Republic of the Philippines It is now contended, however, that lacking direct evidence of actual misappropriation the trial court
SUPREME COURT convicted defendant on mere presumptions, that is, presumptions of criminal intent in losing the
Manila
EN BANC
G.R. No. L-5371 March 26, 1953
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
AQUINO MINGOA, defendant-appellant.
Marcelino Lontok for appellant.
Office of the First Assistant Solicitor General Ruperto Kapunan, Jr. and Solicitor Federico V. Sian
for appellee.
REYES, J.:
Found short in his accounts as officer-in-charge of the office of the municipal treasurer of
Despujols, Romblon, and unable to produce the missing fund amounting to P3,938 upon demand
by the provincial auditor, the defendant Aquino Mingoa was prosecuted for the crime of
malversation of public funds in the Court of First Instance of Romblon, and having been found
guilty as charged and sentenced to the corresponding penalty, he appealed to the Court of
Appeals. But that court certified the case here on the ground that it involved a constitutional
question.
The evidence shows that it is not disputed that upon examination of his books and accounts on
September 1, 1949, defendants, as accountable officer, was found short in the sum above-named
and that, required to produce the missing fund, he was not able to do so. He explained to the
examining officer that some days before he had, by mistake, put the money in a large envelope
which he took with him to show and that he forgot it on his seat and it was not there anymore
when he returned. But he did not testify in court and presented no evidence in his favor.
We agree with the trial judge that defendant's explanation is inherently unbelievable and cannot
overcome the presumption of guilt arising from his inability to produce the fund which was found
missing. As His Honor observes, if the money was really lost without defendant's fault, the most
natural thing for him to do would be to so inform his superiors and apply for release from liability.
But this he did not do. Instead, he tried to borrow to cover the shortage. And on the flimsy excuse
that he preferred to do his own sleuthing, he even did not report the loss to the police. Considering
further as the prosecution points out in its brief, that defendant had at first tried to avoid meeting
the auditor who wanted to examine his accounts, and that for sometime before the alleged loss
many teachers and other employees of the town had not been paid their salaries, there is good
ground to believe that defendant had really malversed the fund in question and that his story about
its loss was pure invention.
money under the circumstances alleged and presumptions of guilt from the mere fact that he
failed, upon demand to produce the sum lacking. The criticism as to the first presumption is
irrelevant, for the fact is that trial court did not believe defendant's explanation that the money was
lost, considering it mere cloak to cover actual misappropriation. That is why the court said that
"whether or not he (defendant) is guilty of malversation for negligence is of no moment . . . " And
as to the other presumption, the same is authorized by article 217 of the Revised Penal Code,
which provides:
The failure of a public officer to have duly forthcoming any public funds or property with
which he is chargeable, upon demand by any duly authorized officer, shall be prima
facie evidence that he has put such missing funds or property to personal use.
The contention that this legal provision violates the constitutional right of the accused to be
presumed innocent until the contrary is proved cannot be sustained. The question of the
constitutionality of the statute not having been raised in the court below, it may not be considered
for the first time on appeal. (Robb vs. People, 68 Phil., 320.)
In many event, the validity of statutes establishing presumptions in criminal cases is now settled
matter, Cooley, in his work on constitutional limitations, 8th ed., Vo. I, pp. 639-641says that "there
is no constitutional objection to the passage of law providing that the presumption of innocence
may be overcome by contrary presumption founded upon the experience of human conduct, and
enacting what evidence shall be sufficient to overcome such presumption of innocence." In line
with this view, it is generally held in the United States that the legislature may enact that when
certain facts have been proven they shall be prima facie evidence of the existence of the guilt of
the accused and shift the burden of proof provided there be rational connection between that facts
proved and the ultimate fact presumed so that the inference of the one from proof of the others is
not unreasonable and arbitrary because of lack of connection between the two in common
experience. (See annotation on constitutionality of statutes or ordinances making one fact
presumptive or prima facie evidence of another, 162 A.L.R. 495-535; also, State vs. Brown, 182
S.E., 838, with reference to embezzlement.) The same view has been adopted here as may be
seen from the decisions of this court in the U.S. vs. Tria, 17 Phil., 303; U.S. vs. Luling, 34 Phil.,
725; and People vs. Merilo, G.R. No. L-3489, promulgated June 28, 1951.
The statute in the present case creates a presumption of guilt once certain facts are proved. It
makes the failure of public officer to have duly forthcoming, upon proper demaand, any public
funds or property with which he is chargeable prima facie evidence that he has put such missing
funds or property to personal use. The ultimate fact presumed is that officer has malversed the
funds or property entrusted to his custody, and the presumption is made to arise from proof that
he has received them and yet he has failed to have them forthcoming upon proper demand.
Clearly, the fact presumed is but a natural inference from the fact proved, so that it cannot be said
that there is no rational connection between the two. Furthermore, the statute establishes only
a prima facie presumption, thus giving the accused an opportunity to present evidence to rebut it.
The presumption is reasonable and will stand the test of validity laid down in the above citations.
There being no reversible error in the decision appealed from, the same is hereby affirmed, with
costs.
 EN BANC
Version of the Prosecution
G.R. No. 137288 December 11, 2001
The Office of the Solicitor General summarized the evidence for the prosecution in this wise:6
PEOPLE OF THE PHILIPPINES, appellee,
vs.
DANILO ABINO y ADVINCULA, appellant.
PANGANIBAN, J.:
Rape, particularly incestuous rape, is reprehensible and abominable. However, to convict the
accused and to sentence him to death requires proof beyond reasonable doubt of the elements of
the crime and the qualifying circumstances specifically alleged in the information. Conviction
always rests on the strength of the evidence of the prosecution, never on the weakness or the
absence of that of the defense.
The Case
1 his office. Appellant said nothing and left for work. Daniela stayed at the first floor of their
For automatic review by this Court is the Decision dated January 20, 1999, promulgated
by the Regional Trial Court (RTC) of Calamba, Laguna (Branch 34) in Criminal Case No.
5793-98-C, finding Danilo Abino y Advincula guilty of rape beyond reasonable doubt. We
quote the decretal portion of the Decision:
"ACCORDINGLY, this Court finds accused Danilo Abino y Advincula GUILTY beyond
reasonable doubt of the crime of rape as defined and penalized under Article 335 of the
Revised Penal Code, as amended, and hereby sentences him to suffer the penalty of
death.
"Accused is further directed to indemnify the offended party, Daniela Abino, the sum of
FIFTY THOUSAND (P50,000.00) PESOS as and for moral damages.
"With costs against the accused."2
The Information3 against appellant reads as follows:
"That on or about April 6, 1996, in the Municipality of Los Baños, Province of Laguna and
within the jurisdiction of this Honorable Court, the above-named accused did then and
there have carnal knowledge of his daughter, the minor DANIELA ABINO y MERCADO,
who was then asleep and unconscious, against her will and consent, to her damage and
prejudice."
With the assistance of his counsel,4 appellant pleaded not guilty when arraigned on July 10,
1998.5 In due course, the latter was tried and convicted of qualified rape.
The Facts
"1. Fourteen-year old Daniela Abino lived with her father, appellant Danilo Abino, at Agua
Santa, an old resort located in Bambang, Los Baños, Laguna. Appellant was a member of
the Los Baños task force on market security, assigned to night shift duty at the market.
Daniela's mother no longer lived with them as she had another family.
"2. On the evening of April 6, 1996, appellant came home drunk. He took a bath and told
Daniela to prepare his things for the market. Daniela obeyed him and went to the second
floor of their house to fix her father's things. Appellant followed Daniela clad only in his
underwear with a towel wrapped around his waist. He embraced Daniela and pressed his
penis against her buttocks. Daniela pulled herself away from appellant and went
downstairs.
"3. When appellant went down, Daniela told him that she was no longer going with him to
house until she decided to go to bed and went upstairs.
"4. Daniela was fast asleep in her bed when she felt somebody on top of her and kissing
her. She opened her eyes and saw appellant who was naked. Daniela found herself
naked too as she no longer had her panty and shorts on. When Daniela woke up and
moved, appellant stood up, dressed himself and then left. Daniela felt intense pain in her
vagina and cried.
"5. Daniela put on her panty and tried to sleep, but sleep escaped her and she kept on
crying. The following morning, she prepared herself for school and cooked rice. Daniela,
however, did not go to school that day and stayed at home.
"6. Daniela did not immediately tell anybody about what appellant did to her. She stayed
with him for about seventeen months more or until September 1997. However, Daniela
eventually decided to run away from home because she was afraid that appellant might
molest and hurt her again.
"7. Daniela stayed in a canteen near 'Star City' in Manila. After her stint at the canteen,
Daniela worked for one Mando Parr in Pasay City. She, however, left his employ. In
December of 1997, Daniela found herself in Baguio City where she met a social worker
who placed her in the custody of the Department of Social Welfare and Development.
"8. On December 17, 1997, Daniela was brought by one Aileen Edades of the
Commission on Human Rights to the City Health Office in San Pablo City. There she was
examined by Dr. Azucena I. Bandoy, the Assistant City Health Officer of San Pablo City.
 "9. Dr. Bandoy found that Daniela's sex organ bore a '3rd and 9 o'clock old healed
laceration scar' and that the scar was caused by the insertion of a foreign body,
specifically, 'the penis or a male organ,' into Daniela's vagina. According to Dr. Bandoy,
the laceration might have been inflicted 'a year ago'."
Version of the Defense
On the other hand, the Public Attorney's Office presents appellant's version of the incident simply
as follows:7
"Danilo Abiño y Advincula testified that the allegation in the complaint is not true. The only
reason why the complainant filed the rape charge against him is that he is a very strict
father, that's the reason why the complainant is angry with him."
Ruling of the Trial Court
The court a quo found complainant's testimony "strong, credible and competent." It "could not
fathom any justifiable reason why she at so young an age would accuse her own father and
portray the latter as a beast who deflowered her if the same be not true." Finding carnal
knowledge to have taken place between them, it sentenced appellant to death.
Hence, this automatic review before us.8
Assignment of Errors
In his Brief, appellant faults the court a quo with the following alleged errors:9
"The lower court erred in convicting the accused based on the incredible and inconsistent
testimony of Daniela Abiño.
"The lower court gravely erred in convicting the accused despite failure of the prosecution
to prove his guilt beyond reasonable doubt."
Basically, the assigned errors boil down to the sole issue of whether the prosecution evidence
proves appellant's guilt beyond reasonable doubt of the crime charged.
The Court's Ruling
The appeal is meritorious.
Main Issue:
Sufficiency of Evidence
At the time of the alleged commission of the acts stated in the Information, the Revised Penal
Code, as amended by Section 11 of RA 7659, specifies how rape may be committed, as follows:
"Art. 335. When and how rape is committed. — Rape is committed by having carnal
knowledge of a woman under any of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise unconscious; and
3. When the woman is under twelve years of age or is demented.
"The crime of rape shall be punished by reclusion perpetua.
"Whenever the crime of rape is committed with the use of a deadly weapon or by two or
more persons, the penalty shall be reclusion perpetua to death.
"When by reason or on the occasion of the rape, the victim has become insane, the
penalty shall be death.
"When the rape is attempted or frustrated and a homicide is committed by reason or on
the occasion thereof, the penalty shall be reclusion perpetua to death.
"When by reason or on the occasion of the rape, a homicide is committed, the penalty
shall be death.
"The death penalty shall also be imposed if the crime of rape is committed with any of the
following attendant circumstances:
1. when the victim is under eighteen (18) years of age and the offender is a parent,
ascendant, stepparent, guardian, relative by consanguinity or affinity within the third civil
degree, or the common-law-spouse of the parent of the victim.
2. when the victim is under the custody of the police or military authorities.
3. when the rape is committed in full view of the husband, parent, any of the children of
other relatives within the third degree of consanguinity.
4. when the victim is a religious or a child below seven (7) years old.
5. when the offender knows that he is afflicted with Acquired Immune Deficiency
Syndrome (AIDS) disease.
6. when committed by any member of the Armed Forces of the Philippines or the
Philippine National Police or any law enforcement agency.
 7. when by reason or on the occasion of the rape, the victim has suffered permanent Q: Los Baños, Laguna?
physical mutilation."
A Yes, sir.
Insofar as it is relevant to the present case, the law states that once the crime of rape is proven,
the circumstance of father-daughter relationship between the victim and the offender raises the Q Were you alone in your house or did you have companions at that time?
penalty to death. Such relationship, which must be both alleged in the information and proven by
the evidence, does not by itself operate to convert carnal knowledge to rape. It bears emphasizing
A None, sir.
that the law requires that the elements of rape be proven first before the circumstance of
relationship can be appreciated to increase the penalty.
Q What time did you go to sleep that night of April 6, 1996?
In the present case, the Information alleges that the crime of rape was committed under paragraph
number two of Article 335 of the Revised Penal Code. Hence, before appellant can be convicted A I do not know the time sir.
thereof, two elements must concur: (1) he had carnal knowledge of complainant, Daniela; and (2)
she was unconscious when it happened. Q When asked if you ha[d] any companions on that night of April 6, 1996 you said
you ha[d] no companions, tell us why were you alone on that night in your house?
The prosecution sought to prove the element of unconsciousness through the testimony of
Daniela that on the night of April 6, 1996, she was asleep. As to the element of carnal knowledge, A Becaus[e] my father left.
it presented only the following circumstantial evidence:
Q How about your mother, do you have any mother?
1. On the night of April 6, 1996, Daniela woke up to find her father on top of her, but he promptly
got off when she "opened her eyes." A Yes, sir.

2. Thereafter she felt pain in her vagina. Q Where was she on that night of April 6, 1996?

3. After seventeen months, she left home and wandered from place to place for several more A She already has another family.
months, until she met a social worker in Baguio.
Q What time did you wake up that night of April 6, 1996?
4. She was then examined and found to have old healed hymenal lacerations at the 3 and the 9
o'clock positions and a yellowish white discharge, which indicated infection due to coitus several
times with an infected male.10 A I do not know.

An examination of Daniela's entire testimony compels us to reverse the RTC's hasty conclusion of Q Were you able to continuously sleep the whole night of April 6, 1996?
rape based only on its circumstantial finding of carnal knowledge between appellant and Daniela.
Contrary to the court a quo'spronouncement, Daniela was not convincing on very material points. A No, sir.

Q Tell us on the night of April 6, 1996 where were you then? Q Why?

A I was in our house at Agua Santa. A Because that night, my father who was dr[u]nk took his bath and after that he told
me to fix his things in going to the office. So I went upstairs to fix his things and he
Q Where is this Agua Santa where you said you were then? followed me.

A In Bambang sir. ATTY. PADERAYON:

FISCAL: Before the next question, we object to the answer, your honor, considering that is
not responsive to the question.
FISCAL: A I just stayed in the first floor of our house, up to . . . nigh[t] time and when . . . night
time came I went to sleep.
Q Where did he follow you?
FISCAL:
A To the second floor of our house.
Q: Did your father come back that night?
Q After your father followed you [o]n the second floor of your house, what did he do?
if any? A Yes, sir.

A He told me it was cold. ATTY. PADERAYON:

Q After he embraced you, what happened? Leading, your honor.

A "Yong ari niya idinikit sa puwet ko." FISCAL:

Q After he did that to you, what did he do next? Q: Why did you know that your father went back that night?

A "Umalis ako sa harap niya at bumaba [ako] ng hagdan." A I saw him that night.
(Witness is crying)
Q At what time did you see him and what was he doing at the time you saw him?
Q After you said you left and went down, what did your father do?
A When I saw him that night I don't know what time was that[.] I returned to sleep
A He dressed up and when he was already on the first floor, I told him that I will not and I was awakened and felt that someone was on my top.
go with him anymore [to] the office.
Q Were you able to recognize who was that somebody who was on your top?
Q Why? Did he ask you to go with him [to] the office?
A Yes, sir.
A Yes, sir, we are always together in his office and I am sleeping in his office.
Q Who?
Q By the way, where [is] this office where you said your father is working?
A My father sir.
A Near the market sir.
Q What was your father doing at the time you said he was on top of you?
Q What is his work in the market?
A When I opened my eyes he left me.
A Tax collector sir.
Q Can you tell us what your father was wearing when you said he was on top of
Q After you told your father that you will not go with him anymore what did he tell you?
you?
A Pants and white t-shirt and [he] was wearing a vest.
A Nothing, he just left.
Q And when your father you said left what did you notice on your self?
Q On your part, what did you do after your father left?
A My private part was painful. Q: Why?

FISCAL: A I felt lazy.

Q: Aside from the pain that you felt what else did you [notice] from your private part? Q What did you do that day of April 7 when you said you did not go to school?

A "Mahapdi" whenever I am urinating. A Nothing sir. I just stayed in the house.11

Q When you said you felt pain after your father left, what were you wearing? Then, on redirect examination, she testified:

A I was wearing my uniform. Q: Now you said that you woke up, your father was on top of you, what was he doing
at that time when he was on your top?
Q At the time your father left at the time you saw him, what were you wearing?
A: He was kissing me, sir.
A I was wearing skirt and shorts.
Q: And aside from kissing, what else x x x did [he do] to you?
Q So when you said you felt pain after you said your father was on top of [you] and
then you left, what did you do? A: Nothing more, sir."12

A I noticed my panty was yellowish and was hot "mainit ng konti".
Q And when you noticed these things, what did you do?
A I just cried.
Q Where was your father at the time you said you were crying?
A He returned to the market.
Q Finally, what time did you wake up that morning?
A I was not able to sleep then.
Q The following morning, what did you do?
In attempting to clarify and consolidate its case against appellant, the prosecution succeeded only
in destroying the testimony of its star witness. In the process, it further strengthened the premise
that, other than lying on top of Daniela and kissing her, appellant did "nothing more" on April 6,
1996.
The circumstantial evidence in the present case admits of the possibility that appellant could have
had carnal knowledge of complainant. But we cannot affirm his death sentence on the basis alone
of a mere possibility. Settled jurisprudence13 requires proof beyond reasonable doubt, not mere
possibility of the presence of all the elements of the crime charged.
Here, the prosecution's contention that the element of carnal knowledge concurred with the
element of unconsciousness is neither believable nor supported by evidence. There is no
evidence to show that Daniela was knocked out, drugged, intoxicated, tired and worn out or in any
similar condition that would induce such a heavy sleep. There was therefore nothing that would
account for her insensitivity to appellant's supposed act of inserting his penis into her vagina, if this
really happened on April 6, 1996.

A I cooked rice and prepared myself [for] school. The prosecution claims that the painful vagina and the lacerated hymen are circumstantial
evidence of carnal knowledge that occurred while Daniela was asleep on the night of April 6,
1996. If this were so, it follows that the purported penile penetration must have been deep enough
Q Did you go to school the following day? to reach and lacerate her hymen at the 3 and the 9 o'clock positions. It is simply incredible that the
pain that can reasonably be expected from such insertion of a penis into her young, virginal
A No, sir. vaginal canal would fail to wake her up. How could she have slept through the entry of her father's
penis into her vagina and its exit therefrom — from beginning to end — and awakened only after
FISCAL: the alleged completion of the crime, as the prosecution would have us believe? It may have been
possible if she had been drugged, but a case must rest on evidence, not on mere possibility.
"It is a legal truism that evidence, to be believed, must not only proceed from the mouth of a
credible witness, but must be credible in itself."14 "We have no test of the truth of human
testimony, except in conformity with our knowledge, observation, and experience and whatever is
repugnant to these belongs to the miraculous and is outside of judicial cognizance." 15 In the
present case, the circumstances surrounding the prosecution's allegations are not in accord with
human experience. "The proof against the accused must overcome not only "the test of reason
and logic, but above all, that of experience."16 It is more reasonable to believe, that, as Daniela
herself testified, appellant kissed her on the night of April 6, 1996 — but did nothing more; or, as
can reasonably be inferred from the records, he had carnal knowledge of her, but she
was conscious and willing.

Doctrinally, where "the inculpatory facts and circumstances are capable of two or more
explanations one of which is consistent with the innocence of the accused and the other
consistent with his guilt, then the evidence does not fulfill the test of moral certainty and is not
sufficient to support a conviction."17

It is claimed that appellant had carnal knowledge of his daughter on a day other than on April 6,
1996, and under some circumstance other than while she was asleep. Aside from speculation and
conjecture, this argument finds no factual support. And even if true, such circumstance cannot
convict him of the rape charged in the Information.

Neither can we, in these proceedings, convict appellant of rape committed through intimidation as
a result of his moral ascendancy, even if it were proven beyond reasonable doubt. He was
charged and tried on an Information alleging rape of a woman who was "asleep and unconscious."
Convicting him of rape done by intimidation would violate his constitutional right "to be informed of
the nature and cause of the accusation against him."18

Rape, particularly incestuous rape, is reprehensible and abominable. However, to convict the
accused and to sentence him to death requires that (1) the prosecution's evidence for the
elements of the crime and (2) the qualifying circumstances specifically alleged in the Information
must pass the test of moral certainty. Absent the satisfaction of this stringent requirement, we
must uphold appellant's constitutional right to be presumed innocent.

WHEREFORE, the appeal is GRANTED and the assailed Decision is hereby REVERSED and
SET ASIDE. Appellant Danilo Abino y Advincula is ACQUITTED on reasonable doubt. The
director of the Bureau of Corrections is ordered to cause the immediate release of appellant,
unless the latter is being lawfully held for another cause; and to inform the Court of the date of
appellant's release, or the reasons for his continued confinement, within ten days from notice. No
pronouncement as to costs.

SO ORDERED.

Davide, Jr., C . J ., Bellosillo, Melo, Vitug, Kapunan, Mendoza, Quisumbing, Pardo, Ynares-
Santiago, De Leon, Jr., Sandoval-Gutierrez and Carpio, JJ ., concur.
Puno and Buena, JJ ., on official business abroad.
 Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 116736 July 24, 1997
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
BENJAMIN ORTEGA, JR. y CONJE, MANUEL GARCIA y RIVERA and JOHN DOE, accused,
BENJAMIN ORTEGA, JR. y CONJE and MANUEL GARCIA y RIVERA, accused-appellants.
PANGANIBAN, J.:
A person who commits a felony is liable for the direct, natural and logical consequences of his
wrongful act even where the resulting crime is more serious than that intended. Hence, an
accused who originally intended to conceal and to bury what he thought was the lifeless body of
the victim can be held liable as a principal, not simply as an accessory, where it is proven that the
said victim was actually alive but subsequently died as a direct result of such concealment and
burial. Nonetheless, in the present case, Appellant Garcia cannot be held liable as a principal
because the prosecution failed to allege such death through drowning in the Information. Neither
may said appellant be held liable as an accessory due to his relationship with the principal killer,
Appellant Ortega, who is his brother-in-law.
Statement of the Case
This case springs from the joint appeal interposed by Appellants Benjamin Ortega, Jr. and Manuel
Garcia from the Decision,1 dated February 9, 1994 written by Judge Adriano R. Osorio,2 finding
them guilty of murder.
Appellants were charged by State Prosecutor Bernardo S. Razon in an Information3 dated October
19, 1992, as follows:
That on or about October 17, 1992 in Valenzuela, Metro Manila, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused,
conspiring together and mutually helping one another, without any justifiable
cause, with treachery and evident premeditation and with abuse of superior
strenght (sic) and with deliberate intent to kill, did then and there willfully,
unlawfully and feloniously attack, assault and stab repeatedly with a pointed
weapon on the different parts of the body one ANDRE MAR MASANGKAY y
ABLOLA, thereby inflicting upon the latter serious physical injuries which directly
caused his death.
During arraignment, Appellants Ortega and Garcia, assisted by counsel de oficio,4 pleaded not
guilty to the charge.5Accused "John Doe" was then at large.6 After trial in due course, the court a
quo promulgated the questioned Decision. The dispositive portion reads:7
WHEREFORE, finding accused Benjamin Ortega, Jr. y Conje and Manuel Garcia
y Rivera [g]uilty beyond reasonable doubt of the crime charged, the Court hereby
sentenced (sic) them to suffer the penalty of RECLUSION PERPETUA and to
pay the costs of suit.
Accused are hereby ordered to pay the offended party the sum of P35,000.00 for
funeral expenses of deceased Andre Mar Masangkay and death indemnity of
P50,000.00.
The Notice of Appeal, dated March 9, 1994, was thus filed by Atty. Evaristo P. Velicaria8 who took
over from the Public Attorney's Office as counsel for the accused.
The Facts
Evidence for the Prosecution
The trial court summarized the testimonies of the prosecution witnesses as follows:9
Diosdado Quitlong substantially testified that on October 15, 1992 at about 5:30
in the afternoon, he, the victim Andre Mar Masangkay, Ariel Caranto, Romeo
Ortega, Roberto San Andres were having a drinking spree in the compound near
the house of Benjamin Ortega, Jr. at Daangbakal, Dalandanan, Valenzuela,
Metro Manila. That while they were drinking, accused Benjamin Ortega, Jr. and
Manuel Garcia who were [already] drunk arrived and joined them. That victim
Andre Mar Masangkay answered the call of nature and went to the back portion
of the house. That accused Benjamin Ortega, Jr. followed him and later they
[referring to the participants in the drinking session] heard the victim Andre Mar
shouted, "Don't, help me!" (Huwag, tulungan ninyo ako!) That he and Ariel
Caranto ran towards the back portion of the house and [they] saw accused
Benjamin Ortega, Jr., on top of Andre Mar Masangkay who was lying down in a
canal with his face up and stabbing the latter with a long bladed weapon. That
Ariel Caranto ran and fetched Benjamin Ortega, Sr., the father of accused
Benjamin, Jr. That he [Quitlong] went to Romeo Ortega in the place where they
were having the drinking session [for the latter] to pacify his brother Benjamin, Jr.
That Romeo Ortega went to the place of the stabbing and together with Benjamin
Ortega, Jr. and Manuel Garcia lifted Andre Mar Masangkay from the canal and
brought Andre Mar to the well and dropped the latter inside the well. That Romeo
Ortega, Benjamin Ortega, Jr. and Manuel Garcia then dropped stones measuring
11 to 12 inches high, 2 feet in length and 11 to 12 inches in weight to the body of
Andre Mar Masangkay inside the well. That Romeo Ortega warned him
[Quitlong] not to tell anybody of what he saw. That he answered in the affirmative
and he was allowed to go home. That his house is about 200 meters from
Romeo Ortega's house. That upon reaching home, his conscience bothered him
and he told his mother what he witnessed. That he went to the residence of Col.
Leonardo Orig and reported the matter. That Col. Orig accompanied him to the
Valenzuela Police Station and some police officers went with them to the crime
scene. That accused Benjamin Ortega, Jr. and Manuel Garcia were
apprehended and were brought to the police station.
On cross-examination, he said that he did not talk to the lawyer before he was
presented as witness in this case. That he narrated the incident to his mother on
the night he witnessed the killing on October 15, 1992. That on October 15, 1992
at 5:30 in the afternoon when he arrived, victim Andre Mar Masangkay, Romeo
Ortega, Serafin and one Boyet were already having [a] drinking spree and he
joined them. That accused Benjamin Ortega, Jr. and Manuel Garcia were not yet
in the place. That the stabbing happened between 12:00 midnight and 12:30 a.m.
That they drank gin with finger foods such as pork and shell fish. That he met the
victim Andre Mar Masangkay only on that occasion. That accused Benjamin
Ortega, Jr. and Manuel Garcia joined them at about 11:00 p.m. That there was
no altercation between Benjamin Ortega, Jr. and Manuel Garcia in one hand and
Andre Mar Masangkay, during the drinking session. That at about 12:30 a.m.
Andre Mar Masangkay answered the call of nature and went to the back portion
of the house. That he cannot see Andre Mar Masangkay from the place they
were having the drinking session. That he did not see what happened to Andre
Mar Masangkay. That he only heard Masangkay asking for help. That accused
Manuel Garcia was still in the drinking session when he heard Masangkay was
asking for help. That Benjamin Ortega, Jr. and Manuel Garcia are his friends and
neighbors. That when he heard Andre Mar Masangkay was asking for help, he
and Ariel Caranto ran to the back portion of the house and saw Benjamin Ortega,
Jr. on top of Andre Mar Masangkay and stabbing the latter. That Andre Mar
Masangkay was lying down with his back in the canal and Benjamin Ortega, Jr.
on top stabbing the former. That he did not see any injuries on Benjamin Ortega,
Jr. That he called Romeo Ortega to pacify his brother Benjamin, Jr. That he did
not do anything to separate Benjamin Ortega, Jr. and Masangkay. That he knows
that Andre Mar Masangkay was courting Raquel Ortega. That Raquel Ortega
asked permission from Andre Mar Masangkay when she left between 8:00 and
9:00 p.m. That there was no trouble that occurred during the drinking session.
PNP Superintendent Leonardo Orig substantially testified that Diosdado Quitlong
is his neighbor for about 9 years. That on October 16, 1992 at 5:00 in the
morning, he was summoned by Diosdado Quitlong and reported to him the
stabbing incident that occurred at Daangbakal near the subdivision he is living.
That he relayed the information to the Valenzuela Police Station and a police
team under police officer Param accompanied them to the place. That he asked
the police officers to verify if there is a body of person inside the well. That the
well was covered with stones and he asked the police officers to seek the help of
theneighbors (sic) to remove the stones inside the well. That after the stones
were removed, the body of the victim was found inside the well. That the lifeless
body was pulled out from the well. That the body has several stab wounds. That
he came to know the victim as Andre Mar Masangkay. That two men were
arrested by the police officers.
On cross-examination, he said that he saw the body when taken out of the well
with several stab wounds. That Diosdado Quitlong told him that he was drinking
with the victim and the assailants at the time of the incident. That Benjamin
Ortega, Jr. stabbed the victim while the latter was answering the call of nature.
NBI Medico Legal Officer Dr. Ludivico J. Lagat substantially testified that he
conducted [an] autopsy on the cadaver of Andre Mar Masangkay on October 16,
1992 at the Valenzuela Memorial Homes located at Macarthur Highway. That he
prepared the autopsy report and the sketch of human head and body indicating
the location of the stab wounds. That the cause of death is multiple stab wounds,
contributory, [a]sphyxia by submersion in water. That there were 13 stab wounds,
8 of which were on the frontal part of the body, 2 at the back and there were
contused abrasions around the neck and on the left arm. There was stab wound
at the left side of the neck. That the contused abrasion could be produced by
cord or wire or rope. That there is (an) incised wound on the left forearm. That
the stab wounds which were backward downward of the body involved the lungs.
That the victim was in front of the assailant. That the stab wound on the upper
left shoulder was caused when the assailant was in front of the victim. That the
assailant was in front of the victim when the stab wound near the upper left
armpit was inflicted as well as the stab wound on the left chest wall. That the stab
wound on the back left side of the body and the stab wound on the back right
portion of the body may be produced when the assailant was at the back of the
victim. That the assailant was in front of the victim when the stab wound[s] on the
left elbow and left arm were inflicted. That the large airway is filled with muddy
particles indicating that the victim was alive when the victim inhaled the muddy
particles. The heart is filled with multiple hemorrhage, loss of blood or decreased
of blood. The lungs is filled with water or muddy particles. The brain is pale due
to loss of blood. The stomach is one half filled with muddy particles which could
[have been] taken in when submerged in water.
On cross-examination, he said that he found 13 stab wounds on the body of the
victim. That he cannot tell if the assailant or the victim were standing. That it is
possible that the stab wounds was (sic) inflicted when both [referring to
participants] were standing or the victim was lying down and the assailant was on
top. That he cannot tell the number of the assailants.
Evidence for the Appellants
Appellant Manuel Garcia testified that in the early morning of October 15, 1992, he and his wife,
Maritess Garcia, brought their feverish daughter, Marjorie, to the Polo Emergency Hospital. He left
the hospital at seven o'clock in the morning, went home, changed his clothes and went to
work. 10 After office hours, he and Benjamin Ortega, Jr. passed by the canteen at their place of
work. After drinking beer, they left at eight o'clock in the evening and headed home. En route, they
chanced on Diosdado Quitlong alias Mac-mac and Andre Mar Masangkay, who invited them to
join their own drinking spree. Thereupon, Appellant Garcia's wife came and asked him to go home
because their daughter was still sick. To alleviate his daughter's illness, he fetched his mother-in-
law who performed a ritual called "tawas." After the ritual, he remained at home and attended to
his sick daughter. He then fell asleep but was awakened by police officers at six o'clock in the
morning of the following day.
Maritess Garcia substantially corroborated the testimony of her husband. She however added two
other participants in the drinking session aside from Diosdado Quitlong alias Mac-mac and Andre
Mar Masangkay, namely, a MangSerafin and Boyet Santos. 11
Benjamin Ortega, Jr. likewise substantially corroborated the testimony of Appellant Manuel
Garcia. 12 According to him, between eleven and twelve o'clock in the evening, Masangkay left the
drinking session. Thirty (30) minutes after Masangkay left, he also left the drinking place to
urinate. 13 He went behind the house where he saw Masangkay peeping through the room of his
sister Raquel. He ignored Masangkay and continued urinating. 14 After he was through,
Masangkay approached him and asked where his sister was. He answered that he did not know.
Without warning, Masangkay allegedly boxed him in the mouth, an attack that induced bleeding
and caused him to fall on his back. When he was about to stand up, Masangkay drew a knife and
stabbed him, hitting him on the left arm, thereby immobilizing him. Masangkay then gripped his
neck with his left arm and threatened to kill him. Unable to move, Ortega shouted for help.
Quitlong came and, to avoid being stabbed, grabbed Masangkay's right hand which was holding
the knife. Quitlong was able to wrest the knife from Masangkay and, with it, he stabbed
Masangkay ten (10) times successively, in the left chest and in the middle of the stomach. When
the stabbing started, Ortega moved to the left side of Masangkay to avoid being hit. 15 Quitlong
chased Masangkay who ran towards the direction of the well. Thereafter, Ortega went home and
treated his injured left armpit and lips. Then, he slept.
When he woke up at six o'clock the following morning, he saw police officers in front of his house.
Taking him with them, the lawmen proceeded to the well. From the railroad tracks where he was
asked to sit, he saw the police officers lift the body of a dead person from the well. He came to
know the identity of the dead person only after the body was taken to the police headquarters. 16
The Trial Court's Discussion
The trial court explained its basis for appellants' conviction as follows: 17
The Court is convinced that the concerted acts of accused Benjamin Ortega, Jr.,
Manuel Garcia, Jr. and one Romeo Ortega in lifting, carrying and dumping the
victim Andre Mar Masangkay who was still alive and breathing inside the deep
well filled with water, head first and threw big stones/rocks inside the well to
cover the victim is a clear indication of the community of design to finish/kill victim
Andre Mar Masangkay. Wounded and unarmed victim Andre Mar Masangkay
was in no position to flee and/or defend himself against the three malefactors.
Conspiracy and the taking advantage of superior strength were in attendance.
The crime committed by the accused is Murder.
Concert of action at the moment of consummating the crime and the form and
manner in which assistance is rendered to the person inflicting the fatal wound
may determine complicity where it would not otherwise be evidence (People vs.
Yu, 80 SCRA 382 (1977)).
Every person criminally liable for a felony is also civilly liable. Accused (m)ust
reimburse the heirs of victim Andre Mar Masangkay the amount of P35,000.00
for the funeral expenses of the deceased.
The Issues
In their ten-page brief, appellants fault the trial court with the
following: 18
I. The trial court erred in holding that there is conspiracy on the
basis of the prosecution's evidence that at the time both
accused and one Romeo Ortega lifted the body of Andrew
Masangkay from where he succumbed due to stab wounds and
brought and drop said body of Andrew Masangkay to the well to
commit murder;
II. The trial court erred in finding and holding that Andrew
Masangkay was still alive at the time his body was dropped in
the well;
III. The trial court erred in convicting Manuel Garcia and in not
acquitting the latter of the crime charged; and
IV. The trial court erred in not finding that if at all Benjamin
Ortega Jr. is guilty only of homicide alone.
On the basis of the records and the arguments raised by the appellants and the People, we
believe that the question to be resolved could be simplified thus: What are the criminal liabilities, if
any, of Appellants Ortega and Garcia?
The Court's Ruling
We find the appeal partly meritorious. Appellant Ortega is guilty only of homicide. Appellant Garcia
deserves acquittal.
First Issue: Liability of Appellant Ortega
The witnesses for the prosecution and defense presented conflicting narrations. The prosecution
witnesses described the commission of the crime and positively identified appellants as the
perpetrators. The witnesses for the defense, on the other hand, attempted to prove denial and
alibi. As to which of the two contending versions speaks the truth primarily rests on a critical
evaluation of the credibility of the witnesses and their stories. In this regard, the trial court held: 19
The Court has listened intently to the narration of the accused and their
witnesses and the prosecution witnesses and has keenly observed their behavior
and demeanor on the witness stand and is convinced that the story of the
prosecution is the more believable version. Prosecution eyewitness Diosdado
Quitlong appeared and sounded credible and his credibility is reinforced by the
fact that he has no reason to testify falsely against the accused. It was Diosdado
Quitlong who reported the stabbing incident to the police authorities. If Quitlong
stabbed and killed the victim Masangkay, he will keep away from the police
authorities and will go in hiding. . . .
Because the trial court had the opportunity to observe the witnesses' demeanor and deportment
on the stand as they rendered their testimonies, its evaluation of the credibility of witnesses is
entitled to the highest respect. Therefore, unless the trial judge plainly overlooked certain facts of
substance and value which, if considered, might affect the result of the case, his assessment of
credibility must be respected. 20
In the instant case, we have meticulously scoured the records and found no reason to reverse the
trial court's assessment of the credibility of the witnesses and their testimonies 21 insofar as
Appellant Ortega is concerned. The narration of Eyewitness Diosdado Quitlong appears to be
spontaneous and consistent. It is straightforward, detailed, vivid and logical. Thus, it clearly
deserves full credence.
In his testimony, Witness Dominador Quitlong mentioned nothing about Appellant Ortega's
availment of force excessively out of proportion to the means of defense available to the victim to
defend himself. Quitlong described the assault made by Appellant Ortega as follows: 26
ATTY. ALTUNA:
Q Will you please tell me the place and date wherein you have
a drinking spree with Andrew Masangkay and where you
witnessed a stabbing incident?
A It was on October 15, 1992, sir, at about 5:30 in the afternoon
we were drinking in the house of Mr. Benjamin Ortega, Sr.,
because the house of Benjamin Ortega Sr. and the house of his
son Benjamin Ortega, Jr. are near each other.
xxx xxx xxx
Q Mr. Witness, who were the companions of said persons,
Benjamin Ortega, Jr., Manuel Garcia, you (sic) in drinking in
said place?
A The other companions in the drinking session were Ariel
Caranto y Ducay, Roberto San Andres and Romeo Ortega.

On the other hand, in asserting alibi and denial, the defense bordered on the unbelievable. Q What about this victim, Andrew Masangkay, where was he at
Appellant Ortega claimed that after he was able to free himself from Masangkay's grip, he went that time?
home, treated his injuries and slept. 22This is not the ordinary reaction of a person assaulted. If
Ortega's version of the assault was true, he should have immediately reported the matter to the A Also the victim, Andrew Masangkay, he was also there.
police authorities, if only out of gratitude to Quitlong who came to his rescue. Likewise, it is difficult
to believe that a man would just sleep after someone was stabbed in his own backyard. Further, Q You said that the two accused, Manuel Garcia and Benjamin
we deem it incredible that Diosdado Quitlong would stab Masangkay ten (10) times successively, Ortega, Jr. arrived drunk and joined the group?
completely ignoring Benjamin Ortega, Jr. who was grappling with Masangkay. Also inconsistent
with human experience is his narration that Masangkay persisted in choking him instead of
defending himself from the alleged successive stabbing of Quitlong. 23 The natural tendency of a A Yes, sir.
person under attack is to defend himself and not to persist in choking a defenseless third person.
Q What happened next?
Murder or Homicide?
A While we were there together and we were drinking ...
Although treachery, evident premeditation and abuse of superior strength were alleged in the (interrupted by Atty. Altuna)
information, the trial court found the presence only of abuse of superior strength.
Q Who is that "we"?
We disagree with the trial court's finding. Abuse of superior strength requires deliberate intent on
the part of the accused to take advantage of such superiority. It must be shown that the accused A Referring to Benjamin Ortega, Jr., Manuel Garcia, Ariel
purposely used excessive force that was manifestly out of proportion to the means available to the Caranto, Romeo Ortega, Roberto San Andres, myself and
victim's defense. 24 In this light, it is necessary to evaluate not only the physical condition and Andrew Masangkay. Andrew Masangkay answer to a call of
weapon of the protagonists but also the various incidents of the event. 25
nature and went to the back portion of the house, and Benjamin
Ortega, Jr. followed him where he was.
Q What happened next?
A And afterwards we heard a shout and the shout said "Huwag,
tulungan n'yo ako".
Q From whom did you hear this utterance?
A The shout came from Andrew Masangkay.
Q After Benjamin Ortega, Jr. followed Andrew Masangkay to
answer a call of nature and after you heard "huwag, tulungan
n'yo ako" coming from the mouth of the late Andrew
Masangkay, what happened next?
A Ariel Caranto and I ran towards the back portion of the house.
Q And what did you see?
A And I saw that Benjamin Ortega, Jr. was on top of Andrew
Masangkay and he was stabbing Masangkay.
Q Will you please demonstrate to the Honorable Court how the
stabbing was done telling us the particular position of the late
Andrew Masangkay and how Benjamin Ortega, Jr. proceeded
with the stabbing against the late victim, Andrew Masangkay?
INTERPRETER:
(At this juncture, the witness demonstrating.)
Andrew Masangkay was lying down on a canal with his face up,
then Benjamin Ortega, Jr. was "nakakabayo" and with his right
hand with closed fist holding the weapon, he was thrusting this
weapon on the body of the victim, he was making downward
and upward motion thrust.
ATTY. ALTUNA: (To the witness)
Q How many times did Benjamin Ortega, Jr. stabbed Andrew
Masangkay?
A I cannot count the number of times.
It should be noted that Victim Masangkay was a six-footer, whereas Appellant Ortega, Jr. was only
five feet and five inches tall. 27 There was no testimony as to how the attack was initiated. The
accused and the victim were already grappling when Quitlong arrived. Nothing in the foregoing
testimony and circumstances can be interpreted as abuse of superior strength. Hence, Ortega is
liable only for homicide, not murder.
Second Issue: Liability of Appellant Manuel Garcia
Appellants argue that the finding of conspiracy by the trial court "is based on mere assumption and
conjecture . . ." 28 Allegedly, the medico-legal finding that the large airway was "filled with muddy
particles indicating that the victim was alive when the victim inhaled the muddy particles" did not
necessarily mean that such muddy particles entered the body of the victim while he was still alive.
The Sinumpaang Salaysay of Quitlong stated, "Nilubayan lang nang saksak nang mapatay na si
Andrew ni Benjamin Ortega, Jr." Thus, the prosecution evidence shows Masangkay was already
"dead" when he was lifted and dumped into the well. Hence, Garcia could be held liable only as an
accessory. 29
We do not agree with the above contention. Article 4, par. 1, of the Revised Penal Code states
that criminal liability shall be incurred by "any person committing a felony (delito) although the
wrongful act done be different from that which he intended." The essential requisites for the
application of this provision are that (a) the intended act is felonious; (b) the resulting act is
likewise a felony; and (c) the unintended albeit graver wrong was primarily caused by the actor's
wrongful acts. In assisting Appellant Ortega, Jr. carry the body of Masangkay to the well, Appellant
Garcia was committing a felony. The offense was that of concealing the body of the crime to
prevent its discovery, i.e. that of being an accessory in the crime of homicide. 30 Although
Appellant Garcia may have been unaware that the victim was still alive when he assisted Ortega in
throwing the body into the well, he is still liable for the direct and natural consequence of his
felonious act, even if the resulting offense is worse than that intended.
True, Appellant Garcia merely assisted in concealing the body of the victim. But the autopsy
conducted by the NBI medico-legal officer showed that the victim at that time was still alive, and
that he died subsequently of drowning.31That drowning was the immediate cause of death was
medically demonstrated by the muddy particles found in the victim's airway, lungs and
stomach. 32 This is evident from the expert testimony given by the medico-legal officer, quoted
below: 33
ATTY. ALTUNA:
Q Will you please explain this in simple language the last
portion of Exhibit N, beginning with "tracheo-bronchial tree", that
is sentence immediately after paragraph 10, 2.5 cms. Will you
please explain this?
A The trancheo-bronchial tree is filled with muddy particles.
Q I ask you a question on this. Could the victim have possibly
get this particular material?
A No, sir.
Q What do you mean by no?
A A person should be alive so that the muddy particles could be
inhaled.
Q So, in short, you are telling or saying to us that if there is no
inhaling or the taking or receiving of muddy particles at that
time, the person is still alive?
A Yes, sir.
Q Second point?
A The heart is pale with some multiple petechial hemorrhages
at the anterior surface.
Q And this may [be] due to stab wounds or asphyxia?
A These are the effects or due to asphyxia or decreased
amount of blood going to the heart.
Q This asphyxia are you referring to is the drowning?
A Yes, sir.
Q Next point is the lungs?
A The lungs is also filled with multiple petechial hemorrhages.
Q What could have caused this injury of the lungs?
A This is due to asphyxia or the loss of blood.
Q Are you saying that the lungs have been filled with water or
muddy particles?
A Yes, sir.
Q And, precisely, you are now testifying that due to stab
wounds or asphyxia, the lungs have been damaged per your
Report?
A Yes, sir.
Q Continuing this brain and other visceral organs, pale. What is
this?
A The paleness of the brain and other visceral organs is due to
loss of blood.
Q And, of course, loss of blood could be attributed to the stab
wound which is number 13?
A Yes, sir.
Q And the last one, under the particular point "hemothorax"?
A It indicates at the right side. There are around 1,400 cc of
blood that accumulate at the thoraxic cavity and this was
admixed with granular materials?
Q And what cause the admixing with granular materials on said
particular portion of the body?
A Could be muddy particles.
Q Due to the taking of maddy (sic) materials as affected by
asphyxia? Am I correct?
A It's due to stab wounds those muddy particles which set-in
thru the stab wounds.
Q So, because of the opening of the stab wounds, the muddy
particles now came in, in that particular portion of the body and
caused admixing of granular materials?
A Yes, sir.
Q Continuing with your report, particularly, the last two portions,
will you please explain the same?
A The hemoperitoneum there are 900 cc of blood that
accumulated inside the abdomen.
Q And what could have cause the same?
 A [T]he stab wound of the abdomen.
Q The last one, stomach 1/2 filled with muddy particles. Please
explain the same?
A The victim could have taken these when he was submerged
in water.
Q What is the take in?
A Muddy particles.
Q And he was still alive at that time?
A Yes, sir. (Emphasis supplied)
A Filipino authority on forensic medicine opines that any of the following medical findings may
show that drowning is the cause of death: 34
1. The presence of materials or foreign bodies in the hands of
the victim. The clenching of the hands is a manifestation of
cadaveric spasm in the effort of the victim to save himself from
drowning.
2. Increase in volume (emphysema aquosum) and edema of the
lungs (edema aquosum).
3. Presence of water and fluid in the stomach contents
corresponding to the medium where the body was recovered.
4. Presence of froth, foam or foreign bodies in the air passage
found in the medium where the victim was found.
5. Presence of water in the middle ear.
The third and fourth findings were present in the case of Victim Masangkay. It was proven
that his airpassage, or specifically his tracheo-bronchial tree, was filled with muddy
particles which were residues at the bottom of the well. Even his stomach was half-filled
with such muddy particles. The unrebutted testimony of the medico-legal officer that all
these muddy particles were ingested when the victim was still alive proved that the victim
died of drowning inside the well.
The drowning was the direct, natural and logical consequence of the felony that. Appellant Garcia
had intended to commit; it exemplifies praeter intentionem covered by Article 4, par. 1, of the
Revised Penal Code. Under this paragraph, a person may be convicted of homicide although he
had no original intent to kill. 35
In spite of the evidence showing that Appellant Garcia could be held liable as principal in the crime
of homicide, there are, however, two legal obstacles barring his conviction, even as an accessory
— as prayed for by appellants' counsel himself.
First. The Information accused Appellant Garcia (and Appellant Ortega) of "attack[ing],
assault[ing], and stab[bing] repeatedly with a pointed weapon on the different parts of the body
one ANDRE MAR MASANGKAY y ABLOLA." The prosecution's evidence itself shows that Garcia
had nothing to do with the stabbing which was solely perpetrated by Appellant Ortega. His
responsibility relates only to the attempted concealment of the crime and the resulting drowning of
Victim Masangkay. The hornbook doctrine in our jurisdiction is that an accused cannot be
convicted of an offense, unless it is clearly charged in the complaint or information.
Constitutionally, he has a right to be informed of the nature and cause of the accusation against
him. To convict him of an offense other than that charged in the complaint or information would be
a violation of this constitutional right. 36 Section 14, par. 2, of the 1987 Constitution explicitly
guarantees the following:
(2) In all criminal prosecutions, the accused shall be presumed innocent until the
contrary is proved, and shall enjoy the right to be heard by himself and
counsel, to be informed of the nature and cause of the accusation against him, to
have a speedy, impartial, and public trial, to meet the witnesses face to face, and
to have compulsory process to secure the attendance of witnesses and the
production of evidence in his behalf. However, after arraignment, trial may
proceed notwithstanding the absence of the accused provided that he has been
duly notified and his failure to appear is unjustifiable. (Emphasis supplied)
In People vs. Pailano, 37 this Court ruled that there can be no conviction for rape on a woman
"deprived of reason or otherwise unconscious" where the information charged the accused of
sexual assault "by using force or intimidation," thus:
The criminal complaint in this case alleged the commission of the crime through
the first method although the prosecution sought to establish at the trial that the
complainant was a mental retardate. Its purpose in doing so is not clear. But
whatever it was, it has not succeeded.
If the prosecution was seeking to convict the accused-appellant on the ground
that he violated Anita while she was deprived of reason or unconscious, such
conviction could not have been possible under the criminal complaint as worded.
This described the offense as having been committed by "Antonio Pailano, being
then provided with a scythe, by means of violence and intimidation, (who) did,
then and there, wilfully, unlawfully and feloniously have carnal knowledge of the
complainant, Anita Ibañez, 15 years of age, against her will'. No mention was
made of the second circumstance.
 Conviction of the accused-appellant on the finding that he had raped Anita while
she was unconscious or otherwise deprived of reason — and not through force
and intimidation, which was the method alleged — would have violated his right
to be informed of the nature and cause of the accusation against him. [Article IV,
Sec. 19, Constitution of 1973; now Article III, Sec. 14(2)] This right is
safeguarded by the Constitution to every accused so he can prepare an
adequate defense against the charge against him. Convicting him of a ground
not alleged while he is concentrating his defense against the ground alleged
would plainly be unfair and underhanded. This right was, of course, available to
the herein accused-appellant.
In People vs. Ramirez, [fn: 69 SCRA 144] we held that a person charged with
rape could not be found guilty of qualified seduction, which had not been alleged
in the criminal complaint against him. In the case of People vs. Montes, [fn: 122
SCRA 409] the Court did not permit the conviction for homicide of a person held
responsible for the suicide of the woman he was supposed to have raped, as the
crime he was accused of — and acquitted — was not homicide but rape. More to
the point is Tubb v. People of the Philippines, [fn: 101 Phil. 114] where the
accused was charged with the misappropriation of funds held by him in trust with
the obligation to return the same under Article 315, paragraph l(b) of the Revised
Penal Code, but was convicted of swindling by means of false pretenses, under
paragraph 2(b) of the said Article, which was not alleged in the information. The
Court said such conviction would violate the Bill of Rights.
By parity of reasoning, Appellant Garcia cannot be convicted of homicide through drowning in an
information that charges murder by means of stabbing.
Second. Although the prosecution was able to prove that Appellant Garcia assisted in "concealing
. . . the body of the crime, . . . in order to prevent its discovery," he can neither be convicted as an
accessory after the fact defined under Article 19, par. 2, of the Revised Penal Code. The records
show that Appellant Garcia is a brother-in-law of Appellant Ortega, 38 the latter's sister, Maritess,
being his wife. 39 Such relationship exempts Appellant Garcia from criminal liability as provided by
Article 20 of the Revised Penal Code:
Art. 20. Accessories who are exempt from criminal liability. — The penalties
prescribed for accessories shall not be imposed upon those who are such with
respect to their spouses, ascendants, descendants, legitimate, natural, and
adopted brothers and sisters, or relatives by affinity within the same degrees with
the single exception of accessories falling within the provisions of paragraph 1 of
the next preceding article.
On the other hand, "the next preceding article" provides:
Art. 19. Accessories. — Accessories are those who, having knowledge of the
commission of the crime, and without having participated therein, either as
principals or accomplices, take part subsequent to its commission in any of the
following manners:
1. By profiting themselves or assisting the
offender to profit by the effects of the crime.
2. By concealing or destroying the body of the
crime, or the effects or instruments thereof, in
order to prevent its discovery.
3. By harboring, concealing, or assisting in the
escape of the principal of the crime, provided
the accessory acts with abuse of his public
functions or whenever the author of the crime
is guilty of treason, parricide, murder, or an
attempt to take the life of the Chief Executive,
or is known to be habitually guilty of some
other crime.
Appellant Garcia, being a covered relative by affinity of the principal accused, Benjamin Ortega,
Jr., is legally entitled to the aforequoted exempting provision of the Revised Penal Code. This
Court is thus mandated by law to acquit him.
Penalty and Damages
The award of actual damages should be reduced to P31,790.00 from P35,000.00. The former
amount was proven both by documentary evidence and by the testimony of Melba Lozano, a
sister of the victim. 38 Of the expenses alleged to have been incurred, the Court can give credence
only to those that are supported by receipts and appear to have been genuinely incurred in
connection with the death of the victim. 39 However, in line with current jurisprudence, 40 Appellant
Ortega shall also indemnify the heirs of the deceased in the sum of P50,000.00. Indemnity
requires no proof other than the fact of death and appellant's responsibility therefor. 43
The penalty for homicide is reclusion temporal under Article 249 of the Revised Penal Code, which
is imposable in its medium period, absent any aggravating or mitigating circumstance, as in the
case of Appellant Ortega. Because he is entitled to the benefits of the Indeterminate Sentence
Law, the minimum term shall be one degree lower, that is, prision mayor.
WHEREFORE, premises considered, the joint appeal is PARTLY GRANTED. Appellant Benjamin
Ortega, Jr. is found GUILTY of homicide and sentenced to ten (10) years of prision
mayor medium, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion
temporal medium, as maximum. Appellant Ortega, Jr. is also ORDERED to pay the heirs of the
victim P50,000.00 as indemnity and P31,790.00 as actual damages. Appellant Manuel Garcia is
ACQUITTED. His immediate release from confinement is ORDERED unless he is detained for
some other valid cause.
SO ORDERED.
Narvasa, C.J., Davide, Jr., Melo and Francisco, JJ., concur.
 Republic of the Philippines as in this instance for more than a year, the accused is entitled to relief by a proceeding
SUPREME COURT in mandamus to compel a dismissal of the information, or if he be restrained of his liberty, by
Manila habeas corpus to obtain his freedom. (16 C.J., 439 et seq.; In the matter of Ford [1911], 160 Cal.,
334; U.S. vs. Fox [1880], 3 Montana, 512. See further our previous decision in Conde vs. Judge of
EN BANC First Instance, Fourteenth Judicial District, and the Provincial Fiscal of Tayabas, No. 21236.1

G.R. No. L-21741 January 25, 1924 The writ prayed for shall issue and the Provincial Fiscal of Tayabas shall abstain from further
attempts to prosecute the accused pursuant to informations growing out of the facts set forth in
previous informations, and the charges now pending before the justice of the peace of Lucena,
AURELIA CONDE, petitioner,
Tayabas, are ordered dismissed, with cost against the respondent fiscal. We append to our order
vs.
the observation that, without doubt, the Attorney-General, being fully cognizant of the facts of
PABLO RIVERA, acting provincial fiscal of Tayabas, and
record, will take such administrative action as to him seems proper to the end that incidents of this
FEDERICO M. UNSON, justice of the peace of Lucena, Tayabas, respondents.
character may not recur. So ordered.

Godofredo Reyes for petitioner. Araullo, C.J., Johnson, Street, Avanceña, Ostrand, Johns and Romualdez, JJ., concur.
Attorney-General Villa-Real for respondents.

MALCOLM, J.:

Aurelia Conde, formerly a municipal midwife in Lucena, Tayabas, has been forced to respond to
no less than five informations for various crimes and misdemeanors, has appeared with her
witnesses and counsel at hearings no less than on eight different occasions only to see the cause
postponed, has twice been required to come to the Supreme Court for protection, and now, after
the passage of more than one year from the time when the first information was filed, seems as far
away from a definite resolution of her troubles as she was when originally charged.

Philippine organic and statutory law expressly guarantee that in all criminal prosecutions the
accused shall enjoy the right to have a speedy trial. Aurelia Conde, like all other accused persons,
has a right to a speedy trial in order that if innocent she may go free, and she has been deprived
of that right in defiance of law. Dismissed from her humble position, and compelled to dance
attendance on courts while investigations and trials are arbitrarily postponed without her consent,
is palpably and openly unjust to her and a detriment to the public. By the use of reasonable
diligence, the prosecution could have settled upon the appropriate information, could have
attended to the formal preliminary examination, and could have prepared the case for a trial free
from vexatious, capricious, and oppressive delays.

Once before, as intimidated, the petitioner had to come to us for redress of her grievances. We
thought then we had pointed out the way for the parties. But it seems not. Once again therefore
and finally, we hope, we propose to do all in our power to assist this poor woman to obtain justice.
On the one hand has been the petitioner, of humble station, without resources, but fortunately
assisted by a persistent lawyer, while on the other hand has been the Government of the
Philippine Islands which should be the last to set an example of delay and oppression in the
administration of justice. The Court is thus under a moral and legal obligation to see that these
proceedings come to an end and that the accused is discharged from the custody of the law.

We lay down the legal proposition that, where a prosecuting officer, without good cause, secures
postponements of the trial of a defendant against his protest beyond a reasonable period of time,
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-62810 July 25, 1983
EULALIA MARTIN, petitioner,
vs.
GEN. FABIAN VER, CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES and GEN.
HAMILTON DIMAYA, JUDGE ADVOCATE GENERAL, respondents.
Arturo V. Romero for petitioner.
The Solicitor General for respondents.
PLANA, J.:
This is a petition for habeas corpus filed by Eulalia Martin on behalf of her husband, Pvt. Francisco
Martin.
Pvt. Martin was an enlisted man in the Philippine Army. On or about April 14, 1981, when he was
still in the service, he allegedly sold two grenades to one Rogelio Cruz at P50.00 each, one of
which exploded during a picnic in Laoag City on April 17, 1981 causing the death of three persons,
including Rogelio Cruz, and injuries to three others.
According to respondents, Pvt. Martin has admitted to Cpl. Lucio Tuppal, Philippine Army, having
sold the grenades to Rogelio Cruz in Laoag City, although this is denied by Pvt. Martin.
After an initial investigation conducted by the Laoag City PC and INP authorities, a report was
submitted to the Ministry of National Defense which referred the matter to the Chief of Staff, AFP,
who in turn directed the Inspector General to conduct another investigation.
On May 5, 1981, Pvt. Martin was arrested and confined (restricted to barracks) at Fort Bonifacio
pursuant to Article 70 of the Articles of War, infra. The following year, he was discharged from the
service effective as of May 5, 1982. On November 17, 1982 the instant petition was filed. The
following month, i.e., December 3, 1982, Pvt. Martin was charged for violation of the 85th and 97th
Articles of War, which read:
ART. 85. Waste or Unlawful Disposition of Military Property Issued to Soldiers.—
Any soldier who sells or wrongfully disposes of or willfully or through neglect
injures or losses any horse, arms, ammunition, accouterments, equipment,
clothing, or other property issued for use in the military service, shall be punished
as a court-martial may direct.
ART. 97. General Article.—Though not mentioned in these articles, all disorders
and neglects to the prejudice of good order and military discipline and all conduct
of a nature to bring discredit upon the military service shall be taken cognizance
of by a general or special or summary court-martial according to the nature and
degree of the offense, and punished at the discretion of such court.
The charge sheet stipulates the following charges:
CHARGE I: Violation of the 85th Article of War.
Specification: In that Private Martin assigned with the Headquarters and
Headquarters Service Battalion, First Infantry Division, Philippine Army on or
about 14 April 1981 at Laoag City wrongly disposed of by sale to Rogelio Cruz
two (2) grenades.
CHARGE II: Violation of the 97th Article of War.
Specification: In that Private Francisco Martin, ... on or about the month of April
1981 at Laoag City, unlawfully and without authority had in his possession two
(2) hand grenades thus committing an act prejudicial to good order and military
discipline and of a nature that will bring discredit to the military establishment.
The petitioner contends that having been discharged from the military service, he is no longer
subject to court-martial even if the offenses of which he is charged were committed while he was
still subject to military law. He therefore, concludes that his continued detention pursuant to Article
70 of the Articles of War (which authorizes the arrest/confinement of any person subject to military
law who is charged with an offense under the Articles of War) is illegal and he, accordingly, should
be released. This posture has no merit.
Generally, court-martial jurisdiction over persons in the military service of the Philippines ceases
upon discharge or other separation from such service. This however, is but a general rule. The
Articles of War in terms prescribe some exceptions designed to enhance discipline and good order
within the military organization. Thus, court-martial jurisdiction as to certain cases of fraud and
misappropriation of military hardware and other government property is not extinguished by
discharge or dismissal pursuant to the 95th Article of War.
ART. 95. Frauds Against the Government.—Any person subject to military law ...
Who steals, embezzles, knowingly and willingly misappropriates, applies to his
own use or benefit or wrongfully or knowingly sells or disposes of any ordnance,
arms, equipment, ammunition, clothing, subsistence, stores, money, or other
property of the Government furnished or intended for the military service thereof
...
 Shall, on conviction thereof, be punished by fine or imprisonment, or by such
other punishment as a court-martial may adjudge, or by any or all of said
penalties. And if any person, being guilty of any of the offenses aforesaid while in
the service of the Armed Forces of the Philippines or of the Philippine
Constabulary receives his discharge or is dismissed from the service, he shall
continue to be liable to be arrested and held for trial and sentence by a court-
martial in the same manner and to the same extent as if he had not received
such discharge nor been dismissed. (Emphasis supplied.)
It was on the basis of the foregoing legal provision, among others, that this Court sustained the
court-martial of the petitioner in De la Cruz vs. Alcaraz, et al. after his reversion to inactive status,
for misappropriation of public funds committed while he was still in the active military service. The
Court, thru Mr. Justice J. B. L. Reyes, said:
There is no question that although appellant had been reverted to inactive
(civilian) status in the reserve force of the Philippine Army, he is still amenable to
investigation and court-martial under the Artitles of War by the Philippine Navy
for alleged acts of misappropriation of government funds committed while he was
still in the active military service. As correctly held by the Court below, appellant's
case falls within the provisions of Article 95 of the Articles of War
(Commonwealth Act No. 408, as amended), which provides as follows: ...
The lower Court did not, therefore, err in refusing to enjoin appellant's
investigation by the naval authorities on charges that he had misappropriated
public property while he was still in the service of the Philippine Navy, specially
since petitioner admits that he is still a member of the Reserve Force." (99 Phil.
130 at 131-132.).
We conclude that despite his discharge from the military service, the petitioner is still subject to
military law for the purpose of prosecuting him for illegal disposal of military property, and his
preventive detention thereunder — pending trial and punishment for the said offense committed
when he was in the military service — is lawful.
Alternatively, petitioner maintains that even assuming that the jurisdiction of the military authorities
to try and punish him was not abated by his discharge from military service, the denial to him of his
constitutional right to speedy trial (he having been confined from the date of his arrest on May 5,
1981 up to December 3, 1982 when he was formally charged — a period of I year and 7 months)
entitles him to be released on habeas corpus.
The fundamental rights guaranteed in the Constitution apply to all persons, including those subject
to military law, (Aquino vs. Military Commission No. 2, 63 SCRA 546; Cayaga vs. Tangonan, 66
SCRA 216; Go vs. Olivas, 74 SCRA 230; Romero vs. Ponce Enrile, 75 SCRA 429.) To quote Ex
Parte Milligan, 4 Wall. 2:
The Constitution is a law for rulers and for people equally in war and in peace
and covers with the shield of its protection all classes of men at all times and
under all circumstances.
It would indeed be parodoxical if military men who are called upon in times of the gravest national
crises to lay down their lives in defense of peace and freedom would be the very people to be
singled out for denial of the fundamental rights for which they risk their lives.
For denial of a constitutional right to the accused, the hearing tribunal may lose its jurisdiction to
conduct further proceedings. In such a case, habeas corpus would lie to obtain the release of the
accused. (Gumabon vs. Director, 37 SCRA 420; Acevedo vs. Sarmiento, 36 SCRA 247; Aquino
vs. Ponce Enrile, 59 SCRA 183; Flores vs. People, 61 SCRA 331; Dacuyan vs. Ramos, 85 SCRA
487, Ventura vs. People, 86 SCRA 188; Romero vs. Ponce Enrile, 75 SCRA 429; Aquino vs.
Ponce Enrile, supra; Go vs. Olivas, supra.)
In the case at bar, the petitioner claims that he has been denied his constitutional right of speedy
trial because the charges against him were filed only about 1 year and 7 months after his arrest.
There was no such denial. As stated by this Court in a per curiam decision: "x... the test of
violation of the right to speedy trial has always been to begin counting the delay from the time the
information is filed, not before the filing. The delay in the filing of the information, which in the
instant case has not been without reasonable cause, is therefore not to be reckoned with in
determining whether there has been a denial of the right to speedy trial." (People vs. Orsal, 113
SCRA 226 at 236.)
At any rate, whether or not one has been denied speedy trial is not susceptible to precise
quantification. At best, the constitutional right of speedy trial is relative, consistent with reasonable
delays, taking into account the circumstances of each case. As expressed in Barker vs. Wingo, 33
L. Ed 2d 101:
... the right to a speedy trial is a more vague and generically different concept
than other constitutional rights guaranteed to accused persons and cannot be
quantified into a specified number of days or months, and it is impossible to
pinpoint a precise time in the judicial process when the right must be asserted or
considered waived ...
... a claim that a defendant has been denied his right to a speedy trial is subject
to a balancing test, in which the conduct of both the prosecution and the
defendant are weighed, and courts should consider such factors as length of the
delay, reason for the delay, the defendant's assertion or non-assertion of his
right, and prejudice to the defendant resulting from the delay, in determining
whether defendant's right to a speedy trial has been denied ...
Returning to the case at hand, the criminal act imputed to the petitioner unfortunately resulted in
the death of three persons (including Rogelio Cruz who allegedly bought the handgrenades from
the petitioner) and very serious injuries to three others whose testimony is vital to the preferment
of charges and prosecution of the petitioner. It is therefore not unreasonable to heed the claim of
respondents that the delay complained of was occasioned by the unavailability of witnesses, a
claim which has not at all been challenged or denied by the petitioner.
WHEREFORE, the petition for habeas corpus is dismissed, without prejudice to the petitioner
seeking his provisional release on bail from the military authorities or the Ministry of National
Defense. No costs.

SO ORDERED.

Fernando, C.J., Makasiar, Aquino, Concepcion, Jr., Guerrero, Abad Santos, De Castro, Melencio-
Herrera, Escolin, Vasquez, Relova and Gutierrez, Jr., JJ., concur.

Teehankee, J., concurs in the result.


