R. No.
168617 February 19, 2007 ordering the filing of two separate Informations for Estafa Thru
BERNADETTE L. ADASA, petitioner,
vs.
CECILLE S. ABALOS, Respondent.
DECISION
CHICO-NAZARIO, J.:
This Petition for Review under Rule 45 of the Rules of Court, filed by
petitioner Bernadette L. Adasa, seeks to nullify and set aside the 21 July
2004 Decision1 and 10 June 2005 Resolution2 of the Court of Appeals in CA-
G.R. SP No. 76396 which nullified the Resolutions of the Department of
Justice (DOJ). The Resolutions of the DOJ reversed and set aside the
Resolution of the Office of the City Prosecutor of Iligan City, which found
on reinvestigation probable cause against petitioner, and directed the
Office of the City Prosecutor of Iligan City to withdraw the information for
Estafa against petitioner.
The instant case emanated from the two complaints-affidavits filed by
respondent Cecille S. Abalos on 18 January 2001 before the Office of the
City Prosecutor of Iligan City, against petitioner for Estafa.
Respondent alleged in the complaints-affidavits that petitioner, through
deceit, received and encashed two checks issued in the name of
respondent without respondent’s knowledge and consent and that despite
repeated demands by the latter, petitioner failed and refused to pay the
proceeds of the checks.
On 23 March 2001, petitioner filed a counter-affidavit admitting that she
received and encashed the two checks issued in favor of respondent.
In her Supplemental Affidavit filed on 29 March 2001, petitioner, however,
recanted and alleged instead that it was a certain Bebie Correa who
received the two checks which are the subject matter of the complaints
and encashed the same; and that said Bebie Correa left the country after
misappropriating the proceeds of the checks.
On 25 April 2001, a resolution was issued by the Office of the City
Prosecutor of Iligan City finding probable cause against petitioner and
Falsification of Commercial Document by a Private Individual, under Article
315 in relation to Articles 171 and 172 of the Revised Penal Code, as
amended.
Consequently, two separate criminal cases were filed against petitioner
docketed as Criminal Cases No. 8781 and No. 8782, raffled to Branches 4
and 5, Regional Trial Court of Iligan City, respectively.
This instant petition pertains only to Criminal Case No. 8782.
On 8 June 2001, upon motion of the petitioner, the trial court in Criminal
Case No. 8782 issued an order directing the Office of the City Prosecutor of
Iligan City to conduct a reinvestigation.
After conducting the reinvestigation, the Office of the City Prosecutor of
Iligan City issued a resolution dated 30 August 2001, affirming the finding
of probable cause against petitioner.
Meanwhile, during her arraignment on 1 October 2001 in Criminal Case
No. 8782, petitioner entered an unconditional plea of not guilty.3
Dissatisfied with the finding of the Office of the City Prosecutor of Iligan
City, petitioner filed a Petition for Review before the DOJ on 15 October
2001.
In a Resolution dated 11 July 2002, the DOJ reversed and set aside the 30
August 2001 resolution of the Office of the City Prosecutor of Iligan City
and directed the said office to withdraw the Information for Estafa against
petitioner.
The said DOJ resolution prompted the Office of the City Prosecutor of
Iligan City to file a "Motion to Withdraw Information" on 25 July 2002.
On 26 July 2002, respondent filed a motion for reconsideration of said
resolution of the DOJ arguing that the DOJ should have dismissed outright
the petition for review since Section 7 of DOJ Circular No. 70 mandates
that when an accused has already been arraigned and the aggrieved party
files a petition for review before the DOJ, the Secretary of Justice cannot,
and should not take cognizance of the petition, or even give due course
thereto, but instead deny it outright. Respondent claimed Section 12
thereof mentions arraignment as one of the grounds for the dismissal of
the petition for review before the DOJ.
In a resolution dated 30 January 2003, the DOJ denied the Motion for
Reconsideration opining that under Section 12, in relation to Section 7, of
DOJ Circular No. 70, the Secretary of Justice is not precluded from
entertaining any appeal taken to him even where the accused has already
been arraigned in court. This is due to the permissive language "may"
utilized in Section 12 whereby the Secretary has the discretion to entertain
an appealed resolution notwithstanding the fact that the accused has been
arraigned.
Meanwhile, on 27 February 2003, the trial court issued an order granting
petitioner’s "Motion to Withdraw Information" and dismissing Criminal
Case No. 8782. No action was taken by respondent or any party of the case
from the said order of dismissal.
