in which case, only the accused can appeal. Hence, petitioners' appeal was improper.
Finally, private respondents stress the fact that petitioners never appealed the withdrawal by the public
prosecutor of the private prosecutor's authority to handle the case.
In its comment for the public respondents, the Office of the Solicitor General (OSG) prays that the petition
be denied because: (a) in accordance with Section 4 of DOJ Order No. 223, upon arraignment of the
accused, the appeal to the Secretary of Justice shall be dismissed motu proprio; (b) the filing of the
information for homicide was in compliance with the directive under Section 4(2), D.O. No. 223, i.e., an
appeal or motion for reinvestigation from a resolution finding probable cause shall not hold the filing of the
information in court; (c) the trial court even accommodated petitioners by initially deferring arraignment
pending resolution by the Court of Appeals of the petition for prohibition, and since said Court did not
issue any restraining order, arraignment was properly had; and (d) reliance on Roberts is misplaced, as
there, accused Roberts and others had not been arraigned and respondent Judge had ordered the
indefinite postponement of the arraignment pending resolution of their petitions before the Court of
Appeals and the Supreme Court.
We now consider the issues enumerated at the outset of this ponencia.
Plainly, the proceedings below were replete with procedural irregularities which lead us to conclude that
something had gone awry in the Office of the Provincial Prosecutor of Pampanga resulting in manifest
advantage to the accused, more particularly the YABUTs, and grave prejudice to the State and to private
complainants, herein petitioners.
First, warrants for the arrest of the YABUTs were issued by the MCTC, with no bail recommended for their
temporary liberty. However, for one reason or another undisclosed in the record, the YABUTs were not
arrested; neither did they surrender. Hence, they were never brought into the custody of the law. Yet, Asst.
Provincial Fiscal Alfonso Reyes, either motu proprio or upon motion of the YABUTs, conducted a
reinvestigation. Since said accused were at large, Alfonso-Reyes should not have done so. While it may
be true that under the second paragraph of Section 5, Rule 112 of the Rules of Court, the provincial
prosecutor may disagree with the findings of the judge who conducted the preliminary investigation, as
here, this difference of opinion must be on the basis of the review of the record and evidence transmitted
by the judge. Were that all she did, as she had no other option under the circumstance, she was without
any other choice but to sustain the MCTC since the YABUTs and all other accused, except Francisco
Yambao, waived the filing of their counter-affidavits. Then, further stretching her magnanimity in favor of
the accused, Alfonso-Reyes allowed the YABUTs to submit their counter-affidavits without first demanding
that they surrender because of the standing warrants of arrest against them. In short, Alfonso-Reyes
allowed the YABUTs to make a mockery of the law in order that they gain their provisional liberty pending
trial and be charged with the lesser offense of homicide.

Second, Alfonso-Reyes recommended a bond of only P20,000.00 for the YABUTs and co-accused
"Danny," despite the fact that they were charged with homicide and they were, at the time, fugitives from
justice for having avoided service of the warrant of arrest issued by the MCTC and having failed to
voluntarily surrender.
Third, Alfonso-Reyes was fully aware of the private prosecution's appeal to the DOJ from her resolution.
She could not have been ignorant of the fact that the appeal vigorously assailed her finding that there was
no qualifying circumstance attending the killing, and that the private prosecution had convincing
arguments to support the appeal. The subsequent resolution of the Secretary of Justice confirmed the
correctness of the private prosecution's stand and exposed the blatant errors of Alfonso-Reyes.
Fourth, despite the pendency of the appeal, Alfonso-Reyes filed the Information for homicide on 28
February 1996. It is interesting to note that while the information was dated 29 January 1996, it was
approved by the Provincial Prosecutor only on 27 February 1996. This simply means that the Office of the
Prosecutor was not, initially, in a hurry to file the Information. No undue prejudice could have been caused
to the YABUTs if it were filed even later for the YABUTs were still at large; in fact, they filed their bonds of
P20,000.00 each only after the filing of the Information. If Alfonso-Flores was extremely generous to the
YABUTs, no compelling reason existed why she could not afford the offended parties the same courtesy
by at least waiting for instructions from the Secretary of Justice in view of the appeal, if she were unwilling
to voluntarily ask the latter for instructions. Clearly, under the circumstances, the latter course of action
would have been the most prudent thing to do.
Fifth, as if to show further bias in favor of the YABUTs, the Office of the Provincial Prosecutor of
Pampanga did not even bother to motu proprio, inform the trial court that the private prosecution had
appealed from the resolution of Alfonso-Flores and had sought, with all the vigour it could muster, the
filing of an information for murder, as found by the MCTC and established by the evidence before it.
Unsatisfied with what had been done so far to accommodate the YABUTs, the Office of the Provincial
Prosecutor did not even have the decency to agree to defer arraignment despite its continuing knowledge
of the pendency of the appeal. This amounted to defiance of the DOJ's power of control and supervision
over prosecutors, a matter which we shall later elaborate on. Moreover, in an unprecedented move, the
trial prosecutor, Olimpio Datu, had the temerity, if not arrogance, to announce that "he will no longer allow
the private prosecutor to participate or handle the prosecution of [the] case" simply because the private
prosecution had asked for the inhibition of Judge Roura. Said prosecutor forgot that since the offended
parties here had not waived the civil action nor expressly reserved their right to institute it separately from
the criminal action, then they had the right to intervene in the criminal case pursuant to Section 16 of Rule
1l0 of the Rules of Court.
It is undebatable that petitioners had the right to appeal to the DOJ from the resolution of Alfonso-Flores.
The last paragraph of Section 4 of Rule 112 of the Rules of Court provides:
If upon petition by a proper party, the Secretary of Justice reverses the resolution of the
provincial or city fiscal or chief state prosecutor, he shall direct the fiscal concerned to file
the corresponding information without conducting another preliminary investigation or to
dismiss or move for the dismissal of the complaint or information.
It is clear from the above, that the proper party referred to therein could be either the offended
party or the accused.

More importantly, an appeal to the DOJ is an invocation of the Secretary's power of control over
prosecutors. Thus, in Ledesma v. Court of Appeals, 16 we emphatically held:
Decisions or resolutions of prosecutors are subject to appeal to the secretary of justice
who, under the Revised Administrative Code, 62 exercises the power of direct control and
supervision over said prosecutors; and who, may thus affirm, nullify, reverse or modify
their rulings.
Sec. 39, Chapter 8, Book IV in relation to Section[s] 5, 8, and 9, Chapter 2, Title III of the
Code gives the secretary of justice supervision and control over the Office of the Chief
Prosecutor and the Provincial and City Prosecution Offices. The scope of his power of
supervision and control is delineated in Section 38, paragraph 1, Chapter 7, Book IV of
the Code:
(1) Supervision and Control. Supervision and control shall include
authority to act directly whenever a specific function is entrusted by law
or regulation to a subordinate; direct the performance of duty; restrain the
commission of acts; review, approve, reverse or modify acts and
decisions of subordinate officials or units; . . . .
Supplementing the aforequoted provisions are Section 3 of R.A. 3783 and Section 37 of
Act 4007, which read:
Sec. 3. . . .
The Chief State Prosecutor, the Assistant Chief State Prosecutors, the
Senior State Prosecutors, and the State Prosecutors shall . . . perform
such other duties as may be assigned to them by the Secretary of
Justice in the interest of public service.
xxx xxx xxx
Sec. 37. The provisions of the existing law to the contrary
notwithstanding, whenever a specific power, authority, duty, function, or
activity is entrusted to a chief of bureau, office, division or service, the
same shall be understood as also conferred upon the proper Department
Head who shall have authority to act directly in pursuance thereof, or to
review, modify, or revoke any decision or action of said chief of bureau,
office, division or service.
"Supervision" and "control" of a department head over his subordinates have been
defined in administrative law as follows:
In administrative law, supervision means overseeing or the power or
authority of an officer to see that subordinate officers perform their
duties. If the latter fail or neglect to fulfill them, the former may take such
action or step as prescribed by law to make them perform such duties.
Control, on the other hand, means the power of an officer to alter or

modify or nullify or set aside what a subordinate officer had done in the
performance of his duties and to substitute the judgment of the former for
that of the latter.
Review as an act of supervision and control by the justice secretary over the fiscals and
prosecutors finds basis in the doctrine of exhaustion of administrative remedies which
holds that mistakes, abuses or negligence committed in the initial steps of an
administrative activity or by an administrative agency should be corrected by higher
administrative authorities, and not directly by courts. As a rule, only after administrative
remedies are exhausted may judicial recourse be allowed.
DOJ Order No. 223 of 30 June 1993 recognizes the right of both the offended parties and the accused to
appeal from resolutions in preliminary investigations or reinvestigations, as provided for in Section 1 and
Section 4, respectively. Section 1 thereof provides, thus:
Sec. 1. What May Be Appealed. Only resolutions of the Chief State
Prosecutor/Regional State Prosecutor/Prosecutor or City Prosecutor dismissing a
criminal complaint may be the subject of an appeal to the Secretary of Justice except as
otherwise provided in Section 4 hereof.
While the section speaks of resolutions dismissing a criminal complaint, petitioners herein were not
barred from appealing from the resolution holding that only homicide was committed, considering that
their complaint was for murder. By holding that only homicide was committed, the Provincial Prosecutor's
Office of Pampanga effectively "dismissed" the complaint for murder. Accordingly, petitioners could file an
appeal under said Section 1. To rule otherwise would be to forever bar redress of a valid grievance,
especially where the investigating prosecutor, as in this case, demonstrated what unquestionably
appeared to be unmitigated bias in favor of the accused. Section 1 is not to be literally applied in the
sense that appeals by the offended parties are allowed only in cases of dismissal of the complaint,
otherwise the last paragraph of Section 4, Rule 112, Rules of Court would be meaningless.
We cannot accept the view of the Office of the Solicitor General and private respondents that Section 1 of
DOJ Department Order No. 223 is the controlling rule; hence, pursuant to the second paragraph thereof
the appeal of petitioners did not hold the filing of the information. As stated above, Section 4 applies even
to appeals by the respondents or accused. The provision reads:
Sec. 4. Non-appealable cases. Exceptions. No appeal may be taken from a resolution
of the Chief State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor
finding probable cause except upon a showing of manifest error or grave abuse of
discretion. Notwithstanding the showing of minifest error or grave abuse of discretion, no
appeal shall be entertained where the appellant had already been arraigned. If the
appellant is arraigned during the pendency of the appeal, said appeal shall be dismissed
motu proprio by the Secretary of Justice.
An appeal/motion for reinvestigation from a resolution finding probable cause, however,
shall not hold the filing of the information in court. (emphasis supplied)
The underlined portion indisputably shows that the section refers to appeals by respondents or accused.
So we held in Marcelo v. Court of

Appeals, 63 that nothing in the ruling in Crespo v. Mogul, 64 reiterated in Roberts v. Court of Appeals, 65
forecloses the power of authority of the Secretary of Justice to review resolutions of his subordinates in
criminal cases despite an information already having been filed in court. The Secretary of Justice is only
enjoined to refrain, as far as practicable, from entertaining a petition for review or appeal from the action
of the prosecutor once a complaint or information is filed in court. In any case, the grant of a motion to
dismiss, which the prosecution may file after the Secretary of Justice reverses an appealed resolution, is
subject to the discretion of the court. In Roberts we went further by saying that Crespo could not have
foreclosed said power or authority of the Secretary of Justice "without doing violence to, or repealing, the
last paragraph of Section 4, Rule 112 of the Rules of Court" which is quoted above.
Indubitably then, there was on the part of the public prosecution, indecent haste in the filing of the
information for homicide, depriving the State and the offended parties of due process.
As to the second issue, we likewise hold that Judge Roura acted with grave abuse of discretion when, in
his order of 26 March l996, 66 he deferred resolution on the motion for a hold departure order until "such
time that all the accused who are out on bail are arraigned" and denied the motion to defer proceedings
for the reason that the "private prosecution has not shown any indication that [the] appeal was given due
course by the Secretary of Justice." Neither rhyme nor reason or even logic, supports the ground for the
deferment of the first motion. Precisely, immediate action thereon was called for as the accused were out
on bail and, perforce, had all the opportunity to leave the country if they wanted to. To hold that
arraignment is a prerequisite to the issuance of a hold departure order could obviously defeat the purpose
of said order. As to the second motion, Judge Roura was fully aware of the pendency of petitioner's
appeal with the DOJ, which was filed as early as 23 February 1996. In fact, he must have taken that into
consideration when he set arraignment of the accused only on 12 April 1996, and on that date, after
denying petitioners' motion to reconsider the denial of the motion to defer proceedings, he further reset
arraignment to 3 May 1996 and gave petitioners ten (10) days within which to file a petition for certiorari to
question his denial of the motion to defer and of the order denying the reconsideration. In any event, the
better part of wisdom suggested that, at the very least, he should have asked petitioners as regards the
status of the appeal or warned them that if the DOJ would not decide the appeal within a certain period,
then arraignment would proceed.
Petitioners did in fact file the petition with the Court of Appeals on 19 April 1996 and, at the same time,
moved to inhibit Judge Roura. These twin moves prompted Judge Roura to "voluntarily" inhibit himself
from the case on 29 April 1996 67 and to transfer the case to the branch presided by public respondent
Judge Villon. The latter received the records of the case on 30 April 1996. From that time on, however,
the offended parties did not receive any better deal. Acting with deliberate dispatch, Judge Villon issued
an order on 3 May 1996 setting arraignment of the accused on 20 May 1996. If Judge Villon only perused
the record of the case with due diligence, as should be done by anyone who has just taken over a new
case, he could not have helped but notice: (a) the motion to defer further proceedings; (2) the order of
Judge Roura giving petitioners ten days within which to file a petition with the Court of Appeals; (3) the
fact of the filling of such petition in CA-G.R. SP No. 40393; (4) the resolution of the Court of Appeals
directing respondents to comment on the petition and show cause why the application for a writ of
preliminary injunction should not be granted and deferring resolution of the application for a temporary
restraining order until after the required comment was filed, which indicated a prima facie showing of
merit; (5) the motion to inhibit Judge Roura precisely because of his prejudgment that the crime
committed was merely homicide; (6) Judge Roura's subsequent inhibition; (7) various pieces of
documentary evidence submitted by petitioners on 30 April 1996 supporting a charge of murder, not
homicide; and (8) most importantly , the pending appeal with the DOJ.

All the foregoing demanded from any impartial mind, especially that of Judge Villon, a cautious attitude as
these were unmistakable indicia of the probability of a miscarriage of justice should arraignment be
precipitately held. However, Judge Villon cursorily ignored all this. While it may be true that he was not
bound to await the DOJ's resolution of the appeal, as he had, procedurally speaking, complete control
over the case and any disposition thereof rested on his sound discretion, 68 his judicial instinct should
have led him to peruse the documents submitted on 30 April 1996 and to initially determine, for his own
enlightenment with serving the ends of justice as the ultimate goal, if indeed murder was the offense
committed; or, he could have directed the private prosecutor to secure a resolution on the appeal within a
specified time. Given the totality of circumstances, Judge Villon should have heeded our statement in
Marcelo 69 that prudence, if not wisdom, or at least, respect for the authority of the prosecution agency,
dictated that he should have waited for the resolution of the appeal then pending before the DOJ. All told,
Judge Villon should not have merely acquiesced to the findings of the public prosecutor.
We do not then hesitate to rule that Judge Villon committed grave abuse of discretion in rushing the
arraignment of the YABUTs on the assailed information for homicide. Again, the State and the offended
parties were deprived of due process.
Up to the level then of Judge Villon, two pillars of the criminal justice system failed in this case to function
in a manner consistent with the principle of accountability inherent in the public trust character of a public
office. Judges Roura and Villon and prosecutors Alfonso-Flores and Datu need be reminded that it is in
the public interest that every crime should be punished 70 and judges and prosecutors play a crucial role
in this regard for theirs is the delicate duty to see justice done, i.e., not to allow the guilty to escape nor
the innocent to
suffer. 71
Prosecutors must never forget that, in the language of Suarez v. Platon, 72 they are the representatives
not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as
compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not
that it shall win every case but that justice be done. As such, they are in a peculiar and every definite
sense the servants of the law, whose two-fold aim is that guilt shall not escape or innocence suffer.
Prosecutors are charged with the defense of the community aggrieved by a crime, and are expected to
prosecute the public action with such zeal and vigor as if they were the ones personally aggrieved, but at
all times cautious that they refrain from improper methods designed to secure a wrongful conviction. 73
With them lies the duty to lay before the court the pertinent facts at the judge's disposal with strict
attention to punctilios, thereby clarifying contradictions and sealing all gaps in the evidence, with a view to
erasing all doubt from the court's mind as to the accused's innocence or guilt.
The judge, on the other hand, "should always be imbued with a high sense of duty and responsibility in
the discharge of his obligation to promptly and properly administer justice." 74 He must view himself as a
priest, for the administration of justice is akin to a religious crusade. Thus, exerting the same devotion as
a priest "in the performance of the most sacred ceremonies of religious liturgy," the judge must render
service with impartiality commensurate with the public trust and confidence reposed in him. 75 Although
the determination of a criminal case before a judge lies within his exclusive jurisdiction and competence,
76
his discretion is not unfettered, but rather must be exercised within reasonable confines. 77 The judge's
action must not impair the substantial rights of the accused, nor the right of the State and offended party
to due process of law. 78

Indeed, for justice to prevail, the scales must balance; justice is not to be dispensed for the accused
alone. The interests of society and the offended parties which have been wronged must be equally
considered. Verily, a verdict of conviction is not necessarily a denial of justice; and an acquittal is not
necessarily a triumph of justice, for, to the society offended and the party wronged, it could also mean
injustice. 79 Justice then must be rendered even-handedly to both the accused, on one hand, and the
State and offended party, on the other.
In this case, the abuse of discretion on the part of the public prosecution and Judges Roura and Villon
was gross, grave and palpable, denying, the State and the offended parties their day in court, or in a
constitutional sense, due process. As to said judges, such amounted to lack or excess of jurisdiction, or
that their court was ousted of the jurisdiction in respect thereto, thereby nullifying as having been done
without jurisdiction, the denial of the motion to defer further hearings, the denial of the motion to
reconsider such denial, the arraignment of the YABUTs and their plea of not guilty.
These lapses by both the judges and prosecutors concerned cannot be taken lightly. We must remedy the
situation before the onset of any irreversible effects. We thus have no other recourse, for as Chief Justice
Claudio Teehankee pronounced in Galman v. Sandiganbayan: 80
The Supreme Court cannot permit such a sham trial and verdict and travesty of justice to
stand unrectified. The courts of the land under its aegis are courts of law and justice and
equity. They would have no reason to exist if they were allowed to be used as mere tools
of injustice, deception and duplicity to subvert and suppress the truth, instead of
repositories of judicial power whose judges are sworn and committed to render impartial
justice to all alike who seek the enforcement or protection of a right or the prevention of
redress of a wrong, without fear or favor and removed from the pressures of politics and
prejudice.
We remind all members of the pillars of the criminal justice system that theirs is not a mere
ministerial task to process each accused in and out of prison, but a noble duty to preserve our
democratic society under a rule of law.
Anent the third issue, it was certainly grave error for the DOJ to reconsider its 7 June 1996 resolution,
holding that murder was committed and directing the Provincial Prosecutor to accordingly amend the
information, solely on the basis of the information that the YABUTs had already been arraigned. In so
doing, the DOJ relinquished its power of control and supervision over the Provincial Prosecutor and the
Assistant Provincial Prosecutors of Pampanga; and meekly surrendered to the latter's inappropriate
conductor even hostile attitude, which amounted to neglect of duty or conduct prejudicial to the best
interest of the service, as well as to the undue haste of Judge Roura and Villon in respect of the
arraignment of the YABUTs. The sins of omission or commission of said prosecutors and judges resulted,
in light of the finding of the DOJ that the crime committed was murder, in unwarranted benefit to the
YABUTs and gross prejudice to the State and the offended parties. The DOJ should have courageously
exercised its power of control by taking bolder steps to rectify the shocking "mistakes" so far committed
and, in the final analysis, to prevent further injustice and fully serve the ends of justice. The DOJ could
have, even if belatedly, joined cause with petitioners to set aside arraignment. Further, in the exercise of
its disciplinary powers over its personnel, the DOJ could have directed the public prosecutors concerned
to show cause why no disciplinary action should be taken against them for neglect of duty or conduct
prejudicial to the best interest of the service in not, inter alia, even asking the trial court to defer
arraignment in view of the pendency of the appeal, informing the DOJ, from time to time, of the status of

the case, and, insofar as prosecutor Datu was concerned, in disallowing the private prosecutor from
further participating in the case.
Finally, the DOJ should have further inquired into the vicissitudes of the case below to determine the
regularity of arraignment, considering that the appeal was received by the DOJ as early as 23 February
1996.
We then rule that the equally hasty motu proprio "reconsideration" of the 7 June 1996 resolution of the
DOJ was attended with grave abuse of discretion.
It is settled that when the State is deprived of due process in a criminal case by reason of grave abuse of
discretion on the part of the trial court, the acquittal of the accused 81 or the dismissal of the case 82 is
void, hence double jeopardy cannot be invoked by the accused. If this is so in those cases, so must it be
where the arraignment and plea of not guilty are void, as in this case as above discussed.
WHEREFORE, the petition is GRANTED. The orders of Judge Reynaldo Roura of 26 March 1996
denying the Motion to Defer Proceeding and of 12 April 1996 denying the motion to reconsider the denial
of said Motion to Defer Proceedings, and the orders of respondent Judge Sesinando Villon of 3 May 1996
resetting the arraignment to 20 May 1998 and of 25 October 1996 denying the Motion to Set Aside
Arraignment in Criminal Case No. 96-1667(M) are declared VOID and SET ASIDE. The arraignment of
private respondents Mayor Santiago Yabut, Servillano Yabut and Martin Yabut and their separate pleas of
not guilty are likewise declared VOID and SET ASIDE. Furthermore, the order of public respondent
Secretary of Justice of 1 July 1996 is SET ASIDE and his order of 7 June 1996 REINSTATED.
The Office of the Provincial Prosecutor of Pampanga is DIRECTED to comply with the order (letter) of the
Secretary of Justice of 7 June 1996 by forthwith filing with the trial court the amended information for
murder. Thereafter the trial court shall proceed in said case with all reasonable dispatch.
No pronouncement as to costs.
SO ORDERED.
Bellosillo, Vitug, Panganiban and Quisumbing, JJ., concur.

Republic of the Philippines


SUPREME COURT
SECOND DIVISION
G.R. Nos. 138792-804. March 31, 2005
DANTE GUEVARRA, AUGUSTUS F. CESAR and ADRIANO SALVADOR, Petitioners,
vs.
THE HON. FOURTH DIVISION OF THE SANDIGANBAYAN, PEOPLE OF THE
PHILIPPINES, ZENAIDA P. PIA and CRESENCIANO D. GATCHALIAN, Respondents.
DECISION
CALLEJO, SR., J.:
This is a petition for certiorari under Rule 65 assailing the Resolution1 of the Sandiganbayan,
dated April 6, 1999 in Criminal Case Nos. 23082, 23084, 23085, 23086, 23087, 23089, 23090,
23091, 23092, 23093, 23094, 23096 and 23097, ordering the reinstatement of said criminal
cases.
Cresenciano Gatchalian and Zenaida Pia, faculty members of the Polytechnic University of the
Philippines (PUP), filed a complaint2 for violation of Republic Act No. 3019 with the Office of
the Ombudsman against the administrators of PUP, namely, petitioners Dr. Zenaida A. Olonan,
the President, Dr. Dante Guevarra, the Vice-President for Administration and Finance, Atty.
Augustus F. Cesar, Administrative Officer V, and Mr. Adriano A. Salvador, the Acting Chief of
the Accounting Office. The charges were made in connection with certain questionable
transactions entered into by the PUP. A special audit team of the Commission on Audit (COA)
had, likewise, conducted a special audit of selected transactions, and its findings were contained
in SAO-SOG Report No. 93-19. The case was docketed as COA Case No. 92-290. Petitioner
Olonan submitted a copy of the said report, the Memorandum of the COA Review Panel, and her
request for reconsideration of the findings of the special audit team in the said report.
An Information was, thereafter, filed in the Sandiganbayan against all the accused, including
petitioner Olonan. The accusatory portion of the Information reads:
That on or about 1989 and for a period subsequent thereto, in Sta. Mesa, Manila, Philippines, and
within the jurisdiction of this Honorable Court, accused Dr. Zenaida A. Olonan, a public officer,
being then the President of the Polytechnic University of the Philippines (P.U.P.), accused Dr.
Dante G. Guevarra, likewise a public officer, being then the Vice-President for Administration
and Finance, of the P.U.P., accused Atty. Augustus F. Cesar, also a public officer, being then an
Administrative Officer V of the P.U.P., and accused Adriano A. Salvador, a public officer too,

being then the Acting Chief of the Accounting Division of the P.U.P., taking advantage of their
positions and the offense being committed in relation to their office, acting in evident bad faith
and manifest partiality with a single criminal intent, and all together, conspiring and
confederating with each other, did then and there, willfully, unlawfully and criminally, commit
the following acts, to wit:
1. After the construction of eight school buildings with a total cost of P20,912,229.31, allow the
non-turnover of unused construction materials and scrap construction materials to the P.U.P.;
2. Make an overpayment of P1,107,056.45 as terminal leave benefits to Dr. Nemesio Prudente;
3. Make a payment of P1.74 Million to 64 employees of the Bureau of Construction (B.O.C.),
Department of Public Works and Highways (DPWH), which amount is over and above the
prescribed fees for technical and supervision services, and also make honoraria payments to 19
P.U.P. officials in the amount of P556,367.00 without legal basis;
4. Incur an overpayment of P133,200.00 on a parcel of land in Lopez, Quezon Province, by
failing to register on time a Deed of Donation covering 1,332 square meters of the aforestated
property, which was embodied in a Deed of Sale covering 15,919 square meters of land;
5. Make payments in the total amount of P10,646,230.28 based on blind certifications in
violation of Sec. 46 of P.D. 1177, the names of creditors submitted to the DBM for purposes of
cash allocation, being different from the names of the creditors in the Schedule of Accounts
payable;
6. Make payment for the purchase of curtains for the C.M. Recto Auditorium, exceeding the
required quantity of 159 yards worth P27,462.00;
7. Make payments with a total amount of P167,627.13 with the necessary documents to validate
payments thereto in the: repainting of the elevated concrete tank; floor sanding and varnishing of
the gymnasium; renovation of the four (4) tennis courts; and repair and painting of the Pacia
Board High School Building; and
8. Make an overpayment of P1.99 Million when six change-work orders in the construction of
the library building were imposed with the indirect cost of 19% instead of only 16%;
thus, causing undue injury to the government in the aforestated amounts, to the damage and
prejudice of the government.
CONTRARY TO LAW.3