FIRST DIVISION
G.R. No. 159098 October 27, 2006
SPS. HENRY and ROSARIO UY, petitioners,
vs.
HON. JUDGE ARSENIO P. ADRIANO, in his capacity as Pairing Judge of RTC, Br. 64, Tarlac
City, CITY PROSECUTOR ALIPIO C. YUMUL and PIÑAKAMASARAP CORP., respondents.
DECISION
CALLEJO, SR., J.:
Challenged in this instant Petition for Review on Certiorari is the Decision1 of the Court of Appeals
(CA) in CA-G.R. SP No. 62103 which affirmed the Orders of the Regional Trial Court (RTC) of
Tarlac City2 denying the motion to quash the Information in Criminal Case Nos. 6512-94.
Based on a confidential information that petitioner Henry Uy had been engaged in manufacturing,
delivering, and selling "fake" Marca Piña soy sauce,3 Orlando S. Bundoc, Intelligence Officer II of
the Economic Intelligence and Investigation Bureau (EIIB), applied for a search warrant 4 for unfair
competition which was granted on February 14, 1994. When the search warrant was implemented
on even date, Atty. Francisco R. Estavillo, agent of the National Bureau of Investigation (NBI) in
Tarlac, seized fifty-five (55) bottles of label Marca Piña soy sauce.5
Consequently, a criminal complaint was filed in the Municipal Trial Court (MTC) of Tarlac City on
March 23, 1994, charging petitioner Henry Uy with violation of Article 189 (Unfair Competition) of
the Revised Penal Code.6
On November 8, 1994, private respondent Piñakamasarap Corporation moved to amend the
criminal charge by including Henry's spouse, petitioner Rosario Uy. 7 The court granted the motion
in its Order dated November 15, 1994 and admitted the amended criminal complaint which reads:
The undersigned, LUIS E. GONZALES, Comptroller of PIÑAKAMASARAP
CORPORATION of 583 Sta. Veronica St., Novaliches, Quezon City, and by authority of
the said corporation, under oath accuses HENRY UY, ROSARIO GUTIERREZ UY and a
certain JOHN DOE of Violation of Article 189 of the Revised Penal Code, committed as
follows:
That on or about February 14, 1994, and for sometimes (sic) prior thereto, in Municipality
of Tarlac, Tarlac, Philippines, the said Rosario G. Uy accused, being then the owner of a
business establishment with principal address at Phase I, Northern Hills Subdivision, San
Vicente, Tarlac, Tarlac, and her co-accused, husband, HENRY UY, and a certain John
Doe, did then and there, willfully, unlawfully and feloniously conspire and confederate
together and help one another engaged in unfair competition with the intention of
deceiving and defrauding the public in general and the consuming public in general and
PIÑAKAMASARAP Corporation, the manufacturer and bottler of soy sauce under the
name "MARCA PIÑA," a [trademark] duly registered with the Philippine Patent Office and
sell or offer for sale soy sauce manufactured by them with the brand name "Marca Piña"
which is a bastard version of the trademark, and using the bottles of Piñakamasarap
Corporation and substituted the contents thereof with those manufactured by the accused
and passing to the public that said products to be the products of Piñakamasarap
Corporation which is not true, thereby inducing the public to believe that the above-
mentioned soy sauce sold or offered for sale by said accused are genuine "MARCA
PIÑA" soy sauce manufactured by PIÑAKAMASARAP CORPORATION, and of inferior
quality to the damage and prejudice of the Piñakamasarap Corporation.
Contrary to law.
Tarlac, Tarlac, November 8, 1994.8
After preliminary examination of the prosecution witnesses, the court found probable cause to
indict petitioners.9 On January 30, 1995, the court issued a warrant of arrest against
petitioners.10 They were released after posting a cash bond on February 1, 1995.11 On July 10,
1995, petitioners were arraigned, assisted by counsel, and pleaded not guilty to the
charge.12 Petitioners, through counsel, waived the pre-trial conference on October 25, 1995. The
initial trial was set on November 27, 1995.13
However, it was only on February 26, 1996 that the first witness of the prosecution, Atty. Estavillo
of the NBI, testified. In the meantime, in October 1996, this Court issued Administrative Order
(A.O.) No. 104-96 providing, inter alia, that the RTC shall have exclusive jurisdiction over
violations of Articles 188 and 189 of the Revised Penal Code and Republic Act (R.A.) No. 166, as
amended, thus:
VIOLATIONS OF INTELLECTUAL PROPERTY RIGHTS SUCH AS, BUT NOT LIMITED
TO, VIOLATIONS OF ART. 188 OF THE REVISED PENAL CODE (SUBSTITUTING AND
ALTERING TRADEMARKS, TRADE NAMES, OR SERVICE MARKS), ART. 189 OF THE
REVISED PENAL CODE (UNFAIR COMPETITION, FRAUDULENT REGISTRATION OF
TRADEMARKS, TRADE NAMES, OR SERVICE MARKS, FRAUDULENT DESIGNATION
OF ORIGIN, AND FALSE DESCRIPTION), P.D. NO. 49 (PROTECTION OF
INTELLECTUAL PROPERTY RIGHTS), P.D. NO. 87 (AN ACT CREATING THE
VIDEOGRAM REGULATORY BOARD), R.A. NO. 165, AS AMENDED (THE PATENT
LAW), AND R.A. NO. 166, AS AMENDED (THE TRADEMARK LAW) SHALL BE TRIED
EXCLUSIVELY BY THE REGIONAL TRIAL COURTS IN ACCORDANCE WITH THE
ESTABLISHED RAFFLE SCHEME EXCEPT THOSE COVERED BY ADMINISTRATIVE
ORDER NO. 113-95 DATED 2 OCTOBER 1995, IN WHICH CASE, THE DESIGNATED
 REGIONAL TRIAL COURTS SHALL CONTINUE TO OBSERVE THE PROVISIONS
THEREIN.
CONSIDERING THAT JURISDICTION FOR VIOLATIONS OF INTELLECTUAL
PROPERTY RIGHTS HEREINBEFORE MENTIONED IS NOW CONFINED
EXCLUSIVELY TO THE REGIONAL TRIAL COURTS, THE DESIGNATION OF
METROPOLITAN TRIAL COURTS AND MUNICIPAL TRIAL COURTS IN CITIES
UNDER ADMINISTRATIVE ORDER NO. 113-95 IS DELETED AND WITHDRAWN.
Despite the administrative order of the Court, the MTC continued with the trial. Gloria P. Tomboc,
Analyst of the Bureau of Food and Drugs Administration (BFAD), testified on August 25, 1997. In
the meantime, Articles 188 and 189 of the Revised Penal Code were amended by R.A. No. 8293,
otherwise known as the Intellectual Property Code. Two years thereafter, Alfredo Lomboy,
supervisor of Piñakamasarap Corporation, testified on August 30, 1999.
On December 12, 1999, the prosecution filed its formal offer of evidence. 14 In the meantime, on
October 22, 1999, Atty. Joselito L. Lim had moved to withdraw his appearance as counsel for
petitioners;15 the court had granted the motion on October 25, 1999;16 and the new counsel of
petitioners, Balbastro and Associates, had entered its appearance on November 24, 1999.17
On February 15, 2000, the court resolved to admit the documentary evidence of the prosecution
except Exhibit "E" which was rejected by the court, and Exhibits "I" and "J" which were
withdrawn.18 The prosecution rested its case.
On March 10, 2000, petitioners, through their new counsel, filed a Motion for Leave to File
Demurrer to Evidence.19The court granted the motion. In their demurrer,20 petitioners argued that a
judgment of acquittal is proper since no sufficient evidence was presented to prove beyond
reasonable doubt that they are guilty of the offense charged. The prosecution was not able to
establish that they gave their goods the general appearance of another manufacturer or dealer
and that they had the intent to defraud the public or Piñakamasarap Corporation. Moreover, under
both R.A. No. 166, as amended, and its repealing law, R.A. No. 8293, the RTC had jurisdiction
over the crime charged; hence, the amended complaint should be quashed.
The prosecution opposed the demurrer to evidence, contending that it had presented proof
beyond reasonable doubt of the guilt of petitioners for the crime charged. The prosecution
maintained that, under Batas Pambansa (B.P.) Blg. 129, the MTC had jurisdiction over the crime
charged in the light of the imposable penalty for unfair competition under Article 189 of the
Revised Penal Code.21
In its Resolution dated May 16, 2000,22 the court held that there was prima facie evidence which, if
unrebutted or not contradicted, would be sufficient to warrant the conviction of petitioners.
However, the court ruled that the RTC was vested by law with the exclusive and original
jurisdiction to try and decide charges for violation of R.A. No. 166 as amended by R.A. No. 8293.
Accordingly, the court denied the demurrer to evidence and ordered the records of the case
forwarded to the Office of the Provincial Prosecutor for appropriate action.
The City Prosecutor forwarded the case records to the Clerk of Court of RTC, Br. 63, Tarlac
City.23 On June 19, 2000, the RTC ordered the City Prosecutor to conduct the requisite preliminary
investigation and to file the necessary Information if he found probable cause against petitioners.
The City Prosecutor found probable cause based on the findings of the MTC in its May 16, 2000
Resolution that there was a prima facie case against petitioners.24 He filed an Information in the
RTC on July 18, 2000 for violation of Article 189 of the Revised Penal Code. 25 The Information
reads:
That on or about February 14, 1994 and sometime prior thereto, at Tarlac City, and within
the jurisdiction of this Honorable Court, the accused, being the owner of a business
establishment with principal address at Phase I, Northern Hills Subd., San Vicente, Tarlac
City, the accused, conspiring, confederating and helping one another did then and there
willfully, unlawfully and feloniously, in unfair competition with the intention of deceiving
and defrauding the public in general and the PIÑAKAMASARAP CORPORATION, the
name "MARCA PIÑA," and sell or offer for sale soy sauce manufactured by them with the
brand name "Marca Piña," which is a version of the trademark, and using the bottles of
Piñakamasarap Corporation and substituted the contents thereof with those
manufactured by the accused and passing to the public the products, thereby inducing
the public to believe that the soy sauce sold or offered for sale by the accused are
genuine "MARCA PIÑA" soy sauce, to the damage and prejudice of PIÑAKAMASARAP
CORPORATION.
CONTRARY TO LAW.26
Petitioners filed a Motion to Quash the Information,27 alleging that their rights to due process and
speedy trial had been violated. Other than the notice of hearing sent by the court, they never
received a subpoena which required them to submit their evidence during a preliminary
investigation. Petitioners further averred that certain delays in the trial are permissible, especially
when such delays are due to uncontrollable circumstances or by accident. In this case, the
inordinate delay was obviously brought by the lackadaisical attitude taken by the prosecutor in
prosecuting the case. Petitioners pointed out that there was already a delay of six (6) long years
from the time the initial complaint was filed, and that they had already been prejudiced. Their life,
liberty and property, not to mention their reputation, have been at risk as there has been no
determination of the issue of whether or not to indict them. Thus, the case should be dismissed in
order to free them from further capricious and oppressive dilatory tactics of the prosecution.
Indeed, their right to a speedy trial is part of due process, both of which are guaranteed by no less
than the fundamental law itself. They insisted that they should not be made to unjustly await the
prosecution of the charges against them.
In opposition, the City Prosecutor clarified that subpoenas were sent to the parties during the
preliminary investigation. In fact, petitioner Henry Uy appeared and submitted the case for
resolution without submitting additional evidence. Also, the proceedings in the MTC were not part
of preliminary investigation but the trial on the merits.28
On September 8, 2000, the court issued an Order denying the motion to quash.29 The court ruled
that:
 While there must have been a protracted trial since the case was originally filed before
the Municipal Trial Court, a period of about six (6) years, as the accused contends,
nevertheless the delay if any, is partly attributable to the accused. [They] allowed the
prosecution to rest the evidence in chief before raising the issue of lack of jurisdiction.
Had the accused immediately raised the issue of lack of jurisdiction, this case could have
been filed anew before the RTC. The accused allowed themselves to be arraigned
without raising the issue of jurisdiction. In fact, the prosecution [had] rested its evidence in
chief.
The parties may[,] however[,] stipulate in the pre-trial that all the proceedings taken before
the Municipal Trial Court are automatically reproduced and are considered part of the
prosecution's evidence, so that the trial will now be with respect to the reception of
defense evidence.30
Petitioners filed a motion for reconsideration of the Order31 which the trial court denied.32 At the
same time, the court granted the oral motion of the prosecution to amend the Information to reflect
in its caption that the law violated by the accused is R.A. No. 8293 and not Article 189 of the
Revised Penal Code. On October 12, 2000, the City Prosecutor filed an amended Information.
The inculpatory portion reads:
That on or about February 14, 1994 and sometimes prior thereto, at Tarlac City, and
within the jurisdiction of this Honorable Court, the accused, being the owner of a business
establishment with principal address at Phase I, Northern Hills Subd., San Vicente, Tarlac
City, the accused, conspiring, confederating and helping one another did then and there
willfully, unlawfully and feloniously, in Violation of Sec. 168 of R.A. No. 8293with the
intention of deceiving and defrauding the public in general and the PIÑAKAMASARAP
CORPORATION, the name "MARCA PIÑA," and sell or offer for sale soy sauce
manufactured by them with the brand name "Marca Piña," which is a version of the
trademark, and using the bottles of Piñakamasarap Corporation and substituted the
contents thereof with those manufactured by the accused and passing to the public the
products, thereby inducing the public to believe that the soy sauce sold or offered for sale
by the accused are genuine "MARCA PIÑA" soy sauce, to the damage and prejudice of
PIÑAKAMASARAP CORPORATION.
CONTRARY TO LAW.33
Petitioners then filed before the CA a petition for certiorari with prayer for temporary restraining
order and preliminary injunction,34 on the sole ground that respondent judge committed grave
abuse of discretion in denying their motion to quash based on violation of their right to a speedy
trial. They claimed that there was no active effort on their part to delay the case as they merely
attended the scheduled hearings and participated in the preliminary investigation. On the contrary,
it is the prosecution that has the unmitigated obligation to immediately file the Information with the
proper court. The public prosecutor is supposedly knowledgeable of the existing laws and
jurisprudence since his office has the delicate task of prosecuting cases in behalf of the State.
Under the Rules on Criminal Procedure, he is the officer responsible for the direction and control
of criminal prosecutions. In the case at bar, the public prosecutor failed in his bounden duty by
neglecting to file the case in the court of competent jurisdiction. The prosecution could not
advance a single reason to justify the procedural error and instead pointed its accusing finger to
petitioners who are just ordinary citizens. Their failure to call the attention of the prosecution is
neither acquiescence nor consent on their part. While their former lawyer was obviously lackluster
in their defense, the act of the counsel should not deprive them of their constitutional right to a
speedy trial. For petitioners, the prosecution's blunder in procedure and ignorance of existing laws
and jurisprudence far outweigh whatever minimal participation, if any, they had in the protracted
proceedings.
On March 21, 2003, the CA dismissed the petition.35 The fallo of the decision reads:
WHEREFORE, premises considered, the instant petition is hereby DISMISSED for lack of
merit. The Orders dated September 8, 2000 and October 9, 2000 of the public respondent
are hereby DISMISSED.36
In dismissing the petition, the appellate court ratiocinated that:
[T]he right to a speedy disposition of a case, like the right to speedy trial, is deemed
violated only when the proceeding is attended by vexatious, capricious and oppressive
delays" (Castillo v. Sandiganbayan, 328 SCRA 69, 76); "or when unjustified
postponements of the trial are asked for and secured, or when without cause or justifiable
motive a long period of time is allowed to elapse without the party having his case tried."
(Binay v. Sandiganbayan, 316 SCRA 65, 93)
In the instant case, aside from the fact that it took almost six years for the prosecution to
complete the presentation of its evidence, petitioners failed to show that the delay, if ever
there is any, was caused solely by the prosecution. Neither did the petitioners show that
the proceedings before the Municipal Trial Court was attended by vexatious, capricious
and oppressive delays attributable to the prosecution or that unjustified postponements of
the trial were asked for and secured by the prosecution to the prejudice of the petitioners.
The fact alone that the prosecution had consumed six (6) years to complete its
presentation of evidence, without any allegation or proof that the prosecution has caused
unreasonable delays or that the proceeding was attended by vexatious, capricious and
oppressive delays, to Our minds is not sufficient for the application upon the petitioners of
their Constitutional right to speedy trial. "A mere mathematical reckoning of the time
involved, therefore, would not be sufficient. In the application of the Constitutional
guarantee of the right to speedy disposition of cases, particular regard must also be taken
of the facts and circumstances peculiar to each case." (Binay v. Sandiganbayan, supra, p.
93). In the case at bar, petitioners failed to present, for Our perusal, the circumstances
attending the trial of their case before the Municipal Trial Court.
The only controversy of the instant case lies in the fact that the Municipal Trial Court
which heard the case has no jurisdiction over the said case. While it may be conceded
that the prosecution erred in not filing the information against the petitioners to a proper
court, still, petitioners are not blameless in this regard. Petitioners, through their counsel,
had actively participated in the proceedings before the Municipal Trial Court. Petitioners
had to wait for almost six (6) years to elapse before they brought to the attention of the
Municipal Trial Court that it had no jurisdiction to hear the case against the petitioners.
Petitioners have, by reason of their participation in the proceedings before the Municipal
 Trial Court and also by reason of their silence and inaction, allowed the Municipal Trial
Court to proceed with a case for six (6) years despite absence of jurisdiction of such court
to hear the case. We cannot allow the petitioners to reap from their acts or omissions. "A
litigation is not a game of technicalities in which one, more deeply schooled and skilled in
the subtle art of movement and position, entraps and destroys the other." (Fortune
Corporation v. Court of Appeals, 229 SCRA 355, 364)
"The constitutional privilege was never intended as furnishing a technical means for
escaping trial." (Esguerra v. Court of First Instance of Manila, et al., 95 Phil. 609, 611-
612) "The right of an accused to a speedy trial is guaranteed to him by the Constitution,
but the same shall not be utilized to deprive the State of a reasonable opportunity of fairly
indicting criminals. It secures rights to an accused, but it does not preclude the rights of
public justice. (Domingo v. Sandiganbayan, 322 SCRA 655, 667)37
Petitioners filed a motion for reconsideration, which the appellate court denied. 38
Petitioners sought relief from this Court on a petition for review, alleging that:
THE HONORABLE COURT OF APPEALS COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT
AFFIRMED THE COURT A QUO'S DENIAL OF PETITIONERS' MOTION TO QUASH,
BASED ON VIOLATION OF THEIR RIGHT TO SPEEDY TRIAL (SEC. 16, ART. 3, 1987
CONSTITUTION).39
Petitioners reiterate their arguments in the CA to support the present petition. They aver that:
In this case, the prosecution took six (6) long and grueling years before it filed an
Information with a competent court, despite the fact that jurisdiction of the Regional Trial
Courts over trademark cases remained unchanged since the birth of the Trademark Law.
Surely, this inordinate delay can be considered a "vexatious, capricious and oppressive
delay" which is constitutionally impermissible in this jurisdiction pursuant to the right of the
accused to speedy trial.
Indeed, petitioners have been prejudiced. Their lives, liberty and property, not to mention
their reputation have all been put at risk for so long.
The public prosecutor failed to explain the reason for the delay. Truth to tell, even at this
last stage, the public prosecutor chooses to remain silent why it had unjustifiably taken
him too long to file this case before a competent court. Unfortunately, the Court of
Appeals deliberately ignored this glaring flaw committed by the public prosecutor and
instead focused on petitioners' alleged negligence in not raising the issue of jurisdiction
earlier. It further ruled that due to this fact, petitioners are thus not entirely blameless for
the delay of the trial.
Truth to tell, these findings of the Court of Appeals are palpably erroneous.
Firstly, it is elementary that jurisdiction over the subject matter may be raised at any stage
of the proceedings. This is because no amount of waiver can confer jurisdiction on a court
over an offense for which such jurisdiction has not been conferred by law in the first
place.
Secondly, even assuming that petitioners failed to raise the issue of jurisdiction earlier,
still, they could not be estopped from invoking their right to speedy trial. The delay to be
considered "partly attributable" to the accused (which could work against him in invoking
the right to speedy trial) presupposes an active effort of the defendant to delay the case
(Manabat v. Timbang, 74 Phil. 295). There is no violation of the right to speedy trial where
the delay is imputable to the accused (Solis v. Agloro, 63 SCRA 370). Here, it was the
prosecution that had the unmitigated obligation to file the Information with the correct
court, within a reasonable time. It did not. Such blunder was fatal to its cause.
To emphasize, petitioners need not even call the attention of the prosecution that it had
failed to file the case with the proper court, contrary to the opinion of the Court of Appeals.
x x x40
xxxx
Although petitioners agree with the Court of Appeals that mere mathematical reckoning of
time would not be sufficient for the application of the right to speedy trial, still, the public
prosecutor's blunder should already be considered "vexatious, capricious and oppressive"
warranting the dismissal of the case.
Indeed, to condone the public prosecutor's manner of having directed this case, just like
what the Court of Appeals did, might give rise to a disturbing precedent where the
constitutional right of the accused could very well be set aside to justify the mishandling of
the prosecution by officers of the State.41
Section 1(h), Rule 115 of the Revised Rules of Criminal Procedure provides that the accused is
entitled to a speedy, impartial and public trial. Section 2, Rule 119 of the said Rules provides that
trial, once commenced, shall be continuous until terminated:
Sec. 2. Continuous trial until terminated; postponements. – Trial, once commenced, shall
continue from day to day as far as practicable until terminated. It may be postponed for a
reasonable period of time for good cause.
The court shall, after consultation with the prosecutor and defense counsel, set the case
for continuous trial on a weekly or other short-term trial calendar at the earliest possible
time so as to ensure speedy trial. In no case shall the entire trial period exceed one
hundred eighty (180) days from the first day of trial, except as otherwise authorized by the
Supreme Court.
The time limitations provided under this section and the preceding section shall not apply
where special laws or circulars of the Supreme Court provide for a shorter period of trial.
However, any period of delay resulting from a continuance granted by the court motu proprio, or
on motion of either the accused or his counsel, or the prosecution, if the court granted the
continuance on the basis of its findings set forth in the order that the ends of justice is served by
taking such action outweigh the best interest of the public and the accused on a speedy trial, shall
be deducted.
The trial court may grant continuance, taking into account the following factors:
(a) Whether or not the failure to grant a continuance in the proceeding would likely make
a continuation of such proceeding impossible or result in a miscarriage of justice; and
(b) Whether or not the case taken as a whole is so novel, unusual and complex, due to
the number of accused or the nature of the prosecution, or that it is unreasonable to
expect adequate preparation within the periods of time established therein.
In addition, no continuance under section 3(f) of this Rule shall be granted because of
congestion of the court's calendar or lack of diligent preparation or failure to obtain
available witnesses on the part of the prosecutor.42
Under the Constitution and Section 1(7) of Rule 115 of the Revised Rules of Criminal Procedure,
the accused shall be entitled to have a speedy and impartial trial. "Speedy trial" is a relative term
and necessarily a flexible concept.43In determining whether the right of the accused to a speedy
trial was violated, the delay should be considered, in view of the entirety of the
proceedings.44 Indeed, mere mathematical reckoning of the time involved would not suffice45 as
the realities of everyday life must be regarded in judicial proceedings which, after all, do not exist
in a vacuum.46
Apart from the constitutional provision and Section 115, Section 1(i) of the Rules of Criminal
Procedure, A.O. No. 113-95 of the Court provides that:
The trial of cases for violation of Intellectual Property Rights covered by this
Administrative Order shall be immediately commenced and shall continue from day to day
to be terminated as far as practicable within sixty (60) days from initial trial. Judgment
thereon shall be rendered within thirty (30) days from date of submission for decision.
More than a decade after the 1972 leading U.S. case of Barker v. Wingo47 was promulgated, this
Court, in Martin v. Ver,48 began adopting the "balancing test" to determine whether a defendant's
right to a speedy trial has been violated. As this test necessarily compels the courts to approach
speedy trial cases on an ad hoc basis, the conduct of both the prosecution and defendant are
weighed apropos the four-fold factors, to wit: (1) length of the delay; (2) reason for the delay; (3)
defendant's assertion or non-assertion of his right; and (4) prejudice to defendant resulting from
the delay.49 None of these elements, however, is either a necessary or sufficient condition; they
are related and must be considered together with other relevant circumstances. These factors
have no talismanic qualities as courts must still engage in a difficult and sensitive balancing
process.50
A. Length of the Delay
The length of delay is to some extent a "triggering mechanism." Until there is some delay, which is
presumptively prejudicial, there is no necessity to inquire into the other three factors.
Nevertheless, due to the imprecision of the right to a speedy trial, the length of delay that will
provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case.51
B. Reason for the Delay
Under Section 9, Rule 119 of the Revised Rules of Criminal Procedure, the accused have the
burden to prove the factual basis of the motion to quash the Information on the ground of denial of
their right to a speedy trial.52 They must demonstrate that the delay in the proceedings is
vexatious, capricious, and oppressive; or is caused by unjustified postponements that were asked
for and secured; or that without cause or justifiable motive, a long period of time is allowed to
elapse without the case being tried.53 On the other hand, the prosecution is required to present
evidence establishing that the delay was reasonably attributed to the ordinary processes of justice,
and that petitioners suffered no serious prejudice beyond that which ensued after an inevitable
and ordinary delay.54
The records bear out the contention of petitioners that there had been a considerable delay in the
trial in the MTC. Upon motion/agreement of petitioners and the prosecution, or because of the joint
absences, the trial of the case was delayed for more than 11 months. 55 In its own instance, the
MTC also reset some of the trial dates in order to correct mistakes in scheduling or because the
witnesses were not duly notified,56 thus, delaying the trial of the case for an additional seven
months. Even petitioners contributed to the delay of more than five months – they or their former
counsel were either absent or moved for postponements to attend another pending case or due to
health concerns.57 The delay of about 21 months, covering 15 re-settings, can be attributed to the
prosecution. However, except in five instances, when the trial was reset because the private
prosecutor had to attend to some professional58 and personal matters,59 the delays were brought
about because of the recent engagement of legal service,60 absence of the public
prosecutor,61 and unavailability of documents62 and witnesses.63
Not only the petitioners but the State as well were prejudiced by the inordinate delay in the trial of
the case. It took the prosecution more than four years to rest its case after presenting only three
witnesses. Had the prosecution, petitioner and the trial court been assiduous in avoiding any
inordinate delay in the trial, the prosecution could have rested its case much earlier. The court
even failed to order the absent counsel/prosecutor/witnesses to explain/justify their absences or
cite them for contempt. The speedy trial mandated by the Constitution and the Revised Rules of
Criminal Procedure is as much the responsibility of the prosecution, the trial court and petitioners
to the extent that the trial is inordinately delayed, and to that extent the interest of justice is
prejudiced.
The case before the RTC should not be dismissed simply because the public prosecution did not
move for the dismissal of the case in the MTC based on A.O. No. 104-96 declaring that the RTC
has exclusive jurisdiction over cases under Articles 188 and 189 of the Revised Penal Code; or for
failure of the MTC to motu proprio dismiss the case on that ground. The City Prosecutor then
believed in good faith, albeit erroneously, that under R.A. No. 7691 which amended B.P. Blg. 129,
the MTC had jurisdiction over the crime charged.
The mistake of the City Prosecutor and the failure of the MTC to dismiss the case motu proprio
should not prejudice the interest of the State to prosecute criminal offenses and, more importantly,
defeat the right of the offended party to redress for its grievance. Significantly, petitioners do not
attribute to the prosecution or to the MTC any malice aforethought or conscious disregard of their
right to a speedy trial; nor have substantially proven the same by clear and convincing evidence.
Hence, absent showing of bad faith or gross negligence, delay caused by the lapse of the
prosecution is not in itself violative of the right to a speedy trial.
Different weights should be assigned to various reasons by which the prosecution justifies the
delay. A deliberate attempt to delay the trial in order to hamper the defense should be weighed
heavily against the prosecution. A more neutral reason such as negligence or overcrowded courts
should be weighed less heavily but nevertheless should be considered since the ultimate
responsibility for such circumstances must rest with the government rather than with defendant.64
In Corpuz v. Sandiganbayan,65 the Court had carefully balanced the societal interest in the case,
which involved the so-called "tax credit certificates scam," and the need to give substance to the
defendants' constitutional rights. In said suit, we upheld the decision of the Sandiganbayan
(Special Fourth Division) that the dismissal of the cases was too drastic, precipitate and
unwarranted. While the Court recognized that defendants were prejudiced by the delay in the
reinvestigation of the cases and the submission of a complete report by the Ombudsman/Special
Prosecutor to the Sandiganbayan, we underscored that the State should not be prejudiced and
deprived of its right to prosecute cases simply because of the ineptitude or nonchalance of the
Ombudsman/Special Prosecutor. "An overzealous or precipitate dismissal of a case may enable
defendant, who may be guilty, to go free without having been tried, thereby infringing the societal
interest in trying people accused of crimes by granting them immunization because of legal
error."66
The same observation was made in Valencia v. Sandiganbayan.67 Here, the Court noted the
haphazard manner by which the prosecutor handled the litigation for the State when he rested the
case without adducing evidence for the prosecution and simply relying on the Joint Stipulation of
Facts, which the accused did not even sign before its submission to the Sandiganbayan. In
allowing the prosecution to present additional evidence and in dismissing the claim of the accused
that his constitutional right to a speedy trial had been violated, we ruled:
As significant as the right of an accused to a speedy trial is the right of the State to
prosecute people who violate its penal laws. The right to a speedy trial is deemed violated
only when the proceeding is attended by vexatious, capricious and oppressive delays x x
x [T]o erroneously put premium on the right to speedy trial in the instant case and deny
the prosecution's prayer to adduce additional evidence would logically result in the
dismissal of the case for the State. There is no difference between an order outrightly
dismissing the case and an order allowing the eventual dismissal thereof. Both would set
a dangerous precedent which enables the accused, who may be guilty, to go free without
having been validly tried, thereby infringing the interest of the society.68
Certainly, the right to speedy trial cannot be invoked where to sustain the same would result in a
clear denial of due process to the prosecution. It should not operate in depriving the State of its
inherent prerogative to prosecute criminal cases or generally in seeing to it that all those who
approach the bar of justice is afforded fair opportunity to present their side. 69 For it is not only the
State; more so, the offended party who is entitled to due process in criminal cases. 70 In essence,
the right to a speedy trial does not preclude the people's equally important right to public
justice.71 Thus, as succinctly decreed in State v. McTague:72
The constitutional and statutory provisions for a speedy trial are for the protection of the
defendant, but that does not mean that the state is the only one that may initiate action.
There is really no reason for the courts to free an accused simply because a dilatory
prosecutor has 'gone to sleep at the switch' while the defendant and his counsel rest in
silence. These solicitous provisions are not to be used as offensive weapons, but are for
the benefit of defendants who claim their protection. They are a shield, and they 'must not
be left hanging on the wall of the armory.' It is for the protection of personal rights, not to
embarrass the administration of the criminal law nor to defeat public justice.
Be that as it may, the conduct of the City Prosecutor and the MTC must not pass without
admonition. This Court must emphasize that the State, through the court and the public
prosecutor, has the absolute duty to insure that the criminal justice system is consistent with due
process and the constitutional rights of the accused. Society has a particular interest in bringing
swift prosecutions, and the society's representatives are the ones who should protect that interest.
The trial court and the prosecution are not without responsibility for the expeditious trial of criminal
cases. The burden for trial promptness is not solely upon the defense. The right to a speedy trial is
constitutionally guaranteed and, as such, is not to be honored only for the vigilant and the
knowledgeable.73
C. Petitioners' Assertion of the Right
The assertion of the right to a speedy trial is entitled to strong evidentiary weight in determining
whether defendant is being deprived thereof. Failure to claim the right will make it difficult to prove
that there was a denial of a speedy trial.74
Except in only one instance in this case,75 the records are bereft of any evidence that petitioners,
through counsel, have bothered to raise their objection to the several re-setting of the trial dates.
This is not unexpected since, as already shown, the reasons for the delay are not in themselves
totally inexcusable or unreasonable. Moreover, petitioners actively participated in the trial when
the prosecution presented its evidence, as they scrutinized the documentary evidence and cross-
examined the witnesses. Until the filing of the motion to quash in the RTC, they never contested
the prosecutorial proceedings nor timely challenged the pendency of the case in the MTC.
While it is true that lack of jurisdiction may be assailed at any stage of the proceedings, such
defense must be seasonably raised at the earliest possible opportunity. Otherwise, active
participation in the trial would estop a party from later challenging such want of jurisdiction.76
In the same vein, one's failure to timely question the delay in the trial of a case would be an
implied acceptance of such delay and a waiver of the right to question the same. Except when
otherwise expressly so provided, the speedy trial right, like any other right conferred by the
Constitution or statute, may be waived when not positively asserted.77 A party's silence may
amount to laches.78 The right to a speedy trial is a privilege of the accused. If he does not claim it,
he should not complain. R.A. No. 8493 (Speedy Trial Act of 1998) is a means of enforcing Section
14(2), Article III of the Constitution.79 The spirit of the law is that the accused must go on record in
the attitude of demanding a trial or resisting delay. If he does not do this, he must be held, in law,
to have waived the privilege.
This Court cannot subscribe to petitioners' untiring argument that, being "ordinary citizens," they
should not be made to suffer from the "lackluster" performance of their former counsel who failed
to recognize the MTC's want of jurisdiction. Too often we have held that a client is bound by the
acts, mistakes or negligence of his counsel.80 This is, as it should be, since a counsel has the
implied authority to do all acts which are necessary or, at least, incidental to the prosecution and
management of the suit in behalf of his client. Any act performed within the scope of his general
and implied authority is, in the eyes of the law, regarded as the act of the client.81 If the rule were
otherwise, there would be no end to litigation so long as a new counsel could be employed who
would allege and show that the prior counsel had not been sufficiently diligent, experienced, or
learned.82 It would enable every party to render inutile an adverse order or decision through the
simple expedient of alleging gross negligence on the part of the counsel. 83 Every shortcoming of a
counsel could be the subject of challenge by his client through another counsel who, if he is also
found wanting, would likewise be disowned by the same client through another counsel, and so on
ad infinitum.84 Proceedings would then be indefinite, tentative and at times, subject to reopening
by the simple subterfuge of replacing counsel.85
While the rule admits of certain exceptions,86 we find none present in this case. Other than his
obvious failure to assert lack of jurisdiction, Atty. Lim undeniably represented the cause of his
clients in the MTC proceedings. Interestingly, their new counsel, wittingly or unwittingly, raised the
issue of jurisdiction only four months after it entered its appearance,87 thus, adding to the delay.
D. Prejudice to the Petitioners
In the Barker case,88 the different interests of a defendant which may be affected by the violation
of the right to a speedy trial were identified. It was held that prejudice should be assessed in the
light of the interests of a defendant which the speedy trial right was designed to protect, namely:
(1) to prevent oppressive pretrial incarceration; (2) to minimize anxiety and concern of the
accused; and (3) to limit the possibility that the defense will be impaired. Of these, the most
serious is the last, because the inability of a defendant to adequately prepare his case skews the
fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious.
There is also prejudice if defense witnesses are unable to recall accurately events of the distant
past. Loss of memory, however, is not always reflected in the record because what has been
forgotten can rarely be shown. Even if an accused is not incarcerated prior to trial, he is still
disadvantaged by restraints on his liberty and by living under a cloud of anxiety, suspicion, and
often hostility.89 After all, arrest is a public act that may seriously interfere with the defendant's
liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial
resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his
family and friends.90
Again, a perusal of the records failed to reveal that the delay in bringing petitioners to trial in a
court of competent jurisdiction caused them any prejudice tantamount to deprivation of their right
to a speedy trial. Petitioners in this case were not subjected to pretrial incarceration, oppressive or
otherwise, thus eliminating the first Barker consideration bearing on prejudice.
As to the minimization of anxiety and concern of the accused, there is no showing that petitioners
suffered undue pressures in this respect. Mere reference to a general asseveration that their "life,
liberty and property, not to mention reputation" have been prejudiced is not enough. There must
be conclusive factual basis, as this Court cannot rely on pure speculation or guesswork. Surely, a
pending criminal case may cause trepidation but, as stressed in Barker, the standard here is
minimization, not necessarily elimination of the natural consequences of an indictment. While this
is not to be brushed off lightly, it is not by itself sufficient to support a claim of denial of the right to
a speedy trial.
There is no factual basis for the claim of petitioners that we are not supplied with any specific
allegation in the record, nor witnesses or evidence may become unavailable because of the
delays in this case. To repeat, the claim of impairment of defense because of delay must be
specific and not by mere conjecture. Vague assertions of faded memory will not suffice. Failure to
claim that particular evidence had been lost or had disappeared defeats speedy trial claim.
As neither the specific types of prejudice mentioned in Barker nor any others have been brought to
the Court's attention, we are constrained to dismiss petitioners' claim. The passage of time alone,
without a significant deprivation of liberty or impairment of the ability to properly defend oneself, is
not absolute evidence of prejudice. The right to a speedy trial is not primarily intended to prevent
prejudice to the defense caused by the passage of time; that interest is protected primarily by the
due process clause and the statutes of limitations.91
In several cases where it is manifest that due process of law or other rights guaranteed by the
Constitution or statutes has been denied, this Court has not faltered to accord the so-called
"radical relief" to keep accused from enduring the rigors and expense of a full-blown trial.92 In this
case, however, there appears no persuasive, much less compelling, ground to allow the same
relief for absence of clear and convincing showing that the delay was unreasonable or arbitrary
and was seasonably objected to by petitioners.
IN LIGHT OF ALL THE FOREGOING, the instant petition is DENIED for lack of merit. The March
21, 2003 Decision and July 17, 2003 Resolution of the Court of Appeals are AFFIRMED. The
Regional Trial Court, Branch 64, Tarlac City, is directed to proceed with the trial on the merits of
the criminal case with all reasonable and judicious dispatch consistent with the right of petitioners
to a speedy trial. No costs.
SO ORDERED.
Panganiban, C.J. (Chairperson), Ynares-Santiago, Austria-Martinez, and Chico-Nazario,
JJ., concur.

FIRST DIVISION
G.R. No. 109271 March 14, 2000
RICARDO CASTILLO, DEMETRIO CABISON JR., and RODOLFO AGDEPPA, petitioners,
vs.
HONORABLE SANDIGANBAYAN (SECOND DIVISION), and PEOPLE OF THE PHILIPPINES,
represented by HONORABLE CONRADO VASQUEZ, OMBUDSMAN, respondents.
YNARES-SANTIAGO, J.:
Before this Court is a Petition for Certiorari assailing two Orders dated February 18, 19931 and
March 8, 19932 of the Sandiganbayan's Second Division denying petitioners' Motion to Dismiss
and Motion for Reconsideration.
On August 25, 1986, concerned employees of the Commission on Audit (COA) filed a Complaint
before the Tanodbayan,3 against Ricardo Castillo, Rodolfo Agdeppa and Demetrio Cabison Jr.,
COA Auditor VIII, COA Auditor II, and COA Auditor III, respectively, all assigned at the National
Housing Authority (NHA), for alleged "submittal of initial very derogatory reports which became the
basis for the filing of cases with the Tanodbayan and the reversals of their initial recommendations
for contractors." Petitioners were notified of the Complaint on September 22, 1986 when they were
directed by the Tanodbayan to file their counter-affidavits, which they did on September 30, 1986.
In a resolution dated October 30, 1987, the Tanodbayan found prima facie case against
petitioners and accordingly recommended the filing of an Information against them for violation of
Section 3(e) of the Anti-Graft and Corrupt Practices Act (RA 3019).4
On November 27, 1987, petitioners promptly filed a Motion for Reinvestigation. 5 On March 21,
1988, they filed a Motion to Resolve their Motion for Reinvestigation.6
Without acting upon the Motion for Reinvestigation and Motion to Resolve Motion for
Reinvestigation, an Information was filed on November 5, 1990, before the Sandiganbayan, which
reads:
That on or about August 5, 1986 or prior and subsequent thereto, in Quezon City, Metro
Manila, Philippines and within the jurisdiction of this Honorable Court, accused namely,
Ricardo R. Castillo, Rodolfo M. Agdeppa and Demetrio M. Cabison Jr., all public officers
being then COA Auditor VIII, COA Auditor II and COA Auditor III, respectively, taking
advantage of their official positions, while in the performance or discharge of their
administrative official functions, with evident bad faith and manifest partiality, conspiring,
confederating and confabulating with each other, did then and there willfully, unlawfully
and fraudulently cause undue injury, damage and prejudice to the Government of the
Republic of the Philippines, to wit: that two contracts were entered into by the NHA
management with two private contractors relative to the complete development of Phase
V-A Packages 3 & 4 which is being constructed by Sarmiento Construction Co., and
likewise Phase IX Packages 7 & 7-A which is being constructed by the Supra
Construction Co., both constructions are located at the Tala Estate Sites & Services, by
causing to prepare, submit, issue and sign in the different inventory
reports/recommendation on various occasions that Sarmiento Construction had an
overpayment in the amount of P362,591.98 for Phase V-A Packages 3 & 4 but later on
said accused changed their inventory reports/recommendation and subsequently
readjusted this as overpayment on physical work thereby prejudicing the government on
account of accused's constant changes/reversals in the inventory reports prepared,
signed and submitted by them; whereas in the second contract with Supra Construction,
accused issued an inventory report by stating thereon that said contractor had a work
deficiency in the amount of P788,806.94 but refraining from taking appropriate action on
account of P1,873,091.40 withheld on Tala to pay a refund order on a Tondo contract
issued by the COA main office. The said accused raised the deficiency in the amount of
P855,281.50. Later on, another inventory report was issued and prepared by a Tri-Partite
Team Committee composed of COA, NHA and the contractors stating a work deficiency
in the amount of P352,121.40 only. Despite previous inventory reports/recommendation
by the accused citing different amounts and another amount by the Tri-Partite Team
Committee said accused later stated that the final deficiencies of Supra Construction is no
longer P855,281.58 but was reduced only to P70,596.37, which reductions in the
contractors' final deficiencies were not justified thereby giving unwarranted benefits,
preference and advantage to the above-mentioned contractor to the damage and
prejudice of the government in the amount of P231,523.00 and to the Sarmiento
Construction for inventoried accomplishment were not duly credited by the said accused. 7
Trial on the merits thereafter ensued. After the prosecution rested its case, petitioners filed a
Demurrer to Evidence but the same was denied by the Sandiganbayan in a Resolution dated
December 11, 1992.8 Petitioners' Motion for Reconsideration was likewise denied in a Resolution
dated January 20, 1993.9
Thereafter, petitioners filed a Motion to Dismiss 10 dated February 15, 1993 citing lack of
jurisdiction and violation of due process, but the same was denied by the Sandiganbayan.
Petitioners' Motion Reconsideration 11 was also denied.
Hence, this petition for certiorari and prohibition, raising the following grounds:
The Honorable Respondent Sandiganbayan committed grave abuse of discretion in not
dismissing the Information notwithstanding that there was a violation of petitioners'
constitutional rights of "due process" and "speedy disposition of cases" and there was use
of the strong arm of the law in an oppressive and vindictive manner against the
petitioners.
1. Unexplained and unjustified delay of three (3) years before an Information is filed
before the Honorable Respondent Sandiganbayan counting from the date of the
resolution of the Ombudsman recommending the prosecution of the petitioners for
violation of Rep. Act No. 3019 (or a total of four (4) years from initial investigation up to
filing of information);
 2. Motion for Reinvestigation and Motion to Resolve the Motion for Reinvestigation filed
by the petitioners before the Office of the Honorable Respondent Ombudsman were not
acted upon;
3. No reason or explanation was made by the prosecution on the delay in the filing of
Information;
4. With no plausible explanation on hand, the petitioners are thus inclined to reason out,
or even suspect, that there is connection between such delay and their past and
contemporaneous official acts;
5. The lapse of three (3) years or a total of four (4) years from start of investigation up to
filing of Information may result in the destruction of affirmative evidence tending to
establish the innocence of the petitioners and that the passage of time may have
produced an unfavorable effect on their defense;
6. Violation of constitutional rights divests the court of jurisdiction;
7. Lack of jurisdiction of the court may be raised at any time;
8. Criminal prosecution may be enjoined in order to afford adequate protection to
constitutional rights and to prevent the use of the strong arm of the law in an oppressive
and vindictive manner;
9. Subject of instant petition are the Orders of the Honorable of Respondent
Sandiganbayan denying the Motion to Dismiss of petitioners for violation of their
constitutional rights and the use against them of the strong arm of the law in an
oppressive and vindictive manner.
Petitioners submit that the Ombudsman oppressed and discriminated against them by not issuing
any notice, reply or order denying their Motion or Reinvestigation as well as their Motion to
Resolve their Motion for Reconsideration. They argue that the Ombudsman should have granted
outright their Motion for Reinvestigation in view of the ruling in Zaldivar
v. Sandiganbayan 12 wherein this Court held, thus:
Under the 1987 Constitution, the Ombudsman (as distinguished from the incumbent
Tanodbayan) is charged with the duty to:
Investigate on its own, or on complaint by any person, any act or omission of any public
official, employee, office or agency, when such act or omission appears to be illegal,
unjust, improper, or inefficient." (emphasis omitted)
xxx xxx xxx
Now then, inasmuch as the aforementioned duty is given to the Ombudsman, the
incumbent Tanodbayan (called Special Prosecutor under the 1987 Constitution and who
is supposed to retain the powers and duties NOT GIVEN to the Ombudsman) is
clearly without authority to conduct preliminary investigations and to direct the filing of
criminal cases with the Sandiganbayan, except upon orders of the Ombudsman. This
right to do so was lost effective February 2, 1987. From that time, he has been divested of
such authority.
Petitioners' contention is misleading. In the aforecited case, this Court clearly held that the
authority of the Tanodbayan to conduct preliminary investigations and to direct the filing of criminal
cases was lost effective February 2, 1987. The inference, therefore, of such holding is that the
Tanodbayan had such authority prior to February 2, 1987. In this case, the Tanodbayan issued
petitioners a subpoena on September 22, 1986 directing them to file their counter-affidavits, which
the latter complied with on September 30, 1986. In short, the preliminary investigation was
conducted by the Tanodbayan before he lost his authority to do so.
Hence, there was no need for the Ombudsman to conduct another preliminary investigation as the
one conducted by the former Tanodbayan was valid and legal. Presumably, the new Ombudsman
recognized the results of the preliminary investigation conducted by the then Tanodbayan and
adopted the conclusions reached therein when he ordered the filing of an Information against
petitioners.
Consequently, there was no need for the Ombudsman to act on the petitioners' Motion for
Reinvestigation. As stated, there was no need for the Ombudsman to conduct another preliminary
investigation.
Petitioners also submit that they were deprived of their constitutional right to a speedy trial by
reason of the delay in the filing of the Information by the Ombudsman. They contend that the
Sandiganbayan abused its discretion in not dismissing the Information filed against them on the
ground that "there was unexplained and unjustified delay of more than three (3) years before an
information was filed against them from the filing of the complaint on August 25, 1986 up to the
filing of the Information on November 5, 1990." In fine, they point out that considering that the
preliminary investigation was concluded as early as October 30, 1987, the first Ombudsman
constituted under the 1987 Constitution should have filed the Information as soon as he was
appointed on June 6, 1988. Instead, it took more than two years and 3,386 cases before Criminal
Case No. 16240 was filed against them on November 5, 1990. In other words, petitioners argue
that since the Resolution of the Ombudsman recommending the filing of the Information was
issued on October 30, 1987, then the Information should have been filed immediately thereafter,
considering that even before the promulgation of the Zaldivar case on April 27, 1988, thousands of
Informations had been filed. 13
Petitioners' contention is without merit.
In Cojuangco Jr. v. Sandiganbayan, 14 this Court has held that the constitutional guarantee set
forth in Section 16, Article III of the 1987 Constitution, 15 of "(t)he right to a speedy disposition of a
case, like the right to speedy trial, is deemed violated only when the proceeding is attended by
vexatious, capricious, and oppressive delays." ". . . (T)he concept of speedy disposition of cases is
a relative term and must necessarily be a flexible concept. Hence, the doctrinal rule is that in the
determination of whether that right has been violated, the factors that may be considered and
balanced are the length of delay, the reason for such delay and the assertion or failure to assert
such right by the accused, and the prejudice caused by the delay." 16
As pointed out by petitioners, the complaint was filed before the Tanobayan on August 25, 1986.
On October 30, 1987, a Resolution was issued finding a prima facie case against petitioners and
recommending the filing of an Information with the Sandiganbayan. However, it was only on
November 5, 1990 when the Information was filed. Admittedly, it took three (3) years for the
Ombudsman to file the Information against petitioners from the date of the Resolution
recommending the filing thereof.
In explaining the delay in the filing of the Information, however, the Office of the Solicitor General
averred, as follows:
It will be noted that the normal operations of the Office of the Special Prosecutor was
affected by the Decision of this Honorable Court in Zaldivar
v. Sandiganbayan and Zaldivar v. Gonzalez, 160 SCRA 843 dated April 27, 1988, where
it was ruled that the incumbent Tanodbayan lost his right to conduct preliminary
investigation and to direct the filing of criminal cases with the Sandiganbayan effective
February 2, 1987. As a result, complaints (including that involved in the present petition),
resolutions and other legal papers awaiting action during that period remained pending
the appointment of an Ombudsman.
When the Ombudsman was appointed in 1988, it took some time still before his Office
could become fully constituted and operational. Because of the unavoidable delay caused
by the aforementioned circumstances, the corresponding Information in the criminal case
involved was filed and approved only in 1990.
In addition, it is clearly apparent from the figures cited by petitioners that the Sandiganbayan was
burdened with a heavy caseload.1âwphi1 Parenthetically, this Court has taken judicial cognizance
of the fact that the ever increasing caseload of courts has affected the speedy disposition of cases
pending before the Sandiganbayan. 19
While petitioners certainly have the right to a speedy disposition of their case, the structural
reorganization of the prosecutorial agencies, the procedural changes brought about by
the Zaldivar case as well as the Sandiganbayan's heavy caseload certainly are valid reasons for
the delay in the disposition of petitioners' case. For those reasons, the delay certainly cannot be
considered as vexatious, capricious and oppressive. Neither is it unreasonable nor inordinate.
WHEREFORE, in view of the foregoing, the instant petition is DENIED and the two Orders dated
February 18, 1993 and March 8, 1993 of the Sandiganbayan's Second Division in Criminal Case
No. 16240 are AFFIRMED. The Sandiganbayan is DIRECTED to proceed with dispatch in the
disposition of this case.1âwphi1.nêt
No costs.
SO ORDERED.
Davide, Jr., C.J., Puno and Kapunan, JJ., concur.
Pardo, J., on official business abroad.

Prescinding from the foregoing, this Court finds no violation of petitioners' right to a speedy
disposition of their case. The delay was not vexatious, capricious, nor oppressive, considering the
factual milieu of this case, namely the structural reorganizations and procedural changes brought
about by frequent amendments of procedural laws in the initial stages of this case. The complaint
was filed on August 25, 1986. On October 30, 1987, the Ombudsman issued a Resolution finding
a prima facie case and recommending the filing of an Information. Meanwhile, on April 27, 1988,
the Zaldivar case was promulgated holding that the Tanodbayan lost his authority to conduct
preliminary investigations and to direct the filing of Informations with the Sandiganbayan effective
February 2, 1987. Then on November 5, 1990, the Information against petitioners was filed.

In the case Binay v. Sandiganbayan and Magsaysay v. Sandiganbayan, 17 this Court has held that:

A mere mathematical reckoning of the time involved, therefore, would not be sufficient. In
the application of the constitutional guarantee of the right to speedy disposition of cases,
particular regard must also be taken of the facts and circumstances peculiar to each case.

In Alvizo v. Sandiganbayan, 18 this Court has reiterated that it has taken judicial cognizance of the
frequent amendments of procedural laws by presidential decrees, the structural reorganizations in
existing prosecutorial agencies and the creation of new ones by executive fiat, resulting in
changes of personnel, preliminary jurisdiction, functions and powers of prosecuting agencies.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-30104 July 25, 1973
HON. GREGORIO. N. GARCIA, Judge of the City Court of Manila, and FRANCISCO
LORENZANA, petitioners,
vs.
HON. FELIX DOMINGO, Judge of the Court of First Instance of Manila, EDGARDO CALO
and SIMEON CARBONNEL, respondents.
Andres R. Narvasa, Manuel V. Chico and Felipe B. Pagkanlungan for petitioners.
Rafael S. Consengco for respondent Calo, et al.
Respondent Judge in his own behalf.
FERNANDO, J.:
The pivotal question in this petition for certiorari and prohibition, one which thus far has remained
unresolved, is the meaning to be accorded the constitutional right to public trial.1 More specifically,
did respondent Judge commit a grave abuse of discretion in stigmatizing as violative of such a
guarantee the holding of the trial of the other respondents2 inside the chambers of city court Judge
Gregorio Garcia named as the petitioner.3 That was done in the order now impugned in this suit,
although such a procedure had been agreed to beforehand by the other respondents as
defendants, the hearings have been thus conducted on fourteen separate occasions without
objection on their part, and without an iota of evidence to substantiate any claim as to any other
person so minded being excluded from the premises. It is thus evident that what took place in the
chambers of the city court judge was devoid of haste or intentional secrecy. For reasons to be
more fully explained in the light of the facts ascertained — the unique aspect of this case having
arisen from what turned out to be an unseemly altercation, force likewise being employed, due to
the mode in which the arrest of private petitioner for a traffic violation was sought to be effected by
the two respondent policemen thus resulting in charges and counter-charges with eight criminal
cases being tried jointly by city court Judge in the above manner — we rule that there was no
transgression of the right to a public trial, and grant the petition.
It was alleged and admitted in the petition: "In Branch I the City Court of Manila presided over by
petitioner Judge, there were commenced, by appropriate informations all dated January 16, 1968,
eight (8) criminal actions against respondent Edgardo Calo, and Simeon Carbonnel and Petitioner
Francisco Lorenzana, as follows: a. Against Edgardo Calo (on complaint of Francisco Lorenzana)
(1) Criminal Case No. F-109192, also for slight physical injuries; (2) Criminal Case No. F-109192,
alsofor slight physical injuries; and (3) Criminal Case No. F-109193, for maltreatment; b. Against
Simeon Carbonnel (id.) (1)Criminal Case No. F-109197, for maltreatment; (2) Criminal Case No.
F-109196, for slight physical injuries; and (3) Criminal Case No. F-109198, for light threats;
(c) Against Francisco Lorenzana (on complaint of Calo and Carbonnel) (1) Criminal Case No. F-
109201, for violation of Sec. 887 of the Revised Ordinances of Manila (resisting an officer); and (2)
Criminal Case No. F-109200, for slander."4The above was followed by this recital: "The trial of the
aforementioned cases was jointly held on March 4, 1968, March 18, 1968, March 23, 1968, March
30, 1968, April 17, 1968, April 20, 1968, May 4,1968, May 11, 1968, June 1, 1968, June 15, 1968,
June 22, 1968, June 29, 1968, August 3, 1968 and August 10, 1968. All the fourteen (14) trial
dates — except March 4 and 18, and April 17, 1968 — fell on a Saturday. This was arranged by
the parties and the Court upon the insistence of respondents Calo and Carbonnel who, as police
officers under suspension because of the cases, desired the same to be terminated as soon as
possible and as there were many cases scheduled for trial on the usual criminal trial days
(Monday, Wednesday and Friday), Saturday was agreed upon as the invariable trial day for said
eight (8) criminal cases."5 Also this: "The trial of the cases in question was held, with the
conformity of the accused and their counsel, in the chambers of Judge Garcia." 6 Then came these
allegations in the petition: "During all the fourteen (14) days of trial, spanning a period of several
months (from March to August, 1968), the accused were at all times represented by their
respective counsel, who acted not only in defense of their clients, but as prosecutors of the
accusations filed at their clients' instance. There was only one (1) day when Atty. Consengco,
representing respondent Calo and Carbonnel, was absent. This was on April 20, 1968. But at the
insistence of Pat. Carbonnel, the trial proceeded, and said respondent cross-examined one of the
witnesses presented by the adverse party. In any case, no pretense has been made by the
respondents that this constituted an irregularity correctible on certiorari. At the conclusion of the
hearings the accused, thru counsel, asked for and were granted time to submit memoranda.
Respondents Calo and Carbonnel, thru counsel, Atty. Rafael Consengco, submitted a 14-page
memorandum with not less than 35 citations of relevant portions of the transcript of stenographic
notes in support of their prayer for exoneration, and conviction of petitioner Lorenzana in respect
of their countercharges against the latter. It is worthy of note that up to this late date, said
respondents Calo and Carbonnel had not objected to — or pointed out — any supposed
irregularity in the proceedings thus far; the memorandum submitted in their behalf is confined to a
discussion of the evidence adduced in, and the merits of the cases." 7 It was stated in the next
petition:
"The promulgation of judgment was first scheduled on September 23, 1968. This was postponed
to September 28, 1968 at the instance of Atty. Rafael Consengco, as counsel respondents Calo
and Carbonnel, and again to October 1, 1968 at 11 o'clock in the morning, this time at the instance
of Atty. Consengco and Atty. Francisco Koh who had, in the meantime, also entered his
appearance as counsel for respondents Calo and Carbonnel. The applications for postponement
were not grounded upon any supposed defect or irregularity of the proceedings."8
Mention was then made of when a petition for certiorari was filed with respondent Judge: "Early in
the morning of October 1, 1968, Edgardo Calo and Simeon Carbonnel, thru their counsel, Atty.
Rafael S. Consengco, filed with the Court of First Instance a petition for certiorari and prohibition,
with application for preliminary prohibitory and mandatory injunction ... [alleging jurisdictional
defects]." 9 Respondent Judge acting on such petition forthwith issued a restraining order thus
causing the deferment of the promulgation of the judgment. After proceedings duly had, there was
an order from him "declaring that 'the constitutional and statutory rights of the accused' had been
violated, adversely affecting their 'right to a free and impartial trial' [noting] 'that the trial of these
cases lasting several weeks held exclusively in chambers and not in the court room open the
public';" and ordering the city court Judge, now petitioner, "to desist from reading or causing to be
read or promulgated the decisions he may have rendered already in the criminal cases (in
question) ... pending in his Court, until further orders of this Court.'" 10
A motion for reconsideration proving unavailing, petition on January 28, 1969, elevated the matter
to this Tribunal by means of the present suit for certiorari and prohibition. In its resolution of
February 3, 1969, respondents were required to answer, with a preliminary injunction likewise
being issued. As was to be expected the answer filed by respondent Judge on March 11, 1969
and that by the other respondents on March 19, 1969 did attempt to justify the validity of the
finding that there was a failure to respect the right to a public trial of accused persons. Neither in
such pleadings nor in the memorandum filed, although the diligence displayed by counsel was
quite evident, was there any persuasive showing of a violation of constitutional guarantee of a
public trial, the basic issue to be resolved. Rather it was the mode of approach followed by
counsel Andres R. Narvasa for petitioners that did manifest a deeper understanding of its
implications and ramifications. Accordingly, as previously stated, it is for us to grant the merits
prayed for.
1. The 1935 Constitution which was in force at the time of the antecedents of this petition, as set
forth at the outset, explicitly enumerated the right to a public trial to which an accused was entitled.
So it is, as likewise made clear, under present dispensation. As a matter of fact, that was one
constitutional provision that needed only a single, terse summation from the Chairman of the
Committee on the Bill of Rights, Delegate, later Justice, Jose P. Laurel, to gain acceptance. As
was stressed by him: "Trial should also be public in order to offset any danger of conducting it in
an illegal and unjust manner." 11 It would have been surprising if its proposed inclusion in the Bill of
Rights had provoked any discussion, much less a debate. It was merely a reiteration what
appeared in the Philippine Autonomy Act of 1916, popularly known as the Jones Law. 12 Earlier,
such a right found expression in the Philippine Bill of 1902, likewise an organic act of the then
government of this country as an unincorporated territory of the United States. 13 Historically as
was pointed out by Justice Black, speaking for the United States Supreme Court in the leading
case of In re Oliver: 14 "This nation's accepted practice of guaranteeing a public trial to an accused
has its roots in [the] English common law heritage. 15 He then observed that the exact date of its
origin is obscure, "but it likely evolved long before the settlement of the [United States] as an
accompaniment of the ancient institution of jury trial." 16 It was then noted by him that there, "the
guarantee to an accused of the right to a public trial appeared in a state constitution in
1776." 17 Later it was embodied in the Sixth Amendment of the Federal Constitution ratified in
1791. 18 He could conclude his historical survey "Today almost without exception every state by
constitution, statute, or judicial decision, requires that all criminal trials be open to the
public." 19 Such is the venerable, historical lineage of the right to a public trial.
2. The crucial question of the meaning to be attached this provision remains. The Constitution
guarantees an accused the right to a public trial. What does it signify? Offhand it does seem fairly
obvious that here is an instance where language is to be given a literal application. There is no
ambiguity in the words employed. The trial must be public. It possesses that character when
anyone interested in observing the manner a judge conducts the proceedings in his courtroom
may do so. There is to be no ban on such attendance. His being a stranger to the litigants is of no
moment. No relationship to the parties need be shown. The thought that lies behind this safeguard
is the belief that thereby the accused is afforded further protection, that his trial is likely to be
conducted with regularity and not tainted with any impropriety. It is not amiss to recall that
Delegate Laurel in his terse summation the importance of this right singled out its being a
deterrence to arbitrariness. It is thus understandable why such a right is deemed embraced in
procedural due process. 20 Where a trial takes place, as is quite usual, in the courtroom and a
calendar of what cases are to be heard is posted, no problem arises. It the usual course of events
that individuals desirous of being present are free to do so. There is the well recognized exception
though that warrants the exclusion of the public where the evidence may be characterized as
"offensive to decency or public morals." 21
What did occasion difficulty in this suit was that for the convenience of the parties, and of the city
court Judge, it was in the latter's air-conditioned chambers that the trial was held. Did that suffice
to investigate the proceedings as violative of this right? The answer must be in the negative. There
is no showing that the public was thereby excluded. It is to be admitted that the size of the room
allotted the Judge would reduce the number of those who could be our present. Such a fact
though is not indicative of any transgression of this right. Courtrooms are not of uniform
dimensions. Some are smaller than others. Moreover, as admitted by Justice Black in his masterly
In re Oliver opinion, it suffices to satisfy the requirement of a trial being public if the accused could
"have his friends, relatives and counsel present, no matter with what offense he may be
charged." 22
Then, too, reference may also be made to the undisputed fact at least fourteen hearings had been
held in chambers of the city court Judge, without objection on the part of respondent policemen.
What was said by former Chief Justice Moran should erase any doubt as to the weight to be
accorded, more appropriately the lack of weight, to any such objection raised. Thus: "In one case,
the trial of the accused was held in Bilibid prison. The accused, invoking his right to a public trial,
assigned the procedure thus taken as error. The Supreme Court held that as it affirmatively
appears on the record that the accused offered no objection to the trial of his case in the place
where it was held, his right is deemed waived." 23 The decision referred to, United States v.
Mercado, 24 was handed down sixty-eight years ago in 1905.
It does seem that the challenged order of respondent is far from being invulnerable.
3. That is all that need be said as to the obvious merit of this petition. One other objection to the
conduct of the proceedings by the city court Judge may be briefly disposed of. Respondent Judge
would seek to lend support to an order at war with obvious meaning of a constitutional provision
by harping on the alleged abdication by an assistant fiscal of his control over the prosecution.
Again here there was a failure to abide by settled law. If any party could complain at all, it is the
People of the Philippines for whom the fiscal speaks and acts. The accused cannot in law be
termed an offended party for such an alleged failure to comply with official duty. Moreover, even
assuming that respondent policemen could be heard to raise such a grievance, respondent Judge
ought to have been aware that thereby no jurisdictional defect was incurred by the city court
Judge. As was so emphatically declared by Justice J.B.L. Reyes in Cariaga v. Justo-
Guerrero: 25 "The case below was commenced and prosecuted without the intervention, mediation
or participation of the fiscal or any of his deputies. This, notwithstanding, the jurisdiction of the
court was not affected ... but the court should have cited the public prosecutor to intervene ... ." 26
4. There is much to be said of course for the concern displayed by respondent Judge to assure
the reality as against the mere possibility of a trial being truly public. If it were otherwise, such a
right could be reduced to a barren form of words. To the extent then that the conclusion reached
by him was motivated by an apprehension that there was an evasion of a constitutional command,
he certainly lived up to what is expected of a man of the robe. Further reflection ought to have
convinced him though that such a fear was unjustified. An objective appraisal of conditions in
municipal or city courts would have gone far in dispelling such misgivings. The crowded daily
calendar, the nature of the cases handled, civil as well as criminal, the relaxed attitude on
procedural rules not being strictly adhered to all make for a less tense atmosphere. As a result the
attendance of the general public is much more in evidence; nor is its presence unwelcome. When
it is remembered further that the occupants of such courts are not chosen primarily for their legal
acumen, but taken from that portion of the bar more considerably attuned to the pulse of public
life, it is not to be rationally expected that an accused would be denied whatever solace and
comfort may come from the knowledge that a judge, with the eyes of the alert court alert to his
demeanor and his rulings, would run the risk of being unjust, unfair, or arbitrary. Nor does it
change matters, just because, as did happen here, it was in the air-conditioned chambers of a city
court judge rather than in the usual place that the trial took place.

WHEREFORE, the writ of certiorari prayed for is granted nullifying, setting aside, and declaring
bereft of any legal force or effect the order of respondent Judge Felix Domingo November 29,
1968 for being issued with grave abuse of discretion. The writ of prohibition sought by petitioner is
likewise granted, commanding respondent Judge or any one acting in his place to desist from any
further action in Criminal Case No. 74830 of the Court of First Instance of Manila other than that of
dismissing the same. The preliminary writ of injunction issued by this Court in its resolution of
February 3, 1969 against the actuation of respondent Judge is made permanent. With costs
against respondent policemen Edgardo Calo and Simeon Carbonnel.

Makalintal, Actg. C.J., Teehankee, Makasiar, Antonio, Esguerra, JJ., concur.

Castro, J., did not take part.

Zaldivar and Barredo, JJ., are on leave.

 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-48883 August 6, 1980
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. ALBERTO V. SENERIS, As District Judge, Court of First Instance, Branch II, Sixteenth
Judicial District, Zamboanga City and PILAR ANGELES DE PIMENTEL, respondents.
MAKASIAR, J.:
The legal issue posed in this special civil action for certiorari, with prayer for a writ of preliminary
injunction, spawned by the August 4, 1978 order of respondent judge in Criminal Case No. 750 for
parricide against therein accused Pilar Angeles de Pimentel, hereinafter referred to as private
respondent, is the admissibility in evidence of the testimony of a prosecution witness in the said
criminal case who dies before completion of his cross-examination. That issue is crucial to the fate
of private respondent, considering that the deceased prosecution witness "... is the most vital and
the only eyewitness available to the prosecution against respondent Pilar Angeles de Pimentel for
the commission of the gruesome crime of parricide ..." (p. 10, rec.).
The factual background of the action is undisputed.
On February 8, 1978, Assistant Provincial Fiscal Camilo E. Tamin, who was then on official detail
with the office of the City Fiscal, Zamboanga City, filed with the Court of First Instance, Sixteenth
Judicial District, Zamboanga City, an amended information for parricide in Criminal Case No.
1742, charging herein private respondent as principal by inducement, Mario Nemenio y delos
Santos and Salim Doe as principals by direct participation and Moises Andaya y Julkanain, as
accomplice, in the fatal stabbing on September 6, 1977 in Zamboanga City of Eduardo Pimentel y
Orario, the lawful husband of private respondent. The amended information reads:
That on or about September 6, 1977, in the City of Zamboanga, Philippines, and
within the jurisdiction of this Court, the above-named accused Pilar Angeles de
Pimentel, with deliberate intent to kill her husband, Eduardo Pimentel y Orario,
with whom she was united in lawful wedlock, did then and there, willfully,
unlawfully and feloniously, induce and offer a sum of money as consideration or
prize to said accused Mario Nemenio y delos Santos and Salim Doe to kill her
said lawfully wedded husband Eduardo Pimentel y Orario, and because and on
account of said promised consideration or prize which was accepted, the said
accused Mario Nemenio y delos Santos and Salim Doe, did then and there,
willfully and feloniously assault, attack and stab with a knife with which they were
conveniently provided, the person of said Eduardo Pimentel y Orario, thereby
inflicting upon the latter mortal wound which directly caused his death; that the
above-named accused Moises Andaya y Julkanain although without having
participated directly in the commission of the offense above- described, took part
prior to its commission by then and there acting as the contact man in the
execution of their plot to kill said Eduardo Pimentel y Orario.
Contrary to law (p. 13, rec.)
On January 17, 1978, private respondent, assisted by her counsel, moved and was granted a
separate trial (p. 16, rec.).
On February 22, 1978, the accused Mario Nemenio y delos Santos, assisted by his counsel de
oficio, entered on arraignment a plea of guilty. Respondent judge thereafter rendered judgment
convicting accused Mario Nemenio y delos Santos of murder — qualified by the circumstance of
prize and reward-and not of parricide as charged in the information; because he "... had no
relation whatsoever to the deceased Eduardo Pimentel ..." and appreciating the mitigating
circumstances of voluntary plea of guilty and lack of instruction and education, imposed on him the
indeterminate penalty of eight (8) years of prision mayor as the minimum, to fourteen (14) years
and eight (8) months of reclusion temporal as the maximum; to indemnify the heirs of the
deceased Eduardo Pimentel the amount of P12,000.00 and to pay one-fourth (¼) of the costs of
the proceedings (pp. 15-19, rec.).
Immediately after promulgation of judgment, accused Mario Nemenio y delos Santos offered to
testify against his co-accused, herein private respondent, in her separate trial earlier granted by
the respondent judge in the same criminal case, now numbered 750. Allowed, he testified as
prosecution witness on February 28, March 6, and March 22, 1978 and as summarized by the
petitioner, his testimony on direct examination contained in seventy-six (76) pages of transcripts of
stenographic notes (pp. 21-44, 57-64, rec.), is to the effect "...that he and Salim Doe were hired by
respondent Pilar Angeles de Pimentel, for the consideration of P3,000.00 to kill Eduardo Pimentel,
husband of respondent Pilar Angeles de Pimentel, in the evening of September 6, 1977, in the
latter's residence in Zamboanga City, and that it was respondent Pilar Angeles de Pimentel herself
who actually pointed out the victim Eduardo Pimentel to the witness, who then stabbed the said
victim to death...That he did not know the Identity of the victim Eduardo Pimentel at the time of the
stabbing in the evening of September 6, 1977. He was guided solely by respondent Pilar Angeles
de Pimentel, who pointed out her victim spouse to him ..." (allegation No. 4, petition, pp. 4-5, rec.).
After the prosecution had terminated on March 22, 1978 the direct examination of its witness
Mario Nemenio y delos Santos, counsel for private respondent moved for the holding in abeyance
of the cross-examination of the said prosecution witness until after he (counsel) shall have been
furnished with the transcripts of the stenographic notes of the direct examination of said
prosecution witness (p. 47, TSN, March 22, 1978, p. 64, rec.); allegation No. 5, petition, p. 5, rec.).
The same was granted by the respondent judge who ordered the resumption of the hearing on
April 19, 1978 (pp. 64, 94, 108, rec.).
But on April 19, 1978, aforesaid prosecution witness failed to appear because he was not served
with a subpoena (p. 108, rec.). Consequently, the hearing was reset for June 7, 1978 (ibid.)
On June 7, 1978, counsel for private respondent commenced his cross- examination of
prosecution witness Mario Nemenio y delos Santos, which cross-examination however was not
completed on that session for lack of material time, thus:
ATTY. CALVENTO:
I reserve my right to cross-examine the witness further.
COURT
Reservation to continue the cross-examination is granted.
ORDER: For lack of material time, as prayed for and upon agreement of the
parties today's hearing is hereby adjourned and to be resumed on July 3, 1978 at
8:30 o'clock in the morning (p. 84, rec.).
According to the petition, the uncompleted cross-examination reduced in fifty-three (53) pages of
transcripts of stenographic notes (pp. 65-84, rec.) had already "... touched on the conspiracy
existing among Salim Doe, witness Mario Nemenio and respondent Pilar Angeles de Pimentel to
kill Eduardo Pimentel, in the latter's residence in Zamboanga City in the evening of September 6,
1977, and also on the actual stabbing by witness Mario Nemenio of the victim Eduardo Pimentel
who was pointed out to the witness-killer by his wife, respondent Pilar Angeles de Pimentel ..." (p.
7, rec.). This is not disputed by private respondent.
Continuation of the cross-examination was, as aforestated, set for July 3, 1978 at 8:30 o'clock in
the morning.
However, prosecution witness Mario Nemenio y delos Santos was shot dead by the Integrated
National Police patrols on June 21, 1978 while allegedly escaping from the San Ramon Prison
and Penal Farm, Zamboanga City, where he was then serving his sentence. Consequently, the
completion of his cross-examination became an impossibility.
On July 20, 1978, petitioner, without any motion on the part of the defense for the striking out of
the deceased witness's testimony, filed with the respondent court a motion praying for a ruling on
the admissibility of the testimony of deceased witness Mario Nemenio y delos Santos.
On August 4, 1978, respondent judge issued an order declaring as inadmissible the entire
testimony of the deceased witness Mario Nemenio y delos Santos on the principal ground "... that
the defense was not able to complete its cross-examination of said witness ...", relying on the case
of Ortigas, Jr. vs. Lufthansa, etc., L-28773, June 30, 1975, 64 SCRA, pp. 610,636-37).
Hence, this action, to which WE gave due course on December 4, 1978, after considering private
respondent's comment as well as those of the Solicitor General and of the respondent judge who
was required to file one. On even date, WE likewise issued a temporary restraining order "...
effective immediately and until further orders from this Court enjoining respondent District Judge
from continuing with the trial of Criminal Case No. 750 (1742) entitled People of the Philippines,
plaintiff, versus Pilar Angeles de Pimentel, accused, in the Court of First Instance of Zamboanga
City, Branch II."
Petitioner contends that respondent judge gravely abused his discretion in ruling as inadmissible
the testimony of prosecution witness Mario Nemenio y delos Santos.
WE agree.
I
1. The constitutional right of confrontation, which guarantees to the accused the right to cross-
examine the witnesses for the prosecution, is one of the most basic rights of an accused person
under our system of justice. It is a fundamental right which is part of due process not only in
criminal proceedings but also in civil proceedings as well as in proceedings in administrative
tribunals with quasi-judicial powers (Savory Luncheonette vs. Lakas Manggagawang Pilipino, et
al., 62 SCRA 258 [1975]).
In almost exactly the same language, both the 1935 and 1973 Constitutions secured it, thus: "In all
criminal prosecutions, the accused ... shall enjoy the right ... to meet the witnesses face to face ..."
(Section 19, Art. IV, Bill of Rights, 1973 Constitution; Section 17, Art. III, 1935 Constitution).
Echoing the same guarantee, Section I (f) of Rule 115 of the Revised Rules of Court provides that
in all criminal proceedings the defendant shall have the right to be confronted at the trial by, and to
cross- examine the witnesses against him. Constitutional confrontation requirements apply
specifically to criminal proceedings and have been held to have two purposes; first and primarily,
to secure the opportunity of cross-examination, and secondarily, to obtain the benefit of the moral
impact of the courtroom atmosphere as it affects the witnesses demeanor (21 Am Jur 2d 360).
Stated otherwise, it insures that the witness will give his testimony under oath, thus deterring lying
by the threat of perjury charge; it forces the witness to submit to cross-examination, a valuable
instrument in exposing falsehood and bringing out the truth; and it enables the court to observe
the demeanor of the witness and assess his credibility (California v. Green, 339 U.S. 157 [1970]).
2. But while the right to confrontation and cross-examination is a fundamental right, WE have ruled
that the same can be waived expressly or implied by conduct amounting to a renunciation of the
right of cross-examination (Savory Luncheonettee vs. Lakas ng Manggagawang Pilipino, et
al., supra, p. 259, citing U.S. v. Atanacio, 6 Phil. 413 [1906]; People vs. dela Cruz, 56 SCRA 84,
91 [19741). The conduct of a party which may be construed as a implied waiver of the right to
cross-examine may take various forms. But the common basic principles underlying the
application of the rule on implied waiver is that the party was given the opportunity to confront and
cross-examination an opposing witness but failed to take advantage of it for reasons attributable to
himself alone. Thus, where a party has had the opportunity to cross-examine an opposing witness
but failed to avail himself of it, he necessarily forfeits the right to cross-examine and the testimony
given on direct examination of the witness will be received or allowed to remain in the record
(Savory Luncheonette vs. Lakas ng Maggagawang Pilipino, et al., supra, citing Francisco, Revised
Rules of Court, Vol. on Evidence, p. 853, in turn citing People vs. Cole, 43 N.Y. 508-512 and
Bradley vs. Mirick, 91 N.Y. 293; see alo 29 Am. Jur. 2d 749).
On the other hand, when the cross-examination is not and cannot be done or completed due to
causes attributable to the party offering the witness, as was the situation in the Lufthansa German
Airlines case (64 SCRA 610 [1975]) relied upon by respondent judge, the uncompleted testimony
is thereby rendered incompetent and inadmissible in evidence. WE emphasized in the said case
that "[T]he right of a party to cross-examine the witness of his adversary is invaluable as it is
inviolable in civil cases, no less than the right of the accused in criminal cases. The express
recognition of such right of the accused in the Constitution does not render the right of parties in
civil cases less constitutionally based, for it is an indispensable part of the due process
guaranteed by the fundamental law. Subject to appropriate supervision by the judge in order to
avoid unnecessary delays on account of its being unduly protracted and to needed injunctions
protective of the right of the witness against self-incrimination and oppressive and unwarranted
harassment and embarrassment, a party is absolutely entitled to a full cross-examination as
prescribed in Section 8 of Rule 132 ... Until such cross-examination has been finished, the
testimony of the witness cannot be considered as complete and may not, therefore be allowed to
form part of the evidence to be considered by the court in deciding the case" (p. 637). However,
WE likewise therein emphasized that where the right to cross examine is lost wholly or in part
through the fault of the cross-examiner, then the testimony on direct examination may be taken
into account; but when cross-examination is not and cannot be done or completed due to causes
attributable to the party offering the witness, the uncompleted testimony is thereby rendered
incompetent (p. 636)
3. The effects of absence of and incomplete cross-examination of witness on the admissibility in
evidence of his testimony on direct examination has been extensively discussed thus: "As a
general rule, the testimony of a witness, given on direct examination, should be stricken where
there is not an adequate opportunity for cross-examination, as where the witness by reason of his
death, illness, or absence cannot be subjected to cross-examination. Although the contrary has
been held (Scott v. McCann, 24 A. 536, 76 Md. 47), the testimony of a witness, given on direct
examination, should be stricken where there is not an adequate opportunity for cross-examination
(Nehring v. Smith, 49 N.W. 2d 831, 243 Iowa 225), as where the party against whom he testified
is, through no fault of his own, deprived of the right to cross-examine him by reason of his death
(Henderson v. Twin Falls County 80 P. 2d 801, 59 Idaho 97; Twin Falls County, State of Idaho v.
Henderson, 59 S. Ct. 149, 305 U.S. 568, 83 L. Ed. 358), or as a result of the illness of the witness
or absence, or a mistrial ordered. The direct testimony of a witness who dies before conclusion of
the cross-examination can be stricken only insofar as not covered by the cross-
examination (Curtice v. West, 2 NYS 507, 50 Hun 47, affirmed 24 N.E. 1099, 121 N.Y. 696),
and absence of a witness is not enough to warrant striking his testimony for failure to appear for
further cross-examination where the witness has already been sufficiently cross-examined (Lew
Choy v. Lim Sing 216 P. 888, 125 Wash 631), or the matter on which further cross-examination is
sought is not in controversy (supra). It has been held that a referee has no power to strike the
examination of a witness on his failure to appear for cross-examination where a good excuse is
given (In re Crooks, 23 Hun 696)" [98 CJS 126-127, Emphasis supplied].
Moreover, "[I]f one is deprived of the opportunity of a cross-examination without fault upon his
part, as in the case of the illness or death of a witness after direct examination, it is generally held
that he is entitled to have the direct testimony stricken from the record. This doctrine rests on the
common law rule that no evidence should be admitted but what was or might be under the
examination of both parties, and that exparte statements are too uncertain and unreliable to be
considered in the investigation of controverted facts (Wray vs. State, 154 Ala 36, 45 So 697;
People vs. Manchetti, 29 Cal. 2d 452,175 P2d 533; A. H. Angerstein, Inc. vs. Jankowski, 55 Del
304, 187 A2d 81; Nehring vs. Smith, 243 Iowa 225, 49 NW2d 831; Citizens Bank & Trust Co. vs.
Reid Motor Co. 216 NC 432, 5 SE 2d 318). It has been held, however, that the trial court did not
abuse its discretion in refusing to discharge the jury where the state witness collapsed before
cross- examination was completed, it being shown that no motion to strike the testimony was
made, that it was not indicated what further information was sought to be produced by further
cross-examination, and that the witness' testimony was largely cumulative (Banks vs,
Commonwealth, 312 Ky 297, 227 SW 2d 426)" [81 Am Jur 2d 474].
4. Wigmore, eminent authority on evidence, opined that:
xxx xxx xxx
... where the death or illness prevents cross-examination under such
circumstances that no responsibility of any sort can be attributed to either the
witness of his party, it seems harsh measure to strike out all that has been
obtained on the direct examination. Principle requires in strictness nothing
less. But the true solution would be to avoid any inflexible rule, and to leave it to
the trial judge to admit the direct examination so far as the loss of cross-
examination can be shown to him to be not in that instance a material loss.
Courts differ in their treatment of this difficult situation; except that by general
concession a cross-examination begun but unfinished sufices if its purposes
have been substantially accomplished
xxx xxx xxx
(Vol. II, P. 108, Emphasis supplied).
II
1. Respondent judge's full reliance on the Lufthansa German Airlines case cannot be sustained.
To be sure, while the cross-examination of the witness in the aforesaid Lufthansa case and that of
the witness in the present action were both uncompleted, the causes thereof were different in that
while in the present case it was the death of the witness, in the Lufthansa case, it was the
unjustified and unexplained failure of Lufthansa to present its witness on the scheduled date for
his cross-examination which had already been preceded by several postponements initiated by
Lufthansa itself, thus depriving the other party the opportunity to complete the cross-examination
of said witness. Consequently, this Court therein correctly ruled as inadmissible the testimony of
the said witness on the principle that "... when cross-examination is not and cannot be done or
completed due to causes attributable to the party offering the witness, the uncompleted testimony
is thereby rendered incompetent ..." (supra, at p. 636). As clear as day, the Lufthansa ruling
therefore applies only if there is a finding that the cause for non-completion of the cross-
examination of a witness was attributable to the very party offering the said witness.
Consequently, the same is inapplicable to the instant action as the cause for the non-completion
of the cross-examination of petitioner's witness was a fortuitous event as he was killed, as per the
pleadings submitted in this action, by the law enforcers (Integrated National Police Patrols) after
his escape from prison. As a matter of fact, respondent judge, in his questioned order, did not lay
any basis for the application of the Lufthansa ruling as he failed to make any finding that the non-
completion was due to petitioner, the party offering the witness, whose testimony he declared as
inadmissible in evidence. A reading of the questioned order reveals that respondent judge ruled as
inadmissible said questioned testimony mainly because private respondent can no longer finish
her cross-examination; hence incomplete. However, private respondent advanced in this action
the cavalier theory that the failure of her counsel to complete his cross-examination of petitioner's
witness was due to the fault of or was attributable to the petitioner, People of the Philippines,
because it was the very agents of State who killed its own witness; hence, making the questioned
testimony of petitioner's witness inadmissible, per the Lufthansa ruling.
The contention does not deserve serious consideration. There was no finding nor any showing as
the same is farfetched or inconceivable that the killing of the witness of petitioner by its own
agents was ill-motivated. The prosecution did not order the shooting of the government witness.
He was shot while escaping from prison. It is petitioner's cause which will possibly suffer from said
death; not the cause of private respondent. It may be true that the escape of the said witness and
his consequent death may be attributable to the negligence of petitioner's agents; but such
negligence may not bind the petitioner as to pre-judicially affect its cause and interest — the
prosecution of criminal offenses — by reason of the generally accepted principle that the State is
not bound by the negligence or tortious acts of its agents. As the cause of non-completion was, as
aforesaid, beyond the control of the prosecution, respondent judge's questioned order cannot be
sustained on the basis of the Lufthansa ruling which, as aforestated, was principally anchored on
the finding that the cause of the non-completion of the cross-examination of the therein witness
was attributable to the very party offering him as a witness.
2. On the other hand, WE find no merit in petitioner's contention that the testimony of its deceased
witness is admissible on the ground that private respondent had waived her right to cross-examine
the witness and that the cause of non-completion was attributable to said private respondent. As
correctly pointed out by private respondent and sustained by respondent judge, petitioner is not
justified in attributing fault to her (private respondent) and in contending that she is deemed to
have partly lost already the right of cross-examination by not availing of the right to cross-examine
the witness Mario Nemenio on March 22, 1978 or right after his direct examination was closed and
delaying until the lapse of two and a half (2½) months thereafter before making such cross-
examination; because while it is true that her counsel did not immediately start with his cross-
examination of the deceased witness on March 22, 1978, he did avail, however, of such right on
the same day by initially obtaining an opportunity to make preparations for an effective exercise
thereof considering the nature of the case — a capital one — and the length of the direct
examination; three sittings on three different dates or on February 28, 1978, March 6, 1978 and
March 22, 1978. Hence, there was no waiver of her right of cross-examination. Moreover, the
deferment of the cross-examination of the witness requested by private respondent on March 22,
1978 was approved by respondent judge without any objection on the part of petitioner (pp. 45,
46, 64, rec.). And on the date for the cross-examination of the witness Mario Nemenio or on April
19, 1978, counsel for private respondent failed to cross-examine the said witness not of his own
design but because said witness failed to appear on that date for the reason that due to the
oversight of the court's personnel the subpoena for said witness was not served on him at the San
Ramon Prison and Penal Farm (pp. 90, 108, rec.). And respondent judge had to re-set the hearing
for the cross-examination of the witness by the private respondent only to June 7, 1978 because
of the fact that respondent judge took, with the approval of the Supreme Court, his summer
vacation the whole month of May, 1978.
It is thus apparent that no fault can be imputed to the private respondent for the length of time that
elapsed before her counsel was able to commence his cross-examination of the witness. And
private respondent's counsel was not able to complete his cross-examination of the witness on
June 7, 1978 for lack of material time by reason of which and upon agreement of the parties the
hearing was adjourned and ordered resumed on July 3, 1978 (p. 84, rec.).
It appears, therefore, that the situation is one whereby the cause of non-completion of the cross-
examination of the deceased witness was attributed neither to the fault of petitioner nor the private
respondent. Consequently, the admissibility or inadmissibility of the testimony of the said witness
cannot be resolved on the basis of the rule enunciated in the Lufthansa case.
III
There is merit in the contention of the petitioner that the questioned testimony of its deceased
witness is admissible in evidence because private respondent's counsel had already "... rigorously
and extensively cross-examined witness Mario Nemenio on all essential elements of the crime
charged (parricide), all of which have been testified upon by said witness in his direct examination-
in-chief, and consequently, the cross-examination-in- chief, has already been concluded."
The cross-examination was completed insofar as the essential elements of the crime charged —
parricide, fact of killing-is concerned. What remained was merely the cross-examination regarding
the price or reward, which is not an element of parricide, but only an aggravating circumstance
(par. 11, Art. 14, Revised Penal Code).
As elaborated by petitioner in its memorandum:
The crime charged in the case at bar is Parricide under Article 246 of the
Revised Penal Code.
The elements of the crime of Parricide are that a person was killed; that the
killing was intentionally caused by the accused; and that the victim is a parent or
child, whether legitimate or illegitimate, or the lawful spouse, or legitimate
ascendant or descendant of the accused. Once these facts are established
beyond reasonable doubt, conviction is warranted (See Aquino, The Revised
Penal Code, 1961 Ed., Vol. II, p. 1171).
The deceased Eduardo Pimentel has been sufficiently shown to be the lawful
husband of private respondent Pilar Pimentel by means of the marriage contract
executed between them on May 18, 1971 ... marked as Exhibit 'R' for the
prosecution ...
The cross-examination of witness Mario Nemenio by the counsel for private
respondent on June 7, 1978 touched on the conspiracy, and agreement, existing
among Salim Doe, witness Mario Nemenio and private respondent Pilar Pimentel
to kill Eduardo Pimentel, in the latter's residence in Zamboanga City in the
evening of September 6, 1977, and also on the actual stabbing by witness Mario
 Nemenio of the victim Eduardo Pimentel who was pointed out to the witness-
killer by his wife, the private respondent Pilar Pimentel herself... The matter of
consideration or price of P3,000.00, which both the public and private
respondents maintain was not touched in the cross-examination of witness Mario
Nemenio, is not an essential element of the crime of parricide. Price or
consideration is merely an aggravating circumstance of the crime charged, not
an essential element thereof. The failure to touch the same in the cross-
examination would not at all affect the existence of the crime of parricide.
Furthermore, there is no showing or even the slightest indication that the witness
or his testimony would be discredited if he was cross-examined on the promised
consideration. The probability is rather very great that the witness would only
have confirmed the existence of the promised consideration were he cross-
examined on the same.