Aggrieved by the resolution of the DOJ, respondent filed a Petition for
Certiorari before the Court of Appeals. Respondent raised the following
issues before the appellate court:
1. Whether or not the Department of Justice gravely abused its
discretion in giving due course to petitioner’s petition for review
despite its having been filed after the latter had already been
arraigned;
2. Whether or not there is probable cause that the crime of estafa
has been committed and that petitioner is probably guilty thereof;
3. Whether or not the petition before the Court of Appeals has
been rendered moot and academic by the order of the Regional
Trial Court dismissing Criminal Case No. 8782.
The Court of Appeals in a Decision dated 21 July 2004 granted
respondent’s petition and reversed the Resolutions of the DOJ dated 11
July 2002 and 30 January 2003.
In resolving the first issue, the Court of Appeals, relying heavily on Section
7 of DOJ Circular No. 70 which states "[i]f an information has been filed in
court pursuant to the appealed resolution, the petition shall not be given
due course if the accused had already been arraigned," ruled that since
petitioner was arraigned before she filed the petition for review with the
DOJ, it was imperative for the DOJ to dismiss such petition. It added that
when petitioner pleaded to the charge, she was deemed to have waived
her right to reinvestigation and right to question any irregularity that
surrounds it.
Anent the second issue, the Court of Appeals declared that the existence
of probable cause or the lack of it, cannot be dealt with by it since factual
issues are not proper subjects of a Petition for Certiorari.
In disposing of the last issue, the Court of Appeals held that the order of
the trial court dismissing the subject criminal case pursuant to the assailed
resolutions of the DOJ did not render the petition moot and academic. It
said that since the trial court’s order relied solely on the resolutions of the
DOJ, said order is void as it violated the rule which enjoins the trial court to
assess the evidence presented before it in a motion to dismiss and not to
rely solely on the prosecutor’s averment that the Secretary of Justice had
recommended the dismissal of the case.
Dissatisfied by the Court of Appeals’ ruling, petitioner filed a Motion for
Reconsideration setting forth the following grounds:
1. that the over-all language of Sections 7 and 12 of Department
Circular No. 70 is permissive and directory such that the Secretary
of Justice may entertain an appeal despite the fact that the
accused had been arraigned;
2. that the contemporaneous construction by the Secretary of
Justice should be given great weight and respect;
3. that Section 7 of the Circular applies only to resolutions
rendered pursuant to a preliminary investigation, not on a
reinvestigation;
4. that the trial court’s order of dismissal of the criminal case has
rendered the instant petition moot and academic;
5. that her arraignment was null and void it being conducted
despite her protestations; and
 6. that despite her being arraigned, the supposed waiver of her
right to preliminary investigation has been nullified or recalled by
virtue of the trial court’s order of reinvestigation.4
The Court of Appeals stood firm by its decision. This time, however, it tried
to construe Section 7 side by side with Section 12 of DOJ Circular No. 70
and attempted to reconcile these two provisions. According to the
appellate court, the phrase "shall not" in paragraph two, first sentence of
Section 7 of subject circular, to wit:
If an information has been filed in court pursuant to the appealed
resolution, the petition shall not be given due course if the accused had
already been arraigned. x x x. (Emphasis supplied.)
employed in the circular denotes a positive prohibition. Applying the
principle in statutory construction - that when a statute or provision
contains words of positive prohibition, such as "shall not," "cannot," or
"ought not" or which is couched in negative terms importing that the act
shall not be done otherwise than designated, that statute or provision is
mandatory, thus rendering the provision mandatory – it opined that the
subject provision simply means that the Secretary of Justice has no other
course of action but to deny or dismiss a petition before him when
arraignment of an accused had already taken place prior to the filing of the
petition for review.
On the other hand, reading Section 12 of the same circular which reads:
The Secretary may reverse, affirm or modify the appealed resolution. He
may, motu proprio or upon motion, dismiss the petition for review on any
of the following grounds:
xxxx
(e) That the accused had already been arraigned when the appeal was
taken; x x x.
the Court of Appeals opined that the permissive word "may" in Section 12
would seem to imply that the Secretary of Justice has discretion to
entertain an appeal notwithstanding the fact that the accused has been
arraigned. This provision should not be treated separately, but should be
read in relation to Section 7. The two provisions, taken together, simply
meant that when an accused was already arraigned when the aggrieved
party files a petition for review, the Secretary of Justice cannot, and should
not take cognizance of the petition, or even give due course thereto, but
instead dismiss or deny it outright. The appellate court added that the
word "may" in Section 12 should be read as "shall" or "must" since such
construction is absolutely necessary to give effect to the apparent
intention of the rule as gathered from the context.