The case was docketed as Criminal Case No. 22854 and raffled to the Second Division of the
Sandiganbayan. On motion of the Special Prosecutor, the arraignment of the accused was reset to
November 14, 1995.4
Graft Investigation Officer II Evelina S. Maglanoc-Reyes, recommended that the charges be
dismissed.5 However, the Ombudsman disapproved this recommendation and adopted that of
Special Prosecution Officer I Cicero D. Jurado, Jr., dated July 28, 1995, to charge the accused
with 17 counts of violation of Section 3(e) of Rep. Act No. 3019.6 The accused filed a motion for
the reconsideration of the Resolution.
Meanwhile, Special Prosecution Officer I Evelyn T. Lucero-Agcaoili reviewed the
recommendation of Jurado, and submitted a Memorandum to the Ombudsman recommending
that 17 Informations be filed against all the accused, and that the Information in Criminal Case
No. 22854 be withdrawn. Hence, the Special Prosecutor filed a Motion to Withdraw Criminal
Case No. 228547 dated January 8, 1996. Appended thereto were the 17 Informations adverted to
by the Special Prosecutor.
On January 12, 1996, the Sandiganbayan granted the motion and dismissed Criminal Case No.
22854. The bond posted by the accused was, likewise, cancelled.8 On February 28, 1996,
Agcaoili submitted a Memorandum9 to the Office of the Ombudsman recommending that the 17
Informations be maintained.
It appears, however, that the recommendation of Agcaoili was referred to retired Court of
Appeals Associate Justice Alfredo Marigomen, a Special Assistant in the Office of the
Ombudsman, for review. On May 24, 1996, Justice Marigomen submitted a Report10
recommending the dropping of some of the charges against petitioner Olonan, and her retention
as one of the accused in Criminal Case Nos. 23083, 23088 and 23098. The Ombudsman
approved the recommendation.11
On June 4, 1996, the COA rendered a decision12 in Case No. 92-290 granting the motion for
reconsideration of petitioner Olonan in SAO-SOG Report No. 93-19 and exonerating her of the
charges therein. On August 15, 1996, the Sandiganbayan issued a Resolution13 requiring the
Prosecutor to inform the Court when the Ombudsman received the decision of the COA in Case
No. 92-290 and whether the said decision will alter the position of the prosecution.
On November 27, 1997, the Special Prosecutor filed a Manifestation and Motion14 praying, inter
alia, that the arraignment of all the accused in Criminal Case No. 23098 proceed as scheduled.
They, likewise, manifested that, based on the recommendation of retired Justice Marigomen,
dated May 24, 1996, 13 cases filed against the accused, specifically Criminal Case Nos. 23082,
23084, 23085, 23086, 23087, 23089, 23090, 23091, 23092, 23093, 23094, 23096 and 23097
were recommended for dismissal; he had no objection to the withdrawal of the Information in

Criminal Case No. 23097 since it was merely a repetition of Criminal Case No. 23096; and with
respect to the remaining four cases, it appears that one of them, specifically Criminal Case No.
23095 (withholding of RATA of Buscaino), was recommended for dismissal; in regard to the
three cases, Criminal Case No. 23083 (blind certification); Criminal Case No. 23088 (floor
sanding and varnishing of gymnasium) and Criminal Case No. 23098 (irregular payment of
salary of COA Auditors), it appears that petitioner Olonans participation was undisputed.15 The
accused opposed the motion.
During the hearing of November 28, 1997, the graft court consequently, directed the Special
Prosecutor to file the appropriate motion with reference to the 13 criminal cases.16 On January 8,
1998, the Prosecutor filed a Joint Reply to the pleadings of the accused, appending thereto the
Report of Justice Marigomen.17 On January 26, 1998, the graft court issued an Order dismissing
Criminal Case Nos. 23082, 23084, 23085, 23086, 23087, and 23089, 23090, 23091, 23092,
23093, 23094 and 23096 to 23097; and, with reference to Criminal Case Nos. 23083, 23088 and
23098, the Office of the Special Prosecutor was given a period of 30 days within which to further
review the records of the said cases and to report to the graft court, within the same period, its
findings and recommendation, and the Ombudsmans action thereon, more specifically as to
whether the said cases should proceed to trial or should be dismissed. The said order was
purportedly based on the recommendation of Justice Marigomen which was cited by the Special
Prosecutor in his Manifestation and Motion.
Consequently, the graft court held in abeyance the arraignment of petitioners Olonan, Cesar and
Salvador in Criminal Case Nos. 23083, 23088 and 23098 until further assignment. Likewise, the
consideration of the "Motion to Suspend Accused Pendente Lite" dated December 3, 1995 was
held in abeyance until the graft court had received the Memorandum of the Office of the Special
Prosecutor containing its findings and recommendations in Criminal Case Nos. 23083, 23088
and 23098, and the Ombudsmans final action thereon.18
When the Special Prosecutor received a copy of the Order of January 26, 1998, he filed, on
February 20, 1998, a motion for the partial reconsideration of the order contending that, in his
report, Justice Marigomen merely recommended that only petitioner Olonan be dropped as one
of the accused persons in Criminal Case Nos. 23082, 23084, 23085, 23086, 23087, 23089,
23090, 23091, 23092, 23093, 23094, 23096 and 23097; that the said cases should be maintained
as against the three other accused; that the inclusion of accused Olonan in Criminal Case Nos.
23082, 23088 and 23098 remain undisturbed; and that Criminal Case Nos. 23095 should be
dismissed.19
The Special Prosecutor reasoned out that, as gleaned from the Memorandum of retired Justice
Marigomen, the recommendation of dropping of the 13 criminal cases applied only to petitioner
Olonan. Hence, there was no legal and factual basis for the dismissal of the 13 criminal cases as
against petitioners Guevarra, Cesar and Salvador.20

The Special Prosecutor then prayed that the January 26, 1998 Order of the graft court, dismissing
the above-mentioned cases against the petitioners, be reconsidered, and the 13 cases filed against
them be reinstated.21
The petitioners opposed the motion, contending that the January 26, 1998 Order of the graft
court had become final and executory. Since no appeal or a motion for reconsideration thereof
was filed within the period therefor, the order of the graft court was based on no less than the
Manifestation and Motion of the Special Prosecutor.
On April 6, 1999, the Sandiganbayan issued a Resolution granting the motion of the Special
Prosecutor and modified its January 26, 1998 Order. The graft court set aside its Order
dismissing Criminal Case Nos. 23082, 23084, 23085, 23086, 23087, 23089, 23090, 23091,
23092, 23093, 23094, 23096 and 23097 as against the petitioners and ordered the reinstatement
of the said cases as against them.22
The graft court declared that, while the motion of the Special Prosecutor was filed three days
beyond the period therefor, nevertheless, it granted the motion in the interest of substantial
justice.23
Hence, the present petition for certiorari, assailing the April 6, 1999 Resolution of the
Sandiganbayan where the following issues are raised:
I. WHETHER OR NOT RESPONDENT COURT COMMITTED GRAVE ABUSE OF
DISCRETION IN REINSTATING THE THIRTEEN (13) CRIMINAL CASES AGAINST THE
PETITIONERS ON THE BASIS OF THE MOTION FOR RECONSIDERATION FILED BY
THE PROSECUTION FILED BEYOND THE FIFTEEN-DAY REGLEMENTARY PERIOD.
II. WHETHER OR NOT RESPONDENT COURT COMMITTED GRAVE ABUSE OF
DISCRETION IN GRANTING THE MOTION FOR RECONSIDERATION ON THE BASIS
SOLELY OF THE GROUNDS CITED BY THE PROSECUTION.24
The petitioners aver that under Section 7 of Presidential Decree No. 1606 and Rule VIII of the
Revised Rules of Procedure of the Sandiganbayan, respondent People of the Philippines, as
plaintiff, had only 15 days from notice of the graft courts final order within which to file a
motion for the reconsideration thereof. The petitioners also assert that under Section 2, Rule 45,
of the 1997 Rules of Civil Procedure, the respondent People of the Philippines, had only 15 days
from receipt of notice of the final order or the resolution denying its motion for reconsideration
thereof within which to file a petition for review with this Court. The failure of the respondent
People of the Philippines to file the said motion within the period therefor rendered the order
issued by the graft court final and executory. As such, no matter how erroneous the said orders
may have been, it was beyond the jurisdiction of the Sandiganbayan to set aside or nullify them.

Citing the ruling of this Court in Icao v. Apalisok,25 the petitioners posit that the rule applies even
to criminal cases. They further posit that penal laws should be observed strictly against the State.
The petitioners point out that the Special Prosecutor has not cited any justification for his failure
to file the motion for partial reconsideration within the period therefore, given the fact that he
was present when the graft court issued its order in open court on January 26, 1998, dismissing
the 13 cases.
The petitioners further assert that in resolving whether to dismiss the 13 cases or not, it behooved
the respondent People of the Philippines and the Sandiganbayan to consider not only the Report
of Justice Marigomen, but also the decision of the COA in Case No. 92-290.
In its comment on the petition, respondent People of the Philippines asserts that the general rule
that the periods prescribed to do certain acts must be followed is subject to exceptional
circumstances. A delay may be excused on grounds of substantial justice and equity, and in the
exercise of equity jurisdiction. The respondent emphasized that when the graft court gave a
verbal order dismissing the 13 cases during the hearing of January 26, 1998, the Special
Prosecutor objected thereto. The respondent argues that the graft court did not commit any grave
abuse of its discretion in issuing its April 6, 1999 Resolution, and insists that it acted in the
interest of substantial justice when it rectified its January 26, 1998 Order upon realizing that it
erred in dismissing the 13 cases on the basis of the Report of Justice Marigomen since it did not
contain any such recommendation of dismissal.
In their reply, the petitioners insist that substantial justice alone without any justification of the
respondents failure to file a motion for reconsideration within the reglementary period should
not prevail over the clearly laid down policy on finality of judgment and rules on reglementary
period.
The petition has no merit.
The petitioners are correct in claiming that an order or resolution of the Sandiganbayan ordering
the dismissal of criminal cases becomes final and executory upon the lapse of 15 days from
notice thereof to the parties, and, as such, is beyond the jurisdiction of the graft court to review,
modify or set aside, if no appeal therefrom is filed by the aggrieved party. However, if the
Sandiganbayan acts in excess or lack of jurisdiction, or with grave abuse of discretion amounting
to excess or lack of jurisdiction in dismissing a criminal case, the dismissal is null and void. A
tribunal acts without jurisdiction if it does not have the legal power to determine the case; there
is excess of jurisdiction where a tribunal, being clothed with the power to determine the case,
oversteps its authority as determined by law.26 A void judgment or order has no legal and binding
effect, force or efficacy for any purpose. In contemplation of law, it is non-existent.27 Such
judgment or order may be resisted in any action or proceeding whenever it is involved. It is not

even necessary to take any steps to vacate or avoid a void judgment or final order; it may simply
be ignored.28
In the present case, we find and so hold that the Sandiganbayan acted with grave abuse of its
discretion amounting to excess of its jurisdiction when it issued the Order of January 26, 1998
dismissing the 13 criminal cases based on the Manifestation and Motion of the Special
Prosecutor, which was, in turn, based on the report of retired Court of Appeals Justice
Marigomen. The records further show that the report of Justice Marigomen was triggered by the
Recommendation of Special Prosecution Officer I Cicero Jurado, Jr., dated July 28, 1995,
recommending that the 17 charges against the accused be maintained which, in effect, denied the
motion for reconsideration of petitioner Olonan. The report of Justice Marigomen did not delve
into and resolve the matter of the retention or dismissal of the 13 criminal cases against the
petitioners precisely because the same was not referred to him for study and recommendation.
Hence, Justice Marigomen merely recommended that petitioner Olonan be dropped as accused in
the 13 criminal cases, and that her inclusion in Criminal Case Nos. 23083, 23088 and 23098 be
maintained, thus:
WHEREFORE, it is hereby recommended that movant Dr. Zenaida A. Olonan be dropped as one
of the accused persons in Criminal Case Nos. 23082, 23084, 23085, 23086, 23087, 23089,
23090, 23091, 23092, 23093, 23094, 23096 and 23097. Her inclusion in Criminal Case Nos.
23083, 23088 and 23098 shall remain undisturbed. The entire Criminal Case No. 23095 should
be dismissed.29
The Sandiganbayan was well aware of Justice Marigomens report since the Special Prosecutor
appended a copy thereof to his Joint Reply filed on January 8, 1998, in compliance with the graft
courts Order of December 10, 1997.
The Sandiganbayan ordered the dismissal of the 13 cases as against the petitioners over the
objection of the Special Prosecutor on its erroneous perception that Justice Marigomen
recommended in his report the dismissal of the 13 cases against the petitioners. By its Order, the
graft court deprived the respondent People of the Philippines of its right to due process. In fine,
the Sandiganbayan acted in excess of its jurisdiction and committed grave abuse of its discretion
in dismissing the 13 criminal cases against the petitioners.30 Hence, its Order dated January 26,
1998 dismissing the 13 criminal cases, as against the petitioners, was null and void;31 it may thus
be rectified, as did the graft court, per its Resolution dated April 6, 1999 despite the lapse of
fifteen days from notice of the Special Prosecutor of its January 26, 1998 Order. By rectifying its
void Order, it cannot be said that the graft court acted with grave abuse of its discretion,
amounting to excess or lack of jurisdiction.

Indeed, in so doing, the Sandiganbayan acted in accord with law. It bears stressing that the State,
like the accused, is also entitled to due process of law. Not too long ago, the Court emphasized
that:
Indeed, for justice to prevail, the scales must balance; justice is not to be dispensed for the
accused alone. The interests of society and the offended parties which have been wronged must
be equally considered. Verily, a verdict of conviction is not necessarily a denial of justice; and an
acquittal is not necessarily a triumph of justice, for, to the society offended and the party
wronged, it could also mean injustice. Justice then must be rendered even-handedly to both the
accused, on one hand, and the State and offended party, on the other.32
The Special Prosecutor must share the blame with the Sandiganbayan because in his
Manifestation and Motion, the Special Prosecutor averred therein that Justice Marigomen
recommended the dismissal of the 13 criminal cases against all the accused, without specifically
stating therein that the recommendation for dismissal pertained only to petitioner Olonan, and
not to the other accused who are the petitioners herein. The Special Prosecutor should have been
more precise and forthright so as not to mislead the graft court.
IN LIGHT OF ALL THE FOREGOING, the petition is DISMISSED. The assailed Resolution
of the Sandiganbayan, dated April 6, 1999, is AFFIRMED. No costs.
SO ORDERED.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC

G.R. No. 128096 January 20, 1999


PANFILO M. LACSON, petitioner,
vs.
THE EXECUTIVE SECRETARY, THE SANDIGANBAYAN, OFFICE OF THE SPECIAL
PROSECUTOR, THE DEPARTMENT OF JUSTICE, MYRNA ABALORA, NENITA
ALAP-AP, IMELDA PANCHO MONTERO, and THE PEOPLE OF THE PHILIPPINES,
respondent.
ROMEO M. ACOP AND FRANCISCO G. ZUBIA, JR., petitioner-intervenors.

MARTINEZ, J.:
The constitutionality of Sections 4 and 7 of Republic Act No. 8249 an act which
further defines the jurisdiction of the Sandiganbayan is being challenged in this
petition for prohibition and mandamus. Petitioner Panfilo Lacson, joined by petitionersintervenors Romeo Acop and Francisco Zubia, Jr., also seeks to prevent the
Sandiganbayan from proceedings with the trial of Criminal Cases Nos. 23047-23057
(for multiple murder) against them on the ground of lack of jurisdiction.
The antecedents of this case, as gathered from the parties' pleadings and documentary
proofs, are as follows:
In the early morning of May 18, 1995, eleven (11) persons believed to be members of
the Kuratong Baleleng gang, reportedly an organized crime syndicate which had been
involved in a spate of bank robberies in Metro Manila, where slain along Commonwealth
Avenue in Quezon City by elements of the Anti-Bank Robbery and Intelligence Task
Group (ABRITG) headed by Chieff Superintendent Jewel Canson of the Philippine
National Police (PNP). The ABRITG was composed of police officers from the Traffic
Management Command (TMC) led by petitioner-intervenor Senior Superintendent

Francisco Zubia, Jr.; Presidential Anti-Crime Commission Task Force Habagat


(PACC-TFH) headed by petitioner Chief Superintendent Panfilo M. Lacson; Central
Police District Command (CPDC) led by Chief Superintendent Ricardo de Leon; and the
Criminal Investigation Command (CIC) headed by petitioner-intervenor Chief
Superintendent Romeo Acop.
Acting on a media expose of SPO2 Eduardo delos Reyes, a member of the CIC, that
what actually transpired at dawn of May 18, 1995 was a summary execution (or a rub
out) and not a shoot-out between the Kuratong Baleleng gang members and the
ABRITG, Ombudsman Aniano Desierto formed a panel of investigators headed by the
Deputy Ombudsman for Military Affairs, Bienvenido Blancaflor, to investigate the
incident. This panel later absolved from any criminal liability all the PNP officers and
personal allegedly involved in May 18, 1995 incident, with a finding that the said incident
was a legitimate police operation. 1
However, a review board led by Overall Deputy Ombudsman Francisco Villa modified modified the
Blancaflor panel's finding and recommended the indictment for multiple murder against twenty-six (26)
respondents, including herein petitioner and intervenors. The recommendation was approved by the
Ombudsman except for the withdrawal of the charges against Chief Supt. Ricardo de Leon.
Thus, on November 2, 1995, petitioner Panfilo Lacson was among those charged as principal in eleven
(11) information for murder 2 before the Sandiganbayan's Second Division, while intervenors Romeo Acop
and Francisco Zubia, Jr. were among those charged in the same informations as accessories after-in-thefact.
Upon motion by all the accused in the 11 information, 3 the Sandiganbayan allowed them to file a motion
for reconsideration of the Ombudsman's action. 4
After conducting a reinvestigation, the Ombudsman filed on March 1, 1996 eleven (11) amended
informations 5 before the Sandiganbayan, wherein petitioner was charged only as an accessory, together
with Romeo Acop and Francisco Zubia, Jr. and other. One of the accused 6 was dropped from the case.
On March 5-6, 1996, all the accused filed separate motions questioning the jurisdiction of the
Sandiganbayan, asserting that under the amended informations, the cases fall within the jurisdiction of
the Regional Trial Court pursuant to Section 2 (paragraphs a and c) of Republic Act No. 7975. 7 They
contend that the said law limited the jurisdiction of the Sandiganbayan to cases where one or more of the
"principal accused" are government officials with Salary Grade (SG) 27 or higher, or PNP officials with the
rank of Chief Superintendent (Brigadier General) or higher. The highest ranking principal accused in the
amended informations has the rank of only a Chief Inspector, and none has the equivalent of at least SG
27.
Thereafter, in a Resolution 8 dated May 8, 1996 (promulgated on May 9, 1996), penned by Justice
Demetriou, with Justices Lagman and de Leon concurring, and Justices Balajadia and Garchitorena
dissenting, 9 the Sandiganbayan admitted the amended information and ordered the cases transferred to
the Quezon City Regional Trial Court which has original and exclusive jurisdiction under R.A. 7975, as
none of the principal accused has the rank of Chief Superintendent or higher.

On May 17, 1996, the Office of the Special Prosecutor moved for a reconsideration, insisting that the
cases should remain with the Sandiganbayan. This was opposed by petitioner and some of the accused.
While these motions for reconsideration were pending resolution, and even before the issue of jurisdiction
cropped up with the filing of the amended informations on March 1, 1996, House Bill No. 2299 10 and No.
1094 11 (sponsored by Representatives Edcel C. Lagman and Lagman and Neptali M. Gonzales II,
respectively), as well as Senate Bill No. 844 12 (sponsored by Senator Neptali Gonzales), were introduced
in Congress, defining expanding the jurisdiction of the Sandiganbayan. Specifically, the said bills sought,
among others, to amend the jurisdiction of the Sandiganbayan by deleting the word "principal" from the
phrase "principal accused" in Section 2 (paragraphs a and c) of R.A. No. 7975.
These bills were consolidated and later approved into law as R.A. No. 8249 13 by the President of the
Philippines on February 5, 1997.
Subsequently, on March 5, 1997, the Sandiganbayan promulgated a Resolution 14 denying the motion for
reconsideration of the Special Prosecutor, ruling that it "stands pat in its resolution dated May 8, 1996."
On the same day 15 the Sandiganbayan issued and ADDENDUM to its March 5, 1997 Resolution, the
pertinent portion of which reads:
After Justice Lagman wrote the Resolution and Justice Demetriou concurred in it, but
before Justice de Leon. Jr. rendered his concurring and dissenting opinion, the legislature
enacted Republic Act 8249 and the President of the Philippines approved it on February
5, 1997. Considering the pertinent provisions of the new law, Justices Lagman and
Demetriou are now in favor of granting, as they are now granting, the Special
Prosecutor's motion for reconsideration. Justice de Leon has already done so in his
concurring and dissenting opinion.
xxx xxx xxx
Considering that three of the accused in each of these cases are PNP Chief
Superintendents: namely, Jewel T. Canson, Romeo M. Acop and Panfilo M. Lacson, and
that trial has not yet begun in all these cases in fact, no order of arrest has been
issued this court has competence to take cognizance of these cases.
To recapitulate, the net result of all the foregoing is that by the vote of 3 of 2, the court
admitted the Amended Informations in these cases by the unanimous vote of 4 with 1
neither concurring not dissenting, retained jurisdiction to try and decide the cases 16
(Empahasis supplied)
Petitioner now questions the constitutionality of Section 4 of R.A. No. 8249, including Section 7 thereof
which provides that the said law "shall apply to all cases pending in any court over which trial has not
begun as to the approval hereof." Petitioner argues that:
a) The questioned provisions of the statute were introduced by the authors thereof in bad
faith as it was made to precisely suit the situation in which petitioner's cases were in at
the Sandiganbayan by restoring jurisdiction thereof to it, thereby violating his right to
procedural due process and the equal protection clause of the Constitution. Further, from

the way the Sandiganbayan has foot-dragged for nine (9) months the resolution of a
pending incident involving the transfer of the cases to the Regional Trial Court, the
passage of the law may have been timed to overtake such resolution to render the issue
therein moot, and frustrate the exercise of petitioner's vested rights under the old
Sandiganbayan law (RA 7975)
b) Retroactive application of the law is plan from the fact that it was again made to suit
the peculiar circumstances in which petitioner's cases were under, namely, that the trial
had not yet commenced, as provided in Section 7, to make certain that those cases will
no longer be remanded to the Quezon City Regional Trial Court, as the Sandiganbayan
alone should try them, thus making it an ex post facto legislation and a denial of the right
of petitioner as an accused in Criminal Case Nos. 23047-23057 to procedural due
process.
c) The title of the law is misleading in that it contains the aforesaid "innocuous" provisions
in Sections 4 and 7 which actually expands rather than defines the old Sandiganbayan
law (RA 7975), thereby violating the one-title one-subject requirement for the passage of
statutes under Section 26 (1), Article VI of the Constitution. 17
For their part, the intervenors, in their petition-in-intervention, add that "while Republic Act No. 8249
innocuously appears to have merely expanded the jurisdiction of the Sandiganbayan, the introduction of
Section 4 and 7 in said statute impressed upon it the character of a class legislation and an ex-post facto
statute intended to apply specifically to the accused in the Kuratong Baleleng case pending before the
Sandiganbayan. 18 They further argued that if their case is tried before the Sandiganbayan their right to
procedural due process would be violated as they could no longer avail of the two-tiered appeal to the
Sandiganbayan, which they acquired under R.A. 7975, before recourse to the Supreme Court.
Both the Office of the Ombudsman and the Solicitor-General filed separate pleadings in support of the
constitutionality of the challenged provisions of the law in question and praying that both the petition and
the petition-in-intervention be dismissed.
This Court then issued a Resolution 19 requiring the parties to file simultaneously within a nonextendible
period of ten (10) days from notice thereof additional memoranda on the question of whether the subject
amended informations filed a Criminal Case Nos. 23047-23057 sufficiently allege the commission by the
accused therein of the crime charged within the meaning Section 4 b of Republic Act No. 8249, so as to
bring the said cases within the exclusive original jurisdiction of the Sandiganbayan.
The parties, except for the Solicitor General who is representing the People of the Philippines, filed the
required supplemental memorandum within the nonextendible reglementary period.
The established rule is that every law has in its favor the presumption of constitutionality, and to justify its
nullification there must be a clear and unequivocal breach of the Constitution, not a doubtful and
argumentative one. 20 The burden of proving the invalidity of the law lies with those who challenge it. That
burden, we regret to say, was not convincingly discharged in the present case.
The creation of the Sandiganbayn was mandated in Section 5, Article XIII of the 1973 Constitution, which
provides:

Sec. 5. The Batasang Pambansa shall create a special court, to be known as


Sandiganbayan, which shall have jurisdiction over criminal and civil cases involving graft
and corrupt practices and such other offenses committed by public officers and
employees including those in government-owned or controlled corporations, in relation to
their office as may be determined by law.
The said special court is retained in the new (1987) Constitution under the following provisions in Article
XI, Section 4:
Sec. 4. The present anti-graft court known as the Sandiganbayan shall continue to
function and exercise its jurisdiction as now or hereafter may be provided by law.
Pursuant to the constitutional mandate, Presidential Decree No. 1486 21 created the Sandiganbayan.
Thereafter, the following laws on the Sandiganbayan, in chronological order, were enacted: P.D. No.
1606, 22 Section 20 of Batas Pambansa Blg. 123, 23 P.D. No. 1860, 24 P.D. No. 1861, 25 R.A. No. 7975, 26
and R.A. No. 8249. 27 Under the latest amendments introduced by Section 4 of R.A. No. 8249, the
Sandiganbayan has jurisdiction over the following cases:
Sec 4. Section 4 of the same decree [P.D. No. 1606, as amended] is hereby further
amended to read as follows:
Sec. 4. Jurisdiction The Sandiganbayan shall exercise exclusive original jurisdiction in
all cases involving:
a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft
and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Titile VII,
Book II of the Revised Penal Code, where one or more of the accused are officials
occupying the following positions in the government, whether in a permanent, acting or
interim capacity, at the time of the commission of the offense:
(1) Officials of the executive branch occupying the positions of regional director and
higher, otherwise classified as Grade "27" and higher, of the Compensation and Position
Classification Act of 1989 (Republic Act No. 6758), specifically including:
(a) Provincial governors, vice-governors, members of the sangguniang
panlalawigan, and provincial treasurers, assessors, engineers, and other
provincial department heads;
(b) City mayors, vice-mayors, members of the sangguniang panlungsod,
city treasurers, assessors, engineers, and other city department heads;
(c) Officials of the diplomatic service occupying the position of consul and
higher;
(d) Philippine Army and air force colonels, naval captains, and all officers
of higher rank;

(e) Officers of the Philippines National Police while occupying the


position of provincial director and those holding the rank of senior
superintendent or higher.
(f) City of provincial prosecutors and their assistants, and officials and
prosecutors in the Office of the Ombudsman and special prosecutor;
(g) Presidents, directors or trustees or managers of government-owned
or controlled corporations, state universities or educational institutions or
foundations;
(2) Members of Congress or officials thereof classified as-Grade "27" and up under the
Compensation and Position Classification Act of 1989;
(3) Members of the judiciary without prejudice to the provisions of the Constitution;
(4) Chairman and members of the Constitutional Commissions, without prejudice to the
provisions of the Constitution;
(5) All other national and local officials classified as Grade "27" or higher under the
Compensation and Position Classification Act of 1989.
b. Other offenses or felonies whether simple or complexed with other crimes committed
by the public officials and employees mentioned in Subsection a of this section in relation
to their office.
c. Civil and criminal cases filed pursuant to and connection with Executive Orders Nos.
1,2, 14 and 14-A, issued in 1986.
In cases where none of the accused are occupying positions corresponding to salary
Grade "27" or higher, as prescribed in the said Republic Act 6758, or military and PNP
officers mentioned above, exclusive original jurisdiction thereof shall be vested in the
proper regional trial court, metropolitan trial court, municipal trial court, and municipal
circuit trial court, as the case may be, pursuant to their jurisdictions as privided in Batas
Pambansa Blg. 129, as amended.
The Sandiganbayan shall exercise exclusive appellate jurisdiction over final judgments,
resolutions or orders of regional trial courts whether in the exercise of their own original
jurisdiction or of their appellate jurisdiction as herein provided.
The Sandiganbayan shall have exclusive original jurisdiction over petitions of the
issuance of the writs of mandamus, prohibition, certiorari, habeas corpus, injunctions,
and other ancillary writs and processes in aid of its appellate jurisdiction and over
petitions of similar nature, including quo warranto, arising or that may arise in cases filed
or which may be filed under Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986:
Provided, That the jurisdiction over these petitions shall not be exclusive of the Supreme
Court.