From the foregoing discussion, it is submitted that the rigorous and searching
cross-examination of witness Mario Nemenio on June 7, 1978, practically
concluded already the cross-examination-in-chief, or has already substantially
accomplished the purpose of the cross-examination, and therefore, the failure to
pursue the privilege of further cross-examination, would not adversely affect the
admissibility of the direct testimony of said witness anymore (pp. 159162, rec.).

Private respondent did not dwell on the aforesaid points in her memorandum.

Because the cross-examination made by the counsel of private respondent of the deceased
witness was extensive and already covered the subject matter of his direct testimony as state
witness relating to the essential elements of the crime of parricide, and what remained for further
cross-examination is the matter of price or reward allegedly paid by private respondent for the
commission of the crime, which is merely an aggravating circumstance and does not affect the
existence of the offense charged, the respondent judge gravely abused his discretion in declaring
as entirely inadmissible the testimony of the state witness who died through no fault of any of the
parties before his cross-examination could be finished.

WHEREFORE, THE AUGUST 4,1978 ORDER OF THE RESPONDENT JUDGE IS HEREBY SET
ASIDE; THE RESTRAINING ORDER OF DECEMBER 4, 1978 ISSUED BY THIS COURT IS
HEREBY LIFTED; AND RESPONDENT JUDGE OR HIS SUCCESSOR IS ACCORDINGLY
ORDERED TO PROCEED WITH THE TRIAL OF CRIMINAL CASE NO. 750 (1742) AND TO
ADMIT AND CONSIDER IN DECIDING THE CASE THE TESTIMONY OF THE DECEASED
WITNESS MARIO NEMENIO y DELOS SANTOS EXCLUDING ONLY THE PORTION THEREOF
CONCERNING THE AGGRAVATING CIRCUMSTANCE OF PRICE OR REWARD WHICH WAS
NOT COVERED BY THE CROSS-EXAMINATION. NO COSTS.

Teehankee (Chairman), Guerrero, De Castro and Melencio-Herrera, JJ., concur.

Fernandez, J., is on leave.

 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-51513 May 15, 1984
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FELICIANO GOROSPE and RUFINO BULANADI, accused-appellants.
The Solicitor General for plaintiff-appellee.
Francisco S. Pagaduan, Sr. for accused-appellants.
ABAD SANTOS, J.:
In a verified complaint filed on October 8, 1974, with the Municipal Court of Pulilan, Bulacan,
ANASTACIA DE JESUS accused GERARDO FAJARDO, RUFINO BULANADI and FELICIANO
GOROSPE of the crime of forcible abduction with rape. (Expediente, p. 1.) The crime was said to
have been committed on September 30, 1974, starting in Plaridel, Bulacan, thru Pulilan, and
thence to Talavera, Nueva Ecija.
Municipal Judge Alfredo V. Granados of the Municipal Court of Pulilan received the complaint and
conducted a preliminary investigation, first stage.
On October 25, 1974, the Complaint was amended. Rufino Bulanadi and Feliciano Gorospe were
again named but Gerardo Fajardo was dropped and OSCAR ALVARAN was named instead. The
date when the crime was said to have been committed was changed from September 30, 1974, to
September 25, 1974. (Id, p. 41.)
Again Judge Granados conducted a preliminary investigation and on November 18, 1974, he
issued an order for the arrest of Bulanadi, Gorospe and Alvaran and fixed their bail at P15,000.00
each. (Id, p. 70.)
Bulanadi and Gorospe posted the requisite bail. Alvaran remained at large.
The second stage of the preliminary investigation was set on February 5, 1975, but on that day
neither Bulanadi or Gorospe appeared for which reason Judge Granados declared that they had
waived their right thereto and elevated the case to the Court of First Instance of Bulacan, (Id, p.
87.)
On March 19, 1975, Provincial Fiscal Pascual C. Kliatchko filed with the CFI of Bulacan an
information for forcible abduction with rape against Gorospe and Bulanadi. It was docketed as
Criminal Case No. 1293-M. (Id., p. 88.) But on July 25, 1975, Fiscal Kliatchko filed an amended
information which reads:
That on or about the 25th day of September, 1974, in the municipality of Plaridel
province of Bulacan, Philippines, and within the jurisdiction of this Honorable
Court, the said accused Feliciano Gorospe and Rufino Bulanadi, together with
one Oscar Alvaran who is still at large, conspiring and confederating together
and helping one another, did then and there wilfully, unlawfully, and feloniously,
by means of force, violence and intimidation, and with lewd design abduct the
complaining witness Anastacia de Jesus, an unmarried woman, 14 years of age,
by then and there taking and carrying her to Talavera, Nueva Ecija, against her
will and with-out her consent, and upon arrival there, the said accused by means
of violence, force and intimidation have carnal knowledge of the said Anastacia
de Jesus against her will and consent. (Id, p. 100.)
Judge Nelly L. Romero Valdellon started the trial of the case on October 15, 1975. The accused
and their counsel de parte had long been notified that the case was to be tried on that day but they
did not appear so the former were tried in absentia, After hearing part of the testimony of
Anastacia de Jesus, the complainant, Judge Valdellon was transferred to Metro Manila and she
was replaced by Judge Fidel P. Purisima who finished the trial. But Judge Purisima issued an
order on March 10, 1976, wherein he inhibited himself from deciding the case. He said,
"Considering that Judge Alfredo V. Granados is a first cousin by affinity of the undersigned
Presiding Judge and if only to make sure that the decision to be rendered in this case shall be
above suspicion and considering further the gravity of the offense charged, the undersigned
Presiding Judge hereby inhibits himself from deciding this case." (Id, pp. 386-387.) So it was
Judge Jesus R. de Vega who decided the case and rendered the following judgment:
PREMISES CONSIDERED, the Court finds both the herein accused Gorospe
and Bulanadi guilty beyond reasonable doubt of rape committed against
Anastacia de Jesus as charged in the information. Considering the legal principle
that each of the herein accused is responsible not only for the act of rape
committed personally by him but also for the rape committed by his other co-
accused on account of the finding of conspiracy or cooperation in the
commission of the said crime charged against them, the Court accordingly
sentences each of the herein accused Gorospe and Bulanadi to suffer two (2)
perpetual penalties of reclusion perpetua to be served in accordance with Art. 70
of the Revised Penal Code, with all the accessory penalty of the law.
Both accused are further ordered to indemnify Anastacia de Jesus in the amount
of P40,000.00 for actual exemplary and moral damages; and to pay the costs.
(Id, p. 419.)
The case is now before Us on appeal.
The People's version of the facts is as follows:
Complainant Anastacia de Jesus, a 14 year-old girl at the tune of the incident, Complainant Anastacia de Jesus was physically examined on October 6, 1974,
single, student at the Calumpit Institute, Bulacan, and resident of Puñgo, by Dra. Norma V. Gungon who issued a medical certificate on her findings, as
Calumpit, Bulacan, was, at about 10:00 and of September 25, 1974, at Plaridel, follows:
Bulacan, in front of the Caltex Station, intending to cross the street to buy a book.
She was looking for a book, entitled "Diwang Guinto" (pp. 2-5, t.s.n., Dec. 15, Patient examined with the presence of a ward Nurse. She is
1975; pp. 17-18, t.s.n., March 10, 1976; p. 4, t.s.n., March 11, 1976). Two conscious, coherent answers to questions intelligently.
persons passed by, one of whom was appellant Rufino Bulanadi who waived a
handkerchief across her face, which affected her consciousness and she felt
Physical Examination
dizzy but felt that she was being held and boarded into a motor vehicle (pp. 5-11,
t.s.n., Dec. 15, 1975; p. 18, t.s.n., March 10, 1976).
Breast — symetrical conical in shape, areola pigmented.
Complainant regained her fun consciousness at about 8:00 o'clock in the evening
of September 25, 1974, in a nipa hut near the irrigation pump, of Gerardo Mons pubis — pubic hair scanty in amount.
Fajardo, at Calipahan, Talavera, Nueva Ecija, Inside she saw appellants,
Feliciano Gorospe, Rufino Bulanadi, and Gerardo Fajardo (pp. 11-14, 17, 21, Internal Examination:
t.s.n., Dec. 15, 1975). They were arguing why she (complainant) had to be taken
by appellants Rufino Bulanadi and Feliciano Gorospe (p. 16, t.s.n., Dec. 15, Hymen — presence of healed lacerations, at 11, 5, 3 o'clock.
1975).
Vaginal introctus — admits 2 fingers w/ difficulty.
That evening, at the said nipa hut, complainant was forced to drink a strange
tasting royal soft drink by appellant Feliciano Gorospe and appellant Rufino
Bulanadi, who held her hands (pp. 21-23, t.s.n., Dec. 15, 1975). After drinking the Cervix — small, closed
soft drink complainant lost consciousness. She woke up only the next morning
with aches and pains all over her body especially her private part. She found SMEAR FOR SPERMATOZOA — NEGATIVE' (Exh. G-1, P. 6, rec.) (Brief, pp. 3-
herself naked. Appellants, Rufino Bulanadi and Feliciano Gorospe, were there by 6.)
her side standing when she woke up (pp. 23-26, t.s.n., Dec. 15, 1975; p. 22,
t.s.n., Jan. 12, 1976). Gerardo Fajardo was also there. All the three of them were The appellants make the following assignment of errors:
naked. Evidently, appellants and Gerardo Fajardo sexually abused her (p. 27,
t.s.n., Dec. 15, 1975; p. 15, t.s.n., March 10, 1976).
I. THE LOWER COURT ERRED IN FINDING THE ACCUSED GUILTY OF THE
CRIME OF RAPE WHICH THE PROSECUTION ALLEGES TO HAVE BEEN
Appellants and Gerardo Fajardo forcibly kept Anastacia de Jesus for nine (9) COMMITTED IN TALAVERA, PROVINCE OF NUEVA ECIJA AND NOT IN THE
days in the hut, with appellants, and Gerardo Fajardo taking turns in sexually PROVINCE OF BULACAN.
abusing her during the night. During the day she was guarded by Oscar Alvaran.
II. THE HONORABLE JUDGE JESUS R. DE VEGA, PRESIDING JUDGE OF
After her nine-day ordeal, Gerardo Fajardo brought her to the house of Cirilo THE COURT OF FIRST INSTANCE OF BULACAN, BRANCH II ERRED IN
Balanagay at Bancal Talavera, Nueva Ecija (pp. 20-23, t.s.n., March 12, 1976). RENDERING THE DECISION APPEALED FROM WHEN HE HAS NO
When Gerardo Fajardo left the house, Anastacia de Jesus related to Cirilo AUTHORITY TO DO SO BECAUSE THIS CASE WAS ENTIRELY TRIED IN
Balanagay what the appellants and Fajardo did to her. Cirilo Balanagay, THE COURT OF FIRST INSTANCE OF BULACAN, BRANCH I, PRESIDED
therefore, wired Anastacia's parents and then brought her to the Talavera OVER BY HONORABLE JUDGE FIDEL P. PURISIMA.
Municipal Building where she executed an affidavit about her ordeal. She also
told the PC of her harrowing experience (pp. 23-25, t.s.n., March 12, 1976).
III. THE LOWER COURT ERRED IN ADMITTING THE TESTIMONY OF
GERARDO FAJARDO WHOSE CROSS-EXAMINATION WAS NOT FINISHED
When complainant was brought home, her friends readily noticed that she was DUE TO HIS FAILURE TO APPEAR INSPITE OF A WARRANT FOR HIS
not her usual self anymore as "she cannot answer and she just kept on shouting ARREST.
and crying and trembling", saying "keep away from me, have pity on me." (pp.
14-15, t.s.n., Oct. 14,1975).
 IV. THE LOWER COURT ERRED IN FINDING THE ACCUSED FELICIANO
GOROSPE AND RUFINO BULANADI GUILTY BEYOND REASONABLE
DOUBT OF THE CRIME OF RAPE. (Brief, pp. 21-22.)
The first assignment of error raises the following questions: (1) Why was the complaint not filed in
Plaridel, Bulacan or Talavera, Nueva Ecija but in Pulilan, Bulacan? (2) Since the rape was
committed in Talavera, why was the case tried by the CFI of Bulacan and not by the CFI of Nueva
Ecija?
The above questions are easily answered. Abduction is a persistent and continuing offense. (U.S.
vs. Bernabe, 23 Phil. 154 [1912].) Hence it may be "tried in the court of the municipality or
province wherein the offense was committed or any one of the essential ingredients thereof took
place." (Rules of Court, Rule 110, Sec. 14[a].) The Municipal Court of Pulilan had jurisdiction
because the abductors and their captive passed Pulilan on their way from Plaridel to Talavera.
And the CFI of Bulacan (as well as the CFI of Nueva Ecija) had jurisdiction because essential
elements of the offense took place in Bulacan (and also in Nueva Ecija).
The second assignment of error asserts that Judge de Vega had no authority to render the
decision in the case.
Judge Purisima in the order wherein he inhibited himself from deciding the case also "ordered to
have the same re-raffled off and assigned to another branch. " The case was presumably re-
raffled to Judge de Vega who issued an order on June 23, 1978, which states, inter alia:
Considering the foregoing, and in order to be properly guided in the further
disposition of this case, and to obviate possible objections and criticisms which
may come from any or both parties in the final disposition thereof, the Court
resolves to require the parties to submit their respective written comments within
fifteen (15) days from receipt hereof on the propriety and advisability of the
decision in this case to be rendered by the Presiding Judge of this Court; and to
call a conference to hear further the views and arguments of the parties on this
question, which is hereby set on July 18, 1978, at 1:30 p.m. Let notices be sent
accordingly, to all parties concerned. (Expediente, p. 390.)
Neither the comments nor the memorial of the conference are in the expediente but on March 28,
1979, counsel for the accused filed a motion stating:
2. That the above promulgation was held in abeyance, and then the accused
received the order dated June 13, 1978 where the Court, called the parties to a
conference on July 18, 1978;
3. That the parties appeared before this Court on July 18, 1978;
4. That up to the present a Decision in the above entitled case has not yet been
promulgated.
WHEREFORE, it is respectfully prayed of this Honorable Court that the above
entitled case be resolved. (Id., p. 401.)
And on June 4, 1979, Judge de Vega promulgated the decision. (Id, p. 410.)
We hold that Judge de Vega had the power to decide the case. "Where a court of first instance is
divided into several branches each of the branches is not a court distinct and separate from the
others. Jurisdiction is vested in the court, not in the judges, so that when a complaint or
information is filed before one branch or judge, jurisdiction does not attach to said branch of judge
alone, to the exclusion of the others. Trial may be had or proceedings may continue by and before
another branch or judge." (Lumpay, et al. vs. Moscoso, 105 Phil. 968 [1959].)
It is to be recalled Chat in the original complaint filed by Anastacia de Jesus before the Municipal
Court of Pulilan, Gerardo Fajardo was one of the accused. In the amended complaint, Fajardo's
name was dropped and Oscar Alvaran was named instead. Nonetheless, when Anastacia testified
she said that she was brought to the house of Gerardo Fajardo in Talavera, Nueva Ecija; that
when she woke up after she was forced to drink something, Fajardo was there with Gorospe and
Bulanadi, and all three were naked; that Fajardo was one of those who raped her; and that it was
Fajardo who brought her to Cirilo Balanagay.
Why was Fajardo dropped from the complaint? The record does not yield an answer but perhaps
he decided to cooperate with the complainant because soon after she finished her testimony the
prosecution presented Fajardo as its next witness.
Fajardo testified, among other things, that he was given a lift from the monument in Caloocan City
to Nueva Ecija by Gorospe and Bulanadi; that in Plaridel, between the market and the bridge, the
two forced Anastacia to go with them; that Anastacia was brought to his house and later
transferred to a nipa hut near an irrigation pump; that in the nipa hut Anastacia was undressed by
Gorospe; that Gorospe, Bulanadi and Alvaran took turns in spending 20 to 30 minutes inside the
hut with Anastacia; and that he did not have sex with her.
It can thus be seen that Fajardo was a key witness. His testimony corroborated that of Anastacia
in material matters.
His direct examination took place on June 23 and 24, 1976. His cross-examination commenced on
August 4, 1976 (whole day), and was continued on August 9, 1976. The cross-examination is
recorded on pages 112 to 230 of the transcript. But the defense did not indicate that it was through
with Fajardo.
On August 9, 1976, the trial court continued the hearing to August 11, 1976. (Expediente, p. 204.)
On the latter date, Fajardo failed to appear and the case was re-scheduled to be heard on
September 13, 1976. (Id. p. 208.) On September 13, 1976, Fajardo again failed to appear and the
case was re-set to September 29, 1976. (Id. p. 222.) Fajardo did not appear on September 29,
1976, so he was ordered arrested. (Id, p. 223-226.) Fajardo was not arrested but despite such fact
the prosecution rested its case.
In their third assignment of error the appellants bewail the fact that the trial court decided the case
even though they had not finished cross-examining Fajardo.
The trial court committed no error in admitting the testimony of Fajardo although the defense had
not finished its cross-examination. An examination of the transcript of Fajardo's testimony shows
that he was subjected to detailed cross-examination on material points. In fact, the cross-
examination was lengthier than the direct examination. We adopt with approval the statement of
the court a quo on this point:
The records show that the counsel for the accused has extensively cross
examined Fajardo. The Court could not help but wonder what other matters not
yet touched during the cross-examination of Fajardo could still be elicited from
him that would probably destroy or affect his testimony in-chief. If the counsel for
the accused expected Fajardo to testify further on material matters favorable to
the cause of the defense, he should have proffered such further testimony and
entered into the records how the absent witness would have testified if he were
available for further cross-examination. The failure of the said counsel to do so
indicates that every material point has been asked from Fajardo during the time
he was under examination.
While cross-examination is a right available to the adverse party, it is not
absolute in the sense that a cross-examiner could determine for himself the
length and scope of his cross-examination of a witness. The court has always the
discretion to limit the cross examination and to consider it terminated donated if it
would serve the ends of justice.
The Court, therefore, hereby resolves to admit the testimony of Fajardo. This
resolution finds support, though indirectly, from Section 6, Rule 133 of the Rules
of Court, which empowers the court to stop the introduction of further testimony
upon a particular point when the evidence upon it is already so full that more to
the same point cannot reasonably be expected to be additionally persuasive. The
position herein taken by the Court in brushing aside technicalities is in
accordance with a fundamental rule that the provisions of the Rules of Court shall
be liberally construed in order to promote their object and assist the parties in
obtaining a just, speedy and inexpensive determination of every action or
proceeding. (Section 2, Rule 1, Rules of Court)." (Id, p. 418.)
Moreover, even if Fajardo's testimony be disregarded the accused may nonetheless be convicted
in the light of other evidence.
The fourth assignment of error raises the issue of credibility of witnesses — those of the
prosecution versus those of the defense.
The prosecution's version has already been stated above. We now have to consider the version of
the appellants which is as follows:
On September 30, 1974 at 4: 00 O'clock in the afternoon, accused Feliciano
Gorospe, Barangay Captain of Andal Alinio district, Talavera, Nueva Ecija, since
1972 up to the present and at the same time a member of the Sangguniang
Bayan of Talavera, Nueva Ecija, representing tha Barangay Group, went to the
house of his friend, Reynaldo Matias at Calipahan, Talavera, Nueva Ecija, to
attend a birthday party (pp. 36 & 37, T.s.n., February 7, 1977, CFI). Accused
Rufino Bulanadi, who was a former councilman of Calipahan, Talavera, Nueva
Ecija, also attended said party as he was also invited (p. 12, T.s.n., February 28,
1977, CFI.). At about 7:00 o'clock in the evening, several teenagers were
shouting in front of the house of Gerardo Fajardo which is ONE HUNDRED (100)
METERS away from the house where the birthday party was being held (p. 38,
T.s.n., February 7, 1977 CFI). The house of Fajardo being within his jurisdiction
(pp. 39 & 40 Ibid ), accused Barangay Captain Gorospe proceeded to the place
where the shouts were coming from, followed by other guests in the birthday
party, among whom was Councilman Rufino Bulanadi (p. 39, Ibid). there were 2
groups of teenagers who were at odds with each other. One was the group of Gil
Nocum and the other, the group of Isagani Castro. Barrio Captain Gorospe talked
with the two (2) groups of teenagers and he was informed that Fajardo who
promised to give a woman to one group made the same commitment with
respect to the same woman to the other group (pp. 41 & 42, Ibid). That woman
was complainant Anastacia de Jesus, as there were previous occasions that
Gerardo Fajardo brought women of Ill-repute to his house, Gorospe called him
and asked him why he brought again another woman of ill-repute to that place.
He even asked Gerardo's wife, Della Fajardo, why she tolerated Gerardo to bring
that kind of woman in their house when they are already married. She answered
that she could not stop him because he would cause her bodily harm. Gorospe
also called Anastacia and askeed her why she went with Grardo who is a married
man (pp. 44 to 47, Ibid). Thereafter he told her to leave the place. Gerardo
pleaded that Anastacia be allowed to stay only for that night and he would take
her out of the place the next day.
The following morning, October 1,1974 while accused Rufino Bulanadi was tying
the rope of his carabao to graze in the subdivision at Calipahan, Talavera, Nueva
Ecija, Gerardo approached him and said, "Konsehal maaari bang itira ko and
babaing dala-dala ko sa bahay sa balong-balong ng kalabaw mo" ( Councilman,
may I be allowed to let the girl who is with me in my house to live or stay in the
shade of you carabao). He pleaded with Bulanadi because according to him his
wife was quarrelling with him because of that woman (pp. 21-23, T.s.n., February
28, 1977, CFI). Bulanadi vehemently refused and reminded Gerardo about the
warning of Barrio Captain Gorospe to get that woman out of the place. Gerardo
left, angry and was murmuring (p. 23, Ibid). Bulanadi left his carabao to graze
and proceeded to his field to see the laborers who were pulling grasses there,
The farmers in Talavera are organized into groups of Twenty (20) for the
systematic distribution of irrigation water, each with a chairman. Bulanadi was the
chairman of his group. Because there was shortage of water he started the
engine of his irrigation pump. lie had his lunch in the field. At 3:00 o'clock in the
afternoon, a son of an owner of a neighboring field informed him that water was
already being released from the Sapang Baca Dam. Upon verifying that water
was really coming, he stopped the motor of his litigation pump. (pp. 22-26, Ibid),
He cleaned the passage of water to his field for two (2) hours. At 5:00 o'clock in
the afternoon, he went home to eat because he was hungry. He left the pump
house open because he intended to go bad after supper. When he came back,
he saw that there was light inside his pump house. As he was approaching,
Gerardo met him and pleaded that he and the woman be allowed to sleep there.
Bulanadi refused saying, I just bought this pump recently, "Sasalahulain mo ba
ito? Hindi pwede yon Gerardo, kamalasan yon." (Are you going to tarnish this?
That cannot be Gerardo, that will bring me bad luck) (26-29, Ibid). Bulanadi saw
Anastacia playing with the water. He told her not to make the water dirty as it is
being used as drinking water and Anastacia said, "suya naman kayo kay selan-
selan mong matanda." (You are very touchy old man). When Bulanadi told them
that he would report them to the Barrio Captain, they pleaded to him not to do so,
but just the same, he went to the Barrio Captain to report.
When Bulanadi arrived in the house of Barrio Captain Feliciano Gorospe, the
latter was conversing with Oscar Alvaran (p. 31, Ibid & p. 49, t.s.n., February 7,
1977). Upon receiving the report, the 3, Rufino Bulanadi, Feliciano Gorospe and
Oscar Alvaran, went to the pump house. Barrio Captain Gorospe talked to
Gerardo Fajardo and Anastacia de Jesus saying. "Talaga palang matitigas ang
ulo ninyo, pinaalalahanan ko na kayo, ayaw pa ninyong lumayo dito!" (You are
really hard headed, I have already warned you but still you did not leave this
place). Bulanadi and Gorospe were very angry and Anastacia got angry too and
said that it is none of their business what she and Gerardo do. She rushed
towards the two as if to strike them but Gerardo stopped her and pleaded with
the two to allow them to stay there just for that night because he said, "aabutan
na kami ng curfew" (we will be curfewed). Gorospe and Bulanadi relented and
left warning them that if they would still be there the next morning they will report
the matter to the P.C. (pp. 31-35, Ibid & pp. 2-6, February 24, 1977, CFI).
The next morning, October 2, 1977, Wednesday, Gerardo Fajardo and Anastacia
de Jesus left the pump house of Bulanadi. Gerardo brought Anastacia to the
house of his cousin Floring at Munoz, Nueva Ecija, where they stayed that night.
The following morning, October 3, 1977 he brought her to the house of his uncle
Cirilo Balanagay at Bakal I, Talavera, Nueva Ecija (Exhibit I). He told his uncle
that Anastacia is a student, and he requested Balanagay to devise ways and
means to return her to her parents because he might be placed in trouble (p. 7,
T.s.n., October 12, 1974, Municipal Court of Pulilan).
After Gerardo left, Balanagay went to the room where Anastacia was and
volunteered to take her to her parents, but she said she would think it over. That
night, October 3, 1974, Balanagay brought her to the house of Barrio Captain
Andres Nazar of Bakal I, Talavera, Nueva Ecija, to inform him of Anastacia's
presence in that house, and also so that she could relate everything to the Barrio
Captain (p. 10, T.s.n., October 12, 1974, Municipal Court of Pulilan). There was a
regulation in Bakal I, Talavera, Nueva Ecija, that a stranger who arrives there
should submit a statement as to the reason of his presence in the barrio. Barrio
Captain Andres Nazar took the statement of Anastacia de Jesus (p. 4, T.s.n.,
February 7, 1977, CFI) which was in the form of question and answer. This was
reduced in writing by Councilman Aniceto Damian who was summoned for that
occasion, in the presence of the barrio captain himself, Cirilo Balanagay, and his
wife. The statement of Anastacia de Jesus marked as Exhibit "1" was signed by
Councilman Aniceto Damian and Cirilo Balanagay as witnesses (pp. 7 to 14,
T.s.n., February 7, 1977 CFI). To protect the interest of Anastacia, Barrio Captain
Nazar asked Balanagay to notify her parents (p. 13, Ibid).
On October 4, 1974, Cirilo Balanagay accompanied Anastacia to the Police
Department of Talavera, Nueva Ecija, where she made a report (Exhibit 13).
Then he wired the family of Anastacia at Pungo, Calumpit, Bulacan. On October
6, 1974 Anastacia's relatives arrived, composed of her uncle, Enrique de Jesus,
brother of Victoriano de Jesus, sister Lolita de Jesus and brother-in-law Adriano
Nicolas. They accompanied her to the Police Department of Talavera, where she
made a statement, Exhibit 5 which is also Exhibit C (p. 3, T.s.n., June 16, 1976,
CFI). That same date, October 6, 1974 she was examined by Dr. Norma Gongon
at the Dr. Paulino J. Garcia Memorial Research and Medical Center upon
request of the Police Department of Talavera, Nueva Ecija and a Medical
Certificate was issued to her (Exhs. "G", "G-1", "G-2", "H" and "H-1").
In the meantime, on October 4, 1974, accused Barrio Captain Feliciano Gorospe
and his wife, with Mayor and Mrs. Bonifacio de Jesus of Talavera, Nueva Ecija,
Engineer and Mrs. Bacani and 3 other couples went to Baguio City to attend the
convention of the Luzon Area Community Christian Family Movement at St.
Louise University. They rented a house and stayed there for THREE (3) days,
October 4, 1974 to October 6, 1974. At 5:00 o'clock in the afternoon on October
6, 1974, when the convention ended, they went home to Talavera, Nueva Ecija
(pp. 10-12, T.s.n., February 24, 1977, CFI).
On October 6, 1974, at about 8:00 o'clock in the morning, accused Rufino
Bulanadi on his way to the field to cut grasses for his carabao, passed by a store
to buy cigarette. To his surprise he saw Gerardo there and he asked him where
his "alaga" was (the girl he is taking care of) and Gerardo answered,
"Pinagpapahinga ko siya sa Bakal at pinakawalan ko na" (I let her rest in Bakal
and I have already let her go). Gerardo further said that the girl was intending to
file a case against him, and Bulanadi told him, "Mabuti nga sa iyo, ayaw mo
kasing tumigil sa masamang negosyo mo". (That's good for you because you
don't want to stop your bad business). When Bulanadi proceeded on his way to
the field, a jeep suddenly stopped beside him. On the jeep were PC Sgt.
Jimenez, several policemen and Anastacia de Jesus. Sgt. Jimenez immediately
got off the jeep, tied Rufino's hand with his own rope that he brought with him to
be used in tying the grasses that he would cut, and brought him to the Municipal
Building of Talavera, Nueva Ecija, where he was locked in jail. When asked
about Gerardo, he informed the P.C. that he saw him in the store. Gerardo was
likewise arrested. Bulanadi was asked about the case and he said he did not
know anything about it (pp. 37 to 40, T.s.n., February 28, 1977, CFI).
When accused Barrio Captain Gorospe arrived with his wife from Baguio in the
evening of October 6, 1974, his mother informed him that a policeman was
 looking for him. He told his mother that he would just go to the Municipal Building
the following day because he was tired. The next day, October 7, 1974 at 8:30
o'clock in the morning, he went to the Municipal Building. Upon his arrival,
Gerardo met him, put his arms on his shoulders and said that the case can be
settled in the amount of P200.00. Gorospe said "tarantado ka pala" (You son of a
bitch). "I will not give even a single centavo because you are the one responsible
for this. I have nothing to do with this case." Gorospe proceeded to see Sgt.
Jimenez who told him that the case was transferred to Cabanatuan City. The 3 of
them, Bulanadi, Gorospe and Fajardo were brought to the PC headquarters
where they were interviewed one after the other, after which Gorospe and
Bulanadi were sent home.
The Solicitor General states that Gerardo Fajardo, the discharged state witness, also committed
rape hence the appellants should each be found guilty of three (3) rapes because in a conspiracy
the act of one is the act of all. We cannot agree in respect of the participation of Fajardo. Since
Fajardo was dropped from the complaint his guilt had not been established. However, We agree
with the Solicitor General's observation "that a motor vehicle was used to bring her [Anastacia de
Jesus] from Plaridel, Bulacan, where she was first deceived and drugged, and then taken to an
isolated uninhabited place at a nipa hut, near an irrigation pump at Calipahan, Talavera, Nueva
Ecija, where she was abused, two (2) aggravating circumstances are present, namely use of
motor vehicle and uninhabited place (Art. 14, R.P.C.)," so that death is the proper penalty. (Brief,
pp. 14-15.) However, for lack of the necessary number of votes the death penalty cannot be
imposed.

The complainant filed the case in the Municipal Court of Pulilan, Bulacan, on WHEREFORE, the judgment of the court a quo is hereby affirmed in all respects. Costs against
October 8, 1974, two (2) days after she had gone home in Pungo, Calumpit, the appellants.
Bulacan (Exhibit 8). Gerardo Fajardo who was in the custody of the Police
Department of Talavera, Nueva Ecija was taken by the Policemen of Pulilan, SO ORDERED.
Bulacan.
Teehankee, Makasiar, Aquino, Concepcion, Jr., Guerrero, De Castro, Melencio-Herrera, Plana,
On October 22, 1974 while the case was being investigated by Municipal Judge Escolin, Relova, Gutierrez, Jr. and De la Fuente, JJ., concur.
Alfredo Granados where Anastacia had already testified on October 9, 1974,
Anastacia again executed another affidavit because that was what her lawyer,
Fernando, C.J., concurs in the result.
Atty. Santos wanted (p. 26, t.s.n., March 12, 1976, CFI). On the same date
Gerardo Fajardo executed another statement in the Police Department of Pulilan
Bulacan. Thereafter, complainant filed an Amended Complaint wherein Gerardo,
against whom she was originally complaining against, was excluded as one of
the accused to be utilized as her witness, and Oscar Alvaran was included for the
first time. The alleged date of the incident was changed from September 30,
1974 to September 25, 1974. Subsequently the case was elevated to the Court
of First Instance of Bulacan, Branch I. (Brief, pp. 12-21.)

The version of the appellants does net inspire belief because it appears to have been contrived.
The appellants portray Anastacia as wanton and unchaste woman a prostitute. But one's credulity
has to be unduly stretched in order to buy the line that a girl of 14 years who was still going to
school was a prostitute who went far away from her home in order to peddle her body. The
appellant's version is simply too crude to be convincing.

Opposed to the appellants' version is the affirmative narration of events made by Anastacia which
were corroborated by Gerardo Fajardo. The story winch she unfolded could have been inspired
only by her thirst for justice. In her quest she had to live her ordeal all over again for a lengthy
period because she was on the witness stand on December 15, 1975; January 12, March 10,
March 11, May 3 and June 16, 1976. During all those days she had to bare in public her shame
and humiliation.

To be sure there were inconsistencies in the testimony of Anastacia but they were in details rather
than in the highlights of her terrible experience and could very well be attributed to her tender age
and confused state of mind caused by her private hell.
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. Nos. 115338-39 September 16, 1997
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
LANIE ORTIZ-MIYAKE, accused-appellant.
REGALADO, J.:
Accused-appellant Lanie Ortiz-Miyake was charged with illegal recruitment in large scale in the
Regional Trial Court of Makati on a complaint initiated by Elenita Marasigan, Imelda Generillo and
Rosamar del Rosario. In addition, she was indicted for estafa by means of false pretenses in the
same court, the offended party being Elenita Marasigan alone.
The information in the charge of illegal recruitment in large scale in Criminal Case No. 92-6153
reads as follows:
That in or about the period comprised from June 1992 to August 1992, in the Municipality
of Parañaque, Metro Manila, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, falsely representing herself to have the capacity and
power to contract, enlist and recruit workers for employment abroad did then and there
willfully, unlawfully, and feloniously collect for a fee, recruit and promise employment/job
placement abroad to the following persons, to wit: 1) Rosamar del Rosario; 2) Elenita
Marasigan; 3) Imelda Generillo, without first securing the required license or authority
from the Department of Labor and Employment, thus amounting to illegal recruitment in
large scale, in violation of the aforecited law.1
The information in the charge for estafa in Criminal Case No. 92-6154 alleges:
That in or about or sometime in the month of August, 1992, in the Municipality of
Parañaque, Metro Manila, Philippines and within the jurisdiction of this Honorable Court,
the above-named accused, by means of false pretenses executed prior to or
simultaneously with the commission of the fraud, falsely pretending to have the capacity
and power to send complainant Elenita Marasigan to work abroad, succeeded in inducing
the latter to give and deliver to her the total sum of P23,000.00, the accused knowing fully
well that the said manifestations and representation are false and fraudulent and
calculated only to deceive the said complainant to part with her money, and, once in
possession thereof, the said accused did then and there willfully, unlawfully and
feloniously appropriate, apply and convert the same to her own personal use and benefit,
to the damage and prejudice of the said Elenita Marasigan, in the aforementioned amount
of P23,000.00.2
Upon arraignment, appellant pleaded not guilty to the charges and the cases were tried jointly in
Branch 145 of the Regional Trial Court of Makati.
Of the three complainants in the case for illegal recruitment in large scale, Marasigan was the only
one who testified at the trial. The two other complainants, Generillo and Del Rosario, were unable
to testify as they were then abroad.
Marasigan testified that she was a 32 year-old unmarried sales representative in 1992 when she
was introduced to appellant by her co-complainants.3 Appellant promised Marasigan a job as a
factory worker in Taiwan for a P5,000.00 fee. At that time, Marasigan had a pending application
for overseas employment pending in a recruitment agency. Realizing that the fee charged by
appellant was much lower than that of the agency, Marasigan withdrew her money from the
agency and gave it to appellant.4
Marasigan paid appellant P5,000.00, but she was later required to make additional payments. By
the middle of the year, she had paid a total of P23,000.00 on installment basis. 5 Save for two
receipts,6 Marasigan was not issued receipts for the foregoing payments despite her persistence
in requesting for the same.
Marasigan was assured by appellant that obtaining a Taiwanese visa would not be a
problem.7 She was also shown a plane ticket to Taiwan, allegedly issued in her name. 8 Appellant
issued Marasigan a photocopy of her plane ticket,9the original of which was promised to be given
to her before her departure.10
Marasigan was never issued a visa.11 Neither was she given the promised plane ticket. Unable to
depart for Taiwan, she went to the travel agency which issued the ticket and was informed that not
only was she not booked by appellant for the alleged flight, but that the staff in the agency did not
even know appellant.
Later, Marasigan proceeded to the supposed residence of appellant and was informed that
appellant did not live there.12 Upon verification with the Philippine Overseas Employment
Administration (POEA), it was revealed that appellant was not authorized to recruit workers for
overseas employment.13 Marasigan wanted to recover her money but, by then, appellant could no
longer be located.
The prosecution sought to prove that Generillo and Del Rosario, the two other complainants in the
illegal recruitment case, were also victimized by appellant. In lieu of their testimonies, the
prosecution presented as witnesses Lilia Generillo, the mother of Imelda Generillo, and Victoria
Amin, the sister of Del Rosario.
Lilia Generillo claimed that she gave her daughter P8,000.00 to cover her application for
placement abroad which was made through appellant.14 Twice, she accompanied her daughter to
the residence of appellant so that she could meet her; however, she was not involved in the
transactions between her daughter and appellant.15 Neither was she around when payments were
made to appellant. Imelda Generillo was unable to leave for abroad and Lilia Generillo concluded
that she had become a victim of illegal recruitment.
The prosecution presented Victoria Amin, the sister of Rosamar Del Rosario, to show that the
latter was also a victim of illegal recruitment. Victoria Amin testified that appellant was supposed to
provide her sister a job abroad. She claimed that she gave her sister a total of P10,000.00 which
was intended to cover the latter's processing fee.16
Victoria Amin never met appellant and was not around when her sister made payments. She
assumed that the money was paid to appellant based on receipts, allegedly issued by appellant,
which her sister showed her.17 Del Rosario was unable to leave for abroad despite the
representations of appellant. Victoria Amin claimed that her sister, like Marasigan and Generillo,
was a victim of illegal recruitment.
The final witness for the prosecution was Riza Balberte,18 a representative of the POEA, who
testified that appellant was neither licensed nor authorized to recruit workers for overseas
employment, POEA certificate certification.19
Upon the foregoing evidence, the prosecution sought to prove that although two of the three
complainants in the illegal recruitment case were unable to testify, appellant was guilty of
committing the offense against all three complainants and, therefore, should be convicted as
charged.
On the other hand, appellant, who was the sole witness for the defense, denied that she recruited
the complainants for overseas employment and claimed that the payments made to her were
solely for purchasing plane tickets at a discounted rate as she had connections with a travel
agency.20
She denied that she was paid by Marasigan the amount of P23,000.00, claiming that she was paid
only P8,000.00, as shown by a receipt. She further insisted that, through the travel agency,21 she
was able to purchase discounted plane tickets for the complainants upon partial payment of the
ticket prices, the balance of which she guaranteed. According to her, the complainants were
supposed to pay her the balance but because they failed to do so, she was obliged to pay the
entire cost of each ticket.
The evidence presented by the parties were thus contradictory but the trial court found the
prosecution's evidence more credible. On December 17, 1993, judgment was rendered by said
court convicting appellant of both crimes as charged.22
In convicting appellant of illegal recruitment in large scale, the lower court adopted a previous
decision of Branch 78 of the Metropolitan Trial Court of Parañaque as a basis for the judgment.
Said previous decision was a conviction for estafa promulgated on July 26, 1993,23 rendered in
Criminal Cases Nos. 74852-53, involving the same circumstances in the instant case, wherein
complainants Generillo and Del Rosario charged appellant with two counts of estafa. This decision
was not appealed and had become final and executory.
In thus convicting appellant in the illegal recruitment case, the decision therein of the Regional
Trial Court stated that the facts in the foregoing estafa cases were the same as those in the illegal
recruitment case before it. It, therefore, adopted the facts and conclusions established in the
earlier decision as its own findings of facts and as its retionale for the conviction in the case before
it.24
In Criminal Case No. 92-6153, the Makati court sentenced appellant to serve the penalty of life
imprisonment for illegal recruitment in large scale, as well as to pay a fine of P100,000.00.
Appellant was also ordered to reimburse the complainants the following payments made to
her, viz.: (a) Marasigan, P23,000.00; (b) Generillo, P2,500.00; and (c) Del Rosario, P2,500.00.
In the same judgment and for the estafa charged in Criminal Case No. 92-6154, the Makati court
sentenced appellant to suffer imprisonment of four (4) years and two (2) months of prision
correccional, as minimum, to eight (8) years of prision mayor, as maximum, and to pay the costs.
In the instant petition, appellant seeks the reversal of the foregoing judgment of the Regional Trial
Court of Makati convicting her of illegal recruitment in large scale and estafa. Specifically, she
insists that the trial court erred in convicting her of illegal recruitment in large scale as the evidence
presented was insufficient.
Moreover, appellant claims that she is not guilty of acts constituting illegal recruitment, in large
scale or otherwise, because contrary to the findings of the trial court, she did not recruit the
complainants but merely purchased plane tickets for them. Finally, she contends that in convicting
her of estafa, the lower court erred as she did not misappropriate the money paid to her by
Marasigan, hence there was no damage to the complainants which would substantiate the
conviction.
We uphold the finding that appellant is guilty but we are, compelled to modify the judgment for the
offenses she should be convicted of and the corresponding penalties therefor.
Appellant maintains that her conviction for illegal recruitment in large scale is erroneous. It is her
view that in the prosecution of a case for such offense, at least three complainants are required to
appear as witnesses in the trial and, since Marasigan was the only complainant presented as a
witness, the conviction was groundless.
The Solicitor General also advocates the conviction of appellant for simple illegal recruitment
which provides a lower penalty. The Court finds the arguments of the Solicitor General meritorious
and adopts his position.
The Labor Code defines recruitment and placement as ". . . any act of canvassing, enlisting,
contracting transporting, utilizing, hiring or procuring workers and includes referrals, contract
services, promising or advertising for employment, locally or abroad, whether for profit or not . . .
."25
Illegal recruitment is likewise defined and made punishable under the Labor Code, thus:
Art. 38. Illegal Recruitment. —
(a) Any recruitment activities, including the prohibited practices enumerated under Article
34 of this Code, to be undertaken by non-licensees or non-holders of authority shall be
deemed illegal and punishable under Article 39 of this Code. . . .
(b) Illegal recruitment when committed by a syndicate or in large scale shall be
considered an offense involving economic sabotage and shall be penalized in accordance
with Article 39 hereof.
. . . Illegal recruitment is deemed committed in large scale if committed against three (3)
or more persons individually or as a group.
Art. 39. Penalties. —
(a) The penalty of life imprisonment and a fine of One Hundred Thousand Pesos
(P100,000.00) shall be imposed if Illegal Recruitment constitutes economic sabotage as
defined herein;
xxx xxx xxx
(c) Any person who is neither a licensee nor a holder of authority under this Title found
violating any provision thereof or its implementing rules and regulations shall, upon
conviction thereof, suffer the penalty of imprisonment of not less than four (4) years nor
more than eight (8) years or a fine of not less than P20,000.00 nor more than
P100,000.00, or both such imprisonment and fine, at the discretion of the court. . . .26
During the pendency of this case, Republic Act No. 8042, otherwise known as the "Migrant
Workers and Overseas Filipinos Act of 1995," was passed increasing the penalty for illegal
recruitment. This new law, however, does not apply to the instant case because the offense
charged herein was committed in 1992, before the effectivity of said Republic Act No. 8042.
Hence, what are applicable are the aforecited Labor Code provisions.
It is evident that in illegal recruitment cases, the number of persons victimized is determinative.
Where illegal recruitment is committed against a lone victim, the accused may be convicted of
simple illegal recruitment which is punishable with a lower penalty under Article 39(c) of the Labor
Code. Corollarily, where the offense is committed against three or more persons, it is qualified to
illegal recruitment in large scale which provides a higher penalty under Article 39(a) of the same
Code.
The position of the Solicitor General is that the conviction of appellant should be merely for the
lesser offense of simple illegal recruitment. He submits that the Regional Trial Court of Makati
erred in convicting appellant of illegal recruitment in large scale because the conviction was based
on an earlier decision of the Metropolitan Trial Court of Parañaque where appellant was found
guilty of estafa committed against Generillo and Del Rosario.
It is argued that the Makati court could not validly adopt the facts embodied in the decision of the
Parañaque court to show that illegal recruitment was committed against Generillo and Del Rosario
as well. Illegal recruitment was allegedly proven to have been committed against only one person,
particularly, Elenita Marasigan. Appellant, therefore, may only be held guilty of simple illegal
recruitment and not of such offense in large scale.
He further submits that the adoption by the Makati court of the facts in the decision of the
Parañaque court for estafa to constitute the basis of the subsequent conviction for illegal
recruitment is erroneous as it is a violation of the right of appellant to confront the witnesses, that
is, complainants Generillo and Del Rosario, during trial before it. He cites the pertinent provision of
Rule 115 of the Rules of Court, to wit:
Sec. 1. Rights of accused at the trial. In all criminal prosecutions, the accused shall be
entitled:
xxx xxx xxx
(f) To confront and cross-examine the witnesses against him at the trial. Either party may
utilize as part of its evidence the testimony of a witness who is deceased, out of or
cannot, with due diligence be found in the Philippines, unavailable or otherwise unable
testify, given in another case or proceeding, judicial or administrative, involving the same
parties and subject matter, the adverse party having had the opportunity to cross-examine
him.
xxx xxx xxx
It will be noted that the principle embodied in the foregoing rule is likewise found in the following
provision of Rule 130:
Sec. 47. Testimony or deposition at a former proceeding. — The testimony or deposition
of a witness deceased or unable to testify, given in a former case or proceeding, judicial
or administrative, involving the same parties and subject matter, may be given in
evidence against the adverse party who had the opportunity to cross-examine him.
Under the aforecited rules, the accused in a criminal case is guaranteed the right of confrontation.
Such right has two purposes: first, to secure the opportunity of cross-examination; and, second, to
allow the judge to observe the deportment and appearance of the witness while testifying.27
This right, however, is not absolute as it is recognized that it is sometimes impossible to recall or
produce a witness who has already testified in a previous proceeding, in which event his previous
testimony is made admissible as a distinct piece of evidence, by way of exception to the hearsay
rule.28 The previous testimony is made admissible because it makes the administration of justice
orderly and expeditious.29
Under these rules, the adoption by the Makati trial court of the facts stated in the decision of the
Parañaque trial court does not fall under the exception to the right of confrontation as the
exception contemplated by law covers only the utilization of testimonies of absent witnesses made
in previous proceedings, and does not include utilization of previous decisions or judgments.
In the instant case, the prosecution did not offer the testimonies made by complainants Generillo
and Del Rosario in the previous estafa case. Instead, what was offered, admitted in evidence, and
utilized as a basis for the conviction in the case for illegal recruitment in large scale was the
previous decision in the estafa case.
A previous decision or judgment, while admissible in evidence, may only prove that an accused
was previously convicted of a crime.30 It may not be used to prove that the accused is guilty of a
crime charged in a subsequent case, in lieu of the requisite evidence proving the commission of
the crime, as said previous decision is hearsay. To sanction its being used as a basis for
conviction in a subsequent case would constitute a violation of the right of the accused to confront
the witnesses against him.
As earlier stated, the Makati court's utilization of and reliance on the previous decision of the
Parañaque court must be rejected. Every conviction must be based on the findings of fact made
by a trial court according to its appreciation of the evidence before it. A conviction may not be
based merely on the findings of fact of another court, especially where what is presented is only its
decision sans the transcript of the testimony of the witnesses who testified therein and upon which
the decision is based.
Furthermore, this is not the only reason why appellant may not be held liable for illegal recruitment
in large scale. An evaluation of the evidence presented before the trial court shows us that, apart
from the adopted decision in the previous estafa case, there was no other basis for said trial
court's conclusion that illegal recruitment in large scale was committed against all three
complainants.
The distinction between simple illegal recruitment and illegal recruitment in large scale are
emphasized by jurisprudence. Simple illegal recruitment is committed where a person: (a)
undertakes any recruitment activity defined under Article 13(b) or any prohibited practice
enumerated under Articles 34 and 38 of the Labor Code; and (b) does not have a license or
authority to lawfully engage in the recruitment and placement of workers. 31 On the other hand,
illegal recruitment in large scale further requires a third element, that is, the offense is committed
against three or more persons, individually or as a group.32
In illegal recruitment in large scale, while the law does not require that at least three victims testify
at the trial, it is necessary that there is sufficient evidence proving that the offense was committed
against three or more persons. This Court agrees with the trial court that the evidence presented
sufficiently proves that illegal recruitment was committed by appellant against Marasigan, but the
same conclusion cannot be made as regards Generillo and Del Rosario as well.
The testimonies of Generillo's mother, Lilia Generillo, and Del Rosario's sister, Victoria Amin,
reveal that these witnesses had no personal knowledge of the actual circumstances surrounding
the charges filed by Generillo and Del Rosario for illegal recruitment in large scale. Neither of
these witnesses was privy to the transactions between appellant and each of the two
complainants. The witnesses claimed that appellant illegally recruited Generillo and Del Rosario.
Nonetheless, we find their averments to be unfounded as they were not even present when
Generillo and Del Rosario negotiated with and made payments to appellant.
For insufficiency of evidence and in the absence of the third element of illegal recruitment in large
scale, particularly, that "the offense is committed against three or more persons," we cannot affirm
the conviction for illegal recruitment in large scale. Nonetheless, we agree with the finding of the
trial court that appellant illegally recruited Marasigan, for which she must be held liable for the
lesser offense of simple illegal recruitment.
Appellant's defense that she did not recruit Marasigan but merely purchased a plane ticket for her
is belied by the evidence as it is undeniable that she represented to Marasigan that she had the
ability to send people to work as factory workers in Taiwan. Her pretext that the fees paid to her
were merely payments for a plane ticket is a desperate attempt to exonerate herself from the
charges and cannot be sustained.
Furthermore, no improper motive may be attributed to Marasigan in charging appellant. The fact
that Marasigan was poor does not make her so heartless as to contrive a criminal charge against
appellant. She was a simple woman with big dreams and it was appellant's duplicity which
reduced those dreams to naught. Marasigan had no motive to testify falsely against appellant
except to tell the truth.33
Besides, if there was anyone whose testimony needed corroboration, it was appellant as there
was nothing in her testimony except the bare denial of the accusations. 34 If appellant really
intended to purchase a plane ticket and not to recruit Marasigan, she should have presented
evidence to support this claim. Also, in her testimony, appellant named an employee in the travel
agency who was allegedly her contact person for the purchase of the ticket. She could have
presented that person, or some other employee of the agency, to show that the transaction was
merely for buying a ticket. Her failure to do the foregoing acts belies her pretensions.
The Court likewise affirms the conviction of appellant for estafa which was committed against
Marasigan. Conviction under the Labor Code for illegal recruitment does not preclude punishment
under the Revised Penal Code for the felony of estafa.35 This Court is convinced that the
prosecution proved beyond reasonable doubt that appellant violated Article 315(2) (a) of the
Revised Penal Code which provides that estafa is committed:
2. By means of any of the following false pretenses or fraudulent acts executed prior to or
simultaneously with the commission of the fraud:
(a) By using fictitious name or falsely pretending to possess power, influence,
qualifications, property, credit, agency, business or imaginary transactions, or by means
of other similar deceits.
The evidence is clear that in falsely pretending to possess power to deploy persons for overseas
placement, appellant deceived the complainant into believing that she would provide her a job in
Taiwan. Her assurances made Marasigan exhaust whatever resources she had to pay the
placement fee required in exchange for the promised job. The elements of deceit and damage for SO ORDERED.
this form of estafa are indisputably present, hence the conviction for estafa in Criminal Case No.
92-6154 should be affirmed. Puno, Mendoza and Torres, Jr., JJ., concur.

Under the Revised Penal Code, an accused found guilty of estafa shall be sentenced to:

. . . The penalty of prision correccional in its maximum period to prision mayor in its
minimum period, if the amount of the fraud is over 12,000 but does not exceed 22,000
pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph
shall be imposed in its maximum period, adding one year for each additional 10,000
pesos. . . .36

The amount involved in the estafa case is P23,000.00. Applying the Indeterminate Sentence Law,
the maximum penalty shall be taken from the maximum period of the foregoing basic penalty,
specifically, within the range of imprisonment from six (6) years, eight (8) months and twenty-one
(21) days to eight (8) years.

On the other hand, the minimum penalty of the indeterminate sentence shall be within the range of
the penalty next lower in degree to that provided by law, without considering the incremental
penalty for the amount in excess of P22,000.00.37 That penalty immediately lower in degree
is prison correccional in its minimum and medium periods, with a duration of six (6) months and
one (1) day to four (4) years and two (2) months. On these considerations, the trial court correctly
fixed the minimum and maximum terms of the indeterminate sentence in the estafa case.

While we must be vigilant and should punish, to the fullest extent of the law, those who prey upon
the desperate with empty promises of better lives, only to feed on their aspirations, we must not be
heedless of the basic rule that a conviction may be sustained only where it is for the correct
offense and the burden of proof of the guilt of the accused has been met by the prosecution.

WHEREFORE, the judgment of the court a quo finding accused-appellant Lanie Ortiz-Miyake
guilty beyond reasonable doubt of the crimes of illegal recruitment in large scale (Criminal Case
No. 92-6153) and estafa (Criminal Case No. 92-6154) is hereby MODIFIED, as follows.

1) Accused-appellant is declared guilty beyond reasonable doubt of simple illegal recruitment, as

defined in Article 38(a) of the Labor Code, as amended. She is hereby ordered to serve an
indeterminate sentence of four (4) years, as minimum, to eight (8) years, as maximum, and to pay
a fine of P100,000.00.

2) In Criminal Case No. 92-6154 for estafa, herein accused-appellant is ordered to serve an
indeterminate sentence of four (4) years and two (2) months of prision correccional, as minimum,
to eight (8) years of prision mayor, as maximum, and to reimburse Elenita Marasigan the sum of
P23,000.00.

In all other respects, the aforestated judgment is AFFIRMED, with costs against accused-appellant
in both instances.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-29271 August 29, 1980
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ADELINO BARDAJE, defendant-appellant.
MELENCIO-HERRERA, J.:
The accused ADELINO Bardaje in this case, after trial, has been convicted of Forcible Abduction
with Rape, and sentenced to death. The case is before us on automatic review.
On December 20, 1965, MARCELINA Cuizon lodged the following complaint with the Court of
First Instance of Samar against ADELINO and five (5) others 'namely, Lucio Malate, Pedro Odal,
Adriano Odal, Silvino Odal and Fidel Ansuas (hereinafter called the FIVE OTHERS):
The undersigned complainant, after having been duly sworn to according to law, accuses Adelino
Bardaje, Lucio Malate, Pedro Odal, Adriano Odal, Silvino Odal and Fidel Ansuas of the crime of
Rape, committed as follows:
That on or about the period from the 14th day to 17th day of December, 1965, in
Bo. Lopig, Sta. Rita, Province of Samar, Philippines, and within the jurisdiction of
this Honorable Court the above-named accused, conspiring, confederating
together and helping one another, with lewd design, by means of force and
intimidation, and at nighttime, did then and there wilfully, unlawfully and
feloniously drag one Marcelina Cuizon from the house of one Norma Fernandez
and brought her to a far away place and once there, accused Adelino Bardaje, by
means of force and intimidation forcibly had sexual intercourse with her several
times while his co-accused were on guard.
Contrary to law. (Emphasis supplied).
ADELINO was arrested on December 17th, and it was on December 20th, when he signed the
alleged confession, Exhibit "C", admitting having kidnapped and molested MARCELINA, 1 which
was probably the basis for MARCELINA's complaint, presumably prepared with the help of the
Fiscal. What has been noticed is that, in Exhibit "C", ADELINO had mentioned that, besides the
FIVE OTHERS, a sixth, Domingo Odal, was with the group when MARCELINA was "kidnapped".
There is no indication in the record as to why Domingo Odal was not included in MARCELINA's
complaint as one of the accused.
The following day, December 21st, the Fiscal's office filed the following Information with the Court:
The undersigned Assistant Provincial Fiscal accuses Adelino Bardaje, Lucio
Malate, Pedro Odal, Adriano Odal, Silvino Odal and Fidel Ansuas of the crime of
Rape with Illegal Detention committed as follows:
That on or about the period from the 14th day to 17th day of December, 1965, in Bo. Crossing,
Municipality of Sta. Rita, Province of Samar, Philippines and within the jurisdiction of this
Honorable court the above-named accused, conspiring, confederating together and helping one
another, with Lucio Malate, Pedro Odal, Adriano Odal, Silvino Odal and Fidel Ansuas, with lewd
design, by means of force and intimidation, armed with bolos and at nighttime, did then and there
wilfully, unlawfully and feloniously drag one Marcelina Cuizon, a minor of 14 years old, from the
house of one Norma Fernandez and brought her to a far away place and once there, accused
Adelino Bardaje, by means of force and intimidation forcibly had sexual intercourse with her for
several times while his co-accused were on guard.
That the commission of the crime the aggravating circumstances that it was committed in an
uninhabited place and with the aid of armed men, were present. (Emphasis supplied).
It will be noted that the complaint filed directly by MARCELINA with the Court was amended by the
Fiscal in the Information. While MARCELINA charged ADELINO only with Rape, the Fiscal
charged him with "Rape with Illegal Detention". MARCELINA merely alleged that she was dragged
from the house of Norma Fernandez by means of force and intimidation and at nighttime. On the
other hand, the Information added that the accused were "armed with bolos". The name of the
barrio was also changed from Lopig to Crossing. Lastly, the Information included the allegation
that the crime of Rape with Illegal Detention was committed with the "aggravating circumstances
that it was committed in an uninhabited place and with the aid of armed men".
Of the six (6) persons accused, the FIVE OTHERS were never arrested, and only ADELINO stood
trial. The period of the offense was from December 14th to 17th, with the complaint having been
filed on December 20th, or barely three (3) days thereafter. With that time frame in mind, an
analysis of the Information will show the assumption that only ADELINO was the principal culprit
while the FIVE OTHERS were either principals by cooperation or accomplices. Thus, the clause
"with" Lucio Malate, Pedro Odal, Mariano Odal, Silvino Odal and Fidel Ansuas" indicates that it
was ADELINO who had dragged MARCELINA "with" the help of the FIVE OTHERS. Both the
complaint and Information also indicated that ADELINO was the only one who committed the rape,
while the FIVE OTHERS were merely accomplices.
On June 2, 1966, before the arraignment of ADELINO, the Information was amended to include
the allegation that MARCELINA was detained and deprived of liberty for a period of th0ree (3)
days, which allegation could be taken into account in connection with Illegal Detention 2 but not in
connection with Forcible Abduction. 3 Since according to Exhibit "C", MARCELINA was
"kidnapped" at midnight of December 14th, and ADELINO was arrested in the morning of
December 17th, or an interval of less than 72 Hours, it could not be correctly pleaded that
MARCELINA was deprived of liberty for three (3) days. 4
After the trial was concluded, ADELINO's lawyer submitted his Memorandum on July 26, 1967, in
which he specifically argued that "the prosecution did not establish the elements of Rape and
Illegal Detention as prescribed by Articles 335 and 267 of the Revised Penal Code." It was only in
the Memorandum of the Fiscal, dated July 27, 1967, when the position was taken that the crime
which should be imputed to ADELINO is Rape with Forcible Abduction. The prosecution's
Memorandum stated:
Although the information is for Rape with Illegal Detention instead of Rape with
Forcible Abduction, yet from the body of the information it could be clearly
gleaned that the elements of abduction are sufficiently alleged therein and hence
the accused can be convicted thereunder (People vs. Emiliano Javete, CA
01956-57-CR April 7, 1964 (82-1965).
The following day, July 28, 1967, the trial Court found ADELINO guilty of Forcible Abduction with
Rape with the aggravating circumstances of dwelling and aid of armed men, and sentenced him to
death.
The version of complainant MARCELINA Cuizon, 14 years of age, is that in December, 1965, she
and her mother were living in the house of her aunt, Sofia Fernandez, at Barrio Crossing, Sta.
Rita, Samar, where she worked as a beautician. At 7:00 o'clock in the evening of December 14,
1965 while she was then eating supper, ADELINO, whom she knew when they were "still small",
and who was her classmate in Grade II (1960), accompanied by the FIVE OTHERS, entered the
house and began drinking "sho hoc tong" which they brought along. After the liquor had been fully
consumed, Silvino Odal broke the kerosene lamp causing complete darkness. She then ran to the
room where her mother was. ADELINO, Pedro Odal, Fidel Ansuas, and Adriano Odal, followed
her, tried to extricate her from her mother's embrace and dragged the two of them to the sala.
Pedro Odal choked the mother's neck thereby loosening her hold on the daughter and the four
males, two of whom were armed with bolos, forced her downstairs and by holding and dragging
her, brought her to the mountain about two kilometers from Barrio Crossing. That was about 12
midnight. On the way, ADELINO slapped her rendering her unconscious. She regained
consciousness in a hut, with ADELINO holding her hands, and removing her panty. She bit and
kicked him. Despite her struggle, ADELINO succeeded in having sexual intercourse with her while
his other companions stayed outside on guard.
Under cross-examination, MARCELINA declared that she did not know who owned the hut and
that it was just a one-room affair where a woman and two small children lived; that she and
Appellant slept in that same room as the woman, while the FIVE OTHERS slept near the kitchen. 5
At about 8:00 o'clock the following morning, December 15, ADELINO and the FIVE OTHERS
brought her to another mountain, 6 kilometers farther, arriving there past twelve o'clock noon at
the house of one called Ceferino (also called Cipriano) who lived there with his family. She was
kept in one room. Outside the room were Pedro Odal, Adriano Odal and Fidel Ansuas, still armed
with bolos, drinking and guarding her. In the evening, ADELINO had another sexual intercourse
with her even though she bit and kicked him and shouted for help which was to no avail as all
present were relatives of ADELINO, with the latter Ceferino "Tatay" She curled the hair of Narita
(daughter of Ceferino) the next day, because ADELINO threatened to kill her if she did not. Her
curling paraphernalia was taken by Adriano Odal, upon ADELINO's instructions, from Norma
Fernandez (her cousin) who gave the equipment as she (Norma) was also threatened.
MARCELINA and her "captors" stayed in Ceferino's house for two days. In the morning of
December 17, two soldiers with her father, Alejo Cuizon, arrived. The soldiers apprehended
ADELINO while the FIVE OTHERS jumped down the window and fled. Upon her father, she
embraced him and cried. They all returned to Barrio Crossing. She and her mother, Maria
Fernandez, then went to Catbalogan, where she filed a complaint at the Fiscal's Office on
December 20, 1965 and submitted to a medical examination at the Samar Provincial Hospital.
When cross-examined, Complainant admitted that Ceferino, his wife. and seven children were
living in the same hut where she was taken the second time, which hut was about waist high from
the ground, consisted of one room, 3 x 2 meters, a sala, 6 x 3 meters, and a kitchen. Between the
room and the sala was a wall of split bamboos so that noise inside the room could be heard
clearly from the other side. 6
Dr. Vitus Hobayan, Jr., Resident Physician at the Samar Provincial Hospital, declared that he
examined MARCELINA on December 20, 1965 and issued a Medical Certificate with the following
findings:
1. No evidence of external injuries around the vulva or any part of the body.
2. Hymen no intact, presence of old healed laceration at 4, 7, 12 o'clock.
3. Vagina easily admits two fingers.
4. Vaginal smear negative for spermatozoa 7
Explaining the "old healed laceration", the doctor stated that laceration may have been caused by
possible sexual intercourse or other factors, and if it were intercourse, he estimated that it could
have occured " say, two weeks or one month" or possibly more. 8
For his part, ADELINO, aged 18, admitted having had carnal knowledge of MARCELINA but
denied having raped her. He claims that they eloped on December 14 to 17, 1965 as previously
planned, they having been sweethearts since November 12, 1964. As such, they used to date in
Tacloban and "anything goes". MARCELINA's family used to have a house in Barrio Crossing but
now MARCELINA just stays in the house of her aunt, Sofia, which is about five houses away from
theirs. In the evening of December 14, 1965, while Sofia, MARCELINA's mother and others were
eating, MARCELINA handed him a bag and beauty culture equipment through the window, went
downstairs, after which the two of them walked to the mountains, to Ceferino Armada's house.
Ceferino was a cousin of ADELINO's mother. He and MARCELINA slept in the bedroom with 18-
year old Narita, Ceferino's daughter. While in that hut, food was brought to them by his sister,
Nenita. MARCELINA curled Narita's hair the next day.
In the morning of December 17, 1965, Sets. Terado and Gacelos, accompanied by MARCELINA's
father, Alejo Cuizon, apprehended him for having kidnapped MARCELINA. The latter ran to him
and embraced him and said she was to blame. notwithstanding, he was boxed by the soldiers as
instructed by MARCELINA's father and taken to Maulong PC Headquarters for questioning. During
the investigation, he was boxed and kicked and was forced to sign a statement implicating the
FIVE OTHERS as his companions even if untrue. He did not know who attested to his statement
as one Sgt. Gacelos took the document elsewhere.
Ceferino Armada, 60 years of age, the owner of the hut where MARCELINA was allegedly forcibly
brought the second time, corroborated that portion of ADELINO's testimony regarding their stay in
his house adding that MARCELINA and ADELINO had told him that they had eloped; that
MARCELINA even offered to curl his daughter's hair (Narita's and Concepcion's), and helped in
house chores and in the threshing of palay, while ADELINO helped in carrying palay because it
was rainy.
The trial Court found the prosecutors version of the incident more worthy of credence stating that
Complainant had no improper motive to implicate ADELINO in such a detestable crime as Rape.
On the basis of the evidence, testimonial and documentary, we find that the guilt of ADELINO has
not been established beyond reasonable doubt.
In crimes against chastity, the conviction or acquittal of an accused depends almost entirely on the
credibility of a complainant's testimony since by the intrinsic nature of those crimes they usually
involve only two persons — the complainant and the accused. The offended party's testimony,
therefore, must be subjected to thorough scrutiny for a determination of its veracity beyond
reasonable doubt.
In the instant case, we find MARCELINA's charge that she was forcibly abducted and afterwards
raped by ADELINO in conspiracy with FIVE OTHERS highly dubious and inherently improbable.
To start with, according to the medical findings, "no evidence of external injuries was found around
the vulva or any part of the body" of Complainant, a fact which is strange, indeed, considering that
Complainant was allegedly "dragged" slapped" into unconsciousness, "wrestled" with, and
criminally abused. Physical evidence is of the highest order and speaks more eloquently than an
witnesses put together. We are also faced with the medical finding of "old healed lacerations" in
the hymen which, according to the testimony of the examining physician would have occurred two
weeks or even one month before if said lacerations had been caused by sexual intercourse. This
expert opinion bolsters the defense that MARCELINA and ADELINO had previous amorous
relations at the same time that it casts serious doubts on the charge of intercourse by force and
intimidation.
Secondly, by Complainant's own admission, the first hut she was taken to was a small one-room
affair occupied by a woman and two small children. Her charge, therefore, that she was ravished
in that same room is highly improbable and contrary to human experience.
Thirdly, from her own lips, Complainant testified that the second hut where she was taken, that of
Ceferino Armada, consisted of a small room separated from the sala by a wall of split bamboos.
Further, that Ceferino with his wife and seven children all lived therein. It challenges human
credulity that she could have been sexually abused with so many within hearing and distance. It is
unbelievable, too, that under those circumstances the FIVE OTHERS could have stood guard
outside, armed with bolos and drinking, while ADELINO allegedly took advantage of her. If rape
were, indeed, their malevolent intent, they would, in all probability, have taken turns in abusing
her. That they did not, indicates that there was, indeed, some special relationship between
MARCELINA and ADELINO. Furthermore, with people around, and the hut constructed as it was,
it would have been an easy matter for MARCELINA to have shouted and cried for help. Surely, the
old man Ceferino, his wife and/or his children could not have been insensible to her outcries
notwithstanding their relationship to ADELINO. The aphorism still rings true that evidence to be
believed must not only come from the mouth of a credible witness but must be credible in itself.
Additionally, Complainant admits that she even curled the hair of Narita, one of Ceferino's
daughters, a fact inconsistent with her allegation of "captivity". That she was threatened with death
if she did not accede to such an inconsequential request defies credulity. The livelihood is that, as
the defense maintains, MARCELINA was not forcibly abducted but that she and ADELINO had, in
fact, eloped and that she had brought her beauty culture paraphernalia with her, or, that she
herself had sent for them from her cousin Norma Fernandez voluntarily and not under threat from
ADELINO.
The totality of the foregoing circumstances count with such great weight and significance that they
lend an aura of improbability and reasonable doubt to the allegation that MARCELINA had been
"kidnapped" or "illegally detained" and that when she and ADELINO engaged in sexual
intercourse, it was because of force or intimidation exercised upon her. They are circumstances
that were overlooked by the trial Court and justify a reversal of its finding of guilt as an exception
to the established rule that the findings of fact of a trial Judge based on the relative credibility of
witnesses are entitled to great respect and will not be disturbed by appellate Courts.
This case also constitutes an exception to the general belief that a young girl would not expose
herself to the ordeal of public trial if she were not motivated solely by a desire to have the culprit
who had ravished and shamed her placed behind bars. As we view it, MARCELINA was
confronted with a paradoxical situation as a daughter of relative tender age who could not
shamefacedly admit to her parents that she had eloped and voluntarily submitted to sexual
intercourse, since that elopement must have met with righteous indignation on the part of her
parents. As a result, MARCELINA was faced with no other choice but to charge ADELINO with
rape or incur the ire of her parents and social disrepute from a small community.
In respect of the alleged confession of ADELINO, suffice it to re-state that "an extrajudicial
confession made by an accused shag not be sufficient ground for conviction unless corroborated
by evidence of corpus delicti. 9 Corpus delicti is proved when the evidence on record shows that
the crime prosecuted had been committed. That proof has not been met in the case at bar, the
evidence establishing more of an elopement rather than kidnapping or illegal detention or forcible
abduction, and much less rape. Moreover, ADELINO, aged 18, was by himself when being
investigated by soldiers, 10 without benefit of counsel nor of anyone to advise him of his rights.
Aside from his declaration that Ws confession was obtained through maltreatment and
violence, 11 it was also vitiated by a procedural irregularity testified to by no less than prosecution
witness Sgt. Pedro Gacelos to the effect that he and room after he presented the statement to the
Clerk of Court, Mr. Rojas. 12 There is reason to believe, therefore that the so called confession was
attested without ADELINO's presence so that the latter cannot be said to have duly subscribed
and sworn to it.
It should also be noted that throughout the hearings before the trial Court, it was assumed that
ADELINO was being held responsible for the complex crime of Rape with Illegal Detention. While
it is true that an accused can be punished for a crime described by the facts alleged in tile
Information despite a wrong designation of the crime in the preamble of the Information, 13 yet, in
capital cases, it should be desirable that, whenever a discrepancy is noted between the
designation of the crime made by the Fiscal and the crime described by the facts pleaded in his
Information. The lower Court should call attention of the accused to the discrepancy, so that the
accused may be fully apprised of the nature and cause of the accusation against him. This was
not done in regards to ADELINO who all the time was under the impression that he was being
tried for Rape with Illegal Detention, and not for Forcible Abduction with Rape. If ADELINO had
known that he was being tried for Forcible Abduction with Rape, he may have changed the
strategy or tactics of his defense. Not that it could be said he would have done so; but he should
have been advised he had the right, and given the opportunity, to do so.
Again, one of the rights of an accused is "to have compulsory process issued to secure the
attendance of witnesses on his behalf. 14 ADELINO had stated that, while MARCELINA was in the
house of Ceferino Armada, she curled the hair of Narita. one of the latter's children, as well as the
hair of other girls in the vicinity.
ADELINO wanted to have Narita testify on his behalf, and a subpoena had been issued to her. But
instead of taking effective steps to have Narita brought to Court, the lower court gave
responsibility for Narita's attendance to the defense, expressly stating that, if the defense was not
able to bring her to the Court, her testimony will be dispensed with. The record shows:
ATTY. BOHOL
I appear as counsel for the accused. Up to now, Your Honor,
the witnesses we have been expecting have not yet arrived.
This representation, with the consent of the Clerk of Court have
wired the Chief of Police of Sta. Rita, Samar to bring Ceferino
Armada and Narita Armada tomorrow for the hearing,
continuation of this case for those persons mentioned to testify,
your Honor, for the accused. We pray, Your Honor, that we be
given time to hear from the Chief of Police to bring those
persons tomorrow, Your Honor.
COURT
What will be the nature of the testimonies of those witnesses.
xxx xxx xxx
COURT
How about the other girl?
ATTY. BOHOL
Narita Armada will substantially be corroborative, Your Honor.
COURT
Suppose the two witnesses do not arrive tomorrow, for which
this case is set also?
ATTY. BOHOL
If we receive information and find that those witnesses could
really not come for this case, Your Honor, I will be constrained
to submit the case for decision based on the testimony of the
accused. However, Your Honor, if it will be all right with the
Honorable Court and we find that there is hope that within this
week Ceferino Armada could come here, in view of the
distance, I pray before the Honorable Court that we be given
time within this week to present Ceferino Armada, and upon his
failure, submit the case for decision
COURT
The Court will not allow that anymore, anyway this case is set
for tomorrow. The Court wail grant the postponement today on
condition that any witness not presented tomorrow will be
considered waived Afterall as you have manifest, 4 their
testimonies will be corroborative.
xxx xxx xxx
COURT
What I mean is that you should have taken the necessary
precaution for the attendance of your witness today considering
that there is a subpoena for the witnesses.-
ORDER - for the reason that accused have no more witnesses
to present today, the trial of this case is hereby Postponed for
tomorrow, July 26, 1967 at 8:30 A.M., with the warning that
witnesses not presented during that day shall be considered
waived. 15
Considering that this case involved a prosecution for a capital offense, the lower Court acted
precipitously in not having Narita brought to Court, by ordering her arrest if necessary ADELINO
was deprived of his right "to have compulsory process issued to secure the attendance of
witnesses on his behalf."
Crucial questions should also have been asked by the trial Court of witnesses. MARCELINA Fernando, C.J., Teehankee, Barredo, Concepcion, Jr., Fernandez, Guerrero, Abad Santos and De
testified before the lower Court on December 1, 1966. On December 12, 1966, P Gacelos, the PC Castro, JJ., concur.
Sgt. who investigated the complaint against ADELINO, testified:
Makasiar, * J., took no part.
Q. Was that investigation of M Cuizon reduced to writing?

A. Yes, Sir. 16

It would have been advisable if the lower Court had right then and there asked for the production
of the written statement of MARCELINA.

The medical report, Exhibit "B", implied that MARCELINA could have had sexual intercourse
previous to December 14th. On the other hand, ADELINO had testified that he and MARCELINA
used to go together to Tacloban, and while there several times, "we had sexual intercourse
because she likes it." 17 Considering the possible infliction of the death penalty on ADELINO, the
lower Court could have asked MARCELINA if she had had sexual intercourse prior to December
14th and, if so, if it was with ADELINO.

Further, there was possibility that ADELINO and MARCELINA had really been sweethearts. The
lower Court could have asked MARCELINA if she realized that, charging ADELINO with Rape with
Illegal Detention, the latter could be sentenced to death. If that had been explained to her clearly
by the lower Court, she might then have admitted that she was neither raped nor "kidnapped" nor
illegally detained.