As to the contemporaneous construction of the Secretary of Justice, the
Court of Appeals stated that the same should not be given weight since it
was erroneous.
Anent petitioner’s argument that Section 7 of the questioned circular
applies only to original resolutions that brought about the filing of the
corresponding informations in court, but not to resolutions rendered
pursuant to a motion for reinvestigation, the appellate court simply
brushed aside such contention as having no basis in the circular
questioned.
It also rejected petitioner’s protestation that her arraignment was forced
upon her since she failed to present any evidence to substantiate the
same.
It is petitioner’s contention that despite her being arraigned, the supposed
waiver of her right to preliminary investigation has been nullified by virtue
of the trial court’s order or reinvestigation. On this score, the Court of
Appeals rebuffed such argument stating that there was no "supposed
waiver of preliminary investigation" to speak of for the reason that
petitioner had actually undergone preliminary investigation.
Petitioner remained unconvinced with the explanations of the Court of
Appeals.
Hence, the instant petition.
Again, petitioner contends that the DOJ can give due course to an appeal
or petition for review despite its having been filed after the accused had
already been arraigned. It asserts that the fact of arraignment of an
accused before the filing of an appeal or petition for review before the DOJ
"is not at all relevant" as the DOJ can still take cognizance of the appeal or
Petition for Review before it. In support of this contention, petitioner set
her sights on the ruling of this Court in Crespo v. Mogul,5 to wit:
The rule therefore in this jurisdiction is that once a complaint or
information is filed in Court any disposition of the case as to its dismissal or
the conviction or acquittal of the accused rests in the sound discretion of
the Court. Although the fiscal retains the direction and control of the
prosecution of criminal cases even while the case is already in Court he
cannot impose his opinion on the trial court. The Court is the best and sole
judge on what to do with the case before it. The determination of the case
is within its exclusive jurisdiction and competence. A motion to dismiss the
case filed by the fiscal should be addressed to the Court who has the
option to grant or deny the same. It does not matter if this is done before
or after the arraignment of the accused or that the motion was filed after a
reinvestigation or upon instructions of the Secretary of Justice who
reviewed the records of the investigation. (Emphasis supplied.)
To bolster her position, petitioner cites Roberts v. Court of Appeals, 6 which
stated:
There is nothing in Crespo vs. Mogul which bars the DOJ from taking
cognizance of an appeal, by way of a petition for review, by an accused in a
criminal case from an unfavorable ruling of the investigating prosecutor. It
merely advised the DOJ to, "as far as practicable, refrain from entertaining
a petition for review or appeal from the action of the fiscal, when the
complaint or information has already been filed in Court. x x x. (Emphasis
supplied.)
Petitioner likewise invokes Marcelo v. Court of Appeals7 where this Court
declared:
Nothing in the said ruling forecloses the power or authority of the
Secretary of Justice to review resolutions of his subordinates in criminal
cases. The Secretary of Justice is only enjoined to refrain as far as
practicable from entertaining a petition for review or appeal from the
action of the prosecutor once a complaint or information is filed in court.
In any case, the grant of a motion to dismiss, which the prosecution may
file after the Secretary of Justice reverses an appealed resolution, is subject
to the discretion of the court.
The Court is unconvinced.
A cursory reading of Crespo v. Mogul reveals that the ruling therein does
not concern the issue of an appeal or petition for review before the DOJ
after arraignment. Verily, the pronouncement therein has to do with the
filing of a motion to dismiss and the court’s discretion to deny or grant the
same. As correctly pointed out by respondent, the emphasized portion in
the Crespo ruling is a parcel of the entire paragraph which relates to the
duty and jurisdiction of the trial court to determine for itself whether or
not to dismiss a case before it, and which states that such duty comes into
play regardless of whether such motion is filed before or after arraignment
and upon whose instructions. The allusion to the Secretary of Justice as
reviewing the records of investigation and giving instructions for the filing
of a motion to dismiss in the cited ruling does not take into consideration
of whether the appeal or petition before the Secretary of Justice was filed
after arraignment. Significantly, in the Crespo case, the accused had not
yet been arraigned when the appeal or petition for review was filed before
the DOJ. Undoubtedly, petitioner’s reliance on the said case is misplaced.