The procedure prescribed in Batas Pambansa Blg. 129, as well as the implementing
rules that the Supreme Court has promulgated and may hereafter promulgate, relative to
appeals/petitions for review to the Court of Appeals, shall apply to appeals and petitions
for review filed with the Sandiganbayan. In all cases elevated to the Sandiganbayan and
from the Sandiganbayan to the Supreme Court, the Office of the Ombudsman, through its
special prosecutor, shall represent the People of the Philippines, except in cases filed
pursuant to Executive Order Nos. 1, 2, 14, and 4-A, issued in 1986.
In case private individuals are charged as co-principals, accomplices or accessories with
the public officers or employee, including those employed in government-owned or
controlled corporations, they shall be tried jointly with said public officers and employees
in the proper courts which shall exercise exclusive jurisdiction over them.
xxx xxx xxx (Emphasis supplied)
Sec. 7 of R.A. No. 8249 states:
Sec. 7. Transitory provision This act shall apply to all cases pending in any court over
which trial has not begun as of the approval hereof. (Emphasis supplied)
The Sandiganbayan law prior to R.A. 8249 was R.A. 7975. Section 2 of R.A. 7975 provides:
Sec. 2. Section 4 of the same decree [Presidential Decree No. 1606, as amended) is
hereby further amended to read as follows:
Sec 4. Jurisdiction The Sandiganbayan shall exercise exclusive original jurisdiction in
all cases involving:
a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft
and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII,
Book II of the Revised Penal Code, where one or more of the pricipal accused are
afficials occupying the following positions in the government, whether in a permanent,
acting or interim capacity, at the time of the commission of the offense:
(1) Officials of the executive branch occupying the positions of regional director and
higher, otherwise classified as Grade "27" and higher, of the Compensation and Position
Classification Act of 1989 (Republic Act No. 6758), specifically including:
(a) Provincial governors, vice-governors, members of the sangguniang
panlalawigan, and provincial treasurers, assessors, engineer, and other
provincial department heads;
(b) City mayors, vice-mayors, members of the sangguniang panlungsod,
city treasurers, assessors, engineers, and other city department heads;
(c) Officials of the diplomatic service occupying the position of consul and
higher;

(d) Philippine Army and air force colonels, naval captains, and all officers
of higher rank;
(e) PNP chief superintendent and PNP officers of higher rank;
(f) City and provincial prosecutors and their assistants, and officials and
prosecutors in the Office of the Ombudsman and special prosecutor;
(g) Presidents, directors or trustees, or managers of government-owned
or controlled corporations, state universities or educational institutions or
foundations;
(2) Members of Congress or officials thereof classified as Grade "27" and up under the
Compensation and Position Classification Act of 1989;
(3) Members of the judiciary without prejudice to the provisions of the Constitution;
(4) Chairman and members of the Constitutional Commissions, without prejudice to the
provisions of the Constitution;
(5) All other national and local officials classified as Grade "27" or higher under the
Compensation and Position Classification Act of 1989.
b. Other offenses or felonies committed by the public officials and employees mentioned
in Subsection a of this section in relation to their office.
c. Civil and criminal cases files pursuant to and in connection with Executive Order Nos.
1, 2, 14, and 4-A.
In cases where none of the principal accused are occupying positions corresponding to
salary Grade "27" or higher, as presribed in the said Republic Act 6758, or PNP officers
occupying the rank of superintendent or higher, or their equivalent, exclusive jurisdiction
thereof shall be vested in the proper regional trial court, metropolitan trial court, municipal
trial court, and municipal circuit trial court, as the case may be, pursuant to their
respective jurisdictions as provided in Batas Pambansa Blg. 129.
The Sandiganbayan shall exercise exclusive appellate jurisdiction on appelas from the
final judgment, resolutions or orders of regular court where all the accused are occupying
positions lower than grade "27," or not otherwise covered by the preceding enumeration.
xxx xxx xxx
In case private individuals are charged as co-principals, accomplices or accessories with
the public officers or employees, including those employed in government-owned or
controlled corporations, they shall be tried jointly with said public officers and employees
in the proper courts which shall have exclusive jurisdiction over them.
xxx xxx xxx (Emphasis supplied)

Sec. 7 of R.A. No. 7975 reads:


Sec. 7. Upon the effectivity of this Act, all criminal cases in which trial has not begun in
the Sandiganbayan shall be referred to the proper courts.
Under paragraphs a and c, Section 4 of R.A. 8249, the word "principal" before the word "accused"
appearing in the above-quoted Section 2 (paragraphs a and c) of R.A. 7975, was deleted. It is due to this
deletion of the word "principal" that the parties herein are at loggerheads over the jurisdiction of the
Sandiganbayan. Petitioner and intervenors, relying on R.A. 7975, argue that the Regional Trial Court, not
the Sandiganbayan, has jurisdiction over the subject criminal cases since none of the principal accused
under the amended information has the rank of Superintendent 28 or higher. On the other hand, the Office
of the Ombudsman, through the Special Prosecutor who is tasked to represent the People before the
Supreme Court except in certain cases, 29 contends that the Sandiganbayan has jurisdiction pursuant to
R.A. 8249.
A perusal of the aforequoted Section 4 of R.A. 8249 reveals that to fall under the exclusive original
jurisdiction of the Sandiganbayan, the following requisites must concur: (1) the offense committed is a
violation of (a) R.A. 3019, as amended (the Anti-Graft and Corrupt Practices Act), (b) R.A. 1379 (the law
on ill-gotten wealth), (c) Chapter II, Section 2, Title VII, Book II of the Revised Penal Code (the law on
bribery), 30 (d) Executive Order Nos. 1, 2, 14, and 14-A, issued in 1986 (sequestration cases), 31 or (e)
other offenses or felonies whether simple or complexed with other crimes; (2) the offender comitting the
offenses in items (a), (b), (c) and (e) is a public official or employee 32 holding any of the positions
enumerated in paragraph a of Section 4; and (3) the offense committed is in relation to the office.
Considering that herein petitioner and intervenors are being charged with murder which is a felony
punishable under Title VIII of the Revised Penal Code, the governing on the jurisdictional offense is not
paragraph a but paragraph b, Section 4 of R.A. 8249. This paragraph b pertains to "other offenses or
felonies whether simple or complexed with other crimes committed by the public officials and employees
mentioned in subsection a of (Section 4, R.A. 8249) in relation to their office. "The phrase" other offenses
or felonies" is too broad as to include the crime of murder, provided it was committed in relation to the
accused's officials functions. Thus, under said paragraph b, what determines the Sandiganbayan's
jurisdiction is the official position or rank of the offender that is, whether he is one of those public
officers or employees enumerated in paragraph a of Section 4. The offenses mentioned in pargraphs a, b
and c of the same Section 4 do not make any reference to the criminal participation of the accused public
officer as to whether he is charged as a principal, accomplice or accessory. In enacting R.A. 8249, the
Congress simply restored the original provisions of P.D. 1606 which does not mention the criminal
participation of the public officer as a requisite to determine the jurisdiction of the Sandiganbayan.
Petitioner and entervenors' posture that Section 4 and 7 of R.A. 8249 violate their right to equal protection
of the law 33 because its enactment was particularly directed only to the Kuratong Baleleng cases in the
Sandiganbayan, is a contention too shallow to deserve merit. No concrete evidence and convincing
argument were presented to warrant a declaration of an act of the entire Congress and signed into law by
the highest officer of the co-equal executive department as unconstitutional. Every classification made by
law is presumed reasonable. Thus, the party who challenges the law must present proof of arbitrariness.
34

It is an established precept in constitutional law that the guaranty of the equal protection of the laws is not
violated by a legislation based on reasonable classification. The classification is reasonable and not
arbitrary when there is concurrence of four elements, namely:
(1) it must rest on substantial distinction;
(2) it must be germane to the purpose of the law;
(3) must not be limited to existing conditions only, and
(4) must apply equaly to all members of the same class, 35
all of which are present in this case.
The challengers of Sections 4 and 7 of R.A. 8249 failed to rebut the presumption of constitutionality and
reasonables of the questioned provisions. The classification between those pending cases involving the
concerned public officials whose trial has not yet commence and whose cases could have been affected
by the amendments of the Sandiganbayan jurisdiction under R.A. 8249, as against those cases where
trial had already started as of the approval of the law, rests on substantial distinction that makes real
differences. 36 In the first instance, evidence against them were not yet presented, whereas in the latter
the parties had already submitted their respective proofs, examined witnesses and presented documents.
Since it is within the power of Congress to define the jurisdiction of courts subject to the constitutional
limitations, 37 it can be reasonably anticipated that an alteration of that jurisdiction would necessarily affect
pending cases, which is why it has to privide for a remedy in the form of a transitory provision. Thus,
petitioner and intervenors cannot now claim that Sections 4 and 7 placed them under a different category
from those similarly situated as them. Precisely, paragraph a of Section 4 provides that it shall apply to "all
case involving" certain public officials and, under the transitory provision in Section 7, to "all cases
pending in any court." Contrary to petitioner and intervenors' argument, the law is not particularly directed
only to the Kuratong Baleleng cases. The transitory provision does not only cover cases which are in the
Sandiganbayan but also in "any court." It just happened that Kuratong Baleleng cases are one of those
affected by the law. Moreover, those cases where trial had already begun are not affected by the
transitory provision under Section 7 of the new law (R.A. 8249).
In their futile attempt to have said sections nullified, heavy reliance is premised on what is perceived as
bad faith on the part of a Senator and two Justices of the Sandiganbaya 38 for their participation in the
passage of the said provisions. In particular, it is stressed that the Senator had expressed strong
sentiments against those officials involved in the Kuratong Baleleng cases during the hearings conducted
on the matter by the committee headed by the Senator. Petitioner further contends that the legislature is
biased against him as he claims to have been selected from among the 67 million other Filipinos as the
object of the deletion of the word "principal" in paragraph a, Section 4 of P.D. 1606, as amended, and of
the transitory provision of R.A. 8249. 39 R.A 8249, while still a bill, was acted, deliberated, considered by
23 other Senators and by about 250 Representatives, and was separately approved by the Senate and
House of Representatives and, finally, by the President of the Philippines.
On the perceived bias that the Sandiganbayan Justices allegedly had against petitioner during the
committe hearings, the same would not constitute sufficient justification to nullify an otherwise valid law.
Their presence and participation in the legislative hearings was deemed necessary by Congress since the
matter before the committee involves the graft court of which one is the head of the Sandiganbayan and

the other a member thereof. The Congress, in its plenary legislative powers, is particularly empowered by
the Constitution to invite persons to appear before it whenever it decides to conduct inquiries in aid of
legislation. 40
Petitioner and entervenors further further argued that the retroactive application of R.A. 8249 to the
Kuratong Baleleng cases constitutes an ex post facto law 41 for they are deprived of their right to
procedural due process as they can no longer avail of the two-tiered appeal which they had allegedly
acquired under R.A. 7975.
Again, this contention is erroneous. There is nothing ex post facto in R.A. 8249. In Calder v. Bull, 42 an ex
post facto law is one
(a) which makes an act done criminal before the passing of the law and
which was innocent when committed, and punishes such action; or
(b) which aggravates a crime or makes it greater than when it was
committed; or
(c) which changes the punishment and inflicts a greater punishment than
the law annexed to the crime when it was committed.
(d) which alters the legal rules of evidence and recieves less or different
testimony that the law required at the time of the commission of the
offense on order to convict the defendant. 43
(e) Every law which, in relation to the offense or its consequences, alters
the situation of a person to his disadvantage. 44
This Court added two more to the list, namely:
(f) that which assumes to regulate civil rights and remedies only but in
effect imposes a penalty or deprivation of a right which when done was
lawful;
(g) deprives a person accussed of crime of some lawful protection to
which he has become entitled, such as the protection of a former
conviction or acquittal, or a proclamation of a amnesty. 45
Ex post facto law, generally, prohibits retrospectivity of penal laws. 46 R.A. 8249 is not penal law. It is a
substantive law on jurisdiction which is not penal in character. Penal laws are those acts of the Legislature
which prohibit certain acts and establish penalties for their violations; 47 or those that define crimes, treat
of their nature, and provide dor their punishment. 48 R.A 7975, which amended P.D. 1606 as regards the
Sandiganbayan's jurisdiction, its mode of appeal and other procedural matters, has been declared by the
Court as not a penal law, but clearly a procedural statute, i.e. one which prescribes rules of procedure by
which courts applying laws of all kinds can properly administer justice. 49 Not being a penal law, the
retroactive application of R.A. 8249 cannot be challenged as unconstitutional.

Petitioner's and entervenors' contention that their right to a two-tiered appeal which they acquired under
R.A. 7975 has been diluted by the enactment of R.A. 8249, is incorrect. The same contention has already
been rejected by the court several times 50 considering that the right to appeal is not a natural right but
statutory in nature that can be regulated by law. The mode of procedure provided for in the statutory right
of appeal is not included in the prohibition against ex post facto laws. 51 R.A. 8249 pertains only to matters
of procedure, and being merely an amendatory statute it does not partake the nature of an ex post facto
law. It does not mete out a penalty and, therefore, does not come within the prohibition. 52 Moreover, the
law did not alter the rules of evidence or the mode of trial. 53 It has been ruled that adjective statutes may
be made applicable to actions pending and unresolved at the time of their passage. 54
In any case; R.A. 8249 has preserved the accused's right to appeal to the Supreme Court to review
questions of law. 55 On the removal of the intermediate review of facts, the Supreme Court still has the
power of review to determine if he presumption of innocence has been convincing overcome. 56
Another point. The challenged law does not violate the one-title-one-subject provision of the Constitution.
Much emphasis is placed on the wording in the title of the law that it "defines" the Sandiganbayan
jurisdiction when what it allegedly does is to "expand" its jurisdiction. The expantion in the jurisdiction of
the Sandiganbayan, if it can be considered as such, does not have to be expressly stated in the title of the
law because such is the necessary consequence of the amendments. The requirement that every bill
must only have one subject expressed in the title 57 is satisfied if the title is comprehensive enough, as in
this case, to include subjects related to the general purpose which the statute seeks to achieve. 58 Such
rule is liberally interpreted and should be given a practical rather than a technical construction. There is
here sufficient compliance with such requirement, since the title of R.A. 8249 expresses the general
subject (involving the jurisdiction of the Sandiganbayan and the amendment of P.D. 1606, as amended)
and all the provisions of the law are germane to that general subject. 59 The Congress, in employing the
word "define" in the title of the law, acted within its power since Section 2, Article VIII of the Constitution
itself empowers the legislative body to "define, prescribe, and apportion the jurisdiction of various courts.
60

There being no unconstitutional infirmity in both the subject amendatory provision of Section 4 and the
retroactive procedural application of the law as provided in Section 7 of R.A. No. 8249, we shall now
determine whether under the allegations in the Informations, it is the Sandiganbayan or Regional Trial
Court which has jurisdictions over the multiple murder case against herein petitioner and entervenors.
The jurisdiction of a court is defined by the Constitution or statute. The elements of that definition must
appear in the complaint or information so as to ascertain which court has jurisdiction over a case. Hence
the elementary rule that the jurisdiction of a court is determined by the allegations in the complaint or
informations, 61 and not by the evidence presented by the parties at the trial. 62
As stated earlier, the multiple murder charge against petitioner and intervenors falls under Section 4
[paragraph b] of R.A. 8249. Section 4 requires that the offense charged must be committed by the
offender in relation to his office in order for the Sandiganbayan to have jurisdiction over it. 63 This
jurisdictional requirement is in accordance with Section 5, Article XIII of the 1973 Constitution which
mandated that the Sandiganbayan shall have jurisdiction over criminal cases committed by the public
officers and employees, including those in goverment-owned or controlled corporations, "in relation to
their office as may be determined by law." This constitutional mandate was reiterated in the new (1987)
Constitution when it declared in Section 4 thereof that the Sandiganbayan shall continue to function and
exercise its jurisdiction as now or hereafter may be provided by law.

The remaining question to be resolved then is whether the offense of multiple murder was committed in
relation to the office of the accussed PNP officers.
In People vs. Montejo, 64 we held that an offense is said to have been committed in relation to the office if
it (the offense) is "intimately connected" with the office of the offender and perpetrated while he was in the
performance of his official functions. 65 This intimate relation between the offense charged and the
discharge of official duties "must be alleged in the informations." 66
As to how the offense charged be stated in the informations, Section 9, Rule 110 of the Revised Rules of
Court mandates:
Sec. 9 Couse of accusation The acts or omissions complied of as constituting the
offense must be stated in ordinary and concise language without repetition not
necessarily in the terms of the statute defining the offense, but in such from as is
sufficient to enable a person of common understanding to know what offense is intended
to be charged, and enable the court to pronounce proper judgment. (Emphasis supplied)
As early as 1954 we pronounced that "the factor that characterizes the charge is the actual recital of the
facts." 67 The real nature of the criminal charge is determined not from the caption or preamble of the
informations nor from the specification of the provision of law alleged to have been violated, they being
conclusions of law, but by the actual recital of facts in the complaint or information. 68
The noble object or written accusations cannot be overemphasized. This was explained in U.S. v.
Karelsen: 69
The object of this written accusations was First; To furnish the accused with such a
descretion of the charge against him as will enable him to make his defense and second
to avail himself of his conviction or acquittal for protection against a further prosecution
for the same cause and third, to inform the court of the facts alleged so that it may decide
whether they are sufficient in law to support a conviction if one should be had. In order
that the requirement may be satisfied, facts must be stated, not conclusions of law. Every
crime is made up of certain acts and intent these must be set forth in the complaint with
reasonable particularly of time, place, names (plaintiff and defendant) and circumstances.
In short, the complaint must contain a specific allegation of every fact and circumstance
necessary to constitute the crime charged. (Emphasis supplied)
It is essential, therefore, that the accused be informed of the facts that are imputed to him as "he is
presumed to have no indefendent knowledge of the facts that constitute the offense." 70
Applying these legal principles and doctrines to the present case, we find the amended informations for
murder against herein petitioner and intervenors wanting of specific factual averments to show the
intimate relation/connection between the offense charged and the discharge of official function of the
offenders.
In the present case, one of the eleven (11) amended informations 71 for murder reads:
AMENDED INFORMATIONS

The undersigned Special Prosecution Officer III. Office of the Ombudsman hereby
accuses CHIEF INSP. MICHAEL RAY AQUINO, CHIEF INSP. ERWIN T. VILLACORTE,
SENIOR INSP. JOSELITO T. ESQUIVEL, INSP. RICARDO G. DANDAN, SPO4 VICENTE
P. ARNADO, SPO4 ROBERTO F. LANGCAUON, SPO2 VIRGILIO V. PARAGAS, SPO2
ROLANDO R. JIMENEZ, SPO1 WILFREDO C. CUARTERO, SPO1 ROBERTO O.
AGBALOG, SPO1 OSMUNDO B. CARINO, CHIEF SUPT. JEWEL F. CANSON, CHIEF
SUPT. ROMEO M. ACOP, CHIEF SUPT. PANFILO M. LACSON, SENIOR SUPT.
FRANCISCO G. ZUBIA JR., SUPT. ALMARIO A. HILARIO, CHIEF INSP. CESAR O.
MANCAO III, CHIEF INSP. GIL L. MENESES, SENIOR INSP. GLENN DUMLAO,
SENIOR INSP. ROLANDO ANDUYAN, INSP. CEASAR TANNAGAN, SPO3 WILLY
NUAS, SPO3 CICERO S. BACOLOD, SPO2 NORBERTO LASAGA, PO2 LEONARDO
GLORIA, and PO2 ALEJANDRO G. LIWANAG of the crime of Murder as defined and
penalize under Article 248 of the Revised Penal Code committed as follows
That on or about May 18, 1995 in Mariano Marcos Avenue, Quezon City Philippines and
within the jurisdiction of his Honorable Court, the accused CHIEF INSP. MICHAEL RAY
AQUINO, CHIEF INSP. ERWIN T. VILLACORTE, SENIOR INSP. JOSELITO T.
ESQUIVEL, INSP. RICARDO G. DANDAN, SPO4 VICENTE ARNADO, SPO4 ROBERTO
F. LANGCAUON, SPO2 VIRGILIO V. PARAGAS, SPO2 ROLANDO R. JIMENEZ, SPO1
WILFREDO C. CUARTERO, SPO1 ROBERTO O. AGBALOG, and SPO1 OSMUNDO B.
CARINO, all taking advantage of their public and official positions as officers and
members of the Philippine National Police and committing the acts herein alleged in
relation to their public office, conspiring with intent to kill and using firearms with treachery
evident premeditation and taking advantage of their superior strenghts did then and there
willfully unlawfully and feloniously shoot JOEL AMORA, thereby inflicting upon the latter
mortal wounds which caused his instantaneous death to the damage and prejudice of the
heirs of the said victim.
That accused CHIEF SUPT. JEWEL F. CANSON, CHIEF SUPT. ROMOE M. ACOP,
CHIEF SUPT. PANFILO M. LACSON, SENIOR SUPT. FRANCISCO G. ZUBIAM JR.,
SUPT. ALMARIO A. HILARIO, CHIEF INSP. CESAR O. MANCAO II, CHIEF INSP. GIL L.
MENESES, SENIOR INSP. GLENN DUMLAO, SENIOR INSP. ROLANDO ANDUYAN,
INSP. CEASAR TANNAGAN, SPO3 WILLY NUAS, SPO3 CICERO S. BACOLOD, PO2
ALEJANDRO G. LIWANAG committing the acts in relation to office as officers and
members of the Philippine National Police are charged herein as accessories after-thefact for concealing the crime herein above alleged by among others falsely representing
that there where no arrest made during the read conducted by the accused herein at
Superville Subdivision, Paranaque, Metro Manila on or about the early dawn of May 18,
1995.
CONTRARY LAW.
While the above-quoted information states that the above-named principal accused committed the crime
of murder "in relation to thier public office, there is, however, no specific allegation of facts that the
shooting of the victim by the said principal accused was intimately related to the discharge of their official
duties as police officers. Likewise, the amended information does not indicate that the said accused
arrested and investigated the victim and then killed the latter while in their custody.

Even the allegations concerning the criminal participation of herein petitioner and intevenors as among
the accessories after-the-facts, the amended information is vague on this. It is alleged therein that the
said accessories concelead "the crime herein-above alleged by, among others, falsely representing that
there were no arrests made during the raid conducted by the accused herein at Superville Subdivision,
Paranaque Metro Manila, on or about the early dawn of May 18, 1995." The sudden mention of the
"arrests made during the raid conducted by the accused" surprises the reader. There is no indication in
the amended information that the victim was one of those arrested by the accused during the "raid."
Worse, the raid and arrests were allegedly conducted "at Superville Subdivision, Paranaque, Metro
Manila" but, as alleged in the immediately preceding paragraph of the amended information, the shooting
of the victim by the principal accused occurred in Mariano Marcos Avenue, Quezon City." How the raid,
arrests and shooting happened in the two places far away from each other is puzzling. Again, while there
is the allegation in the amended information that the said accessories committed the offense "in relation to
office as officers and members of the (PNP)," we, however, do not see the intimate connection between
the offense charged and the accused's official functions, which, as earlier discussed, is an essential
element in determining the jurisdiction of the Sandiganbayan.
The stringent requirement that the charge be set forth with such particularly as will reasonably indicate the
exact offense which the accused is alleged to have committed in relation to his office was, sad to say, not
satisfied. We believe that the mere allegation in the amended information that the offense was committed
by the accused public officer in relation to his office is not sufficient. That phrase is merely a conclusion
between of law, not a factual avernment that would show the close intimacy between the offense charged
and the discharge of the accused's official duties.
In People vs. Magallanes, 72 where the jurisdiction between the Regional Trial Court and the
Sandiganbayan was at issue, we ruled:
It is an elementary rule that jurisdiction is determined by the allegations in the complaint
or information and not by the result of evidence after trial.
In (People vs) Montejo (108 Phil 613 (1960), where the amended information alleged
Leroy S. Brown City Mayor of Basilan City, as such, has organized
groups of police patrol and civilian commandoes consisting of regular
policeman and . . . special policemen appointed and provided by him with
pistols and higher power guns and then established a camp . . . at Tipotipo which is under his command . . . supervision and control where his
co-defendants were stationed entertained criminal complaints and
conducted the corresponding investigations as well as assumed the
authority to arrest and detain person without due process of law and
without bringing them to the proper court, and that in line with this set-up
established by said Mayor of Basilan City as such, and acting upon his
orders his co-defendants arrested and maltreated Awalin Tebag who
denied in consequence thereof.
we held that the offense charged was committed in relation to the office of the accused
because it was perpetreated while they were in the performance, though improper or
irregular of their official functions and would not have been committed had they not held

their office, besides, the accused had no personal motive in committing the crime thus,
there was an intimate connection between the offense and the office of the accused.
Unlike in Montejo the informations in Criminal Cases Nos. 15562 and 15563 in the court
below do not indicate that the accused arrested and investigated the victims and then
killed the latter in the course of the investigation. The informations merely allege that the
accused for the purpose of extracting or extortin the sum of P353,000.00 abducted,
kidnapped and detained the two victims, and failing in their common purpose they shot;
and killed the said victims. For the purpose of determining jurisdiction, it is these
allegations that shall control, and not the evidence presented by the prosecution at the
trial.
In the aforecited case of People vs. Montejo, it is noteworthy that the phrase committed in relation to
public office "does not appear in the information, which only signifies that the said phrase is not what
determines the jurisdiction of the Sandiganbayan. What is controlling is the specific factual allegations in
the information that would indicate the close intimacy between the discharge of the accused's official
duties and the commission of the offense charged, in order to qualify the crime as having been committed
in relation to public office.
Consequently, for failure to show in the amended informations that the charge of murder was intimately
connected with the discharge of official functions of the accused PNP officers, the offense charged in the
subject criminal cases is plain murder and, therefore, within the exclusive original jurisdiction of the
Regional Trial Court, 73 not the Sandiganbayan.
WHEREFORE, the constitutionality of Sections 4 and 7 of R.A. 8249 is hereby sustained. The Addendum
to the March 5, 1997 Resolution of the Sandiganbayan is REVERSED. The Sandiganbayan is hereby
directed to transfer Criminal Cases Nos. 23047 to 23057 (for multiple murder) to the Regional Trial Court
of Quezon City which has exclusive original jurisdiction over the said cases.1wphi1.nt
SO ORDERED.
Davide, Jr., CJ., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing,
Purisima, Pardo, Buena and Gonzaga-Reyes, JJ., concur.

Republic of the Philippines


SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-23465 October 31, 1979
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
CASTO ALEJANDRINO alias "TORRES" alias "GUAN YEK" alias "GY" alias "G.I"
alias "TATANG", defendant-appellant.
Marcial G. Natividad & Ahmed Garcia for appellant.
Solicitor General Arturo A. Alafriz Assistant Solicitor General Pacifico P. de Castro,
Solicitor Bernardo P. Pardo and Special Prosecutor Buenaventura B. Fernandez for
appellee.