MARCELINA could had been examined on the two matters mentioned above, with the Court
excluding the public from the hearing under the provisions of Rule 119, Section 14. MARCELINA
might have testified without feeling the pressure of her relatives or other persons, if such pressure
had in fact existed.

It may not be amiss to state then that just as in pleas of guilty where a grave offense is charged
trial Judges have been enjoined to refrain from accepting them with alacrity but to be extra
solicitous in seeing to it that an accused fully understands the import of his plea, so also, in
prosecutions for capital offenses, it behooves the trial Courts to exercise greater care in
safeguarding the rights of an accused. The trial Judge should also take a more active role by
means of searching questions in the examination of witnesses for the ascertaintment of the truth
and credibility of their testimonies so that any judgment of conviction imposing the supreme
penalty may rest on firm and unequivocal grounds. The life and liberty of an individual demand no
less.

WHEREFORE, upon reasonable doubt, the judgment appealed from imposing the death penalty,
is reversed and the appellant, Adelino Bardaje, acquitted of the crime with which he is charged.
His immediate release is ordered unless lie is held on other charges.

Costs de oficio.

SO ORDERED.
 RULE 115

Rights of Accused

Section 1. Rights of accused at the trial. — In all criminal prosecutions, the accused shall be
entitled to the following rights:

(a) To be presumed innocent until the contrary is proved beyond reasonable doubt.

(b) To be informed of the nature and cause of the accusation against him.

(c) To be present and defend in person and by counsel at every stage of the proceedings,
from arraignment to promulgation of the judgment. The accused may, however, waive his
presence at the trial pursuant to the stipulations set forth in his bail, unless his presence is
specifically ordered by the court for purposes of identification. The absence of the
accused without justifiable cause at the trial of which he had notice shall be considered a
waiver of his right to be present thereat. When an accused under custody escapes, he
shall be deemed to have waived his right to be present on all subsequent trial dates until
custody over him is regained. Upon motion, the accused may be allowed to defend
himself in person when it sufficiently appears to the court that he can properly protect his
right without the assistance of counsel.

(d) To testify as a witness in his own behalf but subject to cross-examination on matters
covered by direct examination. His silence shall not in any manner prejudice him.

(e) To be exempt from being compelled to be a witness against himself.

(f) To confront and cross-examine the witnesses against him at the trial. Either party may
utilize as part of its evidence the testimony of a witness who is deceased, out of or can
not with due diligence be found in the Philippines, unavailable or otherwise unable to
testify, given in another case or proceeding, judicial or administrative, involving the same
parties and subject matter, the adverse party having the opportunity to cross-examine
him.

(g) To have compulsory process issued to secure the attendance of witnesses and
production of other evidence in his behalf.

(h) To have speedy, impartial and public trial.

(i) To appeal in all cases allowed and in the manner prescribed by law. (1a)
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 1272 January 11, 1904
THE UNITED STATES, complainant-appellee,
vs.
BALDOMERO NAVARRO, ET AL., defendants-appellants.
Felix Ferrer for appellants.
Office of the Solicitor-General Araneta for appellee.
MCDONOUGH, J.:
The defendants, Baldomero Navarro, Marcelo de Leon, and Fidel Feliciano (alias Bulag) are
charged with the crime of illegal detention, committed, according to the information, as follows:
The said defendants, together with other persons unknown armed with revolvers and daggers,
went one night about the middle of November, 1902, to the house of one Felix Punsalan, situated
in Matang-tubig, barrio of Malinta, town of Polo, Province of Bulacan, and by force and violence
kidnapped the said Felix Punsalan, without, up to the date of this information, having given any
information as to his whereabouts or having proven that they set him at liberty.
The defendants on being arraigned pleaded not guilty.
In the course of the trial Teodoro Pangan, Gregorio Mendoza, and Flaviano Punsalan testified as
witnesses for the prosecution. The witness Pangan said that one night about the middle of
November, 1902, while he was asleep in the house of Felix Punsalan, situated in the barrio of
Malinta, in front of Maysilo, he, being at that time a servant of the said Punsalan, was aroused by
the barking of the dogs; that his master, Felix Punsalan, arose and opened the window, and, upon
seeing some people there, asked them who they were; they answered him by asking who was
with him in the house, to which he replied that his servant was there; they asked him if he had a
gun, and he replied that he had no gun, and they asked him to come down and talk with them, and
the said Felix Punsalan, having gone down accordingly, did not return, and the witness added that
he had not seen again since that time. This witness says that he did not see the men who called to
his master from below but only heard them.
Gregorio Mendoza, the second witness, testifies that he was taken from his house one night in the
month of November, 1902, by seven men, among who were these defendants; that in addition to
himself, the same party on that night kidnapped Felix Punsalan and that the latter, with the
witness, were taken by their captors to Pudag-babuy where the defendant Marcelo de Leon hung
them to a tree, demanding of them that they hand over their guns; that on that same night they set
the witness at liberty, but kept Felix Punsalan; that the witness did not see Punsalan again since
that time, and that before the kidnapping he frequently saw him because he lived next door.
Flaviano Punsalan, brother of Felix Punsalan, testified that the latter was kidnapped on the night
of November 17, 1902, and that he had not seen since that time; that subsequently, in January,
1903, on occasion of the witness having been called to the barracks of the Constabulary by the
officers of that corps, he heard a statement made there by the defendant Baldomero Navarro in
the presence of the superintendent of secret information, Captain Crame, Inspector Brown, and
Interpreter Austin, in the course of which statement Baldomero Navarro stated that he was the
leader of the band that kidnapped Felix Punsalan and Gregorio Mendoza, and that his
companions were Marcelo de Leon, Fidel Feliciano, Remigio Delupio, and one Luis; that the said
Felix Punsalan died within a week from the time he was kidnapped, in consequence of the ill
treatment received. The witness testified that Navarro made the statement freely and
spontaneously, without threats or compulsion. The witness also testified that in the court of the
justice of the peace in Malabon he heard one Florencia Francisco testify that when his brother,
Felix Punsalan, died he was covered with bruises and was passing blood, and that his body was
buried at a place called Ogong, in the village known as Cay-grande.
The defendant Marcelo de Leon, who testified as a witness in the case, stated that Felix Punsalan
and Gregorio Mendoza were kidnapped by Baldomero Navarro and Mariano Jacinto, one night in
November, 1902, and that the witness knew this because he also was on of the men kidnapped by
these defendants.
The court below rendered judgment condemning each one of the defendants, Baldomero Navarro,
Marcelo de Leon, and Feliciano Felix (alias Bulag), to life imprisonment and payment of the costs
of prosecution. Against this judgment the defendants appealed.
Article 481 of the Penal Code provides that a private person who shall lock up or detain another,
or in any way deprive him of his liberty shall be punished with the penalty of prision mayor.
The second paragraph of article 483 provides that one who illegally detains another and fails to
give information concerning his whereabouts, or does not prove that he set him at liberty, shall be
punished with cadena temporal in its maximum degree to life imprisonment.
The punishment for the crime mentioned in article 483 of the Penal Code is the penalty of cadena
temporal in its maximum degree to cadena perpetua, or in other words one convicted of simply
depriving a person of his liberty may be imprisoned for a term of from six to twelve years and one
convicted of depriving a person of his liberty and who shall not state his whereabouts or prove that
he had set said person at liberty may be punished by imprisonment for a term of seventeen years
four months and one day, to life, as in this case. In other words, for failure on the part of the
defendant to testify regarding the whereabouts of the person deprived of his liberty, or to prove
that he was set at liberty, the punishment may be increased from imprisonment for a term of six
years to life imprisonment.
This provisions of the law has the effect of forcing a defendant to become a witness in his own
behalf or to take a much severer punishment. The burden is put upon him of giving evidence if he
desires to lessen the penalty, or, in other words, of criminating himself, for the very statement of
the whereabouts of the victim or the proof that the defendant set him at liberty amounts to a
confession that the defendant unlawfully detained the person.
So the evidence necessary to clear the defendant, under article 483 of the Penal Code, would
have the effect of convincing him under article 481.
The counsel for the defendants claims that such practice is illegal, since the passage by Congress
of the act of July 1, 1902, relating too the Philippines, section 5 of which provides that ". . . no
person shall be compelled in any criminal case to be a witness against himself." Section 57 of
General Orders, No. 58, provides that a defendant in a criminal case shall be presumed to be
innocent until the contrary is proved; and section 59 provides that the burden of proof of guilt shall
be upon the prosecution.
In fact he contends that as these provisions are in conflict with those of article 483 they have the
effect of repealing that section.
Under the system of criminal procedure existing here under the Spanish Government it was
doubtless lawfull to require a suspected or accused person to give evidence touching the crime of
which he was charged or suspected.
And so in order to arrive at a true interpretation of article 483 it is necessary to examine that
system of procedure.
In Escriche's Dictionary of Legislation and Jurisprudence, volume 3, page 577, we find the
following description of the distinctive features of the inquisitorial system of criminal procedure,
which constitutes the machinery by which the legislator proposed to enforce the penalty
prescribed in the article under consideration. He say:
A criminal prosecution is divided into two principal parts or sections which are, first, the
summary, and second, the penalty stages. The principal purpose of the summary trial is
to inquire whether a criminal act has been committed and to determine by whom the act
has been committed — that is to say, the object is to get together all the date possible for
the purpose of proving that an act falling within the sanction of the penal law has been
committed by such and such persons. In the plenary stage the purpose is a contradictory
discussion of the question of the guilt or innocence of the defendant, and the rendition of
a judgment of conviction or acquittal. It may well be that although it appear in the
summary stage of the proceeding that the act has been performed by the accused, still in
the plenary stage it may be shown that the act was not really criminal or that there was a
lawful excuse for its commission.
The record of the summary proceeding should contain evidence of the commission of a
punishable act, all possible data tending to point out the delinquent, a record of all
proceedings connected with his arrest and imprisonment, the answers of the accused to
the interrogatories put to him as to any other witness to obtain from him a statement of all
he knows concerning the crime and those guilty of it.
The record of the proceedings described above was then sent to the prosecuting attorney, or to
the private accuser and in view of the facts which appeared from the record the prosecution made
out the formal charge, the facts elicited by the proceeding enabling the prosecuting attorney to
determine within what article of the Penal Code the criminal act fell. After the filing of such a
charge further proceedings were had in which more evidence might be taken by either party and in
which the accused had his opportunity to make a defense.
The summary proceeding was secret, but the plenary stage was conducted publicly.
Article 544 of the royal decree of May 6, 1880, which provided the procedural law applicable in
criminal cases in the Islands, reads as follows: "The defendant can not decline to answer by
questions addressed him by the judge, or by the prosecuting attorney, with the consent of the
judge, or by the private prosecutor, even though he may believe the judge to be without
jurisdiction, in which case he may record a protest against the authority of the court."
The author above cited, Escriche, commenting upon this obligation on the part of the defendant to
testify, says that in case he stands mute the court can not put him to the torture as formerly, but
can only inform the prisoner that his silence is unfavorable to him, that it is an indication of his
guilt, that in consequence thereof he will be regarded as guilt for all the purposes of the summary,
and that his silence will be taken into account with all the other evidence against him when the
time comes for the rendition of judgment upon him.
Now let us apply the rules of law above indicated to the case in question, supposing that the crime
had been committed prior to the passage of the Philippine bill or General Orders, No. 58. The
judicial authorities having reason to believe that some one has been illegally detained or
kidnapped proceed to make a secret investigation of the case, arrest the suspected culprit, and
demand of him that he give any information he may have concerning the act under investigation
and to state whatever may have been his own participation therein. The evidence shows that
some one has been taken away from home and has not been heard of again, and the facts point
to the prisoner as the presumptive criminal. He is told to state what he knows of the matter. If he
does so, and proves that the person detained was liberated by him, or that such person is living in
such and such a place, then the prosecuting attorney will know that he must draw a charge under
the first or following sections of article 481, according to whether the facts elicited by the
preliminary or summary investigation show only a detention in general, or for the specific periods
of time indicated in the latter part of the section. But if the prisoner fails to prove the whereabouts
of the person whom he is accused of making away with, or that he liberated him, then the
prosecuting attorney has a case falling within the last paragraph of article 483.
It follows, therefore, from an examination of the old law that no prosecution under this article would
have ever been possible without a concomitant provision of the procedural law which made it the
duty of the accused to testify and permitted the prosecution to draw an unfavorable deduction from
his refusal to do so. The crime defined by article 483 was composed of three elements:
(a) The illegal detention of a person by the accused.
(b) Lack of evidence up to the time of the summary investigation that this person had
recovered his liberty.
 (c) A failure on the part of the accused in the course of the summary proceeding to prove
that he had liberated the person detained, or to give information at that time of his
whereabouts, or a refusal to give any evidence at all which left him in the same position
as would an unsuccessful attempt to prove the facts above mentioned, and which were
necessary to overcome the prima facie case made out by the proof of the first two
elements.
Now every one of these ingredients of the offense must exists before an information can be filed
for a prosecution under this article. The real trial was the plenary and was very similar to out
regular trial after arraignment. But the summary, with its secret and inquisitorial methods, was
vastly different from our preliminary investigation. If the right had been taken away to question the
accused and compel him to testify, then element (c) above indicated, would have always been
lacking. And that right has been taken from the prosecution by both General Orders, No. 58, and
by the guaranty embodied in the Philippine bill. That being the case the crime defined in article
483 can not now be committed, because the possibility of adding to the element (a) arising from
the act of the accused the other two elements equally essential to the offense has been forever
swept away by the extension to these Islands of the constitutional barrier against an inquisitorial
investigation of crime.
Under the present system the information must charge the accused with acts committed by him
prior to the filing of the information and which of themselves constitute an offense against the law.
The Government can not charge a man with one of the necessary elements of an offense and
trust to his making out the rest by availing himself of his right to leave the entire burden of
prosecuting on the prosecution from beginning to end.
In this case the prosecuting attorney charges the accused with kidnapping some person and with
not having given any information of the whereabouts of that person, of having proved that he —
the accused — has set him at liberty. To make out a case the Government must show that the
prisoner has been guilty of every act or omission necessary to constitute the crime of which he is
charged, and it will not be disputed that the exercise of an absolute right can not form part of a
crime. In this case the Government has proved that the defendant was guilty of a breach of his
duty to respect the rights of others by showing that he, with others, carried a certain individual
away from his house against his will, the accused not being vested with authority to restrain his
fellow-citizens of liberty. It is impossible for the Government to prove the other elements of the
crime, because the acts necessary to constitute them must be anterior in point of time to the trial,
and must constitute some breach of duty under an existing law. It has been demonstrated that the
omission which, under the former law constituted the two remaining elements, is no longer
penalized but is nothing more than the exercise of one of the most essential rights pertaining to an
accused person.
The provision that no one is bound to criminate himself is older than the Government of the United
States. At an early day it became a part of the common law of England.
It was established on the grounds of public policy and humanity — of policy, because if the party
were required to testify, it would place the witness under the strongest temptation to commit the
crime of perjury, and of humanity, because it would prevent the extorting of confessions by duress.
It had its origin in a protest against the inquisitorial methods of interrogating the accused person,
which had long obtained in the continental system. (Jones's Law of Evidence, sec. 887; Black's
Constitutional Law, 575.)
In other words, the very object of adopting this provision of law was to wipe out such practices as
formerly prevailed in these Islands of requiring accused persons to submit to judicial examinations,
and to get testimony regarding the offense with which they were charged.
In Emery's case (107 Mass., 172) it was said that the principle applies equally to any compulsory
disclosure of the guilt of the offender himself, whether sought directly as the object of the inquiry,
or indirectly and incidentally for the purpose of establishing facts involved in an issue between the
parties.
If the disclosure thus made would be capable of being used against him as a confession of crime,
or an admission of facts tending to prove the commission of an offense, such disclosure would be
an accusation against himself.
In the present case, if the defendant, as said before disclosed the whereabouts of the person
taken, or shows that he was given his liberty, this disclosure may be used to obtain a conviction
under article 481 of the Penal Code.
The decision of the case of Boyd vs. The United States (116 U. S., 616) is authority for the
contention in the present case. There the question raised was one of a violation of the revenue
laws, it being claimed that false entry of merchandise had been made, the punishment for which
was fixed by law at a fine not exceeding $5,000 nor less than $50, or by imprisonment.
It became important on the part of the prosecution to show the quality of the goods imported.
Section 5 of the Revenue Law, passed in June, 1874, authorized the district attorney to obtain an
order of court requiring the defendants to produce their invoices, books, papers, etc., to be
examined by the district attorney in order to obtain such evidence as he desired. Such an order
was served on the defendant. The invoices were produced under protest, the objection being that
their introduction in evidence could not be compelled and that the statute was unconstitutional as it
compelled the defendant to testify against himself.
The law provided that for a failure or refusal to produce the invoices the allegations stated by the
district attorney as to what he expected to prove by them should be taken as confessed, unless
the failure of refusal of the defendant to produce the same shall be explained to the satisfaction of
the court.
The court stated that a compulsory production of a man's private papers to establish a criminal
charge against himself, or to forfeit his property is unconstitutional.
The law, it is true, only required the defendant to produce the invoices, but it declared that if he did
not do so then the allegations which it is affirmed the district attorney will prove shall be taken as
confessed. "This," said the court, "is tantamount to compelling their production for the prosecution
will always be sure to state the evidence expected to be derived from them as strongly as the case suit the purposes to despotic power but it can not abide the pure atmosphere of political liberty
will admit of." and personal freedom."

Precisely the same of law applies to the case at bar. If the defendant does not do certain things, if
he does not make certain statements or proofs, he is severely punished.
It may be said that the defendant is only required to speak on one point in the case, that the
prosecution must prove the illegal detention, and that the burden of showing the whereabouts only
is put upon the defendant.
Chief Justice Marshall, in the trial of Aaron Burr, expressed his views on this question as follows:
The judgment of the Court of First Instance is reversed and the defendants are found guilty of the
crime defined and punished by article 482 of the Penal Code; applying the aggravating
circumstance of nocturnity each and every one of them is condemned to eighteen years
of reclusion temporal, with the legal accessory penalties, and to the payment of the costs of both
instances.
Arellano, C. J., Cooper and Johnson, JJ., concur.

Many links frequently compose the chain of testimony which is necessary to convict an
individual of a crime. It appears to the court to be the true sense of the rule that not
witness is compelled to furnish any one of them against himself. It is certainly not only a
possible but a probable case that a witness by declaring a single fact may complete the
testimony against himself as entirely as he would by stating every circumstance which
would be required for his conviction. The fact of itself would be unavailing, but all the
other facts without it would be insufficient. While that remains concealed in his own
bosom he is safe, but draw it from thence and he is exposed to a prosecution.1

If it be urged that the defendant is not compelled to testify, that he remain mute, the answer is that,
the illegal detention only being proved by the prosecution, if he does not make certain proof, if he
remains mute, then not only the presumption but the fact of guilt follows as a consequence of his
silence, and such a conclusion is not permitted under American law.

In the case of the People vs. Courtney (94 N. Y., 490), decided by the court of appeals of the
State of New York, the question to be determined was whether or not a law permitting a person
charged with crime to testify in his own behalf was constitutional or not. The law in question
provided also that his omission or refusal to testify "should create no presumption against him."
Judge Andrews, in rendering the decision of the court, stated: "A law which, while permitting a
person accused of a crime to be a witness in his own behalf, should at the same time authorize a
presumption of guilt from his omission to testify, would be a law adjudging guilt without evidence,
and while it might not be obnoxious to the constitutional provision against compelling a party in a
criminal case to give evidence against himself, would be a law reversing the presumption of
innocence, and would violate the fundamental principles binding alike upon the legislature and the
courts."

It is the duty of the prosecution, in order to convict one of a crime, to produce evidence showing
guilt beyond a reasonable doubt; and the accused can not be called upon either by express words
or acts to assist in the production of such evidence; nor should his silence be taken as proof
against him. He has a right to rely on the presumption of innocence until the prosecution proves
him guilty of every element of the crime with which he is charged.

In the language of Mr. Justice Bradley, in the Boyd case, "any compulsory discovery by extorting
the party's oath . . . to convict him of a crime . . . is contrary to the principles of free government; it
is abhorrent to the instincts of an Englishman; it is abhorrent to the instincts of an American. It may
 Republic of the Philippines COURT:
SUPREME COURT
Manila The parties may proceed.

EN BANC FISCAL GRECIA:

G.R. No. L-29169 August 19, 1968 Our first witness is Roger Chavez [one of the accused].

ROGER CHAVEZ, petitioner, ATTY. CARBON [Counsel for petitioner Chavez]:

vs.
THE HONORABLE COURT OF APPEALS, THE PEOPLE OF THE PHILIPPINES and THE
WARDEN OF THE CITY JAIL OF MANILA, respondents. I am quite taken by surprise, as counsel for the accused Roger Chavez, with this move of
the Fiscal in presenting him as his witness. I object.
Estanislao E. Fernandez and Fausto Arce for petitioner.
COURT:
Office of the Solicitor General for respondents.

SANCHEZ, J.: On what ground, counsel? .

ATTY. CARBON:
The thrust of petitioner's case presented in his original and supplementary petitions invoking
jurisdiction of this Court is that he is entitled, on habeas corpus, to be freed from imprisonment
upon the ground that in the trial which resulted in his conviction 1 he was denied his constitutional On the ground that I have to confer with my client. It is really surprising that at this stage,
right not to be compelled to testify against himself. There is his prayer, too, that, should he fail in without my being notified by the Fiscal, my client is being presented as witness for the
this, he be granted the alternative remedies of certiorari to strike down the two resolutions of the prosecution. I want to say in passing that it is only at this very moment that I come to
Court of Appeals dismissing his appeal for failure to file brief, and of mandamus to direct the said know about this strategy of the prosecution.
court to forward his appeal to this Court for the reason that he was raising purely questions of law.
COURT (To the Fiscal):
The indictment in the court below — the third amended information — upon which the judgment of
conviction herein challenged was rendered, was for qualified theft of a motor vehicle, one (1) You are not withdrawing the information against the accused Roger Chavez by making
Thunderbird car, Motor No. H9YH-143003, with Plate No. H-16648 Pasay City '62 together with its [him a] state witness?.
accessories worth P22,200.00. Accused were the following: Petitioner herein, Roger Chavez,
Ricardo Sumilang alias "Romeo Vasquez", Edgardo P. Pascual alias"Ging" Pascual, Pedro FISCAL GRECIA:
Rebullo alias "Pita", Luis Asistio alias "Baby" Asistio, Lorenzo Meneses alias "Lory" Meneses,
Peter Doe, Charlie Doe and Paul Doe.2
I am not making him as state witness, Your Honor.
I am only presenting him as an ordinary witness.
Averred in the aforesaid information was that on or about the 14th day of November, 1962, in
Quezon City, the accused conspired, with intent of gain, abuse of confidence and without the
consent of the owner thereof, Dy Sun Hiok y Lim, in asporting the motor vehicle above-described. ATTY. CARBON:

Upon arraignment, all the accused, except the three Does who have not been identified nor As a matter of right, because it will incriminate my client, I object.
apprehended, pleaded not guilty.1äwphï1.ñët
COURT:
On July 23, 1963, trial commenced before the judge presiding Branch IX of the Court of First
Instance of Rizal in Quezon City. The Court will give counsel for Roger Chavez fifteen minutes within which to confer and
explain to his client about the giving of his testimony.
The trial opened with the following dialogue, which for the great bearing it has on this case, is here
reproduced:. xxx xxx xxx
 COURT: [after the recess]
Are the parties ready? .
FISCAL:
We are ready to call on our first witness, Roger Chavez.
ATTY. CARBON:
As per understanding, the proceeding was suspended in order to enable me to confer
with my client.
I conferred with my client and he assured me that he will not testify for the prosecution
this morning after I have explained to him the consequences of what will transpire.
COURT:
What he will testify to does not necessarily incriminate him, counsel.
And there is the right of the prosecution to ask anybody to act as witness on the witness-
stand including the accused.
If there should be any question that is incriminating then that is the time for counsel to
interpose his objection and the court will sustain him if and when the court feels that the
answer of this witness to the question would incriminate him.
Counsel has all the assurance that the court will not require the witness to answer
questions which would incriminate him.
But surely, counsel could not object to have the accused called on the witnessstand.
ATTY. CARBON:
I submit.
xxx xxx xxx
ATTY. CRUZ [Counsel for defendants Pascual and Meneses]: .
MAY IT PLEASE THE COURT:
This incident of the accused Roger Chavez being called to testify for the prosecution is
something so sudden that has come to the knowledge of this counsel.
This representation has been apprised of the witnesses embraced in the information.
For which reason I pray this court that I be given at least some days to meet whatever
testimony this witness will bring about. I therefore move for postponement of today's
hearing.
COURT:
The court will give counsel time within which to prepare his cross-examination of this
witness.
ATTY. CRUZ:
I labored under the impression that the witnesses for the prosecution in this criminal case
are those only listed in the information.
I did not know until this morning that one of the accused will testify as witness for the
prosecution.
COURT:
That's the reason why the court will go along with counsels for the accused and will give
them time within which to prepare for their cross-examination of this witness.
The court will not defer the taking of the direct examination of the witness.
Call the witness to the witness stand.
EVIDENCE FOR THE PROSECUTION
ROGER CHAVEZ, 31 years old, single, buy and sell merchant, presently detained at the
Manila Police Department headquarters, after being duly sworn according to law,
declared as follows:
ATTY. IBASCO [Counsel for defendant Luis Asistio]:
WITH THE LEAVE OF THE COURT:
This witness, Roger Chavez is one of the accused in this case No. Q-5311.
The information alleges conspiracy. Under Rule 123, Section 12, it states:
 'The act or declaration of a conspirator relating to the conspiracy and during its existence,
may be given in evidence against the co-conspirator after the conspiracy is shown by
evidence other than such act or declaration.'
COURT:
That is premature, counsel. Neither the court nor counsels for the accused know what
the prosecution eventsto establish by calling this witness to the witness stand.
ATTY. IBASCO:
I submit.
COURT: The Fiscal may proceed.3
And so did the trial proceed. It began with the "direct examination" of Roger Chavez by "Fiscal
Grecia".
Came the judgment of February 1, 1965. The version of the prosecution as found by the court
below may be briefly narrated as follows:
A few days before November 12, 1962, Roger Chavez saw Johnson Lee, a Chinese, driving a
Thunderbird car. With Ricardo Sumilang (movie actor Romeo Vasquez) in mind, whom he knew
was in the market for such a car, Chavez asked Lee whether his car was for sale. Lee answered
affirmatively and left his address with Chavez. Then, on November 12, Chavez met Sumilang at a
barbershop informed him about the Thunderbird. But Sumilang said that he had changed his mind
about buying a new car. Instead, he told Chavez that he wanted to mortgage his Buick car for
P10,000.00 to cover an indebtedness in Pasay City. Upon the suggestion of Chavez, they went to
see Luis Asistio, who he knew was lending money on car mortgages and who, on one occasion,
already lent Romeo Vasquez P3,000.00 on the same Buick car. Asistio however told the two that
he had a better idea on how to raise the money. His plan was to capitalize on Romeo Vasquez'
reputation as a wealthy movie star, introduce him as a buyer to someone who was selling a car
and, after the deed of sale is signed, by trickery to run away with the car. Asistio would then
register it, sell it to a third person for a profit. Chavez known to be a car agent was included in the
plan. He furnished the name of Johnson Lee who was selling his Thunderbird. 1äwphï1.ñët
In the morning of November 14, Chavez telephoned Johnson Lee and arranged for an
appointment. Sometime in the afternoon. Chavez and Sumilang met Lee in his Thunderbird on
Highway 54. Sumilang was introduced as the interested buyer. Sumilang's driver inspected the
car, took the wheel for a while. After Sumilang and Lee agreed on the purchase price
(P21.000.00), they went to Binondo to Johnson Lee's cousin, Dy Sun Hiok, in whose name the car
was registered. Thereafter, they went to see a lawyer notary public in Quezon City, known to
Chavez for the drafting of the deed of sale. After the deed of sale was drawn up, it was signed by
Sumilang as the vendee, Dy Sun Hiok the vendor, and Sumilang's driver and Johnson Lee the
witnesses thereto.
As payment was to be made at Eugene's restaurant in Quezon City, all of them then drove in the
Thunderbird car to that place. The deed of sale and other papers remained in the pockets of
Johnson Lee.
At Eugene's, a man approached Sumilang with a note which stated that the money was ready at
the Dalisay Theater. Sumilang then wrote on the same note that the money should be brought to
the restaurant. At the same time he requested Lee to exhibit the deed of sale of the car to the note
bearer.4
Then, the two Chinese were left alone in the restaurant. For Sumilang, who had left the table to
pose for pictures with some fans and come back, again left never to return. So did Chavez, who
disappeared after he left on the pretext of buying cigarettes. The two Chinese could not locate
Sumilang and Chavez. They went out to the place where the Thunderbird was parked, found that
it was gone. They then immediately reported its loss to the police. Much later, the NBI recovered
the already repainted car and impounded it.
Right after the meeting at Eugene's, Chavez, Sumilang and Asistio converged that same day at
Barrio Fiesta, a restaurant at Highway 54 near the Balintawak monument in Caloocan. There,
Asistio handed to Sumilang P1,000.00 cash and a golf set worth P800.00 as the latter's share in
the transaction. On the 14th of November, the registration of the car was transferred in the name
of Sumilang in Cavite City, and three days later, in the name of Asistio in Caloocan.
From the court's decision, Ricardo Sumilang's version, corroborated in part by Asistio, may be
condensed as follows:
In the last week of September, 1962, Sumilang saw Roger Chavez at a gas station. The latter
informed him that there was a Thunderbird from Clark Field for sale for a price between
P20,000.00 and P22,000.00. Chavez said that it could be held for him with a down payment of
P10,000.00.
To raise this sum, Sumilang and Chavez, on October 1, went to the house of a certain Nena
Hernaez de los Reyes who wrote out a check for P5,000.00 as a loan to Sumilang. That check
was exhibited in court. Sumilang and Chavez then went to Pasay City to see a certain Mario
Baltazar, an agent of the Pasay City Mayor, and Narsing Cailles, Chief of the Fire Department.
Sumilang asked the two for a P10,000-loan backed up by the P5,000.00-check aforesaid on
condition that it should not be cashed immediately as there were not enough funds therefor.
Baltazar and Cailles agreed to give the money the nextday as long as the check would be left with
them and Sumilang would sign a promissory note for P10,000.00. Baltazar later informed
Sumilang that Chavez picked up the money the next day. Four or five days afterwards, Chavez
returned P4,000.00 to Sumilang because P6,000.00 was enough for the deposit. And so,
Sumilang gave back the P4,000.00 to Baltazar.
About the end of October or at the beginning of November, Chavez asked Sumilang for another
P3,000.00. Sumilang sent Chavez to Baltazar and Cailles, with a note requesting that they
accommodate him once more. He also sent a check, again without funds. Baltazar gave the
money after verifying the authenticity of the note.
On November 14, Chavez appeared at Sumilang's house with the news that the car was ready if
Sumilang was ready with the rest of the money. So Sumilang got P9,000.00 from his mother and
another P4,000.00 from his aparador. He immediately gave P6,000.00 to Chavez, intending to pay
out the balance upon the car's delivery. It was then that Chavez told Sumilang that the car was
already bought by a Chinese who would be the vendor.
The purchase price finally agreed upon between Sumilang and Johnson Lee was P21,000.00,
plus P500.00 agents commission at the expense of the buyer. Sumilang told Lee that he already
paid part of the price to Chavez.
At Eugene's, Chavez asked Sumilang for the balance. Sumilang accommodated. There,
Sumilang, also saw a friend, "Ging" Pascual. In the course of their conversation at the bar,
Sumilang mentioned the proposed transaction thru Chavez. Pascual warned that Chavez was a
"smart" agent and advised that Sumilang should have a receipt for his money. A certain Bimbo, a
friend of Pascual, offered to make out a receipt for Chavez to sign.
After Sumilang returned from posing for some photographs with some of his fans, Bimbo showed
him the receipt already signed by Chavez. Sumilang requested Pascual and Bimbo to sign the
receipt as witnesses. And they did. This receipt was offered as an exhibit by the prosecution and
by Sumilang.
When Sumilang was ready to leave Eugene's, Johnson Lee turned over to him the deed of sale,
the registration papers and the keys to the car. After shaking hands with Lee, Sumilang drove
away in the car with his driver at the wheel.
Two or three days afterwards, Sumilang dropped by the Barrio Fiesta on his way to a film shooting
at Bulacan. He saw Asistio with many companions. Asistio liked his Thunderbird parked outside.
Asistio offered to buy it from him for P22,500.00. As the offer was good, and knowing Asistio's and
his friends' reputation for always getting what they wanted, Sumilang consented to the sale.
Asistio tendered a down payment of P1,000.00; the balance he promised to pay the next day after
negotiating with some financing company. Before said balance could be paid, the car was
impounded.
The trial court gave evidence to Sumilang's averment, strengthened by Baltazar's and Cailles'
corroborations, that he paid good money for the car. Sumilang was thus cleared. So was Asistio
whom the trial court believed to be a mere buyer of the car. And so, the prosecution's theory of
conspiracy was discounted.
As to the other accused, the court found no case against Pedro Rebullo alias "Pita" and Lorenzo
Meneses alias "Lory". The accused "Ging" Pascual was also acquitted for in the first place he was
not identified by Johnson Lee in court.
As to Roger Chavez, however, the court had this to say: "Roger Chavez does not offer any
defense. As a matter of fact, his testimony as witness for the prosecution establishes his guilt
beyond reasonable doubt."5 The trial court branded him "a self-confessed culprit".6 The court
further continued:
It is not improbable that true to the saying that misery loves company Roger Chavez tried
to drag his co-accused down with him by coloring his story with fabrications which he
expected would easily stick together what with the newspaper notoriety of one and the
sensationalism caused by the other. But Roger Chavez' accusations of Asistio's
participation is utterly uncorroborated. And coming, as it does, from a man who has had
at least two convictions for acts not very different from those charged in this information,
the Court would be too gullible if it were to give full credence to his words even if they
concerned a man no less notorious than himself.7
The trial court then came to the conclusion that if Johnson Lee was not paid for his car, he had no
one but Roger Chavez to blame.
The sum of all these is that the trial court freed all the accused except Roger Chavez who was
found guilty beyond reasonable doubt of the crime of qualified theft. He was accordingly
sentenced to suffer an indeterminate penalty of not less than ten (10) years, one (1) day, as
minimum and not more than fourteen (14) years, eight (8) months and one (1) day as maximum, to
indemnify Dy Sun Hiok and/or Johnson Lee in the sum of P21,000.00 without subsidiary
imprisonment in case of insolvency, to undergo the accessory penalties prescribed by law, and to
pay the costs. The Thunderbird car then in the custody of the NBI was ordered to be turned over
to Ricardo Sumilang, who was directed to return to Asistio the sum of P1,000.00 unless the latter
chose to pay P21,500.00, representing the balance of the contract price for the car.
The foregoing sentence was promulgated on March 8, 1965. Roger Chavez appealed to the Court
of Appeals.
On April 18, 1968, the Court of Appeals required Atty. Natividad Marquez, counsel for Roger
Chavez, to show cause within ten days from notice why Chavez' appeal should not be considered
abandoned and dismissed. Reason for this is that said lawyer received notice to file brief on
December 28, 1967 and the period for the filing thereof lapsed on January 27, 1968 without any
brief having been filed.
On May 13, 1968, Atty. Marquez registered a detailed written explanation. She also stated that if
she were allowed to file appellant's brief she would go along with the factual findings of the court
below but will show however that its conclusion is erroneous.8
On May 14, 1968, the Court of Appeals, despite the foregoing explanation, resolved to dismiss the
appeal. A move to reconsider was unavailing. For, on June 21, 1968, the Court of Appeals,
through a per curiam resolution, disposed to maintain its May 14 resolution dismissing the appeal,
directed the City Warden of Manila where Chavez is confined by virtue of the warrant of arrest
issued by the Court of Appeals, to turn him over to Muntinlupa Bilibid Prisons pending execution of
the judgment below, and ordered remand of the case to the Quezon City court for execution of
judgment.
It was at this stage that the present proceedings were commenced in this Court.
Upon the petitions, the return, and the reply, and after hearing on oral arguments, we now come to
grips with the main problem presented.
We concentrate attention on that phase of the issues which relates petitioner's assertion that he
was compelled to testify against himself. For indeed if this one question is resolved in the
affirmative, we need not reach the others; in which case, these should not be pursued here.
1. Petitioner's plea on this score rests upon his averment, with proof, of violation of his right —
constitutionally entrenched — against self-incrimination. He asks that the hand of this Court be
made to bear down upon his conviction; that he be relieved of the effects thereof. He asks us to
consider the constitutional injunction that "No person shall be compelled to be a witness against
himself,"9 fully echoed in Section 1, Rule 115, Rules of Court where, in all criminal prosecutions,
the defendant shall be entitled: "(e) To be exempt from being a witness against himself." .
It has been said that forcing a man to be a witness against himself is at war with "the
fundamentals of a republican government"; 10 that [i]t may suit the purposes of despotic power but
it can not abide the pure atmosphere of political liberty and personal freedom." 11 Mr. Justice Abad
Santos recounts the historical background of this constitutional inhibition, thus: " "The
maxim Nemo tenetur seipsum accusare had its origin in a protest against the inquisitorial and
manifestly unjust methods of interrogating accused persons, which has long obtained in the
continental system, and, until the expulsion of the Stuarts from the British throne in 1688, and the
erection of additional barriers for the protection of the people against the exercise of arbitrary
power, was not uncommon even in England. While the admissions of confessions of the prisoner,
when voluntarily and freely made, have always ranked high in the scale of incriminating evidence,
if an accused person be asked to explain his apparent connection with a crime under
investigation, the ease with which the questions put to him may assume an inquisitorial character,
the temptation to press, the witness unduly, to browbeat him if he be timid or reluctant, to push him
into a corner, and to entrap him into fatal contradictions, which is so painfully evident in many of
the earlier state trials, notably in those of Sir Nicholas Throckmorton, and Udal, the Puritan
minister, made the system so odious as to give rise to a demand for its total abolition. The change
in the English criminal procedure in that particular seems to be founded upon no statute and no
judicial opinion, but upon a general and silent acquiescence of the courts in a popular demand.
But, however adopted, it has become firmly embedded in English, as well as in American
jurisprudence. So deeply did the iniquities of the ancient system impress themselves upon the
minds of the American colonists that the states, with one accord, made a denial of the right to
question an accused person a part of their fundamental law, so that a maxim which in England
was a mere rule of evidence, became clothed in this country with the impregnability of a
constitutional enactment." (Brown vs. Walker, 161 U.S., 591, 597; 40 Law. ed., 819, 821)." 12 Mr.
Justice Malcolm, in expressive language, tells us that this maxim was recognized in England in the
early days "in a revolt against the thumbscrew and the rack." 13 An old Philippine case
[1904] 14 speaks of this constitutional injunction as "older than the Government of the United
States"; as having "its origin in a protest against the inquisitorial methods of interrogating the
accused person"; and as having been adopted in the Philippines "to wipe out such practices as
formerly prevailed in these Islands of requiring accused persons to submit to judicial examinations,
and to give testimony regarding the offenses with which they were charged."
So it is then that this right is "not merely a formal technical rule the enforcement of which is left to
the discretion of the court"; it is mandatory; it secures to a defendant a valuable and substantive
right; 15 it is fundamental to our scheme of justice. Just a few months ago, the Supreme Court of
the United States (January 29, 1968), speaking thru Mr. Justice Harlan warned that "[t]he
constitutional privilege was intended to shield the guilty and imprudent as well as the innocent and
foresighted." 16
It is in this context that we say that the constitutional guarantee may not be treated with
unconcern. To repeat, it is mandatory; it secures to every defendant a valuable and substantive
right. Tañada and Fernando (Constitution of the Philippines, 4th ed., vol. I, pp. 583-584) take note
of U.S. vs. Navarro, supra, which reaffirms the rule that the constitutional proscription was
established on broad grounds of public policy and humanity; of policy because it would place the
witness against the strongest temptation to commit perjury, and of humanity because it would be
to extort a confession of truth by a kind of duress every species and degree of which the law
abhors. 17
Therefore, the court may not extract from a defendant's own lips and against his will an admission
of his guilt. Nor may a court as much as resort to compulsory disclosure, directly or indirectly, of
facts usable against him as a confession of the crime or the tendency of which is to prove the
commission of a crime. Because, it is his right to forego testimony, to remain silent, unless he
chooses to take the witness stand — with undiluted, unfettered exercise of his own free, genuine
will.
Compulsion as it is understood here does not necessarily connote the use of violence; it may be
the product of unintentional statements. Pressure which operates to overbear his will, disable him
from making a free and rational choice, or impair his capacity for rational judgment would in our
opinion be sufficient. So is moral coercion "tending to force testimony from the unwilling lips of the
defendant." 18
2. With the foregoing as guideposts, we now turn to the facts. Petitioner is a defendant in a
criminal case. He was called by the prosecution as the first witness in that case to testify for the
People during the first day of trial thereof. Petitioner objected and invoked the privilege of self-
incrimination. This he broadened by the clear cut statement that he will not testify. But petitioner's
protestations were met with the judge's emphatic statement that it "is the right of the prosecution to
ask anybody to act as witness on the witness stand including the accused," and that defense
counsel "could not object to have the accused called on the witness stand." The cumulative impact
of all these is that accused-petitioner had to take the stand. He was thus peremptorily asked to
create evidence against himself. The foregoing situation molds a solid case for petitioner, backed
by the Constitution, the law, and jurisprudence.
Petitioner, as accused, occupies a different tier of protection from an ordinary witness. Whereas
an ordinary witness may be compelled to take the witness stand and claim the privilege as each
question requiring an incriminating answer is shot at him, 19 and accused may altogether refuse to
take the witness stand and refuse to answer any and all questions. 20 For, in reality, the purpose of
calling an accused as a witness for the People would be to incriminate him. 21 The rule positively
intends to avoid and prohibit the certainly inhuman procedure of compelling a person "to furnish
the missing evidence necessary for his conviction." 22 This rule may apply even to a co-defendant
in a joint trial.23
And the guide in the interpretation of the constitutional precept that the accused shall not be
compelled to furnish evidence against himself "is not the probability of the evidence but it is
the capability of abuse." 24 Thus it is, that it was undoubtedly erroneous for the trial judge to
placate petitioner with these words:.
What he will testify to does not necessarily incriminate him, counsel.
And there is the right of the prosecution to ask anybody to act as witness on the witness-
stand including the accused.
If there should be any question that is incriminating then that is the time for counsel to
interpose his objection and the court will sustain him if and when the court feels that the
answer of this witness to the question would incriminate him.
Counsel has all the assurance that the court will not require the witness to answer
questions which would incriminate him.
But surely, counsel could not object to have the accused called on the witness stand.
Paraphrasing Chief Justice Marshall in Aaron Burr's Trial, Robertsons Rep. I, 208, 244, quoted in
VIII Wigmore, p. 355, 25 While a defendant's knowledge of the facts remains concealed within his
bosom, he is safe; but draw it from thence, and he is exposed" — to conviction.
The judge's words heretofore quoted — "But surely counsel could not object to have the accused
called on the witness stand" — wielded authority. By those words, petitioner was enveloped by a
coercive force; they deprived him of his will to resist; they foreclosed choice; the realities of human
nature tell us that as he took his oath to tell the truth, the whole truth and nothing but the truth, no
genuine consent underlay submission to take the witness stand. Constitutionally sound consent
was absent.
3. Prejudice to the accused for having been compelled over his objections to be a witness for the
People is at once apparent. The record discloses that by leading questions Chavez, the accused,
was made to affirm his statement given to the NBI agents on July 17, 1963 at 5:00 o'clock in the
afternoon. 26 And this statement detailed the plan and execution thereof by Sumilang (Vasquez),
Asistio and himself to deprive the Chinese of his Thunderbird car. And he himself proceeded to
narrate the same anew in open court. He identified the Thunderbird car involved in the case. 27
The decision convicting Roger Chavez was clearly of the view that the case for the People was
built primarily around the admissions of Chavez himself. The trial court described Chavez as the
"star witness for the prosecution". Indeed, the damaging facts forged in the decision were drawn
directly from the lips of Chavez as a prosecution witness and of course Ricardo Sumilang for the
defense. There are the unequivocal statements in the decision that "even accused Chavez"
identified "the very same Thunderbird that Johnson Lee had offered for sale"; that Chavez
"testimony as witness for the prosecution establishes his guilt beyond reasonable doubt and that
Chavez is "a self-confessed culprit". 1äwphï1.ñët
4. With all these, we have no hesitancy in saying that petitioner was forced to testify to incriminate
himself, in full breach of his constitutional right to remain silent. It cannot be said now that he has
waived his right. He did not volunteer to take the stand and in his own defense; he did not offer
himself as a witness; on the contrary, he claimed the right upon being called to testify. If petitioner
nevertheless answered the questions inspite of his fear of being accused of perjury or being put
under contempt, this circumstance cannot be counted against him. His testimony is not of his own
choice. To him it was a case of compelled submission. He was a cowed participant in proceedings
before a judge who possessed the power to put him under contempt had he chosen to remain
silent. Nor could he escape testifying. The court made it abundantly clear that his testimony at
least on direct examination would be taken right then and thereon the first day of the trial.
It matters not that, after all efforts to stave off petitioner's taking the stand became fruitless, no
objections to questions propounded to him were made. Here involve is not a mere question of self-
incrimination. It is a defendant's constitutional immunity from being called to testify against himself.
And the objection made at the beginning is a continuing one. 1äwphï1.ñët
There is therefore no waiver of the privilege. "To be effective, a waiver must be certain
and unequivocal, and intelligently, understandably, and willingly made; such waiver following only
where liberty of choice has been fully accorded. After a claim a witness cannot properly be held to
have waived his privilege on vague and uncertain evidence." 28 The teaching in Johnson vs.
Zerbst 29 is this: "It has been pointed out that "courts indulge every reasonable presumption
against waiver" of fundamental constitutional rights and that we "do not presume acquiescence in
the loss of fundamental rights." A waiver is ordinarily an intentional relinquishment or
abandonment of a known right or privilege." Renuntiatio non praesumitur.
The foregoing guidelines, juxtaposed with the circumstances of the case heretofore adverted to,
make waiver a shaky defense. It cannot stand. If, by his own admission, defendant proved his
guilt, still, his original claim remains valid. For the privilege, we say again, is a rampart that gives
protection - even to the guilty. 30
5. The course which petitioner takes is correct. Habeas corpus is a high prerogative writ. 31 It is
traditionally considered as an exceptional remedy to release a person whose liberty is illegally
restrained such as when the accused's constitutional rights are disregarded. 32 Such defect results
in the absence or loss of jurisdiction 33 and therefore invalidates the trial and the consequent
conviction of the accused whose fundamental right was violated. 34 That void judgment of
conviction may be challenged by collateral attack, which precisely is the function of habeas
corpus. 35 This writ may issue even if another remedy which is less effective may be availed of by
the defendant. 36Thus, failure by the accused to perfect his appeal before the Court of Appeals
does not preclude a recourse to the writ. 37 The writ may be granted upon a judgment already
final. 38 For, as explained in Johnson vs. Zerbst, 39 the writ of habeas corpus as an extraordinary
remedy must be liberally given effect 40 so as to protect well a person whose liberty is at stake.
The propriety of the writ was given the nod in that case, involving a violation of another
constitutional right, in this wise:
Since the Sixth Amendment constitutionally entitles one charged with crime to the
assistance of Counsel, compliance with this constitutional mandate is an essential
jurisdictional prerequisite to a Federal Court's authority. When this right is properly
waived, the assistance of Counsel is no longer a necessary element of the Court's
jurisdiction to proceed to conviction and sentence. If the accused, however, is not
represented by Counsel and has not competently and intelligently waived his
 constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid
conviction and sentence depriving him of his liberty. A court's jurisdiction at the beginning
of trial may be lost "in the course of the proceedings" due to failure to complete the
court — as the Sixth Amendment requires — by providing Counsel for an accused who is
unable to obtain Counsel, who has not intelligently waived this constitutional guaranty,
and whose life or liberty is at stake. If this requirement of the Sixth Amendment is not
complied with, the court no longer has jurisdiction to proceed. The judgment of conviction
pronounced by a court without jurisdiction is void, and one imprisoned thereundermay
obtain release of habeas corpus. 41

Under our own Rules of Court, to grant the remedy to the accused Roger Chavez whose case
presents a clear picture of disregard of a constitutional right is absolutely proper. Section 1 of Rule
102 extends the writ, unless otherwise expressly provided by law, "to all cases of illegal
confinement or detention by which any person is deprived of his liberty, or by which the rightful
custody of any person is withheld from the person entitled thereto.

Just as we are about to write finis to our task, we are prompted to restate that: "A void judgment is
in legal effect no judgment. By it no rights are divested. From it no rights can be obtained. Being
worthless in itself, all proceedings founded upon it are equally worthless. It neither binds nor bars
any one. All acts performed under it and all claims flowing out of it are void. The parties attempting
to enforce it may be responsible as trespassers. ... " 42

6. Respondents' return 43 shows that petitioner is still serving under a final and valid judgment of
conviction for another offense. We should guard against the improvident issuance of an order
discharging a petitioner from confinement. The position we take here is that petitioner herein is
entitled to liberty thru habeas corpus only with respect to Criminal Case Q-5311 of the Court of
First Instance of Rizal, Quezon City Branch, under which he was prosecuted and convicted.

Upon the view we take of this case, judgment is hereby rendered directing the respondent Warden
of the City Jail of Manila or the Director of Prisons or any other officer or person in custody of
petitioner Roger Chavez by reason of the judgment of the Court of First Instance of Rizal, Quezon
City Branch, in Criminal Case Q-5311, entitled "People of the Philippines, plaintiff, vs. Ricardo
Sumilang, et al., accused," to discharge said Roger Chavez from custody, unless he is held, kept
in custody or detained for any cause or reason other than the said judgment in said Criminal Case
Q-5311 of the Court of First Instance of Rizal, Quezon City Branch, in which event the discharge
herein directed shall be effected when such other cause or reason ceases to exist.

No costs. So ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Angeles and Fernando, JJ., concur.
Castro, J., concurs in a separate opinion.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-19052 December 29, 1962
MANUEL F. CABAL, petitioner,
vs.
HON. RUPERTO KAPUNAN, JR., and THE CITY FISCAL OF MANILA, respondents.
Francisco Carreon for petitioner.
Assistant City Fiscal Manuel T. Reyes for respondent City of Manila.
CONCEPCION, J.:
This is an original petition for certiorari and prohibition with preliminary injunction, to restrain the
Hon. Ruperto Kapunan, Jr., as Judge of the Court of First Instance of Manila, from further
proceeding in Criminal Case No. 60111 of said court, and to set aside an order of said
respondent, as well as the whole proceedings in said criminal case. .
On or about August 1961, Col. Jose C. Maristela of the Philippine Army filed with the Secretary of
Nation Defense a letter-complaint charging petitioner Manuel Cabal, then Chief of Staff of the
Armed Forces of the Philippines, with "graft, corrupt practices, unexplained wealth, conduct
unbecoming of an officer and gentleman dictatorial tendencies, giving false statements of his as
sets and liabilities in 1958 and other equally reprehensible acts". On September 6, 1961, the
President of the Philippines created a committee of five (5) members, consisting of former Justice
Marceliana R. Montemayor, as Chairman, former Justices Buenaventura Ocampo and Sotero
Cabahug, and Generals Basilio J. Valdez and Guillermo B. Francisco, to investigate the charge of
unexplained wealth contained in said letter-complaint and submit its report and recommendations
as soon as possible. At the beginning of the investigation, on September 15, 1961, the Committee,
upon request of complainant Col. Maristela, or considered petitioner herein to take the witness
stand and be sworn to as witness for Maristela, in support of his aforementioned charge of
unexplained wealth. Thereupon, petitioner objected, personally and through counsel, to said
request of Col. Maristela and to the aforementioned order of the Committee, invoking his
constitutional right against self-incrimination. The Committee insisted that petitioner take the
witness stand and be sworn to, subject to his right to refuse to answer such questions as may be
incriminatory. This notwithstanding, petitioner respectfully refused to be sworn to as a witness to
take the witness stand. Hence, in a communication dated September 18, 1961, the Committee
referred the matter to respondent City Fiscal of Manila, for such action as he may deem proper.
On September 28, 1961, the City Fiscal filed with the Court of First Instance of Manila a "charge"
reading as follows:
The undersigned hereby charges Manuel F. Cabal with contempt under section 580 of the
Revised Administrative Code in relation to sections I and 7, Rule 64 of the Rules of Court,
committed as follows:
That on or about September 15, 1961, in the investigation conducted at the U.P.
Little Theater:, Padre Faura, Manila, by the Presidential Committee, which was
created by the President of the Republic of the Philippines in accordance with
law to investigate the charges of alleged acquisition by respondent of
unexplained wealth and composed of Justice Marceliano Montemayor, as
Chairman, and Justices Buenaventura Ocampo and Sotero Cabahug and
Generals Basilio Valdez and Guillermo Francisco, as members, with the power,
among others, to compel the attendance of witnesses and take their testimony
under oath, respondent who was personally present at the time before the
Committee in compliance with a subpoena duly issued to him, did then and there
willfully, unlawfully, and contumaciously, without any justifiable cause or reason
refusal and fail and still refuses and fails to obey the lawful order of the
Committee to take the witness stand, be sworn and testify as witness in said
investigation, in utter disregard of the lawful authority of the Committee and
thereby obstructing and degrading the proceedings before said body.
Wherefore, it is respectfully prayed that respondent be summarily adjudged guilty of
contempt of the Presidential Committee and accordingly disciplined as in contempt of
court imprisonment until such time as he shall obey the subject order of said committee.
This charge, docketed as Criminal Case No. 60111 of said court, was assigned to Branch XVIII
thereof, presided over by respondent Judge. On October 2, 1961, the latter issued an order
requiring petitioner to show cause and/or answer the charge filed against him within ten (10) days.
Soon thereafter, or on October 4, 1961, petitioner filed with respondent Judge a motion to quash
the charge and/or order to show cause, upon the ground: (1) that the City Fiscal has neither
authority nor personality to file said char and the same is null and void, for, if criminal, the charge
has been filed without a preliminary investigation, and, civil, the City Fiscal may not file it, his
authority in respect of civil cases being limited to representing the City of Manila; (2) that the facts
charged constitute no offense for section 580 of the Revised Administrative Code, upon which the
charge is based, violates due process, in that it is vague and uncertain as regards the offense
therein defined and the fine imposable therefor and that it fail to specify whether said offense shall
be treated also contempt of an inferior court or of a superior court (3) that more than one offense
is charged, for the contempt imputed to petitioner is sought to be punished as contempt of an
inferior court, as contempt of a superior court an as contempt under section 7 of Rule 64 of the
Rules Court; (4) that the Committee had no power to order an require petitioner to take the witness
stand and be sworn to, upon the request of Col. Maristela, as witness for the latter, inasmuch as
said order violates petitioner's constitutional right against self-incrimination.
By resolution dated October 14, 1961. respondent Judge denied said motion to quash.
Thereupon, or on October 20, 1961, petitioner began the present action for the purpose adverted
to above, alleging that, unless restrained by this court, respondent Judge may summarily punish
him for contempt, and that such action would not be appealable.
In their answer, respondents herein allege, inter alia, that the investigation being conducted by the
Committee above referred to is administrative, not criminal, in nature; that the legal provision relied
upon by petitioner in relation to preliminary investigations (Section '08-C, Republic Act No. 409, as
amended by Republic Act No. 1201) is inapplicable to contempt proceedings; that, under section
580 of the Revised Administrative Code. contempt against an administrative officer is to be dealt
with as contempt of a superior court; that petitioner herein is charged with only one offense; and
that, tinder the constitutional guarantee against self-incrimination, petitioner herein may refuse, not
to take the witness stand, but to answer incriminatory questions.
At the outset, it is not disputed that the accused in a criminal case may refuse, not only to answer
incriminatory questions, but, also, to take the witness stand (3 Wharton's Criminal Evidence, pp.
1959-1960; 98 C.J.S., p. 264). Hence, the issue before us boils down to whether or not the
proceedings before the aforementioned Committee is civil or criminal in character.
In this connection, it should be noted that, although said Committee was created to investigate the
administrative charge of unexplained wealth, there seems to be no question that Col. Maristela
does not seek the removal of petitioner herein as Chief of Staff of the Armed Forces of the
Philippines. As a matter of fact he no longer holds such office. It seems, likewise conceded that
the purpose of the charge against petitioner is to apply the provisions of Republic Act No. 1379, as
amended, otherwise known as the Anti-Graft Law, which authorizes the forfeiture to the State of
property of a public officer or employee which is manifestly out of proportion to his salary as such
public officer or employee and his other lawful income and the income from legitimately acquired
property. Such for forfeiture has been held, however, to partake of the nature of a penalty.
In a strict signification, a forfeiture is a divestiture property without compensation, in
consequence of a default an offense, and the term is used in such a sense in this article.
A forfeiture, as thus defined, is imposed by way of punishment not by the mere
convention of the parties, but by the lawmaking power, to insure a prescribed course of
conduct. It is a method deemed necessary by the legislature to restrain the commission of
an offense and to aid in the prevention of such a offense. The effect of such a forfeiture is
to transfer the title to the specific thing from the owner to the sovereign power (23 Am.
Jur. 599) (Emphasis ours.)
In Black's Law Dictionary a "forfeiture" is defined to be "the incurring of a liability to pay a
definite sum of money as the consequence of violating the provisions of some statute or
refusal to comply with some requirement of law." It may be said to be a penalty imposed
for misconduct or breach of duty. (Com. vs. French, 114 S.W. 255.)
As a consequence, proceedings for forfeiture of proper are deemed criminal or penal, and, hence,
the exemption of defendants in criminal case from the obligation to be witnesses against
themselves are applicable thereto.
Generally speaking, informations for the forfeiture of goods that seek no judgment of fine
or imprisonment against any person are deemed to be civil proceedings in rem. Such
proceedings are criminal in nature to the extent that where the person using the res
illegally is the owner or rightful possessor of it, the forfeiture proceeding is in the nature of
a punishment. They have been held to be so far in the nature criminal proceedings that a
general verdict on several count in an information is upheld if one count is
good. According to the authorities such proceedings, where the owner of the property
appears, are so far considered as quasi-criminal proceeding as to relieve the owner from
being a witness against himself and to prevent the compulsory production of his books
and papers. ... (23 Am. Jur. 612; emphasis ours.)
Although the contrary view formerly obtained, the late decisions are to the effect that suits
for forfeitures incurred by the commission of offenses against the law are so far of quasi-
criminal nature as to be within the reason of criminal proceedings for all purposes of ...
that portion of the Fifth Amendment which declares that no person shall be compelled in
any criminal case to be a witness against himself. .... It has frequently been held upon
constitutional grounds under the various State Constitution, that a witness or party called
as witness cannot be made to testify against himself as to matters which would subject
his property to forfeiture. At early common law no person could be compelled to testify
against himself or to answer any question which would have had a tendency to expose
his property to a forfeiture or to form a link in a chain of evidence for that purpose, as well
as to incriminate him. Under this common-law doctrine of protection against compulsory
disclosures which would tend to subject the witness to forfeiture, such protection was
claimed and availed of in some early American cases without placing the basis of the
protection upon constitutional grounds. (23 Am. Jur., 616; emphasis ours.)
Proceedings for forfeitures are generally considered to be civil and in the nature of
proceedings in rem. The statute providing that no judgment or other proceedings in civil
cases shall be arrested or reversed for any defect or want of form is applicable to them. In
some aspects, however, suits for penalties and forfeitures are of quasi-criminal nature
and within the reason of criminal proceedings for all the purposes of ... that portion of the
Fifth Amendment which declares, that no person shall be compelled in any criminal case
to be a witness against himself. The proceeding is one against the owner, as well as
against the goods; for it is his breach of the laws which has to be proved to establish the
forfeiture and his property is sought to be forfeited. (15 Am. Jur., Sec. 104, p. 368;
emphasis ours.)lawphil.net
The rule protecting a person from being compelled to furnish evidence which would
incriminate him exists not only when he is liable criminally to prosecution and
punishment, but also when his answer would tend to expose him to a ... forfeiture .... (58
Am. Jur., See. 43, p. 48; emphasis ours.)
As already observed, the various constitutions provide that no person shall be compelled
in any criminal case to be a witness against himself. This prohibition against compelling a
person to take the stand as a witness against himself applied only to criminal, quasi-
criminal, and penal proceedings, including a proceeding civil in form for forfeiture of
property by reason of the commission of an offense, but not a proceeding in which the
penalty recoverable is civil or remedial in nature, .... (58 Am. Jur., Sec. 44, p. 49:
emphasis ours.)
The privilege of a witness not to incriminate himself is not infringed by merely asking the
witness a question which he refuses to answer. The privilege is simply an option of
refusal, and not a prohibition of inquiry. A question is not improper merely because the
answer may tend to incriminate but, where a witness exercises his constitutional right not
to answer, a question by counsel as to whether the reason for refusing to answer is
because the answer may tend to incriminate the witness is improper.
The possibility that the examination of the witness will be pursued to the extent of
requiring self-incrimination will not justify the refusal to answer questions. However, where
 the position of the witness is virtually that of an accused on trial, it would appear that he WHEREFORE, the writ prayed for is granted and respondent Judge hereby enjoined permanently
may invoke the privilege in support of a blanket refusal to answer any and all questions. from proceeding further in Criminal Case No. 60111 of the Court of First Instance of Manila. It is so
(C.J.S., p. 252; emphasis ours.) ordered.

A person may not be compelled to testify in an action against him for a penalty or to
answer any question as a witness which would subject him to a penalty or forfeiture,
where the penalty or forfeiture is imposed as a vindication of the public justice of the
state.

In general, both at common law and under a constitution provision against compulsory
self-incrimination, a person may not be compelled to answer any question as a witness
which would subject him to a penalty orforfeiture, or testify in action against him for a
penalty.

The privilege applies where the penalty or forfeiture recoverable, or is imposed in

vindication of the public justice the state as a statutory fine or penalty, or a fine or penalty
for violation of a municipal ordinance, even though the action or proceeding for its
enforcement is not brought in a criminal court but is prosecuted through the modes of
procedure applicable to ordinary civil remedy. (98 C. J. S., pp. 275-6.)

Thus, in Boyd vs. U.S. (116 U.S. 616, 29 L. ed. 746), it was held that the information, in a
proceeding to declaration a forfeiture of certain property because of the evasion of a certain
revenue law, "though technically a civil proceeding is in substance and effect a criminal one", and
that suits for penalties and forfeitures are within the reason criminal proceedings for the purposes
of that portion the Fifth Amendment of the Constitution of the U.S. which declares that no person
shall be compelled in a criminal case to be a witness against himself. Similarly, a proceeding for
the removal of an officer was held, in Thurston vs. Clark (107 Cal. 285, 40 pp. 435, 437), to be in
substance criminal, for said portion of the Fifth Amendment applies "to all cases in which the
action prosecution is not to establish, recover or redress private and civil rights, but to try and
punish persons charged with the commission of public offenses" and "a criminal case is a action,
suit or cause instituted to punish an infraction the criminal laws, and, with this object in view, it
matters not in what form a statute may clothe it; it is still a criminal case ...". This view was, in
effect confirmed in Lees vs. U.S. (37 L. ed. 1150-1151). Hence, the Lawyer Reports Annotated
(Vol. 29, p. 8), after an extensive examination of pertinent cases, concludes that said constitutional
provision applies whenever the proceeding is not "purely remedial", or intended "as a redress for
a private grievance", but primarily to punish "a violation of duty or a public wrong and to deter
others from offending in likewise manner. ...".

We are unmindful of the doctrine laid down in Almeda vs. Perez, L-18428 (August 30, 1962) in
which the theory that, after the filing of respondents' answer to a petition for forfeiture under
Republic Act No. 1379, said petition may not be amended as to substance pursuant to our rules of
criminal procedure, was rejected by this Court upon the ground that said forfeiture proceeding in
civil in nature. This doctrine refers, however, to the purely procedural aspect of said proceeding,
and has no bearing the substantial rights of the respondents therein, particularly their
constitutional right against self-incrimination.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-25018 May 26, 1969
ARSENIO PASCUAL, JR., petitioner-appellee,
vs.
BOARD OF MEDICAL EXAMINERS, respondent-appellant, SALVADOR GATBONTON and
ENRIQUETA GATBONTON, intervenors-appellants.
Conrado B. Enriquez for petitioner-appellee.
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General Antonio A. Torres and
Solicitor Pedro A. Ramirez for respondent-appellant.
Bausa, Ampil and Suarez for intervenors-appellants.
FERNANDO, J.:
The broad, all-embracing sweep of the self-incrimination clause,1 whenever appropriately invoked,
has been accorded due recognition by this Court ever since the adoption of the
Constitution.2 Bermudez v. Castillo,3 decided in 1937, was quite categorical. As we there stated:
"This Court is of the opinion that in order that the constitutional provision under consideration may
prove to be a real protection and not a dead letter, it must be given a liberal and broad
interpretation favorable to the person invoking it." As phrased by Justice Laurel in his concurring
opinion: "The provision, as doubtless it was designed, would be construed with the utmost
liberality in favor of the right of the individual intended to be served." 4
Even more relevant, considering the precise point at issue, is the recent case of Cabal v.
Kapunan,5where it was held that a respondent in an administrative proceeding under the Anti-
Graft Law 6 cannot be required to take the witness stand at the instance of the complainant. So it
must be in this case, where petitioner was sustained by the lower court in his plea that he could
not be compelled to be the first witness of the complainants, he being the party proceeded against
in an administrative charge for malpractice. That was a correct decision; we affirm it on appeal.
Arsenio Pascual, Jr., petitioner-appellee, filed on February 1, 1965 with the Court of First Instance
of Manila an action for prohibition with prayer for preliminary injunction against the Board of
Medical Examiners, now respondent-appellant. It was alleged therein that at the initial hearing of
an administrative case7 for alleged immorality, counsel for complainants announced that he would
present as his first witness herein petitioner-appellee, who was the respondent in such malpractice
charge. Thereupon, petitioner-appellee, through counsel, made of record his objection, relying on
the constitutional right to be exempt from being a witness against himself. Respondent-appellant,
the Board of Examiners, took note of such a plea, at the same time stating that at the next
scheduled hearing, on February 12, 1965, petitioner-appellee would be called upon to testify as
such witness, unless in the meantime he could secure a restraining order from a competent
authority.
Petitioner-appellee then alleged that in thus ruling to compel him to take the witness stand, the
Board of Examiners was guilty, at the very least, of grave abuse of discretion for failure to respect
the constitutional right against self-incrimination, the administrative proceeding against him, which
could result in forfeiture or loss of a privilege, being quasi-criminal in character. With his assertion
that he was entitled to the relief demanded consisting of perpetually restraining the respondent
Board from compelling him to testify as witness for his adversary and his readiness or his
willingness to put a bond, he prayed for a writ of preliminary injunction and after a hearing or trial,
for a writ of prohibition.
On February 9, 1965, the lower court ordered that a writ of preliminary injunction issue against the
respondent Board commanding it to refrain from hearing or further proceeding with such an
administrative case, to await the judicial disposition of the matter upon petitioner-appellee posting
a bond in the amount of P500.00.
The answer of respondent Board, while admitting the facts stressed that it could call petitioner-
appellee to the witness stand and interrogate him, the right against self-incrimination being
available only when a question calling for an incriminating answer is asked of a witness. It further
elaborated the matter in the affirmative defenses interposed, stating that petitioner-appellee's
remedy is to object once he is in the witness stand, for respondent "a plain, speedy and adequate
remedy in the ordinary course of law," precluding the issuance of the relief sought. Respondent
Board, therefore, denied that it acted with grave abuse of discretion.
There was a motion for intervention by Salvador Gatbonton and Enriqueta Gatbonton, the
complainants in the administrative case for malpractice against petitioner-appellee, asking that
they be allowed to file an answer as intervenors. Such a motion was granted and an answer in
intervention was duly filed by them on March 23, 1965 sustaining the power of respondent Board,
which for them is limited to compelling the witness to take the stand, to be distinguished, in their
opinion, from the power to compel a witness to incriminate himself. They likewise alleged that the
right against self-incrimination cannot be availed of in an administrative hearing.
A decision was rendered by the lower court on August 2, 1965, finding the claim of petitioner-
appellee to be well-founded and prohibiting respondent Board "from compelling the petitioner to
act and testify as a witness for the complainant in said investigation without his consent and
against himself." Hence this appeal both by respondent Board and intervenors, the Gatbontons.
As noted at the outset, we find for the petitioner-appellee.
1. We affirm the lower court decision on appeal as it does manifest fealty to the principle
announced by us in Cabal v. Kapunan. 8 In that proceeding for certiorari and prohibition to annul an
order of Judge Kapunan, it appeared that an administrative charge for unexplained wealth having
been filed against petitioner under the Anti-Graft Act,9the complainant requested the investigating
committee that petitioner be ordered to take the witness stand, which request was granted. Upon
petitioner's refusal to be sworn as such witness, a charge for contempt was filed against him in the
sala of respondent Judge. He filed a motion to quash and upon its denial, he initiated this
proceeding. We found for the petitioner in accordance with the well-settled principle that "the
accused in a criminal case may refuse, not only to answer incriminatory questions, but, also, to
take the witness stand."
It was noted in the opinion penned by the present Chief Justice that while the matter referred to an right to a private enclave where he may lead a private life. That right is the hallmark of our
a administrative charge of unexplained wealth, with the Anti-Graft Act authorizing the forfeiture of democracy." 16 In the light of the above, it could thus clearly appear that no possible objection
whatever property a public officer or employee may acquire, manifestly out proportion to his salary could be legitimately raised against the correctness of the decision now on appeal. We hold that in
and his other lawful income, there is clearly the imposition of a penalty. The proceeding for an administrative hearing against a medical practitioner for alleged malpractice, respondent Board
forfeiture while administrative in character thus possesses a criminal or penal aspect. The case of Medical Examiners cannot, consistently with the self-incrimination clause, compel the person
before us is not dissimilar; petitioner would be similarly disadvantaged. He could suffer not the proceeded against to take the witness stand without his consent.
forfeiture of property but the revocation of his license as a medical practitioner, for some an even
greater deprivation. WHEREFORE, the decision of the lower court of August 2, 1965 is affirmed. Without
pronouncement as to costs.
To the argument that Cabal v. Kapunan could thus distinguished, it suffices to refer to an
American Supreme Court opinion highly persuasive in character. 10 In the language of Justice Reyes, Dizon, Makalintal, Zaldivar, Sanchez and Capistrano, JJ., concur.
Douglas: "We conclude ... that the Self-Incrimination Clause of the Fifth Amendment has been Teehankee and Barredo, JJ., took no part.
absorbed in the Fourteenth, that it extends its protection to lawyers as well as to other individuals, Concepcion, C.J., and Castro, J., are on leave.
and that it should not be watered down by imposing the dishonor of disbarment and the
deprivation of a livelihood as a price for asserting it." We reiterate that such a principle is equally
applicable to a proceeding that could possibly result in the loss of the privilege to practice the
medical profession.

2. The appeal apparently proceeds on the mistaken assumption by respondent Board and
intervenors-appellants that the constitutional guarantee against self-incrimination should be limited
to allowing a witness to object to questions the answers to which could lead to a penal liability
being subsequently incurred. It is true that one aspect of such a right, to follow the language of
another American decision, 11 is the protection against "any disclosures which the witness may
reasonably apprehend could be used in a criminal prosecution or which could lead to other
evidence that might be so used." If that were all there is then it becomes diluted.lawphi1.ñet

The constitutional guarantee protects as well the right to silence. As far back as 1905, we had
occasion to declare: "The accused has a perfect right to remain silent and his silence cannot be
used as a presumption of his guilt." 12Only last year, in Chavez v. Court of Appeals, 13 speaking
through Justice Sanchez, we reaffirmed the doctrine anew that it is the right of a defendant "to
forego testimony, to remain silent, unless he chooses to take the witness stand — with undiluted,
unfettered exercise of his own free genuine will."

Why it should be thus is not difficult to discern. The constitutional guarantee, along with other
rights granted an accused, stands for a belief that while crime should not go unpunished and that
the truth must be revealed, such desirable objectives should not be accomplished according to
means or methods offensive to the high sense of respect accorded the human personality. More
and more in line with the democratic creed, the deference accorded an individual even those
suspected of the most heinous crimes is given due weight. To quote from Chief Justice Warren,
"the constitutional foundation underlying the privilege is the respect a government ... must accord
to the dignity and integrity of its citizens." 14

It is likewise of interest to note that while earlier decisions stressed the principle of humanity on
which this right is predicated, precluding as it does all resort to force or compulsion, whether
physical or mental, current judicial opinion places equal emphasis on its identification with the right
to privacy. Thus according to Justice Douglas: "The Fifth Amendment in its Self-Incrimination
clause enables the citizen to create a zone of privacy which government may not force to
surrender to his detriment." 15 So also with the observation of the late Judge Frank who spoke of "a
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 7081 September 7, 1912
THE UNITED STATES, plaintiff-appellee,
vs.
TAN TENG, defendant-appellant.
Chas A. McDonough, for appellant.
Office of the Solicitor General Harvey, for appellee.
JOHNSON, J.:
This defendant was charged with the crime of rape. The complaint alleged:
That on or about September 15, 1910, and before the filing of this complaint, in the city of
Manila, Philippine Islands, the said Tan Teng did willfully, unlawfully and criminally, and
employing force, lie and have carnal intercourse with a certain Oliva Pacomio, a girl 7
years of age.
After hearing the evidence, the Honorable Charles S. Lobingier, judge, found the defendant guilty
of the offense of abusos deshonestos, as defined and punished under article 439 of the Penal
Code, and sentenced him to be imprisoned for a period of 4 years 6 months and 11 days of prision
correccional, and to pay the costs.
From that sentence the defendant appealed and made the following assignments of error in this
court:
I. The lower court erred in admitting the testimony of the physicians about having taken a
certain substance from the body of the accused while he was confined in jail and
regarding the chemical analysis made of the substance to demonstrate the physical
condition of the accused with reference to a venereal disease.
II. The lower court erred in holding that the complainant was suffering from a venereal
disease produced by contact with a sick man.
III. The court erred in holding that the accused was suffering from a venereal disease.
IV. The court erred in finding the accused guilty from the evidence.
From an examination of the record it appears that the offended party, Oliva Pacomio, a girl seven
years of age, was, on the 15th day of September , 1910, staying in the house of her sister, located
on Ilang-Ilang Street, in the city of Manila; that on said day a number of Chinamen were gambling
had been in the habit of visiting the house of the sister of the offended party; that Oliva Pacomio,
on the day in question, after having taken a bath, returned to her room; that the defendant
followed her into her room and asked her for some face powder, which she gave him; that after
using some of the face powder upon his private parts he threw the said Oliva upon the floor,
placing his private parts upon hers, and remained in that position for some little time. Several days
later, perhaps a week or two, the sister of Oliva Pacomio discovered that the latter was suffering
from a venereal disease known as gonorrhea. It was at the time of this discovery that Oliva related
to her sister what happened upon the morning of the 15th of September. The sister at once put on
foot an investigation to find the Chinaman. A number of Chinamen were collected together. Oliva
was called upon to identify the one who had abused her. The defendant was not present at first.
later he arrived and Oliva identified him at once as the one who had attempted to violate her.
Upon this information the defendant was arrested and taken to the police station and stripped of
his clothing and examined. The policeman who examined the defendant swore from the venereal
disease known as gonorrhea. The policeman took a portion of the substance emitting from the
body of the defendant and turned it over to the Bureau of Science for the purpose of having a
scientific analysis made of the same. The result of the examination showed that the defendant
was suffering from gonorrhea.
During the trial the defendant objected strongly to the admissibility of the testimony of Oliva, on the
ground that because of her tender years her testimony should not be given credit. The lower court,
after carefully examining her with reference to her ability to understand the nature of an oath, held
that she had sufficient intelligence and discernment to justify the court in accepting her testimony
with full faith and credit. With the conclusion of the lower court, after reading her declaration, we
fully concur. The defense in the lower court attempted to show that the venereal disease of
gonorrhea might be communicated in ways other than by contact such as is described in the
present case, and called medical witnesses for the purpose of supporting the contention. Judge
Lobingier, in discussing that question said:
We shall not pursue the refinement of speculation as to whether or not this disease might,
in exceptional cases, arise from other carnal contact. The medical experts, as well as the
books, agree that in ordinary cases it arises from that cause, and if this was an
exceptional one, we think it was incumbent upon the defense to bring it within the
exception.
The offended party testified that the defendant had rested his private parts upon hers for some
moments. The defendant was found to be suffering from gonorrhea. The medical experts who
testified agreed that this disease could have been communicated from him to her by the contact
described. Believing as we do the story told by Oliva, we are forced to the conclusion that the
disease with which Oliva was suffering was the result of the illegal and brutal conduct of the
defendant. Proof, however, that Oliva constructed said obnoxious disease from the defendant is
not necessary to show that he is guilty of the crime. It is only corroborative of the truth of Oliva's
declaration.
The defendant attempted to prove in the lower court that the prosecution was brought for the
purpose of compelling him to pay to the sister of Oliva a certain sum of money.
The defendant testifed and brought other Chinamen to support his declaration, that the sister of
Oliva threatened to have him prosecuted if he did not pay her the sum of P60. It seems impossible
to believe that the sister, after having become convinced that Oliva had been outraged in the
manner described above, would consider for a moment a settlement for the paltry sum of P60.
Honest women do not consent to the violation of their bodies nor those of their near relatives, for
the filthy consideration of mere money.
In the court below the defendant contended that the result of the scientific examination made by
the Bureau of Science of the substance taken from his body, at or about the time he was arrested,
was not admissible in evidence as proof of the fact that he was suffering from gonorrhea. That to
admit such evidence was to compel the defendant to testify against himself. Judge Lobingier, in
discussing that question in his sentence, said:
The accused was not compelled to make any admissions or answer any questions, and
the mere fact that an object found on his person was examined: seems no more to
infringe the rule invoked, than would the introduction in evidence of stolen property taken
from the person of a thief.
The substance was taken from the body of the defendant without his objection, the examination
was made by competent medical authority and the result showed that the defendant was suffering
from said disease. As was suggested by Judge Lobingier, had the defendant been found with
stolen property upon his person, there certainly could have been no question had the stolen
property been taken for the purpose of using the same as evidence against him. So also if the
clothing which he wore, by reason of blood stains or otherwise, had furnished evidence of the
commission of a crime, there certainly could have been no objection to taking such for the purpose
of using the same as proof. No one would think of even suggesting that stolen property and the
clothing in the case indicated, taken from the defendant, could not be used against him as
evidence, without violating the rule that a person shall not be required to give testimony against
himself.
The question presented by the defendant below and repeated in his first assignment of error is not
a new question, either to the courts or authors. In the case of Holt vs. U.S. (218 U.S., 245), Mr.
Justice Holmes, speaking for the court upon this question, said:
But the prohibition of compelling a man in a criminal court to be a witness against himself,
is a prohibition of the use of physical or moral compulsion, to extort communications from
him, not an exclusion of his body as evidence, when it may be material. The objection, in
principle, would forbid a jury (court) to look at a person and compare his features with a
photograph in proof. Moreover we are not considering how far a court would go in
compelling a man to exhibit himself, for when he is exhibited, whether voluntarily or by
order, even if the order goes too far, the evidence if material, is competent.
The question which we are discussing was also discussed by the supreme court of the State of
New Jersey, in the case of State vs. Miller (71 N.J. law Reports, 527). In that case the court said,
speaking through its chancellor:
It was not erroneous to permit the physician of the jail in which the accused was confined,
to testify to wounds observed by him on the back of the hands of the accused, although
he also testified that he had the accused removed to a room in another part of the jail and
divested of his clothing. The observation made by the witness of the wounds on the
hands and testified to by him, was in no sense a compelling of the accused to be a
witness against himself. If the removal of the clothes had been forcible and the wounds
had been thus exposed, it seems that the evidence of their character and appearance
would not have been objectionable.
In that case also (State vs. Miller) the defendant was required to place his hand upon the wall of
the house where the crime was committed, for the purpose of ascertaining whether or not his hand
would have produced the bloody print. The court said, in discussing that question:
It was not erroneous to permit evidence of the coincidence between the hand of the
accused and the bloody prints of a hand upon the wall of the house where the crime was
committed, the hand of the accused having been placed thereon at the request of
persons who were with him in the house.
It may be added that a section of the wall containing the blood prints was produced before the jury
and the testimony of such comparison was like that held to be proper in another case decided by
the supreme court of New Jersey in the case of Johnson vs. State (30 Vroom, N.J. Law Reports,
271). The defendant caused the prints of the shoes to be made in the sand before the jury, and
the witnesses who had observed shoe prints in the sand at the place of the commission of the
crime were permitted to compare them with what the had observed at that place.
In that case also the clothing of the defendant was used as evidence against him.
To admit the doctrine contended for by the appellant might exclude the testimony of a physician or
a medical expert who had been appointed to make observations of a person who plead insanity as
a defense, where such medical testimony was against necessarily use the person of the
defendant for the purpose of making such examination. (People vs. Agustin, 199 N.Y., 446.) The
doctrine contended for by the appellants would also prevent the courts from making an
examination of the body of the defendant where serious personal injuries were alleged to have
been received by him. The right of the courts in such cases to require an exhibit of the injured
parts of the body has been established by a long line of decisions.
The prohibition contained in section 5 of the Philippine Bill that a person shall not be compelled to
be a witness against himself, is simply a prohibition against legal process to extract from the
defendant's own lips, against his will, an admission of his guilt.
Mr. Wigmore, in his valuable work on evidence, in discussing the question before us, said:
 If, in other words, it (the rule) created inviolability not only for his [physical control] in lower court and sentencing the defendant to be imprisoned for a period of six years of prision
whatever form exercised, then it would be possible for a guilty person to shut himself up correccional, and to pay the costs. So ordered.
in his house, with all the tools and indicia of his crime, and defy the authority of the law to
employ in evidence anything that might be obtained by forcibly overthrowing his Arellano, C.J., Torres, Mapa, Carson and Trent, JJ., concur.
possession and compelling the surrender of the evidential articles — a clear reductio ad
absurdum. In other words, it is not merely compulsion that is the kernel of the privilege, . .
. but testimonial compulsion. (4 Wigmore, sec. 2263.)