Also unavailing is petitioner’s invocation of the cases of Roberts v. Court of
Appeals and Marcelo v. Court of Appeals. As in Crespo v. Mogul, neither
Roberts v. Court of Appeals nor Marcelo v. Court of Appeals took into
account of whether the appeal or petition before the Secretary of Justice
was filed after arraignment. Just like in the Crespo case, the accused in
both Roberts v. Court of Appeals and Marcelo v. Court of Appeals had not
yet been arraigned when the appeal or petition for review was filed before
the DOJ.
Moreover, petitioner asserts that the Court of Appeals’ interpretation of
the provisions of DOJ Circular No. 70 violated three basic rules in statutory
construction. First, the rule that the provision that appears last in the order
of position in the rule or regulation must prevail. Second, the rule that the
contemporaneous construction of a statute or regulation by the officers
who enforce it should be given weight. Third, petitioner lifted a portion
from Agpalo’s Statutory Construction8 where the word "shall" had been
construed as a permissive, and not a mandatory language.
The all too-familiar rule in statutory construction, in this case, an
administrative rule9 of procedure, is that when a statute or rule is clear and
unambiguous, interpretation need not be resorted to.10 Since Section 7 of
the subject circular clearly and categorically directs the DOJ to dismiss
outright an appeal or a petition for review filed after arraignment, no
resort to interpretation is necessary.
Petitioner’s reliance to the statutory principle that "the last in order of
position in the rule or regulation must prevail" is not applicable. In addition
to the fact that Section 7 of DOJ Circular No. 70 needs no construction, the
cited principle cannot apply because, as correctly observed by the Court of
Appeals, there is no irreconcilable conflict between Section 7 and Section
12 of DOJ Circular No. 70. Section 7 of the circular provides:
SECTION 7. Action on the petition. – The Secretary of Justice may dismiss
the petition outright if he finds the same to be patently without merit or
manifestly intended for delay, or when the issues raised therein are too
unsubstantial to require consideration. If an information has been filed in
court pursuant to the appealed resolution, the petition shall not be given
due course if the accused had already been arraigned. Any arraignment
made after the filing of the petition shall not bar the Secretary of Justice
from exercising his power of review. (Italics supplied.)
On the other hand, Section 12 of the same circular states:
SECTION 12. Disposition of the Appeal. – The Secretary may reverse, affirm
or modify the appealed resolution. He may, motu proprio or upon
motion, dismiss the petition for review on any of the following grounds:
(a) That the petition was filed beyond the period prescribed in
Section 3 hereof;
(b) That the procedure or any of the requirements herein
provided has not been complied with;
(c) That there is no showing of any reversible error;
(d) That the appealed resolution is interlocutory in nature, except
when it suspends the proceedings based on the alleged existence
of a prejudicial question;
(e) That the accused had already been arraigned when the appeal
was taken;
(f) That the offense has already prescribed; and
(g) That other legal or factual grounds exist to warrant a dismissal.
(Emphases supplied.)
It is noteworthy that the principle cited by petitioner reveals that, to find
application, the same presupposes that "one part of the statute cannot be
reconciled or harmonized with another part without nullifying one in favor
of the other." In the instant case, however, Section 7 is neither
contradictory nor irreconcilable with Section 12. As can be seen above,
Section 7 pertains to the action on the petition that the DOJ must take,
while Section 12 enumerates the options the DOJ has with regard to the
disposition of a petition for review or of an appeal.
As aptly observed by respondent, Section 7 specifically applies to a
situation on what the DOJ must do when confronted with an appeal or a
petition for review that is either clearly without merit, manifestly intended
to delay, or filed after an accused has already been arraigned, i.e., he may
dismiss it outright if it is patently without merit or manifestly intended to
delay, or, if it was filed after the acccused has already been arraigned, the
Secretary shall not give it due course.
Section 12 applies generally to the disposition of an appeal. Under said
section, the DOJ may take any of four actions when disposing an appeal,
namely:
1. reverse the appealed resolution;
2. modify the appealed resolution;
3. affirm the appealed resolution;
4. dismiss the appeal altogether, depending on the circumstances
and incidents attendant thereto.
As to the dismissal of a petition for review or an appeal, the grounds are
provided for in Section 12 and, consequently, the DOJ must evaluate the
pertinent circumstances and the facts of the case in order to determine
which ground or grounds shall apply.