FERNANDO, C.J.:
A decision by the then lower court Judge Conrado V. Vasquez. subsequently a Justice
of the Court of Appeals, now retired, convicting Casto Alejandrino for violation of the
Anti-Subversion Act, 1 is assailed in this appeal. The principal contention is that such a statute is
unconstitutional for being violative of the ex post facto and freedom of speech and assembly guarantees.
Our decision in People v. Ferrer 2 upholding its validity and foreclosed that question. The last two errors
assigned in the appeal deal with the alleged failure of the evidence to demonstrate the guilt of appellant
beyond reasonable doubt. A careful scrutiny of the decision as well as the records of the case easily
reveals the weakness of such a submission, the evidence being more than sufficient to the culpability of
appellant. Affirmance is thus indicated.
The facts may be culled from the well-written decision of the then Judge Vasquez: "The evidence
presented in this case consisted almost wholly of that presented by the prosecution. After the prosecution
rested, the accused waived the presentation of any testimonial evidence in his behalf and rested the case
upon presentation and admission of Exhibits I to 6. The inquiry in this case becomes therefore, a
determination of whether or not the prosecution has complied with the two-witness rule requirement for
conviction of the accused for the offenses with which he is charged in the above quoted information.
Insofar as the membership of the accused in the Communist Party of the Philippines is concerned, the
record contains an express admission by the accused of such membership. In one of the hearings of this
case held on February 15, 1962, the accused asked the Court's permission to read a written petition for
postponement which he was allowed to do. The written petition was then submitted and made a part of
the record. Although the accused refused to sign the same, it was marked as Exhibit C for the prosecution
and adopted as Exhibit 2 for the defense. It reads in part: "I am asking for the postponement of the trial

until after the Supreme Court renders decision on the constitutionality of Republic Act 1700. If the Act is
voided the case is dismissed. On the other hand, if the constitutionality of Republic Act 1700 is upheld
then all that this court had to do is pass judgment because I am not denying my membership in my Party
which this Court could interpret as the same party that is outlawed by Republic Act 1700. In either case,
all concerned will be saved the trouble of a long trial." ... It could thus be seen from the above document
presented by the accused himself that he admits his membership in the party which was outlawed by
Republic Act No. 1700. Considering that this manifestation was made on February 15, 1962, it also
constitutes an admission that such membership was after the effectivity of Republic Act No. 1700, which
was approved on June 20, 1957. Said membership was also shown by the testimonies of a host of
witnesses presented by the prosecution. The overt acts committed by the accused on which at least two
witnesses of the prosecution testified to are the following: (1) The conference of the Huks at
Telabastagan, a barrio near Angeles, Pampanga in the first week of March, 1958; (2) the armed
encounter between government troops and the dissident group headed by the accused in the same place
in the last week of March, 1958: and (3) the conference of the Huks held in barrio Biak-na-Bato, San
Miguel, Bulacan, in mid-November of 1957. The conference of the Huks in the sugarcane fields at
Telabastagan in the first week of March, 1958 was testified to by prosecution witnesses Ricardo
Mendoza, Juan Singian, Melencio Guevarra and Exequiel Santiago. They testified that they were in group
of Huks that stayed at barrio Telabastagan; that in the first week of March, 1958, a conference was held
thereat; that present in the conference were the accused who presided the same, Pedro Taruc, Linda Bie,
Davidson, Sumulong, Ignacio Dabu and others; that the conference lasted three or four days; and that
these witnesses acted as guards around the place where the conference was held. The conference at
Biak-na-Bato, San Miguel, Bulacan, in November of 1957,. was testified to by prosecution witnesses
[Lazaro] Esteban and Rufino [Aquesal] who both declared that they were former Huks, that they were
assigned as security guards in the conference held at Biak-na-Bato in November, 1957; that present in
the conference were [Casto] Alejandrino, Pedro Taruc, Linda Bie, Davidson, and others; and that the
conference lasted about two days. The encounter between the Huks and government forces at
Telabastagan in the last week of March, 1958 had been testified to by prosecution witnesses Ricardo
Mendoza, Juan Singian, Melencio Guevarra and Exequiel Santiago. They similarly declared that the
accused led one of the groups of Huks that participated in that encounter that the exchange of shots with
government troops lasted for about thirty minutes; that the accused carried two firearms on that occasion,
namely, an automatic carbine and a German Luger pistol which he used in firing in the direction of the
government forces; and that the accused exhorted his men to fight." 3
As noted at the outset, the judgment appealed from must be affirmed.
1. There is no need to discuss anew the question of the validity of the Anti-Subversion Act. The very
extensive opinion of the late Chief Justice Castro, both when the case was first decided and subsequently
in the motion for reconsideration, had explained in detail why such a statute is not susceptible to the
reproach of its being violative of the constitutional guarantees of prohibiting an ex post facto legislation as
well as the respect to be accorded freedom of expression and freedom of peaceable assembly. While the
writer of this opinion dissented from the decision of the Court, it must be respected, constituting as it does
the express and manifest will of this Tribunal. 4
2. Nor is there any substance to the allegation in the last two errors that the two-witness rule was violated.
As was pointed out in the able decision of the then Judge Vasquez, the conference of the Huks at
Telabastagan, a barrio near Angeles, Pampanga, in the first week of March, 1958 was testified to by
prosecution witnesses Ricardo Mendoza, 5 Juan Singian, 6 Melencio Guevarra 7 and Exequiel Santiago. 8
Equally so, two witnesses, Lazaro Esteban 9 and Rufino Aqueza, 10 who admitted that they were former
Huks declared that they were assigned as security guards in the conference held at Biak-na-Bato in

November, 1957 and that appellants Casto Alejandrino was among those present at such conference. It
lasted about two days. As far as the encounter between the Huks and the government forces at
Telabastagan in the last week of March, 1958 is concerned, the evidence of record discloses the
testimony of prosecution witnesses Ricardo Mendoza, 11 Juan Singian, 12 Melencio Guevarra 13 and
Exequiel Santiago. 14 There is, therefore, proof, to quote from the decision "that the accused led one of
the groups of Huks that participated in that encounter that the exchange of shots with troops lasted for
about thirty minutes; that the accused carried two firearms on that occasion, namely, an automatic carbine
and a German Luger pistol which he used in firing in the direction of the government forces; and that the
accused exhorted his men to fight." 15
3. The futility of this appeal is thus obvious. The well-written opinion of the then Judge Vasquez cannot be
assailed for having been erroneous in any respect. With the refusal of appellant to present testimony on
his behalf, the case had to be decided on the evidence supplied by the prosecution. The outcome was
therefore predictable. The testimony thus offered sufficed to prove the guilt of the accused beyond
reasonable doubt. The stage of moral certainty was reached. The constitutional presumption of innocence
had been overcome. It bears repeating that this Court, in the language of People v. Mahinay, 16 "has
consistently adhered to the doctrine of according respect to findings of fact of the trial judge, unless it
could be shown that a fact or circumstance has been overlooked or has been misinterpreted." 17 Certainly
then, there is no basis for overturning the decision of the lower court.
WHEREFORE, the judgment appealed from is affirmed. With costs.
Barredo, Antonio, Concepcion, Jr., Santos and Abad Santos, JJ., concur.
Aquino, J., concurs in the result.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC

G.R. No. 100776 October 28, 1993


ALBINO S. CO, petitioner,
vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
Antonio P. Barredo for petitioner.
The Solicitor General for the people.

NARVASA, C.J.:
In connection with an agreement to salvage and refloat asunken vessel and in payment of his share of the expenses of the salvage
operations therein stipulated petitioner Albino Co delivered to the salvaging firm on September 1, 1983 a check drawn against the
1

The check was deposited on January 3,


1984. It was dishonored two days later, the tersely-stated reason given by the bank being: "CLOSED
ACCOUNT."
Associated Citizens' Bank, postdated November 30, 1983 in the sum of P361,528.00.

A criminal complaint for violation of Batas Pambansa Bilang 22 2 was filed by the salvage company
against Albino Co with the Regional Trial Court of Pasay City. The case eventuated in Co's conviction of
the crime charged, and his being sentenced to suffer a term of imprisonment of sixty (60) days and to
indemnify the salvage company in the sum of P361,528.00.
Co appealed to the Court of Appeals. There he sought exoneration upon the theory that it was reversible
error for the Regional Trial Court to have relied, as basis for its verdict of conviction, on the ruling
rendered on September 21, 1987 by this Court in Que v. People, 154 SCRA 160 (1987) 3 i.e., that a
check issued merely to guarantee the performance of an obligation is nevertheless covered by B.P. Blg.
22. This was because at the time of the issuance of the check on September 1, 1983, some four (4) years
prior to the promulgation of the judgment in Que v. People on September 21, 1987, the delivery of a
"rubber" or "bouncing" check as guarantee for an obligation was not considered a punishable offense, an
official pronouncement made in a Circular of the Ministry of Justice. That Circular (No. 4), dated
December 15, 1981, pertinently provided as follows:
2.3.4. Where issuance of bouncing check is neither estafa nor violation of B.P. Blg. 22.
Where the check is issued as part of an arrangement to guarantee or secure the payment
of an obligation, whether pre-existing or not, the drawer is not criminally liable for either
estafa or violation of B.P. Blg. 22 (Res. No. 438, s. 1981, Virginia Montano vs. Josefino
Galvez, June 19, 1981; Res. No. 707, s. 1989; Alice Quizon vs. Lydia Calingo, October

23, 1981, Res. No. 769, s. 1981, Alfredo Guido vs. Miguel A. Mateo, et. al., November 17,
1981; Res. No. 589, s. 1981, Zenaida Lazaro vs. Maria Aquino, August 7, 1981).
This administrative circular was subsequently reversed by another issued on August 8, 1984 (Ministry
Circular No. 12) almost one (1) year after Albino Co had delivered the "bouncing" check to the
complainant on September 1, 1983. Said Circular No. 12, after observing inter alia that Circular No. 4 of
December 15, 1981 appeared to have been based on "a misapplication of the deliberation in the
Batasang Pambansa, . . . (or) the explanatory note on the original bill, i.e. that the intention was not to
penalize the issuance of a check to secure or guarantee the payment of an obligation," as follows: 4
Henceforth, conforming with the rule that an administrative agency having interpreting
authority may reverse its administration interpretation of a statute, but that its review
interpretation applies only prospectively (Waterbury Savings Bank vs. Danaher, 128
Conn., 476; 20 a2d 455 (1941), in all cases involving violation of Batas Pambansa Blg.
22 where the check in question is issued after this date, the claim that the check is
issued as a guarantee or part of an arrangement to secure an obligation collection will no
longer be considered a valid defense.
Co's theory was rejected by the Court of Appeals which affirmed his conviction. Citing Senarillos v.
Hermosisima, 101 Phil. 561, the Appellate Court opined that the Que doctrine did not amount to the
passage of new law but was merely a construction or interpretation of a pre-existing one, i.e., BP 22,
enacted on April 3, 1979.
From this adverse judgment of the Court of Appeals, Albino Co appealed to this Court on certiorari under
Rule 45 of the Rules of Court. By Resolution dated September 9, 1991, the Court dismissed his appeal.
Co moved for reconsideration under date of October 2, 1991. The Court required comment thereon by the
Office of the Solicitor General. The latter complied and, in its comment dated December 13, 1991,
extensively argued against the merits of Albino Co's theory on appeal, which was substantially that
proffered by him in the Court of Appeals. To this comment, Albino Co filed a reply dated February 14,
1992. After deliberating on the parties' arguments and contentions, the Court resolved, in the interests of
justice, to reinstate Albino Co's appeal and adjudicate the same on its merits.
Judicial decisions applying or interpreting the laws or the Constitution shall form a part of
the legal system of the Philippines," according to Article 8 of the Civil Code. "Laws shall
have no retroactive effect, unless the contrary is provided," declares Article 4 of the same
Code, a declaration that is echoed by Article 22 of the Revised Penal Code: "Penal laws
shall have, a retroactive effect insofar as they favor the person guilty of a felony, who is
not a habitual criminal . . . 5
The principle of prospectivity of statutes, original or amendatory, has been applied in many cases. These
include: Buyco v. PNB, 961 2 SCRA 682 (June 30, 1961), holding that Republic Act No. 1576 which
divested the Philippine National Bank of authority to accept back pay certificates in payment of loans,
does not apply to an offer of payment made before effectivity of the act; Largado v. Masaganda, et al., 5
SCRA 522 (June 30, 1962), ruling that RA 2613, s amended by RA 3090 on June, 1961, granting to
inferior courts jurisdiction over guardianship cases, could not be given retroactive effect, in the absence of
a saving clause; Larga v. Ranada, Jr., 64 SCRA 18, to the effect that Sections 9 and 10 of Executive
Order No. 90, amending Section 4 of PD 1752, could have no retroactive application; People v. Que Po
Lay, 94 Phil. 640, holding that a person cannot be convicted of violating Circular No. 20 of the Central,

when the alleged violation occurred before publication of the Circular in the Official Gazette; Baltazar v.
C.A., 104 SCRA 619, denying retroactive application to P.D. No. 27 decreeing the emancipation of
tenants from the bondage of the soil, and P.D. No. 316 prohibiting ejectment of tenants from rice and corn
farmholdings, pending the promulgation of rules and regulations implementing P.D. No. 27; Nilo v. Court
of Appeals, 128 SCRA 519, adjudging that RA 6389 whichremoved "personal cultivation" as a ground for
the ejectment of a tenant cannot be given retroactive effect in the absence of a statutory statement for
retroactivity; Tac-An v. CA, 129 SCRA 319, ruling that the repeal of the old Administrative Code by RA
4252 could not be accorded retroactive effect; Ballardo v. Borromeo, 161 SCRA 500, holding that RA
6389 should have only prospective application; (see also Bonifacio v. Dizon, 177 SCRA 294 and Balatbat
v. CA, 205 SCRA 419).
The prospectivity principle has also been made to apply to administrative rulings and circulars, to wit:
ABS-CBN Broadcasting Corporation v. CTA, Oct. 12, 1981, 108 SCRA 142, holding that a circular or
ruling of the Commissioner of Internal Revenue may not be given retroactive effect adversely to a
taxpayer: Sanchez v. COMELEC, 193 SCRA 317, ruling that Resolution No. 90-0590 of the Commission
on Elections, which directed the holding of recall proceedings, had no retroactive application; Romualdez
v. CSC, 197 SCRA 168, where it was ruled that CSC Memorandum Circular No. 29, s. 1989 cannot be
given retrospective effect so as to entitle to permanent appointment an employee whose temporary
appointment had expired before the Circular was issued.
The principle of prospectivity has also been applied to judicial decisions which, "although in themselves
not laws, are nevertheless evidence of what the laws mean, . . . (this being) the reason whyunder Article 8
of the New Civil Code, 'Judicial decisions applying or interpreting the laws or the Constitution shall form a
part of the legal system . . .'"
So did this Court hold, for example, in Peo. v. Jabinal, 55 SCRA 607, 611:
It will be noted that when appellant was appointed Secret Agent by the Provincial
Government in 1962, and Confidential Agent by the Provincial commander in 1964, the
prevailing doctrine on the matter was that laid down by Us in People v. Macarandang
(1959) and People v. Lucero (1958). 6 Our decision in People v. Mapa, 7 reversing the
aforesaid doctrine, came only in 1967. The sole question in this appeal is: should
appellant be acquitted on the basis of Our rulings in Macarandang and Lucero, or should
his conviction stand in view of the complete reverse of the Macarandang and Lucero
doctrine in Mapa? . . .
Decisions of this Court, although in themselves not laws, are nevertheless evidence of
what the laws mean, and this is the reason why under Article 8 of the New Civil Code,
"Judicial decisions applying or interpreting the laws or the Constitution shall form a part of
the legal system . . ."The interpretation upon a law by this Court constitutes, in a way, a
part of the law as of the date that law was originally passed, since this Court's
construction merely establishes the contemporaneous legislative intent that the law thus
construed intends to effectuate. The settled rule supported by numerous authorities is a
restatement of the legal maxim "legis interpretation legis vim obtinet" the interpretation
placed upon the written law by a competent court has the force of law. The doctrine laid
down in Lucero and Macarandang was part of the jurisprudence, hence, of the law, of the
land, at the time appellant was found in possession of the firearm in question and where
he was arraigned by the trial court. It is true that the doctrine was overruled in the Mapa

case in 1967, but when a doctrine of this Court is overruled and a different view is
adopted, the new doctrine should be applied prospectively, and should not apply to
parties who had relied on, the old doctrine and acted on the faith thereof. This is
especially true in the construction and application of criminal laws, where it is necessary
that the punishment of an act be reasonably foreseen for the guidance of society.
So, too, did the Court rule in Spouses Gauvain and Bernardita Benzonan v. Court of Appeals, et al. (G.R.
No. 97973) and Development Bank of the Philippines v. Court of Appeals, et al (G.R. No 97998), Jan. 27,
1992, 205 SCRA 515, 527-528: 8
We sustain the petitioners' position, It is undisputed that the subject lot was mortgaged to
DBP on February 24, 1970. It was acquired by DBP as the highest bidder at a foreclosure
sale on June 18, 1977, and then sold to the petitioners on September 29, 1979.
At that time, the prevailing jurisprudence interpreting section 119 of R.A. 141 as amended
was that enunciated in Monge and Tupas cited above. The petitioners Benzonan and
respondent Pe and the DBP are bound by these decisions for pursuant to Article 8 of the
Civil Code "judicial decisions applying or interpreting the laws or the Constitution shall
form a part of the legal system of the Philippines." But while our decisions form part of the
law of the land, they are also subject to Article 4 of the Civil Code which provides that
"laws shall have no retroactive effect unless the contrary is provided." This is expressed
in the familiar legal maxim lex prospicit, non respicit, the law looks forward not backward.
The rationale against retroactivity is easy to perceive. The retroactive application of a law
usually divests rights that have already become vested or impairs the obligations of
contract and hence, is unconstitutional (Francisco vs. Certeza, 3 SCRA 565 [1061]).
The same consideration underlies our rulings giving only prospective effect to decisions
enunciating new doctrines. Thus, we emphasized in People v. Jabinal, 55 SCRA 607
[1974]" . . . when a doctrine of this Court is overruled and a different view is adopted, the
new doctrine should be applied prospectively and should not apply to parties who had
relied on the old doctrine and acted on the faith thereof.
A compelling rationalization of the prospectivity principle of judicial decisions is well set forth in the oftcited case of Chicot County Drainage Dist. v. Baxter States Bank, 308 US 371, 374 [1940]. The Chicot
doctrine advocates the imperative necessity to take account of the actual existence of a statute prior to its
nullification, as an operative fact negating acceptance of "a principle of absolute retroactive invalidity.
Thus, in this Court's decision in Taada v. Tuvera, 9 promulgated on April 24, 1985 which declared "that
presidential issuances of general application, which have not been published,shall have no force and
effect," and as regards which declaration some members of the Court appeared "quite apprehensive
about the possible unsettling effect . . . (the) decision might have on acts done in reliance on the validity
of these presidential decrees . . ." the Court said:
. . . . The answer is all too familiar. In similar situation is in the past this Court, had taken
the pragmatic and realistic course set forth in Chicot County Drainage District vs. Baxter
Bank (308 U.S. 371, 374) to wit:

The courts below have proceeded on the theory that the Act of Congress, having found to
be unconstitutional, was not a law; that it was inoperative, conferring no rights and
imposing no duties, and hence affording no basis for the challenged decree. Norton vs.
Shelby County, 118 US 425, 442; Chicago, I. & L. Ry. Co. v. Hackett, 228 U. S. 559, 566.
It is quite clear, however, that such broad statements as to the effect of a determination of
unconstitutionality must be taken with qualifications. The actual existence of a statute,
prior to such a determination, is an operative fact and may have consequences which
cannot justly be ignored. The past cannot always be erased by a new judicial declaration.
The effect of the subsequent ruling as to invalidity may have to be considered in various
aspects with respect to particular conduct, private and official. Questions of rights
claimed to have become vested, of status, of prior determinations deemed to have finality
and acted upon accordingly, of public policy in the light of the nature both of the statute
and of its previous application, demand examination. These questions are among the
most difficult of those who have engaged the attention of courts, state and federal, and it
is manifest from numerous decisions that an all-inclusive statement of a principle of
absolute retroactive invalidity cannot be justified.
Much earlier, in De Agbayani v. PNB, 38 SCRA 429 concerning the effects of the invalidation of
"Republic Act No. 342, the moratorium legislation, which continued Executive Order No. 32, issued by the
then President Osmea, suspending the enforcement of payment of all debts and other monetary
obligations payable by war sufferers," and which had been "explicitly held in Rutter v. Esteban (93 Phil. 68
[1953] 10 . . . (to be) in 1953 'unreasonable and oppressive, and should not be prolonged a minute longer .
. ." the Court made substantially the same observations, to wit: 11
. . . . The decision now on appeal reflects the orthodox view that an unconstitutional act,
for that matter an executive order or a municipal ordinance likewise suffering from that
infirmity, cannot be the source of any legal rights or duties. Nor can it justify any official
act taken under it. Its repugnancy to the fundamental law once judicially declared results
in its being to all intents and purposes amere scrap of paper. . . . It is understandable why
it should be so, the Constitution being supreme and paramount. Any legislative or
executive act contrary to its terms cannot survive.
Such a view has support in logic and possesses the merit of simplicity. lt may not
however be sufficiently realistic. It does not admit of doubt that prior to the declaration of
nullity such challenged legislative or executive act must have been in force and had to be
compiled with. This is so as until after the judiciary, in an appropriate case, declares its
invalidity,, it is entitled to obedience and respect. Parties may have acted under it and
may have changed theirpositions, what could be more fitting than that in a subsequent
litigation regard be had to what has been done while such legislative or executive act was
in operation and presumed to be valid in all respects. It is now accepted as a doctrine
that prior to its being nullified, its existence is a fact must be reckoned with. This is merely
to reflect awareness that precisely because the judiciary is the governmental organ which
has the final say on whether or not a legislative or executive measure is valid, a, period of
time may have elapsed before it can exercise the power of judicial review that may lead
to a declaration of nullity. It would be to deprive the law of its quality of fairness and
justice then, if there be no recognition of what had transpired prior to such adjudication.

In the language of an American Supreme Court decision: 'The actual existence of a


statute, prior to such a determination [of unconstitutionality], is an operative fact and may
have consequences which cannot justly be ignored. The past cannot always be erased
by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have
to be considered in various aspects, with respect to particular relations, individual and
corporate, and particular conduct, private and official (Chicot County Drainage Dist. v.
Baxter States Bank, 308 US 371, 374 [1940]). This language has been quoted with
approval in a resolution in Araneta v. Hill (93 Phil. 1002 [1953]) and the decision in Manila
Motor Co. Inc. v. Flores (99 Phil. 738 [1956]). An even more recent instance is the opinion
of Justice Zaldivar speaking for the Court in Fernandez v. Cuerva and Co. (L-21114, Nov.
28, 1967, 21 SCRA 1095).
Again, treating of the effect that should be given to its decision in Olaguer v. Military Commission No 34,
12
declaring invalid criminal proceedings conducted during the martial law regime against civilians,
which had resulted in the conviction and incarceration of numerous persons this Court, in Tan vs.
Barrios, 190 SCRA 686, at p. 700, ruled as follows:
In the interest of justice and consistently, we hold that Olaguer should, in principle, be
applied prospectively only to future cases and cases still ongoing or not yet final when
that decision was promulgated. Hence, there should be no retroactive nullification of final
judgments, whether of conviction or acquittal, rendered by military courts against civilians
before the promulgation of the Olaguer decision. Such final sentences should not be
disturbed by the State. Only in particular cases where the convicted person or the State
shows that there was serious denial of constitutional rights of the accused, should the
nullity of the sentence be declared and a retrial be ordered based on the violation of the
constitutional rights of the accused and not on the Olaguer doctrine. If a retrial is no
longer possible, the accused should be released since judgment against him is null on
account of the violation of his constitutional rights and denial of due process.
xxx xxx xxx
The trial of thousands of civilians for common crimes before the military tribunals and
commissions during the ten-year period of martial rule (1971-1981) which were created
under general orders issued by President Marcos in the exercise of his legislative powers
is an operative fact that may not just be ignored. The belated declaration in 1987 of the
unconstitutionality and invalidity of those proceedings did not erase the reality of their
consequences which occurred long before our decision in Olaguer was promulgated and
which now prevent us from carrying Olaguer to the limit of its logic. Thus did this Court
rule in Municipality of Malabang v. Benito, 27 SCRA 533, where the question arose as to
whether the nullity of creation of a municipality by executive order wiped out all the acts
of the local government abolished. 13
It would seem then, that the weight of authority is decidedly in favor of the proposition that the Court's
decision of September 21, 1987 in Que v. People, 154 SCRA 160 (1987) 14 that a check issued merely to
guarantee the performance of an obligation is nevertheless covered by B.P. Blg. 22 should not be
given retrospective effect to the prejudice of the petitioner and other persons situated, who relied on the
official opinion of the Minister of Justice that such a check did not fall within the scope of B.P. Blg. 22.

Inveighing against this proposition, the Solicitor General invokes U.S. v. Go Chico, 14 Phil. 128, applying
the familiar doctrine that in crimes mala prohibita, the intent or motive of the offender is inconsequential,
the only relevant inquiry being, "has the law been violated?" The facts in Go Chico are substantially
different from those in the case at bar. In the former, there was no official issuance by the Secretary of
Justice or other government officer construing the special law violated; 15 and it was there observed,
among others, that "the defense . . . (of) an honest misconstruction of the law under legal advice" 16 could
not be appreciated as a valid defense. In the present case on the other hand, the defense is that reliance
was placed, not on the opinion of a private lawyer but upon an official pronouncement of no less than the
attorney of the Government, the Secretary of Justice, whose opinions, though not law, are entitled to great
weight and on which reliance may be placed by private individuals is reflective of the correct interpretation
of a constitutional or statutory provision; this, particularly in the case of penal statutes, by the very nature
and scope of the authority that resides in as regards prosecutions for their violation. 17 Senarillos vs.
Hermosisima, supra, relied upon by the respondent Court of Appeals, is crucially different in that in said
case, as in U.S. v. Go Chico, supra, no administrative interpretation antedated the contrary construction
placed by the Court on the law invoked.
This is after all a criminal action all doubts in which, pursuant to familiar, fundamental doctrine, must be
resolved in favor of the accused. Everything considered, the Court sees no compelling reason why the
doctrine of mala prohibita should override the principle of prospectivity, and its clear implications as herein
above set out and discussed, negating criminal liability.
WHEREFORE, the assailed decisions of the Court of Appeals and of the Regional Trial Court are
reversed and set aside, and the criminal prosecution against the accused-petitioner is DISMISSED, with
costs de oficio.
SO ORDERED.

Republic of the Philippines


SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 117322 May 21, 1998


THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ULYSIS CLOPINO y VARGAS, accused-appellant.

MENDOZA, J.:
1

of the Regional Trial Court of Virac, Catanduanes, finding accused-appellant


guilty of rape and sentencing him to suffer reclusion perpetua and to pay the complainant Melody Quintal
the sum of P50,000.00 as moral damages.
This is an appeal from a decision

The information against accused-appellant alleged


That on or about the 16th day of February, 1992 at barangay Dugui Too, municipality of Virac,
province of Catanduanes, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused willfully, unlawfully and feloniously with force, violence and intimidation
drag Melody Quintal to the forest and did then and there lie and succeeded in having carnal
knowledge with her against her will and consent.
ALL ACTS CONTRARY TO LAW.
The evidence for the prosecution is as follows:
Melody Quintal was at the time material to this case a 16-year old high school student. On February 16,
1992, between 12:30-1:30 in the afternoon, she and her sister Jinky and cousin Beverly left Barangay
Dugui Too in Virac, Catanduanes to go to school at the poblacion. Melody walked very fast, so much so
that she was ahead of her companions. At the bend of the road, her companions lost sight of her. Beverly
Beo claimed that they met a man wearing dark blue short pants, a light blue t-shirt, and a mask. Without
warning, the man pushed them, causing them to roll down the ravine. Fortunately, they did not fall to the
bottom because of the presence of ''bigaho" plants. When they looked at the man who pushed them, they
recognized him as accused-appellant. He ran in the direction where Melody was going.
Beverly and Jinky climbed up the ravine and tried to look for Melody but they could not find her. They
found some of her belongings strewn on the road. These were her wrist watch, bag and umbrella. The
strap of the bag was detached, while the handle of her umbrella was broken. They called her name
several times but to no avail. They then went back to their barangay to report that Melody was missing.
They informed Melody's brother about what happened. Then they went to Melody's mother who reported
the matter to the barangay authorities. A rescue team went to the place where Melody was last seen.