The main purpose of the provision of the Philippine Bill is to prohibit compulsory oral examination
of prisoners before trial. or upon trial, for the purpose of extorting unwilling confessions or
declarations implicating them in the commission of a crime. (People vs. Gardner, 144 N. Y., 119.)

The doctrine contended for by appellant would prohibit courts from looking at the fact of a
defendant even, for the purpose of disclosing his identity. Such an application of the prohibition
under discussion certainly could not be permitted. Such an inspection of the bodily features by the
court or by witnesses, can not violate the privilege granted under the Philippine Bill, because it
does not call upon the accused as a witness — it does not call upon the defendant for his
testimonial responsibility. Mr. Wigmore says that evidence obtained in this way from the accused,
is not testimony but his body his body itself.

As was said by Judge Lobingier:

The accused was not compelled to make any admission or answer any questions, and
the mere fact that an object found upon his body was examined seems no more to
infringe the rule invoked than would the introduction of stolen property taken from the
person of a thief.

The doctrine contended for by the appellant would also prohibit the sanitary department of the
Government from examining the body of persons who are supposed to have some contagious
disease.

We believe that the evidence clearly shows that the defendant was suffering from the venereal
disease, as above stated, and that through his brutal conduct said disease was communicated to
Oliva Pacomio. In a case like the present it is always difficult to secure positive and direct proof.
Such crimes as the present are generally proved by circumstantial evidence. In cases of rape the
courts of law require corroborative proof, for the reason that such crimes are generally committed
in secret. In the present case, taking into account the number and credibility of the witnesses, their
interest and attitude on the witness stand, their manner of testifying and the general
circumstances surrounding the witnesses, including the fact that both parties were found to be
suffering from a common disease, we are of the opinion that the defendant did, on or about the
15th of September, 1910, have such relations as above described with the said Oliva Pacomio,
which under the provisions of article 439 of the Penal Code makes him guilty of the crime
of "abusos deshonestos," and taking into consideration the fact that the crime which the defendant
committed was done in the house where Oliva Pacomio was living, we are of the opinion that the
maximum penalty of the law should be imposed. The maximum penalty provided for by law is six
years of prision correccional. Therefore let a judgment be entered modifying the sentence of the
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 32025 September 23, 1929
FRANCISCO BELTRAN, petitioner,
vs.
FELIX SAMSON, Judge of the Second Judicial District, and FRANCISCO JOSE, Provincial
Fiscal of Isabela,respondents.
Gregorio P. Formoso and Vicente Formoso for petitioner.
The respondents in their own behalf.
ROMUALDEZ, J.:
This is a petition for a writ of prohibition, wherein the petitioner complains that the respondent
judge ordered him to appear before the provincial fiscal to take dictation in his own handwriting
from the latter.
The order was given upon petition of said fiscal for the purpose of comparing the petitioner's
handwriting and determining whether or not it is he who wrote certain documents supposed to be
falsified.
There is no question as to the facts alleged in the complaint filed in these proceedings; but the
respondents contend that the petitioner is not entitled to the remedy applied for, inasmuch as the
order prayed for by the provincial fiscal and later granted by the court below, and again which the
instant action was brought, is based on the provisions of section 1687 of the Administrative Code
and on the doctrine laid down in the cases of People vs. Badilla (48 Phil., 718); United States vs.
Tan Teng (23 Phil., 145); United States vs. Ong Siu Hong (36 Phil., 735), cited by counsel for the
respondents, and in the case of Villaflor vs. Summers (41 Phil., 62) cited by the judge in the order
in question.
Of course, the fiscal under section 1687 of the Administrative Code, and the proper judge, upon
motion of the fiscal, may compel witnesses to be present at the investigation of any crime or
misdemeanor. But this power must be exercised without prejudice to the constitutional rights of
persons cited to appear.
And the petitioner, in refusing to perform what the fiscal demanded, seeks refuge in the
constitutional provision contained in the Jones Law and incorporated in General Orders, No. 58.
Therefore, the question raised is to be decided by examining whether the constitutional provision
invoked by the petitioner prohibits compulsion to execute what is enjoined upon him by the order
against which these proceedings were taken.
Said provision is found in paragraph 3, section 3 of the Jones Law which (in Spanish) reads: "Ni
se le obligara a declarar en contra suya en ningun proceso criminal" and has been incorporated in
our Criminal Procedure (General Orders, No. 58) in section 15 (No. 4 ) and section 56.
As to the extent of the privilege, it should be noted first of all, that the English text of the Jones
Law, which is the original one, reads as follows: "Nor shall be compelled in any criminal case to be
a witness against himself."
This text is not limited to declaracion but says "to be a witness." Moreover, as we are concerned
with a principle contained both in the Federal constitution and in the constitutions of several states
of the United States, but expressed differently, we should take it that these various phrasings have
a common conception.
In the interpretation of the principle, nothing turns upon the variations of wording in the
constitutional clauses; this much is conceded (ante, par. 2252). It is therefore immaterial
that the witness is protected by one constitution from 'testifying', or by another from
'furnishing evidence', or by another from 'giving evidence,' or by still another from 'being a
witness.' These various phrasings have a common conception, in respect to the form of
the protected disclosure. What is that conception? (4 Wigmore on Evidence, p. 863, 1923
ed.)
As to its scope, this privilege is not limited precisely to testimony, but extends to all giving or
furnishing of evidence.
The rights intended to be protected by the constitutional provision that no man accused of
crime shall be compelled to be a witness against himself is so sacred, and the pressure
toward their relaxation so great when the suspicion of guilt is strong and the evidence
obscure, that is the duty of courts liberally to construe the prohibition in favor of personal
rights, and to refuse to permit any steps tending toward their invasion. Hence, there is the
well-established doctrine that the constitutional inhibition is directed not merely to giving
of oral testimony, but embraces as well the furnishing of evidence by other means than by
word of mouth, the divulging, in short, of any fact which the accused has a right to hold
secret. (28 R. C. L., paragraph 20, page 434 and notes.) (Emphasis ours.)
The question, then, is reduced to a determination of whether the writing from the fiscal's dictation
by the petitioner for the purpose of comparing the latter's handwriting and determining whether he
wrote certain documents supposed to be falsified, constitutes evidence against himself within the
scope and meaning of the constitutional provision under examination.
Whenever the defendant, at the trial of his case, testifying in his own behalf, denies that a certain
writing or signature is in his own hand, he may on cross-examination be compelled to write in open
court in order that the jury maybe able to compare his handwriting with the one in question.
It was so held in the case of Bradford vs. People (43 Pacific Reporter, 1013) inasmuch as the
defendant, in offering himself as witness in his own behalf, waived his personal privileges.
Of like character is the case of Sprouse vs. Com. (81 Va., 374,378), where the judge asked the
defendant to write his name during the hearing, and the latter did so voluntarily.
But the cases so resolved cannot be compared to the one now before us. We are not concerned
here with the defendant, for it does not appear that any information was filed against the petitioner
for the supposed falsification, and still less as it a question of the defendant on trial testifying and
under cross-examination. This is only an investigation prior to the information and with a view to
filing it. And let it further be noted that in the case of Sprouse vs. Com., the defendant performed
the act voluntarily.
We have also come upon a case wherein the handwriting or the form of writing of the defendant
was obtained before the criminal action was instituted against him. We refer to the case of People
vs. Molineux (61 Northeastern Reporter, 286).
Neither may it be applied to the instant case, because there, as in the aforesaid case of Sprouse
vs. Com., the defendant voluntarily offered to write, to furnish a specimen of his handwriting.
We cite this case particularly because the court there gives prominence to the defendant's right to
decline to write, and to the fact that he voluntarily wrote. The following appears in the body of said
decision referred to (page 307 of the volume cited):
The defendant had the legal right to refuse to write for Kinsley. He preferred to accede to
the latter's request, and we can discover no ground upon which the writings thus
produced can be excluded from the case. (Emphasis ours.)
For the reason it was held in the case of First National Bank vs. Robert (41 Mich., 709; 3 N. W.,
199), that the defendant could not be compelled to write his name, the doctrine being stated as
follows:
The defendant being sworn in his own behalf denied the endorsement.
He was then cross-examined the question in regard to his having signed papers not in the
case, and was asked in particular whether he would not produce signatures made prior to
the note in suit, and whether he would not write his name there in the court. The judge
excluded all these inquiries, on objection, and it is of these rulings that complaint is made.
The object of the questions was to bring into the case extrinsic signatures, for the purpose
of comparison by the jury, and we think that the judge was correct in ruling against it.
It is true that the eminent Professor Wigmore, in his work cited (volume 4, page 878), says:
Measuring or photographing the party is not within the privilege. Nor it is
the removal or replacement of his garments or shoes. Nor is the requirement that the
party move his body to enable the foregoing things to be done. Requiring him to
make specimens of handwriting is no more than requiring him to move his body . . ." but
he cites no case in support of his last assertion on specimens of handwriting. We note
that in the same paragraph 2265, where said authors treats of "Bodily Exhibition." and
under preposition "1. A great variety of concrete illustrations have been ruled upon," he
cites many cases, among them that of People vs. Molineux (61 N. E., 286) which, as we
have seen, has no application to the case at bar because there the defendant voluntary
gave specimens of his handwriting, while here the petitioner refuses to do so and has
even instituted these prohibition proceedings that he may not be compelled to do so.
Furthermore, in the case before us, writing is something more than moving the body, or the hands,
or the fingers; writing is not a purely mechanical act, because it requires the application of
intelligence and attention; and in the case at bar writing means that the petitioner herein is to
furnish a means to determine whether or not he is the falsifier, as the petition of the respondent
fiscal clearly states. Except that it is more serious, we believe the present case is similar to that of
producing documents or chattels in one's possession. And as to such production of documents or
chattels. which to our mind is not so serious as the case now before us, the same eminent
Professor Wigmore, in his work cited, says (volume 4, page 864):
. . . 2264. Production or Inspection of Documents and Chattels. — 1. It follows that the
production of documents or chattels by a person (whether ordinary witness or party-
witness) in response to a subpoena, or to a motion to order production, or to other form
of process treating him as a witness ( i.e. as a person appearing before a tribunal to
furnish testimony on his moral responsibility for truthtelling), may be refused under the
protection of the privilege; and this is universally conceded. (And he cites the case of
People vs. Gardner, 144 N. Y., 119; 38 N.E., 1003)
We say that, for the purposes of the constitutional privilege, there is a similarity between one who
is compelled to produce a document, and one who is compelled to furnish a specimen of his
handwriting, for in both cases, the witness is required to furnish evidence against himself.
And we say that the present case is more serious than that of compelling the production of
documents or chattels, because here the witness is compelled to write and create, by means of
the act of writing, evidence which does not exist, and which may identify him as the falsifier. And
for this reason the same eminent author, Professor Wigmore, explaining the matter of the
production of documents and chattels, in the passage cited, adds:
For though the disclosure thus sought be not oral in form, and though the documents or
chattels be already in existence and not desired to be first written and created by
testimonial act or utterance of the person in response to the process, still no line can be
drawn short of any process which treats him as a witness; because in virtue it would be at
any time liable to make oath to the identity or authenticity or origin of the articles
produced. (Ibid., pp. 864-865.) (Emphasis ours.)
It cannot be contended in the present case that if permission to obtain a specimen of the
petitioner's handwriting is not granted, the crime would go unpunished. Considering the
circumstance that the petitioner is a municipal treasurer, according to Exhibit A, it should not be a
difficult matter for the fiscal to obtained genuine specimens of his handwriting. But even supposing
it is impossible to obtain specimen or specimens without resorting to the means complained
herein, that is no reason for trampling upon a personal right guaranteed by the constitution. It
might be true that in some cases criminals may succeed in evading the hand of justice, but such
cases are accidental and do not constitute the raison d' etre of the privilege. This constitutional
privilege exists for the protection of innocent persons.

With respect to the judgments rendered by this court and cited on behalf of the respondents, it
should be remembered that in the case of People vs. Badilla (48 Phil., 718), it does not appear
that the defendants and other witnesses were questioned by the fiscal against their will, and if they
did not refuse to answer, they must be understood to have waived their constitutional privilege, as
they could certainly do.

The privilege not to give self-incriminating evidence, while absolute when claimed, maybe
waived by any one entitled to invoke it. (28 R. C. L., paragraph 29, page 442, and cases
noted.)

The same holds good in the case of United States vs. Tan Teng (23 Phil., 145), were the
defendant did not opposethe extraction from his body of the substance later used as evidence
against him.

In the case of Villaflor vs. Summers (41 Phil., 62), it was plainly stated that the court preferred to
rest its decision on the reason of the case rather than on blind adherence to tradition. The said
reason of the case there consisted in that it was the case of the examination of the body by
physicians, which could be and doubtless was interpreted by this court, as being no compulsion of
the petitioner therein to furnish evidence by means of testimonial act. In reality she was not
compelled to execute any positive act, much less a testimonial act; she was only enjoined from
something preventing the examination; all of which is very different from what is required of the
petitioner of the present case, where it is sought to compel him to perform a positive, testimonial
act, to write and give a specimen of his handwriting for the purpose of comparison. Besides, in the
case of Villamor vs. Summers, it was sought to exhibit something already in existence, while in the
case at bar, the question deals with something not yet in existence, and it is precisely sought to
compel the petitioner to make, prepare, or produce by this means, evidence not yet in existence;
in short, to create this evidence which may seriously incriminate him.

Similar considerations suggest themselves to us with regard to the case of United States vs. Ong
Siu Hong (36 Phil., 735), wherein the defendant was not compelled to perform any testimonial act,
but to take out of his mouth the morphine he had there. It was not compelling him to testify or to be
a witness or to furnish, much less make, prepare, or create through a testimonial act, evidence for
his own condemnation.

Wherefore, we find the present action well taken, and it is ordered that the respondents and those
under their orders desist and abstain absolutely and forever from compelling the petitioner to take
down dictation in his handwriting for the purpose of submitting the latter for comparison.

Without express pronouncement as to costs. So ordered.

Avanceña, C. J., Johnson, Street, Villamor, Johns, and Villa-Real, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 110357 August 17, 1994
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
CARLOS Y ARELLANO, accused-appellant.
The Solicitor General for plaintiff-appellee.
Public Attorney's Office for accused-appellant.
DAVIDE, JR., J.:
In an information filed on 10 May 1991 with the Regional Trial Court (RTC) of Makati, accused
Carlos Tranca y Arellano was charged with the violation of Section 15, Article III of R.A. No. 6425,
as amended, otherwise known as the Dangerous Drugs Act of 1972. The accusatory portion of the
information reads:
That on or about 07 May 1991, in the Municipality of Makati, Metro Manila,
Philippines, a place within the jurisdiction of the Honorable Court, the above-
named accused, without the corresponding license, prescription of being
authorized by law, did, then and there, willfully, unlawfully and feloniously sell,
deliver and distribute Methamphetamine Hydrochloride (shabu), which is a
regulated drug, in violation of the above-cited law. 1
The case was docketed as Criminal Case No. 2574 and assigned to Branch 136 of the said court.
At the trial of the case on its merits after the accused had pleaded not guilty at his arraignment on
25 October 1991, 2 the prosecution presented as witnesses for its evidence in chief Sgt. Jose
Latumbo of the National Capital Region NARCOM Unit (NCRNU) with office at Camp Crame,
Quezon City, SPO1 Franciso Matundan, Police Lt. Julita De Villa, and Teresita Alberto, and
presented in rebuttal SPO1 Francisco Matundan and SPO3 Albert San Jose. The accused took
the witness stand and presented his sister, Clarita Cheng, as his witness.
Through the testimonies of Sgt. Jose Latumbo and SPO1 Francisco Matundan, the prosecution
established the following facts:
On 6 May 1991 at 11:00 p.m., a "confidential agent" or informer went to the office of the NCRNU
and proceeded to the desk of their superior, Capt. Jonathan Miano. Sgt. Jose Latumbo, SPO3
Oliver Tugade, SPO2 Albert San Jose, SPO1 Francisco Matundan, and PO3 Lilia Ochia were
summoned by Capt. Miano to a briefing. The latter told them that the informer had revealed that a
certain "Jon-Jon" (later identified as the accused) was selling shabu along Kalayaan Avenue,
Makati, Metro Manila. Capt. Miano then formed a buy-bust team with himself as the team leader,
Sgt. Latumbo as the poseur-buyer, and the rest, including the informer, forming the support group.
Capt. Miano gave to Sgt. Latumbo a P100 bill with serial number SN886097 (Exhibit "B") and
which had been dusted with fluorescent powder to be used in the buy-bust operation.
The team, riding in two cars, then proceeded to the target area. At the corner of Kalayaan Avenue
and J.B. Roxas Street, the informer spotted the accused, who was standing in front of a house,
and pointed him out to the team members. The team then circled back and alighted from their
vehicles. As planned, Sgt. Latumbo and the informer approached the accused while the rest of the
team took vantage points so as to observe the operation and close in at the opportune time.
The informer introduced Sgt. Latumbo to the accused and told the latter that his companion was
interested in buying shabu. The informer then asked the accused if he had any for sale. The
accused answered in the affirmative and asked for the quantity to be bought. Sgt. Latumbo
replied, "Pare, tapatan mo na lang itong piso ko." (In illegal drug parlance, "piso" means one
hundred pesos) The accused momentarily left the pair and entered his house. When the accused
emerged, he gave a package (Exhibit "F- 2") to Sgt. Latumbo who in turn handed to the accused
the P100 marked money. Sgt. Latumbo examined the package he received and upon ascertaining
that it was really shabu, gave the pre-arranged signal by scratching his head. Capt. Miano and the
rest of the police officers then closed in on the accused. They introduced themselves as NARCOM
agents and arrested the accused. Upon interrogation by Capt. Miano, the accused voluntarily
surrendered one plastic bag of shabu (Exhibit "F-3") and the P100 marked money (Exhibit "B").
The accused was handcuffed and taken to the NARCOM headquarters. 3
On 7 May 1991, SPO1 Matundan requested Teresita Alberto, the Chief Chemist of the Physical
Identification Division of the PNP Crime Laboratory Service at Camp Crame, to examine the
person of the accused and a P100 bill with serial number SN886097. She exposed the P100 bill to
ultraviolet radiation and found the presence of fluorescent powder thereon. She likewise exposed
the person of the accused to ultraviolet radiation and discovered fluorescent powder on his hands,
face, and on the opening of the left-side pocket of the white shorts that he was then wearing. The
results of her examination are contained in her Physical Identification Report No. PI-073-91
(Exhibit "C"). 4 On the same date, SPO1 Matundan came to the office of Police Lt. Julita De Villa,
a forensic chemist at the PNP Crime Laboratory Service in Camp Crame, to deliver specimens
consisting of a 0.06-gram substance wrapped in aluminum foil (Exhibit "F-2") and a 1.04-gram
substance contained in a plastic bag (Exhibit "F-3"), together with a letter-request (Exhibit "E")
asking her to examine the two specimens. She subjected both specimens to three different
laboratory tests, viz., chemical examination, thin-layer chromatograhic examination, and infrared
spectrometric record analysis. Both specimens were confirmed to be methamphetamine
hydrochloride (shabu), as stated in her Initial Chemistry Report No. D-464-91 dated 7 May 1991
(Exhibit "G") and her (Final) Chemistry Report No. D-464-91 (Exhibit "H"). 5
The accused denied the allegations against him and contended that he was framed by the police
officers. According to him, on 6 May 1991, he was inside his house from morning till night with his
parents, three sisters (one of whom is Clarita Cheng), a brother, two nieces, a nephew, his wife,
and one of his neighbors. At about 11:40 p.m., while he was fixing his videocassette recorder, he
heard a knocking at the front door. He called to ask who was knocking and someone replied,
"Joey." As he was busy, he asked his nephew, John David, to open the door. When the latter did
so, four men suddenly barged in. He did not know the men then but he later came to know that
they were Police Officers Latumbo, Matundan, Tugade, and San Jose, who had said that he was
"Joey." San Jose grabbed him by the collar and asked if he was "Jon-Jon." He answered that he
was. They told him, "Kung puede kailangan namin ng pera, kaya magturo ka na." He replied that
he knew nothing. Capt. Miano, who by then had appeared, slapped him while San Jose poked a
pistol at him and said, "Kung gusto mo, patayin ka na lang namin." He, together with his parents
and the occupants of the house, pleaded with the police officers to stop. He was then brought out
of the house by the men. He wanted to bring his sister, Clarita Cheng, with him but she was not
allowed to board a police vehicle. He saw Matundan talking to her sister. Although he could not
hear what they were saying, he noticed his sister giving some money to Matundan. He was first
brought to a damaged building at the Metropolitan along Ayala Avenue, Makati, where he was
made to alight and talk to Capt. Miano who told him to point to someone selling shabu; he
answered that he knew no one selling shabu. After half an hour, he was brought to the NARCOM
headquarters at Camp Crame.
At 10:40 a.m. the following day, he was investigated by Matundan. After he was investigated, he
was made to stand up and place his hands behind his back after which he was handcuffed.
Latumbo then got a P100 bill from a drawer and wiped this on the accused's hands and left pocket
of his shorts. His handcuffs were then removed and he was brought back to his cell. After thirty
minutes, he was brought to the PNP Crime Laboratory for ultraviolet ray examination and then
returned to his cell. 6
Clarita Cheng's testimony corroborates that of the accused, his brother. She declared that she
asked the police officers why they were treating her brother like that and told them that if they do
not believe him, they should rather just kill him. She wanted to accompany her brother but they
would not let her. Matundan told her not to worry because her brother would be brought back. He
asked from her P1,000.00 for gasoline which she gave. His brother, however, was never returned.
She searched for him and found that he was detained at Camp Crame. 7
On rebuttal, SPO3 San Jose and SPO1 Matundan denied that they barged into the accused's
house and illegally arrested him. SPO1 Matundan denied that he received P1,000.00 from Clarita
Cheng. SPO3 San Jose also denied that he wiped a P100 bill on the accused's hands and pocket
while the latter was detained. 8
On 23 March 1993, the trial court promulgated its decision 9 finding the accused guilty as charged
and sentencing him to suffer the penalty of life imprisonment and to pay a fine of P30,000.00.
The accused appealed the decision to this Court. He asseverates that the constitutional
presumption of innocence in his favor was not overcome by proof of guilt beyond reasonable
doubt.
After assiduously going over the appellant's brief and the records of this case, we find no reason
to overturn the trial court's judgment of conviction.
The trial court found the testimony given by the prosecution witnesses to be more credible and
logical. It said that the prosecution witnesses "testified candidly and in a straightforward manner
that exuded all the marks of truthfulness." 10
Long settled in criminal jurisprudence is the rule that when the issue is one of credibility of
witnesses, 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, unless it has plainly
overlooked certain facts of substance and value that, if considered, might affect the result of the
case. 11 We do not find any such oversight on the part of the trial court.
The NARCOM agents have in their favor the presumption of regularity in the performance of their
official duties. 12The accused was not able to prove that the police officers had any improper or
ulterior motive in arresting him. The police officers are thus presumed to have regularly performed
their official duty in the absence of any evidence to the contrary. The accused's allegation that the
policemen barged into his house and demanded that he point to anybody selling drugs is
somewhat hard to believe. As noted by the trial court:
The . . . version advanced by the accused and his sister is not only by itself weak
and easily contrived, it suffers in logic and cause. Why would police officers
barge into a private dwelling in the middle of the night only to force somebody to
inform on unnamed drug dealers? They could much easier pick somebody on a
street at a more convenient time when their target is alone and away from his
family. And it is not logical that they would do it to extort money from the accused
since by his own testimony none was demanded from the accused. As such, the
defense raised merits scant considerations. 13
Likewise, his contention that the marked money was wiped on his hands and pocket was
supported by nothing more than his bare allegation. We have stated that an allegation that one
was framed can be made with ease. That allegation must therefore be proved by clear and
convincing evidence. The presumption that law enforcers have regularly performed their duties
perforce requires that proof of a frame-up must be strong. 14
The accused also assails the fact that there was not prior surveillance before the alleged
entrapment was effected and contends that this casts doubt on the regularity of the police
operation. This contention is untenable. A prior surveillance is not a prerequisite for the validity of
an entrapment operation. There is no rigid or textbook method of conducting buy-bust
operations. 15 Flexibility is a trait of good police work. The police officers may decide that time is of
the essence and dispense with the need for prior surveillance.
The accused also harps on the fact that there was not mission order for the buy-bust operation
and that there was no investigation report made after the operation. A mission order is not an
essential requisite for a valid buy-bust operation. The execution of an investigation report is
likewise not indispensable considering further that SPO3 San Jose had testified that he prepared
the booking sheet, receipt of property seized, and the affidavit of arrest. 16 To ask that every buy-
bust operation be conducted in a textbook or blue ribbon manner is to ask for too much from our
law enforcers.
The defense questions the non-presentation of the informer. There is no merit in this objection. The penalty then in Section 15 is now based on the quantity of the regulated drugs involved,
The testimony of the informer would at best be corroborative since the testimonies of Sgt. except where the victim is a minor or where the regulated drug involved in any offense under
Latumbo and SP01 Matundan had sufficiently established how the crime was committed. The Section 15 is the proximate cause of the death of the victim, in which case the maximum penalty
testimony or identity of the informer may be dispensed with since his narration would be merely prescribed in Section 15 shall be imposed regardless of the quantity of the regulated drugs
corroborative and cumulative with that of the poseur-buyer who was himself presented and who involved. 21
took the witness stand for the precise purpose of attesting to the sale of the illegal drug. 17
In People vs. Martin Simon y Sunga, 22 decided on 29 July 1994, this Court ruled as follows:
The defense contends that the right of the accused against self-incrimination was violated when
he was made to undergo an ultraviolet ray examination. The defense also argues that Chief (1) Provisions of R.A. No. 7659 which are
Chemist Teresita Alberto failed to inform the accused of his right to counsel before subjecting him favorable to the accused shall be given
to the examination. These contentions are without merit. What is prohibited by the constitutional retroactive effect pursuant to Article 22 of the
guarantee against self-incrimination is the use of physical or moral compulsion to export Revised Penal Code.
communication from the witness, not an inclusion of his body in evidence, when it may be
material. 18 Stated otherwise, it is simply a prohibition against legal process to extract from the
(2) Where the quantity of the dangerous drug
defendant's own lips, against his will, an admission of guilt. 19 Nor can the subjection of the
involved is less than the quantities stated in
accused's body to ultraviolet radiation, in order to determine the presence of ultraviolet powder, be
considered a custodial investigation so as to warrant the presence of counsel. the first paragraph of Section 20 of R.A. No.
6425, the penalty to be imposed shall range
from prision correccional to reclusion temporal,
In fine, we affirm the finding of the trial court that the accused was caught in flagrante selling and not reclusion perpetua. The reason is that
shabu to the members of the buy-bust team. The penalty imposed upon the accused, however, there is an overlapping error, probably through
must be modified in view of the new amendments introduced by R.A. No. 7659 20 to Section 15, oversight in the drafting, in the provisions on
Article III, and Section 20, Article IV of R.A. No. 6425, as amended. R.A. No. 7659 was approved the penalty of reclusion perpetua as shown by
on 13 December 1993 and took effect on 31 December 1993. As thus further amended, the its dual imposition, i.e., as the minimum of the
penalty prescribed in Section 15 was changed from "life imprisonment to death and a fine ranging penalty where the quantity of the dangerous
from twenty thousand to thirty thousand pesos" to "reclusion perpetua to death and a fine ranging drugs involved is more than those specified in
from five hundred thousand pesos to ten million pesos." However, pursuant to Section 17 of R.A. the first paragraph of the amended Section 20
No. 7659, which amends Section 20 of R.A. No. 6425, the new penalty shall be applied if the and also as the maximum of the penalty where
quantity of the dangerous drugs involved falls within the first paragraph of the amended Section the quantity of the dangerous drugs involved is
20, and if the quantity would be lower than that specified in said first paragraph, the penalty shall less than those so specified in the first
be from "prision correccional to reclusion perpetua." The pertinent portion of the amended Section paragraph.
20 reads as follows:
(3) Considering that the aforesaid penalty
Sec. 20. Application of Penalties, Confiscation and Forfeiture of the Proceeds or of prision correccional to reclusion
Instrument of the Crime. — The penalties for offenses under Section 3, 4, 7, 8 temporal shall depend upon the quantity of the
and 9 of Article II and Sections 14, 14-A, 15 and 16 of Article III of this Act shall dangerous drugs involved, each of the
be applied if the dangerous drugs involved is in any of the following quantities: component penalties thereof — prision
correccional, prision mayor, and reclusion
xxx xxx xxx temporal — shall be considered as a principal
imposable penalty depending on the quantity,
3. 200 grams or more of shabu or methylamphetamine hydrochloride; such that the quantity of the drugs enumerated
in the second paragraph should then be
divided into three, with the resulting quotient,
xxx xxx xxx
and double or treble the same, as the bases
for determining the appropriate component
Otherwise, if the quantity involved is less than the foregoing quantities, the penalty.
penalty shall range fromprision correccional to reclusion perpetua depending
upon the quantity.
(4) The modifying circumstances in the
Revised Penal Code may be appreciated to
 determine the proper period of the Cruz, J., is on leave.
corresponding imposable penalty or even to
effect its reduction by one or more degrees;
provided, however, that in no case should
such graduation of penalties reduce the
imposable penalty lower than prision
correccional.

(5) In appropriate instances, the Indeterminate

Sentence Law shall be applied and
considering that R.A. No. 7659 has
unqualifiedly adopted the penalties under the
Revised Penal Code with their technical
signification and effects, then the crimes under
the Dangerous Drugs Act shall now be
considered as crimes punished by the Revised
Penal Code; hence, pursuant to Section 1 of
the Indeterminate Sentence Law, the
indeterminate penalty which may be imposed
shall be one whose maximum shall be within
the range of the imposable penalty and whose
minimum shall be within the range of the
penalty next lower in degree to the imposable
penalty.

With the foregoing as our touchstones, and it appearing from Chemistry Report No. D-464-91
(Exhibit "H") 23 signed by Police Lt. Julita T. De Villa, PNP Forensic Chemist, that the quantity of
the shabu recoverd from the accused in this case is only 1.10 grams, the imposable penalty under
the second paragraph of Section 20 of R.A. No. 6425, as further amended by Section 17 of R.A.
No. 7659, should be prision correccional.

Applying the Indeterminate Sentence Law, the accused may then be sentenced to suffer an
indeterminate penalty ranging from six (6) months of arresto mayor as minimum to six (6) years
of prision correccional as maximum.

WHEREFORE, the challenged decision of Branch 136 of the Regional Trial Court of Makati in
Criminal Case No. 2754 is hereby AFFIRMED subject to the modification of the penalty. Accused
CARLOS TRANCA Y ARELLANO is hereby sentenced to suffer an indeterminate penalty ranging
from six (6) months of arresto mayor as minimum to six (6) years of prision correccional as
maximum.

Costs against the accused.

SO ORDERED.

Bellosillo, Quiason and Kapunan, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 91374 February 25, 1991
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JOHN GABRIEL GAMBOA, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Josefa K. Cauton for defendant-appellant.
GANCAYCO, J.:
Essential in the success of the prosecution of an offense is the proof of the identity of the offender.
This is usually attained through the testimony of eyewitnesses during, before, or even after the
commission of the offense. In the absence of such primary evidence the prosecution generally
falls back on such other evidence as the ballistic examination of the murder weapon, a handwriting
expert, the extrajudicial confession or similar resources. Otherwise, circumstantial evidence is
resorted to which consists in the piercing together of tiny bits of evidence with a view towards
ascertaining the accused as the person responsible for the commission of the offense.
In the case now before this Court the defendant-appellant John Gabriel Gamboa was charged with
the crime of murder together with Miguel Celdran in the Regional Trial Court of Cebu. After
arraignment but during the trial, the case against Celdran was dismissed. Thereafter, a decision
was rendered on August 30, 1989, finding Gamboa guilty of the crime of murder as penalized
under Article 248 of the Revised Penal Code and imposing upon him the penalty of reclusion
perpetua. He was also ordered to indemnify the heirs of the deceased in the amount of
P30,000.00, with costs against him. The fatal weapon, a shotgun, was ordered forfeited in favor of
the government.1
The defendant-appellant interposed this appeal from said judgment alleging that the trial court
committed the following errors:
I
THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE TESTIMONIES OF THE
PROSECUTION WITNESSES CRISTINA SOLEDAD, ENRICO ACRE AND MARIO
GASCON.
II
THE TRIAL COURT ERRED IN HOLDING THAT THE ACCUSED-APPELLANT HAD
BEEN POSITIVELY IDENTIFIED AS THE ASSAILANT OF THE VICTIM RENE IMPAS.
III
THE TRIAL COURT ERRED IN HOLDING THAT THE ACCUSED-APPELLANT HAD
CONFESSED TO OR ADMITTED THE KILLING.
IV
THE TRIAL COURT ERRED IN NOT REJECTING THE ALLEGED MURDER WEAPON
(EXHIBIT "A") AS INADMISSIBLE EVIDENCE.
THE TRIAL COURT ERRED IN HOLDING THAT EXHIBIT "A" WAS THE ACTUAL
MURDER WEAPON.
VI
THE TRIAL COURT ERRED IN NOT REJECTING THE PARAFFIN TEST RESULTS AS
INADMISSIBLE EVIDENCE.
VII
THE TRIAL COURT ERRED IN NOT ACQUIRING THE ACCUSED-APPELLANT.2
At around 1:15 o'clock in the morning of August 21, 1988, Cristina Soledad, common-law wife of
Rene Impas, was conversing with the latter inside a bedroom in Rene's house located at John
Avenue, Cebu City. Suddenly someone kicked open the door and Soledad saw the appellant and
Celdran. From a standing position the appellant fired his shotgun at Rene. Rene was hit on the
right side of the chest so he slid slightly, his head leaning on the wall the appellant fired a second
shot hitting the victim on the abdomen. The victim fell face upward on the bed and died
immediately.
Soledad shouted for help. Rico Acre, a tenant in the same house, responded. He entered the
room as the appellant went out of the house. The former fired a third time.
Acre noticed the victim having difficulty in breathing, so he ran out of the house and shouted for
help. Mario Gascon, a neighbor, came and together with Acre they lifted the victim and loaded him
in the car of the victim's father, police Major Impas, which was parked in front of the house.
As Gascon stepped out of his house to extend assistance, he saw the appellant and another
person running towards a yellow car. The appellant was still holding the shotgun then. Soledad,
together with Acre, Gascon and Maj. Impas, who was living in the house nearest to the victim's
house, boarded the latter's car and brought the victim to the Southern Island Hospital, Cebu City.
The medico legal report of Dr. Jesus Cerna of the PC-INP, Cebu showed that the victim suffered
the following gunshot wounds:
Shotgun wounds:
(1) ENTRANCE. ovaloid, 2.0 x 1.8 cm., with 5 stray pellets wounds of entrance around, in
an area of the chest, right, 5.5 x 5.0 cm., edges inverted, chest right anterior aspect, 6.0
cm. from the anterior median line and 128.0 cm. above right heel; directed backward,
downward and medially, involving skin and the underlying soft tissues, into thoracic
cavity, lacerating extensively the lungs, upper and lower lobes right extensively and the
ascending orta, and finally a plastic wad was embeded and recovered from the upper
lobe of right lung and three (3) pellets were recovered from the soft tissue of the back,
thoracic region, left, 5.0 cm. from the posterior median line and 127.0 cm. above left heel.
(2) ENTRANCE, (pellets wounds) six in numbers, of varying sizes, ranging from 0.6 x 0.5
cm. to 0.5 x 0.4 cm., edges inverted, dispersed in an area of the abdomen, anterior
aspect, right, 5.0 x 4.5 cm. 7.5 cm. from the anterior median line and 108.0 cm. above
right heel, directed backward, upward and laterally involving skin and the underlying soft
tissues, into a thoracic abdominal cavity, lacerating extensively portion of small and large
intestine, liver, and finally 4 pellets wound were embeded and recovered from the soft
tissues back, left thoracic abdominal region, 10.0 cm. from the posterior median line and
107.0 cm. above left heel, (one existed).
(3) ENTRANCE. ovaloid, 9.0 x 3.0 cm. irregular in shape, edges inverted, hand, posterior
aspect, right; directed forward, upward, thru and thru.
Heart: auricular and venticular chambers, filled with dark-red liquid and clotted blood, with
normal myocardium.
Gastrointestinal tract and other visceral organs pale.
Stomach, empty.
Hemothorax, approximately 1500 cm.
Hemoperitoneum, approximately 1000 cc.
CAUSE OF DEATH:
Shot wounds, chest, abdomen and hand, right.3
Under the first assigned error, the appellant raises the issue relating to the credibility of the
prosecution witnesses in that their testimonies are full of inconsistencies which elicit doubt as to
their truthfulness.
In the case of Soledad, the latter allegedly testified that the appellant shot the victim twice, while
the victim's father testified that he heard three successive shots. There is no inconsistency here. It
was established that the appellant shot the victim twice while inside the house and fired the third
shot when he was already outside the house. This accounts for the three shots heard by Major
Impas.
The appellant also stated that Soledad testified on direct examination that when the victim was hit
by the first shot his body leaned on the wall but on cross examination, she said that the victim was
lying flat on the bed after the first shot. Whether the victim was leaning on the wall or lying down
after the first shot is of no material consequence. The fact remains that Soledad saw the appellant
shoot the victim twice with a shotgun.
Another alleged contradiction is that Soledad said she knew Acre to be a cousin of the victim but
Acre himself denied such relationship. Again such inconsistency, if it is indeed an inconsistency at
all, is on a minor matter.
The appellant states that while Acre testified that at the time of the shooting he could clearly be
seen from the victim's room, Soledad never mentioned having seen Acre at or near the door of the
victim's room. It is also indicated that while Acre said that appellant made some remarks to him in
a loud voice before the shooting, Soledad on the other hand testified that she did not hear any
statement from the appellant before the shooting.
Suffice it to state that at the time of the shooting, the appellant and Celdran were standing at the
door, effectively blocking the view outside the room, hence Soledad did not see Acre. Moreover, at
the time Soledad's attention at that moment was focused on her common-law husband who was
shot twice and who fell on the bed. She was a witness to a startling occurrence. It is not
improbable that because of shock she did not hear any remarks made by the appellant outside the
room.
The appellant makes much capital of the fact that Acre did not reveal the identity of the appellant
to the victim's father when they were together in the car on the way to the hospital. This is
understandable considering that Soledad had already revealed the appellant's identity to Major
Impas when they boarded the car. There was no need for Acre to give the same information to the
victim's father.
In the case of Modesto Gascon, it is contended that he could not have seen the appellant running
away from the scene of the shooting since even before Gascon went down from his house, the
appellant was already running towards the get-away car and so it was allegedly impossible for
Gascon to identify the appellant.
On cross-examination, Gascon stated that after hearing gunshots he ran out of his house to
ascertain where the shots came from. He ran to the corner or to the "second bend" outside the
house of the victim's father and he saw the appellant at the "second bend." Gascon ran into the
appellant while running to the house of the victim. He was only four to five arms-length away when
he saw the appellant, thus his positive identification of the appellant.
Another alleged discrepancy is between the version of Major Impas that the appellant and his
companion were running towards the car and that of Gascon's testimony that the appellant was
back-tracking towards the car. The record discloses that what Major Impas meant to convey was
that he saw the appellant and his companion fleeing from the scene of the crime to their get-away
car while the description of Gascon that the appellant was "back-tracking" towards the car was a
description of how the appellant fled from the victim's house to the car, to make sure that they
were not being followed.
The alleged contradiction between Gascon's affidavit,4 wherein he mentioned that he saw the
appellant and another person running towards the car, and his testimony on cross-examination
that he only saw the appellant, is of no material consequence considering that the appellant has
been positively identified as the assailant. Moreover, as it is generally pointed out, an affidavit
taken ex-parte almost always cannot be relied upon as oftentimes it is inaccurate.5
By and large, the Court is not persuaded that the appellant's claim of contradictions and
inconsistencies on the part of the prosecution witnesses puts into serious doubt their credibility,
Different persons who witnessed an incident from different angles and situations could not be
expected to give uniform details of what they saw and heard. Such minor discrepancies and
inconsistencies are to be expected because of the human differences in perception. Such
contradicting statements are on minor details, as hereinabove discussed, and rather than affect
the credibility of the witnesses, the same are badges of candor.
Nevertheless, under the second assigned error, the appellant alleges that his identification by the
prosecution witnesses cannot be relied upon considering that they did not immediately inform the
police investigators of the identity of the assailant upon their arrival. Although it may be true that
the eyewitnesses did not immediately identify the appellant as the assailant to the responding
policemen, it is also a matter of fact that Major Impas informed Cpl. Petallar while they were on the
way to the Southern Islands Hospital, where the victim was brought, that the assailant is the
appellant.6 The second instance was when Soledad went to the mobile patrol division and
revealed to Cpl. Petallar that the appellant was the one who shot her common-law husband.7
It is quite understandable when the witnesses do not immediately report the identity of the
offender after a startling occurrence more especially when they are related to the victim as they
just had a traumatic experience. More so as in the case of Major Impas who is the victim's father
and Soledad, his common-law wife. Nevertheless, a delay of about a few hours before the
identification of the offender by the prosecution witnesses does not thereby affect their credibility.
The inadmissibility of the alleged verbal confession of the appellant is raised on the ground that he
was maltreated as a result of which he suffered twenty-seven injuries in the form of contusions,
lacerations and abrasions. It does not appear, however, that the prosecution proposed to rely on
this alleged confession of the appellant, or that the trial court considered the same at all in the
resolution of the case. If it were to be considered at all, it would be worthless because of the
undeniable fact that the appellant was not only arrested without a warrant and entry into his house
was effected without a search warrant, but worse, he was maltreated since his arrest so much so
that he suffered multiple injuries. The police investigators responsible for this manhandling should
be investigated and held to account. Such involuntary confession cannot help the case of the
prosecution. It is a stain in the record of the law enforcement agents who handled the case.
Under the fifth assigned error, the appellant questions the admissibility of the shotgun as the
alleged murder weapon.1âwphi1 He says it was not found in his possession but his house was
searched and the shotgun was confiscated without a search warrant.
He also alleges that the three (3) empty shells that were submitted for the ballistics examination
were not recovered from the scene of the crime and their production is a frameup by the police.
Again, the Court observes that the police investigators confiscated the shotgun from the premises
of the residence of the appellant without a search warrant. Such violation of the constitutional
rights of a person should be investigated and inquired into.
Nevertheless, the Court is not persuaded that the police investigators in this case would willingly
allow themselves to be instruments to frame the appellant for so serious a crime as murder. It
appears that the three empty shells were actually recovered from the vicinity of the scene of the
crime. The ballistics examination shows that it was fired from the very shotgun of the appellant.
This evidence corroborates the theory of the prosecution, very strongly, that the appellant was the
assailant of the victim.
Even if the Court disregards the shotgun as having been illegally secured as well as the results of
its ballistic examination in relation to the empty shells, still there is adequate evidence in the record
to justify a verdict of conviction. Indeed, the Court did not even consider it necessary to inquire into
the motive of the appellant in the light of his positive identification by the prosecution witnesses.
As to the paraffin test to which the appellant was subjected to he raises the question, under the
sixth assigned error, that it was not conducted in the presence of his lawyer. This right is afforded
to any person under investigation for the commission of an offense whose confession or
admission may not be taken unless he is informed of his right to remain silent and to have
competent and independent counsel of his own choice. 8 His right against self-incrimination is not
violated by the taking of the paraffin test of his hands. This constitutional right extends only to
testimonial compulsion and not when the body of the accused is proposed to be examined as in
this case.9 Indeed, the paraffin test proved positively that he just recently fired a gun. Again, this
kind of evidence buttresses the case of the prosecution.
WHEREFORE, the decision appealed from is AFFIRMED with the sole modification that the
indemnity to the heirs of the offended party is increased to P50,000.00, with costs against the
appellant. Let a copy of this decision be furnished the Chairman of the Philippine National Police
for his information and appropriate action on the actuations of the law enforcement agents
hereinabove discussed.
SO ORDERED.
Narvasa, Cruz, Griño-Aquino and Medialdea, JJ., concur.
 FIRST DIVISION
G.R. No. 136051 June 8, 2006
ALFREDO P. ROSETE, OSCAR P. MAPALO and CHITO P. ROSETE, Petitioners,
vs.
JULIANO LIM and LILIA LIM, Respondents.
DECISION
CHICO-NAZARIO, J.:
Before Us is a petition for review on certiorari which seeks to set aside the Decision1 of the Court
of Appeals in CA-G.R. SP No. 45400 dated 24 August 1998 which upheld the Orders of Branch 77
of the Regional Trial Court (RTC) of Quezon City in Civil Case No. Q-95-25803 dated 22 July
19972 and 27 August 1997,3 allowing the taking of deposition upon oral examination of petitioners
Oscar P. Mapalo and Chito P. Rosete, and its Resolution4 dated 19 October 1998 denying
petitioners’ Motion for Reconsideration.
Relevant to the petition are the following antecedents:
On 5 December 1995, respondents Juliano Lim and Lilia Lim filed before Branch 77 of the RTC of
Quezon City a Complaint for Annulment, Specific Performance with Damages against AFP
Retirement and Separation Benefits System (AFP-RSBS), Espreme Realty and Development
Corporation (Espreme Realty), Alfredo P. Rosete, Maj. Oscar Mapalo, Chito P. Rosete, Bank of
the Philippine Islands (BPI), and Register of Deeds of the Province of Mindoro Occidental,
docketed as Civil Case No. Q-95-25803.5 It asked, among other things, that the Deed of Sale
executed by AFP-RSBS covering certain parcels of lands in favor of Espreme Realty and the titles
thereof under the name of the latter be annulled; and that the AFP-RSBS and Espreme Realty be
ordered to execute the necessary documents to restore ownership and title of said lands to
respondents, and that the Register of Deeds be ordered to cancel the titles of said land under the
name of Espreme Realty and to transfer the same in the names of respondents.
On 18 January 1996, petitioners filed a Motion to Dismiss on the grounds that the court has no
jurisdiction over the subject matter of the action or suit and that venue has been improperly laid. 6 A
Supplemental Motion to Dismiss was filed by petitioner Alfredo P. Rosete on 23 January
1996.7 Respondents opposed the Motion to Dismiss filed by petitioners 8 to which petitioners filed
their Reply.9 Respondents filed a Comment on the Reply.10 AFP-RSBS,11Espreme Realty,12 and,
BPI13 filed their respective Motions to Dismiss which respondents opposed.
In an Order dated 12 March 1996, the Motions to Dismiss filed by all the defendants were
denied.14 The Motions for Reconsideration filed by petitioners15 and BPI,16 which respondents
opposed,17 were also denied in an Order dated 24 May 1996.18
19
On 6 June 1996, BPI filed its Answer with Compulsory Counterclaim and Cross-claim to which
respondents filed their Reply and Answer to Counterclaim.20 Respondents also filed a Motion21 to
Serve Supplemental Allegation against BPI and petitioner Chito Rosete which the trial court
granted in an order dated 28 July 1996.22
On 7 June 1996, petitioners manifested that on 5 June 1996, they filed a Petition 23 for Certiorari
and Prohibition in the Court of Appeals, docketed as CA-G.R. SP No. 40837, challenging the trial
court’s Orders dated 12 March 1996 and 24 May 1996 that denied their Motions to Dismiss and
Reconsideration, respectively.24 They likewise informed the trial court that on 6 June 1996, they
filed an Ex-Parte Motion25 to Admit Answers Ex Abudanti Cautela.26lavvphi1.net
On 7 August 1996, petitioner Chito Rosete filed a motion asking that the order granting the Motion
to Serve Supplemental Allegation against BPI and him be reconsidered and set aside, and that
respondents be ordered to reduce their supplemental allegations in the form and manner required
by the Rules of Court.27 Same was denied in an order dated 12 August 1996.28 This denial was
appealed to the Court of Appeals on 26 August 1996, which was docketed as CA-G.R. SP No.
41821.29
Petitioner Chito Rosete filed his Supplemental Answer (Ex Abudanti Cautela) on 9 September
1996.30
On 28 May 1997, respondents filed a Notice to Take Deposition Upon Oral Examination giving
notice that on June 18 and 20, 1997 at 9:00 a.m., they will cause the deposition of petitioners
Oscar Mapalo and Chito Rosete.31
On 13 June 1997, petitioners filed an Urgent Ex-Parte Motion and Objection to Take Deposition
Upon Oral Examination.32 They argued that the deposition may not be taken without leave of court
as no answer has yet been served and the issues have not yet been joined since their Answer
was filed ex abudanti cautela, pending resolution of the Petition for Certiorari challenging the
orders dated 12 March 1996 and 24 May 1996 that denied their Motions to Dismiss and for
Reconsideration, respectively. This is in addition to the fact that they challenged via a Petition for
Certiorari before the Court of Appeals the lower court’s Orders dated 23 July 1996 and 12 August
1996 which, respectively, granted respondents’ Motion to Serve Supplemental Allegation Against
Defendants BPI and Chito Rosete, and for the latter to plead thereto, and denied Chito Rosete’s
Motion for Reconsideration of the order dated 23 July 1996. Moreover, they contend that since
there are two criminal cases pending before the City Prosecutors of Mandaluyong City and Pasig
City involving the same set of facts as in the present case wherein respondent Juliano Lim is the
private complainant and petitioners are the respondents, to permit the taking of the deposition
would be violative of their right against self-incrimination because by means of the oral deposition,
respondents would seek to establish the allegations of fact in the complaint which are also the
allegations of fact in the complaint-affidavits in the said criminal cases.
Respondents filed their Comment on the Objection to Deposition Taking33 to which petitioners filed
their Reply.34
In an Order dated 22 July 1997, the lower court denied petitioners’ motion and objection to take
deposition upon oral examination, and scheduled the taking thereof.35 On 7 August 1997,
petitioners filed a Motion for Reconsideration.36 They filed a Supplemental Motion for
Reconsideration on 11 August 1997.37
On 13 August 1997, petitioners filed an Urgent Ex-parte Motion to Cancel or Suspend the Taking
of the Deposition Upon Oral Examination.38
In an Order dated 27 August 1997, the lower court denied petitioners’ Motion for Reconsideration
and Supplemental Motion for Reconsideration, and scheduled the taking of the Deposition Upon
Oral Examination.39
On 22 September1997, respondents filed an Omnibus Motion: (1) To Strike Out Answer of
Defendants Mapalo and Chito Rosete; (2) to Declare Defendants Mapalo and Chito Rosete In
Default; and (3) For Reception of Plaintiffs’ Evidence Ex-parte,40 which petitioners opposed.41
On 29 September 1997, petitioners filed with the Court of Appeals a Petition for Certiorari and
Prohibition (CA-G.R. SP No. 45400) assailing the Orders of the lower court dated 22 July 1997
and 27 August 1997.42
In an Order dated 29 October 1997, the lower court: (1) ordered the striking out from the record of
the Answer ex abudanti cautela filed by petitioners Mapalo and Chito Rosete for their continued
unjustified refusal to be sworn pursuant to Rule 29 of the 1997 Rules of Civil Procedure; (2)
declared defendants Mapalo and Chito Rosete in default; and I allowed plaintiffs to present their
evidence ex-parte as regards the latter.43 On 25 November 1997, petitioners filed an Urgent Ex-
parte Omnibus Motion (1) For Reconsideration; (2) To Lift Order of Default; and (3) To Hold In
Abeyance Presentation of Plaintiffs’ Evidence Ex-parte.44 The day after, petitioners filed an
Amended Omnibus Motion.45
On 28 November 1997, respondents filed a Motion to Set Case for Ex-parte Presentation of
Evidence46 which the lower court set for 11 December 1997.47
In an Order dated 11 December 1997, the lower court denied petitioners’ urgent ex-parte omnibus
motion.48 On even date, the ex-parte presentation of evidence against petitioners Mapalo and
Chito Rosete was terminated.49
On 10 February 1998, petitioners filed a Petition50 for Certiorari and Prohibition before the Court of
Appeals (CA-G.R. SP No. 46774) questioning the lower court’s Orders dated 29 October 1997
and 11 December 1997.51
On 24 August 1998, the Court of Appeals dismissed the Petition for Certiorari and Prohibition, and
upheld the Orders of the lower court dated 22 July 1997 and 27 August 1997 (CA-G.R. SP No.
45400).52 The Motion for Reconsideration53 which was opposed54 by respondents was denied on
19 October 1998.55
Petitioners assail the ruling of the Court of Appeals via a Petition for Review on Certiorari. They
anchor their petition on the following grounds:
I.
THE TRIAL COURT ERRED AND ACTED IN GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OF OR IN EXCESS OF JURISDICTION IN DECLARING IN ITS ORDER DATED
AUGUST 27, 1997 THAT THE CONSTITUTIONAL RIGHT AGAINST SELF INCRIMINATION OF
OSCAR MAPALO AND CHITO ROSETE WOULD NOT BE VIOLATED BY THE TAKING OF
THEIR DEPOSITION IN THE CIVIL CASE FILED IN THE LOWER COURT ALTHOUGH THEY
ARE ALSO RESPONDENTS OR DEFENDANTS IN THE AFOREMENTIONED CRIMINAL
CASES FILED BY HEREIN PRIVATE RESPONDENT JULIANO LIM INVOLVING THE SAME OR
IDENTICAL SET OF FACTS; AND
II.
THE TRIAL COURT ERRED AND ACTED IN GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OF OR IN EXCESS OF JURISDICTION IN DECLARING IN ITS ORDER DATED JULY
22, 1997 THAT (A) THE NOTICE TO TAKE DEPOSITION UPON ORAL EXAMINATION NEED
NOT BE WITH LEAVE OF COURT BECAUSE AN ANSWER EX ABUDANTE CAUTELA HAS
BEEN FILED; AND (B) JOINDER OF ISSUES IS NOT REQUIRED IN ORDER THAT THE
SECTION 1, RULE 2356 OF THE RULES OF CIVIL PROCEDURE MAY BE AVAILED OF.
Petitioners argue that the Court of Appeals gravely erred when it found that the trial court did not
abuse its discretion when it refused to recognize petitioners Oscar Mapalo and Chito Rosete’s
constitutional right against self-incrimination when, through its Orders dated 22 July 1997 and 27
August 1997, it allowed and scheduled the taking of their depositions by way of oral examination.
They explain they refuse to give their depositions due to the pendency of two criminal cases
against them, namely, Batasan Pambansa Blg. 22 and Estafa, because their answers would
expose them to criminal action or liability since they would be furnishing evidence against
themselves in said criminal cases. They allege there can be no doubt that the questions to be
asked during the taking of the deposition would revolve around the allegations in the complaint in
the civil case which are identical to the allegations in the complaint-affidavits in the two criminal
cases, thus, there is a tendency to incriminate both Oscar Mapalo and Chito Rosete. Moreover,
they explain that while an ordinary witness may be compelled to take the witness stand and claim
the privilege against self-incrimination as each question requiring an incriminating answer is shot
at him, an accused may altogether refuse to answer any and all questions because the right
against self-incrimination includes the right to refuse to testify.
In short, petitioners Mapalo and Chito Rosete refuse to have their depositions taken in the civil
case because they allegedly would be incriminating themselves in the criminal cases because the
testimony that would be elicited from them may be used in the criminal cases. As defendants in
the civil case, it is their claim that to allow their depositions to be taken would violate their
constitutional right against self-incrimination because said right includes the right to refuse to take
the witness stand.
In order to resolve this issue, we must determine the extent of a person’s right against self-
incrimination. A person’s right against self-incrimination is enshrined in Section 17, Article III of the
1987 Constitution which reads: "No person shall be compelled to be a witness against himself."
The right against self-incrimination is accorded to every person who gives evidence, whether
voluntary or under compulsion of subpoena, in any civil, criminal or administrative proceeding. The
right is not to be compelled to be a witness against himself. It secures to a witness, whether he be
a party or not, the right to refuse to answer any particular incriminatory question, i.e., one the
answer to which has a tendency to incriminate him for some crime. However, the right can be
claimed only when the specific question, incriminatory in character, is actually put to the witness. It
cannot be claimed at any other time. It does not give a witness the right to disregard a subpoena,
decline to appear before the court at the time appointed, or to refuse to testify altogether. The
witness receiving a subpoena must obey it, appear as required, take the stand, be sworn and
answer questions. It is only when a particular question is addressed to which may incriminate
himself for some offense that he may refuse to answer on the strength of the constitutional
guaranty.57
As to an accused in a criminal case, it is settled that he can refuse outright to take the stand as a
witness. In People v. Ayson,58 this Court clarified the rights of an accused in the matter of giving
testimony or refusing to do so. We said:
An accused "occupies a different tier of protection from an ordinary witness." Under the Rules of
Court, in all criminal prosecutions the defendant is entitled among others—
1) to be exempt from being a witness against himself, and
2) to testify as witness in his own behalf; but if he offers himself as a witness he may be
cross-examined as any other witness; however, his neglect or refusal to be a witness
shall not in any manner prejudice or be used against him.
The right of the defendant in a criminal case "to be exempt from being a witness against himself"
signifies that he cannot be compelled to testify or produce evidence in the criminal case in which
he is the accused, or one of the accused. He cannot be compelled to do so even by subpoena or
other process or order of the Court. He cannot be required to be a witness either for the
prosecution, or for a co-accused, or even for himself. In other words – unlike an ordinary witness
(or a party in a civil action) who may be compelled to testify by subpoena, having only the right to
refuse to answer a particular incriminatory question at the time it is put to him – the defendant in a
criminal action can refuse to testify altogether. He can refuse to take the witness stand, be sworn,
answer any question. X x x (Underscoring supplied.)
It is clear, therefore, that only an accused in a criminal case can refuse to take the witness stand.
The right to refuse to take the stand does not generally apply to parties in administrative cases or
proceedings. The parties thereto can only refuse to answer if incriminating questions are
propounded. This Court applied the exception – a party who is not an accused in a criminal case
is allowed not to take the witness stand – in administrative cases/proceedings that partook of the
nature of a criminal proceeding or analogous to a criminal proceeding.59 It is likewise the opinion of
the Court that said exception applies to parties in civil actions which are criminal in nature. As long
as the suit is criminal in nature, the party thereto can altogether decline to take the witness stand.
It is not the character of the suit involved but the nature of the proceedings that controls.60
In the Ayson case, it is evident that the Court treats a party in a civil case as an ordinary witness,
who can invoke the right against self-incrimination only when the incriminating question is
propounded. Thus, for a party in a civil case to possess the right to refuse to take the witness
stand, the civil case must also partake of the nature of a criminal proceeding.
In the present controversy, the case is civil it being a suit for Annulment, Specific Performance
with Damages. In order for petitioners to exercise the right to refuse to take the witness stand and
to give their depositions, the case must partake of the nature of a criminal proceeding. The case
on hand certainly cannot be categorized as such. The fact that there are two criminal cases
pending which are allegedly based on the same set of facts as that of the civil case will not give
them the right to refuse to take the witness stand and to give their depositions. They are not facing
criminal charges in the civil case. Like an ordinary witness, they can invoke the right against self-
incrimination only when the incriminating question is actually asked of them. Only if and when
incriminating questions are thrown their way can they refuse to answer on the ground of their right
against self-incrimination.
On the second assigned error, petitioners contend that the taking of their oral depositions should
not be allowed without leave of court as no answer has yet been served and the issues have not
yet been joined because their answers were filed ex abudanti cautela pending final resolution of
the petition for certiorari challenging the trial court’s Orders dated 12 March 1996 and 24 May
1996 that denied their motions to dismiss and for reconsideration, respectively.
Section 1 of Rule 2461 of the Revised Rules of Court reads:
Section 1. Depositions pending action, when may be taken. – By leave of court after jurisdiction
has been obtained over any defendant or over property which is the subject of the action, or
without such leave after an answer has been served, the testimony of any person, whether a party
or not, may be taken, at the instance of any party, by deposition upon oral examination or written
interrogatories. The attendance of witnesses may be compelled by the use of a subpoena as
provided in Rule 23. Depositions shall be taken only in accordance with these rules. The
deposition of a person confined in prison may be taken only by leave of court on such terms as the
court prescribes.
From the quoted section, it is evident that once an answer has been served, the testimony of a
person, whether a party or not, may be taken by deposition upon oral examination or written
interrogatories. In the case before us, petitioners contend they have not yet served an answer to
respondents because the answers that they have filed with the trial court were made ex abudanti
cautela. In other words, they do not consider the answers they filed in court and served on
respondents as answers contemplated by the Rules of Court on the ground that same were filed
ex abudanti cautela.
We find petitioners’ contention to be untenable. Ex abudanti cautela means "out of abundant
caution" or "to be on the safe side."62 An answer ex abudanti cautela does not make their answer
less of an answer. A cursory look at the answers filed by petitioners shows that they contain their
respective defenses. An answer is a pleading in which a defending party sets forth his
defenses63 and the failure to file one within the time allowed herefore may cause a defending party
to be declared in default.64 Thus, petitioners, knowing fully well the effect of the non-filing of an
answer, filed their answers despite the pendency of their appeal with the Court of Appeals on the
denial of their motion to dismiss.
Petitioners’ argument that the issues of the case have not yet been joined must necessarily fail in
light of our ruling that petitioners have filed their answers although the same were made ex
abudanti cautela. Issues are joined when all the parties have pleaded their respective theories and
the terms of the dispute are plain before the court.65 In the present case, the issues have, indeed,
been joined when petitioners, as well as the other defendants, filed their answers. The respective
claims and defenses of the parties have been defined and the issues to be decided by the trial
court have been laid down.

We cannot also sustain petitioners’ contention that the lower court erred when it said that the
joinder of issues is not required in order that Section 1, Rule 23 of the 1997 Rules of Civil
Procedure may be availed of. Under said section, a deposition pending action may be availed of:
(1) with leave of court when an answer has not yet been filed but after jurisdiction has been
obtained over any defendant or property subject of the action, or (2) without leave of court after an
answer to the complaint has been served. In the instant case, the taking of the deposition may be
availed of even without leave of court because petitioners have already served their answers to
the complaint.