Thus, when an accused has already been arraigned, the DOJ must not give
the appeal or petition for review due course and must dismiss the same.
This is bolstered by the fact that arraignment of the accused prior to the
filing of the appeal or petition for review is set forth as one of the grounds
for its dismissal. Therefore, in such instance, the DOJ, noting that the
arraignment of an accused prior to the filing of an appeal or petition for
review is a ground for dismissal under Section 12, must go back to Section
7 and act upon as mandated therein. In other words, the DOJ must not give
due course to, and must necessarily dismiss, the appeal.
Likewise, petitioner’s reliance on the principle of contemporary
construction, i.e., the DOJ is not precluded from entertaining appeals
where the accused had already been arraigned, because it exercises
discretionary power, and because it promulgated itself the circular in
question, is unpersuasive. As aptly ratiocinated by the Court of Appeals:
True indeed is the principle that a contemporaneous interpretation or
construction by the officers charged with the enforcement of the rules and
regulations it promulgated is entitled to great weight by the court in the
latter’s construction of such rules and regulations. That does not, however,
make such a construction necessarily controlling or binding. For equally
settled is the rule that courts may disregard contemporaneous
construction in instances where the law or rule construed possesses no
ambiguity, where the construction is clearly erroneous, where strong
reason to the contrary exists, and where the court has previously given the
statute a different interpretation.
If through misapprehension of law or a rule an executive or administrative
officer called upon to implement it has erroneously applied or executed it,
the error may be corrected when the true construction is ascertained. If a
contemporaneous construction is found to be erroneous, the same must
be declared null and void. Such principle should be as it is applied in the
case at bar.11
Petitioner’s posture on a supposed exception to the mandatory import of
the word "shall" is misplaced. It is petitioner’s view that the language of
Section 12 is permissive and therefore the mandate in Section 7 has been
transformed into a matter within the discretion of the DOJ. To support this
stance, petitioner cites a portion of Agpalo’s Statutory Construction which
reads:
For instance, the word "shall" in Section 2 of Republic Act 304 which states
that "banks or other financial institutions owned or controlled by the
Government shall, subject to availability of funds xxx, accept at a discount
at not more than two per centum for ten years such (backpay) certificate"
implies not a mandatory, but a discretionary, meaning because of the
phrase "subject to availability of funds." Similarly, the word "shall" in the
provision to the effect that a corporation violating the corporation law
"shall, upon such violation being proved, be dissolved by quo warranto
proceedings" has been construed as "may."12
After a judicious scrutiny of the cited passage, it becomes apparent that
the same is not applicable to the provision in question. In the cited
passage, the word "shall" departed from its mandatory import connotation
because it was connected to certain provisos/conditions: "subject to the
availability of funds" and "upon such violation being proved." No such
proviso/condition, however, can be found in Section 7 of the subject
circular. Hence, the word "shall" retains its mandatory import.
At this juncture, the Court of Appeals’ disquisition in this matter is
enlightening:
Indeed, if the intent of Department Circular No. 70 were to give the
Secretary of Justice a discretionary power to dismiss or to entertain a
petition for review despite its being outrightly dismissible, such as when
the accused has already been arraigned, or where the crime the accused is
being charged with has already prescribed, or there is no reversible error
that has been committed, or that there are legal or factual grounds
warranting dismissal, the result would not only be incongruous but also
irrational and even unjust. For then, the action of the Secretary of Justice
of giving due course to the petition would serve no purpose and would
only allow a great waste of time. Moreover, to give the second sentence of
Section 12 in relation to its paragraph (e) a directory application would not
only subvert the avowed objectives of the Circular, that is, for the
expeditious and efficient administration of justice, but would also render
its other mandatory provisions - Sections 3, 5, 6 and 7, nugatory.13
In her steadfast effort to champion her case, petitioner contends that the
issue as to whether the DOJ rightfully entertained the instant case, despite
the arraignment of the accused prior to its filing, has been rendered moot
and academic with the order of dismissal by the trial court dated 27
February 2003. Such contention deserves scant consideration.
It must be stressed that the trial court dismissed the case precisely
because of the Resolutions of the DOJ after it had, in grave abuse of its
discretion, took cognizance of the petition for review filed by petitioner.
Having been rendered in grave abuse of its discretion, the Resolutions of
the DOJ are void. As the order of dismissal of the trial court was made
pursuant to the void Resolutions of the DOJ, said order was likewise void.