Melody testified that at sitio Pagsangahan, she was surprised to find accused-appellant behind her.
Accused-appellant was wearing blue shorts and a blue t-shirt. Although he had a mask on, Melody
recognized him just the same as they were neighbors. Melody asked him about her sister and her
companion, but instead of answering her, accused-appellant asked her to kiss him first. Then, accusedappellant held her by the arms. Melody said she shouted for help but apparently no one heard her. When
she tried to shout again, accused-appellant tried to choke her and boxed her. The victim fell down and the
accused-appellant dragged her towards a forested area uphill, 250 meters away from the road.
She was asked by the accused-appellant to undress. As she refused to do so, the accused-appellant
threatened to kill her. He then boxed her again, causing her to fall down. Accused-appellant then kissed
her on the face and on the neck. Next, he removed her pants and panties and dragged her further uphill
about 250 meters away. Accused-appellant asked her to lie down and as she refused to do so, the
accused-appellant again hit her, causing her to lie down. Accused-appellant then removed his shorts and
brief and went on top of her. He kissed her and tried to insert his penis into her vagina.
Melody testified that only about an inch of accused-appellant's penis was able to penetrate her vagina. He
asked if she was still a virgin and upon being told that she was, accused-appellant inserted his finger into
her vagina, apparently to engage her in foreplay. Then he again tried to put his penis into her vagina but,
at that point, they heard people coming.
The accused-appellant ordered Melody to get dressed and told her to tell the people that he had saved
her from someone who had tried to molest her. When finally they were found, the accused-appellant did
all the talking. According to Leopoldo Gianan, a barangay tanod who was in the search team, accusedappellant was fixing his shorts while Melody was crying. When he asked Melody about what happened,
accused-appellant told him not to bother her. Accused-appellant was holding Melody by the arm and did
not want to leave her side. Melody did not talk because she had been threatened with harm by accusedappellant. But, once she reached their house, Melody told her father what happened. Her parents then
reported the matter to the barangay authorities. Melody (together with her father, her sister Jovita and
Beverly Beo) and the accused-appellant were taken to Camp Camacho, the Philippine Constabulary
Headquarters in Virac, Catanduanes. Melody was examined by Dr. Cecilia Tanael of the Provincial Health
Office at about 8:20 p.m. that evening, February 16, 1992. She was found to have suffered the following
injuries: 2
Laceration of hymen, fresh (new) at 9 o'clock and 3 o'clock position
(+) Whitish discharge at vaginal vault
Admits one index finger snugly
(+) Erythema at epigastric area
(+) Abrasion 1 cm. each on ant. aspect, neck (both sides)
Dr. Tanael indicated in her certificate the following: 3
Clothes (T-shirt and pants) with dirt at buttocks area
Dirt particles (R) buttocks

LABORATORY REPORT
NEGATIVE FOR SPERMATOZOA
She opined that it was possible that Melody had been raped. 4
Only accused-appellant testified for the defense. Accused-appellant claimed that on February 16, 1992,
between 12:30 to 1:30 in the afternoon, he saw Melody Quintal walking towards Ilawod. He followed her
until sitio Pagsangahan, where he embraced and kissed her on the face, neck and breasts. He claimed
that as she did not resist, he took it as a challenge to his manhood to make love to her. He put her on the
ground, put his hand inside her pants and caressed her in the sex organ. He denied that he used force, or
that he was able to put his penis into Melody's vagina. He insisted that he only inserted his fingers into
her vagina in an effort to arouse her. He also denied that he pushed Melody's companions down a ravine.
The trial court believed the prosecution's theory and found the accused-appellant guilty of rape. Hence,
the appeal.
First. The defense maintains that there is an inconsistency between the sworn statement given by Melody
to the PC on the one hand, and her testimony in court on the other. The defense cites the following
portion of the sworn statement dated February 18, 1992 which she gave at Camp Francisco Camacho,
Virac, Catanduanes: 5
15Q: Was his personal organ or his penis able to penetrate to your vagina?
A: No, sir.
16Q: Why?
A: He tried it but it could not penetrate, he even asked me if I am still a virgen
[sic].
17Q: What else happened?
A: After answering his question that I am still a virgen [sic], he told me that he will
used his finger.
18Q: Were your vagina fingered by him?
A: Yes, sir.
In the complaint she filed with the Municipal Trial Court on the same day, February 18, 1992, she stated

. . . [H]is personal organ did not penetrate instead he used his finger to guide his penis but
ultimately did not succeed for reasons of independent to his well [sic] and the timely arrival of the
people who were informed of the incident by her companions. . . 6

However, it is asserted in Melody's testimony in the trial court that about one inch of the penis of the
accused-appellant was able to penetrate into her vagina: 7
VELASCO (Private Prosecutor)
Q After removing the short pants and brief, what did Clopino do?
A When he was already mounted on me, he tried to force his penis on my vagina,
sir.
Q Did you feel the penis?
A Yes, sir.
Q Why can you say that the penis was being penetrated on your vagina?
A Because I was looking at him when he was holding his penis and trying to let it
in my organ, sir.
xxx xxx xxx
Q Was the penis able to penetrate completely inside your vagina?
A Yes, it was able to penetrate about an inch, sir.
The contention has no merit. The alleged inconsistency is more apparent than real. It must not be
forgotten that the victim was only 16 years old at the time of the rape, inexperienced in the ways of the
world. It is evident that what she meant by accused-appellant's organ not being able to penetrate her
vagina was that there was no full penetration. But it is clear that accused-appellant did all he could to
have sexual intercourse with her. If he was not able to have full penetration, it was because the victim was
still a virgin. According to Melody, accused-appellant went on top of her, removed his brief and tried to
insert his penis into her vagina. Indeed, how would accused-appellant know his penis would not go in
unless he first tried to insert it into his victim's vagina? That was all that was necessary to commit
consummated rape. It would have been a different story if there was no attempt at all to have sexual
intercourse.
Thus, in her February 18, 1992 complaint, she said: 8
. . . by means of force, intimidation and threats ordered her to undress herself and accused also
removed his short pant and brief and place himself over her body and does the sexual play to her
vagina but as a consequence in spite of his desire, his personal organ did not penetrate instead
he used his finger to guide his penis but ultimately did not succeed for reasons of independent to
his well [sic] and the timely arrival of the people who were informed of the incident by her
companions. That all his acts is against the will of the complainant who suffered injuries to her
vagina and some parts of her body as per Medico Legal Certificate hereto attached to form part of
this complaint.
In her sworn statement of February 18, 1992, she said: 9

15Q: Was his personal organ or his penis able to penetrate to your vagina?
A: No, sir.
16 Q: Why?
A: He tried it but it could not penetrate, he even asked me if I am still a virgen
[sic].
But more revealing than all these is the statement of Melody during the preliminary examination held
before MTC Judge Honesto Morales on February 18, 1992, the same day the complaint before the MTC
and the sworn statement before the PC were made. In her statement, she said: 10
COURT:
Q And when you were now lying on the ground what did he do?
A He [lay] on top of me and keep on kissing me.
Q What more?
A When his organ could not enter then he used his finger.
Q How did you know that his organ could not enter?
A He told me that because his organ could not enter so he will use his finger.
Q By the way, what was the condition of his body when he lied down on top of
you?
A He has no clothes.
Q Not even pants or brief?
A When he [lay] on top of me he was wearing brief but he removed it.
Q Did you feel his organ touching yours?
A Yes, sir.
Q And as you said you feel his organ touching your organ also, did you feel that
Ulysis tried to insert it?
A Yes, sir.
Q And that was the time you said that since it could not enter he told you that he
will use his finger?

A Yes, sir.
Q By the way, for how long was Ulysis on top of you?
A More or less two minutes.
She repeated this in her testimony in this case. She stated: 11
VELASCO:
Q After removing the short pants and brief, what did Clopino do?
A When he was already mounted on me, he tried to force his penis on my vagina,
sir.
Q Did you feel the penis?
A Yes, sir.
Q Why can you say that the penis was being penetrated on your vagina?
A Because I was looking at him when he was holding his penis and trying to let it
in my organ, sir.
Q How about your thigh then when he was forcing his penis to your vagina?
A At first he inserted his one thigh between my thigh and then he was able to
insert his other thigh between my thigh and he was forcing his penis to enter my
organ, sir.
Q About how many minutes in your estimate did he entail in causing the
penetration of his penis in your vagina?
A More than a minute, sir.
Q Was the penis able to penetrate completely inside your vagina?
A Yes, it was able to penetrate about an inch, sir.
Q Because his penis, I am referring to the accused, was not able to cause the
penetration completely, what happened?
A When his penis was not able to penetrate completely, he insert [sic] his finger
in my organ sir.
It is thus clear that accused-appellant tried to insert his penis into the victim's vagina. If it did not go the
full length and accused-appellant was not able to attain full penetration, it was not because he did not try

to have intercourse with her but because the victim, being still a virgin, required stimulation. That was the
reason accused-appellant "fingered" her private part, apparently to arouse her.
It is not necessary, in order to have rape, that accused-appellant succeed in having full penetration. The
slightest touching of the lips of the female organ or of the labia of the pudendum constitutes rape. 12
Accused-appellant is certainly wrong when he states that because his penis was not able to penetrate the
vagina despite his efforts to do so, the crime should only be either attempted rape or acts of
lasciviousness. As the Solicitor General rightly states, it can be logically concluded that when the
accused-appellant was trying to insert his penis into the victim's vagina, his penis touched the middle part
of the complainant's vagina and penetrated the labia of the pudendum. 13 It is impossible for the penis of
the accused-appellant not to touch the labia of the pudendum in trying to penetrate her. As Melody
narrated at the preliminary examination conducted on February 18, 1992: 14
COURT:
Q Did you feel his organ touching yours?
A Yes, sir.
Q And as you said you feel his organ touching your organ also, did you feel that
Ulysis tried to insert it?
A Yes, sir.
It must not have been an easy thing for Melody to tell in great detail what happened to her. The
inconsistencies in her testimonies are understandable. More importantly, during her cross-examination,
Melody was able to explain satisfactorily why she knew that the accused-appellant was able to put about
an inch of his penis into her vagina: 15
CONCEPCION: (Defense Lawyer)
Q Now, why were you able to know that, did you see the actual penetration?
A While he was doing that to me I could feel and I look what he was doing to me,
sir.
Q Is it not that the man was on top of you, why were you able to see?
A While he was doing that to me, he was not mounted on me. His both legs were
between my legs, and his legs were positioned as if just squatting, sir.
Q So, his two legs were not touching your legs at that time?
A Yes, sir, it was, because his thighs were inside my both thighs.
Moreover, under Rule 132, 13 of the Revised Rules on Evidence, in order to impeach a witness by
evidence of prior inconsistent statement, the statement must be related to him and the circumstances of
its execution stated. Then he must be asked whether he made such inconsistent statement. In this case,

no attempt was made to impeach Melody's testimony in court. She was not shown the complaint of
February 18, 1992 and the sworn statement of the same date nor was she asked to explain any
discrepancy, instead, what she was asked was the following question: 16
CONCEPCION
Q And according to you the man was not able to succeed in having his penis
penetrate your own organ?
VELASCO
Misleading.
COURT
Sustained, because the witness mentioned that it was about to penetrate one
(1) inch.
The question was misleading because she never really said that accused-appellant did not succeed in
penetrating her. The trial court properly sustained the objection of the prosecution.
We have reviewed the records, and we found no reason why Melody should concoct a story as damaging
to her reputation as this, if it were not true that she was raped. We have held that when the offended
parties are young and immature girls from the ages of twelve to sixteen, courts are inclined to lend
credence to their version of what transpired, considering not only their relative vulnerability but also the
shame and embarrassment to which they would be exposed by court trial if the matter about which they
testified is not true. 17
Second. Accused-appellant contends that Judge Nilo B. Barsaga had no basis for saying that the
testimony of Melody was given in a straightforward manner and, therefore, was credible. He points out
that because Judge Barsaga did not try the case, another one, Judge Eduardo Israel Tanguanco, having
done so, the former did not observe the witness' demeanor so as to be able to say that her testimony was
straightforward.
It may be that a judge who tried the case and had the opportunity to observe the demeanor of witnesses
has an advantage over another who did not have such an opportunity. But such lack of opportunity does
not necessarily prevent him from determining from the transcript of stenographic notes whether a witness
was forthright and frank. How often has this Court itself found the testimony of witnesses to have been
given in a straightforward manner on the basis solely of the records of the case. For example, in People v.
Compedio,
Jr., 18 we said:
In the first assigned error, the accused-appellant attacks the credibility of prosecution witness
Trinidad Sabando. On this score, the oft-repeated rule is that appellate courts will generally not
disturb the findings of the trial court, considering that the latter is in a better position to decide the
question, having heard the witnesses themselves and observed their deportment and manner of
testifying during the trial. This case, however, falls under one of the exceptions to the above rule,
namely, where one judge heard the testimony of the witnesses and another penned the decision;

hence, we are not precluded from making our assessment of the probative merit and value of the
testimony of the witnesses on the basis of the transcripts of the stenographic notes thereof. 19
After poring over Sabando's testimony, we find her to be a trustworthy witness. Her narration of
the events and observations of what transpired before her were delivered in a direct, unaffected,
and convincing manner. She stuck to her story and was uncompromising in regard thereto on
cross-examination and on questions from the court. We detect no indication of prevarication.
Indeed, there is no claim in this case that at any time in her testimony Melody Quintal hedged or even
hesitated or otherwise indicated that she was withholding anything from the court. As held in People v.
Tuvilla, 20
While the trial judge who presided over the trial of the case would be in a better position to
ascertain the truth or falsity of the testimonies of the witnesses, it does not follow that a judge who
was not present during the trial cannot render a valid and just decision. The full record was
available to him. It is evident from the knowledgeable and analytical decision he has written that
he thoroughly examined the testimonial and documentary evidence before him and carefully
assessed the credibility of the witnesses with the seasoned perceptiveness he has developed as
a trial judge. 21
Third. Accused-appellant's conviction is not based solely on the victim's testimony, but on other evidence
in the record as well. Dr. Cecilia Tanael, who examined the victim on the day of the incident, testified that
the victim was probably raped, based, among other things, on the lacerations which she found in the
victim's hymen. Dr. Tanael testified: 22
VELASCO
Q Now, in your considered opinion doctora, could this fresh laceration be caused
by a half penetration of penis to the vagina?
A Anything which can enter the vagina can cause laceration, sir.
Q How about the penis?
A It could be, sir.
Q How about the finger?
A It could be sir, anything that could pass thru to the vagina can cause laceration.
In addition, Dr. Tanael found whitish discharge in the vaginal vault of the victim. Dr. Tanael said she could
not rule out the possibility that the discharge was seminal fluid coming from a male person. 23 Although the
discharge was found negative for spermatozoa, she explained that this could only be because the amount
of discharge was not enough for spermatozoa to be present. Besides, the absence of spermatozoa in the
complainant's vagina does not negate the commission of rape. 24
Dr. Tanael's testimony also confirmed the victim's claim that she was hit several times in the stomach
because she refused to do accused-appellant's bidding. As she testified: 25

VELASCO
Q And this findings of your, erithma at epigastric area, what is erithma [sic]?
A Erithma [sic] is redness, sir.
Q This epigastric area, what is this?
A The area below the externum, sir.
Q In your examination, you found reddish portion, could it be possible that the
reddish portion was caused by used of fist blow?
A I [sic] can be caused bay [sic] any blunt force, sir.
Q Like fist?
A Yes, sir.
Earlier, Melody told the court how she had been boxed several times by the accused-appellant to make
her lie down: 26
ATTY. VELASCO
Q Thereafter, what happened?
A After he boxed me I fell down because of the pain and then he dragged me
uphill, sir.
xxx xxx xxx
Q After you were dragged to a distance of 250 meters from the road into the
interior of the forest, what happened?
A When we reached there, he told me to remove my pants. When I did not heed
what he told me, he threatened me that he would kill me and he kept on boxing
me, sir.
Q What happened next?
A His boxing me caused me to fall, sir.
xxx xxx xxx
Q While you were brought there, I am referring to the place wherein the second
time you were dragged, what happened?
A He again told me to lie down, sir.

Q Did you lie down?


A No, sir.
Q Because you did not lie down, what happened?
A Because I did not lie down, he again boxed me on my stomach, sir.
Q Because he boxed you in your stomach, what did you do?
A His boxing me caused me again to lie down, sir.
Dr. Tanael also found abrasions in the neck and stomach, indicating that Melody had a struggle with
accused-appellant: 27
VELASCO
Q This abrasion 1 cm. inch on anterior aspect, neck (both sides), would you mind
explaining it to the Court in a layman's language?
A Abrasion is caused by friction by another surface in the anterior aspect of the
neck, below the buttocks. (Witness pointing to her neck).
Q Is it possible doctora, that abrasion like this is caused because of the struggle
of the victim from assailant?
A Basing from my physical examination, it is possible, because there is erithma
at the epigastric area, and there is an abrasion, sir.
Q Can this be caused by grip of hands?
A It is possible, sir.
There were other tell-tale marks of the use of violence against the victim. Dr. Tanael noted that the clothes
of Melody were dirty, particularly at the buttocks. This evidence of the use of force and violence belie the
fantastic claim of accused-appellant that Melody agreed to have a tryst with him.
Indeed, how could accused-appellant claim that Melody voluntarily went with him when the two of them
were not even lovers? Accused-appellant was 32, married. Melody was only 16, a high school student. It
was unlikely they were lovers. On the contrary, the fact that her personal effects, consisting of her bag,
her umbrella and her wrist watch were strewn on the ground and that according to Beverly Beo the
victim's lips and neck were bruised and her clothes soiled attests to the resistance she offered to
accused-appellant's assault. As the trial court said, considering all these facts, accused-appellant's claim
that Melody voluntarily went with him and agreed to have sexual intercourse with him was simply
incredible.
The trial court awarded P50,000.00 to the offended party as moral damages. However, moral damages
can be awarded only upon sufficient proof that the complainant is entitled thereto in accordance with Art.

2217 of the Civil Code. Accordingly, the amount of P50,000.00 should be considered as civil indemnity in
accordance with our decision in People v. Gementiza. 28
WHEREFORE, the decision of the trial court is AFFIRMED with the MODIFICATION that the award of
P50,000.00 should be considered indemnity to the offended party Melody Quintal.
SO ORDERED.
Regalado, Melo, Puno and Martinez, JJ., concur.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G. R. No. 160188

June 21, 2007

ARISTOTEL VALENZUELA y NATIVIDAD, petitioner,


vs.
PEOPLE OF THE PHILIPPINES and HON. COURT OF APPEALS NACHURA,
respondents.
DECISION
TINGA, J.:
This case aims for prime space in the firmament of our criminal law jurisprudence. Petitioner
effectively concedes having performed the felonious acts imputed against him, but instead insists
that as a result, he should be adjudged guilty of frustrated theft only, not the felony in its
consummated stage of which he was convicted. The proposition rests on a common theory
expounded in two well-known decisions1 rendered decades ago by the Court of Appeals,
upholding the existence of frustrated theft of which the accused in both cases were found guilty.
However, the rationale behind the rulings has never been affirmed by this Court.
As far as can be told,2 the last time this Court extensively considered whether an accused was
guilty of frustrated or consummated theft was in 1918, in People v. Adiao.3 A more cursory
treatment of the question was followed in 1929, in People v. Sobrevilla,4 and in 1984, in Empelis
v. IAC.5 This petition now gives occasion for us to finally and fully measure if or how frustrated
theft is susceptible to commission under the Revised Penal Code.
I.
The basic facts are no longer disputed before us. The case stems from an Information6 charging
petitioner Aristotel Valenzuela (petitioner) and Jovy Calderon (Calderon) with the crime of theft.
On 19 May 1994, at around 4:30 p.m., petitioner and Calderon were sighted outside the Super
Sale Club, a supermarket within the ShoeMart (SM) complex along North EDSA, by Lorenzo
Lago (Lago), a security guard who was then manning his post at the open parking area of the
supermarket. Lago saw petitioner, who was wearing an identification card with the mark
"Receiving Dispatching Unit (RDU)," hauling a push cart with cases of detergent of the wellknown "Tide" brand. Petitioner unloaded these cases in an open parking space, where Calderon
was waiting. Petitioner then returned inside the supermarket, and after five (5) minutes, emerged
with more cartons of Tide Ultramatic and again unloaded these boxes to the same area in the
open parking space.7

Thereafter, petitioner left the parking area and haled a taxi. He boarded the cab and directed it
towards the parking space where Calderon was waiting. Calderon loaded the cartons of Tide
Ultramatic inside the taxi, then boarded the vehicle. All these acts were eyed by Lago, who
proceeded to stop the taxi as it was leaving the open parking area. When Lago asked petitioner
for a receipt of the merchandise, petitioner and Calderon reacted by fleeing on foot, but Lago
fired a warning shot to alert his fellow security guards of the incident. Petitioner and Calderon
were apprehended at the scene, and the stolen merchandise recovered.8 The filched items seized
from the duo were four (4) cases of Tide Ultramatic, one (1) case of Ultra 25 grams, and three (3)
additional cases of detergent, the goods with an aggregate value of P12,090.00.9
Petitioner and Calderon were first brought to the SM security office before they were transferred
on the same day to the Baler Station II of the Philippine National Police, Quezon City, for
investigation. It appears from the police investigation records that apart from petitioner and
Calderon, four (4) other persons were apprehended by the security guards at the scene and
delivered to police custody at the Baler PNP Station in connection with the incident. However,
after the matter was referred to the Office of the Quezon City Prosecutor, only petitioner and
Calderon were charged with theft by the Assistant City Prosecutor, in Informations prepared on
20 May 1994, the day after the incident.10
After pleading not guilty on arraignment, at the trial, petitioner and Calderon both claimed
having been innocent bystanders within the vicinity of the Super Sale Club on the afternoon of
19 May 1994 when they were haled by Lago and his fellow security guards after a commotion
and brought to the Baler PNP Station. Calderon alleged that on the afternoon of the incident, he
was at the Super Sale Club to withdraw from his ATM account, accompanied by his neighbor,
Leoncio Rosulada.11 As the queue for the ATM was long, Calderon and Rosulada decided to buy
snacks inside the supermarket. It was while they were eating that they heard the gunshot fired by
Lago, leading them to head out of the building to check what was
transpiring. As they were outside, they were suddenly "grabbed" by a security guard, thus
commencing their detention.12 Meanwhile, petitioner testified during trial that he and his cousin,
a Gregorio Valenzuela,13 had been at the parking lot, walking beside the nearby BLISS complex
and headed to ride a tricycle going to Pag-asa, when they saw the security guard Lago fire a shot.
The gunshot caused him and the other people at the scene to start running, at which point he was
apprehended by Lago and brought to the security office. Petitioner claimed he was detained at
the security office until around 9:00 p.m., at which time he and the others were brought to the
Baler Police Station. At the station, petitioner denied having stolen the cartons of detergent, but
he was detained overnight, and eventually brought to the prosecutors office where he was
charged with theft.14 During petitioners cross-examination, he admitted that he had been
employed as a "bundler" of GMS Marketing, "assigned at the supermarket" though not at SM.15
In a Decision16 promulgated on 1 February 2000, the Regional Trial Court (RTC) of Quezon City,
Branch 90, convicted both petitioner and Calderon of the crime of consummated theft. They
were sentenced to an indeterminate prison term of two (2) years of prision correccional as
minimum to seven (7) years of prision mayor as maximum.17 The RTC found credible the
testimonies of the prosecution witnesses and established the convictions on the positive
identification of the accused as perpetrators of the crime.

Both accused filed their respective Notices of Appeal,18 but only petitioner filed a brief19 with the
Court of Appeals, causing the appellate court to deem Calderons appeal as abandoned and
consequently dismissed. Before the Court of Appeals, petitioner argued that he should only be
convicted of frustrated theft since at the time he was apprehended, he was never placed in a
position to freely dispose of the articles stolen.20 However, in its Decision dated 19 June 2003,21
the Court of Appeals rejected this contention and affirmed petitioners conviction.22 Hence the
present Petition for Review,23 which expressly seeks that petitioners conviction "be modified to
only of Frustrated Theft."24
Even in his appeal before the Court of Appeals, petitioner effectively conceded both his felonious
intent and his actual participation in the theft of several cases of detergent with a total value of
P12,090.00 of which he was charged.25 As such, there is no cause for the Court to consider a
factual scenario other than that presented by the prosecution, as affirmed by the RTC and the
Court of Appeals. The only question to consider is whether under the given facts, the theft should
be deemed as consummated or merely frustrated.
II.
In arguing that he should only be convicted of frustrated theft, petitioner cites26 two decisions
rendered many years ago by the Court of Appeals: People v. Dio27 and People v. Flores.28 Both
decisions elicit the interest of this Court, as they modified trial court convictions from
consummated to frustrated theft and involve a factual milieu that bears similarity to the present
case. Petitioner invoked the same rulings in his appeal to the Court of Appeals, yet the appellate
court did not expressly consider the import of the rulings when it affirmed the conviction.
It is not necessary to fault the Court of Appeals for giving short shrift to the Dio and Flores
rulings since they have not yet been expressly adopted as precedents by this Court. For whatever
reasons,
the occasion to define or debunk the crime of frustrated theft has not come to pass before us. Yet
despite the silence on our part, Dio and Flores have attained a level of renown reached by very
few other appellate court rulings. They are comprehensively discussed in the most popular of our
criminal law annotations,29 and studied in criminal law classes as textbook examples of frustrated
crimes or even as definitive of frustrated theft.
More critically, the factual milieu in those cases is hardly akin to the fanciful scenarios that
populate criminal law exams more than they actually occur in real life. Indeed, if we finally say
that Dio and Flores are doctrinal, such conclusion could profoundly influence a multitude of
routine theft prosecutions, including commonplace shoplifting. Any scenario that involves the
thief having to exit with the stolen property through a supervised egress, such as a supermarket
checkout counter or a parking area pay booth, may easily call for the application of Dio and
Flores. The fact that lower courts have not hesitated to lay down convictions for frustrated theft
further validates that Dio and Flores and the theories offered therein on frustrated theft have
borne some weight in our jurisprudential system. The time is thus ripe for us to examine whether
those theories are correct and should continue to influence prosecutors and judges in the future.

III.
To delve into any extended analysis of Dio and Flores, as well as the specific issues relative to
"frustrated theft," it is necessary to first refer to the basic rules on the three stages of crimes
under our Revised Penal Code.30
Article 6 defines those three stages, namely the consummated, frustrated and attempted felonies.
A felony is consummated "when all the elements necessary for its execution and accomplishment
are present." It is frustrated "when the offender performs all the acts of execution which would
produce the felony as a consequence but which, nevertheless, do not produce it by reason of
causes independent of the will of the perpetrator." Finally, it is attempted "when the offender
commences the commission of a felony directly by overt acts, and does not perform all the acts
of execution which should produce the felony by reason of some cause or accident other than his
own spontaneous desistance."
Each felony under the Revised Penal Code has a "subjective phase," or that portion of the acts
constituting the crime included between the act which begins the commission of the crime and
the last act performed by the offender which, with prior acts, should result in the consummated
crime.31 After that point has been breached, the subjective phase ends and the objective phase
begins.32 It has been held that if the offender never passes the subjective phase of the offense, the
crime is merely attempted.33 On the other hand, the subjective phase is completely passed in case
of frustrated crimes, for in such instances, "[s]ubjectively the crime is complete."34
Truly, an easy distinction lies between consummated and frustrated felonies on one hand, and
attempted felonies on the other. So long as the offender fails to complete all the acts of execution
despite commencing the commission of a felony, the crime is undoubtedly in the attempted stage.
Since the specific acts of execution that define each crime under the Revised Penal Code are
generally enumerated in the code itself, the task of ascertaining whether a crime is attempted
only would need to compare the acts actually performed by the accused as against the acts that
constitute the felony under the Revised Penal Code.
In contrast, the determination of whether a crime is frustrated or consummated necessitates an
initial concession that all of the acts of execution have been performed by the offender. The
critical distinction instead is whether the felony itself was actually produced by the acts of
execution. The determination of whether the felony was "produced" after all the acts of execution
had been performed hinges on the particular statutory definition of the felony. It is the statutory
definition that generally furnishes the elements of each crime under the Revised Penal Code,
while the elements in turn unravel the particular requisite acts of execution and accompanying
criminal intent.
The long-standing Latin maxim "actus non facit reum, nisi mens sit rea" supplies an important
characteristic of a crime, that "ordinarily, evil intent must unite with an unlawful act for there to
be a crime," and accordingly, there can be no crime when the criminal mind is wanting.35
Accepted in this jurisdiction as material in crimes mala in se,36 mens rea has been defined before
as "a guilty mind, a guilty or wrongful purpose or criminal intent,"37 and "essential for criminal
liability."38 It follows that the statutory definition of our mala in se crimes must be able to supply

what the mens rea of the crime is, and indeed the U.S. Supreme Court has comfortably held that
"a criminal law that contains no mens rea requirement infringes on constitutionally protected
rights."39 The criminal statute must also provide for the overt acts that constitute the crime. For a
crime to exist in our legal law, it is not enough that mens rea be shown; there must also be an
actus reus.40
It is from the actus reus and the mens rea, as they find expression in the criminal statute, that the
felony is produced. As a postulate in the craftsmanship of constitutionally sound laws, it is
extremely preferable that the language of the law expressly provide when the felony is produced.
Without such provision, disputes would inevitably ensue on the elemental question whether or
not a crime was committed, thereby presaging the undesirable and legally dubious set-up under
which the judiciary is assigned the legislative role of defining crimes. Fortunately, our Revised
Penal Code does not suffer from such infirmity. From the statutory definition of any felony, a
decisive passage or term is embedded which attests when the felony is produced by the acts of
execution. For example, the statutory definition of murder or homicide expressly uses the phrase
"shall kill another," thus making it clear that the felony is produced by the death of the victim,
and conversely, it is not produced if the victim survives.
We next turn to the statutory definition of theft. Under Article 308 of the Revised Penal Code, its
elements are spelled out as follows:
Art. 308. Who are liable for theft. Theft is committed by any person who, with intent to gain
but without violence against or intimidation of persons nor force upon things, shall take personal
property of another without the latters consent.
Theft is likewise committed by:
1. Any person who, having found lost property, shall fail to deliver the same to the local
authorities or to its owner;
2. Any person who, after having maliciously damaged the property of another, shall remove or
make use of the fruits or object of the damage caused by him; and
3. Any person who shall enter an inclosed estate or a field where trespass is forbidden or which
belongs to another and without the consent of its owner, shall hunt or fish upon the same or shall
gather cereals, or other forest or farm products.
Article 308 provides for a general definition of theft, and three alternative and highly
idiosyncratic means by which theft may be committed.41 In the present discussion, we need to
concern ourselves only with the general definition since it was under it that the prosecution of the
accused was undertaken and sustained. On the face of the definition, there is only one operative
act of execution by the actor involved in theft the taking of personal property of another. It is
also clear from the provision that in order that such taking may be qualified as theft, there must
further be present the descriptive circumstances that the taking was with intent to gain; without
force upon things or violence against or intimidation of persons; and it was without the consent
of the owner of the property.