WHEREFORE, all the foregoing considered, the instant petition is dismissed for lack of merit.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 111193 January 28, 1997
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FERDINAND SUAREZ, alias "Jojo", LORETO REYES, alias "Dondon" and "Larry"
WILFREDO LARA alias"Cortal" and Willy"; MARIA VICTORIA G. SUAREZ; NOLI
LICSI, alias "Niño"; VICENTE RODRIGUEZ, alias"Waway"; and MORRIS SANTOS, alias.
"Wanky", accused,
WILFREDO LARA, accused-appellant.
REGALADO, J.:
In the early hours of December 8, 1987, Arlene Tuyor was awakened by loud knocking sounds on
the door of her room. She was a domestic helper at that time, working in the household of
Estrellita Guzman at 22 Sta. Teresita Street, Barrio Capitolyo, Pasig, Metro Manila. Also in the
house then were the nieces of Estrellita, namely, Maria Prescilla Guzman (Babyruth), Maria
Cristina Guzman (Cristy) and Maria Victoria Suarez (Marivic). Babyruth and Marivic had been
adopted by Estrellita as her own daughters. Marivic's husband, Ferdinand Suarez (Jojo), and her
three children likewise lived in Estrellita's bungalow-type house.
Upon opening the door, Tuyor was surprised to see Ferdinand Suarez, her "Señorito Jojo,"
surrounded by two men wearing black nylon cloths over their heads and faces. One of the men
had a big body frame while the other had a small physique. The men immediately entered her
room, tied her up land asked for her money. She was also asked if she knew Jojo. Getting no
response from Tuyor, the intruders left her room bringing Suarez with them.
From her room, Tuyor heard the sound of the microwave oven located in the kitchen. She also
heard the main door of the house slamming and someone crying in the house. When Tuyor went
out of her room, she saw Marivic weeping in the living room. She proceeded to her employer's
bedroom and found Estrellita bleeding and lying on her bed. All this time, accused Suarez was just
sitting on the chair of the piano.1
Estrellita later died due to severe hemorrhage secondary to stab wounds. Post-
mortem examinations revealed that she had sustained an elliptical and gaping wound on the right
side of her abdomen and another wound of the same nature on the left side of her back. Further
examination also disclosed that the deceased suffered an incised wound on her left thumb.2
When police investigators arrived at the scene of the crime, they found a half-eaten chicken on the
dining table,3four pieces of black nylon cloth,4 pieces of blue and white ropes,5 three pieces of
cloth,6 and two strands of ordinary
wire.7 They initially surmised that the intruders had forcibly entered the house through its back
door located in the kitchen.8 They arrived at this conclusion after finding a piece of wire inserted in
the knob of the kitchen door9 and its chain lock's anchor detached from the doorjamb. However,
the door's dead bolt lock was intact and in perfect condition.10
Ferdinand Suarez narrated to Patrolman Pablo Roxas11 of the Eastern Police District (EPD) at
Meralco Avenue, Pasig what he claimed to have experienced on that fateful day, in this wise:
At around 3:00 A.M. of December 8, 1987, he was awakened by someone holding his hands and
putting a piece of rag in his mouth. When he opened his eyes, he saw somebody pointing a knife
at him and another at his wife. He saw inside their room six men with nylon cloths over their faces.
When he was about to resist, one of the men hit him on the face and threatened to kill him, his
wife and his children. After they had tied and gagged him and also covered his eyes, the men
brought him out to the dining room. He heard the door of Estrellita being pushed open, and then
Estrellita shouting.
Afterwards, he was brought to the room shared by Cristy and Babyruth and mauled in front of
them. After that, he was brought to the room of Arlene Tuyor. From the maid's room, he was again
brought-to the dining room where he was tied to one of the chairs of the dining table. From there,
he heard the men cooking with the use of the microwave oven in the kitchen. After a while,
Estrellita cried loudly and called for Marivic. He later heard the running of the engine of one of their
cars and the main door being slammed shut. After the men left at about five o'clock in the morning,
he discovered that the trespassers had taken some things in the house such as a television set, a
radio, a betamax and other household items.
As the police were getting no leads about the identity of the malefactors, the lawyer of the family of
the deceased sought the help of the National Bureau of Investigation (NBI). The case was
assigned to Atty. Salvador Ranin. Atty. Ranin concluded that the perpetrators could not have
entered the house without the aid of somebody inside as the bolt lock of the kitchen door can only
be released from within. He had one suspect in mind, that is, Ferdinand Suarez, or Jojo.12
Ranin had discovered in the course of his investigation that there were no signs of injuries or rope
marks on Suarez and that he was not on good terms with Estrellita when the crime happened. He
was even found positive for deception after taking the polygraph test at the NBI. Suarez eventually
revealed to Ranin his involvement in the commission of the crime after Ranin told him that he had
damaging information to the effect that Suarez had left the house in the evening of December 7,
1987.
In his sworn statement13 before the NBI, Suarez said that one Loreto Reyes, alias "Dondon" or
Larry, approached him during the last week of November, 1987 and talked to him to allow Reyes
and his group to rob their house as they badly needed money for the Christmas season. It was
only after the group threatened to kill him that Suarez acceded to their demand, on the condition
that they would only steal but should not kill him.
On November 29, 1987, Suarez gave to Reyes and his gang the keys to the door of the house,
the door of Babyruth's and Cristy's room, and the door of Estrellita's room in order to have them
duplicated. He returned to Reyes and the others on December 5, 1987 to receive instructions on
what to do. He was told that the group would go to their place in the early morning of December 8,
1987. On the agreed date, at around twelve o'clock noon, Suarez disengaged the bolt lock of the
kitchen door and unlocked the door of their rooms as earlier instructed by the gang.
The felons arrived at the house at around two o'clock in the morning and proceeded to Suarez and
Marivic's room. Suarez saw four men with covers on their faces, but he recognized one of them as
Reyes through his voice and build. They immediately bound Marivic and when one of the
members of the gang was about to tie up Suarez, Reyes stopped him.
After Suarez was dragged out of the room, he told the group who were the occupants of the
different rooms in the house. Two men entered the room of Babyruth and Cristy while Reyes and
the fourth man went to Estrellita's room. They were able to enter Estrellita's room with the use of
their duplicate key and after they had kicked open the door of her room.; Estrellita shrieked when
they went inside her room.
The two men brought Suarez to his sisters-in-law's room to point out to them what they could get
from that room. Afterwards, he was brought to the dining table. From there, he saw the men
asking Estrellita for the keys of the gate of the house and the car. After they brought Estrellita back
to her room, two of the men brought Suarez to the maid's quarters.
Reyes asked Suarez to cook a chicken he found in the refrigerator While Suarez was cooking the
chicken in the microwave oven, the men took off the covers on their faces, smoked marijuana and
drank liquor. They were not able to finish eating the chicken because it was not evenly cooked.
When Estrellita shouted the name of Marivic, Rodriguez, one of the companions of Reyes, went to
her room. Suarez heard only soft and fading moans from Estrellita after that.
Before they left, the marauders told Suarez not to tell the police or the NBI or else they would kill
his mother, They slammed the front door shut and used the car of Estrellita to leave the house at
around five o'clock in the morning.
The NBI soon found out that "Dondon" or Larry is Loreto Reyes, a former neighbor of Suarez in
San Miguel, Pasig where he used to live before he transferred to his wife's residence at Barrio
Capitolyo.14 Reyes also admitted his participation in the commission of the crime and gave a
written statement15 to the NBI.
He began his confession by implicating Wilfredo Lara in the crime. He said that while he, Arthur
Lara, Morris Santos, and Eduardo Lozada were doing nothing in their place in San Miguel, Pasig,
Lara approached them and told them that he had some good news. Lara told them that he was
asked by Suarez to look for some men who could kill his Auntie Estrellita. Reyes could not believe
what he heard, so Lara called Suarez to let him tell the gang about his offer.
Apparently, Suarez wanted his aunt killed so that he and his wife could get at once any property
that Marivic might inherit from Estrellita upon the latter's demise. In exchange for the job, Suarez
would allow them to steal what they wanted from the house, in addition to giving them
P100,000.00 after one month from the killing of Estrellita.
They initially planned to carry out the criminal plot on December 5, 1987 but the group of Reyes
backed out on the agreed date when they felt unsure about the plan. However, they had
duplicates made of the keys to the house, which keys had been left by Suarez under one of
Estrellita's cars. The plan finally materialized on December 8, 1987 at about two o'clock in the
morning. The persons who were to execute the plan were Noli Licsi, Vicente Rodriguez, Morris
Santos, and Reyes. Before they went to Capitolyo, the group took some prohibited drugs and
smoked marijuana.
Aided by the sketch of the house provided by Suarez, the group went directly to the back of the
house and opened the back door with their duplicate key. As agreed upon earlier, Suarez had
released the bolt and chain lock of the said door to facilitate their entry into the house. Once
inside, Suarez, who was waiting for them there, instructed them to tie him and his wife. After doing
so, they opened the bedrooms of Babyruth, Cristy and Estrellita. The men then tied them up inside
their respective rooms. Since Santos and Licsi were the ones who entered Cristy's and Babyruth's
room, Reyes could not be sure what they got from those rooms.
Reyes further revealed that before they went into the house, Suarez had earlier loosened the
screws of the chain lock on the door of Estrellita's room. So, with their duplicate key and a little
push from outside, Reyes and Rodriguez were able to easily enter Estrellita's room. As Estrellita
was surprised by the entry of the two men, she instinctively held the knife being brandished by
Reyes which thereby cut her thumb. The two men then tied Estrellita.
It was after the gang was able to tie all the occupants of the house that they started taking the
betamax, jewelry, computer machine, camera, watches and other things inside the house.
Estrellita Guzman pointed out to them where they could find her jewelry. They brought Suarez
inside her room so that he could also show them where Estrellita's other jewelry and valuables
were, and then they covered her with a blanket.
After taking what they wanted, the scoundrels ate the chicken Suarez had cooked for them and
drank the imported liquor he offered. They also smoked marijuana.·While they were drinking,
Suarez remembered the maid, Tuyor, so he and two men went to her room and staged a show of
their mauling Suarez in front of her. They then tied the maid and continued drinking outside.
Thereafter, Suarez told the gang to kill Estrellita. Reyes said that Santos and Rodriguez were the
ones who stabbed Estrellita because they told him later that each of them stabbed the old lady
once.
Before Reyes and the gang left the place, Marivic told them to get their television ranger and to
disarrange the things in their room to show that the couple was not spared by the criminals.
Suarez ordered them to cut the telephone line and Reyes did so. Then, Suarez told Reyes to pull
the chain lock of the kitchen door to make it appear that the door had been forced open from
outside. Reyes complied with Suarez instructions. To hide the fact that a duplicate key was used
in opening the kitchen door, the perpetrators inserted a wire in the doorknob keyhole of the kitchen
door upon the prodding of Suarez.
The intruders left the house at around four o'clock in the morning. In getting out of the house, the
gang used the front door and rode in one of the cars of Estrellita. From the statement of Reyes, it
appears that the cabal wore black nylon cloths over their heads and faces when they committed
the despicable crime.
Atty. Ranin was able to retrieve the duplicate keys used by the gang16 from the father of
Reyes17 after Reyes had admitted that the keys could be found in his father's house in Montalban.
Wilfredo Lara was arrested by the NBI at the house of his parents-in-law in Northern Samar. When
brought to the NBI office at Taft Avenue, Manila, he likewise confessed his participation in the
crime and gave a sworn statement.18
According to Lara, Suarez went to his house at San Miguel, Pasig on December 2, 1987 to ask
him if he knew people who would be willing and capable of robbing a house. Lara told him that
there were some persons he knew who could do the job and he brought Suarez to the group of
Larry Reyes, Noli Licsi, Morris Santos and Vicente Rodriguez at Dr. Pilapil Street, San Miguel,
Pasig. When Reyes and Suarez started talking, Lara left the place.
On December 4, 1987, Lara saw Suarez talking with the same group in front of a store. He
overheard them planning the robbery .of a house in Barrio Capitolyo on December 8, 1987. On
December 7, 1987, he again saw Suarez and the gang when they agreed to consummate their
earlier plan. Lara denied that he joined the group that robbed the house in Barrio Capitolyo and
added that he never received any share of the loot from them. He did not report the matter to the
police for fear of reprisal. He even went to the place of his in-laws at Nabas, Samar to avoid the
group.
Based on the foregoing statements and on other evidence submitted by the NBI to the then
provincial fiscal of the former municipality of Pasig, an information for the crime of robbery with
homicide was filed against Ferdinand Suarez, Loreto Reyes, Wilfredo Lara, Maria Victoria G.
Suarez, Noli Licsi, Vicente Rodriguez, and Morris Santos. The case was raffled to Branch 152 of
the Regional Trial Court of Pasig19 and docketed as Criminal Case No. 72249.
As stated in the information, which was twice amended, the felony was allegedly committed as
follows:
That on or about the 8th day of December, 1987 in the Municipality of Pasig,
Metro Manila, Philippines a place within the jurisdiction of this Honorable Court,
the above-named accused, conspiring and confederating together with
one Mauro Santos whose true identity and present whereabout is still
unknown and mutually helping and aiding with one another, by means of force,
violence and intimidation employed upon the person of one Estrellita Guzman did
then and there willfully, unlawfully and feloniously take, rob and carry away from
the house of said Estrellita Guzman the following articles, to wit:
a. Jewelry
b. Computer machine
c. TC Sony Ranger
d. Radio Cassette
e. Five (5) assorted cameras and other valuables
all in the total amount of P650,000.00 more or less; that on the occasion of the
said robbery and for the purpose of enabling them to take, rob and carry away
the articles above-mentioned, herein accused; conspiring and confederating
together and mutually helping and aiding with one another, armed with bladed
weapons, with intent to kill, did then and there willfully, unlawfully and feloniously
stab said Estrellita Guzman, thereby causing the latter to sustain fatal injuries
which directly caused her
death.20
Only accused Suarez, Reyes and Lara were brought within the jurisdiction of the lower court as
the other accused went into hiding and were able to evade the joint manhunt set up by the police
and the NBI. Suarez, Reyes and Lara pleaded not guilty despite their earlier confessions before
the NBI. Although they admitted that they signed and placed their thumbmarks on their respective
statements, they tried to show during their trial that those statements were procured through
coercion, intimidation and violence by the NBI agents and without the assistance of counsel.
Accused Suarez reiterated the earlier version he gave to the EPD, while accused Reyes and Lara
raised the defense of alibi by claiming that they were respectively at Montalban, Rizal and Samar
at the time the crime was committed.
The prosecution however, presented witnesses who were present during the taking of the
statements of the accused and they testified that those statements were given freely and
voluntarily, and were take with observance of the constitutional guarantees, during the custodial
investigation.
Relying on the extrajudicial confessions of the accused and on the circumstantial evidence
adduced by the prosecution, the trial court found the three accused guilty beyond reasonable
doubt of robbery with homicide, and sentenced them to suffer the penalty of reclusion
perpetua and to solidarily pay to the heirs of the victim P30,000.00 as death indemnity,
P420,00.00 for loss of earning capacity, and the costs.21
While Suarez and Reyes have already accepted the trial court's verdict, Lara now questions the
lower court's decision by challenging the admissibility of their extrajudicial declarations marked as
Exhibits O, P and Q. He claims that their extrajudicial confessions were obtained through force
and intimidation and without the benefit of an effective counsel.22
It is important to note at the outset that this Court has no jurisdiction to review the judgment of
conviction imposed upon Suarez and Reyes for they have not filed any notice of appeal for
themselves.23 And while we are cognizant of the rule that the right to claim the inadmissibility of an
extrajudicial confession is personal in nature, in the sense that only the confessant whose rights
during an investigation were violated can raise an objection,24 we deem it necessary to discuss in
this appeal the circumstances surrounding the execution of Reyes's sworn statement in evaluating
appellant Lara's own extra curia declaration. Although an extrajudicial confession is admissible
only against the confessant, jurisprudence makes it admissible as corroborative evidence of other
facts that tend to establish the guilt of his co-accused.25
The lower court treated the confessions of the three accused as interlocking confessions sufficient
to corroborate and bolster the truth of each accused's own incriminating statements. This doctrine
of interlocking confessions has been accepted and recognized in numerous decisions of this Court
as an exception to the res incer alios acta rule and the hearsay rule. 26 Reyes' confession is thus
admissible against Lara to show the probable involvement of the latter in the perpetration of the
crime. Where the confession is used as circumstantial evidence to show the probability of
participation by an accused co-conspirator, that confession is receivable as evidence against
him.27
But while herein appellant does not deny the validity and operation of the above rule in his
situation, he maintains that his co-accused's confessions must comply with the requirements
found in Section 12, Article III of the Constitution before they can be considered probative of his
guilt.28 We see no need to rule on the admissibility of Suarez' statement because Lara was never
mentioned or implicated therein. What interests us is that of Reyes, since appellant Lara claims
alleged violence, torture and maltreatment suffered by him and Reyes at the hands of the NBI
agents.
After a thorough review of the records of the case, we agree with the lower court's factual finding
and conclusion that the extrajudicial confessions of accused Reyes and appellant Lara were freely
and voluntarily given and that their retraction and claims of violence and coercion were merely
belated contrivances and efforts at exculpation. Their claim that they were forced to sign their
respective statements was sufficiently refuted by the witnesses for the prosecution who were
present on the day and time the duo gave and signed their sworn statements.29
Once the prosecution has shown that there was compliance with the constitutional requirement on
pre-interrogation advisories, a confession is presumed to be voluntary and the declarant bears the
burden of proving that his confession is involuntary and untrue.30 The burden is on the accused to
destroy this presumption.31 A confession is admissible until the accused successfully proves that it
was given as a result of violence, intimidation, threat, or promise of reward or leniency.32
The sworn statements signed by accused Reyes and appellant Lara state that they had been
informed of their rights guaranteed under the Constitution. Reyes stated that he had been assisted
by counsel during the custodial investigation and appellant Lara confirmed that he was assisted by
a lawyer when he waived his constitutional rights. Additionally, several witnesses for the People
testified before the lower court that the constitutional mandates were observed during their
investigation. Reyes and Lara were not even able to show any evil or dubious motive corrosive of
the credibility of these witnesses whom the court a quo found more worthy of belief than the
witnesses for the defense.
Accused failed to submit any evidence, apart from their own testimony, that violence and
intimidation had been inflicted upon them to extort their sworn confessions. They never
complained to Prosecutor Capistrano nor to anyone else about the physical beatings that they
claim had been inflicted upon them. They did not ask for medical assistance and there was no
proof that any such request was denied. Although Reyes submitted a medical certificate to attest
to supposed injuries, the court below did not believe it and accepted it merely to prove its
existence.33
Extrajudicial confessions independently made without collusion, almost identical with each other in
their essential details which could have been known only to the declarants, and corroborated by
other evidence against the person or persons implicated to show the probability of the latter's
actual participation in the commission of the crime, are thus impressed with features of
voluntariness in their execution.34 Also, the failure of an accused to complain to the swearing
officer35 or to file charges against the persons who allegedly maltreated him, although he had all
the chances to do so, manifests voluntariness in the execution of the confession.36
We find no merit in herein appellant's contention that Atty. Saunar was not Reyes' own choice as
counsel for the interrogation. While the initial choice of the lawyer in cases where a person under
custodial investigation cannot afford the services of a lawyer is naturally lodged in the police
investigators, the accused really has the final choice as he may reject the counsel chosen for him
and ask for another one. A lawyer provided by the investigators is deemed engaged by the
accused where he never raised any objection against the former's appointment during the course
of the investigation and the accused thereafter subscribes to the veracity of his statement before
the swearing officer.37
Here, while the lawyers of the accused were provided by the NBI, the accused never signified their
desire to have a lawyer of their own choice. Thus, we also disagree with appellant's claim that the
lawyer who assisted him in his waiver came in only after he had executed his waiver. His own
statements shows that he waived his rights in the presence and with the advice of Atty. Rodolfo
Dahiroc.
To be an effective counsel, a lawyer need not challenge all the questions being propounded to his
client. The presence of a lawyer is not intended to stop an accused from saying anything which
might incriminate him but, rather, it was adopted in our Constitution to preclude the slightest
coercion as would lead the accused to admit something false.38 The counsel, however, should
never prevent an accused from freely and voluntarily telling the truth.39 Hence, absent any
showing that the lawyers who assisted the accused were remiss in their duties, it can be safely
concluded that the custodial investigation of Reyes and Lara were regularly conducted. 40
Even disregarding for a moment Reyes' extrajudicial declaration, appellant Lara can still be held
accountable under his own sworn statement. Well-entrenched is the rule that it is not necessary
that an eyewitness should testify to having seen the accused committing the crime or had seen
him under circumstances indicating his having committed the crime, before the accused may be
held liable under his confession.41 This is how much weight and credence our jurisprudence gives
to a confession. The Rules of Court42 provide that "(t)he declaration of an accused acknowledging
his guilt of the offense charged, or any offense necessarily included therein, may be given in
evidence against him."
Of course, when the confession is made outside of court proceedings, it must be accompanied by
evidence of the corpus delicit to be sufficient for conviction.43 If it is made freely and voluntarily, a
confession constitutes evidence of a high order since it is supported by the strong presumption
that no sane person or one of a normal mind will deliberately and knowingly confess himself to be
the perpetrator of a crime unless prompted by truth and
conscience.44 Withal, appellant Lara did not appeal in vain. Although he himself admitted his role
in the crime of robbery with homicide, we deem it just and equitable to delineate in this decision
his exact criminal liability even though he failed to clearly raise it before us.

We reject the prosecution's theory and the trial court's conclusion that appellant acted as a lookout
during the commission of the special complex crime. The prosecution did not present any
evidence showing that he took part in the planning or execution of the crime nor any proof
indicating that he profited from the fruits of the crime, or of acts indicative of confederacy on his
part.

The pictures of the reenactment depicting Lara's role in the commission of the crime 45 cannot be
utilized as evidence of his participation as a principal therein as that reenactment was conducted
without any lawyer assisting appellant. We have held that reenactments are covered by the right
against self-incrimination.46 Atty. Ranin himself admitted on the witness stand that no lawyer
assisted Lara during the reenactment because he could not find any available lawyer at that time
who could act as his counsel.47

From Reyes and appellant's confessions, which we believe bear the mark of truth and credibility, it
can only be inferred that Lara merely introduced the group of Reyes to Suarez. With such a
nominal role, we cannot conscientiously declare that Lara was a co-conspirator or a principal by
inducement or indispensable cooperation in the crime of robbery with homicide.

Where the accused does not fall under any of the three concepts of principals defined in Article 17
of the Revised Penal Code, he may only be considered guilty as an accomplice. 48 And where
there is no showing of conspiracy or confabulation on his part, and the extent of the accused's
participation in the crime is uncertain, he should be given the benefit of the doubt and be declared
as a mere accomplice therein.49 We are sufficiently persuaded to declare appellant as a mere
accomplice in the crime charged.

WHEREFORE, the penalty imposed upon accused-appellant Wilfredo Lara is hereby MODIFIED
and he is sentenced to suffer an indeterminate penalty of ten (10) years of prision mayor, as
minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum.

The death indemnity awarded by the court a quo is hereby INCREASED to Fifty Thousand Pesos
(P50,000.00) in line with present case law and policy, to be assessed against the accused and
herein appellant in accordance with Article 110 of the Revised Penal Code.

In all other respects, the judgment of the lower court is hereby AFFIRMED.

SO ORDERED.

Romero, Puno, Mendoza and Torres, Jr., JJ., concur.

 THIRD DIVISION
G.R. No. 162571 June 15, 2005
ARNEL L. AGUSTIN, petitioner,
vs.
HON. COURT OF APPEALS AND MINOR MARTIN JOSE PROLLAMANTE, REPRESENTED
BY HIS MOTHER/GUARDIAN FE ANGELA PROLLAMANTE, respondents.
DECISION
CORONA, J.:
At issue in this petition for certiorari 1 is whether or not the Court of Appeals (CA) gravely erred in
exercising its discretion, amounting to lack or excess of jurisdiction, in issuing a decision 2 and
resolution3 upholding the resolution and order of the trial court,4 which denied petitioner’s motion to
dismiss private respondents’ complaint for support and directed the parties to submit themselves
to deoxyribonucleic acid (DNA) paternity testing.
Respondents Fe Angela and her son Martin Prollamante sued Martin’s alleged biological father,
petitioner Arnel L. Agustin, for support and support pendente lite before the Regional Trial Court
(RTC) of Quezon City, Branch 106.5
In their complaint, respondents alleged that Arnel courted Fe in 1992, after which they entered into
an intimate relationship. Arnel supposedly impregnated Fe on her 34th birthday on November 10,
1999. Despite Arnel’s insistence on abortion, Fe decided otherwise and gave birth to their child out
of wedlock, Martin, on August 11, 2000 at the Capitol Medical Hospital in Quezon City. The baby’s
birth certificate was purportedly signed by Arnel as the father. Arnel shouldered the pre-natal and
hospital expenses but later refused Fe’s repeated requests for Martin’s support despite his
adequate financial capacity and even suggested to have the child committed for adoption. Arnel
also denied having fathered the child.
On January 19, 2001, while Fe was carrying five-month old Martin at the Capitol Hills Golf and
Country Club parking lot, Arnel sped off in his van, with the open car door hitting Fe’s leg. This
incident was reported to the police. In July 2001, Fe was diagnosed with leukemia and has, since
then, been undergoing chemotherapy. On March 5, 2002, Fe and Martin sued Arnel for support.6
In his amended answer, Arnel denied having sired Martin because his affair and intimacy with Fe
had allegedly ended in 1998, long before Martin’s conception. He claimed that Fe had at least one
other secret lover. Arnel admitted that their relationship started in 1993 but "he never really fell in
love with (Fe) not only because (she) had at least one secret lover, a certain Jun, but also
because she proved to be scheming and overly demanding and possessive. As a result, theirs
was a stormy on-and-off affair. What started as a romantic liaison between two consenting adults
eventually turned out to be a case of fatal attraction where (Fe) became so obsessed with (Arnel),
to the point of even entertaining the idea of marrying him, that she resorted to various devious
ways and means to alienate (him) from his wife and family…. Unable to bear the prospect of losing
his wife and children, Arnel terminated the affair although he still treated her as a friend such as by
referring potential customers to the car aircon repair shop" 7 where she worked. Later on, Arnel
found out that Fe had another erstwhile secret lover. In May 2000, Arnel and his entire family went
to the United States for a vacation. Upon their return in June 2000, Arnel learned that Fe was
telling people that he had impregnated her. Arnel refused to acknowledge the child as his because
their "last intimacy was sometime in 1998."8 Exasperated, Fe started calling Arnel’s wife and
family. On January 19, 2001, Fe followed Arnel to the Capitol Hills Golf and Country Club parking
lot to demand that he acknowledge Martin as his child. According to Arnel, he could not get
through Fe and the discussion became so heated that he had no "alternative but to move on but
without bumping or hitting any part of her body."9 Finally, Arnel claimed that the signature and the
community tax certificate (CTC) attributed to him in the acknowledgment of Martin’s birth
certificate were falsified. The CTC erroneously reflected his marital status as single when he was
actually married and that his birth year was 1965 when it should have been 1964.10
In his pre-trial brief filed on May 17, 2002, Arnel vehemently denied having sired Martin but
expressed willingness to consider any proposal to settle the case.11
On July 23, 2002, Fe and Martin moved for the issuance of an order directing all the parties to
submit themselves to DNA paternity testing pursuant to Rule 28 of the Rules of Court.12
Arnel opposed said motion by invoking his constitutional right against self-incrimination.13 He also
moved to dismiss the complaint for lack of cause of action, considering that his signature on the
birth certificate was a forgery and that, under the law, an illegitimate child is not entitled to support
if not recognized by the putative father.14 In his motion, Arnel manifested that he had filed criminal
charges for falsification of documents against Fe (I.S. Nos. 02-5723 and 02-7192) and a petition
for cancellation of his name appearing in Martin’s birth certificate (docketed as Civil Case No. Q-
02-46669). He attached the certification of the Philippine National Police Crime Laboratory that his
signature in the birth certificate was forged.
The trial court denied the motion to dismiss the complaint and ordered the parties to submit
themselves to DNA paternity testing at the expense of the applicants. The Court of Appeals
affirmed the trial court.
Thus, this petition.
In a nutshell, petitioner raises two issues: (1) whether a complaint for support can be converted to
a petition for recognition and (2) whether DNA paternity testing can be ordered in a proceeding for
support without violating petitioner’s constitutional right to privacy and right against self-
incrimination.15
The petition is without merit.
First of all, the trial court properly denied the petitioner’s motion to dismiss because the private
respondents’ complaint on its face showed that they had a cause of action against the petitioner.
The elements of a cause of action are: (1) the plaintiff’s primary right and the defendant’s
corresponding primary duty, and (2) the delict or wrongful act or omission of the defendant, by
which the primary right and duty have been violated. The cause of action is determined not by the
prayer of the complaint but by the facts alleged.16
In the complaint, private respondents alleged that Fe had amorous relations with the petitioner, as
a result of which she gave birth to Martin out of wedlock. In his answer, petitioner admitted that he
had sexual relations with Fe but denied that he fathered Martin, claiming that he had ended the
relationship long before the child’s conception and birth. It is undisputed and even admitted by the
parties that there existed a sexual relationship between Arnel and Fe. The only remaining question
is whether such sexual relationship produced the child, Martin. If it did, as respondents have
alleged, then Martin should be supported by his father Arnel. If not, petitioner and Martin are
strangers to each other and Martin has no right to demand and petitioner has no obligation to give
support.
Preliminaries aside, we now tackle the main issues.
Petitioner refuses to recognize Martin as his own child and denies the genuineness and
authenticity of the child’s birth certificate which he purportedly signed as the father. He also claims
that the order and resolution of the trial court, as affirmed by the Court of Appeals, effectively
converted the complaint for support to a petition for recognition, which is supposedly proscribed by
law. According to petitioner, Martin, as an unrecognized child, has no right to ask for support and
must first establish his filiation in a separate suit under Article 283 17 in relation to Article 26518 of
the Civil Code and Section 1, Rule 10519 of the Rules of Court.
The petitioner’s contentions are without merit.
The assailed resolution and order did not convert the action for support into one for recognition but
merely allowed the respondents to prove their cause of action against petitioner who had been
denying the authenticity of the documentary evidence of acknowledgement. But even if the
assailed resolution and order effectively integrated an action to compel recognition with an action
for support, such was valid and in accordance with jurisprudence. In Tayag v. Court of
Appeals,20 we allowed the integration of an action to compel recognition with an action to claim
one’s inheritance:
…In Paulino, we held that an illegitimate child, to be entitled to support and successional rights
from the putative or presumed parent, must prove his filiation to the latter. We also said that it is
necessary to allege in the complaint that the putative father had acknowledged and recognized the
illegitimate child because such acknowledgment is essential to and is the basis of the right to
inherit. There being no allegation of such acknowledgment, the action becomes one to compel
recognition which cannot be brought after the death of the putative father. The ratio
decidendi in Paulino, therefore, is not the absence of a cause of action for failure of the petitioner
to allege the fact of acknowledgment in the complaint, but the prescription of the action.
Applying the foregoing principles to the case at bar, although petitioner contends that the
complaint filed by herein private respondent merely alleges that the minor Chad Cuyugan is an
illegitimate child of the deceased and is actually a claim for inheritance, from the allegations
therein the same may be considered as one to compel recognition. Further, that the two causes
of action, one to compel recognition and the other to claim inheritance, may be joined in
one complaint is not new in our jurisprudence.
As early as [1922] we had occasion to rule thereon in Briz vs. Briz, et al. (43 Phil. 763 [1922])
wherein we said:
The question whether a person in the position of the present plaintiff can in any event maintain a
complex action to compel recognition as a natural child and at the same time to obtain ulterior
relief in the character of heir, is one which in the opinion of this court must be answered in the
affirmative, provided always that the conditions justifying the joinder of the two distinct causes of
action are present in the particular case. In other words, there is no absolute necessity
requiring that the action to compel acknowledgment should have been instituted and
prosecuted to a successful conclusion prior to the action in which that same plaintiff seeks
additional relief in the character of heir. Certainly, there is nothing so peculiar to the action to
compel acknowledgment as to require that a rule should be here applied different from that
generally applicable in other cases. x x x
The conclusion above stated, though not heretofore explicitly formulated by this court, is
undoubtedly to some extent supported by our prior decisions. Thus, we have held in numerous
cases, and the doctrine must be considered well settled, that a natural child having a right
to compel acknowledgment, but who has not been in fact legally acknowledged, may
maintain partition proceedings for the division of the inheritance against his coheirs x x x;
and the same person may intervene in proceedings for the distribution of the estate of his
deceased natural father, or mother x x x. In neither of these situations has it been thought
necessary for the plaintiff to show a prior decree compelling acknowledgment. The obvious reason
is that in partition suits and distribution proceedings the other persons who might take by
inheritance are before the court; and the declaration of heirship is appropriate to such
proceedings. (Underscoring supplied)
Although the instant case deals with support rather than inheritance, as in Tayag, the basis or
rationale for integrating them remains the same. Whether or not respondent Martin is entitled to
support depends completely on the determination of filiation. A separate action will only result in a
multiplicity of suits, given how intimately related the main issues in both cases are. To
paraphrase Tayag, the declaration of filiation is entirely appropriate to these proceedings.
On the second issue, petitioner posits that DNA is not recognized by this Court as a conclusive
means of proving paternity. He also contends that compulsory testing violates his right to privacy
and right against self-incrimination as guaranteed under the 1987 Constitution. These contentions
have no merit.
Given that this is the very first time that the admissibility of DNA testing as a means for
determining paternity has actually been the focal issue in a controversy, a brief historical sketch of
our past decisions featuring or mentioning DNA testing is called for.
In the 1995 case of People v. Teehankee21 where the appellant was convicted of murder on the
testimony of three eyewitnesses, we stated as an obiter dictum that "while eyewitness
identification is significant, it is not as accurate and authoritative as the scientific forms of
identification evidence such as the fingerprint or the DNA test result(emphasis supplied)."
Our faith in DNA testing, however, was not quite so steadfast in the previous decade. In Pe Lim v.
Court of Appeals,22 promulgated in 1997, we cautioned against the use of DNA because "DNA,
being a relatively new science, (had) not as yet been accorded official recognition by our courts.
Paternity (would) still have to be resolved by such conventional evidence as the relevant
incriminating acts, verbal and written, by the putative father."
In 2001, however, we opened the possibility of admitting DNA as evidence of parentage, as
enunciated in Tijing v. Court of Appeals:23
A final note. Parentage will still be resolved using conventional methods unless we adopt the
modern and scientific ways available. Fortunately, we have now the facility and expertise in using
DNA test for identification and parentage testing. The University of the Philippines Natural Science
Research Institute (UP-NSRI) DNA Analysis Laboratory has now the capability to conduct DNA
typing using short tandem repeat (STR) analysis. The analysis is based on the fact that the DNA
of a child/person has two (2) copies, one copy from the mother and the other from the father. The
DNA from the mother, the alleged father and child are analyzed to establish parentage. Of course,
being a novel scientific technique, the use of DNA test as evidence is still open to challenge.
Eventually, as the appropriate case comes, courts should not hesitate to rule on the admissibility
of DNA evidence. For it was said, that courts should apply the results of science when
competently obtained in aid of situations presented, since to reject said result is to deny progress.
The first real breakthrough of DNA as admissible and authoritative evidence in Philippine
jurisprudence came in 2002 with our en banc decision in People v. Vallejo24 where the rape and
murder victim’s DNA samples from the bloodstained clothes of the accused were admitted in
evidence. We reasoned that "the purpose of DNA testing (was) to ascertain whether an
association exist(ed) between the evidence sample and the reference sample. The samples
collected (were) subjected to various chemical processes to establish their profile."
A year later, in People v. Janson,25 we acquitted the accused charged with rape for lack of
evidence because "doubts persist(ed) in our mind as to who (were) the real malefactors. Yes, a
complex offense (had) been perpetrated but who (were) the perpetrators? How we wish we had
DNA or other scientific evidence to still our doubts!"
In 2004, in Tecson, et al. v. COMELEC26 where the Court en banc was faced with the issue of
filiation of then presidential candidate Fernando Poe Jr., we stated:
In case proof of filiation or paternity would be unlikely to satisfactorily establish or would be difficult
to obtain, DNA testing, which examines genetic codes obtained from body cells of the illegitimate
child and any physical residue of the long dead parent could be resorted to. A positive match
would clear up filiation or paternity. In Tijing vs. Court of Appeals, this Court has acknowledged the
strong weight of DNA testing…
Moreover, in our en banc decision in People v. Yatar,27 we affirmed the conviction of the accused
for rape with homicide, the principal evidence for which included DNA test results. We did a
lengthy discussion of DNA, the process of DNA testing and the reasons for its admissibility in the
context of our own Rules of Evidence:
Deoxyribonucleic Acid, or DNA, is a molecule that encodes the genetic information in all living
organisms. A person’s DNA is the same in each cell and it does not change throughout a person’s
lifetime; the DNA in a person’s blood is the same as the DNA found in his saliva, sweat, bone, the
root and shaft of hair, earwax, mucus, urine, skin tissue, and vaginal and rectal cells. Most
importantly, because of polymorphisms in human genetic structure, no two individuals have the
same DNA, with the notable exception of identical twins.
xxx xxx xxx
In assessing the probative value of DNA evidence, courts should consider, inter alia, the following
factors: how the samples were collected, how they were handled, the possibility of contamination
of the samples, the procedure followed in analyzing the samples, whether proper standards and
procedures were followed in conducting the tests, and the qualification of the analyst who
conducted the tests.
In the case at bar, Dr. Maria Corazon Abogado de Ungria was duly qualified by the prosecution as
an expert witness on DNA print or identification techniques. Based on Dr. de Ungria’s testimony, it
was determined that the gene type and DNA profile of appellant are identical to that of the extracts
subject of examination. The blood sample taken from the appellant showed that he was of the
following gene types: vWA 15/19, TH01 7/8, DHFRP29/10 and CSF1PO 10/11, which are identical
with semen taken from the victim’s vaginal canal. Verily, a DNA match exists between the semen
found in the victim and the blood sample given by the appellant in open court during the course of
the trial.
Admittedly, we are just beginning to integrate these advances in science and technology in the
Philippine criminal justice system, so we must be cautious as we traverse these relatively
uncharted waters. Fortunately, we can benefit from the wealth of persuasive jurisprudence that
has developed in other jurisdictions. Specifically, the prevailing doctrine in the U.S. has proven
instructive.
In Daubert v. Merrell Dow (509 U.S. 579 (1993); 125 L. Ed. 2d 469) it was ruled that pertinent
evidence based on scientifically valid principles could be used as long as it was relevant and
reliable. Judges, under Daubert, were allowed greater discretion over which testimony they would
allow at trial, including the introduction of new kinds of scientific techniques. DNA typing is one
such novel procedure.
Under Philippine law, evidence is relevant when it relates directly to a fact in issue as to induce
belief in its existence or non-existence. Applying the Daubert test to the case at bar, the DNA
evidence obtained through PCR testing and utilizing STR analysis, and which was appreciated by
the court a quo is relevant and reliable since it is reasonably based on scientifically valid principles
of human genetics and molecular biology.
Significantly, we upheld the constitutionality of compulsory DNA testing and the admissibility of the
results thereof as evidence. In that case, DNA samples from semen recovered from a rape victim’s
vagina were used to positively identify the accused Joel "Kawit" Yatar as the rapist. Yatar claimed
that the compulsory extraction of his blood sample for DNA testing, as well as the testing itself,
violated his right against self-incrimination, as embodied in both Sections 12 and 17 of Article III of
the Constitution. We addressed this as follows:
The contention is untenable. The kernel of the right is not against all compulsion, but against
testimonial compulsion. The right against self-incrimination is simply against the legal process of
extracting from the lips of the accused an admission of guilt. It does not apply where the evidence
sought to be excluded is not an incrimination but as part of object evidence.
Over the years, we have expressly excluded several kinds of object evidence taken from the
person of the accused from the realm of self-incrimination. These include
photographs,28 hair,29 and other bodily substances.30 We have also declared as constitutional
several procedures performed on the accused such as pregnancy tests for women accused of
adultery,31 expulsion of morphine from one’s mouth32 and the tracing of one’s foot to determine its
identity with bloody footprints.33 In Jimenez v. Cañizares,34 we even authorized the examination of
a woman’s genitalia, in an action for annulment filed by her husband, to verify his claim that she
was impotent, her orifice being too small for his penis. Some of these procedures were, to be sure,
rather invasive and involuntary, but all of them were constitutionally sound. DNA testing and its
results, per our ruling in Yatar,35 are now similarly acceptable.
Nor does petitioner’s invocation of his right to privacy persuade us. In Ople v. Torres,36 where we
struck down the proposed national computerized identification system embodied in Administrative
Order No. 308, we said:
In no uncertain terms, we also underscore that the right to privacy does not bar all incursions into
individual privacy. The right is not intended to stifle scientific and technological advancements that
enhance public service and the common good... Intrusions into the right must be accompanied by
proper safeguards that enhance public service and the common good.
Historically, it has mostly been in the areas of legality of searches and seizures, 37 and the
infringement of privacy of communication38 where the constitutional right to privacy has been
critically at issue. Petitioner’s case involves neither and, as already stated, his argument that his
right against self-incrimination is in jeopardy holds no water. His hollow invocation of his
constitutional rights elicits no sympathy here for the simple reason that they are not in any way
being violated. If, in a criminal case, an accused whose very life is at stake can be compelled to
submit to DNA testing, we see no reason why, in this civil case, petitioner herein who does not
face such dire consequences cannot be ordered to do the same.
DNA paternity testing first came to prominence in the United States, where it yielded its first official
results sometime in 1985. In the decade that followed, DNA rapidly found widespread general
acceptance.39 Several cases decided by various State Supreme Courts reflect the total
assimilation of DNA testing into their rules of procedure and evidence.
The case of Wilson v. Lumb40 shows that DNA testing is so commonly accepted that, in some
instances, ordering the procedure has become a ministerial act. The Supreme Court of St.
Lawrence County, New York allowed a party who had already acknowledged paternity to
subsequently challenge his prior acknowledgment. The Court pointed out that, under the law,
specifically Section 516 of the New York Family Court Act, the Family Court examiner had the
duty, upon receipt of the challenge, to order DNA tests:41
§ 516-a. Acknowledgment of paternity. (a) An acknowledgment of paternity executed
pursuant to section one hundred eleven-k of the social services law or section four
thousand one hundred thirty-five-b of the public health law shall establish the paternity of
and liability for the support of a child pursuant to this act. Such acknowledgment must be
reduced to writing and filed pursuant to section four thousand one hundred thirty-five-b of
the public health law with the registrar of the district in which the birth occurred and in
which the birth certificate has been filed. No further judicial or administrative proceedings
are required to ratify an unchallenged acknowledgment of paternity.
(b) An acknowledgment of paternity executed pursuant to section one hundred eleven-k
of the social services law or section four thousand one hundred thirty-five-b of the public
health law may be rescinded by either signator’s filing of a petition with the court to vacate
the acknowledgment within the earlier of sixty days of the date of signing the
acknowledgment or the date of an administrative or a judicial proceeding (including a
proceeding to establish a support order) relating to the child in which either signator is a
party. For purposes of this section, the "date of an administrative or a judicial proceeding"
shall be the date by which the respondent is required to answer the petition. After the
expiration of sixty days of the execution of the acknowledgment, either signator may
challenge the acknowledgment of paternity in court only on the basis of fraud, duress, or
material mistake of fact, with the burden of proof on the party challenging the voluntary
acknowledgment. Upon receiving a party’s challenge to an acknowledgment, the
court shall order genetic marker tests or DNA tests for the determination of the
child’s paternity and shall make a finding of paternity, if appropriate, in accordance
with this article. Neither signator’s legal obligations, including the obligation for child
support arising from the acknowledgment, may be suspended during the challenge to the
acknowledgment except for good cause as the court may find. If a party petitions to
rescind an acknowledgment and if the court determines that the alleged father is not the
father of the child, or if the court finds that an acknowledgment is invalid because it was
executed on the basis of fraud, duress, or material mistake of fact, the court shall vacate
the acknowledgment of paternity and shall immediately provide a copy of the order to the
registrar of the district in which the child’s birth certificate is filed and also to the putative
father registry operated by the department of social services pursuant to section three
hundred seventy-two-c of the social services law. In addition, if the mother of the child
who is the subject of the acknowledgment is in receipt of child support services pursuant
to title six-A of article three of the social services law, the court shall immediately provide
a copy of the order to the child support enforcement unit of the social services district that
provides the mother with such services.
(c) A determination of paternity made by any other state, whether established through the
parents’ acknowledgment of paternity or through an administrative or judicial process,
must be accorded full faith and credit, if and only if such acknowledgment meets the
requirements set forth in section 452(a)(7) of the social security act.
(emphasis supplied)
DNA testing also appears elsewhere in the New York Family Court Act:42
§532. Genetic marker and DNA tests; admissibility of records or reports of test results; costs of
tests.
a) The court shall advise the parties of their right to one or more genetic marker tests or
DNA tests and, on the court’s own motion or the motion of any party, shall order the
mother, her child and the alleged father to submit to one or more genetic marker or DNA
tests of a type generally acknowledged as reliable by an accreditation body designated by
the secretary of the federal department of health and human services and performed by a
laboratory approved by such an accreditation body and by the commissioner of health or
by a duly qualified physician to aid in the determination of whether the alleged father is or
is not the father of the child. No such test shall be ordered, however, upon a written
finding by the court that it is not in the best interests of the child on the basis of res
judicata, equitable estoppel, or the presumption of legitimacy of a child born to a
married woman. The record or report of the results of any such genetic marker or DNA
test ordered pursuant to this section or pursuant to section one hundred eleven-k of the
social services law shall be received in evidence by the court pursuant to subdivision (e)
of rule forty-five hundred eighteen of the civil practice law and rules where no timely
objection in writing has been made thereto and that if such timely objections are not
made, they shall be deemed waived and shall not be heard by the court. If the record or
report of the results of any such genetic marker or DNA test or tests indicate at
least a ninety-five percent probability of paternity, the admission of such record or
report shall create a rebuttable presumption of paternity, and shall establish, if
unrebutted, the paternity of and liability for the support of a child pursuant to this
article and article four of this act.
(b) Whenever the court directs a genetic marker or DNA test pursuant to this section, a
report made as provided in subdivision (a) of this section may be received in evidence
pursuant to rule forty-five hundred eighteen of the civil practice law and rules if offered by
any party.
(c) The cost of any test ordered pursuant to subdivision (a) of this section shall be, in the
first instance, paid by the moving party. If the moving party is financially unable to pay
such cost, the court may direct any qualified public health officer to conduct such test, if
practicable; otherwise, the court may direct payment from the funds of the appropriate
local social services district. In its order of disposition, however, the court may direct that
the cost of any such test be apportioned between the parties according to their respective
abilities to pay or be assessed against the party who does not prevail on the issue of
paternity, unless such party is financially unable to pay. (emphasis supplied)
In R.E. v. C.E.W.,43 a decision of the Mississippi Supreme Court, DNA tests were used to prove
that H.W., previously thought to be an offspring of the marriage between A.C.W. and C.E.W., was
actually the child of R.E. with whom C.E.W. had, at the time of conception, maintained an
adulterous relationship.
In Erie County Department of Social Services on behalf of Tiffany M.H. v. Greg G.,44 the 4th
Department of the New York Supreme Court’s Appellate Division allowed G.G., who had been
adjudicated as T.M.H.’s father by default, to have the said judgment vacated, even after six years,
once he had shown through a genetic marker test that he was not the child’s father. In this case,
G.G. only requested the tests after the Department of Social Services, six years after G.G. had
been adjudicated as T.M.H.’s father, sought an increase in his support obligation to her.
In Greco v. Coleman,45 the Michigan Supreme Court while ruling on the constitutionality of a
provision of law allowing non-modifiable support agreements pointed out that it was because of
the difficulty of determining paternity before the advent of DNA testing that such support
agreements were necessary:
As a result of DNA testing, the accuracy with which paternity can be proven has increased
significantly since the parties in this lawsuit entered into their support agreement…(current testing
methods can determine the probability of paternity to 99.999999% accuracy). However, at the time
the parties before us entered into the disputed agreement, proving paternity was a very significant
obstacle to an illegitimate child's access to child support. The first reported results of
modern DNA paternity testing did not occur until 1985. ("In fact, since its first reported results in
1985, DNA matching has progressed to 'general acceptance in less than a decade'"). Of course,
while prior blood-testing methods could exclude some males from being the possible father of a
child, those methods could not affirmatively pinpoint a particular male as being the father. Thus,
when the settlement agreement between the present parties was entered in 1980, establishing
paternity was a far more difficult ordeal than at present. Contested paternity actions at that time
were often no more than credibility contests. Consequently, in every contested paternity action,
obtaining child support depended not merely on whether the putative father was, in fact, the child's
biological father, but rather on whether the mother could prove to a court of law that she was only
sexually involved with one man--the putative father. Allowing parties the option of entering into
private agreements in lieu of proving paternity eliminated the risk that the mother would be unable
meet her burden of proof.
It is worth noting that amendments to Michigan’s Paternity law have included the use of DNA
testing:46
§722.716 Pretrial proceedings; blood or tissue typing determinations as to mother, child, and
alleged father; court order; refusal to submit to typing or identification profiling; qualifications of
person conducting typing or identification profiling; compensation of expert; result of typing or
identification profiling; filing summary report; objection; admissibility; presumption; burden of proof;
summary disposition.
Sec. 6.
(1) In a proceeding under this act before trial, the court, upon application made by
or on behalf of either party, or on its own motion, shall order that the mother, child,
and alleged father submit to blood or tissue typing determinations, which may
include, but are not limited to, determinations of red cell antigens, red cell
isoenzymes, human leukocyte antigens, serum proteins, or DNA identification
profiling, to determine whether the alleged father is likely to be, or is not, the father
 of the child. If the court orders a blood or tissue typing or DNA identification
profiling to be conducted and a party refuses to submit to the typing or DNA
identification profiling, in addition to any other remedies available, the court may
do either of the following:
(a) Enter a default judgment at the request of the appropriate party.
(b) If a trial is held, allow the disclosure of the fact of the refusal unless
good cause is shown for not disclosing the fact of refusal.
(2) A blood or tissue typing or DNA identification profiling shall be conducted by a person
accredited for paternity determinations by a nationally recognized scientific organization,
including, but not limited to, the American association of blood banks.
xxx xxx xxx
(5) If the probability of paternity determined by the qualified person described in
subsection (2) conducting the blood or tissue typing or DNA identification profiling
is 99% or higher, and the DNA identification profile and summary report are
admissible as provided in subsection (4), paternity is presumed. If the results of the
analysis of genetic testing material from 2 or more persons indicate a probability of
paternity greater than 99%, the contracting laboratory shall conduct additional
genetic paternity testing until all but 1 of the putative fathers is eliminated, unless
the dispute involves 2 or more putative fathers who have identical DNA.
(6) Upon the establishment of the presumption of paternity as provided in subsection (5),
either party may move for summary disposition under the court rules. this section does
not abrogate the right of either party to child support from the date of birth of the child if
applicable under section 7. (emphasis supplied)
In Rafferty v. Perkins,47 the Supreme Court of Mississippi ruled that DNA test results showing
paternity were sufficient to overthrow the presumption of legitimacy of a child born during the
course of a marriage:
The presumption of legitimacy having been rebutted by the results of the blood test eliminating
Perkins as Justin's father, even considering the evidence in the light most favorable to Perkins, we
find that no reasonable jury could find that Easter is not Justin's father based upon the 99.94%
probability of paternity concluded by the DNA testing.
In S.J.F. and J.C.F. v. R.C.W.,48 the North Dakota Supreme Court upheld an order for genetic
testing given by the Court of Appeals, even after trial on the merits had concluded without such
order being given. Significantly, when J.C.F., the mother, first filed the case for paternity and
support with the District Court, neither party requested genetic testing. It was only upon appeal
from dismissal of the case that the appellate court remanded the case and ordered the testing,
which the North Dakota Supreme Court upheld.
The case of Kohl v. Amundson,49 decided by the Supreme Court of South Dakota, demonstrated
that even default judgments of paternity could be vacated after the adjudicated father had, through
DNA testing, established non-paternity. In this case, Kohl, having excluded himself as the father of
Amundson’s child through DNA testing, was able to have the default judgment against him
vacated. He then obtained a ruling ordering Amundson to reimburse him for the amounts withheld
from his wages for child support. The Court said "(w)hile Amundson may have a remedy against
the father of the child, she submit(ted) no authority that require(d) Kohl to support her child.
Contrary to Amundson's position, the fact that a default judgment was entered, but subsequently
vacated, (did) not foreclose Kohl from obtaining a money judgment for the amount withheld from
his wages."
In M.A.S. v. Mississippi Dept. of Human Services,50 another case decided by the Supreme Court
of Mississippi, it was held that even if paternity was established through an earlier agreed order of
filiation, child support and visitation orders could still be vacated once DNA testing established
someone other than the named individual to be the biological father. The Mississippi High Court
reiterated this doctrine in Williams v. Williams.51
The foregoing considered, we find no grave abuse of discretion on the part of the public
respondent for upholding the orders of the trial court which both denied the petitioner’s motion to
dismiss and ordered him to submit himself for DNA testing. Under Rule 65 of the 1997 Rules of
Civil Procedure, the remedy of certiorari is only available "when any tribunal, board or officer has
acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to
lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy and adequate remedy
in the ordinary course of law."52 In Land Bank of the Philippines v. the Court of Appeals 53 where
we dismissed a special civil action for certiorari under Rule 65, we discussed at length the nature
of such a petition and just what was meant by "grave abuse of discretion":
Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction or, in other words, where the power is exercised in an arbitrary
manner by reason of passion, prejudice, or personal hostility, and it must be so patent or
gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the
duty enjoined or to act at all in contemplation of law.
The special civil action for certiorari is a remedy designed for the correction of errors of jurisdiction
and not errors of judgment. The raison d’etre for the rule is when a court exercises its jurisdiction,
an error committed while so engaged does not deprive it of the jurisdiction being exercised when
the error is committed. If it did, every error committed by a court would deprive it of its jurisdiction
and every erroneous judgment would be a void judgment. In such a scenario, the administration of
justice would not survive. Hence, where the issue or question involved affects the wisdom or legal
soundness of the decision—not the jurisdiction of the court to render said decision—the same is
beyond the province of a special civil action for certiorari.
The proper recourse of the aggrieved party from a decision of the CA is a petition for review on
certiorari under Rule 45 of the Revised Rules of Court. On the other hand, if the error subject of
the recourse is one of jurisdiction, or the act complained of was perpetrated by a quasi-judicial
officer or agency with grave abuse of discretion amounting to lack or excess of jurisdiction, the
proper remedy available to the aggrieved party is a petition for certiorari under Rule 65 of the said
Rules. (emphasis supplied)
In the instant case, the petitioner has in no way shown any arbitrariness, passion, prejudice or
personal hostility that would amount to grave abuse of discretion on the part of the Court of
Appeals. The respondent court acted entirely within its jurisdiction in promulgating its decision and
resolution, and any error made would have only been an error in judgment. As we have discussed,
however, the decision of the respondent court, being firmly anchored in law and jurisprudence,
was correct.

Epilogue

For too long, illegitimate children have been marginalized by fathers who choose to deny their
existence. The growing sophistication of DNA testing technology finally provides a much needed
equalizer for such ostracized and abandoned progeny. We have long believed in the merits of
DNA testing and have repeatedly expressed as much in the past. This case comes at a perfect
time when DNA testing has finally evolved into a dependable and authoritative form of evidence
gathering. We therefore take this opportunity to forcefully reiterate our stand that DNA testing is a
valid means of determining paternity.

WHEREFORE, in view of the foregoing, the petition is hereby DENIED. The Court of Appeals’
decision dated January 28, 2004 in CA-G.R. SP No. 80961 is hereby AFFIRMED in toto.

Costs against petitioner.

SO ORDERED.

Panganiban, (Chairman), Sandoval-Gutierrez, Carpio-Morales, and Garcia, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-63419 December 18, 1986
FLORENTINA A. LOZANO, petitioner,
vs.
THE HONORABLE ANTONIO M. MARTINEZ, in his capacity as Presiding Judge, Regional
Trial Court, National Capital Judicial Region, Branch XX, Manila, and the HONORABLE
JOSE B. FLAMINIANO, in his capacity as City Fiscal of Manila, respondents.
G.R. No. L-66839-42 December 18, 1986
LUZVIMINDA F. LOBATON petitioner,
vs.
HONORABLE GLICERIO L. CRUZ, in his capacity as Presiding Executive Judge, Branch V,
Region IV, Regional Trial Court, sitting at Lemery, Batangas, THE PROVINCIAL FISCAL OF
BATANGAS, and MARIA LUISA TORDECILLA, respondents.
G.R No. 71654 December 18, 1986
ANTONIO DATUIN and SUSAN DATUIN, petitioners,
vs.
HONORABLE JUDGE ERNANI C. PANO, Regional Trial Court, Quezon City, Branch
LXXXVIII, HONORABLE ClTY FISCAL OF QUEZON CITY, respondents.
G.R. No. 74524-25 December 18, 1986
OSCAR VIOLAGO, petitioner,
vs.
HONORABLE JUDGE ERNANI C. PAÑ;O Regional Trial Court, Quezon City, Branch
LXXXVIII, HONORABLE CITY FISCAL OF QUEZON CITY, respondents.
G.R. No. 75122-49 December 18, 1986
ELINOR ABAD, petitioner,
vs.
THE HONORABLE NICOLAS A. GEROCHI, JR., in his capacity as Presiding Judge, Regional
Trial Court, National Capital Judicial Region, Branch 139, Makati and FEDERICO L.
MELOCOTTON JR., in his capacity as Trial Fiscal Regional Trial Court, Branch 139,
Makati, respondents.
G.R No. 75812-13 December 18, 1986
AMABLE R. AGUILUZ VII and SYLVIA V. AGUILUZ, spouses, petitioners,
vs.
HONORABLE PRESIDING JUDGE OF BRANCH 154, now vacant but temporarily presided
by HONORABLE ASAALI S. ISNANI Branch 153, Court of First Instance of Pasig, Metro
Manila, respondent.
G.R No. 75765-67 December 18, 1986
LUIS M. HOJAS, petitioner,
vs.
HON. JUDGE SENEN PENARANDA, Presiding Judge, Regional Trial Court of Cagayan de
Oro City, Branch XX, HONORABLE JUDGE ALFREDO LAGAMON, Presiding Judge,
Regional Trial Court of Cagayan de Oro City, Branch XXII, HONORABLE CITY FISCAL NOLI
T. CATHI, City Fiscal of Cagayan de Oro City, respondents.
G.R. No. 75789 December 18, 1986
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. DAVID G. NITAFAN, Presiding Judge, Regional Trial Court, National Capital Judicial
Region, Branch 52, Manila and THELMA SARMIENTO, respondents.
R.R. Nogales Law Office for petitioner in G.R. No. 63419, G.R. Nos. 74524-25, G.R. Nos. 75812-
13, G.R. Nos. 75765-67 and counsel for respondent in G.R. No. 75789.
Pio S. Canta for petitioner in G.R. Nos. 66839-42.
Hermogenes Datuin, Jr. for petitioner in G.R. No. 71654.
Abinoja, Tabalingcos, Villalon & Associates for petitioner in G.R. Nos. 75122-49.
The Solicitor General for respondent in G.R. No. 63419, G.R. Nos. 66839-42, G.R. No. 71654,
G.R. Nos. 74524-25, G.R. Nos. 75122-49, G.R. Nos. 75812-13, G.R. Nos. 75765-67 and counsel
for petitioner in G.R. No. 75789.
YAP, J.:
The constitutionality of Batas Pambansa Bilang 22 (BP 22 for short), popularly known as the
Bouncing Check Law, which was approved on April 3, 1979, is the sole issue presented by these
petitions for decision. The question is definitely one of first impression in our jurisdiction.
These petitions arose from cases involving prosecution of offenses under the statute. The
defendants in those cases moved seasonably to quash the informations on the ground that the
acts charged did not constitute an offense, the statute being unconstitutional. The motions were
denied by the respondent trial courts, except in one case, which is the subject of G. R. No. 75789,
wherein the trial court declared the law unconstitutional and dismissed the case. The parties
adversely affected have come to us for relief.
As a threshold issue the former Solicitor General in his comment on the petitions, maintained the
posture that it was premature for the accused to elevate to this Court the orders denying their
motions to quash, these orders being interlocutory. While this is correct as a general rule, we have
in justifiable cases intervened to review the lower court's denial of a motion to quash. 1 In view of
the importance of the issue involved here, there is no doubt in our mind that the instant petitions
should be entertained and the constitutional challenge to BP 22 resolved promptly, one way or the
other, in order to put to rest the doubts and uncertainty that exist in legal and judicial circles and
the general public which have unnecessarily caused a delay in the disposition of cases involving
the enforcement of the statute.
For the purpose of resolving the constitutional issue presented here, we do not find it necessary to
delve into the specifics of the informations involved in the cases which are the subject of the
petitions before us. 2 The language of BP 22 is broad enough to cover all kinds of checks, whether
present dated or postdated, or whether issued in payment of pre-existing obligations or given in
mutual or simultaneous exchange for something of value.
I issuance of bouncing or rubber checks. Criminal law has dealth with the problem within the
BP 22 punishes a person "who makes or draws and issues any check on account or for value,
knowing at the time of issue that he does not have sufficient funds in or credit with the drawee
bank for the payment of said check in full upon presentment, which check is subsequently
dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored
for the same reason had not the drawer, without any valid reason, ordered the bank to stop
payment." The penalty prescribed for the offense is imprisonment of not less than 30 days nor
more than one year or a fine or not less than the amount of the check nor more than double said
amount, but in no case to exceed P200,000.00, or both such fine and imprisonment at the
discretion of the court. 3
The statute likewise imposes the same penalty on "any person who, having sufficient funds in or
credit with the drawee bank when he makes or draws and issues a check, shall fail to keep
sufficient funds or to maintain a credit to cover the full amount of the check if presented within a
period of ninety (90) days from the date appearing thereon, for which reason it is dishonored by
the drawee bank. 4
An essential element of the offense is "knowledge" on the part of the maker or drawer of the check
of the insufficiency of his funds in or credit with the bank to cover the check upon its presentment.
Since this involves a state of mind difficult to establish, the statute itself creates a prima
facie presumption of such knowledge where payment of the check "is refused by the drawee
because of insufficient funds in or credit with such bank when presented within ninety (90) days
from the date of the check. 5 To mitigate the harshness of the law in its application, the statute
provides that such presumption shall not arise if within five (5) banking days from receipt of the
notice of dishonor, the maker or drawer makes arrangements for payment of the check by the
bank or pays the holder the amount of the check.
Another provision of the statute, also in the nature of a rule of evidence, provides that the
introduction in evidence of the unpaid and dishonored check with the drawee bank's refusal to pay
"stamped or written thereon or attached thereto, giving the reason therefor, "shall constitute prima
facie proof of "the making or issuance of said check, and the due presentment to the drawee for
payment and the dishonor thereof ... for the reason written, stamped or attached by the drawee on
such dishonored check." 6
The presumptions being merely prima facie, it is open to the accused of course to present proof to
the contrary to overcome the said presumptions.
II
BP 22 is aimed at putting a stop to or curbing the practice of issuing checks that are worthless, i.e.
checks that end up being rejected or dishonored for payment. The practice, as discussed later, is
proscribed by the state because of the injury it causes to t public interests.
Before the enactment of BP 22, provisions already existed in our statute books which penalize the
context of crimes against property punished as "estafa" or crimes involving fraud and deceit. The
focus of these penal provisions is on the damage caused to the property rights of the victim.
The Penal Code of Spain, which was in force in the Philippines from 1887 until it was replaced by
the Revised Penal Code in 1932, contained provisions penalizing, among others, the act of
defrauding another through false pretenses. Art. 335 punished a person who defrauded another
"by falsely pretending to possess any power, influence, qualification, property, credit, agency or
business, or by means of similar deceit." Although no explicit mention was made therein regarding
checks, this provision was deemed to cover within its ambit the issuance of worthless or bogus
checks in exchange for money. 7
In 1926, an amendment was introduced by the Philippine Legislature, which added a new clause
(paragraph 10) to Article 335 of the old Penal Code, this time referring in explicit terms to the
issuance of worthless checks. The amendment penalized any person who 1) issues a check in
payment of a debt or for other valuable consideration, knowing at the time of its issuance that he
does not have sufficient funds in the bank to cover its amount, or 2) maliciously signs the check
differently from his authentic signature as registered at the bank in order that the latter would
refuse to honor it; or 3) issues a postdated check and, at the date set for its payment, does not
have sufficient deposit to cover the same.8
In 1932, as already adverted to, the old Penal Code was superseded by the Revised Penal
Code. 9 The above provisions, in amended form, were incorporated in Article 315 of the Revised
Penal Code defining the crime of estafa. The revised text of the provision read as follows:
 Art. 315. Swindling (estafa).—Any person who shall defraud another by any of the means
mentioned hereinbelow shall be punished by:
xxx xxx xxx
2. By means of any of the following false pretenses or fraudulent acts executed prior to or
simultaneously with the commis sion of the fraud:
(a) By using fictitious name, or falsely pretending to possess power, influence,
qualifications, property, credit, agency, business or imaginary transactions, or by
means of other similar deceits;
xxx xxx xxx
(d) By postdating a check, or issuing a check in payment of an obligation the
offender knowing that at the time he had no funds in the bank, or the funds
deposited by him were not sufficient to cover the amount of the cheek without
informing the payee of such circumstances.
The scope of paragraph 2 (d), however, was deemed to exclude checks issued in payment of pre-
existing obligations. 10 The rationale of this interpretation is that in estafa, the deceit causing the
defraudation must be prior to or simultaneous with the commission of the fraud. In issuing a check
as payment for a pre-existing debt, the drawer does not derive any material benefit in return or as
consideration for its issuance. On the part of the payee, he had already parted with his money or
property before the check is issued to him hence, he is not defrauded by means of any "prior" or
"simultaneous" deceit perpetrated on him by the drawer of the check.
With the intention of remedying the situation and solving the problem of how to bring checks
issued in payment of pre-existing debts within the ambit of Art. 315, an amendment was
introduced by the Congress of the Philippines in 1967, 11 which was enacted into law as Republic
Act No. 4885, revising the aforesaid proviso to read as follows:
(d) By postdating a check, or issuing a check in payment of an obligation when the
offender had no funds in the bank, or his funds deposited therein were not sufficient to
cover the amount of the check. The failure of the drawer of the check to deposit the
amount necessary to cover his check within three (3) days from receipt of notice from the
bank and/or the payee or holder that said check has been dishonored for lack or
insufficiency of funds shall be puma facie evidence of deceit constituting false pretense or
fraudulent act.
However, the adoption of the amendment did not alter the situation materially. A divided Court
held in People vs. Sabio, Jr. 12 that Article 315, as amended by Republic Act 4885, does not cover
checks issued in payment of pre-existing obligations, again relying on the concept underlying the
crime of estafa through false pretenses or deceit—which is, that the deceit or false pretense must
be prior to or simultaneous with the commission of the fraud.
Since statistically it had been shown that the greater bulk of dishonored checks consisted of those
issued in payment of pre-existing debts, 13 the amended provision evidently failed to cope with the
real problem and to deal effectively with the evil that it was intended to eliminate or minimize.
With the foregoing factual and legal antecedents as a backdrop, the then Interim Batasan
confronted the problem squarely. It opted to take a bold step and decided to enact a law dealing
with the problem of bouncing or worthless checks, without attaching the law's umbilical cord to the
existing penal provisions on estafa. BP 22 addresses the problem directly and frontally and makes
the act of issuing a worthless check malum prohibitum. 14
The question now arises: Is B P 22 a valid law?
Previous efforts to deal with the problem of bouncing checks within the ambit of the law on estafa
did not evoke any constitutional challenge. In contrast, BP 22 was challenged promptly.
Those who question the constitutionality of BP 22 insist that: (1) it offends the constitutional
provision forbidding imprisonment for debt; (2) it impairs freedom of contract; (3) it contravenes the
equal protection clause; (4) it unduly delegates legislative and executive powers; and (5) its
enactment is flawed in that during its passage the Interim Batasan violated the constitutional
provision prohibiting amendments to a bill on Third Reading.
The constitutional challenge to BP 22 posed by petitioners deserves a searching and thorough
scrutiny and the most deliberate consideration by the Court, involving as it does the exercise of
what has been described as "the highest and most delicate function which belongs to the judicial
department of the government." 15
As we enter upon the task of passing on the validity of an act of a co-equal and coordinate branch
of the government, we need not be reminded of the time-honored principle, deeply ingrained in our
jurisprudence, that a statute is presumed to be valid. Every presumption must be indulged in favor
of its constitutionality. This is not to say that we approach our task with diffidence or timidity.
Where it is clear that the legislature has overstepped the limits of its authority under the
constitution we should not hesitate to wield the axe and let it fall heavily, as fall it must, on the
offending statute.
III
Among the constitutional objections raised against BP 22, the most serious is the alleged conflict
between the statute and the constitutional provision forbidding imprisonment for debt. It is
contended that the statute runs counter to the inhibition in the Bill of Rights which states, "No
person shall be imprisoned for debt or non-payment of a poll tax." 16 Petitioners insist that, since
the offense under BP 22 is consummated only upon the dishonor or non-payment of the check
when it is presented to the drawee bank, the statute is really a "bad debt law" rather than a "bad
check law." What it punishes is the non-payment of the check, not the act of issuing it. The statute,
it is claimed, is nothing more than a veiled device to coerce payment of a debt under the threat of
penal sanction.
First of all it is essential to grasp the essence and scope of the constitutional inhibition invoked by
petitioners. Viewed in its historical context, the constitutional prohibition against imprisonment for
debt is a safeguard that evolved gradually during the early part of the nineteenth century in the
various states of the American Union as a result of the people's revulsion at the cruel and
inhumane practice, sanctioned by common law, which permitted creditors to cause the
incarceration of debtors who could not pay their debts. At common law, money judgments arising
from actions for the recovery of a debt or for damages from breach of a contract could be enforced
against the person or body of the debtor by writ of capias ad satisfaciendum. By means of this writ,
a debtor could be seized and imprisoned at the instance of the creditor until he makes the
satisfaction awarded. As a consequence of the popular ground swell against such a barbarous
practice, provisions forbidding imprisonment for debt came to be generally enshrined in the
constitutions of various states of the Union. 17
This humanitarian provision was transported to our shores by the Americans at the turn of t0he
century and embodied in our organic laws. 18 Later, our fundamental law outlawed not only
imprisonment for debt, but also the infamous practice, native to our shore, of throwing people in
jail for non-payment of the cedula or poll tax. 19
The reach and scope of this constitutional safeguard have been the subject of judicial definition,
both by our Supreme Court 20 and by American State courts.21 Mr. Justice Malcolm speaking for
the Supreme Court in Ganaway vs. Queen, 22 stated: "The 'debt' intended to be covered by the
constitutional guaranty has a well-defined meaning. Organic provisions relieving from
imprisonment for debt, were intended to prevent commitment of debtors to prison for liabilities
arising from actions ex contractu The inhibition was never meant to include damages arising in
actions ex delicto, for the reason that damages recoverable therein do not arise from any contract
entered into between the parties but are imposed upon the defendant for the wrong he has done
and are considered as punishment, nor to fines and penalties imposed by the courts in criminal
proceedings as punishments for crime."
The law involved in Ganaway was not a criminal statute but the Code of Procedure in Civil Actions
(1909) which authorized the arrest of the defendant in a civil case on grounds akin to those which
justify the issuance of a writ of attachment under our present Rules of Court, such as imminent
departure of the defendant from the Philippines with intent to defraud his creditors, or
concealment, removal or disposition of properties in fraud of creditors, etc. The Court, in that case,
declared the detention of the defendant unlawful, being violative of the constitutional inhibition
against imprisonment for debt, and ordered his release. The Court, however, refrained from
declaring the statutory provision in question unconstitutional.
Closer to the case at bar is People v. Vera Reyes,23 wherein a statutory provision which made
illegal and punishable the refusal of an employer to pay, when he can do so, the salaries of his
employees or laborers on the fifteenth or last day of every month or on Saturday every week, was
challenged for being violative of the constitutional prohibition against imprisonment for debt. The
constitutionality of the law in question was upheld by the Court, it being within the authority of the
legislature to enact such a law in the exercise of the police power. It was held that "one of the
purposes of the law is to suppress possible abuses on the part of the employers who hire laborers
or employees without paying them the salaries agreed upon for their services, thus causing them
financial difficulties. "The law was viewed not as a measure to coerce payment of an obligation,
although obviously such could be its effect, but to banish a practice considered harmful to public
welfare.
IV
Has BP 22 transgressed the constitutional inhibition against imprisonment for debt? To answer the
question, it is necessary to examine what the statute prohibits and punishes as an offense. Is it the
failure of the maker of the check to pay a debt? Or is it the making and issuance of a worthless
check in payment of a debt? What is the gravamen of the offense? This question lies at the heart
of the issue before us.
The gravamen of the offense punished by BP 22 is the act of making and issuing a worthless
check or a check that is dishonored upon its presentation for payment. It is not the non-payment of
an obligation which the law punishes. The law is not intended or designed to coerce a debtor to
pay his debt. The thrust of the law is to prohibit, under pain of penal sanctions, the making of
worthless checks and putting them in circulation. Because of its deleterious effects on the public
interest, the practice is proscribed by the law. The law punishes the act not as an offense against
property, but an offense against public order.
Admittedly, the distinction may seem at first blush to appear elusive and difficult to conceptualize.
But precisely in the failure to perceive the vital distinction lies the error of those who challenge the
validity of BP 22.
It may be constitutionally impermissible for the legislature to penalize a person for non-payment of
a debt ex contractu But certainly it is within the prerogative of the lawmaking body to proscribe
certain acts deemed pernicious and inimical to public welfare. Acts mala in se are not the only acts
which the law can punish. An act may not be considered by society as inherently wrong, hence,
not malum in se but because of the harm that it inflicts on the community, it can be outlawed and
criminally punished as malum prohibitum. The state can do this in the exercise of its police power.
The police power of the state has been described as "the most essential, insistent and illimitable of
powers" which enables it to prohibit all things hurtful to the comfort, safety and welfare of
society. 24 It is a power not emanating from or conferred by the constitution, but inherent in the
state, plenary, "suitably vague and far from precisely defined, rooted in the conception that man in
organizing the state and imposing upon the government limitations to safeguard constitutional
rights did not intend thereby to enable individual citizens or group of citizens to obstruct
unreasonably the enactment of such salutary measures to ensure communal peace, safety, good
order and welfare." 25
The enactment of BP 22 is a declaration by the legislature that, as a matter of public policy, the
making and issuance of a worthless check is deemed public nuisance to be abated by the
imposition of penal sanctions.
It is not for us to question the wisdom or impolicy of the statute. It is sufficient that a reasonable
nexus exists between means and end. Considering the factual and legal antecedents that led to
the adoption of the statute, it is not difficult to understand the public concern which prompted its
enactment. It had been reported that the approximate value of bouncing checks per day was close
to 200 million pesos, and thereafter when overdrafts were banned by the Central Bank, it
averaged between 50 minion to 80 million pesos a day. 26
By definition, a check is a bill of exchange drawn on a bank and payable on demand. 27 It is a
written order on a bank, purporting to be drawn against a deposit of funds for the payment of all
events, of a sum of money to a certain person therein named or to his order or to cash and
payable on demand. 28 Unlike a promissory note, a check is not a mere undertaking to pay an
amount of money. It is an order addressed to a bank and partakes of a representation that the
drawer has funds on deposit against which the check is drawn, sufficient to ensure payment upon
its presentation to the bank. There is therefore an element of certainty or assurance that the
instrument wig be paid upon presentation. For this reason, checks have become widely accepted
as a medium of payment in trade and commerce. Although not legal tender, checks have come to
be perceived as convenient substitutes for currency in commercial and financial transactions. The
basis or foundation of such perception is confidence. If such confidence is shakes the usefulness
of checks as currency substitutes would be greatly diminished or may become nit Any practice
therefore tending to destroy that confidence should be deterred for the proliferation of worthless
checks can only create havoc in trade circles and the banking community.
Recent statistics of the Central Bank show that one-third of the entire money supply of the country,
roughly totalling P32.3 billion, consists of peso demand deposits; the remaining two. 29 These de
deposit thirds consists of currency in circulation. ma deposits in the banks constitute the funds
against which among others, commercial papers like checks, are drawn. The magnitude of the
amount involved amply justifies the legitimate concern of the state in preserving the integrity of the
banking system. Flooding the system with worthless checks is like pouring garbage into the
bloodstream of the nation's economy.
The effects of the issuance of a worthless check transcends the private interests of the parties
directly involved in the transaction and touches the interests of the community at large. The
mischief it creates is not only a wrong to the payee or holder, but also an injury to the public. The
harmful practice of putting valueless commercial papers in circulation, multiplied a thousand fold,
can very wen pollute the channels of trade and commerce, injure the banking system and
eventually hurt the welfare of society and the public interest. As aptly stated — 30
The 'check flasher' does a great deal more than contract a debt; he shakes the pillars of
business; and to my mind, it is a mistaken charity of judgment to place him in the same
category with the honest man who is unable to pay his debts, and for whom the
constitutional inhibition against' imprisonment for debt, except in cases of fraud was
intended as a shield and not a sword.
In sum, we find the enactment of BP 22 a valid exercise of the police power and is not repugnant
to the constitutional inhibition against imprisonment for debt.
This Court is not unaware of the conflicting jurisprudence obtaining in the various states of the
United States on the constitutionality of the "worthless check" acts. 31 It is needless to warn that
foreign jurisprudence must be taken with abundant caution. A caveat to be observed is that
substantial differences exist between our statute and the worthless check acts of those states
where the jurisprudence have evolved. One thing to remember is that BP 22 was not lifted bodily
from any existing statute. Furthermore, we have to consider that judicial decisions must be read in
the context of the facts and the law involved and, in a broader sense, of the social economic and
political environment—in short, the milieu—under which they were made. We recognize the
wisdom of the old saying that what is sauce for the goose may not be sauce for the gander.
As stated elsewhere, police power is a dynamic force that enables the state to meet the
exigencies of changing times. There are occasions when the police power of the state may even
override a constitutional guaranty. For example, there have been cases wherein we held that the
constitutional provision on non-impairment of contracts must yield to the police power of the
state. 32 Whether the police power may override the constitutional inhibition against imprisonment
for debt is an issue we do not have to address. This bridge has not been reached, so there is no
occasion to cross it.
We hold that BP 22 does not conflict with the constitutional inhibition against imprisonment for
debt.
V
We need not detain ourselves lengthily in the examination of the other constitutional objections
raised by petitioners, some of which are rather flimsy.
We find no valid ground to sustain the contention that BP 22 impairs freedom of contract. The
freedom of contract which is constitutionally protected is freedom to enter into "lawful" contracts.
Contracts which contravene public policy are not lawful. 33 Besides, we must bear in mind that
checks can not be categorized as mere contracts. It is a commercial instrument which, in this
modem day and age, has become a convenient substitute for money; it forms part of the banking
system and therefore not entirely free from the regulatory power of the state.
Neither do we find substance in the claim that the statute in question denies equal protection of
the laws or is discriminatory, since it penalizes the drawer of the check, but not the payee. It is
contended that the payee is just as responsible for the crime as the drawer of the check, since
without the indispensable participation of the payee by his acceptance of the check there would be
no crime. This argument is tantamount to saying that, to give equal protection, the law should
punish both the swindler and the swindled. The petitioners' posture ignores the well-accepted
meaning of the clause "equal protection of the laws." The clause does not preclude classification
of individuals, who may be accorded different treatment under the law as long as the classification
is no unreasonable or arbitrary. 34
It is also suggested that BP 22 constitutes undue or improper delegation of legislative powers, on
the theory that the offense is not completed by the sole act of the maker or drawer but is made to
depend on the will of the payee. If the payee does not present the check to the bank for payment
but instead keeps it, there would be no crime. The logic of the argument stretches to absurdity the
meaning of "delegation of legislative power." What cannot be delegated is the power to legislate,
or the power to make laws. 35 which means, as applied to the present case, the power to define
the offense sought to be punished and to prescribe the penalty. By no stretch of logic or
imagination can it be said that the power to define the crime and prescribe the penalty therefor has
been in any manner delegated to the payee. Neither is there any provision in the statute that can
be construed, no matter how remotely, as undue delegation of executive power. The suggestion
that the statute unlawfully delegates its enforcement to the offended party is farfetched.

Lastly, the objection has been raised that Section 9 (2) of Article VII of the 1973 Constitution was
violated by the legislative body when it enacted BP 22 into law. This constitutional provision
prohibits the introduction of amendments to a bill during the Third Reading. It is claimed that
during its Third Reading, the bill which eventually became BP 22 was amended in that the text of
the second paragraph of Section 1 of the bill as adopted on Second Reading was altered or
changed in the printed text of the bill submitted for approval on Third Reading.

A careful review of the record of the proceedings of the Interim Batasan on this matter shows that,
indeed, there was some confusion among Batasan Members on what was the exact text of the
paragraph in question which the body approved on Second Reading. 36 Part of the confusion was
due apparently to the fact that during the deliberations on Second Reading (the amendment
period), amendments were proposed orally and approved by the body or accepted by the sponsor,
hence, some members might not have gotten the complete text of the provisions of the bill as
amended and approved on Second Reading. However, it is clear from the records that the text of
the second paragraph of Section 1 of BP 22 is the text which was actually approved by the body
on Second Reading on February 7, 1979, as reflected in the approved Minutes for that day. In any
event, before the bin was submitted for final approval on Third Reading, the Interim Batasan
created a Special Committee to investigate the matter, and the Committee in its report, which was
approved by the entire body on March 22, 1979, stated that "the clause in question was ... an
authorized amendment of the bill and the printed copy thereof reflects accurately the provision in
question as approved on Second Reading. 37 We therefore, find no merit in the petitioners' claim
that in the enactment of BP 22 the provisions of Section 9 (2) of Article VIII of the 1973
Constitution were violated.

WHEREFORE, judgment is rendered granting the petition in G.R. No. 75789 and setting aside the
order of the respondent Judge dated August 19, 1986. The petitions in G.R. Nos. 63419, 66839-
42, 71654, 74524-25, 75122-49, 75812-13 and 75765-67 are hereby dismissed and the temporary
restraining order issued in G.R. Nos. 74524-25 is lifted. With costs against private petitioners.

SO ORDERED.