The rule in this jurisdiction is that a void judgment is a complete nullity and
without legal effect, and that all proceedings or actions founded thereon
are themselves regarded as invalid and ineffective for any purpose. 14 That
respondent did not file a motion for reconsideration or appeal from the
dismissal order of the trial court is of no moment. Since the dismissal was
void, there was nothing for respondent to oppose.
Besides, under Rule 45 of the Rules of Court, only questions of law may be
raised in, and be subject of, a petition for review on certiorari since this
Court is not a trier of facts. This being the case, this Court cannot review
the evidence adduced by the parties before the prosecutor on the issue of
the absence or presence of probable cause.20

Petitioner further asserts that Section 7 of DOJ Circular No. 70 applies only
to appeals from original resolution of the City Prosecutor and does not
apply in the instant case where an appeal is interposed by petitioner from
the Resolution of the City Prosecutor denying her motion for
reinvestigation. This claim is baseless.1avvphi1.net
WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals
dated 21 July 2004 and its Resolution dated 10 June 2005 in CA-G.R. SP No.
76396 are AFFIRMED. Costs against petitioner.
SO ORDERED.

A reading of Section 7 discloses that there is no qualification given by the OPLE OF THE PHILIPPINES, G.R. No. 188706
same provision to limit its application to appeals from original resolutions Appellee,
and not to resolutions on reinvestigation. Hence, the rule stating that Present:
"when the law does not distinguish, we must not distinguish"15 finds
application in this regard. CORONA, J.,
Chairperson,
Petitioner asserts that her arraignment was null and void as the same was VELASCO, JR.,
improvidently conducted. Again, this contention is without merit. Records - versus - NACHURA,
reveal that petitioner’s arraignment was without any restriction, condition PERALTA, and
or reservation.16 In fact she was assisted by her counsels Atty. Arthur MENDOZA, JJ.
Abudiente and Atty. Maglinao when she pleaded to the charge. 17

Moreover, the settled rule is that when an accused pleads to the charge, Promulgated:
he is deemed to have waived the right to preliminary investigation and the OSCAR M. DOCUMENTO,
right to question any irregularity that surrounds it. 18 This precept is also Appellant. March 17, 2010
applicable in cases of reinvestigation as well as in cases of review of such
reinvestigation. In this case, when petitioner unconditionally pleaded to x------------------------------------------------------------------------------------x
the charge, she effectively waived the reinvestigation of the case by the
prosecutor as well as the right to appeal the result thereof to the DOJ
Secretary. Thus, with the arraignment of the petitioner, the DOJ Secretary RESOLUTION
can no longer entertain the appeal or petition for review because
petitioner had already waived or abandoned the same. NACHURA, J.:

Lastly, while there is authority19 permitting the Court to make its own On appeal is the Court of Appeals (CA) Decision [1] dated August
determination of probable cause, such, however, cannot be made 13, 2008, affirming the Regional Trial Court[2] (RTC) Decision[3]dated June 9,
applicable in the instant case. As earlier stated, the arraignment of 2003, finding appellant Oscar Documento guilty beyond reasonable doubt
petitioner constitutes a waiver of her right to preliminary investigation or of two (2) counts of Rape.
reinvestigation. Such waiver is tantamount to a finding of probable cause.
For this reason, there is no need for the Court to determine the existence
or non-existence of probable cause.
 Documento was charged before the RTC with two (2) counts of Rape, 1. Documento started sexually molesting his daughter, AAA, in
as defined and punished under Article 335 of the Revised Penal Code, in 1989 when she was ten (10) years old. Eventually, AAA became pregnant
separate Informations, which read: and gave birth in 1993.
2. Documento raped AAA on a number of occasions in the houses
CRIMINAL CASE NO. 6899 of Barsilisa Morada, Documento’s relative, and Aida Documento, both
located in Butuan City. During each incident, Documento hit and hurt AAA
That sometime on April 22, 1996 at Ochoa physically. He likewise threatened to kill her if she told anyone of the rape.
Avenue, Butuan City, Philippines, and within the
jurisdiction of this Honorable Court, the above-named 3. AAA’s mother, BBB, who was working in Manila from 1994
accused with the use of force and intimidation, did then to 1996, went to Barsilisa and asked for help in locating Oscar and AAA.
and there willfully, unlawfully and feloniously have carnal BBB testified that she had not seen nor heard from the two since April 7,
knowledge with his daughter AAA, a minor, 16 years of 1994, when Documento brought their daughters AAA and CCC to Tubod,
age, against her will and consent. Lanao del Norte, for a vacation. Thereafter, Documento left CCC in Tubod
and brought AAA with him to Santiago, Agusandel Norte.