Indeed, we have long recognized the following elements of theft as provided for in Article 308 of
the Revised Penal Code, namely: (1) that there be taking of personal property; (2) that said
property belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be
done without the consent of the owner; and (5) that the taking be accomplished without the use
of violence against or intimidation of persons or force upon things.42
In his commentaries, Judge Guevarra traces the history of the definition of theft, which under
early Roman law as defined by Gaius, was so broad enough as to encompass "any kind of
physical handling of property belonging to another against the will of the owner,"43 a definition
similar to that by Paulus that a thief "handles (touches, moves) the property of another."44
However, with the Institutes of Justinian, the idea had taken hold that more than mere physical
handling, there must further be an intent of acquiring gain from the object, thus: "[f]urtum est
contrectatio rei fraudulosa, lucri faciendi causa vel ipsius rei, vel etiam usus ejus
possessinisve."45 This requirement of animo lucrandi, or intent to gain, was maintained in both
the Spanish and Filipino penal laws, even as it has since been abandoned in Great Britain.46
In Spanish law, animo lucrandi was compounded with apoderamiento, or "unlawful taking," to
characterize theft. Justice Regalado notes that the concept of apoderamiento once had a
controversial interpretation and application. Spanish law had already discounted the belief that
mere physical taking was constitutive of apoderamiento, finding that it had to be coupled with
"the intent to appropriate the object in order to constitute apoderamiento; and to appropriate
means to deprive the lawful owner of the thing."47 However, a conflicting line of cases decided
by the Court of Appeals ruled, alternatively, that there must be permanency in the taking48 or an
intent to permanently deprive the owner of the stolen property;49 or that there was no need for
permanency in the taking or in its intent, as the mere temporary possession by the offender or
disturbance of the proprietary rights of the owner already constituted apoderamiento.50
Ultimately, as Justice Regalado notes, the Court adopted the latter thought that there was no need
of an intent to permanently deprive the owner of his property to constitute an unlawful taking.51
So long as the "descriptive" circumstances that qualify the taking are present, including animo
lucrandi and apoderamiento, the completion of the operative act that is the taking of personal
property of another establishes, at least, that the transgression went beyond the attempted stage.
As applied to the present case, the moment petitioner obtained physical possession of the cases
of detergent and loaded them in the pushcart, such seizure motivated by intent to gain, completed
without need to inflict violence or intimidation against persons nor force upon things, and
accomplished without the consent of the SM Super Sales Club, petitioner forfeited the
extenuating benefit a conviction for only attempted theft would have afforded him.
On the critical question of whether it was consummated or frustrated theft, we are obliged to
apply Article 6 of the Revised Penal Code to ascertain the answer. Following that provision, the
theft would have been frustrated only, once the acts committed by petitioner, if ordinarily
sufficient to produce theft as a consequence, "do not produce [such theft] by reason of causes
independent of the will of the perpetrator." There are clearly two determinative factors to
consider: that the felony is not "produced," and that such failure is due to causes independent of
the will of the perpetrator. The second factor ultimately depends on the evidence at hand in each
particular case. The first, however, relies primarily on a doctrinal definition attaching to the

individual felonies in the Revised Penal Code52 as to when a particular felony is "not produced,"
despite the commission of all the acts of execution.
So, in order to ascertain whether the theft is consummated or frustrated, it is necessary to inquire
as to how exactly is the felony of theft "produced." Parsing through the statutory definition of
theft under Article 308, there is one apparent answer provided in the language of the law that
theft is already "produced" upon the "tak[ing of] personal property of another without the latters
consent."
U.S. v. Adiao53 apparently supports that notion. Therein, a customs inspector was charged with
theft after he abstracted a leather belt from the baggage of a foreign national and secreted the
item in his desk at the Custom House. At no time was the accused able to "get the merchandise
out of the Custom House," and it appears that he "was under observation during the entire
transaction."54 Based apparently on those two circumstances, the trial court had found him guilty,
instead, of frustrated theft. The Court reversed, saying that neither circumstance was decisive,
and holding instead that the accused was guilty of consummated theft, finding that "all the
elements of the completed crime of theft are present."55 In support of its conclusion that the theft
was consummated, the Court cited three (3) decisions of the Supreme Court of Spain, the
discussion of which we replicate below:
The defendant was charged with the theft of some fruit from the land of another. As he was in the
act of taking the fruit[,] he was seen by a policeman, yet it did not appear that he was at that
moment caught by the policeman but sometime later. The court said: "[x x x] The trial court did
not err [x x x ] in considering the crime as that of consummated theft instead of frustrated theft
inasmuch as nothing appears in the record showing that the policemen who saw the accused take
the fruit from the adjoining land arrested him in the act and thus prevented him from taking full
possession of the thing stolen and even its utilization by him for an interval of time." (Decision
of the Supreme Court of Spain, October 14, 1898.)
Defendant picked the pocket of the offended party while the latter was hearing mass in a church.
The latter on account of the solemnity of the act, although noticing the theft, did not do anything
to prevent it. Subsequently, however, while the defendant was still inside the church, the
offended party got back the money from the defendant. The court said that the defendant had
performed all the acts of execution and considered the theft as consummated. (Decision of the
Supreme Court of Spain, December 1, 1897.)
The defendant penetrated into a room of a certain house and by means of a key opened up a case,
and from the case took a small box, which was also opened with a key, from which in turn he
took a purse containing 461 reales and 20 centimos, and then he placed the money over the cover
of the case; just at this moment he was caught by two guards who were stationed in another room
near-by. The court considered this as consummated robbery, and said: "[x x x] The accused [x x
x] having materially taken possession of the money from the moment he took it from the place
where it had been, and having taken it with his hands with intent to appropriate the same, he
executed all the acts necessary to constitute the crime which was thereby produced; only the act
of making use of the thing having been frustrated, which, however, does not go to make the
elements of the consummated crime." (Decision of the Supreme Court of Spain, June 13, 1882.)56

It is clear from the facts of Adiao itself, and the three (3) Spanish decisions cited therein, that the
criminal actors in all these cases had been able to obtain full possession of the personal property
prior to their apprehension. The interval between the commission of the acts of theft and the
apprehension of the thieves did vary, from "sometime later" in the 1898 decision; to the very
moment the thief had just extracted the money in a purse which had been stored as it was in the
1882 decision; and before the thief had been able to spirit the item stolen from the building
where the theft took place, as had happened in Adiao and the 1897 decision. Still, such intervals
proved of no consequence in those cases, as it was ruled that the thefts in each of those cases was
consummated by the actual possession of the property belonging to another.
In 1929, the Court was again confronted by a claim that an accused was guilty only of frustrated
rather than consummated theft. The case is People v. Sobrevilla,57 where the accused, while in
the midst of a crowd in a public market, was already able to abstract a pocketbook from the
trousers of the victim when the latter, perceiving the theft, "caught hold of the [accused]s shirtfront, at the same time shouting for a policeman; after a struggle, he recovered his pocket-book
and let go of the defendant, who was afterwards caught by a policeman."58 In rejecting the
contention that only frustrated theft was established, the Court simply said, without further
comment or elaboration:
We believe that such a contention is groundless. The [accused] succeeded in taking the pocketbook, and that determines the crime of theft. If the pocket-book was afterwards recovered, such
recovery does not affect the [accuseds] criminal liability, which arose from the [accused] having
succeeded in taking the pocket-book.59
If anything, Sobrevilla is consistent with Adiao and the Spanish Supreme Court cases cited in the
latter, in that the fact that the offender was able to succeed in obtaining physical possession of the
stolen item, no matter how momentary, was able to consummate the theft.
Adiao, Sobrevilla and the Spanish Supreme Court decisions cited therein contradict the position
of petitioner in this case. Yet to simply affirm without further comment would be disingenuous,
as there is another school of thought on when theft is consummated, as reflected in the Dio and
Flores decisions.
Dio was decided by the Court of Appeals in 1949, some 31 years after Adiao and 15 years
before Flores. The accused therein, a driver employed by the United States Army, had driven his
truck into the port area of the South Harbor, to unload a truckload of materials to waiting U.S.
Army personnel. After he had finished unloading, accused drove away his truck from the Port,
but as he was approaching a checkpoint of the Military Police, he was stopped by an M.P. who
inspected the truck and found therein three boxes of army rifles. The accused later contended that
he had been stopped by four men who had loaded the boxes with the agreement that they were to
meet him and retrieve the rifles after he had passed the checkpoint. The trial court convicted
accused of consummated theft, but the Court of Appeals modified the conviction, holding instead
that only frustrated theft had been committed.
In doing so, the appellate court pointed out that the evident intent of the accused was to let the
boxes of rifles "pass through the checkpoint, perhaps in the belief that as the truck had already

unloaded its cargo inside the depot, it would be allowed to pass through the check point without
further investigation or checking."60 This point was deemed material and indicative that the theft
had not been fully produced, for the Court of Appeals pronounced that "the fact determinative of
consummation is the ability of the thief to dispose freely of the articles stolen, even if it were
more or less momentary."61 Support for this proposition was drawn from a decision of the
Supreme Court of Spain dated 24 January 1888 (1888 decision), which was quoted as follows:
Considerando que para que el apoderamiento de la cosa sustraida sea determinate de la
consumacion del delito de hurto es preciso que so haga en circunstancias tales que permitan al
sustractor la libre disposicion de aquella, siquiera sea mas o menos momentaneamente, pues de
otra suerte, dado el concepto del delito de hurto, no puede decirse en realidad que se haya
producido en toda su extension, sin materializar demasiado el acto de tomar la cosa ajena.62
Integrating these considerations, the Court of Appeals then concluded:
This court is of the opinion that in the case at bar, in order to make the booty subject to the
control and disposal of the culprits, the articles stolen must first be passed through the M.P.
check point, but since the offense was opportunely discovered and the articles seized after all the
acts of execution had been performed, but before the loot came under the final control and
disposal of the looters, the offense can not be said to have been fully consummated, as it was
frustrated by the timely intervention of the guard. The offense committed, therefore, is that of
frustrated theft.63
Dio thus laid down the theory that the ability of the actor to freely dispose of the items stolen at
the time of apprehension is determinative as to whether the theft is consummated or frustrated.
This theory was applied again by the Court of Appeals some 15 years later, in Flores, a case
which according to the division of the court that decided it, bore "no substantial variance
between the circumstances [herein] and in [Dio]."64 Such conclusion is borne out by the facts in
Flores. The accused therein, a checker employed by the Luzon Stevedoring Company, issued a
delivery receipt for one empty sea van to the truck driver who had loaded the purportedly empty
sea van onto his truck at the terminal of the stevedoring company. The truck driver proceeded to
show the delivery receipt to the guard on duty at the gate of the terminal. However, the guards
insisted on inspecting the van, and discovered that the "empty" sea van had actually contained
other merchandise as well.65 The accused was prosecuted for theft qualified by abuse of
confidence, and found himself convicted of the consummated crime. Before the Court of
Appeals, accused argued in the alternative that he was guilty only of attempted theft, but the
appellate court pointed out that there was no intervening act of spontaneous desistance on the
part of the accused that "literally frustrated the theft." However, the Court of Appeals, explicitly
relying on Dio, did find that the accused was guilty only of frustrated, and not consummated,
theft.
As noted earlier, the appellate court admitted it found "no substantial variance" between Dio
and Flores then before it. The prosecution in Flores had sought to distinguish that case from
Dio, citing a "traditional ruling" which unfortunately was not identified in the decision itself.
However, the Court of Appeals pointed out that the said "traditional ruling" was qualified by the
words "is placed in a situation where [the actor] could dispose of its contents at once."66

Pouncing on this qualification, the appellate court noted that "[o]bviously, while the truck and the
van were still within the compound, the petitioner could not have disposed of the goods at
once." At the same time, the Court of Appeals conceded that "[t]his is entirely different from the
case where a much less bulk and more common thing as money was the object of the crime,
where freedom to dispose of or make use of it is palpably less restricted,"67 though no further
qualification was offered what the effect would have been had that alternative circumstance been
present instead.
Synthesis of the Dio and Flores rulings is in order. The determinative characteristic as to
whether the crime of theft was produced is the ability of the actor "to freely dispose of the
articles stolen, even if it were only momentary." Such conclusion was drawn from an 1888
decision of the Supreme Court of Spain which had pronounced that in determining whether theft
had been consummated, "es preciso que so haga en circunstancias tales que permitan al
sustractor de aquella, siquiera sea mas o menos momentaneamente." The qualifier "siquiera sea
mas o menos momentaneamente" proves another important consideration, as it implies that if the
actor was in a capacity to freely dispose of the stolen items before apprehension, then the theft
could be deemed consummated. Such circumstance was not present in either Dio or Flores, as
the stolen items in both cases were retrieved from the actor before they could be physically
extracted from the guarded compounds from which the items were filched. However, as implied
in Flores, the character of the item stolen could lead to a different conclusion as to whether there
could have been "free disposition," as in the case where the chattel involved was of "much less
bulk and more common x x x, [such] as money x x x."68
In his commentaries, Chief Justice Aquino makes the following pointed observation on the
import of the Dio ruling:
There is a ruling of the Court of Appeals that theft is consummated when the thief is able to
freely dispose of the stolen articles even if it were more or less momentary. Or as stated in
another case[69 ], theft is consummated upon the voluntary and malicious taking of property
belonging to another which is realized by the material occupation of the thing whereby the thief
places it under his control and in such a situation that he could dispose of it at once. This ruling
seems to have been based on Viadas opinion that in order the theft may be consummated, "es
preciso que se haga en circumstancias x x x [70 ]"71
In the same commentaries, Chief Justice Aquino, concluding from Adiao and other cases, also
states that "[i]n theft or robbery the crime is consummated after the accused had material
possession of the thing with intent to appropriate the same, although his act of making use of the
thing was frustrated."72
There are at least two other Court of Appeals rulings that are at seeming variance with the Dio
and Flores rulings. People v. Batoon73 involved an accused who filled a container with gasoline
from a petrol pump within view of a police detective, who followed the accused onto a passenger
truck where the arrest was made. While the trial court found the accused guilty of frustrated
qualified theft, the Court of Appeals held that the accused was guilty of consummated qualified
theft, finding that "[t]he facts of the cases of U.S. [v.] Adiao x x x and U.S. v. Sobrevilla x x x
indicate that actual taking with intent to gain is enough to consummate the crime of theft."74

In People v. Espiritu,75 the accused had removed nine pieces of hospital linen from a supply
depot and loaded them onto a truck. However, as the truck passed through the checkpoint, the
stolen items were discovered by the Military Police running the checkpoint. Even though those
facts clearly admit to similarity with those in Dio, the Court of Appeals held that the accused
were guilty of consummated theft, as the accused "were able to take or get hold of the hospital
linen and that the only thing that was frustrated, which does not constitute any element of theft,
is the use or benefit that the thieves expected from the commission of the offense."76
In pointing out the distinction between Dio and Espiritu, Reyes wryly observes that "[w]hen the
meaning of an element of a felony is controversial, there is bound to arise different rulings as to
the stage of execution of that felony."77 Indeed, we can discern from this survey of jurisprudence
that the state of the law insofar as frustrated theft is concerned is muddled. It fact, given the
disputed foundational basis of the concept of frustrated theft itself, the question can even be
asked whether there is really such a crime in the first place.
IV.
The Court in 1984 did finally rule directly that an accused was guilty of frustrated, and not
consummated, theft. As we undertake this inquiry, we have to reckon with the import of this
Courts 1984 decision in Empelis v. IAC.78
As narrated in Empelis, the owner of a coconut plantation had espied four (4) persons in the
premises of his plantation, in the act of gathering and tying some coconuts. The accused were
surprised by the owner within the plantation as they were carrying with them the coconuts they
had gathered. The accused fled the scene, dropping the coconuts they had seized, and were
subsequently arrested after the owner reported the incident to the police. After trial, the accused
were convicted of qualified theft, and the issue they raised on appeal was that they were guilty
only of simple theft. The Court affirmed that the theft was qualified, following Article 310 of the
Revised Penal Code,79 but further held that the accused were guilty only of frustrated qualified
theft.
It does not appear from the Empelis decision that the issue of whether the theft was
consummated or frustrated was raised by any of the parties. What does appear, though, is that the
disposition of that issue was contained in only two sentences, which we reproduce in full:
However, the crime committed is only frustrated qualified theft because petitioners were not able
to perform all the acts of execution which should have produced the felony as a consequence.
They were not able to carry the coconuts away from the plantation due to the timely arrival of the
owner.80
No legal reference or citation was offered for this averment, whether Dio, Flores or the Spanish
authorities who may have bolstered the conclusion. There are indeed evident problems with this
formulation in Empelis.
Empelis held that the crime was only frustrated because the actors "were not able to perform all
the acts of execution which should have produced the felon as a consequence."81 However, per

Article 6 of the Revised Penal Code, the crime is frustrated "when the offender performs all the
acts of execution," though not producing the felony as a result. If the offender was not able to
perform all the acts of execution, the crime is attempted, provided that the non-performance was
by reason of some cause or accident other than spontaneous desistance. Empelis concludes that
the crime was
frustrated because not all of the acts of execution were performed due to the timely arrival of the
owner. However, following Article 6 of the Revised Penal Code, these facts should elicit the
conclusion that the crime was only attempted, especially given that the acts were not performed
because of the timely arrival of the owner, and not because of spontaneous desistance by the
offenders.
For these reasons, we cannot attribute weight to Empelis as we consider the present petition.
Even if the two sentences we had cited actually aligned with the definitions provided in Article 6
of the Revised Penal Code, such passage bears no reflection that it is the product of the
considered evaluation of the relevant legal or jurisprudential thought. Instead, the passage is
offered as if it were sourced from an indubitable legal premise so settled it required no further
explication.
Notably, Empelis has not since been reaffirmed by the Court, or even cited as authority on theft.
Indeed, we cannot see how Empelis can contribute to our present debate, except for the bare fact
that it proves that the Court had once deliberately found an accused guilty of frustrated theft.
Even if Empelis were considered as a precedent for frustrated theft, its doctrinal value is
extremely compromised by the erroneous legal premises that inform it, and also by the fact that it
has not been entrenched by subsequent reliance.
Thus, Empelis does not compel us that it is an insurmountable given that frustrated theft is viable
in this jurisdiction. Considering the flawed reasoning behind its conclusion of frustrated theft, it
cannot present any efficacious argument to persuade us in this case. Insofar as Empelis may
imply that convictions for frustrated theft are beyond cavil in this jurisdiction, that decision is
subject to reassessment.
V.
At the time our Revised Penal Code was enacted in 1930, the 1870 Codigo Penal de Espaa was
then in place. The definition of the crime of theft, as provided then, read as follows:
Son reos de hurto:
1. Los que con nimo de lucrarse, y sin volencia o intimidacin en las personas ni fuerza en las
cosas, toman las cosas muebles ajenas sin la voluntad de su dueo.
2. Los que encontrndose una cosa perdida y sabiendo quin es su dueo se la apropriaren co
intencin de lucro.

3. Los daadores que sustrajeren o utilizaren los frutos u objeto del dao causado, salvo los casos
previstos en los artculos 606, nm. 1.0; 607, nms, 1.0, 2.0 y 3.0; 608, nm. 1.0; 611; 613;
Segundo prrafo del 617 y 618.
It was under the ambit of the 1870 Codigo Penal that the aforecited Spanish Supreme Court
decisions were handed down. However, the said code would be revised again in 1932, and
several times thereafter. In fact, under the Codigo Penal Espaol de 1995, the crime of theft is
now simply defined as "[e]l que, con nimo de lucro,
tomare las cosas muebles ajenas sin la voluntad de su dueo ser castigado"82
Notice that in the 1870 and 1995 definition of theft in the penal code of Spain, "la libre
disposicion" of the property is not an element or a statutory characteristic of the crime. It does
appear that the principle originated and perhaps was fostered in the realm of Spanish
jurisprudence.
The oft-cited Salvador Viada adopted a question-answer form in his 1926 commentaries on the
1870 Codigo Penal de Espaa. Therein, he raised at least three questions for the reader whether
the crime of frustrated or consummated theft had occurred. The passage cited in Dio was
actually utilized by Viada to answer the question whether frustrated or consummated theft was
committed "[e]l que en el momento mismo de apoderarse de la cosa ajena, vindose sorprendido,
la arroja al suelo."83 Even as the answer was as stated in Dio, and was indeed derived from the
1888 decision of the Supreme Court of Spain, that decisions factual predicate occasioning the
statement was apparently very different from Dio, for it appears that the 1888 decision involved
an accused who was surprised by the employees of a haberdashery as he was abstracting a layer
of clothing off a mannequin, and who then proceeded to throw away the garment as he fled.84
Nonetheless, Viada does not contest the notion of frustrated theft, and willingly recites decisions
of the Supreme Court of Spain that have held to that effect.85 A few decades later, the esteemed
Eugenio Cuello Caln pointed out the inconsistent application by the Spanish Supreme Court
with respect to frustrated theft.
Hay frustracin cuando los reos fueron sorprendidos por las guardias cuando llevaban los sacos
de harino del carro que los conducia a otro que tenan preparado, 22 febrero 1913; cuando el
resultado no tuvo efecto por la intervencin de la policia situada en el local donde se realiz la
sustraccin que impidi pudieran los reos disponer de lo sustrado, 30 de octubre 1950. Hay "por
lo menos" frustracin, si existe apoderamiento, pero el culpale no llega a disponer de la cosa, 12
abril 1930; hay frustracin "muy prxima" cuando el culpable es detenido por el perjudicado
acto seguido de cometer la sustraccin, 28 febrero 1931. Algunos fallos han considerado la
existencia de frustracin cuando, perseguido el culpable o sorprendido en el momento de llevar
los efectos hurtados, los abandona, 29 mayo 1889, 22 febrero 1913, 11 marzo 1921; esta doctrina
no es admissible, stos, conforme a lo antes expuesto, son hurtos consumados.86
Ultimately, Cuello Caln attacked the very idea that frustrated theft is actually possible:

La doctrina hoy generalmente sustentada considera que el hurto se consuma cuando la cosa
queda de hecho a la disposicin del agente. Con este criterio coincide la doctrina sentada
ltimamente porla jurisprudencia espaola que generalmente considera consumado el hurto
cuando el culpable coge o aprehende la cosa y sta quede por tiempo ms o menos duradero bajo
su poder. El hecho de que ste pueda aprovecharse o no de lo hurtado es indiferente. El delito no
pierde su carcter de consumado aunque la cosa hurtada sea devuelta por el culpable o fuere
recuperada. No se concibe la frustracin, pues es muy dificil que el que hace cuanto es necesario
para la consumacin del hurto no lo consume efectivamente, los raros casos que nuestra
jurisprudencia, muy vacilante, declara hurtos frustrados son verdaderos delitos consumados.87
(Emphasis supplied)
Cuello Calns submissions cannot be lightly ignored. Unlike Viada, who was content with
replicating the Spanish Supreme Court decisions on the matter, Cuello Caln actually set forth
his own thought that questioned whether theft could truly be frustrated, since "pues es muy
dificil que el que hace cuanto es necesario para la consumacin del hurto no lo consume
efectivamente." Otherwise put, it would be difficult to foresee how the execution of all the acts
necessary for the completion of the crime would not produce the effect of theft.
This divergence of opinion convinces us, at least, that there is no weighted force in scholarly
thought that obliges us to accept frustrated theft, as proposed in Dio and Flores. A final ruling
by the Court that there is no crime of frustrated theft in this jurisdiction will not lead to scholastic
pariah, for such a submission is hardly heretical in light of Cuello Calns position.
Accordingly, it would not be intellectually disingenuous for the Court to look at the question
from a fresh perspective, as we are not bound by the opinions of the respected Spanish
commentators, conflicting as they are, to accept that theft is capable of commission in its
frustrated stage. Further, if we ask the question whether there is a mandate of statute or precedent
that must compel us to adopt the Dio and Flores doctrines, the answer has to be in the negative.
If we did so, it would arise not out of obeisance to an inexorably higher command, but from the
exercise of the function of statutory interpretation that comes as part and parcel of judicial
review, and a function that allows breathing room for a variety of theorems in competition until
one is ultimately adopted by this Court.
V.
The foremost predicate that guides us as we explore the matter is that it lies in the province of the
legislature, through statute, to define what constitutes a particular crime in this jurisdiction. It is
the legislature, as representatives of the sovereign people, which determines which acts or
combination of acts are criminal in nature. Judicial interpretation of penal laws should be aligned
with what was the evident legislative intent, as expressed primarily in the language of the law as
it defines the crime. It is Congress, not the courts, which is to define a crime, and ordain its
punishment.88 The courts cannot arrogate the power to introduce a new element of a crime which
was unintended by the legislature, or redefine a crime in a manner that does not hew to the
statutory language. Due respect for the prerogative of Congress in defining crimes/felonies
constrains the Court to refrain from a broad interpretation of penal laws where a "narrow

interpretation" is appropriate. "The Court must take heed of language, legislative history and
purpose, in order to strictly determine the wrath and breath of the conduct the law forbids."89
With that in mind, a problem clearly emerges with the Dio/Flores dictum. The ability of the
offender to freely dispose of the property stolen is not a constitutive element of the crime of
theft. It finds no support or extension in Article 308, whether as a descriptive or operative
element of theft or as the mens rea or actus reus of the felony. To restate what this Court has
repeatedly held: the elements of the crime of theft as provided for in Article 308 of the Revised
Penal Code are: (1) that there be taking of personal property; (2) that said property belongs to
another; (3) that the taking be done with intent to gain; (4) that the taking be done without the
consent of the owner; and (5) that the taking be accomplished without the use of violence against
or intimidation of persons or force upon things.90
Such factor runs immaterial to the statutory definition of theft, which is the taking, with intent to
gain, of personal property of another without the latters consent. While the Dio/Flores dictum
is considerate to the mindset of the offender, the statutory definition of theft considers only the
perspective of intent to gain on the part of the offender, compounded by the deprivation of
property on the part of the victim.
For the purpose of ascertaining whether theft is susceptible of commission in the frustrated stage,
the question is again, when is the crime of theft produced? There would be all but certain
unanimity in the position that theft is produced when there is deprivation of personal property
due to its taking by one with intent to gain. Viewed from that perspective, it is immaterial to the
product of the felony that the offender, once having committed all the acts of execution for theft,
is able or unable to freely dispose of the property stolen since the deprivation from the owner
alone has already ensued from such acts of execution. This conclusion is reflected in Chief
Justice Aquinos commentaries, as earlier cited, that "[i]n theft or robbery the crime is
consummated after the accused had material possession of the thing with intent to appropriate the
same, although his act of making use of the thing was frustrated."91
It might be argued, that the ability of the offender to freely dispose of the property stolen delves
into the concept of "taking" itself, in that there could be no true taking until the actor obtains
such degree of control over the stolen item. But even if this were correct, the effect would be to
downgrade the crime to its attempted, and not frustrated stage, for it would mean that not all the
acts of execution have not been completed, the "taking not having been accomplished." Perhaps
this point could serve as fertile ground for future discussion, but our concern now is whether
there is indeed a crime of frustrated theft, and such consideration proves ultimately immaterial to
that question. Moreover, such issue will not apply to the facts of this particular case. We are
satisfied beyond reasonable doubt that the taking by the petitioner was completed in this case.
With intent to gain, he acquired physical possession of the stolen cases of detergent for a
considerable period of time that he was able to drop these off at a spot in the parking lot, and
long enough to load these onto a taxicab.
Indeed, we have, after all, held that unlawful taking, or apoderamiento, is deemed complete from
the moment the offender gains possession of the thing, even if he has no opportunity to dispose
of the same.92 And long ago, we asserted in People v. Avila:93

x x x [T]he most fundamental notion in the crime of theft is the taking of the thing to be
appropriated into the physical power of the thief, which idea is qualified by other conditions,
such as that the taking must be effected animo lucrandi and without the consent of the owner;
and it will be here noted that the definition does not require that the taking should be effected
against the will of the owner but merely that it should be without his consent, a distinction of no
slight importance.94
Insofar as we consider the present question, "unlawful taking" is most material in this respect.
Unlawful taking, which is the deprivation of ones personal property, is the element which
produces the felony in its consummated stage. At the same time, without unlawful taking as an
act of execution, the offense could only be attempted theft, if at all.
With these considerations, we can only conclude that under Article 308 of the Revised Penal
Code, theft cannot have a frustrated stage. Theft can only be attempted or consummated.
Neither Dio nor Flores can convince us otherwise. Both fail to consider that once the offenders
therein obtained possession over the stolen items, the effect of the felony has been produced as
there has been deprivation of property. The presumed inability of the offenders to freely dispose
of the stolen property does not negate the fact that the owners have already been deprived of
their right to possession upon the completion of the taking.
Moreover, as is evident in this case, the adoption of the rule that the inability of the offender to
freely dispose of the stolen property frustrates the theft would introduce a convenient defense
for the accused which does not reflect any legislated intent,95 since the Court would have carved
a viable means for offenders to seek a mitigated penalty under applied circumstances that do not
admit of easy classification. It is difficult to formulate definite standards as to when a stolen item
is susceptible to free disposal by the thief. Would this depend on the psychological belief of the
offender at the time of the commission of the crime, as implied in Dio?
Or, more likely, the appreciation of several classes of factual circumstances such as the size and
weight of the property, the location of the property, the number and identity of people present at
the scene of the crime, the number and identity of people whom the offender is expected to
encounter upon fleeing with the stolen property, the manner in which the stolen item had been
housed or stored; and quite frankly, a whole lot more. Even the fungibility or edibility of the
stolen item would come into account, relevant as that would be on whether such property is
capable of free disposal at any stage, even after the taking has been consummated.
All these complications will make us lose sight of the fact that beneath all the colorful detail, the
owner was indeed deprived of property by one who intended to produce such deprivation for
reasons of gain. For such will remain the presumed fact if frustrated theft were recognized, for
therein, all of the acts of execution, including the taking, have been completed. If the facts
establish the non-completion of the taking due to these peculiar circumstances, the effect could
be to downgrade the crime to the attempted stage, as not all of the acts of execution have been
performed. But once all these acts have been executed, the taking has been completed, causing
the unlawful deprivation of property, and ultimately the consummation of the theft.

Maybe the Dio/Flores rulings are, in some degree, grounded in common sense. Yet they do not
align with the legislated framework of the crime of theft. The Revised Penal Code provisions on
theft have not been designed in such fashion as to accommodate said rulings. Again, there is no
language in Article 308 that expressly or impliedly allows that the "free disposition of the items
stolen" is in any way determinative of whether the crime of theft has been produced. Dio itself
did not rely on Philippine laws or jurisprudence to bolster its conclusion, and the later Flores was
ultimately content in relying on Dio alone for legal support. These cases do not enjoy the
weight of stare decisis, and even if they did, their erroneous appreciation of our law on theft
leave them susceptible to reversal. The same holds true of Empilis, a regrettably stray decision
which has not since found favor from this Court.
We thus conclude that under the Revised Penal Code, there is no crime of frustrated theft. As
petitioner has latched the success of his appeal on our acceptance of the Dio and Flores rulings,
his petition must be denied, for we decline to adopt said rulings in our jurisdiction. That it has
taken all these years for us to recognize that there can be no frustrated theft under the Revised
Penal Code does not detract from the correctness of this conclusion. It will take considerable
amendments to our Revised Penal Code in order that frustrated theft may be recognized. Our
deference to Viada yields to the higher reverence for legislative intent.
WHEREFORE, the petition is DENIED. Costs against petitioner.
SO ORDERED.
DANTE O. TINGA
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
LEONARDO A. QUISUMBING
CONSUELO YNARES-SANTIAGO
Associate Justice
Associate Justice
ANGELINA SANDOVAL-GUTIERREZ
ANTONIO T. CARPIO
Associate Justice
Associate Justice
MA. ALICIA AUSTRIA-MARTINEZ
RENATO C. CORONA
Associate Justice
Associate Justice
CONCHITA CARPIO MORALES
ADOLFO S. AZCUNA
Associate Justice
Associate Justice
MINITA V. CHICO-NAZARIO
CANCIO C. GARCIA
Associate Justice
Associate Justice
PRESBITERO J. VELASCO, JR.
ANTONIO EDUARDO B. NACHURA
Associate Justice
Associate Justice
C E R T I F I C AT I O N

Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions
in the above Decision had been reached in consultation before the case was assigned to the writer
of the opinion of the Court.
REYNATO S. PUNO
Chief Justice

Republic of the Philippines


SUPREME COURT
Manila
EN BANC

G.R. No. 121592 July 5, 1996


ROLANDO P. DELA TORRE, petitioner,
vs.
COMMISSION ON ELECTIONS and MARCIAL VILLANUEVA, respondents.
RESOLUTION

FRANCISCO, J.:p
Petitioner Rolando P. Dela Torre via the instant petition for certiorari seeks the nullification of two resolutions issued by the
Commission on Elections (COMELEC) allegedly with grave abuse of discretion amounting to lack of jurisdiction in SPA No. 95047, a case for disqualification filed against petitioner before the COMELEC.

The first assailed resolution dated May 6, 1995 declared the petitioner disqualified from running
for the position of Mayor of Cavinti, Laguna in the last May 8, 1995 elections, citing as the ground
therefor, Section 40(a) of Republic Act No. 7160 (the Local Government Code of 1991) 2 which
provides as follows:
Sec. 40. Disqualifications. The following persons are disqualified from running for any
elective local position:
(a) Those sentenced by final judgment for an offense involving moral turpitude or for an
offense punishable by one (1) year or more of imprisonment within two (2) years after
serving sentence;
(b) xxx xxx xxx.
In disqualifying the petitioner, the COMELEC held that:
Documentary evidence . . . established that herein respondent (petitioner in this case)
was found guilty by the Municipal Trial Court, . . . in Criminal Case No. 14723 for violation
of P.D. 1612, (otherwise known as the Anti-fencing Law) in a Decision dated June 1,
1990. Respondent appealed the said conviction with the Regional Trial Court . . . , which
however, affirmed respondent's conviction in a Decision dated November 14, 1990.
Respondent's conviction became final on January 18, 1991.
xxx xxx xxx

. . . , there exists legal grounds to disqualify respondent as candidate for Mayor of


Cavinti, Laguna this coming elections. Although there is "dearth of jurisprudence involving
violation of the Anti-Fencing Law of 1979 or P.D. 1612" . . . , the nature of the offense
under P.D. 1612 with which respondent was convicted certainly involves moral
turpitude . . . . 3
The second assailed resolution, dated August 28, 1995, denied petitioner's motion for reconsideration. In
said motion, petitioner claimed that Section 40 (a) of the Local Government Code does not apply to his
case inasmuch as the probation granted him by the MTC on December 21, 1994 which suspended the
execution of the judgment of conviction and all other legal consequences flowing therefrom, rendered
inapplicable Section 40 (a) as well. 4
The two (2) issues to be resolved are:
1. Whether or not the crime of fencing involves moral turpitude.
2. Whether or not a grant of probation affects Section 40 (a)'s applicability.
Particularly involved in the first issue is the first of two instances contemplated in Section 40 (a) when
prior conviction of a crime becomes a ground for disqualification i.e., "when the conviction by final
judgment is for an offense involving moral turpitude." And in this connection, the Court has consistently
adopted the definition in Black's Law Dictionary of "moral turpitude" as:
. . . an act of baseness, vileness, or depravity in the private duties which a man owes his
fellow men, or to society in general, contrary to the accepted and customary rule of right
and duty between man and woman or conduct contrary to justice, honesty, modesty, or
good morals. 5
Not every criminal act, however, involves moral turpitude. It is for this reason that "as to what crime
involves moral turpitude, is for the Supreme Court to determine". 6 In resolving the foregoing question, the
Court is guided by one of the general rules that crimes mala in se involve moral turpitude, while crimes
mala prohibita do not 7, the rationale of which was set forth in "Zari v. Flores," 8 to wit:
It (moral turpitude) implies something immoral in itself, regardless of the fact that it is
punishable by law or not. It must not be merely mala prohibita, but the act itself must be
inherently immoral. The doing of the act itself, and not its prohibition by statute fixes the
moral turpitude. Moral turpitude does not, however, include such acts as are not of
themselves immoral but whose illegality lies in their being positively prohibited. 9
This guidelines nonetheless proved short of providing a clear-cut solution, for in "International Rice
Research Institute v. NLRC, 10 the Court admitted that it cannot always be ascertained whether moral
turpitude does or does not exist by merely classifying a crime as malum in se or as malum prohibitum.
There are crimes which are mala in se and yet but rarely involve moral turpitude and there are crimes
which involve moral turpitude and are mala prohibita only. In the final analysis, whether or not a crime
involves moral turpitude is ultimately a question of fact and frequently depends on all the circumstances
surrounding the violation of the statue. 11

The Court in this case shall nonetheless dispense with a review of the facts and circumstances
surrounding the commission of the crime, inasmuch as petitioner after all does not assail his conviction.
Petitioner has in effect admitted all the elements of the crime of fencing. At any rate, the determination of
whether or not fencing involves moral turpitude can likewise be achieved by analyzing the elements
alone.
Fencing is defined in Section 2 of P.D. 1612 (Anti-Fencing Law) as:
a. . . . the act of any person who, with intent to gain for himself or for another, shall buy,
receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in
any manner deal in any article, item, object or anything of value which he knows, or
should be known to him, to have been derived from the proceeds of the crime of robbery
or theft. 12
From the foregoing definition may be gleaned the elements of the crime of fencing which are:
1. A crime of robbery or theft has been committed;
2. The accused who is not a principal or accomplice in the crime of robbery or theft, buys,
receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or in
any manner deals in any article, item, object or anything of value, which have been
derived from the proceeds of the said crime;
3. The accused knows or should have known that the said article, item, object or
anything of value has been derived from the proceeds of the crime of robbery or theft;
and [Emphasis supplied.]
4. There is, on the part of the accused, intent to gain for himself or for another. 13
Moral turpitude is deducible from the third element. Actual knowledge by the "fence" of the fact that
property received is stolen displays the same degree of malicious deprivation of one's rightful property as
that which animated the robbery or theft which, by their very nature, are crimes of moral turpitude. And
although the participation of each felon in the unlawful taking differs in point in time and in degree, both
the "fence" and the actual perpetrator/s of the robbery or theft invaded one's peaceful dominion for gain
thus deliberately reneging in the process "private duties" they owe their "fellowmen" or "society" in a
manner "contrary to . . . accepted and customary rule of right and
duty . . . , justice, honesty . . . or good morals." The duty not to appropriate, or to return, anything acquired
either by mistake or with malice is so basic it finds expression in some key provisions of the Civil Code on
"Human Relations" and "Solutio Indebiti", to wit:
Art. 19. Every person must, in the exercise of his rights and in the performance of his
duties, act with justice, give everyone his due, and observe honesty and good faith.
Art. 20. Every person who, contrary to law, wilfully or negligently causes damage to
another, shall indemnify the latter for the same.

Art. 21. Any person who wilfully causes loss or injury to another in a manner that is
contrary to morals, good customs or public policy shall compensate the latter for the
damage.
Art. 22. Everyone person who through an act of performance by another, or any other
means, acquires or comes into possession of something at the expense of the latter
without just or legal ground, shall return the same to him.
Art. 2154. If something is received when there is no right to demand it, and it was unduly
delivered through mistake, the obligation to return it arises.
The same underlying reason holds even if the "fence" did not have actual knowledge, but merely "should
have known" the origin of the property received. In this regard, the Court held:
When knowledge of the existence of a particular fact is an element of the offense, such
knowledge is established if a person is aware of the high probability of its existence
unless he actually believes that it does not exist. On the other hand, the words "should
know" denote the fact that a person of reasonable prudence and intelligence would
ascertain the fact in the performance of his duty to another or would govern his conduct
upon assumption that such fact exists. 14 [Emphasis supplied.]
Verily, circumstances normally exist to forewarn, for instance, a reasonably vigilant buyer that the
object of the sale may have been derived from the proceeds of robbery or theft. Such
circumstances include the time and place of the sale, both of which may not be in accord with the
usual practices of commerce. The nature and condition of the goods sold, and the fact that the
seller is not regularly engaged in the business of selling goods may likewise suggest the illegality
of their source, and therefor should caution the buyer. This justifies the presumption found in
Section 5 of P.D. No. 1612 that "mere possession of any goods, . . . , object or anything of value
which has been the subject of robbery or thievery shall be prima facie evidence of fencing" a
presumption that is, according to the Court, "reasonable for no other natural or logical inference
can arise from the established fact of . . . possession of the proceeds of the crime of robbery or
theft." 15 All told, the COMELEC did not err in disqualifying the petitioner on the ground that the
offense of fencing of which he had been previously convicted by final judgment was one involving
moral turpitude.
Anent the second issue where petitioner contends that his probation had the effect of suspending the
applicability of Section 40 (a) of the Local Government Code, suffice it to say that the legal effect of
probation is only to suspend the execution of the sentence. 16 Petitioner's conviction of fencing which we
have heretofore declared as a crime of moral turpitude and thus falling squarely under the disqualification
found in Section 40 (a), subsists and remains totally unaffected notwithstanding the grant of probation. In
fact, a judgment of conviction in a criminal case ipso facto attains finality when the accused applies for
probation, although it is not executory pending resolution of the application for probation. 17 Clearly then,
petitioner's theory has no merit.
ACCORDINGLY, the instant petition for certiorari is hereby DISMISSED and the assailed resolutions of
the COMELEC dated May 6, 1995 and August 28, 1995 are AFFIRMED in toto.
SO ORDERED.

Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,
Hermosisima, Jr., Panganiban and Torres, Jr., JJ., concur.

Republic of the Philippines


SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 152644

February 10, 2006

JOHN ERIC LONEY, STEVEN PAUL REID and PEDRO B. HERNANDEZ, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
CARPIO, J.:
The Case
This is a petition for review1 of the Decision2 dated 5 November 2001 and the Resolution dated
14 March 2002 of the Court of Appeals. The 5 November 2001 Decision affirmed the ruling of
the Regional Trial Court, Boac, Marinduque, Branch 94, in a suit to quash Informations filed
against petitioners John Eric Loney, Steven Paul Reid, and Pedro B. Hernandez ("petitioners").
The 14 March 2002 Resolution denied petitioners motion for reconsideration.
The Facts
Petitioners John Eric Loney, Steven Paul Reid, and Pedro B. Hernandez are the President and
Chief Executive Officer, Senior Manager, and Resident Manager for Mining Operations,
respectively, of Marcopper Mining Corporation ("Marcopper"), a corporation engaged in mining
in the province of Marinduque.
Marcopper had been storing tailings3 from its operations in a pit in Mt. Tapian, Marinduque. At
the base of the pit ran a drainage tunnel leading to the Boac and Makalupnit rivers. It appears
that Marcopper had placed a concrete plug at the tunnels end. On 24 March 1994, tailings
gushed out of or near the tunnels end. In a few days, the Mt. Tapian pit had discharged millions
of tons of tailings into the Boac and Makalupnit rivers.
In August 1996, the Department of Justice separately charged petitioners in the Municipal Trial
Court of Boac, Marinduque ("MTC") with violation of Article 91(B),4 sub-paragraphs 5 and 6 of
Presidential Decree No. 1067 or the Water Code of the Philippines ("PD 1067"),5 Section 86 of
Presidential Decree No. 984 or the National Pollution Control Decree of 1976 ("PD 984"),7
Section 1088 of Republic Act No. 7942 or the Philippine Mining Act of 1995 ("RA 7942"),9 and
Article 36510 of the Revised Penal Code ("RPC") for Reckless Imprudence Resulting in Damage
to Property.11

Petitioners moved to quash the Informations on the following grounds: (1) the Informations were
"duplicitous" as the Department of Justice charged more than one offense for a single act; (2)
petitioners John Eric Loney and Steven Paul Reid were not yet officers of Marcopper when the
incident subject of the Informations took place; and (3) the Informations contain allegations
which constitute legal excuse or justification.
The Ruling of the MTC
In its Joint Order of 16 January 1997 ("Joint Order"), the MTC12 initially deferred ruling on
petitioners motion for lack of "indubitable ground for the quashing of the [I]nformations x x x."
The MTC scheduled petitioners arraignment in February 1997. However, on petitioners motion,
the MTC issued a Consolidated Order on 28 April 1997 ("Consolidated Order"), granting partial
reconsideration to its Joint Order and quashing the Informations for violation of PD 1067 and PD
984. The MTC maintained the Informations for violation of RA 7942 and Article 365 of the
RPC. The MTC held:
[T]he 12 Informations have common allegations of pollutants pointing to "mine tailings" which
were precipitately discharged into the Makulapnit and Boac Rivers due to breach caused on the
Tapian drainage/tunnel due to negligence or failure to institute adequate measures to prevent
pollution and siltation of the Makulapnit and Boac River systems, the very term and condition
required to be undertaken under the Environmental Compliance Certificate issued on April 1,
1990.
The allegations in the informations point to same set [sic] of evidence required to prove the
single fact of pollution constituting violation of the Water Code and the Pollution Law which are
the same set of evidence necessary to prove the same single fact of pollution, in proving the
elements constituting violation of the conditions of ECC, issued pursuant to the Philippine
Mining Act. In both instances, the terms and conditions of the Environmental Compliance
Certificate were allegedly violated. In other words, the same set of evidence is required in
proving violations of the three (3) special laws.
After carefully analyzing and weighing the contending arguments of the parties and after taking
into consideration the applicable laws and jurisprudence, the Court is convinced that as far as the
three (3) aforesaid laws are concerned, only the Information for [v]iolation of Philippine Mining
Act should be maintained. In other words, the Informations for [v]iolation of Anti-Pollution Law
(PD 984) and the Water Code (PD 1067) should be dismissed/quashed because the elements
constituting the aforesaid violations are absorbed by the same elements which constitute
violation of the Philippine Mining Act (RA 7942).
Therefore, x x x Criminal Case[] Nos. 96-44, 96-45 and 96-46 for [v]iolation of the Water Code;
and Criminal Case[] Nos. 96-47, 96-48 and 96-49 for [v]iolation of the Anti-Pollution Law x x x
are hereby DISMISSED or QUASHED and Criminal Case[] Nos. 96-50, 96-51 and 96-52 for
[v]iolation of the Philippine Mining Act are hereby retained to be tried on the merits.
The Information for [v]iolation of Article 365 of the Revised Penal Code should also be
maintained and heard in a full blown trial because the common accusation therein is reckless

imprudence resulting to [sic] damage to property. It is the damage to property which the law
punishes not the negligent act of polluting the water system. The prosecution for the [v]iolation
of Philippine Mining Act is not a bar to the prosecution for reckless imprudence resulting to [sic]
damage to property.13
The MTC re-scheduled petitioners arraignment on the remaining charges on 28 and 29 May
1997. In the hearing of 28 May 1997, petitioners manifested that they were willing to be
arraigned on the charge for violation of Article 365 of the RPC but not on the charge for
violation of RA 7942 as they intended to appeal the Consolidated Order in so far as it maintained
the Informations for that offense. After making of record petitioners manifestation, the MTC
proceeded with the arraignment and ordered the entry of "not guilty" pleas on the charges for
violation of RA 7942 and Article 365 of the RPC.
Petitioners subsequently filed a petition for certiorari with the Regional Trial Court, Boac,
Marinduque, assailing that portion of the Consolidated Order maintaining the Informations for
violation of RA 7942. Petitioners petition was raffled to Branch 94. For its part, public
respondent filed an ordinary appeal with the same court assailing that portion of the Consolidated
Order quashing the Informations for violation of PD 1067 and PD 984. Public respondents
appeal was raffled to Branch 38. On public respondents motion, Branch 38 ordered public
respondents appeal consolidated with petitioners petition in Branch 94.
The Ruling of Branch 94
In its Resolution14 of 20 March 1998, Branch 94 granted public respondents appeal but denied
petitioners petition. Branch 94 set aside the Consolidated Order in so far as it quashed the
Informations for violation of PD 1067 and PD 984 and ordered those charges reinstated. Branch
94 affirmed the Consolidated Order in all other respects. Branch 94 held:
After a careful perusal of the laws concerned, this court is of the opinion that there can be no
absorption by one offense of the three other offenses, as [the] acts penalized by these laws are
separate and distinct from each other. The elements of proving each violation are not the same
with each other. Concededly, the single act of dumping mine tailings which resulted in the
pollution of the Makulapnit and Boac rivers was the basis for the information[s] filed against the
accused each charging a distinct offense. But it is also a well-established rule in this jurisdiction
that
"A single act may offend against two or more entirely distinct and unrelated provisions of law,
and if one provision requires proof of an additional fact or element which the other does not, an
acquittal or conviction or a dismissal of the information under one does not bar prosecution
under the other. x x x."
xxxx
[T]he different laws involve cannot absorb one another as the elements of each crime are
different from one another. Each of these laws require [sic] proof of an additional fact or element
which the other does not although they stemmed from a single act.15

Petitioners filed a petition for certiorari with the Court of Appeals alleging that Branch 94 acted
with grave abuse of discretion because (1) the Informations for violation of PD 1067, PD 984,
RA 7942 and the Article 365 of the RPC "proceed from and are based on a single act or incident
of polluting the Boac and Makalupnit rivers thru dumping of mine tailings" and (2) the
duplicitous nature of the Informations contravenes the ruling in People v. Relova.16 Petitioners
further contended that since the acts complained of in the charges for violation of PD 1067, PD
984, and RA 7942 are "the very same acts complained of" in the charge for violation of Article
365 of the RPC, the latter absorbs the former. Hence, petitioners should only be prosecuted for
violation of Article 365 of the RPC.17
The Ruling of the Court of Appeals
In its Decision of 5 November 2001, the Court of Appeals affirmed Branch 94s ruling. The
appellate court held:
The records of the case disclose that petitioners filed a motion to quash the aforementioned
Informations for being duplicitous in nature. Section 3 of Rule 117 of the Revised Rules of Court
specifically provides the grounds upon which an information may be quashed. x x x
xxxx
[D]uplicity of Informations is not among those included in x x x [Section 3, Rule 117].
xxxx
We now go to petitioners claim that the resolution of the public respondent contravened the
doctrine laid down in People vs. Relova for being violative of their right against multiple
prosecutions.
In the said case, the Supreme Court found the Peoples argument with respect to the variances in
the mens rea of the two offenses being charged to be correct. The Court, however, decided the
case in the context of the second sentence of Article IV (22) of the 1973 Constitution (now under
Section 21 of Article III of the 1987 Constitution), rather than the first sentence of the same
section. x x x
xxxx
[T]he doctrine laid down in the Relova case does not squarely apply to the case at Bench since
the Informations filed against the petitioners are for violation of four separate and distinct laws
which are national in character.
xxxx
This Court firmly agrees in the public respondents understanding that the laws by which the
petitioners have been [charged] could not possibly absorb one another as the elements of each

crime are different. Each of these laws require [sic] proof of an additional fact or element which
the other does not, although they stemmed from a single act. x x x
xxxx
[T]his Court finds that there is not even the slightest indicia of evidence that would give rise to
any suspicion that public respondent acted with grave abuse of discretion amounting to excess or
lack of jurisdiction in reversing the Municipal Trial Courts quashal of the Informations against
the petitioners for violation of P.D. 1067 and P.D. 984. This Court equally finds no error in the
trial courts denial of the petitioners motion to quash R.A. 7942 and Article 365 of the Revised
Penal Code.18
Petitioners sought reconsideration but the Court of Appeals denied their motion in its Resolution
of 14 March 2002.
Petitioners raise the following alleged errors of the Court of Appeals:
I. THE COURT OF APPEALS COMMITTED A R[E]VERSIBLE ERROR IN
MAINTAINING THE CHARGES FOR VIOLATION OF THE PHILIPPINE MINING
ACT (R.A. 7942) AND REINSTATING THE CHARGES FOR VIOLATION OF THE
WATER CODE (P.D. 1067) AND POLLUTION CONTROL LAW (P.D. 984),
CONSIDERING THAT:
A. THE INFORMATIONS FOR VIOLATION OF THE WATER CODE (P.D.
1067), THE POLLUTION CONTROL LAW (P.D. 984), THE PHILIPPINE
MINING ACT (R.A. 7942) AND ARTICLE 365 OF THE REVISED PENAL
CODE PROCEED FROM AND ARE BASED ON A SINGLE ACT OR
INCIDENT OF POLLUTING THE BOAC AND MAKULAPNIT RIVERS
THRU DUMPING OF MINE TAILINGS.
B. THE PROSECUTION OF PETITIONERS FOR DUPLICITOUS AND
MULTIPLE CHARGES CONTRAVENES THE DOCTRINE LAID DOWN IN
PEOPLE VS. RELOVA, 148 SCRA 292 [1986 THAT "AN ACCUSED SHOULD
NOT BE HARASSED BY MULTIPLE PROSECUTIONS FOR OFFENSES
WHICH THOUGH DIFFERENT FROM ONE ANOTHER ARE
NONETHELESS EACH CONSTITUTED BY A COMMON SET OR
OVERLAPPING SETS OF TECHNICAL ELEMENTS."
II. THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN RULING
THAT THE ELEMENT OF LACK OF NECESSARY OR ADEQUATE PRECAUTION,
NEGLIGENCE, RECKLESSNESS AND IMPRUDENCE UNDER ARTICLE 356 [sic]
OF THE REVISED PENAL CODE DOES NOT FALL WITHIN THE AMBIT OF ANY
OF THE ELEMENTS OF THE PERTINENT PROVISIONS OF THE WATER CODE,
POLLUTION CONTROL LAW AND PHILIPPINE MINING ACT CHARGED
AGAINST PETITIONERS[.]19