Teehankee, C.J., Feria, Fernan, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr., Cruz, Paras
and Feliciano, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 110315 January 16, 1998
RENATO CUDIA, petitioner,
vs.
THE COURT OF APPEALS, The HON. CARLOS D. RUSTIA, in his capacity as Presiding
Judge of the Regional Trial Court Branch LVI, Angeles City, respondents.
ROMERO, J.:
Petitioner assails the decision 1 of the Court of Appeals dated May 14, 1993 dismissing his petition
and finding that he had not been placed in double jeopardy by the filing of a second information
against him, although a first information charging the same offense had been previously
dismissed, over petitioner's vigorous opposition.
The factual antecedents of the case are as follows:
On June 28, 1989, petitioner was arrested in Purok 6, Barangay Santa Inez,
Mabalacat, 2 Pampanga, by members of the then 174th PC Company, allegedly for possessing an
unlicensed revolver. He was brought to Camp Pepito, Sto. Domingo, Angeles City, where he was
detained. A preliminary investigation was thereafter conducted by an investigating panel of
prosecutors. As a result thereof, the City Prosecutor of Angeles City filed an information against
him for illegal possession of firearms and ammunition, docketed as Criminal Case No. 11542,
which reads as follows:
That on or about the 28th day of June, 1989, in the City of Angeles, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, did
then and there willfully, unlawfully and feloniously have in his possession and
under his control one (1) .38 Cal. Revolver (paltik) without any Serial Number
with six (6) live ammunitions, which he carried outside of his residence without
having the necessary authority and permit to carry the same.
ALL CONTRARY TO LAW. 3 (Emphasis petitioner's.)
The case was raffled to Branch 60 of the Regional Trial Court of Angeles City (hereafter the
Angeles City RTC). Upon his arraignment on August 14, 1989, petitioner pleaded "not guilty" to
the charges. During the ensuing pre-trial, the court called the attention of the parties to the fact
that, contrary to the information, petitioner had committed the offense in Mabalacat, and not in
Angeles City. Inasmuch as there was an existing arrangement among the judges of the Angeles
City RTC as to who would handle cases involving crimes committed outside of Angeles City, the
judge ordered the re-raffling of the case to a branch assigned to criminal cases involving crimes
committed outside of the city. Thereafter, the case was assigned to Branch 56 of the Angeles City
RTC.
On October 31, 1989 however, the provincial prosecutor of Pampanga also filed an information
charging petitioner with the same crime of illegal possession of firearms and ammunition,
docketed as Criminal Case No. 11987. The case was likewise raffled to Branch 56 of the Angeles
City RTC. This prompted the prosecutor in Criminal Case No. 11542 to file a Motion to
Dismiss/Withdraw the Information, stating "that thru inadvertence and oversight, the Investigating
Panel was misled into hastily filing the Information in this case, it appearing that the apprehension
of the accused in connection with the illegal possession of unlicensed firearm and ammunition was
made in Bgy. Sta. Inez, Mabalacat, Pampanga, within the jurisdiction of the Provincial Prosecutor
of Pampanga"4 and that the Provincial Prosecutor had filed its own information against the
accused, as a result of which two separate informations for the same offense had been filed
against petitioner. The latter filed his opposition to the motion, but the trial court nonetheless,
granted said motion to dismiss in its order dated April 3, 1990.
On May 21, 1990, petitioner filed a Motion to Quash Criminal Case No. 11987 on the ground that
his continued prosecution for the offense of illegal possession of firearms and ammunition — for
which he had been arraigned in Criminal Case No. 11542, and which had been dismissed despite
his opposition — would violate his right not to be put twice in jeopardy of punishment for the same
offense. The trial court denied the motion to quash; hence, petitioner raised the issue to the Court
of Appeals. The appellate court, stating that there was no double jeopardy, dismissed the same on
the ground that the petition could not have been convicted under the first information as the same
was defective. Petitioner's motion for reconsideration was denied; hence, this appeal.
Petitioner points out the following as errors of the Court of Appeals:
1. THE COURT OF APPEALS ERRED WHEN IT FOUND
THAT THE CITY PROSECUTOR OF ANGELES CITY DID NOT
HAVE THE AUTHORITY TO FILE THE FIRST INFORMATION.
2. THE COURT OF APPEALS ERRED IN HOLDING THAT
THE FIRST JEOPARDY DID NOT ATTACH BECAUSE THE
FIRST INFORMATION FILED AGAINST THE ACCUSED WAS
NOT VALID.
We shall discuss the assigned errors jointly as they are closely related.
Section 21, Article III of the 1987 Constitution provides that "(n)o person shall be twice put in
jeopardy of punishment for the same offense . . ." Pursuant to this provision, Section 7 of Rule 117
of the Rules of Court provides in part that "(w)hen an accused has been convicted or acquitted, or
the case against him dismissed or otherwise terminated without his express consent by a court of
competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in
form and substance to sustain a conviction and after the accused had pleaded to the charge, the
conviction or acquittal of the accused or the dismissal of the case shall be a bar to another
prosecution for the offense charged, . . . "
In order to successfully invoke the defense of double jeopardy, the following requisites must be
present: (1) a first jeopardy must have attached prior to the second; (2) the first jeopardy must
have been validly terminated; and (3) the second jeopardy must be for the same offense or the
second offense includes or is necessarily included in the offense charged in the first information,
or is an attempt to commit the same or a frustration thereof.5
In determining when the first jeopardy may be said to have attached, it is necessary to prove the
existence of the following:
(a) Court of competent jurisdiction
(b) Valid complaint or information
(c) Arraignment
(d) Valid plea
(e) The defendant was acquitted or convicted or the case was dismissed or otherwise terminated
without the express consent of the accused.6
It is undisputed that petitioner was arraigned in Criminal Case No. 11542, that he pleaded "not
guilty" therein, and that the same was dismissed without his express consent, nay, over his
opposition even. We may thus limit the discussion to determining whether the first two requisites
have been met.
As to the first requisite, it is necessary that there be a court of competent jurisdiction, for
jurisdiction to try the case is essential to place an accused in jeopardy. The Court of Appeals and
the Solicitor General agreed that Branch 60, which originally had cognizance of Criminal Case No.
11542, had no jurisdiction over the case. In the words of the Solicitor General:
The first jeopardy did not also attach because Branch 60 of the Regional Trial
Court of Angeles City was not the proper venue for hearing the case. Venue in
criminal cases is jurisdictional, being an essential element of jurisdiction
(Agbayani vs. Sayo, 89 SCRA 699). In all criminal prosecutions, the action shall
be instituted and tried in the court of the municipality or territory wherein the
offense was committed or any one of the essential ingredients thereof took place
(People vs. Tomio, 202 SCRA 77). Although both Branches 60 and 56 are sitting
in Angeles City, it is Branch 56 which has jurisdiction to try offenses committed in
Mabalacat, Pampanga. Petitioner was arraigned before Branch 60, not Branch
56.7
It must be borne in mind that the question of jurisdiction of a court over cases filed before it must
be resolved on the basis of the law or statute providing for or defining its jurisdiction.
Administrative Order No. 7, Series of 1983 provides that:
Pursuant to the provisions of Section 18 of B.P. Blg. 129, the Judiciary Reorganization Act of
1980, and Section 4 of Executive Order No. 864 of the President of the Philippines, dated January
17, 1983, the territorial areas of the Regional Trial Courts in Region One to Twelve are hereby
defined as follows:
xxx xxx xxx
PAMPANGA
xxx xxx xxx
1. Branches LVI to LXII, inclusive, with seats at Angeles City — comprising ANGELES CITY and
the municipalities of Mabalacat, Magalang, and Porac as well as part of Clark Field U.S. Airbase.
xxx xxx xxx
Clearly, Branches 56 to 62 had jurisdiction over the respective territories as apportioned.
Consequently, notwithstanding the internal arrangement of the judges of the Angeles City RTCs,
Branch 60 indubitably had jurisdiction over instant case. Writ large in lawbooks in the doctrine that
jurisdiction is conferred by law and not by mere administrative policy of any trial court.
With respect to the second requisite, however, it is plainly apparent that the City Prosecutor of
Angeles City had no authority to file the first information, the offense having been committed in the
Municipality of Mabalacat, which is beyond his jurisdiction. Presidential Decree No. 1275, in
relation to Section 9 of the Administrative Code of 1987, pertinently provides that:
Sec. 11. The provincial or the city fiscal shall:
xxx xxx xxx
b) Investigate and/or cause to be investigated all charges of
crimes, misdemeanors and violations of all penal laws and
ordinances within their respective jurisdictions and have the
necessary information or complaint prepared or made against
the persons accused. In the conduct of such investigations he
or his assistants shall receive the sworn statements or take oral
evidence of witnesses summoned by subpoena for the purpose.
xxx xxx xxx (Emphasis supplied
It is thus the Provincial Prosecutor of Pampanga, not the City Prosecutor, who should prepare WHEREFORE, premises considered, the petition is hereby DENIED. The decision of the
informations for offenses committed within Pampanga but outside of Angeles City. An information, Court of Appeals in CA-G.R. SP. No. 24958 is AFFIRMED. No costs.
when required to be filed by a public prosecuting officer, cannot be filed by another. 8 It must be
exhibited or presented by the prosecuting attorney or someone authorized by law. If not, the court SO ORDERED.
does not acquire jurisdiction.9
Narvasa, C.J., Melo, Francisco and Panganiban, JJ., concur.
Petitioner, however, insists that his failure to assert the lack of authority of the City Prosecutor in
filing the information in question is deemed a waiver thereof. 10 As correctly pointed out by the
Court of Appeals, petitioner's plea to an information before he filed a motion to quash may be a
waiver of all objections to it insofar as formal objections to the pleadings are concerned. But by
clear implication, if not by express provision of the Rules of Court, and by a long line of uniform
decisions, 11 questions relating to want of jurisdiction may be raised at any stage of the
proceeding. It is a valid information signed by a competent officer which, among other requisites,
confers jurisdiction on the court over the person of the accused (herein petitioner) and the subject
matter of the accusation. In consonance with this view, an infirmity in the information, such as lack
of authority of the officer signing it, cannot be cured by silence, acquiescence, or even by express
consent.12

In fine, there must have been a valid and sufficient complaint or information in the former
prosecution. If, therefore, the complaint or information was insufficient because it was so defective
in form or substance that the conviction upon it could not have been sustained, its dismissal
without the consent of the accused cannot be pleaded. As the fiscal had no authority to file the
information, the dismissal of the first information would not be a bar to petitioner's subsequent
prosecution. Jeopardy does not attach where a defendant pleads guilty to a defective indictment
that is voluntarily dismissed by the prosecution.13

Petitioner next claims that the lack of authority of the City Prosecutor was the error of the
investigating panel and the same should not be used to prejudice and penalize him. It is an all too
familiar maxim that the State is not bound or estopped by the mistakes or inadvertence of its
officials and employees. 14 To rule otherwise could very well result in setting felons free, deny
proper protection to the community, and give rise to the possibility of connivance between the
prosecutor and the accused.

Finally, petitioner avers that an amendment of the first information, and not its dismissal, should
have been the remedy sought by the prosecution. Suffice it to say that this Court, in Galvez
vs. Court of Appeals 15 has ruled that even if amendment is proper, pursuant to Section 14 of
Rule 110, it is also quite plausible under the same provision that, instead of an amendment,
an information may be dismissed to give way to the filing of a new information.

In light of the foregoing principles, there is thus no breach of the constitutional prohibition
against twice putting an accused in jeopardy of punishment for the same offense for the
simple reason that the absence of authority of the City Prosecutor to file the first
information meant that petitioner could never have been convicted on the strength thereof.

As the first information was fatally defective for lack of authority of the officer filing it, the
instant petition must fail for failure to comply with all the requisites necessary to invoke
double jeopardy.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-24447 June 29, 1968
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant,
vs.
WILLY OBSANIA, defendant-appellee.
Office of the Solicitor General for plaintiff-appellant.
Maximo V. Cuesta, Jr. for defendant-appellee.
CASTRO, J.:
Before us for review, on appeal by the People of the Philippines, is an order, dated January 8,
1965, of the Court of First Instance of Pangasinan dismissing, upon motion of the defense, an
indictment for rape against Willy Obsania.
On November 22, 1964, barely a day after the occurence of the alleged crime, Erlinda Dollente,
the 14-year old victim, and her parents, Ciriaco Dollente and Carmelita Lureta, filed in the
municipal court of Balungao, Pangasinan a complaint for rape with robbery, 1 alleging
That on or about the 21st day of November 1964, at around 2:00 to 3:00 in the afternoon,
particularly in sitio Cawakalan, barrio of Capulaan, municipality of Balungao, Province of
Pangasinan, Philippines and within the jurisdiction of the Honorable Court, the said
accused Willy Obsania, armed with a dagger, by means of violence and intimidation,
willfully, unlawfully and feloniously did then and there have carnal knowledge of the
complainant Erlinda Dollente, against her will and on the roadside in the ricefields at the
above-mentioned place while she was alone on her way to barrio San Raymundo.
After the case was remanded to the Court of First Instance of Pangasinan for further proceedings,
the assistant provincial fiscal filed an information for rape against the accused, embodying the
allegations of the above complaint, with an additional averment that the offense was committed
"with lewd designs".
The accused pleaded not guilty upon arraignment, and forthwith his counsel moved for the
dismissal of the case, contending that the complaint was fatally defective for failure to allege "lewd
designs" and that the subsequent information filed by the fiscal which averred "lewd designs" did
not cure the jurisdictional infirmity. The court a quogranted the motion and ordered dismissal of the
action, ruling that "the failure of the complaint filed by the offended party to allege that the acts
committed by the accused were with 'lewd designs' does not give this Court jurisdiction to try the
case." From this order, the fiscal brought the instant appeal.
Two issues are tendered for resolution, namely: first, are "lewd designs" an indispensable element
which should be alleged in the complaint?, and, second, does the present appeal place the
accused in double jeopardy?
Both must be answered in the negative.
The accused, in his motion to dismiss, as well as the trial judge, in his order of dismissal, rely
basically on the ruling in People vs. Gilo (L-18202, April 30, 1964). In the case which involved a
prosecution for acts of lasciviousness this Court, in passing, opined that "lewd design" is
... an indispensable element of all crimes against chastity, such as abduction, seduction
and rape, including acts of lasciviousness ... an element that characterizes all crimes
against chastity, apart from the felonious or criminal intent of the offender, and such
element must be always present in order that they may be considered in contemplation of
law.
Nothing in the foregoing statement can be reasonably interpreted as requiring
an explicit allegation of "lewd design" in a complaint for rape. We hold in no uncertain terms that in
a complaint for rape it is not necessary to allege "lewd design" or "unchaste motive", for to require
such averment is to demand a patent superfluity. Lascivious intent inheres in rape and the
unchaste design is manifest in the very act itself — the carnal knowledge of a woman through
force or intimidation, or when the woman is deprived of reason or otherwise unconscious, or when
the woman is under twelve years of age. 2
It is clear that the complaint here satisfies the requirements of legal sufficiency of an indictment for
rape as it unmistakably alleges that the accused had carnal knowledge of the complainant by
means of violence and intimidation. We therefore hold that the trial judge erred in dismissing the
case on the proffered grounds that the complaint was defective for failure to allege "lewd design"
and, as a consequence of such infirmity, that the court a quo did not acquire jurisdiction over the
case. The error of the trial judge was in confusing the concept of jurisdiction with that of
insufficiency in substance of an indictment.
We come now to the more important issue of double jeopardy. The accused maintains that
"assuming, arguendo, that the argument is right that the court a quo has jurisdiction, the appeal of
the Government constitutes double jeopardy."
An appeal by the prosecution in a criminal case is not available if the defendant would thereby be
placed in double jeopardy. 3 Correlatively, section 9, Rule 117 of the Revised Rules of Court
provides:
When a defendant shall have been convicted or acquitted, or the case against him
dismissed or otherwise terminated without the express consent of the defendant, by a
court of competent jurisdiction, upon a valid complaint or information or other formal
charge sufficient in form and substance to sustain a conviction, and after the defendant
had pleaded to the charge, the conviction or acquittal of the defendant or the dismissal of
the case shall be a bar to another prosecution for the offense charged, or for any attempt
 to commit the same or frustration thereof, or for any offense which necessarily includes or
is necessarily included in the offense charged in the former complaint or information.
In order that the protection against double jeopardy may inure in favor of an accused, the following
requisites must have obtained in the original prosecution: (a) a valid complaint or information; (b) a
competent court; (c) the defendant had pleaded to the charge; and (d) the defendant was
acquitted, or convicted, or the case against him was dismissed or otherwise terminated without his
express consent.
The complaint filed with the municipal court in the case at bar was valid; the court a quo was a
competent tribunal with jurisdiction to hear the case; the record shows that the accused pleaded
not guilty upon arraignment. Hence, the only remaining and decisive question is whether the
dismissal of the case was without the express consent of the accused.
The accused admits that the controverted dismissal was ordered by the trial judge upon his motion
to dismiss. However, he vehemently contends that under the prevailing jurisprudence,
citing People vs. Bangalao, et al. (94 Phil. 354, February 17, 1954), People vs. Labatete (L-12917,
April 27, 1960), People vs. Villarin (L-19795, July 31, 1964), and People vs. Cloribel (L-20314,
August 31, 1964), an erroneous dismissal of a criminal action, even upon the instigation of the
accused in a motion to quash or dismiss, does not bar him from pleading the defense of double
jeopardy in a subsequent appeal by the Government or in a new prosecution for the same offense.
The accused suggests that the above-enumerated cases have abandoned the previous ruling of
this Court to the effect that when a case is dismissed, other than on the merits, upon motion of the
accused personally or through counsel, such dismissal is to be regarded as with the express
consent of the accused and consequently he is deemed to have waived 4 his right to plead double
jeopardy and/or he is estopped 5 from claiming such defense on appeal by the Government or in
another indictment for the same offense.
This particular aspect of double jeopardy — dismissal or termination of the original case without
the express consent of the defendant — has evoked varied and apparently conflicting rulings from
this Court. We must untangle this jurisprudential maze and fashion out in bold relief a ruling not
susceptible of equivocation. Hence, a searching extended review of the pertinent cases is
imperative.
The doctrine of waiver of double jeopardy was enunciated and formally labelled as such for the
first time in 1949 in People vs. Salico, supra, with three justices dissenting. 6 In that case, the
provincial fiscal appealed from the order of the trial court dismissing, upon motion of the defendant
made immediately after the prosecution had rested its case, an indictment for homicide, on the
ground that the prosecution had failed to prove that the crime was committed within the territorial
jurisdiction of the trial court, or, more specifically, that the municipality of Victorias in which the
crime was allegedly committed was compromised within the province of Negros Occidental.
Rejecting the claim of the accused that the appeal placed him in double jeopardy, this Court held
that the dismissal was erroneous because the evidence on record showed that the crime was
committed in the town of Victorias and the trial judge should have taken judicial notice that the
said municipality was included within the province of Negros Occidental and therefore the offense
charged was committed within the jurisdiction of the court of first instance of the said province. In
ruling that the appeal by the Government did not put the accused in peril of a second jeopardy,
this Court stressed that with "the dismissal of the case by the court below upon motion of the
defendant, the latter has not been in jeopardy," and "assuming, arguendo, that the defendant had
been already in jeopardy in the court below and would be placed in double jeopardy by the appeal,
the defendant has waived his constitutional right not to be put in danger of being convicted twice
for the same offense." Mr. Justice Felicisimo Feria, speaking for the majority, reasoned that
... when the case is dismissed with the express consent of the defendant, the dismissal
will not be a bar to another prosecution for the same offense; because, his action in
having the case dismissed constitutes a waiver of his constitutional right or privilege, for
the reason that he thereby prevents the court from proceeding to the trial on the merits
and rendering a judgment of conviction against him.
The Salico doctrine was adhered to and affirmed in People vs. Marapao (85 Phil. 832, March 30,
1950), Gandicela vs. Lutero (88 Phil. 299, March 5, 1951), People vs. Pinuela, et al. (91 Phil. 53,
March 28, 1952), Co Te Hue vs. Encarnacion (94 Phil. 258, January 26, 1954), and People vs.
Desalisa (L-15516, December 17, 1966).
In Marapao, the defendant was indicted for slight physical injuries in the municipal court of
Sibonga, Cebu. After the prosecution had rested its case, a continuance was had, and when trial
was resumed, the court, upon motion of the defense, ordered the case dismissed for failure of the
prosecution to appear. However, the court reconsidered this order upon representation of the
fiscal who appeared moments later, and ordered the defense to present its evidence. The accused
moved to get aside the latter order on the ground that it placed him in double jeopardy. Acceding
to this motion, the court dismissed the case. Subsequently, the accused was charged in the Court
of First Instance of Cebu with the offense of assault upon a person in authority, based on the
same facts alleged in the former complaint for slight physical injuries. Again, upon motion of the
accused, the trial court dismissed the new indictment on the ground of double jeopardy. From this
order, the prosecution appealed. In upholding the appeal of the Government, this Court observed
that although the information for assault necessarily embraced the crime of slight physical injuries
for which the accused was indicted in the justice of the peace court,
... it appears that the appellee was neither convicted nor acquitted of the previous charge
against him for slight physical injuries, for that case was dismissed upon his own request
before trial could be finished. Having himself asked for such dismissal, before a judgment
of conviction or acquittal could have been rendered, the appellee is not entitled to invoke
the defense of double jeopardy...
In Gandicela, this Court had occasion to reiterate the Salico ruling:
But where a defendant expressly consents to, by moving for, the dismissal of the case
against him, as in the present case, even if the court or judge states in the order that the
dismissal is definite or does not say that the dismissal is without prejudice on the part of
the fiscal to file another information, the dismissal will not be a bar to a subsequent
prosecution of the defendant for the same offense. (People vs. Ylagan, 58 Phil. 851;
People vs. Salico, 84 Phil. 722.).
And in denying the motion for reconsideration filed by the accused in that case, this Court held:
 According to Section 9 of Rule 13, if a criminal case is dismissed otherwise than upon the
merits at any stage before judgment, without the express consent of the defendant, by a
court of competent jurisdiction, upon a valid complaint or information, and after the
defendant has pleaded to the charge, the dismissal of the case shall be definite or a bar
to another prosecution for the same offense; but if it is dismissed upon the petition or with
the express consent of the defendant, the dismissal will be without prejudice or not a bar
to another prosecution for the same offense, because, in the last case, the defendant's
action in having the case dismissed constitutes a waiver of his constitutional right not to
be prosecuted again for the same offense.
In Pinuela, as in Salico, the prosecution had presented its evidence against the defendant, and the
trial court, upon motion of the accused, dismissed the criminal action for lack of evidence showing
that the crime charged was committed within its territorial jurisdiction. On appeal by the
Government, this Court found that the evidence showed otherwise and, like in Salico, the majority
rejected the plea of double jeopardy interposed by the accused on the ground that his virtual
instigation of the erroneous dismissal amounted to a waiver of his right against a second jeopardy.
In Co Te Hue, it was the theory of the petitioner that the charge of estafa filed against him having
been dismissed, albeit provisionally, without his express consent, its revival constituted double
jeopardy which bars a subsequent prosecution for the same offense. This claim was traversed by
the Solicitor General who contended that considering what had transpired in the conference
between the parties, the provisional dismissal was no bar to the subsequent prosecution for the
reason that the dismissal was made with the defendant's express consent. This Court sustained
the view of the Solicitor General, thus:
We are inclined to uphold the view of the Solicitor General. From the transcript of the
notes taken at the hearing in connection with the motion for dismissal, it appears that a
conference was held between petitioner and the offended party in the office of the fiscal
concerning the case and that as a result of that conference the offended party filed the
motion to dismiss. It also appears that as no action has been taken on said motion,
counsel for petitioner invited the attention of the court to the matter who acted thereon
only after certain explanation was given by said counsel. And when the order came the
court made it plain that the dismissal was merely provisional in character. It can be plainly
seen that the dismissal was effected not only with the express consent of the petitioner
but even upon the urging of his counsel. This attitude of petitioner, or his counsel, takes
this case out of the operation of the rule.
In essence, this Court held that where a criminal case is dismissed provisionally not only with the
express consent of the accused but even upon the urging of his counsel, there can be no double
jeopardy under section 9, Rule 113, if the indictment against him is revived by the fiscal. This
decision subscribes substantially to the doctrine on waiver established in Salico.
The validity and currency of the Salico doctrine were intimated in the recent case of People vs.
Fajardo (L-18257, June 29, 1966), and six months later were reaffirmed in People vs. Desalisa,
supra.
In Fajardo, this Court, through Mr. Justice Querube Makalintal, observed:
The record does not reveal that appellees expressly agreed to the dismissal of the
information as ordered by the trial Judge or that they performed any act which could be
considered as express consent within the meaning of the rule. While they did file a motion
asking that the case be quashed or that a reinvestigation thereof be ordered, the court
granted neither alternative. What it did was to order the prosecution to amend the
complaint. This order was in effect a denial of the motion to quash, and it was only after
the prosecution failed to amend that the court dismissed the case on that ground.
Consequently, even under the theory enunciated in some decisions of this Court (People
vs. Salico, etc.) that if a valid and sufficient information is erroneously dismissed upon
motion of the defendant he is deemed to have waived the plea of double jeopardy in
connection with an appeal from the order of dismissal, appellees here are not precluded
from making such plea.
To paraphrase, had the dismissal been anchored on the motion to dismiss, the defendants would
not have been entitled to protection against double jeopardy.
Then in Desalisa, this Court, in a unanimous decision penned by Mr. Justice Jesus Barrera, held
that
... The ruling in the case of Salico, that the act of the defendant in moving for the
dismissal of the case constitutes a waiver of the right to avail of the defense of double
jeopardy, insofar as it applies to dismissals which do not amount to acquittal or dismissal
of the case on the merits, cannot be considered to have been abandoned by the
subsequent decisions on the matter. (Emphasis supplied)
xxx xxx xxx
... an appeal of the prosecution from the order of dismissal (of the criminal complaint) by
the trial court will not constitute double jeopardy if (1) the dismissal is made upon motion,
or with the express consent, of the defendant, and (2) the dismissal is not an acquittal or
based upon consideration of the evidence or of the merits of the case; and (3) the
question to be passed upon by the appellate court is purely legal; so that should the
dismissal be found incorrect, the case would have to be remanded to the court of origin
for further proceedings, to determine the guilt or innocence of the defendant. (Emphasis
supplied)
The doctrine of estoppel in relation to the plea of double jeopardy was first enunciated
in Acierto which held that when the trial court dismisses a case on a disclaimer of jurisdiction,
upon the instigation of the accused, the latter is estopped on appeal from asserting the jurisdiction
of the lower court in support of his plea of second jeopardy. The doctrine of estoppel is in
quintessence the same as the doctrine of waiver: the thrust of both is that a dismissal, other than
on the merits, sought by the accused in a motion to dismiss, is deemed to be with his express
consent and bars him from subsequently interposing the defense of double jeopardy on appeal or
in a new prosecution for the same offense.
In Acierto, the defendant was charged before a United States court-martial with having defrauded
the Government of the United States, through falsification of documents, within a military base of
the United States in the Philippines. The challenge by the accused against the jurisdiction of the
military tribunal was brushed aside, and he was convicted. On review, the verdict was reversed by
the Commanding General who sustained Acierto's position on the ground of lack of jurisdiction.
Subsequently, he was convicted of estafa and falsification based on the same facts by the Court
of first Instance of Rizal. On appeal to this Court, he claimed former jeopardy in the court-martial
proceedings, asserting that the military court actually had jurisdiction. In a unanimous 7 decision,
this Court, through Mr. Justice Pedro Tuason, ruled:
This is the exact reverse of the position defendant took at the military trial. As stated, he
there attacked the court-martial's jurisdiction with the same vigor that he now says the
court-martial did have jurisdiction; and thanks to his objections, so we incline to believe,
the Commanding General, upon consultation with, and the recommendation of, the Judge
Advocate General in Washington, disapproved the court-martial proceedings.
xxx xxx xxx
Irrespective of the correctness of the views of the Military authorities, the defendant was
estopped from demurring to the Philippine court's jurisdiction and pleading double
jeopardy on the strength of his trial by the court-martial, A party will not be allowed to
make a mockery of justice by taking inconsistent positions which if allowed would result in
brazen deception. It is trifling with the courts, contrary to the elementary principles of right
dealing and good faith, for an accused to tell one court that it lacks authority to try him
and, after he has succeeded in his effort, to tell the court to which he has been turned
over that the first has committed error in yielding to his plea. (Emphasis supplied)
The Acierto ruling was reiterated in People vs. Amada Reyes, et al. (96 Phil. 827, April 30,
1955); People vs. Reyes, et al. (98 Phil. 646, March 23, 1956); People vs. Casiano (L-15309,
February 16, 1961), and People vs. Archilla (L-15632, February 28, 1961).
The defendants in People vs. Amada Reyes, et al., were charged as accessories to the crime of
theft committed by their brother, Anselmo, the principal accused. The latter pleaded guilty to
simple theft and was sentenced accordingly. The former pleaded not guilty and subsequently filed
a motion to quash on the ground that being brothers and sisters of the principal accused, they
were exempt from criminal responsibility for the acts charged against them in the information.
Thereupon, the prosecution moved to amend the information so as to allege that the defendants
profited from the effects of the crime. In view of this development, counsel for the defendants
moved to withdraw their motion to quash, and objected to the proposed amendment which sought
to change materially the information after plea without the consent of the accused. Without acting
on the petition to withdraw the motion to quash, the trial court denied the motion of the prosecution
on the ground that the proposed amendment would substantially affect the fundamental rights of
the accused who were exempt from liability under the information because of their relation to the
principal culprit. Then the prosecution moved for the dismissal of the case against the alleged
accessories with reservation to file a new information. The court ordered the dismissal without
ruling on the reservation. Subsequently, a new information was filed virtually reproducing the
previous one except that now there was an added allegation of intent to gain. The lower court
quashed the new information upon motion of the accused on the ground of double jeopardy. On
appeal by the prosecution, this Court, thru Mr. Justice J. B. L. Reyes, held that the plea of double
jeopardy was erroneously sustained because
In the first place, the accused-appellees herein filed a motion to quash on the ground that
they incurred no criminal liability under the facts alleged in the information in the
preceding case, No. Q-972, and the trial court instead of allowing the withdrawal of the
motion to quash, virtually sustained the same when it denied the fiscal's motion to amend,
thereby forcing the latter to dismiss the case; hence, it can not be held that the former
case was terminated without the express consent of the accused. Secondly, the
defendants themselves showed that the information in the previous case was insufficient
to charge them with any criminal offense, in view of their relationship with the principal
accused; and it is well established doctrine that for jeopardy to attach, there must be an
information sufficient in form and substance to sustain a conviction. Lastly, the herein
accused having successfully contended that the information in the former case was
insufficient to sustain a conviction, they cannot turn around now and claim that such
information was after all, sufficient and did place them in danger of jeopardy of being
convicted thereunder. If, as they formerly contended, no conviction could be had in the
previous case, they are in estoppel to contend now that the information in the second
case places them in jeopardy for the second time. Their case comes within the spirit of
the rule laid down in People vs. Acierto.
Again, in People vs. Reyes, et al., supra, this Court, speaking thru Mr. Chief Justice Paras,
reiterated the Aciertoruling thus:
Where the complaint or information is in truth valid and sufficient, but the case is
dismissed upon the petition of the accused on the ground that the complaint or
information is invalid and insufficient, such dismissal will not bar another prosecution for
the same offense and the defendant is estopped from alleging in the second information
that the former dismissal was wrong because the complaint or information was valid.
In this particular case, upon motion of the defendants, the trial court dismissed the information
because it did not allege the use of violence, notwithstanding the fact that the offense charged
was coercion under article 287 of the Revised Penal Code. On appeal, however, this Court ruled
that the dismissal was erroneous because "although the offense named in the information is
coercion, it does not necessarily follow that the applicable provision is the first paragraph, since
the second paragraph also speaks of 'coercions'. Inasmuch as the recitals in the information do
not include violence, the inevitable conclusion is that the coercion contemplated is that described
and penalized in the second paragraph."
We come now to the case of People vs. Casiano. In this case the accused was charged with
estafa in a complaint filed with the justice of the peace court of Rosales, Pangasinan. The accused
waived her right to preliminary investigation and the record was accordingly forwarded to the Court
of First Instance of Pangasinan where the provincial fiscal filed an information for "illegal
possession and use of false treasury or bank notes." Upon arraignment the defendant pleaded not
guilty. Subsequently, the defense filed a motion to dismiss on the thesis that there had been no
preliminary investigation of the charge of illegal possession and use of false treasury or bank
notes, and that the absence of such preliminary investigation affected the jurisdiction of the trial
court. The motion was granted on the ground that the waiver made by the defendant in the justice
of the peace court did not deprive her of the right to a preliminary investigation of an entirely
different crime. On appeal to this Court, it was held that the dismissal was erroneous because the
allegations of the information filed in the Court of First Instance were included in those of the
complaint filed in the justice of the peace court where the defendant had already waived her right
to a preliminary investigation. On the question of whether the appeal placed the defendant in
double jeopardy, this Court, thru Mr. Chief Justice (then Associate Justice) Concepcion, observed
that the situation of Casiano was identical to that of the accused in Acierto
... were she to plead double jeopardy in this case, for such plea would require the
assertion of jurisdiction of the court of first instance to try her and that the same erred in
yielding to her plea therein for lack of authority therefor. In the language of our decision in
the Acierto case, it is immaterial whether or not the court a quohad said authority. It,
likewise, makes no difference whether or not the issue raised by defendant in the lower
court affected its jurisdiction. The fact is that she contested its jurisdiction and that,
although such pretense was erroneous, she led the court to believe that it was correct
and to act in accordance with such belief. The elementary principles of fair dealing and
good faith demand, accordingly, that she be estopped now from taking the opposite stand
in order to pave the way for a plea of double jeopardy, unless the rule of estoppel laid
down in the Acierto case is revoked. As a matter of fact, said rule applies with greater
force to the case at bar than to the Acierto case, because the same involved two
(2) separate proceedings before courts deriving their authority from different
sovereignties, whereas the appeal in the case at bar is a continuation of the proceedings
in the lower court, which like this Supreme Court, is a creature of the same sovereignty. In
short the inconsistency and impropriety would be more patent and glaring in this case
than in that of Acierto, if appellant herein pleaded double jeopardy in this instance.
This Court then forthnightly stated that "the rule of estoppel applied in the Acierto case should be
maintained, because:
1. It is basically and fundamentally sound and just.
2. It is in conformity with the principles of legal ethics, which demand good faith of the
higher order in the practice of law.
3. It is well settled that parties to a judicial proceeding may not, on appeal, adopt a theory
inconsistent with that which they sustained in the lower court.
xxx xxx xxx
4. The operation of the principle of estoppel on the question of jurisdiction seemingly
depends whether the lower court actually had jurisdiction or not. If it had no jurisdiction,
but the case was tried and decided upon the theory that it had jurisdiction, the parties are
not barred on appeal, from assailing such jurisdiction, for the same "must exist as a
matter of law, and may not be conferred by consent of the parties or by estoppel" (5
C.J.S. 861-863). However, if the lower court had jurisdiction, and the case was heard and
decided upon a given theory, such, for instance, as that the court had no jurisdiction, the
party who induced it to adopt such theory will not be permitted, on appeal, to assume an
inconsistent position — that the lower court had jurisdiction. Here, the principle of
estoppel applies. The rule that jurisdiction is conferred by law, and does not depend upon
the will of the parties, has no bearing thereon.
Twelve days after Casiano, this Court, in People vs. Archilla, supra, invoked anew the doctrine of
estoppel. In this case Alfreda Roberts, together with Jose Archilla, was charged with bigamy. After
pleading not guilty, Roberts, through his counsel, filed a motion praying that the complaint be
quashed with regard to her on the ground that the facts alleged therein did not constitute the
offense charged for failure to aver that "insofar as Alfreda Roberts is concerned, her marriage to
Jose Luis Archilla was her second marriage ..." On appeal, the prosecution contended that the trial
court erred in granting the motion to quash, because the complaint was sufficient and at least
charged the accused as an accomplice. The defendant maintained that even if that were true, the
quashing of the information amounted to her acquittal which prevented the prosecution from taking
the said appeal as it would place her in double jeopardy. Mr. Justice Felix Bautista Angelo, writing
for the majority, ruled that the trial court erred, and proceeded to emphasize that the accused
... cannot now be allowed to invoke the plea of double jeopardy after inducing the trial
court to commit an error which otherwise it would not have committed. In other words,
appellee can not adopt a posture of double dealing without running afoul with the doctrine
of estoppel. It is well-settled that the parties to a justiciable proceeding may not, on
appeal, adopt a theory inconsistent with that which they sustained in the lower court
(Williams v. McMicking, 17 Phil. 408; Molina v. Somes, etc.). Consequently, appellee is
now estopped from invoking the plea of double jeopardy upon the theory that she would
still be convicted under an information which she branded to be insufficient in the lower
court.
The accused in this case now before us nevertheless insists that the Salico doctrine and
"necessarily analogous doctrines" were abandoned by this Court in Bangalao, Labatete,
Villarin and Cloribel.
In Bangalao, the complaint filed by the victim's mother alleged that the rape was committed "by
means of force and intimidation" while the information filed by the fiscal alleged that the offended
party was a "minor and demented girl" and that the defendants "successively had sexual
intercourse with her by means of force and against the will of Rosita Palban." After the accused
had pleaded not guilty, the defense counsel moved for the dismissal of the case on the ground
that the trial court lacked jurisdiction to try the offense of rape charged by the fiscal since it was
distinct from the one alleged in the complaint which did not aver that the victim was a demented
girl". The lower court sustained the motion and dismissed the case for lack of jurisdiction. On
appeal by the prosecution, this Court held that the trial judge erred in dismissing the case for lack
of jurisdiction, but ruled, however, that the appeal could not prosper because it placed the accused
in double jeopardy.
As the court below had jurisdiction to try the case upon the filing of the complaint by the
mother of the offended party, the defendants-appellees would be placed in double
jeopardy if the appeal is allowed.
After mature analysis, we cannot agree that this Court in Bangalao impliedly abandoned the Salico
doctrine on waiver. Bangalao was decided solely on the question of jurisdiction. This Court,
however, after holding that the lower tribunal had jurisdiction, decided outright to repress the
appeal by the Government on the ground of double jeopardy without considering whether the
appealed order of dismissal was issued with or without the express consent of the accused (this
aspect of double jeopardy not being in issue). Hence, the ruling in Salico — that the dismissal was
with the express consent of the accused because it was granted upon his instigation thru a motion
to dismiss — was not passed upon in Bangalao.
A case of striking factual resemblance with Salico is People vs. Ferrer (100 Phil. 124, October 23,
1956). In this case, after the prosecution had rested, the accused filed a motion to dismiss on the
ground that the territorial jurisdiction of the trial court had not been published. Acting on this
motion, the lower court dismissed the case. The prosecution appealed. This Court found that the
evidence on record, contrary to the finding of the trial court, amply proved the jurisdiction of the
lower tribunal. However, without the defendant interposing the plea of double jeopardy, this Court
held that "the Government however meritorious its case cannot appeal the order of dismissal
without violating the right of the defendant not to be placed in double jeopardy." Again, like
in Bangalao, this Court did not consider the nature of dismissal — whether it was with or without
the express consent of the defendant.
The accused in the case at bar avers that the Salico doctrine
was formally and expressly abandoned in People vs. Labatete, supra. In the latter case, the trial
court, upon motion of the defendant, dismissed the original information for estafa on the ground
that it did not allege facts constituting the offense charged. The information recited that the
accused had contracted a loan from the complainant, giving as security the improvements and
products of his property (a piece of land), without averring that the said property, which was
allegedly mortgaged by the accused to the Rehabilitation Finance Corporation, formed part of the
security. Consequently, the fiscal filed an amended complaint alleging that the accused also gave
as security the land in question, which he later mortgaged to the damage and prejudice of the
complaining creditor. This amended information was also dismissed upon motion of the defendant
on the ground of double jeopardy. This Court, in sustaining the appealed order of dismissal, held:
If the amended information were to be admitted, the accused will be deprived of his
defense of double jeopardy because by the amended information he is sought to be made
responsible for the same act of borrowing on a mortgage for which he had already begun
to be tried and acquitted by the dismissal of the original information.
xxx xxx xxx
... the trial court found that the accused could not be found guilty of any offense under the
information. The judgment entered was not one of dismissal but of acquittal, and whether
the judgment is correct or incorrect, the same constitutes a bar to the presentation of the
amended information sought to be introduced by the fiscal. (Emphasis supplied)
In not applying the Salico doctrine, this Court, through Mr. Justice Alejo Labrador, expounded:
... The judgment of the trial court (in People vs. Salico) was in fact an acquittal because of
the failure on the part of the fiscal to prove that the crime was committed within the
jurisdiction of the court. The judgment was in fact a final judgment of acquittal. The mere
fact that the accused asked for his acquittal after trial on the merits (after the prosecution
had rested its case) is no reason for saying that the case was "dismissed" with his
express consent and he may again be subjected to another prosecution.
From the above named statement, it is clear that what in Salico was repudiated in Labatete was
the premise that the dismissal therein was not on the merits and not the conclusion that a
dismissal, other than on the merits, sought by the accused, is deemed to be with his express
consent and therefore constitutes a waiver of his right to plead double jeopardy in the event of an
appeal by the prosecution or a second indictment for the same offense. This Court, in Labatete,
merely pointed out that the controverted dismissal in Salico was in fact an acquittal." Reasoning a
contrario, had the dismissal not amounted to acquittal, then the doctrine of waiver would have
applied and prevailed. As a matter of fact we believe with the majority in Salico that the dismissal
therein was not on the merits and therefore did not amount to an acquittal:
If the prosecution fails to prove that the offense was committed within the territorial
jurisdiction of the court and the case is dismissed, the dismissal is not an acquittal,
inasmuch as if it were so the defendant could not be again prosecuted for the same
offense before a court of competent jurisdiction; and it is elemental that in such case the
defendant may again be prosecuted for the same offense before a court of competent
jurisdiction.
Granting, however, that the Salico doctrine was abandoned in Labatete, it was resurrected
in Desalisa. Moreover, Labatete never mentioned the doctrine of estoppel enunciated
in Acierto which had been repeatedly reaffirmed.
To bolster his contention that the Salico doctrine has been dropped from the corpus of our
jurisprudence, the accused cites People vs. Villarin, supra. Here the accused appealed to the
Court of First instance his conviction in the inferior court for acts of lasciviousness with consent.
After conducting the preliminary investigation, the fiscal charged the accused with corruption of
minors. Villarin pleaded not guilty, and before the case could be heard, his counsel filed a motion
to dismiss on the ground that the information did not allege facts constituting the crime charged.
Acting on this motion, the trial court dismissed the case. On appeal by the prosecution, this Court
thru Mr. Justice Felix Angelo Bautista, held that the dismissal was erroneous, but that this error
... cannot now be remedied by setting aside the order dismissal of the court a quo and by
remanding the case to it for further proceedings as now suggested by the prosecution
considering that the case was dismissed without the express consent of the accused
even if it was upon the motion of his counsel, for to do so would place the accused in
double jeopardy. The only exception to the rule on the matter is when the dismissal is with
the consent of the accused, and here this consent has not been obtained. (Emphasis
supplied)
Villarin gives the impression, as gleaned from the above statement, that this Court therein
sustained the plea of double jeopardy on the ground that dismissal was without the express
consent of the defendant as it was ordered "upon the motion of his counsel" and not upon motion
of the defendant himself. This conclusion is rather unfortunate and must be rectified, for the settled
rule is that the acts of counsel in a criminal prosecution bind his client. Thus, in People vs.
Romero (89 Phil. 672, July 31, 1951), this Court held categorically that
The fact that the counsel for the defendant, and not the defendant himself personally
moved for the dismissal of the case against him, had the same effect as if the defendant
 had personally moved for such dismissal, inasmuch as the act of the counsel in the
prosecution of the defendant's cases was the act of the defendant himself , for the only
case in which the defendant cannot be represented by his counsel is in pleading guilty
according to Section 3, Rule 114, of the Rules of Court. (Emphasis supplied)
On this consideration alone, we cannot agree with the accused in the case at bar that this Court in
Villarin intended to abandon the Salico ruling. Had the motion to dismiss filed by Villarin's counsel
been considered as one made by the defendant himself, as should have been done, the Villarin
case should have been resolved consistent with the doctrine of waiver in Salico and/or that of
estoppel in Acierto.
As a final citation in support of his theory, the accused in the case at bar invokes People vs.
Clolibel, supra, where this Court, in sustaining the plea of double jeopardy interposed by the
defendants, stated inter alia:
In asserting that Criminal Case No. 45717 may still be reinstated, the petitioner adopts
the ruling once followed by the Court to the effect that a dismissal upon the defendant's
own motion is a dismissal consented to by him and, consequently, will not be a bar to
another prosecution for the same offense, because, his action in having the case
dismissed constitutes a waiver of his constitutional right or privilege, for the reason that he
thereby prevents the court from proceeding to the trial on the merits and rendering a
judgment of conviction against him. (People v. Salico, 84 Phil. 772) But, this authority has
long been abandoned and the ruling therein expressly repudiated.
Thus, in the case of People v. Robles, G.R. No. L-12761, June 29, 1959, citing People v.
Bangalao, L-5610, February 17, 1954; People v. Diaz, L-6518, March 30, 1954; People v.
Abano, L-7862, May 17, 1955; and People v. Ferrer, L-9072, October 23, 1956, We said:
... In reaching the above conclusion, this Court has not overlooked the ruling in
People vs. Salico, 47 O.G. 4765, to the effect that a dismissal upon defendant's
motion will not be a bar to another prosecution for the same offense as said
dismissal was not without the express consent of the defendant, which ruling the
prosecution now invokes in support of its appeal; but said ruling is not now
controlling, having been modified or abandoned in subsequent cases wherein
this Court sustained the theory of double jeopardy despite the fact that dismissal
was secured upon motion of the accused. (Emphasis supplied)
Also, the rule that a dismissal upon defendant's motion will not be a bar to another
prosecution for the same offense as said dismissal is not without the express consent of
the defendant, has no application to a case where the dismissal, as here, is predicated on
the right of a defendant to a speedy trial. (People vs. Tacneng, et al., G.R. No. L-12082,
April 30, 1959). (emphasis supplied)
The above statements must be taken in the proper context and perspective. As previously
explained, Bangalao, Ferrer, and even Labatete, did not actually abandon the doctrine of waiver
in Salico (and not one of the said cases even implied the slightest departure from the doctrine of
estoppel established in Acierto). In Diaz, Abaño, Tacneng and Robles which are cited above, like
in Cloribel, the dismissals therein, all sought by the defendants, were considered acquittals
because they were all predicated on the right of a defendant to a speedy trial and on the failure of
the Government to prosecute. Therefore, even if such dismissals were induced by the accused,
the doctrines of waiver and estoppel were obviously inapplicable for these doctrines presuppose a
dismissal not amounting to an acquittal.
This Court, through Mr. Justice Marceliano Montemayor, held in People vs. Diaz (94 Phil. 714,
March 30, 1954):
Here the prosecution was not even present on the day of trial so as to be in a position to
proceed with the presentation of evidence to prove the guilt of the accused. The case was
set for hearing twice and the prosecution without asking for postponement or giving any
explanation, just failed to appear. So the dismissal of the case, though at the instance of
defendant Diaz may, according to what we said in the Gandicela case, be regarded as an
acquittal. (emphasis supplied)
A similar result was reached by this Court thru Mr. Justice Sabino Padilla, in People vs. Abano (97
Phil. 28, May 27, 1955), in this wise:
After a perusal of the documents attached to the petition for a writ of certiorari, we fail to
find an abuse of discretion committed by the respondent judge. He took pains to inquire
about the nature of the ailment from which the complaining witness claimed she was
suffering. He continued the trial three times, to wit: on 27 May, 1 and 12 June. The
defendant was entitled to a speedy trial. When on 15 June, the last day set for the
resumption of the trial, the prosecution failed to secure the continuance thereof and could
not produce further evidence because of the absence of the complaining witness, the
respondent judge was justified in dismissing the case upon motion of the defense ... The
defendant was placed in jeopardy for the offense charged in the information and the
annulment or setting aside of the order of dismissal would place him twice in jeopardy of
punishment for the same offense. (emphasis supplied)
Then in People vs. Tacneng (L-12082, April 30, 1959), Mr. Justice Pastor Endencia, speaking for
a unanimous Court, stressed that
... when criminal case No. 1793 was called for hearing for the third time and the fiscal was
not ready to enter into trial due to the absence of his witnesses, the herein appellees had
the right to object to any further postponement and to ask for the dismissal of the case by
reason of their constitutional right to a speedy trial; and if pursuant to that objection and
petition for dismissal the case was dismissed, such dismissal ammounted to an acquittal
of the herein appellees which can be invoked, as they did, in a second prosecution for the
same offense. (emphasis supplied)
And this Court proceeded to distinguish the case from People vs. Salico, thus:
We are fully aware that pursuant to our ruling in the case of Peo. v. Salico, 45 O.G. No. 4,
1765-1776, and later reiterated in Peo vs. Romero, L-4517-20, July 31, 1951, a dismissal
upon defendant's motion will not be a bar to another prosecution for the same offense as
 said dismissal was not without the express consent of the defendant. This ruling, ACCORDINGLY, the order appealed from is set aside. This case is hereby remanded to the court
however, has no application to the instant case, since the dismissal in those cases was of origin for further proceedings in accordance with law. No costs.
not predicated, as in the case at bar, on the right of a defendant to a speedy trial, but on
different grounds. In the Salico case, the dismissal was based on the ground that the Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Angeles and Fernando,
evidence for the prosecution did not show that the crime was committed within the JJ., concur.
territorial jurisdiction of the court which, on appeal, we found that it was, so the case was
remanded for further proceedings; and in the Romero case the dismissal was due to the
non-production of other important witnesses by the prosecution on a date fixed by the
court and under the understanding that no further postponement at the instance of the
government would be entertained. In both cases, the right of a defendant to a speedy trial
was never put in issue. (emphasis supplied)

The gravamen of the foregoing decisions was reiterated in People vs. Robles (L-12761, June 29,
1959) where the trial court, upon motion of the defendant, dismissed the case on the ground that
the failure of the prosecution to present its evidence despite several postponements granted at its
instance, denied the accused a speedy trial. In rejecting the appeal of the Government, this Court
held:

In the circumstances, we find no alternative than to hold that the dismissal of Criminal
Case No. 11065 is not provisional in character but one which is tantamount to acquittal
that would bar further prosecution of the accused for the same offense.

In Cloribel, the case dragged for three years and eleven months, that is, from September 27, 1958
when the information was filed to August 15, 1962 when it was called for trial, after numerous
postponements, mostly at the instance of the prosecution. On the latter date, the prosecution
failed to appear for trial, and upon motion of defendants, the case was dismissed. This Court held
"that the dismissal here complained of was not truly a 'dismissal' but an acquittal. For it was
entered upon the defendants' insistence on their constitutional right to speedy trial and by reason
of the prosecution's failure to appear on the date of trial." (Emphasis supplied.)

Considering the factual setting in the case at bar, it is clear that there is no parallelism between
Cloribel and the cases cited therein, on the one hand, and the instant case, on the other. Here the
controverted dismissal was predicated on the erroneous contention of the accused that the
complaint was defective and such infirmity affected the jurisdiction of the court a quo, and not on
the right of the accused to a speedy trial and the failure of the Government to prosecute. The
appealed order of dismissal in this case now under consideration did not terminate the action on
the merits, whereas in Cloribel and in the other related cases the dismissal amounted to an
acquittal because the failure to prosecute presupposed that the Government did not have a case
against the accused, who, in the first place, is presumed innocent.

The application of the sister doctrines of waiver and estoppel requires two sine qua non
conditions: first, the dismissal must be sought or induced by the defendant personally or through
his counsel; and second, such dismissal must not be on the merits and must not necessarily
amount to an acquittal. Indubitably, the case at bar falls squarely within the periphery of the said
doctrines which have been preserved unimpaired in the corpus of our jurisprudence.
 Republic of the Philippines Their counsel told the court: " ... we are now invoking the constitutional right of the accused to a
SUPREME COURT speedy trial of the case. ... We are insisting on our stand that the case be heard today; otherwise,
Manila it will (should) be dismissed on the ground of invoking (sic) the constitutional right of the accused
particularly accused Alberto Alba and Generoso Esmeña (pp. 50 and 52, Rollo).
SECOND DIVISION
Respondent judge provisionally dismissed the case as to the four accused who were present
G.R. No. L-54110 February 20, 1981 because it "has been dragging all along and the accused are ready for the hearing" but the fiscal
was not ready with his witness. The court noted that there was no medical certificate indicating
that the complainant was really sick. The case was continued as to the fifth accused who did not
GENEROSO ESMEÑA and ALBERTO ALBA, petitioners,
appear at the hearing. His arrest was ordered (p. 23, Rollo).
vs.
JUDGE JULIAN B. POGOY, City Court of Cebu City, Branch III, PEOPLE OF THE
PHILIPPINES and RICARDO B. TABANAO, as Special Counsel, Office of the City Fiscal, Twenty-seven days later, or on September 12, 1979, the fiscal filed a motion for the revival of the
Cebu City, respondents. case. He attached to his motion a medical certificate under oath attesting to the fact that Father
Tibudan was sick of influenza on August 16, 1979.

The fiscal cited the ruling that a provisional dismissal with the conformity of the accused lacks the
impress of finality and, therefore, the case could be revived without the filing of a new information
AQUINO, J.:
(Lauchengco vs. Alejandro, L-49034, January 31, 1979, 88 SCRA 175).

This case poses the issue of whether the revival of a grave coercion case, which was provisionally
The accused did not oppose the motion. Respondent judge granted it in his order of October 8,
dismissed (after the accused had been arraigned) because of complainant's failure to appear at 1979 (p. 26, Rollo).
the trial, would place the accused in double jeopardy, considering their constitutional right to have
a speedy trial.
On October 24, 1979, Esmeña and Alba filed a motion to dismiss the case on the ground of
double jeopardy. They pointed out that they did not consent to the provisional dismissal of the
Petitioners Generoso Esmeña and Alberto Alba and their co-accused, Genaro Alipio, Vicente
case. Hence, the provisional dismissal amounted to an acquittal which placed them in jeopardy. Its
Encabo and Bernardo Villamira were charged with grave coercion in the city court of Cebu City for revival would place them in double jeopardy.
having allegedly forced Reverend Father Tomas Tibudan of the Jaro Cathedral, Iloilo City to
withdraw the sum of five thousand pesos from the bank and to give that amount to the accused
because the priest lost it in a game of cards. The fiscal opposed the motion. He called the court's attention to the fact that Father Tibudan had
appeared in court several times but the hearing was not held. The court denied the motion to
dismiss.
The case was calendared on October 4, 1978 presumably for arraignment and trial. Upon the
telegraphic request of Father Tibudan the case was reset on December 13, 1978. Because
Esmeña and Alba were not duly notified of that hearing, they were not able to appear. That order denying the motion to dismiss is assailed in this special civil action of certiorari. The
Solicitor General agrees with the petitioners that the revival of the case would place the accused
in double jeopardy since the provisional dismissal of the case without their consent was in effect
The two pleaded not guilty at their arraignment on January 23, 1979. No trial was held after the an acquittal.
arraignment because complainant Father Tibudan requested the transfer of the hearing to another
date.
The rule on double jeopardy (non bis in Idem or not twice for the same) is found in section 22,
Article IV Bill of Rights) of the Constitution which provides that "no person shall be twice put in
In the meantime, the fiscal lost his record of the case. So, the hearing scheduled on June 18, 1979 jeopardy of punishment for the same offense." This is complemented by Rule 117 of the Rules of
was cancelled at his instance. On that date, respondent judge issued an order setting the trial "for Court which provides as follows:
the last time on August 16, 1979, at 8:30 o'clock in the morning" (p. 21, Rollo).
SEC. 9. Former conviction or acquittal or former jeopardy. —When a defendant
When the case was called on that date, the fiscal informed the court that the private prosecutor
shall have been convicted or acquitted, or the case against him dismissed or
received from complainant Father Tibudan a telegram stating that he was sick. The counsel for
otherwise terminated without the express consent of the defendant, by a court of
petitioners Esmeña and Alba opposed the cancellation of the hearing. They invoked the right of
competent jurisdiction, upon a valid complaint or information or other formal
the accused to have a speedy trial.
charge sufficient in form and substance to sustain a conviction, and after the
 defendant had pleaded to the charge, the conviction or acquittal of the defendant
or the dismissal of the case shall be a bar to another prosecution for the offense
charged, or for any attempt to commit the same or frustration thereof, or for any
offense which necessarily includes or is necessarily included in the offense
charged in the former complaint or information.
In order that legal jeopardy may exist, there should be (a) a valid complaint or information (b)
before a court of competent jurisdiction and (c) the accused has been arraigned and has pleaded
to the complaint or information.
When these three conditions are present, the acquittal or conviction of the accused or the
dismissal or termination of the case without his express consent constitutes res judicata and is a
bar to another prosecution for the offense charged, or for any attempt to commit the same or
frustration thereof, or for any offense which necessarily includes or is included therein (4 Moran's
Comments on the Rules of Court, 1980 Ed., p. 240).
Previous acquittal (autrefois acquit), previous conviction (autrefois convict) or the dismissal or
termination of the case without his consent precludes his subsequent indictment for the same
offense as defined in section 9.
In the instant case, we hold that the petitioners were placed in jeopardy by the provisional
dismissal of the grave coercion case. That provisional dismissal would not have place the
petitioners in jeopardy if respondent judge had taken the precaution of making sure that the
dismissal was with their consent. In this case, it is not very clear that the petitioners consented to
the dismissal of the case.
If the defendant wants to exercise his constitutional right to a speedy trial, he should ask, not for
the dismissal, but for the trial of the case. After the prosecution's motion for postponement of the
trial is denied and upon order of the court the fiscal does not or cannot produce his evidence and,
consequently, fails to prove the defendant's guilt, the court upon defendant's motion shall dismiss
the case, such dismissal amounting to an acquittal of the defendant" (4 Moran's Comments on the
Rules of Court, 1980 Ed., p. 202, citing Gandicela vs. Lutero, 88 Phil. 299, 307 and People vs.
Diaz, 94 Phil. 714-717).
The dismissal of a criminal case upon motion of the accused because the prosecution was not
prepared for trial since the complainant and his witnesses did not appear at the trial is a dismissal
equivalent to an acquittal that would bar further prosecution of the defendant for the same offense
(Salcedo vs. Mendoza, L-49375, February 28, 1979, 88 SCRA 811; Lagunilia vs. Hon. Reyes, etc.
and Motas, 111 Phil. 1020 citing People vs. Tacneng, 105 Phil. 1298 and People vs. Robles, 105
Phil. 1016. See Taladua vs. Ochotorena, L-25595, February 15, 1974, 55 SCRA 528; Acebedo vs.
Sarmiento, L-28025, December 16, 1970, 36 SCRA 247; Baesa vs. Provincial Fiscal of Camarines
Sur, L-30363, January 30, 1971, 37 SCRA 437; People vs. Cloribel, 120 Phil. 775; People vs.
Abaño 97 Phil. 28; People vs. Labatete, 107 Phil. 697).
WHEREFORE, the order of respondent judge dated October 8, 1979, reviving the criminal case
against the petitioners, and his order of December 14, 1979, denying petitioners' motion to
dismiss, are reversed and set aside. No costs.
SO ORDERED.

It is the practice of some judges before issuing an order of provisional dismissal in a case wherein
the accused had already been arraigned to require the accused and his counsel to sign the
minutes of the session or any available part of the record to show the conformity of the accused or
his lack of objection to the provisional dismissal.

The judge specifies in the order of provisional dismissal that the accused and his counsel signified
their assent thereto. That procedure leaves no room for doubt as to the consent of the accused
and precludes jeopardy from attaching to the dismissal.

The petitioners were insisting on a trial. They relied on their constitutional right to have a speedy
trial. The fiscal was not ready because his witness was not in court. Respondent judge on his own
volition provisionally dismissed the case. The petitioners did not expressly manifest their
conformity to the provisional dismissal. Hence, the dismissal placed them in jeopardy.

Even if the petitioners, after invoking their right to a speedy trial, moved for the dismissal of the
case and, therefore, consented to it, the dismissal would still place them in jeopardy. The use of
the word "provisional" would not change the legal effect of the dismissal (Esguerra vs. De la
Costa, 66 Phil. 134; Gandicela vs. Lutero, 88 Phil. 299).
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-49375 February 28, 1979
LEOPOLDO SALCEDO, petitioner,
vs.
HONORABLE JUDGE FILEMON H. MENDOZA and THE PEOPLE OF THE
PHILIPPINES, respondents.
Atienza Law Office for petitioner.
Office of the Solicitor General for respondents.
MAKASIAR, J.:
This is a petition for review on certiorari with preliminary injunction of the order of respondent
Judge Filemon H. Mendoza, dated May 8, 1978, setting aside the order of dismissal dated March
28,1978 issued by him in Criminal Case No. C-1061 entitled "People of the Philippines, Plaintiff,
versus Leopoldo Salcedo, Accused."
The record shows that on November 11, 1977, Provincial Fiscal Nestor M. Andrada of Oriental
Mindoro filed a criminal information of homicide through reckless imprudence against the herein
petitioner Leopoldo Salcedo, docketed as Criminal Case No. C-1061 of the Court of First Instance
of Oriental Mindoro, Branch I.
Upon arraignment on December 19, 1977, petitioner entered a plea of not guilty and the case was
then set for trial on the merits on January 25, 1978. When the case was called for trial on that
date, Provincial Fiscal Nestor M. Andrada asked for postponement to February 22, 1978, which
was granted, for trial on February 22, 1978, which was granted, because the accused failed to
appear. When the case was called for trial on February 22, 1978, the prosecution, through
Assistant Provincial Fiscal Emmanuel S. Panaligan, once more moved for its postponement and
the case was reset for trial on March 28, 1987.
On March 28, 1987, when the case was called for trial, no prosecuting fiscal appeared for the
prosecution. A private prosecutor, Atty. Juan P. Adzuarra, who withdrew his appearance from the
case and reserved the right to file a separate civil action, moved for its postponement in order to
give the prosecution another chance because they intend to request the Ministry of Justice to
appoint a special prosecutor to handle the case. The trial court, however, denied the said motion.
Whereupon, the petitioner, through counsel, Atty. Edgardo
Aceron, moved for the dismissal of the criminal case against him invoking his constitutional right to
speedy trial and respondent Judge issued an order dismissing the case, the pertinent portion of
which reads as follows:
Atty. Edgardo Aceron moved that considering the fact that this is the third time
that this case was postponed always at the instance of the fiscal although the
first postponement was made by the provincial fiscal in behalf of the accused
who failed to appear, the Court orders the dismissal of this case with costs de
officio.
Although the government is interested in the prosecution of this case, the Court
must also take into consideration the interest of the accused for under the
Constitution he is entitled to a speedy administration of justice, hence the
dismissal of the case.
IT IS SO ORDERED. (pp. 2-3, Annex A, Petition for Certiorari, pp. 14-14A, rec.).
On the same day, the prosecution, through Assistant Provincial Fiscal Arthur B. Panganiban, filed
a motion to reconsider the above order (Annex B, Petition, p. 15. rec.). In an order dated March
29, 1978, the trial court denied the motion "for lack of merit, there being no assurance that the
procecuting fiscal will promptly and adequately prosecute the case (Annex C, Petition, p. 16, rec.).
His first motion for reconsideration having been denied, Assistant Provincial Fiscal filed a filed a
second motion for reconsideration which the court set for hearing to April 20, 1978 (Annex D,
Petition, p. 17, rec.).
It appears that on April 20, 1978, the trial court issued an order requiring both parties to submit
within five (5) days from that date their respective pleadings (Annex E, Petition, p. 19, rec.).
However, the parties failed to comply with the said order. On May 8, 1978, respondent Judge
entered the order here asked to be reviewed, setting aside the order of dismissal dated March 28,
1978 and ordering that the case be set for trial on June 5, 1978, as follows:
Considering that both parties failed to comply with the order of the is Court dated
April 20, 1978 giving them five to days from that date to submit before the Court
their respective pleadings. the Court in the interest of justice sets aside the order
of this Court dated March 28, 1978.
Conformably with the above, let the trial of this case be set to June 5, 1978 at
1:30 o'clock in the afternoon.
Let the parties be notified accordingly.
SO ORDERED. (Annex E, Petition, p. 19, emphasis supplied).
Petitioner learned for the first time about the existence of the above order an June 5, 1978, thus
he filed on June 16, 1978 a motion for reconsideration of the said order alleging that the dismissal
of the criminal case against him was equivalent to an acquittal and reinstatement of the same
would place him twice in joepardy for the same offense (Annex F, Petition, p. 20, rec.).
On June 20, 1978, the trial court issued an order denying petitioner's motion for reconsideration
and setting the case for trial on July 20, 1978 (Annex G, Petition, p. 24, rec.). Unable to obtain
reconsideration of the May 8, 1978 order, petitioner filed the present petition for certiorari with
preliminary injunction on November 29, 1978 reiterating his contention that the dismissal of the
criminal case. which was upon his motion, predicate on his constitutional right to a speedy trial,
amounts to an acquittal, and therefore the reinstatement of the same criminal case against him
would violate his right against double jeopardy.
In our resolution of December 8, 1978. the Court required the respondents to comment on the
petition. The Solicitor General, on behalf of the respondents, filed his comment on January 26,
1979 agreeing with the petitioner that "a reinstatement of this case would operate to violate his
right against double jeopardy" (p. 4, Comment, p. 31, rec.).
The Stand of the petitioner and the solicitor General is well taken. Time and again, We have said
that the dismissal of a criminal case predicated on the right of the accused to speedy trial,
amounts to an acquittal on the merits which bars the subsequent prosecution of the accused for
the same offense.
Thus, in the case of Gandicela vs. Lutero (88 Phil. 299, 307, May 21, 1951), We said:
If the defendant wants to exercise his constitutional right to a speedy trial, he
should ask, not for the dismissal but for the trial of the case. If the prosecution
asks for the postponement of the hearing and the court believes that the hearing
cannot be postponed anymore without violating the night of the accused to a
speedy trial, the court shall deny the postponement and proceed with the trial
and require the fiscal to present the witnesses for the prosecution; and if the
fiscal does not or cannot produce his evidence and consequently fails to prove
the defendant's guilt beyond reasonable doubt, the Court, upon the motion of the
defendant, shall dismiss the case. Such dismissal is not in reality a mere
dismissal although it is generally so called but an acquittal of the defendant
because of the prosecution's .failure to prove the guilt of the defendant, and it will
be a bar to another prosecution for the same offense even though it was ordered
by the Court upon motion or with the express consent of the defendants, in
exactly the same way as a judgment of acquittal obtained upon the defendants
motion (People vs. Salico, 84 Phil. 722). (emphasis supplied).
And in the case of People vs. Diaz (94 Phil. 714, 717, March 30, 1954), wherein the prosecution
failed to appear on the day of the trial, We reiterated the Gandicela case, doctrine stating that:
... Here the prosecution was not even present on the day of the trial so as to be
in a position to proceed with the presentation of evidence to prove the guilt of the
accused. The case was set for hearing twice and the prosecution without asking
for postponement or giving any explanation, just failed to appear. So the
dismissal of the case, tho at the Instance of defendant Diaz may, according to
what we said in the Gandicela case,be regarded as an acquittal. (emphasis
supplied).
Likewise, in People vs. Abano (97 Phil. 28, May 17, 1955), wherein the court dismissed the case
upon the motion of the accused for failure of the prosecution to produce its evidence, We held
that:
The defendant was entitled to a speedy trial, ... The defendant was placed in
jeopardy of punishment for the offense charged in the information and the
annulment or setting aside of the order of dismissal would place him twice in
jeopardy of punishment for the same offense.
Furthermore, in People vs. Tacneng (L-12082, April 30, 1959), where the Court ordered the
dismissal of the case upon the motion of the accused because the prosecution was not ready for
trial after several postponements, this court held that:
... when criminal case No. 1793 was called for hearing for the third time and the
fiscal was not ready to enter into trial due to the absence of his witnesses, the
herein appellees had the right to object to any further postponement and to ask
for the dismissal of the case by reason of their constitutional right to a speedy
trial; and if pursuant to that objection and petitioner for dismissal the case was
dismissed, such dismissal amounted to an acquittal o" the herein appellees
which can be invoked as they did, in a second prosecution for the same offense.
(emphasis supplied).
Then, in People vs. Robles (105 Phil. 1016, June 29, 1959), a case with a similar factual setting as
that of People vs, Tacneng, supra We ruled that:
In the circumstances, we find no alternative than to hold that the dismissal of
Criminal Case No. 11065 is not provisional in character but one which is
tantamount to acquittal that would bar further prosecution of the accused for the
same offense.
Later, in the 1960 case of People vs. Lasarte (107 Phil, 697, April 27, 1960), this Court pointed out
that:
... where the fiscal fails to prosecute and the judge dismiss the case, the
termination is not real dismissal but acquittal because the prosecution failed to
prove the case when the trial ,wherefore came.
And in Lagunilla vs. Honorable Reyes and Motas (1 SCRA 1364, April 29, 1961), where the court
dismissed the case because of the apparent lack of interest of the complainant to prosecute the
case, this Court again ruled that:
Such dismissal made unconditionally and without reservation, after plea of not
guilty, and apparently predicated on the constitutional right of the accused to a
 speedy trial is, ... equivalent to an acquittal. And being an order of acquittal, it
became final immediately after promulgation and could no longer be recalled for
correction or reconsideration (People vs. Sison, L-11669, January 30, 1959;
Catilo Abaya, 94 Phil. 1014; 50 Off. Gaz., [6] 2477; People vs. Yelo, 83 Phil. 618;
46 Off. Gaz. [11th Supp.] 71), with or without good reason.

In the more recent case of People vs. Cloribel (11 SCRA 805, August 31, 1964) where the Court
again ordered the dismissal of the case upon notion of the accused because of the failure of the
prosecution to appear, WE had occasion again to reiterate Our previous rulings, thus:

... the dismissal here complained of was not truly a a "dismissal" but an acquittal.
For it was entered upon the defendant's insistence on their contitutional right to
speedy trial and by reason of the prosecution's failure to appear on the date of
trial.

In the present case, the respondent Judge dismissed the case, upon the motion of the petitioner
invoking his constitutional right to speedy trial, because the prosecution failed to appear on the
day of the trial on March 28, 1978 after it had previously been postponed twice, the first on
January 26, 1978 and the second on February 22, 1978.

The effect of such dismissal is at once clear Following the established jurisprudence, a dismiss
predicated on the right of the accused to speedy trial upon his own motion or express consent,
amounts to an acquittal which will bar another prosecution of the accused for the same offense
This is an exception to the rule that a dismissal upon the motion or with the express consent of the
accused win not be a bar to the subsequent prosecution of the accused for the same offense as
provided for in Section 9, Rule 113 of the Rules of Court. The moment the dismissal of a criminal
case is predicated on the right of the accused to speedy trial even if it is upon his own motion or
express consent, such dismissal is equivalent to acquittal And any attempt to prosecute the
accused for the same offense will violate the constitutional prohibition that "no person shall be
twice put in jeopardy of punishment for the same offense (New Constitution, Article IV, Sec 22).

The setting aside by the respondent Judge on May 8, 1978 of the order of dismissal of March 28,
1978 and thereby reviving or reinstating Criminal Case No. C-1061 places the petitioner twice in
jeopardy for the offense The respondent Judge therefore committed a grave abuse of discretion in
issuing the order of May 8, 1978 setting aside the order of dismiss issued on March 28, 1978.

WHEREFORE, THE PETITION IS HEREBY GRANTED AND THE CHALLENGED ORDER

DATED MAY 8, 1978, IS HEREBY SET ASIDE AS NULL AND VOID. NO COSTS.

SO ORDERED

Teehankee (Chairman), Fernandez, Guerrero, De Castro and Melencio-Herrera, concur.

 FIRST DIVISION
G.R. No. 173421 December 14, 2006
OSCAR Z. BENARES,1 petitioner,
vs.
JOSEPHINE LIM, respondents.
DECISION
YNARES-SANTIAGO, J.:
This petition for review assails the May 25, 2005 Decision2 of the Court of Appeals setting aside
the Resolution3dated May 5, 2004 and Order4 dated July 9, 2004 of the Regional Trial Court (RTC)
of Makati City, Branch 132, which set aside the Orders dated June 11, 2002 5 and December 26,
20026 of the Metropolitan Trial Court (MeTC) of Makati City granting respondent's motion for
reconsideration of the Order dismissing the complaint for estafa for failure to prosecute. Also
assailed is the July 7, 2006 Resolution7 denying petitioner's motion for reconsideration.
The following facts are undisputed:
Petitioner Oscar Beñares was accused of estafa arising from two contracts of sale executed in
1976 where he sold two parcels of land to respondent. Records show that after respondent had
fully paid the amortizations and after the deed of absolute sale was issued, petitioner mortgaged
the same parcels of land to the Bank of Philippine Islands. Thus, when respondent demanded
delivery of the properties, petitioner failed to comply, thus respondent was compelled to file a case
for estafa against petitioner.
Trial thereafter ensued. After the prosecution presented its last witness, it was given 15 days to
formally offer its evidence.8 However, the prosecution did not make any formal offer of evidence,
hence petitioner filed a motion praying that the prosecution's submission of formal offer of
evidence be deemed waived and the case dismissed for lack of evidence. 9 Despite receipt of
notice of petitioner's motion, respondent and her counsel failed to attend the hearing on the motion
set on December 4, 2001.
On January 28, 2002, the MeTC issued an Order10 giving the prosecution another 15 days within
which to formally offer its evidence which petitioner opposed. 11 On February 27, 2002, the MeTC
issued the following Order:
In view of the oral manifestation of counsel for the accused, showing that the private
prosecutor received the Order of this Court dated January 28, 2002 on February 7, 2002
giving them an extension of another fifteen days to file their formal offer of evidence, yet
failed to do so; the court finds reason to deny the submission of formal offer of evidence.
Acting on the Motion of the accused for the dismissal of this case, for failure of the
prosecution to prosecute this case, the motion is granted. This case is hereby ordered
DISMISSED.
SO ORDERED.12
Respondent moved to reconsider the order of dismissal and prayed for the admission of Formal
Offer of Documentary Exhibits,13 claiming that she had difficulty securing documents from the
court which were marked during trial. Petitioner opposed the motion invoking his right against
double jeopardy.14
On June 11, 2002, the MeTC issued an Order which states in part:
[I]n line with the long standing policy of the Courts to decide issues based on the
substantial merits of the case and not simply dismiss cases on technical defects, the
Court finds Merit in the Motion for Reconsideration filed by the Prosecution.
Effectively, the Order of the Court dated January 28, 200215 is set aside and the case is
reinstated in the dockets of the Court. The Prosecution's Formal Offer of Evidence is
admitted by the Court and the accused is given 15 days from receipt of this Order to filed
(sic) their Comment or Opposition thereto. Thereafter, the incident is deemed submitted
for resolution.16
Petitioner's Motion for Reconsideration17 was denied, hence a petition18 for certiorari was filed with
the RTC. In granting the petition, the RTC noted that the MeTC Order dismissing the case for
failure to prosecute "had the effect of an acquittal" which is "a bar to another prosecution for the
offense charged."19 The RTC denied respondent's motion for reconsideration.
Alleging grave abuse of discretion, respondent filed a petition20 for certiorari with the Court of
Appeals arguing that there was no failure to prosecute and that double jeopardy did not attach as
a result of the dismissal thereof. The Court of Appeals reversed the RTC's Resolution. It held that
contrary to the findings of the RTC, there was no double jeopardy because the order dismissing
the case for failure to prosecute had not become final and executory due to the timely motion for
reconsideration filed by respondent. The appellate court also held that petitioner's right to speedy
trial was not violated when respondent failed to formally offer her evidence within the period
required by the trial court. The Court of Appeals thus ordered the MeTC to set the case for further
trial. Petitioner moved for reconsideration but was denied, hence this petition on the following
grounds:
I.
 THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN HOLDING THAT
THE RIGHT OF THE PETITIONER TO SPEEDY TRIAL WAS NOT VIOLATED.
II.
THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN NOT HOLDING
THAT THE DISMISSAL OF THE CASE BY MTC-61 WAS A DISMISSAL ON THE
MERITS WHICH RESULTED IN THE ACQUITTAL OF THE PETITIONER.
III.
THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS AND REVERSIBLE
ERROR IN NOT APPLYING THE RULE ON DOUBLE JEOPARDY.21
The issue for resolution is whether the MeTC's Order dismissing the case for failure to prosecute
amounted to an acquittal which gave petitioner the right to invoke double jeopardy.
Petitioner argued that the six months' delay by the prosecution to formally offer its evidence is
vexatious, capricious and oppressive; that the private prosecutor's claim that the documents could
not be found is untrue considering that no manifestation was filed in court stating that fact; that the
documents were available as early as January 2002 but the prosecution never asked for
extension, nor explained the delay in filing its formal offer despite two orders to do so.
Petitioner further argued that under Section 3, Rule 17 of the Rules of Court, failure to comply with
a court order without justifiable reason may cause the dismissal of the case, which shall have the
effect of an adjudication on the merits unless otherwise stated by the court.
Respondent, on the other hand, asserted that it was petitioner who delayed the proceedings in the
instant case, when he questioned the finding of probable cause against him before the
Department of Justice, the Court of Appeals and the Supreme Court, which were all denied; and
that the delay in the filing of a formal offer of evidence is justified because as noted by the MeTC,
the records were missing.
Respondent likewise insisted that even without documentary evidence, testimonial evidence were
presented against petitioner; that petitioner admitted the documentary evidence formally offered.
Respondent refuted petitioner's invocation of double jeopardy because the case was dismissed
with his express consent.
The petition is without merit.
Section 7, Rule 117 of the Rules of Court states in part:
SEC. 7. Former conviction or acquittal; double jeopardy.—When an accused has been
convicted or acquitted, or the case against him dismissed or otherwise terminated without
his express consent by a court of competent jurisdiction, upon a valid complaint or
information or other formal charge sufficient in form and substance to sustain a conviction
and after the accused had pleaded to the charge, the conviction or acquittal of the
accused or the dismissal of the case shall be a bar to another prosecution for the offense
charged, or for any attempt to commit the same or frustration thereof, or for any offense
which necessarily includes or is necessarily included in the offense charged in the former
complaint or information.
Double jeopardy attaches only (1) upon a valid indictment, (2) before a competent court, (3) after
arraignment, (4) when a valid plea has been entered, and (5) when the defendant was convicted
or acquitted, or the case was dismissed or otherwise terminated without the express consent of
the accused.22
In the instant case, there is no question as to the presence of the first four elements. As to the last
element, there was yet no conviction, nor an acquittal on the ground that petitioner's guilt has not
been proven beyond reasonable doubt,23 but the dismissal of the case was based on failure to
prosecute.
A dismissal with the express consent or upon motion of the accused does not result in double
jeopardy, except in two instances, to wit: (1) the dismissal is based on insufficiency of evidence or
(2) the case is dismissed for violation of the accused's right to speedy trial. 24
Petitioner's claim that the prosecution's delay in filing its formal offer of evidence violated his right
to speedy trial is not well taken.
The prosecution's delay in the filing of its formal offer of evidence in this case cannot be
considered vexatious, capricious, and oppressive. It appears that there was justifiable reason for
the prosecution's failure to formally offer its evidence on time, i.e., the documents which were
previously marked in court were misplaced. As correctly ruled by the Court of Appeals:
Truly, the prosecution had failed twice to file the formal offer of evidence within the fifteen
(15) day period set by the MeTC. Once was due to the fault of the MeTC judge who
expressly admitted in his order that the documentary exhibits necessary for the formal
offer of evidence were lost in his office. Thus, the prosecution was unable to submit its
formal offer of evidence on time. In short, there was actually only one unjustified delay in
the filing of formal offer of evidence in the proceedings below, which cannot be described
as vexatious, capricious or oppressive. There is no showing that the criminal case was
unreasonably prolonged nor there was deliberate intent on the part of the petitioner to
cause delay in the proceedings resulting to serious and great prejudice affecting the
substantial rights of the accused.25
Indeed, delay is not a mere mathematical computation of the time involved. Each case must be
decided upon the facts peculiar to it. The following factors must be considered and balanced: the
length of the delay, the reasons for such delay, the assertion or failure to assert such right by the
accused, and the prejudice caused by the delay.26 In the instant case, the totality of the
circumstances excuses the delay occasioned by the late filing of the prosecution's formal offer of
evidence. Since the delay was not vexatious or oppressive, it follows that petitioner's right to
speedy trial was not violated, consequently he cannot properly invoke his right against double
jeopardy.27
Petitioner's reliance in People v. Cloribel28 is misplaced because in said case, trial commenced
almost four years from the date of filing of the complaint. Such delay, the Court held, can hardly be
ignored or disregarded by any fair standard.

Neither can petitioner rely on the doctrine that when a judge dismisses a case for failure to
prosecute, the termination amounts to an acquittal as the prosecution will fail to prove the case
when the time therefor comes. In the instant case, testimonial evidence were presented against
petitioner. Thus, even without documentary evidence, his guilt or innocence may be proven.
Second, petitioner appears to have admitted the genuineness and due execution of respondent's
documentary evidence, thus the prosecution need not even present such documents in view of his
admission. With or without these documents, therefore, the prosecution has enough evidence left
for the trial court's determination of his guilt. Thus –

We agree with the OSG's contention that the trial court exceeded its authority when it
dismissed the case without giving the prosecution a right to be heard, hence there was a
violation of due process. Further, the failure of the prosecution to offer its exhibits is
not a ground to dismiss the case. Even without any documentary exhibits, the
prosecution could still prove its case through the testimonies of its witnesses.
Thus, we find that when the trial court reconsidered its order of dismissal, it merely
corrected itself.29

WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals setting aside the
Resolution dated May 5, 2004 and Order dated July 9, 2004 of the Regional Trial Court of Makati
City, Branch 132, as well as its July 7, 2006 Resolution denying petitioner's motion for
reconsideration, are AFFIRMED.

SO ORDERED.

Austria-Martinez, Callejo, Sr., and Chico-Nazario, JJ., concur.