CONTRARY TO LAW: (Art. 335 of the Revised Penal
Code in relation to R.A. 7659). 4. When BBB found out from their relatives that AAA got pregnant
and gave birth, she suspected that Documento was the culprit. Upon
learning that Documento and AAA were in Butuan City, she went to the
CRIMINAL CASE NO. 6900 Butuan Police Station and requested assistance in securing custody of AAA.
As soon as Documento was arrested, AAA informed the police that
That sometime on October 15, 1995 at Barangay Documento raped her.
Antongalon, Butuan City, Philippines, and within the
jurisdiction of this Honorable Court, the above-named 5. Dr. Hugo testified on the genital examination he conducted on
accused with the use of force and intimidation, did then AAA, and affirmed the medical certificate he issued with the following
and there willfully, unlawfully and feloniously have carnal findings:
knowledge with his daughter AAA, a minor, 16 years of
age, against her will and consent. Physical exam: HEENT – with in normal
limits.
CONTRARY TO LAW: (Art. 335 of the Revised Penal C/L – with in normal limits.
Code in relation to R.A. 7659).[4] CVB – with in normal limits.
ABD – Soft; NABS
GU – (-) KPS
Upon arraignment, Documento pled not guilty. Subsequently,
however, he changed his earlier plea to one of guilt. As such, the RTC Genitalia - Parrous
ordered a re-arraignment and entered appellant’s plea of guilt to the - Healed vaginal
charges. laceration
- Vaginal introitus; admits
Thereafter, the prosecution presented evidence consisting of the 2 finger[s]
testimonies of private complainant herself, AAA, her mother, BBB, and Dr. with ease
Johann A. Hugo. Their testimonies established the following: - Hymen
with pemnants “caruncula
multiforma”
 Labs; Vaginal Smear; Negative for
Spermatozoa.[5]
Documento testified as the sole witness for the defense. He
asseverated that he pled guilty to the crime of Rape only because
Prosecutor Hector B. Salise convinced him to do so. Documento contended
that he did not rape AAA, and that, to the contrary, they had a consensual,
sexual relationship. He further alleged that the incident did not happen
in Butuan City, but in Clarin, Misamis Occidental. Finally, on cross-
examination, Documento disowned the handwritten letters he had
supposedly written to his wife and to AAA, asking for their forgiveness.
The RTC rendered judgment convicting Documento of both counts of
Rape, to wit:
WHEREFORE, as a consequence of the foregoing,
this Court finds accused Oscar M. Documento GUILTY
beyond reasonable doubt of the two (2) counts of rape
and correspondingly sentences him:
1. To suffer the penalty of DEATH in each of
the two (2) rape cases filed against him - Criminal Case
No. 6899 and Criminal Case No. 6900;
2. To indemnify the victim, AAA, in the
amount of P75,000.00 as civil indemnity, P50,000.00 as
moral damages and P25,000.00 as exemplary damages,
respectively, for each count of rape in accordance with
recent jurisprudence.
Let a Commitment Order be issued for the transfer
of accused Oscar M. Documento from Butuan City Jail to
the Bureau of Corrections, Muntinlupa,Metro Manila.
Let the records of these cases be forwarded
immediately to the Supreme Court for mandatory
review.
SO ORDERED.[6]
Consistent with our ruling in People v. Mateo,[7] Documento’s appeal
was remanded to the CA.
Ruling on the appeal, the CA affirmed the RTC’s conviction, but
changed the penalty imposed on Documento from death penalty
toreclusion perpetua, and increased the award of moral damages
from P50,000.00 to P75,000.00 for each count of Rape. The fallo of the
Decision reads:
WHEREFORE, the assailed Decision finding
appellant Oscar Documento guilty beyond reasonable
doubt of two counts of the crime of rape and ordering
him to indemnify the victim for each count of rape the
amounts of P75,000.00 as civil indemnity and P25,000.00
as exemplary damages, is AFFIRMED with the
MODIFICATION that the award of moral damages is
increased to P75,000.00 for each count of rape and that
in lieu of the death penalty, appellant
Oscar Documento is hereby sentenced to suffer the
penalty of reclusion perpetua for each count of rape
without possibility of parole.