The Issues
The petition raises these issues:
(1) Whether all the charges filed against petitioners except one should be quashed for
duplicity of charges and only the charge for Reckless Imprudence Resulting in Damage to
Property should stand; and
(2) Whether Branch 94s ruling, as affirmed by the Court of Appeals, contravenes People
v. Relova.
The Ruling of the Court
The petition has no merit.
No Duplicity of Charges in the Present Case
Duplicity of charges simply means a single complaint or information charges more than one
offense, as Section 13 of Rule 11020 of the 1985 Rules of Criminal Procedure clearly states:
Duplicity of offense. A complaint or information must charge but one offense, except only in
those cases in which existing laws prescribe a single punishment for various offenses.
In short, there is duplicity (or multiplicity) of charges when a single Information charges more
than one offense.21
Under Section 3(e), Rule 11722 of the 1985 Rules of Criminal Procedure, duplicity of offenses in
a single information is a ground to quash the Information. The Rules prohibit the filing of such
Information to avoid confusing the accused in preparing his defense.23 Here, however, the
prosecution charged each petitioner with four offenses, with each Information charging only one
offense. Thus, petitioners erroneously invoke duplicity of charges as a ground to quash the
Informations. On this score alone, the petition deserves outright denial.
The Filing of Several Charges is Proper
Petitioners contend that they should be charged with one offense only Reckless Imprudence
Resulting in Damage to Property because (1) all the charges filed against them "proceed from
and are based on a single act or incident of polluting the Boac and Makalupnit rivers thru
dumping of mine tailings" and (2) the charge for violation of Article 365 of the RPC "absorbs"
the other charges since the element of "lack of necessary or adequate protection, negligence,
recklessness and imprudence" is common among them.
The contention has no merit.
As early as the start of the last century, this Court had ruled that a single act or incident might
offend against two or more entirely distinct and unrelated provisions of law thus justifying the

prosecution of the accused for more than one offense.24 The only limit to this rule is the
Constitutional prohibition that no person shall be twice put in jeopardy of punishment for "the
same offense."25 In People v. Doriquez,26 we held that two (or more) offenses arising from the
same act are not "the same"
x x x if one provision [of law] requires proof of an additional fact or element which the other
does not, x x x. Phrased elsewise, where two different laws (or articles of the same code) define
two crimes, prior jeopardy as to one of them is no obstacle to a prosecution of the other, although
both offenses arise from the same facts, if each crime involves some important act which is not
an essential element of the other.27 (Emphasis supplied)
Here, double jeopardy is not at issue because not all of its elements are present.28 However, for
the limited purpose of controverting petitioners claim that they should be charged with one
offense only, we quote with approval Branch 94s comparative analysis of PD 1067, PD 984, RA
7942, and Article 365 of the RPC showing that in each of these laws on which petitioners were
charged, there is one essential element not required of the others, thus:
In P.D. 1067 (Philippines Water Code), the additional element to be established is the dumping of
mine tailings into the Makulapnit River and the entire Boac River System without prior permit
from the authorities concerned. The gravamen of the offense here is the absence of the proper
permit to dump said mine tailings. This element is not indispensable in the prosecution for
violation of PD 984 (Anti-Pollution Law), [RA] 7942 (Philippine Mining Act) and Art. 365 of
the Revised Penal Code. One can be validly prosecuted for violating the Water Code even in the
absence of actual pollution, or even [if] it has complied with the terms of its Environmental
Compliance Certificate, or further, even [if] it did take the necessary precautions to prevent
damage to property.
In P.D. 984 (Anti-Pollution Law), the additional fact that must be proved is the existence of
actual pollution. The gravamen is the pollution itself. In the absence of any pollution, the accused
must be exonerated under this law although there was unauthorized dumping of mine tailings or
lack of precaution on its part to prevent damage to property.
In R.A. 7942 (Philippine Mining Act), the additional fact that must be established is the willful
violation and gross neglect on the part of the accused to abide by the terms and conditions of the
Environmental Compliance Certificate, particularly that the Marcopper should ensure the
containment of run-off and silt materials from reaching the Mogpog and Boac Rivers. If there
was no violation or neglect, and that the accused satisfactorily proved [sic] that Marcopper had
done everything to ensure containment of the run-off and silt materials, they will not be liable. It
does not follow, however, that they cannot be prosecuted under the Water Code, Anti-Pollution
Law and the Revised Penal Code because violation of the Environmental Compliance Certificate
is not an essential element of these laws.
On the other hand, the additional element that must be established in Art. 365 of the Revised
Penal Code is the lack of necessary or adequate precaution, negligence, recklessness and
imprudence on the part of the accused to prevent damage to property. This element is not
required under the previous laws. Unquestionably, it is different from dumping of mine tailings

without permit, or causing pollution to the Boac river system, much more from violation or
neglect to abide by the terms of the Environmental Compliance Certificate. Moreover, the
offenses punished by special law are mal[a] prohibita in contrast with those punished by the
Revised Penal Code which are mala in se.29
Consequently, the filing of the multiple charges against petitioners, although based on the same
incident, is consistent with settled doctrine.
On petitioners claim that the charge for violation of Article 365 of the RPC "absorbs" the
charges for violation of PD 1067, PD 984, and RA 7942, suffice it to say that a mala in se felony
(such as Reckless Imprudence Resulting in Damage to Property) cannot absorb mala prohibita
crimes (such as those violating PD 1067, PD 984, and RA 7942). What makes the former a
felony is criminal intent (dolo) or negligence (culpa); what makes the latter crimes are the special
laws enacting them.
People v. Relova not in Point
Petitioners reiterate their contention in the Court of Appeals that their prosecution contravenes
this Courts ruling in People v. Relova. In particular, petitioners cite the Courts statement in
Relova that the law seeks to prevent harassment of the accused by "multiple prosecutions for
offenses which though different from one another are nonetheless each constituted by a common
set or overlapping sets of technical elements."
This contention is also without merit.1avvphil.net
The issue in Relova is whether the act of the Batangas Acting City Fiscal in charging one Manuel
Opulencia ("Opulencia") with theft of electric power under the RPC, after the latter had been
acquitted of violating a City Ordinance penalizing the unauthorized installation of electrical
wiring, violated Opulencias right against double jeopardy. We held that it did, not because the
offenses punished by those two laws were the same but because the act giving rise to the charges
was punished by an ordinance and a national statute, thus falling within the proscription against
multiple prosecutions for the same act under the second sentence in Section 22, Article IV of the
1973 Constitution, now Section 21, Article III of the 1987 Constitution. We held:
The petitioner concludes that:
"The unauthorized installation punished by the ordinance [of Batangas City] is not the same as
theft of electricity [under the Revised Penal Code]; that the second offense is not an attempt to
commit the first or a frustration thereof and that the second offense is not necessarily included in
the offense charged in the first information."
The above argument[ ] made by the petitioner [is] of course correct. This is clear both from the
express terms of the constitutional provision involved which reads as follows:

"No person shall be twice put in jeopardy of punishment for the same offense. If an act is
punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to
another prosecution for the same act." x x x
and from our case law on this point. The basic difficulty with the petitioners position is that it
must be examined, not under the terms of the first sentence of Article IV (22) of the 1973
Constitution, but rather under the second sentence of the same section. The first sentence of
Article IV (22) sets forth the general rule: the constitutional protection against double jeopardy is
not available where the second prosecution is for an offense that is different from the offense
charged in the first or prior prosecution, although both the first and second offenses may be
based upon the same act or set of acts. The second sentence of Article IV (22) embodies an
exception to the general proposition: the constitutional protection, against double jeopardy is
available although the prior offense charged under an ordinance be different from the offense
charged subsequently under a national statute such as the Revised Penal Code, provided that both
offenses spring from the same act or set of acts. x x x30 (Italicization in the original; boldfacing
supplied)
Thus, Relova is no authority for petitioners claim against multiple prosecutions based on a
single act not only because the question of double jeopardy is not at issue here, but also because,
as the Court of Appeals held, petitioners are being prosecuted for an act or incident punished by
four national statutes and not by an ordinance and a national statute. In short, petitioners, if ever,
fall under the first sentence of Section 21, Article III which prohibits multiple prosecution for the
same offense, and not, as in Relova, for offenses arising from the same incident.
WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 5 November 2001 and
the Resolution dated 14 March 2002 of the Court of Appeals.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice
WE CONCUR:
LEONARDO A. QUISUMBING
Associate Justice
Chairperson
Associate Justice

DANTE O. TINGA
Asscociate Justice
AT T E S T AT I O N

I attest that the conclusions in the above Decision were reached in consultation before the case
was assigned to the writer of the opinion of the Courts Division.

LEONARDO A. QUISUMBING
Associate Justice
Chairperson
C E R T I F I C AT I O N
Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons
Attestation, I certify that the conclusions in the above Decision were reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.
ARTEMIO V. PANGANIBAN
Chief Justice

Republic of the Philippines


SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 177752

February 24, 2009

PEOPLE OF THE PHILIPPINES, Appellant,


vs.
ROBERTO ABAY y TRINIDAD, Appellee.
DECISION
CORONA, J.:
On March 8, 2000, appellant Roberto Abay y Trinidad was charged with rape in relation to
Section 5(b), Article III of RA 7610 in the Regional Trial Court (RTC) of Manila, Branch 41
under the following Information:
That sometime in December 1999, in the City of Manila, Philippines, [appellant] by means of
force and intimidation, did then and there willfully, unlawfully and knowingly commit sexual
abuse and lascivious conduct against [AAA], a minor, 13 years of age, by then and there kissing
her breast and whole body, lying on top of her and inserting his penis into her vagina, thus
succeeded in having carnal knowledge of her, against her will and consent thereafter threatening
to kill her should she report the incident, thereby gravely endangering her survival and normal
growth and development, to the damage and prejudice of [AAA].
CONTRARY TO LAW.
Appellant pleaded not guilty during arraignment.
During trial, the prosecution presented AAA, her mother BBB and expert witness Dr. Stella
Guerrero-Manalo of the Child Protection Unit of the Philippine General Hospital as its witnesses.
AAA testified that appellant, her mothers live-in partner, had been sexually abusing her since
she was seven years old. Whenever her mother was working or was asleep in the evening,
appellant would threaten her with a bladed instrument2 and force her to undress and engage in
sexual intercourse with him.
BBB corroborated AAAs testimony. She testified that she knew about appellants dastardly acts.
However, because he would beat her up and accuse AAA of lying whenever she confronted him,
she kept her silence. Thus, when she caught appellant in the act of molesting her daughter on
December 25, 1999, she immediately proceeded to the police station and reported the incident.

According to Dr. Guerrero-Manalo, AAA confided to her that appellant had been sexually
abusing her for six years. This was confirmed by AAAs physical examination indicating prior
and recent penetration injuries.
The defense, on the other hand, asserted the incredibility of the charge against appellant.
Appellants sister, Nenita Abay, and appellants daughter, Rizza, testified that if appellant had
really been sexually abusing AAA, the family would have noticed. The rooms of their house
were divided only by -inch thick plywood "walls" that did not even reach the ceiling. Thus,
they should have heard AAAs cries. Moreover, Nenita and Rizza claimed that they "often
caught" AAA and her boyfriend in intimate situations.
According to the RTC, one wrongly accused of a crime will staunchly defend his innocence.
Here, appellant kept his silence which was contrary to human nature. On the other hand, AAA
straightforwardly narrated her horrifying experience at the hands of appellant. The RTC
concluded that appellant had indeed sexually abused AAA. A young girl would not have exposed
herself to humiliation and public scandal unless she was impelled by a strong desire to seek
justice.3
In a decision dated November 25, 2003,4 the RTC found appellant guilty beyond reasonable
doubt of the crime of rape:
WHEREFORE, finding [appellant] Roberto Abay y Trinidad guilty beyond reasonable doubt of
committing the crime of rape under Article 335 of the Revised Penal Code in relation to Section
5, Article III of RA 7610 against [AAA], the Court imposes upon him the death penalty,5 and to
pay private complainant moral damages in the amount of Fifty Thousand (P50,000) Pesos.
SO ORDERED.
The Court of Appeals (CA), on intermediate appellate review,6 affirmed the findings of the RTC
but modified the penalty and award of damages.
In view of the enactment of RA 83537 and RA 9346,8 the CA found appellant guilty only of
simple rape and reduced the penalty imposed to reclusion perpetua. Furthermore, in addition to
the civil indemnity ex delicto (which is mandatory once the fact of rape is proved)9 granted by
the RTC, it awarded P50,000 as moral damages and P25,000 as exemplary damages. Moral
damages are automatically granted in rape cases without need of proof other than the
commission of the crime10 while exemplary damages are awarded by way of example and in
order to protect young girls from sexual abuse and exploitation.11
We affirm the decision of the CA with modifications.
Under Section 5(b), Article III of RA 761012 in relation to RA 8353,13 if the victim of sexual
abuse14 is below 12 years of age, the offender should not be prosecuted for sexual abuse but for
statutory rape under Article 266-A(1)(d) of the Revised Penal Code15 and penalized with
reclusion perpetua.16 On the other hand, if the victim is 12 years or older, the offender should be
charged with either sexual abuse17 under Section 5(b) of RA 7610 or rape under Article 266-A

(except paragraph 1[d]) of the Revised Penal Code. However, the offender cannot be accused of
both crimes18 for the same act because his right against double jeopardy will be prejudiced. A
person cannot be subjected twice to criminal liability for a single criminal act.19 Likewise, rape
cannot be complexed with a violation of Section 5(b) of RA 7610. Under Section 48 of the
Revised Penal Code (on complex crimes),20 a felony under the Revised Penal Code (such as
rape) cannot be complexed with an offense penalized by a special law.21
In this case, the victim was more than 12 years old when the crime was committed against her.
The Information against appellant stated that AAA was 13 years old at the time of the incident.
Therefore, appellant may be prosecuted either for violation of Section 5(b) of RA 7610 or rape
under Article 266-A (except paragraph 1[d]) of the Revised Penal Code. While the Information
may have alleged the elements of both crimes, the prosecutions evidence only established that
appellant sexually violated the person of AAA through force and intimidation22 by threatening
her with a bladed instrument and forcing her to submit to his bestial designs. Thus, rape was
established.23
Indeed, the records are replete with evidence establishing that appellant forced AAA to engage in
sexual intercourse with him on December 25, 1999. Appellant is therefore found guilty of rape
under Article 266-A(1)(a) of the Revised Penal Code and sentenced to reclusion perpetua.
Furthermore, to conform with existing jurisprudence, he is ordered to pay AAA P75,000 as civil
indemnity ex-delicto24 and P75,000 as moral damages.25
WHEREFORE, the January 18, 2007 decision of the Court of Appeals in CA-G.R. CR-H.C.
No. 01365 is hereby AFFIRMED with modification. Appellant Roberto Abay y Trinidad is
hereby found GUIILTY of simple rape and is sentenced to suffer the penalty of reclusion
perpetua. He is further ordered to pay AAA P75,000 as civil indemnity ex-delicto, P75,000 as
moral damages and P25,000 as exemplary damages.
Costs against appellant.
SO ORDERED.
RENATO C. CORONA
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
Chairperson
ANTONIO T. CARPIO
Associate Justice

TERESITA J. LEONARDO-DE
CASTRO
Associate Justice

ARTURO D. BRION
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above
decision had been reached in consultation before the case was assigned to the writer of the
opinion of the Courts Division.
REYNATO S. PUNO
Chief Justice

Republic of the Philippines


SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 180169

February 27, 2009

PEOPLE OF THE PHILIPPINES, Appellee,


vs.
AGUSTINO TAMOLON and ANTONIO CABAGAN, Appellants.
DECISION
NACHURA, J.:
This is an appeal from the Decision1 dated August 23, 2007 of the Court of Appeals (CA)
affirming, with modification, the judgment2 dated February 12, 1996 of the Regional Trial Court
(RTC), Branch 21, Davao del Sur, convicting Agustino Tamolon3 and Antonio Cabagan4
(appellants) of Multiple Murder.
The relevant facts and proceedings:
Appellants, with several others,5 were charged with Multiple Murder, docketed as Criminal Case
No. XXI-377 (93), before the RTC, Branch 21, Bansalan, Davao del Sur, in an Information
which reads:
That sometime last March of 1984, in the Municipality of Magsaysay, Davao del Sur, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused, armed with guns
and bolos, with intent to kill, and taking advantage of superior strength conspiring, confederating
and mutually helping one another, did, then and there willfully, unlawfully and feloniously
attack, assault, shoot, hack and massacre Jaime Malabarbas, Ely Malabarbas, Judith Malabarbas,
Wilfredo Panton and Gerry Panton, the herein victims/offended parties[,] which gunshot and
hack wounds caused to their instantaneous death, to the damage and prejudice of the offended
parties.
CONTRARY TO LAW.6
Upon arraignment, the appellants pleaded not guilty.
The case was tried jointly with four other cases, where the appellants were likewise charged
under separate informations, viz.: for arson,7 for other forms of arson,8 and for two counts of

grave threats.9 However, except for the herein appellants, all the other accused in these criminal
cases remain at large.
The conflicting versions of the prosecution and the defense on the antecedent facts of the case, as
summarized by the appellants in their brief, follow:
Evidence for the prosecution tend to establish that at about 8:00 p.m. of March 15, 1984, the
group of ERNESTO DAMALI alias ALANG, AGUSTINO TAMOLON, ANTONIO
CABAGAN, SAMSON CABAGAN, KIMPO ANGGA, JOSEPH WAGIA, and MODESTO
LANDAS were supposed to conduct a roving patrol. When they reached the house of the
MALABARBAS in Sitio Maibu, Magsaysay[,] Davao del Sur, except for LANDAS, they
opened fire at the MALABARBAS family and then hacked them which resulted to the death of
JAIME, ELY, JUDITH, all surnamed MALABARBAS, WILFREDO and GERRY, both
surnamed PANTON (T.S.N., pp. 8, 11 & 13, December 1, 1993).
EVIDENCE FOR THE DEFENSE:
Accused-appellant AGUSTINO TAMOLON who testified on April 5, 1995 stated that at the time
of the massacre of the Malabarbas family in Sitio Maibu, Magsaysay, Davao del Sur on March
15, 1984, he was a resident of Santa Felomina, Makilala, North Cotabato, which is far from the
boundary of Magsaysay, Davao del Sur. He lived as a farmer, and in 1984, he was engaged in
honey gathering in the mountains of Makilala, North Cotabato. He does not know the
Malabarbas family nor does he know anything about their massacre. He met MODESTO
LANDAS in 1989 in Barangay Laya where he was assigned as a CAFGU. He also knows that
LANDAS was arrested and detained at the Magsaysay Municipal Jail in Magsaysay, Davao del
Sur, Landas was promised by the Municipal Mayor that he will help him (LANDAS) if he would
name all those who participated in the commission of the crime.
Accused-appellant ANTONIO CABAGAN denied having participated in the massacre of the
Malabarbas Family. He was arrested and detained in 1993 in Magsaysay, Davao del Sur, where
MODESTO LANDAS was also detained. During their detention, VILMA GANAD (whose
rubber plantation and copra dryer were set on fire) and ANTONIO MALABARBAS, came to see
him and LANDAS, and asked them to testify against DAMALI and TAMOLON, and in
exchange, they will help them get out of jail and GANAD promised them money and support in
the form of rice subsidy. He, however, refused because he "did not actually see the persons who
did the crime, but LANDAS agreed (T.S.N., pp. 6-9, 11-13, June 8, 1995).
GREGORIO SUMAKBANG, the Barangay Captain of Magbuk, Tulunan, from 1965 to 1987,
testified that CABAGAN and TAMOLON were never linked to the massacre of the
MALABARBAS Family in 1984, and that it was only in 1993 that he came to know that they
were linked and arrested for the massacre. He knows MODESTO LANDAS and was a sponsor

of LANDAS at his wedding. LANDAS came to see him twice in 1993 and requested him not to
get involved in the cases. He further stated that LANDAS testified against Tamolon and
ANTONIO CABAGAN to free himself from jail and who was subsequently released in
February, 1993. He also knows that MODESTO LANDAS died in September 1994, during the
fiesta of Malungon (T.S.N., pp. 7-10, September 15, 1995).1avvphi1
SUNGKADAN AMIT, a pastor of the Christian Missionary alliance in Sta. Felomina, Makilala,
North Cotabato, testified that he knows AGUSTINO TAMOLON. During the years 1983 to
1984, TAMOLON was a farmer and a honey gatherer, and that during these period he was not a
member of any armed group in Makilala, North Cotabato (T.S.N., pp. 12-13, September 15,
1995).10
After trial, on February 12, 1996, the RTC rendered its Decision convicting both appellants of
multiple murder. The dispositive portion of the decision reads:
WHEREFORE, in view of the foregoing, this Court hereby pronounces Agustino Tamolon and
Antonio Cabagan guilty beyond reasonable doubt of the crime of Multiple Murder as defined and
penalized under Art. 248 of the Revised Penal Code for the death of Ely Malabarbas, Wilfreda
Panton, Judith Malabarbas, Jaime Malabarbas and Jerry Panton and hereby sentences each
accused to suffer the penalty of Reclusion Perpetua for the death of Ely Malabarbas; Reclusion
Perpetua, for the death of Wilfreda Panton; Reclusion Perpetua, for the death of Judith
Malabarbas; Reclusion Perpetua, for the death of Jaime Malabarbas and Reclusion Perpetua, for
the death of Jerry Panton subject to the limitation provided for under Article 70 of the Revised
Penal Code and to indemnify the heirs of each victim the sum of FIFTY THOUSAND
(P50,000.00) PESOS pursuant to recent jurisprudence. x x x.
SO ORDERED.11
The RTC decision was elevated directly to the Supreme Court for automatic review.1avvphi1
However, conformably with our ruling in People v. Mateo,12 the case was, by Resolution dated
December 13, 2004, referred to the CA. Parenthetically, no appeal was taken by the appellants in
the other cases against them.13 Accordingly, insofar as the other criminal cases are concerned, the
Decision of the RTC of Davao del Sur had become final and executory.
On August 23, 2007, the CA promulgated its Decision, disposing as follows:
FOR THE REASONS STATED, the appealed Judgment dated February 12, 1996, of the
Regional Trial Court, Branch 21, Davao del Sur in Criminal Case No. XXI-377(93), is
AFFIRMED with the MODIFICATION that the accused is ORDERED to pay the heirs of each
of the victim[s] P50,000.00 as indemnity, and P50,000.00 as moral damages. Costs de officio.

SO ORDERED.14
Thus, this appeal, assigning the following errors:
I
THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANTS
AGUSTINO TAMOLON AND ANTONIO CABAGAN GUILTY BEYOND REASONABLE
DOUBT OF THE CRIME OF MULTIPLE MURDER ON THE LONE, FABRICATED, ILLMOTIVATED, AND POLLUTED TESTIMONY OF MODESTO LANDAS.
II
THE COURT A QUO GRAVELY ERRED IN ORDERING ACCUSED-APPELLANTS TO
INDEMNIFY THE HEIRS OF EACH OF THE FIVE (5) VICTIMS THE SUM OF FIFTY
THOUSAND PESOS.15
The appeal is bereft of merit.
The appellants cast aspersion on the credibility of lone prosecution witness, Modesto Landas,
who admitted having been with the armed group that massacred the Malabarbas family.
Moreover, they question the motive of Landas who, they said, told the authorities of the alleged
criminal activities of the group only after he had been arrested and detained, nine years after the
alleged incident. They then submit that "the evidence presented by the prosecution came from a
polluted source," harping on Landas being with the roving team at the time of the commission of
the crime, making him a co-conspirator.
However, the trial court gave full weight and credence to Landas testimony. Evaluating the
same, the court said:
Witness Modesto Landas was likewise very positive, direct, straight-forward and convincing in
his testimony against accused Agustino Tamolon and Antonio Cabagan. This witness never
faltered or wavered in his claim about the participation of accused Agustino Tamolon and
Antonio Cabagan in the massacre of the Malabarbas family and in setting fire to the dr[y]er of
Vilma Ganad.16
The CA also held that, by way of exception, the testimony of a co-conspirator may, even if
uncorroborated, be sufficient for conviction when it is shown to be sincere in itself, because it is
given unhesitatingly and in a straightforward manner, and is full of details by which their nature
could not have been the result of a deliberate afterthought.17

In this regard, worthy of reiteration is the doctrine that on matters involving the credibility of
witnesses, the trial court is in the best position to assess the credibility of witnesses, since it has
observed firsthand their demeanor, conduct and attitude under grueling examination. Absent any
showing of a fact or circumstance of weight and influence which would appear to have been
overlooked and, if considered, could affect the outcome of the case, the factual findings on and
assessment of the credibility of a witness made by the trial court remain binding on an appellate
tribunal.18 A trial courts assessment of the credibility of a witness is entitled to great weight,
even conclusive and binding, if not tainted with arbitrariness or oversight of some fact or
circumstance of weight and influence.19 Thus, in Valcesar Estioca y Macamay v. People of the
Phils.,20 we held:
In resolving issues pertaining to the credibility of the witnesses, this Court is guided by the
following well-settled principles: (1) the reviewing court will not disturb the findings of the
lower court, unless there is a showing that it overlooked, misunderstood or misapplied some fact
or circumstance of weight and substance that may affect the result of the case; (2) the findings of
the trial court on the credibility of witnesses are entitled to great respect and even finality, as it
had the opportunity to examine their demeanor when they testified on the witness stand; and (3)
a witness who testifies in a clear, positive and convincing manner is a credible witness.
By the foregoing standards especially because the trial courts findings were concurred in by the
CA, we are obliged to adopt the trial courts evaluation of Landas credibility.
As to the appellants defense which is based mainly on denial and alibi, nothing is more settled in
criminal law jurisprudence than that denial and alibi cannot prevail over the positive and
categorical testimony of the witness.21 In People of the Phils. v. Carlito Mateo y Patawid,22 we
had occasion to state:
Accused-appellants bare-faced defense of denial cannot surmount the positive and affirmative
testimony offered by the prosecution. x x x. A defense of denial which is unsupported and
unsubstantiated by clear and convincing evidence becomes negative and self-serving, deserving
no weight in law, and cannot be given greater evidentiary value over convincing, straightforward
and probable testimony on affirmative matters. x x x.
Indeed, denial is an intrinsically weak defense which must be buttressed with strong evidence of
non-culpability to merit credibility. Alibi is an inherently weak defense, which is viewed with
suspicion and received with caution, because it can easily be fabricated.23 For alibi to prosper,
appellant must prove not only that he was at some other place when the crime was committed but
that it was physically impossible for him to be at the locus criminis at the time of its
commission.24

In the case at bench, no convincing evidence was presented by the defense to reinforce the
appellants denial and alibi.
As to the award of additional damages, the CA is correct in ordering the appellants to pay the
sum of P50,000.00, as moral damages, to the heirs of each of the victims. We held in People v.
Panado:25
We grant moral damages in murder or homicide only when the heirs of the victim have alleged
and proved mental suffering. However, as borne out by human nature and experience, a violent
death invariably and necessarily brings about emotional pain and anguish on the part of the
victims family. It is inherently human to suffer sorrow, torment, pain and anger when a loved
one becomes the victim of a violent or brutal killing. Such violent death or brutal killing not only
steals from the family of the deceased his precious life, deprives them forever of his love,
affection and support, but often leaves them with the gnawing feeling that an injustice has been
done to them. For this reason, moral damages may be awarded even in the absence of any
allegation and proof of the heirs emotional suffering. x x x. With or without proof, this fact can
never be denied; since it is undisputed, it must be considered proved.
Given the foregoing disquisition, we find no reason to reverse the Decision of the CA upholding
the conviction of accused-appellants.
WHEREFORE, the petition is DENIED and the assailed Decision of the Court of Appeals in
CA-G.R. CR-HC No. 00463 is AFFIRMED in toto.
SO ORDERED.
ANTONIO EDUARDO B. NACHURA
Associate Justice

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