Panganiban, C.J. (Chairperson), Retired as of December 7, 2006.
 Republic of the Philippines
SUPREME COURT
FIRST DIVISION
G.R. No. 151912 September 26, 2005
PHILIPPINE SAVINGS BANK, Petitioners,
vs.
SPOUSES PEDRITO BERMOY and GLORIA BERMOY, Respondent.
DECISION
CARPIO, J.:
The Case
1 2
This is a petition for review of the Decision dated 14 November 2001 of the Court of Appeals
denying the petition for certiorari filed by petitioner and its Resolution dated 24 January 2002
denying reconsideration.
The Facts
Based on a complaint filed by petitioner Philippine Savings Bank ("petitioner"), respondents
Pedrito and Gloria Bermoy ("respondent spouses") were charged with estafa thru falsification of a
public document in the Regional Trial Court, Manila, Branch 38 ("trial court"). The Information,
docketed as Criminal Case No. 96-154193, alleged:
That on or about May 11, 1994, and for sometime prior and subsequent thereto, in the City of
Manila, Philippines, the said accused, being then private individuals, conspiring and confederating
together and mutually helping each other, did then and there willfully, unlawfully and feloniously
defraud the Philippine Savings Bank a banking institution, duly organized and existing under
Philippine Laws xxx, thru falsification of a public document in the following manner, to wit: the said
accused prepared, forged and falsified or caused to be prepared, forged and falsified an owner’s
copy of Transfer Certificate of Title No. 207434, which is an imitation of, and similar to the Transfer
Certificate of Title No. 207434 issued by the Regist[er] of Deeds for the City of Manila, and
therefore, a public document, by then and there typing on the blank spaces thereon the title no.,
description of a parcel of land containing an area of 350 square meters, located in Malate, this
City, the names of the accused as the registered owners thereof, and then signing, falsifying and
simulating the signature of "ALICIA D. GANZON", Register of Deeds, appearing on the lower right
hand portion of the 1st page of said document; the name "EDGARDO C. CASTRO", Actg. Deputy,
appearing on the right hand middle portion of the 3rd page, and imprinting thereon several entries
purportedly showing that the annotation thereon was a mortgage in favor A. C. Aguila and Sons,
which was cancelled on February 17, 1994, thereby making it appear, as it did appear, that
accused are the registered owners of the said property, under said TCT No. 207434 which
purportedly is the owner’s copy of said title, when in truth and in fact, as the said accused fully well
knew, the same is an outright forgery, as the owner’s duplicate copy of said Transfer Certificate of
Title No. 207434 is in possession of the spouses EDGAR and ELVIRA ALAMO by reason of the
previous mortgage of the said property in favor of the latter since February 17, 1994 and which
was later sold to them on June 19, 1995; that once the said document has been forged and
falsified in the manner above set forth, the said accused presented the same to the Philippine
Savings Bank and used the said title as collateral in obtaining, as in fact, they did obtain a loan in
the sum of ₱1,000,000.00 from the said bank, and once in possession of the said amount of
₱1,000,000.00 with intent to defraud, they willfully, unlawfully and feloniously misappropriated,
misapplied and converted the same to their own personal use and benefit, to the damage and
prejudice of the said Philippine Savings Bank in the aforesaid amount of ₱1,000,000.00, Philippine
Currency.3
Upon arraignment, respondent spouses pleaded "not guilty" to the charge.
The trial court set the pre-trial on 11 June 1997. After the hearing on that day, the trial court issued
the following Order ("11 June 1997 Order"):
When the case was called for hearing, Atty. Maria Concepcion Puruganan, who entered her
appearance as private prosecutor and Atty. Albino Achas, defense counsel, appeared and upon
their stipulation, they admitted the jurisdiction of the Court and the identities of the accused.
Upon motion of Atty. Puruganan, private prosecutor, joined by public prosecutor Antonio Israel,
without objection from Atty. Achas, let the initial hearing for the reception of the evidence for the
prosecution be set on June 18, 1997 at 8:30 a.m., as previously scheduled.4 (Emphasis supplied)
The minutes of the hearing, which respondent spouses signed, bore the following handwritten
notation under the heading "remarks": "Postponed. Upon joint agreement of counsels." 5 This was
the only notation made under "remarks." Nowhere in the one-page minutes of the hearing did it
state that any of the accused made any stipulation or admission.
During the hearings of 18 June 1997 and 3 September 1997, the prosecution presented the
testimonies of Felisa Crisostomo ("Crisostomo"), manager of petitioner’s Libertad Manila Branch,
and one Hermenigildo Caluag ("Caluag"), also an employee of petitioner. Crisostomo testified that
she came to know respondent spouses when they applied for a loan in February 1994.
Crisostomo stated that respondent spouses presented to her Transfer Certificate Title No. 207434
("TCT No. 207434") issued in their name over a parcel of land in Malate, Manila ("Malate lot")
which they offered as collateral for the loan. Crisostomo further stated after the approval of
respondent spouses’ loan application, respondent spouses executed in her presence a real estate
mortgage of the Malate lot in favor of petitioner as security for their loan. Caluag testified that he
was tasked to register petitioner’s certificate of sale over the Malate lot6 with the Register of Deeds
of Manila but the latter refused to do so because the Malate lot had been mortgaged and sold to
the spouses Edgar and Elvira Alamo.7
After presenting the testimonies of Crisostomo and Caluag, the prosecution rested its case.
Instead of presenting its evidence, the defense filed, with leave of court, a demurrer to evidence
on the ground that the prosecution failed to identify respondent spouses as the accused in
Criminal Case No. 96-154193. The prosecution, through the private prosecutor, opposed the
motion claiming that Crisostomo and Calang had identified respondent spouses. The prosecution
also pointed out that as borne by the 11 June 1997 Order, respondent spouses stipulated on their
identity during the pre-trial.8
The Ruling of the Trial Court
In its Order of 21 April 1998 ("21 April 1998 Order"), the trial court granted respondent spouses’
motion, dismissed Criminal Case No. 96-154193, and acquitted respondent spouses. The 21 April
1998 Order reads:
The basic issues to resolve here boils down on (sic) the determination of whether the accused
were identified by the prosecution witnesses as the perpetrators of the act complained of during
the trial of the case and whether they admitted their identities as the accused named in the
information.
After carefully going over the length and breadth of the testimonies of the two prosecution
witnesses, there is nothing in the transcript which would slightly indicate that they identified the
accused as the persons who obtained a loan from the Philippine Savings Bank and executed the
corresponding documents. The identification of an accused [by the witness] may be made by
pointing to him directly in open court xxx or [by] stepping down from the stand and tapping his
shoulder. If the accused is not present during the trial, his identification may be effected through
his pictures attached to the bail bond or some other means. The identification of an accused as
the perpetrator of an offense is essential in the successful prosecution of criminal cases. By the
accused’s entering a negative plea to the allegations in the information, he denies that he
committed the offense. He cannot even be compelled to give his name during the arraignment and
for which the Court may enter a plea of not guilty for him.
As to the stipulation of facts regarding the admission of the jurisdiction of the court and the
identities of the accused, a cursory reading of the Order of June 11, 1997 reveals that their
express conformity to the stipulation of facts entered into by their counsel with the private
prosecutor was never asked of them. Considering that the admission of the identities of the
accused as the perpetrators of the crime here charged is a matter which adversely affects their
substantial rights, such admission must have to involve their express concurrence or consent
thereto. This consent is manifested in their signing the pre-trial order containing such admissions.
As to the minutes of the proceedings of June 11, 1997, suffice it to state that there is nothing to it
(sic) which would even hint that a stipulation of facts ever took place.
WHEREFORE, for insufficiency of evidence, let this case be, as the same is hereby, DISMISSED
and accused Pedrito Bermoy and Gloria Visconde [Bermoy] are, as they are hereby, acquitted of
the crime charged, with costs de oficio.9
The prosecution, again through the private prosecutor, sought reconsideration but the trial court
denied its motion in the Order of 28 May 1998.
Petitioner filed a petition for certiorari with the Court of Appeals. The Solicitor General joined the
petition.
The Ruling of the Court of Appeals
In its Decision dated 14 November 2001, the Court of Appeals, as earlier stated, denied the
petition. It held:
In support of the demurrer to evidence, the defense counsel argued that neither of the witnesses
presented by the prosecution was able to identify the accused as allegedly those who committed
the crime they were prosecuted for.
xxx
Petitioner, however, argues that the testimonies of the two witnesses they presented identified the
accused spouses as the perpetrators of the crime. xxx
We are not convinced. The xxx testimony proves only one thing: that a couple purporting to be the
Bermoy spouses presented themselves to the Bank and obtained the loan. Whether they are the
same husband and wife accused in this case for Estafa is a different story. The failure of the
prosecution to point in open court to the persons of the accused as the same persons who
presented themselves to the Bank is a fatal omission. They could be impostors who, armed with
the fake title, presented themselves to the Bank as the persons named in the title. The prosecution
goofed. Had the witnesses been asked to point to the two accused as the same couple who
appeared before the Bank to obtain the loan, there would have been no doubt on their criminal
liability.
Petitioner further argued that the law itself does not prescribe the ways to identify the accused, xxx
[.]
True, there is no standard form provided by law [for] identifying the accused. Jurisprudence and
trial practice show that the accused is usually identified by the witnesses, prompted by the
counsel, by either pointing at him or stepping down the witness’ stand and tapping him on the
shoulder, or by means of photographs. The trial court correctly pointed this out. How else can
identification be done, it may be asked.
The petitioner also argues that "the identities of private [respondents] were clearly established as
a result of the stipulation by and between the prosecution (thru the private prosecutor) and the
defense." It insists that the Order dated June 11, 1997, is sufficient admission by the accused as
to their identities, and [was] allegedly signed by them and their counsel as required under Section
2 of Rule 118 of the Rules on Criminal Procedure. There is no merit to this argument. If ever
stipulations were made on June 11, 1997, these must be made in writing, which must be signed
by the accused and counsel as their conformity to such stipulations. The records, however, show
that the Order dated June 11, 1997, merely stated what transpired during that particular hearing
and what the counsels signed was the minutes for the same hearing. Hence, the identities of the
accused were not stipulated upon for failure to comply with the requirements under the Rules of
Court. The trial court correctly ruled that "there [was] nothing xxx which would even hint that a
stipulation of facts ever took place."
xxx
In fine, we are more than convinced that the trial court was correct in granting the demurrer to
evidence for insufficiency of evidence on account of lack of proper identification of the accused.
But even assuming that the trial court erred, the acquittal of the accused can no longer be
reviewed either on appeal or on petition for certiorari for it would violate the right of the accused
against double jeopardy. xxx
In the case at bench, it is clear that this petition seeks to review the judgment of the trial court,
which already had jurisdiction over the subject matter and of the persons of this case. The trial
court had jurisdiction to resolve the demurrer to evidence filed by the accused, either by denying it
or by dismissing the case for lack of sufficient evidence. If the demurrer is granted, resulting [in]
the dismissal of the criminal case and the acquittal of the accused, this can no longer be reviewed
unless it can be shown that the trial court committed grave abuse of discretion amounting to
excess or lack of jurisdiction. In this case, assuming the trial court committed an error, the
petitioner has not shown that it committed grave abuse of discretion amounting to lack [or] excess
xxx of jurisdiction. The error, if any, is merely an error of judgment.10
Petitioner sought reconsideration claiming that the Court of Appeals contradicted itself when it
held, on one hand, that the trial court’s error did not amount to grave abuse of discretion and
stated, on the other hand, that any error committed by the trial court can no longer be reviewed
without violating respondent spouses’ right against double jeopardy. Petitioner also contended, for
the first time, that it is the trial court’s duty to insure that the accused sign the pre-trial order or
agreement embodying respondent spouses’ admissions and that its failure to do so should not be
taken against the prosecution.
The Court of Appeals denied petitioner’s motion in the Resolution of 24 January 2002 which
reads:
The petitioner seems to have misunderstood our ruling regarding the issue on double jeopardy in
connection with [the] petition for certiorari. Petitioner argues that our ruling has been contradictory
for saying on one hand that "even assuming that the trial court erred, the acquittal of the accused
can no longer be reviewed either by appeal or on petition for certiorari for it would violate the right
of the accused against double jeopardy" while saying on the other hand "assuming that trial court
committed an error, the petitioner has not shown that it committed grave abuse of discretion
amounting to lack excess (sic) or excess of jurisdiction." Petitioner asks: "Which is which then?" –
meaning, it has not understood what a petition for certiorari is for. If the petitioner read the
decision carefully, in between the above-quoted statements of the decision is the case of People
v. Bans, G.R. No. 104147, December 8, 1994, 238 SCRA 48, where the Supreme Court explicitly
explained that "review of the sufficiency of the evidence and of the propriety of the acquittal of the
accused [as a result of the grant of the demurrer to evidence] lies outside the function of
certiorari." True, a petition for certiorari alleges an error of the trial court but nowhere in our
decision did it mention that the trial court in this case committed an error. We merely made an
assumption, without saying that there was an error committed by the trial court, to make a point.
We meant that if the trial court did commit an error in ruling that there was insufficient evidence
resulting in the acquittal of the accused, such error can no longer be reviewed since it would be
one of judgment, which is not within the ambit of a certiorari. xxx
The petitioner again asks us: "Who has the duty of requiring the accused to sign the pre-trial
order, the prosecution or the trial court itself?" It answers that it is the trial court because it "has the
sole and exclusive duty of seeing to it that all requirements in such proceedings be duly complied
with x x x and that duty includes the act of requiring or compelling the accused to sign the pre-trial
order, [hence] it is plainly fundamentally erroneous to suppose that such duty can be delegated by
the trial court to the prosecution." The petitioner further argues that "the respondent Court was
right off ousted of jurisdiction when it deliberately and without legal basis refused to consider the
stipulation of facts made by the parties in the eventual pre-trial order x x x despite the absence of
signature of the accused in the said pre-trial order."
The arguments of the petitioner are baseless. Nowhere in Rule 118 on Pre-Trial on the Revised
Rules of Rules of Criminal Procedure does it require the prosecution or the accused to sign the
pre-trial order. All that is required for the trial court to do is to hold a pre-trial conference and issue
an order reciting the actions taken, the facts stipulated upon by the parties, and evidence marked.
And if there were any agreements or admissions made or entered into by the parties during the
pre-trial conference, these should be reduced in writing and signed by the accused and his or her
counsel. Otherwise, such agreements or admissions may not be used against the accused. xxx
Hence, it is not incumbent upon the trial court to require the parties to sign the pre-trial order to
make the agreements and admissions as evidence against the accused. If the parties made such
admission as to the identities of the accused in this case, it is the look-out of the counsels,
particularly the prosecutor, to require the accused to sign. Why should the trial court remind the
counsels what to do? If the private prosecutor wanted such admission as an evidence against the
accused, then she should have required the admission in writing [sic] and signed by the accused
and their counsel as required by the rules. But, as the records show, all that was signed was the
minutes of the pre-trial conference. As already discussed in our decision, the trial court committed
no error on this point.11
Hence, this petition.
The Issues
Petitioner alleges that the Court of Appeals erred in:
I. HOLDING THAT SUPPOSEDLY IT IS NOT THE DUTY OF THE TRIAL COURT TO REQUIRE
THE ACCUSED TO SIGN THE PRE-TRIAL ORDER;
II FAILING TO CONSIDER THE MATTERS STATED IN THE 11 JUNE 1997 PRE-TRIAL
ORDER AS STIPULATIONS MADE BY THE PARTIES AND SHOULD THUS BE BINDING ON
THEM;
III. REFUSING TO RECOGNIZE THE FACT THAT THE ACCUSED WERE SUFFICIENTLY
IDENTIFIED DURING THE TRIAL BY THE WITNESS OF THE PROSECUTION; [AND]
IV. HOLDING THAT DOUBLE JEOPARDY HAD ALLEGEDLY ATTACHED IN THE CASE. 12
In his Memorandum, the Solicitor General joins causes with petitioner. The Solicitor General
contends that the trial court’s dismissal of Criminal Case No. 96-154193 was tainted with grave
abuse of discretion thus, double jeopardy does not apply in this case.13
The Ruling of the Court
The petition has no merit.
On Whether Double Jeopardy is
Applicable Here
Paragraph 1, Section 7, Rule 117 ("Section 7") of the 1985 Rules on Criminal Procedure 14 on
double jeopardy provides:
Former conviction or acquittal; double jeopardy. — When an accused has been convicted or
acquitted, or the case against him dismissed or otherwise terminated without his express consent
by a court of competent jurisdiction, upon a valid complaint or information or other formal charge
sufficient in form and substance to sustain a conviction and after the accused had pleaded to the
charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to
another prosecution for the offense charged, or for any attempt to commit the same or frustration
thereof, or for any offense which necessarily includes or is necessarily included in the offense
charged in the former complaint or information.
For double jeopardy to apply, Section 7 requires the following elements in the first criminal case:
(a) The complaint or information or other formal charge was sufficient in form and substance to
sustain a conviction;
(b) The court had jurisdiction;
(c) The accused had been arraigned and had pleaded; and
(d) He was convicted or acquitted or the case was dismissed without his express consent. 15
On the last element, the rule is that a dismissal with the express consent or upon motion of the
accused does not result in double jeopardy. However, this rule is subject to two exceptions,
namely, if the dismissal is based on insufficiency of evidence or on the denial of the right to
speedy trial.16 A dismissal upon demurrer to evidence falls under the first exception. 17 Since such
dismissal is based on the merits, it amounts to an acquittal.18
As the Court of Appeals correctly held, the elements required in Section 7 were all present in
Criminal Case No. 96-154193. Thus, the Information for estafa through falsification of a public
document against respondent spouses was sufficient in form and substance to sustain a
conviction. The trial court had jurisdiction over the case and the persons of respondent spouses.
Respondent spouses were arraigned during which they entered "not guilty" pleas. Finally, Criminal
Case No. 96-154193 was dismissed for insufficiency of evidence. Consequently, the right not to
be placed twice in jeopardy of punishment for the same offense became vested on respondent
spouses.
The Extent of the Right Against
Double Jeopardy
The right against double jeopardy can be invoked if (a) the accused is charged with the same
offense in two separate pending cases, or (b) the accused is prosecuted anew for the same
offense after he had been convicted or acquitted of such offense, or (c) the prosecution appeals
from a judgment in the same case.19 The last is based on Section 2, Rule 122 of the Rules of
Court20 which provides that "[a]ny party may appeal from a final judgment or order, except if the
accused would be placed thereby in double jeopardy."
Here, petitioner seeks a review of the 21 April 1998 Order dismissing Criminal Case No. 96-
154193 for insufficiency of evidence. It is in effect appealing from a judgment of acquittal. By
mandate of the Constitution21 and Section 7, the courts are barred from entertaining such appeal
as it seeks an inquiry into the merits of the dismissal. Thus, we held in an earlier case:
In terms of substantive law, the Court will not pass upon the propriety of the order granting the
Demurrer to Evidence on the ground of insufficiency of evidence and the consequent acquittal of
the accused, as it will place the latter in double jeopardy. Generally, the dismissal of a criminal
case resulting in acquittal made with the express consent of the accused or upon his own motion
will not place the accused in double jeopardy. However, this rule admits of two exceptions,
namely: insufficiency of evidence and denial of the right to a speedy trial xxx In the case before us,
the resolution of the Demurrer to Evidence was based on the ground of insufficiency of evidence
xxx Hence, it clearly falls under one of the admitted exceptions to the rule. Double jeopardy
therefore, applies to this case and this Court is constitutionally barred from reviewing the order
acquitting the accused.22 (Emphasis supplied)
The strict rule against appellate review of judgments of acquittal is not without any basis. As the
Court explained in People v. Velasco23 —
The fundamental philosophy highlighting the finality of an acquittal by the trial court cuts deep into
"the humanity of the laws and in a jealous watchfulness over the rights of the citizen, when
brought in unequal contest with the State x x x x" Thus, Green [v. United States] expressed the
concern that "(t)he underlying idea, one that is deeply ingrained in at least the Anglo-American
system of jurisprudence, is that the State with all its resources and power should not be allowed to
make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to
embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety
and insecurity, as well as enhancing the possibility that even though innocent, he may be found
guilty."
It is axiomatic that on the basis of humanity, fairness and justice, an acquitted defendant is entitled
to the right of repose as a direct consequence of the finality of his acquittal. The philosophy
underlying this rule establishing the absolute nature of acquittals is "part of the paramount can no longer be rectified on appeal by the prosecution no matter how obvious the error may
importance criminal justice system attaches to the protection of the innocent against wrongful be xxx. (Emphasis supplied)
conviction." The interest in the finality-of-acquittal rule, confined exclusively to verdicts of not
guilty, is easy to understand: it is a need for "repose," a desire to know the exact extent of one’s On the Other Errors Assigned by Petitioner
liability. With this right of repose, the criminal justice system has built in a protection to insure that
the innocent, even those whose innocence rests upon a jury’s leniency, will not be found guilty in a
subsequent proceeding. The Court will no longer rule on the other errors assigned by petitioner — on who has the
responsibility to insure that the pre-trial agreement is signed by the accused, on the effect of the
11 June 1997 Order, and on whether respondent spouses were identified during the trial. All these
Related to his right of repose is the defendant’s interest in his right to have his trial completed by a entail an inquiry into the merits of the 21 April 1998 Order, which, as earlier stated, cannot be
particular tribunal. xxx [S]ociety’s awareness of the heavy personal strain which the criminal trial done without violating respondent spouses’ right against double jeopardy.
represents for the individual defendant is manifested in the willingness to limit Government to a
single criminal proceeding to vindicate its very vital interest in enforcement of criminal laws. The
WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 14 November 2001 and
ultimate goal is prevention of government oppression; the goal finds its voice in the finality of the
the Resolution dated 24 January 2002 of the Court of Appeals.
initial proceeding. As observed in Lockhart v. Nelson, "(t)he fundamental tenet animating the
Double Jeopardy Clause is that the State should not be able to oppress individuals through the
abuse of the criminal process." Because the innocence of the accused has been confirmed by a SO ORDERED.
final judgment, the Constitution conclusively presumes that a second trial would be unfair.
ANTONIO T. CARPIO
On Petitioner’s Claim that the Trial Court’s

Dismissal of Criminal Case No. 96-154193 was Void

Petitioner, together with the Solicitor General, contends that the Court can inquire into the merits
of the acquittal of respondent spouses because the dismissal of Criminal Case No. 96-154193
was void. They contend that the trial court acted with grave abuse of discretion amounting to lack
or excess of jurisdiction when it disregarded evidence allegedly proving respondent spouses’
identity.24

The contention has no merit. To be sure, the rule barring appeals from judgments of acquittal
admits of an exception. Such, however, is narrowly drawn and is limited to the case where the trial
court "act[ed] with grave abuse of discretion amounting to lack or excess of jurisdiction due to a
violation of due process i.e. the prosecution was denied the opportunity to present its case xxx
or that the trial was a sham xxx."25

None of these circumstances exists here. There is no dispute that the prosecution, through
petitioner’s counsel as private prosecutor, was afforded its day in court. Neither is there any
question that the proceedings in the trial court were genuine. What petitioner points to as basis for
the trial court’s alleged grave abuse of discretion really concerns its appreciation of the evidence.
However, as the Court of Appeals correctly held, any error committed by the trial court on this
point can only be an error of judgment and not of jurisdiction. What this Court held in Central
Bank v. Court of Appeals26 applies with equal force here —

Section 2 of Rule 122 of the Rules of Court provides that "the People of the Philippines cannot
appeal if the defendant would be placed thereby in double jeopardy." The argument that the
judgment is tainted with grave abuse of discretion and therefore, null and void, is flawed because
whatever error may have been committed by the lower court was merely an error of judgment and
not of jurisdiction. It did not affect the intrinsic validity of the decision. This is the kind of error that
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-3580 March 22, 1950
CONRADO CARMELO, petitioner-appellant,
vs.
THE PEOPLE OF THE PHILIPPINES and THE COURT OF FIRST INSTANCE OF
RIZAL, respondent-appellees.
Jose A. Fojas for petitioner.
First Assistant Solicitor General Roberto A. Gianzon and Solicitor Martiniano P. Vivo for
respondents.
MORAN, C.J.:
Petitioner Conrado Melo was charged in the Court of First Instance of Rizal, on December 27,
1949, with frustrated homicide, for having allegedly inflicted upon Benjamin Obillo, with a kitchen
knife and with intent to kill, several serious wounds on different parts of the body, requiring
medical attendance for a period of more than 30 days, and incapacitating him from performing his
habitual labor for the same period of time. On December 29, 1949, at eight o'clock in the morning,
the accused pleaded not guilty to the offense charged, and at 10:15 in the evening of the same
day Benjamin Obillo died from his wounds. Evidence of death was available to the prosecution
only on January 3, 1950, and on the following day, January 4, 1950, an amended information was
filed charging the accused with consummated homicide. The accused filed a motion to quash the
amended information alleging double jeopardy, motion that was denied by the respondent court;
hence, the instant petition for prohibition to enjoin the respondent court from further entertaining
the amended information.
Brushing aside technicalities of procedure and going into the substance of the issues raised, it
may readily be stated that amended information was rightly allowed to stand. Rule 106, section
13, 2d paragraph, is as follows:
If it appears at may time before the judgment that a mistake has been made in charging
the proper offense, the court may dismiss the original complaint or information and order
the filing of a new one charging the proper offense, provided the defendant would not be
placed thereby in double jeopardy, and may also require the witnesses to give bail for
their appearance at the trial.
Under this provision, it was proper for the court to dismiss the first information and order the filing
of a new one for the treason that the proper offense was not charged in the former and the latter
did not place the accused in a second jeopardy for the same or identical offense.
"No person shall be twice put in jeopardy of punishment for the same offense," according to article
III, section 1 (20) of our constitution. The rule of double jeopardy had a settled meaning in this
jurisdiction at the time our Constitution was promulgated. It meant that when a person is charged
with an offense and the case is terminated either by acquittal or conviction or in any other manner
without the consent of the accused, the latter cannot again be charged with the same or identical
offense. This principle is founded upon the law of reason, justice and conscience. It is embodied in
the maxim of the civil law non bis in idem, in the common law of England, and undoubtedly in
every system of jurisprudence, and instead of having specific origin it simply always existed. It
found expression in the Spanish Law and in the Constitution of the United States and is now
embodied in our own Constitution as one of the fundamental rights of the citizen.
It must be noticed that the protection of the Constitution inhibition is against a second jeopardy for
the same offense, the only exception being, as stated in the same Constitution, that "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." The phrase same offense, under the general rule, has
always been construed to mean not only the second offense charged is exactly the same as the
one alleged in the first information, but also that the two offenses are identical. There is identity
between the two offenses when the evidence to support a conviction for one offense would be
sufficient to warrant a conviction for the other. This so called "same-evidence test" which was
found to be vague and deficient, was restated by the Rules of Court in a clearer and more
accurate form. Under said Rules there is identity between two offenses not only when the second
offense is exactly the same as the first, but also when the second offense is an attempt to commit
the first or a frustration thereof, or when it necessary includes or is necessarily included in the
offense charged in the first information. (Rule 113, sec. 9; U.S. vs. Lim Suco, 11 Phil., 484; U. S.
vs. Ledesma, 29 Phil., vs. Martinez, 55 Phil., 6.) In this connection, an offense may be said to
necessarily include another when some of the essential ingredients of the former as alleged in the
information constitute the latter. And vice-versa, an offense may be said to be necessarily included
in another when all the ingredients of the former constitute a part of the elements constituting the
latter (Rule 116, sec. 5.) In other words, on who has been charged with an offense cannot be
again charged with the same or identical offense though the latter be lesser or greater than the
former. "As the Government cannot be with the highest, and then go down step to step, bringing
the man into jeopardy for every dereliction included therein, neither can it begin with the lowest
and ascend to the highest with precisely the same result." (People vs. Cox, 107 Mich., 435, quoted
with approval in U. S. vs. Lim Suco, 11 Phil., 484; see also U. S. vs. Ledesma, 29 Phil., 431 and
People vs. Martinez, 55 Phil., 6, 10.)
This rule of identity does not apply, however when the second offense was not in existence at the
time of the first prosecution, for the simple reason that in such case there is no possibility for the
accused, during the first prosecution, to be convicted for an offense that was then inexistent. Thus,
where the accused was charged with physical injuries and after conviction the injured person dies,
the charge for homicide against the same accused does not put him twice in jeopardy. This is the
ruling laid down by the Supreme Court of the United States in the Philippines case of Diaz vs. U.
S., 223 U. S. 442, followed by this Court in People vs. Espino, G. R. No. 46123, 69 Phil., 471, and
these two cases are similar to the instant case. Stating it in another form, the rule is that "where
after the first prosecution a new fact supervenes for which the defendant is responsible, which
changes the character of the offense and, together with the fact existing at the time, constitutes a
new and distinct offense" (15 Am. Jur., 66), the accused cannot be said to be in second jeopardy if
indicated for the new offense.
This is the meaning of "double jeopardy" as intended by our constitution for was the one prevailing Ozaeta, Pablo, Padilla, Tuason, Montemayor and Reyes, JJ., concur.
in jurisdiction at the time the Constitution was promulgated, and no other meaning could have
been intended by our Rules of Court.

Accordingly, an offense may be said to necessarily include or to be necessarily included in

another offense, for the purpose of determining the existence of double jeopardy, when both
offenses were in existence during the pendency of the first prosecution, for otherwise, if the
second offense was then inexistence, no jeopardy could attach therefor during the first
prosecution, and consequently a subsequent charge for the same cannot constitute second
jeopardy. By the very nature of things there can be no double jeopardy under such circumstance,
and our Rules of Court cannot be construed to recognize the existence of a condition where such
condition in reality does not exist. General terms of a statute or regulation should be so limited in
their application as not to lead to injustice, oppression, or an absurd consequence. It will always,
therefore, be presumed that exceptions have been intended to their language which would avoid
results of this character. (In re Allen, 2 Phil., 641.)

When the Rules of Court were drafted, there was absolutely no intention of abandoning the ruling
laid down in the Diaz case, and the proof of this is that although the said Rules were approved on
December 1939, yet on January 30, 1940, this Court decided the Espino case reiterating therein
the Diaz doctrine. Had that doctrine been abandoned deliberately by the Rules of Court as being
unwise, unjust or obnoxious, logically it would have likewise been repudiated in the Espino case
by reason if consistency and as a matter of justice to the accused, who should in consequence
have been acquitted instead of being sentenced to a heavy penalty upon the basis of a doctrine
that had already been found to be wrong. There was absolutely no reason to preclude this Court
from repealing the doctrine in the Espino case, for as a mere doctrine it could be repealed at any
time in the decision of any case where it is invoked, is a clear proof that the mind of the Court,
even after the approval of the Rules, was not against but in favor of said doctrine.

For these reasons we expressly repeal the ruling laid down in People vs. Tarok, 73 Phil., 260, as
followed in People vs. Villasis, 46 Off. Gaz. (Supp. to No. 1), p. 268. Such ruling is not only
contrary to the real meaning of "double jeopardy" as intended by the Constitution and by the Rules
of Court but is also obnoxious to the administration of justice. If, in obedience to the mandate of
the law, the prosecuting officer files an information within six hours after the accused is arrested,
and the accused claiming his constitutional right to a speedy trial is immediately arraigned, and
later on new fact supervenes which, together with the facts existing at the time, constitutes a more
serious offense, under the Tarok ruling, no way is open by which the accused may be penalized in
proportion to the enormity of his guilt. Furthermore, such a ruling may open the way to suspicions
or charges of conclusion between the prosecuting officers and the accused, to the grave detriment
of public interest and confidence in the administration of justice, which cannot happen under the
Diaz ruling.

Before closing, it is well to observe that when a person who has already suffered his penalty for an
offense, is charged with a new and greater offense under the Diaz doctrine herein reiterated, said
penalty may be credited to him in case of conviction for the second offense.

For all the foregoing, the petition is denied, and the respondent court may proceed to the trial of
the criminal case under the amended information. Without costs.
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-41863 April 22, 1977
PEOPLE OF THE PHILIPPINES, and ASST. PROV'L FISCAL F. VISITACION, JR., petitioners,
vs.
HONORABLE MIDPANTAO L. ADIL, Presiding Judge, Court of First Instance of Iloilo,
Branch II, and MARGARITO FAMA, JR., respondents.
Acting Solicitor General Hugo E. Gutierrez, Jr., Assistant Solicitor General Alicia V. Sempio-Diy
and Solicitor Amado D. Aquino for petitioners.
Fama & Jimenea for private respondent.
BARREDO, J:
Petition for certiorari; to set aside the orders of respondent judge dated September 22, 1975 and
October 14, 1975 dismissing Criminal Case No. 5241 of the Court of First Instance of Iloilo against
private respondent Margarito Fama, Jr., said dismissal being predicated on the ground of double
jeopardy, in view of the dismissal of a previous charge of slight physical injuries against the same
respondent for the same incident by the Municipal Court of Janiuay, Iloilo in Criminal Case No.
3335, notwithstanding that in the information in the first-mentioned case, it was alleged that the
injuries sustained by the offended party, aside from possibly requiring medical attendance from 6
to 9 days barring complications", as was alleged in the information in Criminal Case No. 3335, had
left "a permanent sear and deform(ed) — the right face of (said offended party) Miguel Viajar."
The first criminal complaint filed against respondent Fama Jr. on April 15, 1975 (Case No. 3335)
was as follows:
That at about 5:30 o'clock in the afternoon of April 12, 1975, at Aquino Nobleza
St., Municipality of January, Province of Iloilo, Philippines, and within the
jurisdiction of this Honorable Court the above-named accused, while armed with
a piece of stone, did then and there willfully, unlawfully and feloniously, assault,
attack and use personal violence upon one Miguel Viajar by then hurling the
latter with a stone, hitting said Miguel Viajar on the right cheek, thereby inflicting
physical injuries which would have required and will require medical attendance
for a period from 5 to 9 days barring complication as per medical certificate of the
physician hereto attached.
CONTRARY TO LAW. (Pp. 93-94, Record)
Arraigned on July 7, 1975, the accused entered a plea of not guilty.
Meanwhile, on June 8, 1975, complainant Viajar filed a letter-complaint with the Provincial Fiscal
of Iloilo charging Atty. Alfredo Fama, Raul Fama and herein respondent Margarito Fama, Jr. with
serious physical injuries arising from the same incident alleged in above Criminal Case No. 3335.
After conducting a preliminary investigation, under date of July 28, 1975, the Fiscal filed in the
Court of First Instance of Iloilo an information, but only against respondent Fama Jr., (Case No.
5241) for serious physical injuries as follows:
That on or about April 12, 1975, in the Municipality of January, Province of Iloilo,
Philippines, and within the jurisdiction of this Court, the said accused, with
deliberate intent, and without any justifiable motive, armed with pieces of stone
did then and there willfully, unlawfully and feloniously attack, assault and throw
pieces of stone at Miguel Viajar, hitting him on the lower right eye which would
heal from five (5) to nine (9) days barring complications but leaving a permanent
scar and deforming on the right face of said Miguel Viajar.
CONTRARY TO LAW. (Pp. 94-95, Record)
On August 1, 1975, Fama Jr. filed an urgent motion to defer proceedings in Criminal Case No.
5241, claiming that since he was already charged and pleaded not guilty in Criminal Case No.
3335, he would be in double jeopardy, if Case No. 5241 were to be prosecuted. This motion was
opposed by the Fiscal and the Court required both parties to file their respective memorandum on
the issue of double jeopardy.
In the meantime, the Fiscal after filing Case No. 5241, sought the dismissal of Case No. 3335, but
the Municipal Court did not act on said motion. Instead, the case was set for hearing, and in view
of the postponements asked by the Fiscal in order to await the resolution of the issue of double
jeopardy in Case No. 5241, on September 11, 1975, the following order was entered:
Under our democratic and constituted system of government litigants before our
courts of justice, plaintiffs and defendants, complainants and accused are entitled
to the equal protection of our laws. More is an accused, the trial of his case has
been repeatedly postponed for several times by this Court in the exercise of its
sound discretion at the instance of the prosecution. So, when this case was
called for hearing on the afternoon of September 1, 1975 the accused through
counsel vigorously objected to another postponement and moved for the
dismissal of the case against him. To grant another postponement as sought by
the Fiscal against the vehement, strong and vigorous objection of the accused is
to the mind of the Court, no longer an exercise of sound discretion consistent
with justice and fairness but a clear and palpable abuse of discretion amounting
to a serious denial to, and a grave violation of, the right of the accused to a
speedy trial to which he is rightfully entitled to under Section 16 of Article IV, (Bill
of Rights) of the Philippine Constitution.
 IN VIEW OF THE FOREGOING, the above-entitled case is hereby ordered
dismissed. The Cash Bond posted by the accused is hereby ordered cancelled
and released (Pp. 96-97, Record.)
Whereupon, on even date, Fama Jr. filed an addendum to his memorandum in Case No. 5241
inviting attention to the above dismissal order and reiterating his theory of double jeopardy. On
September 22, 1975, respondent court issued the impugned order sustaining the contention of
double jeopardy and dismissing Case No. 5241. The prosecution's motion for reconsideration was
denied in the other assailed order of October 14, 1975, respondent judge relying on the ruling laid
down in Peo. vs. Silva, 4 SCRA 95.
In brief, what happened here was that when Case No. 3335 was filed in the inferior court of
January, the charge against Fama Jr. had to be for slight physical injuries only, because according
to the certification of the attending physician, the injuries suffered by the offended party Viajar,
would require medical attendance from 5 to 9 days only "baring complications." Indeed, when the
complaint was filed on April 15, 1975, only three days had passed since the incident in which the
injuries were sustained took place, and there were yet no indications of a graver injury or
consequence to be suffered by said offended party. Evidently, it was only later, after Case No.
3335 had already been filed and the wound on the face of Viajar had already healed, that the
alleged deformity became apparent.
In People vs. Buling, 107 Phil. 112, We explained how a deformity may be considered as a
supervening fact. Referring to the decision in People vs. Manolong, 85 Phil. 829, We held:
No finding was made in the first examination that the injuries had caused
deformity and the loss of the use of the right hand. As nothing was mentioned in
the first medical certificate about the deformity and the loss of the use of the right
hand, we presumed that such fact was not apparent or could have been
discernible at the time the first examination was made. The course (not the
length) of the healing of an injury may not be determined before hand; it can only
be definitely known after the period of healing has ended. That is the reason why
the court considered that there was a supervening fact occuring since the filing of
the original information.
In other words, in the peculiar circumstances of this case, the plea of double jeopardy of private
respondent Fama Jr., cannot hold. It was, therefore, a grave error correctible by certiorari for
respondent court to have dismissed Criminal Case No. 5241.
ACCORDINGLY, the orders of September 22, 1975 and October 14, 1975 herein complained of
are hereby set aside and respondent court is ordered to proceed with the trial and judgment
thereof according to law. Costs against private respondent Fama Jr.

Now, expert evidence is not needed for anyone to understand that the scar or deformity that would Fernando (Chairman), Antonio, Aquino and Concepcion, Jr., JJ., concur.
be left by a wound on the face of a person cannot be pre-determined. On the other hand, whether
or not there is actually a deformity on the face of Viajar is a question of fact that has to be
determined by the trial court. The only issue We are to resolve here is whether or not the
additional allegation of deformity in the information in Case No. 5241 constitutes a supervening
element which should take this case out of the ruling in People vs. Silva cited by respondent court.

In Silva, there was no question that the extent of the damage to property and physical injuries
suffered by the offended parties therein were already existing and known when the prior minor
case was prosecuted, What is controlling then in the instant case is Melo vs. People, 85 Phil. 766,
in which it was held:

This rule of identity does not apply, however, when the second offense was not in
existence at the time of the first prosecution, for the simple reason that in such
case there is no possibility for the accused during the first prosecution, to be
convicted for an offense that was then inexistent Thus, where the accused was
charged with physical injuries and after conviction the injured dies, the charge of
homicide against the same accused does not put him twice in jeopardy.

So also is People vs. Yorac, 42 SCRA, 230, to the following effect:

Stated differently, if after the first. prosecution 'a new fact supervenes on which
defendant may be held liable, resulting in altering the character of the crime and
giving rise to a new and distinct offense, 'the accused cannot be said to be in
second jeopardy if indicted for the new offense.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-36528 September 24, 1987
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
THE CITY COURT OF MANILA, BRANCH VI and AGAPITO GONZALES Y
VENERACION, respondents.
PADILLA, J.:
Petition for review on certiorari to set aside the order of the respondent City Court of Manila,
Branch VI, dated 20 January 1973, dismissing the information (for violation of Article 201 (3) of the
Revised Penal Code) against the accused, herein respondent Agapito Gonzales, in Criminal Case
No. F-147348 and its amended order, dated 16 March 1973, denying petitioner's motion for
reconsideration of the first order.
Respondent Agapito Gonzales, together with Roberto Pangilinan, was accused of violating
Section 7, in relation to Section 11, Republic Act No. 3060 and Article 201 (3) of the Revised
Penal Code, in two (2) separate informations filed with the City Court of Manila on 4 April 1972.
On 7 April 1972, before arraignment in the two (2) cases, the City Fiscal amended the information
in Criminal Case No. F-147347 (for violation of Section 7 in relation to Section 11, Rep. Act No.
3060), by alleging that the accused.
conspiring, and confederating together, and mutually helping each other did then
and there wilfully, unlawfully, and feloniously publicly exhibit and cause to be
publicly exhibited ... completed composite prints of motion film, of the 8 mm. size,
in color forming visual moving images on the projection screen through the
mechanical application of the projection equipment, which motion pictures have
never been previously submitted to the Board of Censors for Motion Pictures for
preview, examination and partnership, nor duly passed by said Board, in a public
place, to wit: at Room 309, De Leon Building, Raon Street corner Rizal Avenue,
[Manila].
On the other hand, the information in Criminal Case No. F-147348 (for violation of Article 201 (3)
of the Revised Penal Code) was amended to allege that, on the same date, 16 July 1971, the
same accused,
conspiring and confederating together and actually helping each other, did then
and there wilfully, unlawfully, feloniously and publicly exhibit, through the
mechanical application of movie projection equipment and the use of projection
screen, indecent and immoral motion picture scenes, to wit: motion pictures of
the 8 mm. size, in color, depicting and showing scenes of totally naked female
and male persons with exposed private parts doing the sex act in various lewd
and obvious positions, among other similarly and equally obscene and morally
offensive scenes, in a place open to public view, to wit: at Room 309, De Leon
Building, Raon Street corner Rizal Avenue, [Manila].
On 31 May 1972, upon arraignment, accused Agapito Gonzales pleaded not guilty to both
charges. The other accused, Roberto Pangilinan, was not arraigned as he was (and he still is) at
large.
On 26 June 1972, accused Agapito Gonzales filed a motion to quash the informations in the two
(2) cases, on the ground that said informations did not charge an offense. The motion was denied
on 17 July 1972 and the cases were set for trial on 7 August 1972.
No hearing was held on 7 August 1972, however, as the accused moved for postponement of the
trial set on said date and the trial set on two (2) other dates. On 15 November 1972, the accused
Gonzales moved for permission to withdraw his plea of "not guilty" in Criminal Case No. F-147348,
without however, substituting or entering another plea. The Court granted the motion and reset the
hearing of the cases for 27 December 1972.
On 27 December 1972, accused Gonzales moved to quash the information in Criminal Case No.
F-147348 on the ground of double jeopardy, as there was according to him, also pending against
him Criminal Case No. F-147347, for violation of Rep. Act No. 3060, where the information
allegedly contains the same allegations as the information in Criminal Case No. F-147348.
Petitioner opposed the motion to quash but the respondent City Court, in an order, dated 20
January 1973, dismissed the case (Criminal Case No. F-147348) stating thus:
In one case (F-147347), the basis of the charge is a special law, Rep. Act No.
3060. In the other case (F-147348), the basis of the same is the pertinent
provision of the Revised Penal Code. Considering that the allegations in the
information of said cases are Identical the plea entered in one case by the
accused herein can be reasonably seen as exposing him to double jeopardy in
the other case, as said allegations therein are not only similar but [sic] Identical
facts.
After the dismissal of Criminal Case No. F-147348, or on 7 February 1973, in Criminal Case No.
F-147347, the accused changed his plea of "not guilty" and entered a plea of "guilty" for violation
of Rep. Act No. 3060. He was accordingly sentenced to pay a fine of P600.00.
On 10 February 1973, petitioner filed a motion for reconsideration of the order of 20 January 1973,
dismissing Criminal Case No. F-147348. This was however denied by respondent court in its order
dated 15 March 1973, and in its amended order dated 16 March 1973; hence, this petition for
review on certiorari.
Petitioner contends that the accused could not invoke the constitutional guarantee against double
jeopardy, when there had been no conviction, acquittal, dismissal or termination of criminal
proceedings in another case for the same offense. 1 The respondent, on the other hand, argues
that conviction or acquittal in, or dismissal or termination of a first case is not necessary, so long
as he had been put in jeopardy of being convicted or acquitted in the first case of the same
offense.2
It is a settled rule that to raise the defense of double jeopardy, three requisites must be present:
(1) a first jeopardy must have attached prior to the second; (2) the first jeopardy must have been
validly terminated; and (3) the second jeopardy must be for the same offense, or the second
offense includes or is necessarily included in the offense charged in the first information, or is an
attempt to commit the same or a frustration thereof
All these requisites do not exist in this case.
The two (2) informations with which the accused was charged, do not make out only one offense,
contrary to private respondent's allegations. In other words, the offense defined in section 7 of
Rep. Act No. 3060 punishing the exhibition of motion pictures not duly passed by the Board of
Censors for Motion Pictures does not include or is not included in the offense defined in Article
201 (3) of the Revised Penal Code punishing the exhibition of indecent and immoral motion
pictures.
The two (2) offenses do not constitute a jeopardy to each other. A scrutiny of the two (2) laws
involved would show that the two (2) offenses are different and distinct from each other. The
relevant provisions of Rep. Act No. 3060 state:
Sec. 7. It shall be unlawful for any person or entity to exhibit or cause to be
exhibited in any motion picture theater or public place, or by television within the
Philippines any motion picture, including trailers, stills, and other pictorial
advertisements in connection with motion pictures, not duly passed by the Board;
or to print or cause to be printed on any motion picture to be exhibited in any
theater, or public place or by television, a label or notice showing the same to
have been previously passed by the said Board when the same has not been
previously authorized, except motion pictures imprinted or exhibited by the
Philippine Government and/or its departments and agencies, and newsreels.
Sec. 11. Any violation of Section seven of this Act shall be punished by
imprisonment of not less than six months but not more than two years, or by a
fine of not less than six hundred nor more than two thousand pesos, or both at
the discretion of the court. If the offender is an alien he shall be deported
immediately. The license to operate the movie theater or television shall also be
revoked. Any other kind of violation shall be punished by imprisonment of not
less than one month nor more than three months or a fine of not less than one
hundred pesos nor more than three hundred pesos, or both at the discretion of
the court. In case the violation is committed by a corporation, partnership or
association, the liability shall devolve upon the president, manager, administrator,
or any office thereof responsible for the violation.
On the other hand, Article 201 (3) of the Revised Penal Code provides:
Art. 201. Immoral doctrines, obscene publications and exhibitions.- The penalty
of prision correccional in its minimum period, or a fine ranging from 200 to 2,000
pesos, or both, shall be imposed upon:
... 3. Those who in theaters, fairs, cinematographs, or any other place open to
public view, shall exhibit indecent or immoral plays, scenes, acts, or shows; ...
It is evident that the elements of the two (2) offenses are different. The gravamen of the offense
defined in Rep. Act No. 3060 is the public exhibition of any motion picture which has not been
previously passed by the Board of Censors for Motion Pictures. The motion picture may not be
indecent or immoral but if it has not been previously approved by the Board, its public showing
constitutes a criminal offense. 3 On the other hand, the offense punished in Article 201 (3) of the
Revised Penal Code is the public showing of indecent or immoral plays, scenes, acts, or shows,
not just motion pictures. 4
The nature of both offenses also shows their essential difference. The crime punished in Rep. Act
No. 3060 is a malum prohibitum in which criminal intent need not be proved because it is
presumed, while the offense punished in Article 201 (3) of the Revised Penal Code is malum in
se, in which criminal intent is an indispensable ingredient.
Considering these differences in elements and nature, there is no Identity of the offenses here
involved for which legal jeopardy in one may be invoked in the other. 5 Evidence required to prove
one offense is not the same evidence required to prove the other. The defense of double jeopardy
cannot prosper. As aptly put in People v. Doriquez.6
It is a cardinal rule that the protection against double jeopardy may be invoked
only for the same offense or Identical offense. 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. (People v. Bacolod, 89 Phil. 621; People v.
Alvarez, 45 Phil. 24). Phrased elsewhere, 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. (People v. Alvarez, 45 Phil. 472).7 (Emphasis supplied)
Petitioner also questions the propriety of allowing the accused in Criminal Case No. F-147348 to
withdraw his plea of not guilty in order to file a motion to quash on the ground of double jeopardy.
Petitioner argues:
 It is true that on February 3, 1973, the trial court finally convicted respondent
Gonzales in Criminal Case No. F-147347 by imposing on him a fine of P600.00.
But it is obvious that respondent Gonzales's conviction in that case cannot
retroactively supply the ground for the dismissal of Criminal Case No. F-147348.
But even if conviction in Criminal Case No. F-147347 preceded the dismissal of
Criminal Case No. F-147348, still that conviction cannot bar the prosecution for
violation of Article 201 (3) of the Revised Penal Code, because, by pleading to
the charge in Criminal Case No. F-147348 without moving to quash the
information, the accused (now the respondent) Gonzales must be taken to have
waived the defense of double jeopardy, pursuant to the provisions of Rule 117,
section 10. (Barot v. Villamor, 105 Phil. 263 [1959]) It is only in cases where,
after pleading or moving to quash on some other grounds, the accused learns for
the first time that the offense of which he is charged is an offense for which he
has been in jeopardy that the court may in its discretion entertain at any time
before judgment a motion to quash on that ground. ... In the case at bar,
however, the fact is that the accused (now the respondent Gonzales) was
arraigned in the same court. He, therefore, cannot claim ignorance of the
existence of another charge against him for supposedly the same offense. 8
Petitioner's argument is well-taken. Sec. 10, Rule 117, of the Rules of Court, before its
amendment stated —
The People (petitioner) rightly appealed the dismissal of Criminal Case No F-147348. For, as ruled
in People v. Desalisa: 10
As a general rule, the dismissal or termination of a case after arraignment and
plea of the defendant to a valid information shall be a bar to another prosecution
for the offense charged, or for any attempt to commit the same or frustration
thereof, or for any offense which necessarily includes or is necessarily included
in the complaint or information (Sec. 9, Rule 113). However, an appeal by the
prosecution from the order of dismissal (of the criminal case) by the trial court
shall not constitute double jeopardy if (1) the dismissal is made upon motion, or
with the express consent, of the defendant, and (2) the dismissal is not an
acquittal or based upon consideration of the evidence or of the merits of the
case; and (3) the question to be passed upon by the appellate court is purely
legal so that should the dismissal be found incorrect, the case would have to be
remanded to the court of origin for further proceedings, to determine the guilt or
innocence of the defendant. 11
WHEREFORE, the petition is granted. The appealed orders are hereby reversal and set aside.
Criminal Case No. F-147348 is ordered reinstated and remanded to the respondent Court for trial
according to law.
SO ORDERED.

SEC. 10. Failure to move to quash-Effect of- Exception. — If the defendant does
not move to quash the complaint or information before he pleads thereto he shall
be taken to have waived all objections which are grounds for a motion to quash
except when the complaint or information does not charge an offense, or the
court is without jurisdiction of the same. If, however, the defendant learns after he
has pleaded or has moved to quash on some other ground that the offense for
which he is now charged is an offense for which he has been pardoned, or of
which he has been convicted or acquitted or been in jeopardy, the court may in
its discretion entertain at any time before judgment a motion to quash on the
ground of such pardon, conviction, acquittal or jeopardy. (Emphasis supplied)

However, it must be noted that, under the 1985 Rules, the provision now reads as follows:

Failure to move or quash or to allege any ground therefore. The failure of the
accused to assert any ground of a motion to quash before he pleads to the
complaint or information, either because he did not file a motion to quash or
failed to allege the same in said motion, shall be deemed a waiver of the grounds
for a motion to quash, except the grounds of no offense charged, lack of
jurisdiction, extinction of the offense or penalty, and jeopardy. ... 9

The above, being an amendment favorable to the accused, the benefit thereof can be extended to
the accused-respondent. However, whatever benefit he may derive from this amendment, is also
illusory. For, as previously noted, there is no double jeopardy which gave rise to a valid motion to
quash.
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-45129 March 6, 1987
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
THE HONORABLE BENJAMIN RELOVA, in his capacity as Presiding Judge of the Court of
First Instance of Batangas, Second Branch, and MANUEL OPULENCIA, respondents.
FELICIANO, J.:
In this petition for certiorari and mandamus, the People of the Philippines seek to set aside the
orders of the respondent Judge of the Court of First Instance of Batangas in Criminal Case No.
266, dated 12 August 1976 and 8 November 1976, respectively, quashing an information for theft
filed against private respondent Manuel Opulencia on the ground of double jeopardy and denying
the petitioner's motion for reconsideration.
On 1 February 1975, members of the Batangas City Police together with personnel of the
Batangas Electric Light System, equipped with a search warrant issued by a city judge of
Batangas City, searched and examined the premises of the Opulencia Carpena Ice Plant and
Cold Storage owned and operated by the private respondent Manuel Opulencia. The police
discovered that electric wiring, devices and contraptions had been installed, without the necessary
authority from the city government, and "architecturally concealed inside the walls of the
building" 1owned by the private respondent. These electric devices and contraptions were, in the
allegation of the petitioner "designed purposely to lower or decrease the readings of electric
current consumption in the electric meter of the said electric [ice and cold storage] plant." 2 During
the subsequent investigation, Manuel Opulencia admitted in a written statement that he had
caused the installation of the electrical devices "in order to lower or decrease the readings of his
electric meter. 3
On 24 November 1975, an Assistant City Fiscal of Batangas City filed before the City Court of
Batangas City an information against Manuel Opulencia for violation of Ordinance No. 1, Series of
1974, Batangas City. A violation of this ordinance was, under its terms, punishable by a fine
"ranging from Five Pesos (P5.00) to Fifty Pesos (P50.00) or imprisonment, which shall not exceed
thirty (30) days, or both, at the discretion of the court." 4 This information reads as follows:
The undersigned, Assistant City Fiscal, accuses Manuel Opulencia y Lat of
violation of Sec. 3 (b) in relation to Sec. 6 (d) and Sec. 10 Article II, Title IV of
ordinance No. 1, S. 1974, with damage to the City Government of Batangas, and
penalized by the said ordinance, committed as follows:
That from November, 1974 to February, 1975 at Batangas City, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, with
intent to defraud the City Government of Batangas, without proper authorization
from any lawful and/or permit from the proper authorities, did then and there
wilfully, unlawfully and feloniously make unauthorized installations of electric
wirings and devices to lower or decrease the consumption of electric fluid at the
Opulencia Ice Plant situated at Kumintang, Ibaba, this city and as a result of such
unathorized installations of electric wirings and devices made by the accused,
the City Government of Batangas was damaged and prejudiced in the total
amount of FORTY ONE THOUSAND, SIXTY TWO PESOS AND SIXTEEN
CENTAVOS (P41,062.16) Philippine currency, covering the period from
November 1974 to February, 1975, to the damage and prejudice of the City
Government of Batangas in the aforestated amount of P41,062.16, Philippine
currency.
The accused Manuel Opulencia pleaded not guilty to the above information. On 2 February 1976,
he filed a motion to dismiss the information upon the grounds that the crime there charged had
already prescribed and that the civil indemnity there sought to be recovered was beyond the
jurisdiction of the Batangas City Court to award. In an order dated 6 April 1976, the Batangas City
Court granted the motion to dismiss on the ground of prescription, it appearing that the offense
charged was a light felony which prescribes two months from the time of discovery thereof, and it
appearing further that the information was filed by the fiscal more than nine months after discovery
of the offense charged in February 1975.
Fourteen (14) days later, on 20 April 1976, the Acting City Fiscal of Batangas City filed before the
Court of First Instance of Batangas, Branch 11, another information against Manuel Opulencia,
this time for theft of electric power under Article 308 in relation to Article 309, paragraph (1), of the
Revised Penal Code. This information read as follows:
The undersigned Acting City Fiscal accuses Manuel Opulencia y Lat of the crime
of theft, defined and penalized by Article 308, in relation to Article 309, paragraph
(1) of the Revised Penal Code, committed as follows:
That on, during, and between the month of November, 1974, and the 21st day of
February, 1975, at Kumintang, lbaba, Batangas City, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, with intent of gain
and without the knowledge and consent of the Batangas Electric Light System,
did then and there, wilfully, unlawfully and feloniously take, steal and appropriate
electric current valued in the total amount of FORTY ONE THOUSAND, SIXTY
TWO PESOS AND SIXTEEN CENTAVOS (P41,062.16) Philippine Currency, to
the damage and prejudice of the said Batangas Electric Light System, owned
and operated by the City Government of Batangas, in the aforementioned sum of
P41,062.16.
The above information was docketed as Criminal Case No. 266 before the Court of First Instance
of Batangas, Branch II. Before he could be arraigned thereon, Manuel Opulencia filed a Motion to
Quash, dated 5 May 1976, alleging that he had been previously acquitted of the offense charged
in the second information and that the filing thereof was violative of his constitutional right against
double jeopardy. By Order dated 16 August 1976, the respondent Judge granted the accused's
Motion to Quash and ordered the case dismissed. The gist of this Order is set forth in the following
paragraphs:
The only question here is whether the dismissal of the first case can be properly
pleaded by the accused in the motion to quash.
In the first paragraph of the earlier information, it alleges that the prosecution
"accuses Manuel Opulencia y Lat of violation of Sec. 3(b) in relation to Sec. 6(d)
and Sec. 10 Article II, Title IV of Ordinance No. 1, s. 1974, with damage to the
City Government of Batangas, etc. " (Emphasis supplied). The first case, as it
appears, was not simply one of illegal electrical connections. It also covered an
amount of P41,062.16 which the accused, in effect, allegedly with intent to
defraud, deprived the city government of Batangas. If the charge had meant
illegal electric installations only, it could have alleged illegal connections which
were done at one instance on a particular date between November, 1974, to
February 21, 1975. But as the information states "that from November, 1974 to
February 1975 at Batangas City, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused with intent to defraud the City
Government of Batangas, without proper authorization from any lawful and/or
permit from the proper authorities, did then and there wilfully, unlawfully and
feloniously make unauthorized installations of electric wirings and devices, etc."
(Emphasis supplied), it was meant to include the P 41,062.16 which the accused
had, in effect, defrauded the city government. The information could not have
meant that from November 1974 to 21 February 1975, he had daily committed
unlawful installations.
When, therefore, he was arraigned and he faced the indictment before the City
Court, he had already been exposed, or he felt he was exposed to consequences
of what allegedly happened between November 1974 to February 21, 1975
which had allegedly resulted in defrauding the City of Batangas in the amount of
P 41,062.16. (Emphases and parentheses in the original)
A Motion for Reconsideration of the above-quoted Order filed by the petitioner was denied by the
respondent Judge in an Order dated 18 November 1976.
On 1 December 1976, the present Petition for certiorari and mandamus was filed in this Court by
the Acting City Fiscal of Batangas City on behalf of the People.
The basic premise of the petitioner's position is that the constitutional protection against double
jeopardy is protection against a second or later jeopardy of conviction for the same offense. The
petitioner stresses that the first information filed before the City Court of Batangas City was one for
unlawful or unauthorized installation of electrical wiring and devices, acts which were in violation of
an ordinance of the City Government of Batangas. Only two elements are needed to constitute an
offense under this City Ordinance: (1) that there was such an installation; and (2) no authority
therefor had been obtained from the Superintendent of the Batangas City Electrical System or the
District Engineer. The petitioner urges that the relevant terms of the City Ordinance — which read
as follows:
Section 3.-Connection and Installation
(a) x x x
(b) The work and installation in the houses and building and their connection with
the Electrical System shall be done either by the employee of the system duly
authorized by its Superintendent or by persons adept in the matter duly
authorized by the District Engineer. Applicants for electrical service permitting the
works of installation or connection with the system to be undertaken by the
persons not duly authorized therefor shall be considered guilty of violation of the
ordinance.
would show that:
The principal purpose for (sic) such a provision is to ensure that electrical
installations on residences or buildings be done by persons duly authorized or
adept in the matter, to avoid fires and accidents due to faulty electrical wirings. It
is primarily a regulatory measure and not intended to punish or curb theft of
electric fluid which is already covered by the Revised Penal Code. 5
The gist of the offense under the City Ordinance, the petitioner's argument continues, is the
installing of electric wiring and devices without authority from the proper officials of the city
government. To constitute an offense under the city ordinance, it is not essential to establish
any mens rea on the part of the offender generally speaking, nor, more specifically, an intent to
appropriate and steal electric fluid.
In contrast, the petitioner goes on, the offense of theft under Article 308 of the Revised Penal
Code filed before the Court of First Instance of Batangas in Criminal Case No. 266 has quite
different essential elements. These elements are:
1. That personal property be taken;
2. That the personal property (taken) belongs to another;
3. That the taking be done with intent of gain;
4. That the taking be done without the consent of the owner; and
5. That the taking be accomplished without violence against or intimidation of
persons or force upon things. 6
The petitioner also alleges, correctly, in our view, that theft of electricity can be effected even
without illegal or unauthorized installations of any kind by, for instance, any of the following
means:
1. Turning back the dials of the electric meter;
2. Fixing the electric meter in such a manner that it will not register the actual
electrical consumption;
3. Under-reading of electrical consumption; and
4. By tightening the screw of the rotary blade to slow down the rotation of the
same. 7
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
inforrnation 8
The above arguments made by the petitioner are 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. (Emphasis
supplied; Article IV (22), 1973 Constitution) 9
and from our case law on this point. 10 The basic difficulty with the petitioner's 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. This was made clear sometime ago in Yap vs. Lutero. 11
In Yap, petitioner Manuel Yap was charged in Criminal Case No. 16054 of the Municipal Court of
Iloilo City, with violation of Article 14 of Ordinance No. 22, Series of 1951, in relation to Ordinance
No. 15, Series of 1954, of the City of Iloilo. The information charged him with having "wilfully,
unlawfully and feloniously drive[n] and operate[d]" an automobile — "recklessly and without
reasonable caution thereby endangering other vehicles and pedestrians passing in said street."
Three months later, Yap was again charged in Criminal Case No. 16443 of the same Municipal
Court, this time with serious physical injuries through reckless imprudence. The information
charged him with violation of the Revised Motor Vehicle Law (Act No. 3992 as amended by
Republic Act No. 587) committed by driving and operating an automobile in a reckless and
negligent manner and as a result thereof inflicting injuries upon an unfortunate pedestrian. Yap
moved to quash the second information upon the ground that it placed him twice in jeopardy of
punishment for the same act. This motion was denied by the respondent municipal judge.
Meantime, another municipal judge had acquitted Yap in Criminal Case No. 16054. Yap then
instituted a petition for certiorari in the Court of First Instance of Iloilo to set aside the order of the
respondent municipal judge. The Court of First Instance of Iloilo having reversed the respondent
municipal judge and having directed him to desist from continuing with Criminal Case No. 16443,
the respondent Judge brought the case to the Supreme Court for review on appeal. In affirming
the decision appealed from and holding that the constitutional protection against double jeopardy
was available to petitioner Yap, then Associate Justice and later Chief Justice Roberto
Concepcion wrote:
To begin with, the crime of damage to property through reckless driving — with
which Diaz stood charged in the court of first instance — is a violation of the
Revised Penal Code (third paragraph of Article 365), not the Automobile Law
(Act No. 3992, as amended by Republic Act No. 587). Hence, Diaz was not twice
accused of a violation of the same law. Secondly, reckless driving and certain
crimes committed through reckless driving are punishable under different
provisions of said Automobile Law. Hence — from the view point of Criminal Law,
as distinguished from political or Constitutional Law — they constitute, strictly,
different offenses, although under certain conditions, one offense may include
the other, and, accordingly, once placed in jeopardy for one, the plea of double
jeopardy may be in order as regards the other, as in the Diaz case. (Emphases in
the original)
Thirdly, our Bill of Rights deals with two (2) kinds of double jeopardy. The first
sentence of clause 20, section 1, Article III of the Constitution, ordains that "no
person shall be twice put in jeopardy of punishment for the same offense."
(Emphasis in the original) The second sentence of said clause provides that "if
an act is punishable by a law and an ordinance, conviction or acquittal under
either shall constitute a bar to another prosecution for the same act." Thus, the
first sentence prohibits double jeopardy of punishment for the same offense,
whereas the second contemplates double jeopardy of punishment for the same
act. Under the first sentence, one may be twice put in jeopardy of punishment of
the same act provided that he is charged with different offenses, or the offense
charged in one case is not included in or does not include, the crime charged in
the other case. The second sentence applies, even if the offenses charged are
not the same, owing to the fact that one constitutes a violation of an ordinance
and the other a violation of a statute. If the two charges are based on one and
the same act conviction or acquittal under either the law or the ordinance shall
bar a prosecution under the other. 12 Incidentally, such conviction or acquittal is
not indispensable to sustain the plea of double jeopardy of punishment for the
same offense. So long as jeopardy has attached under one of the informations
 charging said offense, the defense may be availed of in the other case involving
the same offense, even if there has been neither conviction nor acquittal in either
case.
The issue in the case at bar hinges, therefore, on whether or not, under the
information in case No. 16443, petitioner could — if he failed to plead double
jeopardy — be convicted of the same act charged in case No. 16054, in which he
has already been acquitted. The information in case No. 16054 alleges,
substantially, that on the date and in the place therein stated, petitioner herein
had wilfully, unlawfully and feloniously driven and operated "recklessly and
without reasonable caution" an automobile described in said information. Upon
the other hand, the information in case No. 16443, similarly states that, on the
same date and in the same place, petitioner drove and operated the
aforementioned automobile in a "reckless and negligent manner at an excessive
rate of speed and in violation of the Revised Motor Vehicle Law (Act No. 3992),
as amended by Republic Act No. 587, and existing city ordinances." Thus, if the
theories mentioned in the second information were not established by the
evidence, petitioner could be convicted in case No. 16443 of the very same
violation of municipal ordinance charged in case No. 16054, unless he pleaded
double jeopardy.
It is clear, therefore, that the lower court has not erred eventually sustaining the
theory of petitioner herein.
Put a little differently, where the offenses charged are penalized either by different sections of the
same statute or by different statutes, the important inquiry relates to the identity of offenses
charge: the constitutional protection against double jeopardy is available only where an Identity is
shown to exist between the earlier and the subsequent offenses charged. In contrast, where one
offense is charged under a municipal ordinance while the other is penalized by a statute, the
critical inquiry is to the identity of the acts which the accused is said to have committed and which
are alleged to have given rise to the two offenses: the constitutional protection against double
jeopardy is available so long as the acts which constitute or have given rise to the first offense
under a municipal ordinance are the same acts which constitute or have given rise to the offense
charged under a statute.
The question may be raised why one rule should exist where two offenses under two different
sections of the same statute or under different statutes are charged, and another rule for the
situation where one offense is charged under a municipal ordinance and another offense under a
national statute. If the second sentence of the double jeopardy provision had not been written into
the Constitution, conviction or acquittal under a municipal ordinance would never constitute a bar
to another prosecution for the same act under a national statute. An offense penalized by
municipal ordinance is, by definition, different from an offense under a statute. The two offenses
would never constitute the same offense having been promulgated by different rule-making
authorities — though one be subordinate to the other — and the plea of double jeopardy would
never lie. The discussions during the 1934-1935 Constitutional Convention show that the second
sentence was inserted precisely for the purpose of extending the constitutional protection against
double jeopardy to a situation which would not otherwise be covered by the first sentence. 13
The question of Identity or lack of Identity of offenses is addressed by examining the essential
elements of each of the two offenses charged, as such elements are set out in the respective
legislative definitions of the offenses involved. The question of Identity of the acts which are
claimed to have generated liability both under a municipal ordinance and a national statute must
be addressed, in the first instance, by examining the location of such acts in time and space.
When the acts of the accused as set out in the two informations are so related to each other in
time and space as to be reasonably regarded as having taken place on the same occasion and
where those acts have been moved by one and the same, or a continuing, intent or voluntary
design or negligence, such acts may be appropriately characterized as an integral whole capable
of giving rise to penal liability simultaneously under different legal enactments (a municipal
ordinance and a national statute).
In Yap, the Court regarded the offense of reckless driving under the Iloilo City Ordinance and
serious physical injuries through reckless imprudence under the Revised Motor Vehicle Law as
derived from the same act or sets of acts — that is, the operation of an automobile in a reckless
manner. The additional technical element of serious physical injuries related to the physical
consequences of the operation of the automobile by the accused, i.e., the impact of the
automobile upon the body of the offended party. Clearly, such consequence occurred in the same
occasion that the accused operated the automobile (recklessly). The moral element of negligence
permeated the acts of the accused throughout that occasion.
In the instant case, the relevant acts took place within the same time frame: from November 1974
to February 1975. During this period, the accused Manuel Opulencia installed or permitted the
installation of electrical wiring and devices in his ice plant without obtaining the necessary permit
or authorization from the municipal authorities. The accused conceded that he effected or
permitted such unauthorized installation for the very purpose of reducing electric power bill. This
corrupt intent was thus present from the very moment that such unauthorized installation began.
The immediate physical effect of the unauthorized installation was the inward flow of electric
current into Opulencia's ice plant without the corresponding recording thereof in his electric meter.
In other words, the "taking" of electric current was integral with the unauthorized installation of
electric wiring and devices.
It is perhaps important to note that the rule limiting the constitutional protection against double
jeopardy to a subsequent prosecution for the same offense is not to be understood with absolute
literalness. The Identity of offenses that must be shown need not be absolute Identity: the first and
second offenses may be regarded as the "same offense" where the second offense necessarily
includes the first offense or is necessarily included in such first offense or where the second
offense is an attempt to commit the first or a frustration thereof. 14 Thus, for the constitutional plea
of double jeopardy to be available, not all the technical elements constituting the first offense need
be present in the technical definition of the second offense. The law here seeks to prevent
harrassment of an accused person 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. As Associate Justice and later Chief Justice Ricardo Paras cautioned
in People vs. del Carmen et al., 88 Phil. 51 (1951):
While the rule against double jeopardy prohibits prosecution for the same
offense, it seems elementary that an accused should be shielded against being
prosecuted for several offenses made out from a single act. Otherwise, an
 unlawful act or omission may give use to several prosecutions depending upon WHEREFORE, the petition for certiorari and mandamus is DENIED. Let the civil action for related
the ability of the prosecuting officer to imagine or concoct as many offenses as civil liability be remanded to the Court of First Instance of Batangas City for further proceedings as
can be justified by said act or omission, by simply adding or subtracting essential indicated above. No pronouncement as to costs.
elements. Under the theory of appellant, the crime of rape may be converted into
a crime of coercion, by merely alleging that by force and intimidation the accused SO ORDERED.
prevented the offended girl from remaining a virgin. (88 Phil. at 53; emphases
supplied)
Yap (Chairman), Narvasa, Melencio-Herrera, Gancayco and Sarmiento, JJ., concur.
By the same token, acts of a person which physically occur on the same occasion and are infused
Cruz, J., took no part.
by a common intent or design or negligence and therefore form a moral unity, should not be
segmented and sliced, as it were, to produce as many different acts as there are offenses under
municipal ordinances or statutes that an enterprising prosecutor can find

It remains to point out that the dismissal by the Batangas City Court of the information for violation
of the Batangas City Ordinance upon the ground that such offense had already prescribed,
amounts to an acquittal of the accused of that offense. Under Article 89 of the Revised Penal
Code, "prescription of the crime" is one of the grounds for "total extinction of criminal liability."
Under the Rules of Court, an order sustaining a motion to quash based on prescription is a bar to
another prosecution for the same offense. 15

It is not without reluctance that we deny the people's petition for certiorari and mandamus in this
case. It is difficult to summon any empathy for a businessman who would make or enlarge his
profit by stealing from the community. Manuel Opulencia is able to escape criminal punishment
because an Assistant City Fiscal by inadvertence or otherwise chose to file an information for an
offense which he should have known had already prescribed. We are, however, compelled by the
fundamental law to hold the protection of the right against double jeopardy available even to the
private respondent in this case.

The civil liability aspects of this case are another matter. Because no reservation of the right to file
a separate civil action was made by the Batangas City electric light system, the civil action for
recovery of civil liability arising from the offense charged was impliedly instituted with the criminal
action both before the City Court of Batangas City and the Court of First Instance of Batangas.
The extinction of criminal liability whether by prescription or by the bar of double jeopardy does not
carry with it the extinction of civil liability arising from the offense charged. In the present case, as
we noted earlier, 16 accused Manuel Opulencia freely admitted during the police investigation
having stolen electric current through the installation and use of unauthorized elibctrical
connections or devices. While the accused pleaded not guilty before the City Court of Batangas
City, he did not deny having appropriated electric power. However, there is no evidence in the
record as to the amount or value of the electric power appropriated by Manuel Opulencia, the
criminal informations having been dismissed both by the City Court and by the Court of First
Instance (from which dismissals the Batangas City electric light system could not have
appealed 17) before trial could begin. Accordingly, the related civil action which has not been
waived expressly or impliedly, should be remanded to the Court of First Instance of Batangas City
for reception of evidence on the amount or value of the electric power appropriated and converted
by Manuel Opulencia and rendition of judgment conformably with such evidence.
 RULE 117
Motion to Quash
Section 1. Time to move to quash. — At any time before entering his plea, the accused may move
to quash the complaint or information. (1)
Section 2. Form and contents. — The motion to quash shall be in writing, signed by the accused
or his counsel and shall distinctly specify its factual and legal grounds. The court shall consider no
ground other than those stated in the motion, except lack of jurisdiction over the offense charged.
(2a)
Section 3. Grounds. — The accused may move to quash the complaint or information on any of
the following grounds:
(a) That the facts charged do not constitute an offense;
(b) That the court trying the case has no jurisdiction over the offense charged;
(c) That the court trying the case has no jurisdiction over the person of the accused;
(d) That the officer who filed the information had no authority to do so;
(e) That it does not conform substantially to the prescribed form;
(f) That more than one offense is charged except when a single punishment for various
offenses is prescribed by law;
(g) That the criminal action or liability has been extinguished;
(h) That it contains averments which, if true, would constitute a legal excuse or
justification; and
(i) That the accused has been previously convicted or acquitted of the offense charged, or
the case against him was dismissed or otherwise terminated without his express consent.
(3a)
Section 4. Amendment of the complaint or information. — If the motion to quash is based on an
alleged defect of the complaint or information which can be cured by amendment, the court shall
order that an amendment be made. (4a)
If it is based on the ground that the facts charged do not constitute an offense, the prosecution
shall be given by the court an opportunity to correct the defect by amendment. The motion shall be
granted if the prosecution fails to make the amendment, or the complaint or information still suffers
from the same defect despite the amendment. (n)
Section 5. Effect of sustaining the motion to quash. — If the motion to quash is sustained, the
court may order that another complaint or information be filed except as provided in section 6 of
this rule. If the order is made, the accused, if in custody, shall not be discharged unless admitted
to bail. If no order is made or if having been made, no new information is filed within the time
specified in the order or within such further time as the court may allow for good cause, the
accused, if in custody, shall be discharged unless he is also in custody for another charge. (5a)
Section 6. Order sustaining the motion to quash not a bar to another prosecution; exception. —
An order sustaining the motion to quash is not a bar to another prosecution for the same offense
unless the motion was based on the grounds specified in section 3 (g) and (i) of this Rule. (6a)
Section 7. Former conviction or acquittal; double jeopardy. — When an accused has been
convicted or acquitted, or the case against him dismissed or otherwise terminated without his
express consent by a court of competent jurisdiction, upon a valid complaint or information or
other formal charge sufficient in form and substance to sustain a conviction and after the accused
had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case
shall be a bar to another prosecution for the offense charged, or for any attempt to commit the
same or frustration thereof, or for any offense which necessarily includes or is necessarily included
in the offense charged in the former complaint or information.
However, the conviction of the accused shall not be a bar to another prosecution for an offense
which necessarily includes the offense charged in the former complaint or information under any of
the following instances:
(a) the graver offense developed due to supervening facts arising from the same act or
omission constituting the former charge;
(b) the facts constituting the graver charge became known or were discovered only after a
plea was entered in the former complaint or information; or
(c) the plea of guilty to the lesser offense was made without the consent of the prosecutor
and of the offended party except as provided in section 1 (f) of Rule 116.
In any of the foregoing cases, where the accused satisfies or serves in whole or in part the
judgment, he shall be credited with the same in the event of conviction for the graver offense. (7a)
Section 8. Provisional dismissal. — A case shall not be provisionally dismissed except with the
express consent of the accused and with notice to the offended party.
The provisional dismissal of offenses punishable by imprisonment not exceeding six (6) years or a
fine of any amount, or both, shall become permanent one (1) year after issuance of the order
without the case having been revived. With respect to offenses punishable by imprisonment of
more than six (6) years, their provisional dismissal shall become permanent two (2) years after
issuance of the order without the case having been revived. (n)
Section 9. Failure to move to quash or to allege any ground therefor. — The failure of the
accused to assert any ground of a motion to quash before he pleads to the complaint or
information, either because he did not file a motion to quash or failed to allege the same in said
motion, shall be deemed a waiver of any objections based on the grounds provided for in
paragraphs (a), (b), (g), and (i) of section 3 of this Rule. (8)