SO ORDERED.[8]
Hence, this appeal, assigning the following errors:
I
THE TRIAL COURT GRAVELY ERRED IN DECIDING THE
CASE WITHOUT FIRST RESOLVING ITS TERRITORIAL
JURISDICTION OVER THE CRIME CHARGED AS THE
PROSECUTION FAILED TO ESTABLISH THAT THE TWO (2)
COUNTS OF RAPE WERE PERPETRATED INBUTUAN CITY.
II.
THE TRIAL COURT GRAVELY ERRED IN FAILING TO
CONDUCT A SEARCHING INQUIRY INTO THE
VOLUNTARINESS AND FULL COMPREHENSION BY
ACCUSED-APPELLANT OF THE CONSEQUENCES OF HIS
PLEA.[9]
We find no cogent reason to disturb Documento’s conviction. We
affirm the CA, but with modification.
 On the issue of the trial court’s territorial jurisdiction over the
crime, we completely agree with the appellate court’s ruling thereon.
Contrary to the insistence of Documento that the prosecution failed to
establish that the two (2) counts of Rape were perpetrated in ButuanCity,
the CA pointed to specific parts of the records which show that, although
AAA did not specifically mention “Butuan City” in her testimony, the
incidents in the present cases transpired in Barangay Antongalon and on
Ochoa Avenue, both in Butuan City.
First. AAA in her Sworn Statement dated April 24,
1996 answered the prosecutor’s question in this wise:
15. Q : Right after you arrived
[in] Butuan City, did your father
molest you or rape you?
A : Yes, sir.
Q : When was that?
A : From the month of October 15,
1995 when we stayed
[in] Barangay Antongalon, Butuan
City, and the last happened in the
evening of April 22, 1996
[on] Ochoa Avenue, Butuan City.
Second. The Resolution dated May 3, 1996 of
Hector B. Salise, Second Assistant City Prosecutor, states
that:
There were many places they
stayed and several sexual intercourse
that took place which this office has no
jurisdiction to conduct preliminary
investigation but only on the incidents
of rape that took place
[in] Antongalon, Butuan City on
October 15, 1995 and [on]Ochoa
Avenue, Butuan City on April 22, 1996.
Third. The two (2) Informations dated May 8,
1996, clearly state that the crimes charged against
appellant were perpetrated
in Barangay Antongalonand Ochoa
Avenue, Butuan City on October 15, 1995 and April 22,
1996, respectively.
Fourth. The inclusion of the two Barangays in the
City of Butuan is a matter of mandatory judicial notice by
the trial court. Section 1 of Rule 129 of the Revised Rules
on Evidence provides –
SECTION 1. Judicial notice,
when mandatory. – A court shall take
judicial notice, without the introduction
of evidence, of the existence and
territorial extent of states, their
political history, forms of government
and symbols of nationality, the law of
nations, the admiralty and maritime
courts of the world and their seals, the
political constitution and history of the
Philippines, the official acts of the
legislative, executive and judicial
departments of the Philippines, the
laws of nature, the measure of time,
and the geographical divisions.[10]
Documento avers that his conviction for Rape must be reversed
because the trial court did not properly conduct a searching inquiry on the
voluntariness and full comprehension of his plea of guilt.
We disagree.
It is true that the appellate court noted the trial court’s failure to
conduct the prescribed “searching inquiry” into the matter of whether or
not Documento’s plea of guilt was improvidently made. Nonetheless, it still
found the conviction of appellant proper. Its disquisition
onDocumento’s plea of guilt is in point.
Nothing in the records of the case at bench
shows that the trial court complied with the guidelines
[set forth by the Supreme Court in a number of cases]
after appellant’s re-arraignment and guilty plea. The
questions propounded to appellant during the direct and
cross-examination likewise fall short of these
requirements. x x x.
xxxx
The questions propounded were clearly not
compliant with the guidelines set forth by the High Court.
The appellant was not fully apprised of the consequences
of his guilty plea. In fact, as argued by appellant, “the
trial court should have informed him that his plea of guilt
would not affect or reduce the imposable penalty, which
is death as he might have erroneously believed that
under Article 63, the death penalty, being a single
indivisible penalty, shall be applied by the court
regardless of any mitigating circumstances that might
have attended the commission of the deed.” Moreover,
the trial court judge failed to inform appellant of his right
to adduce evidence despite the guilty plea.
With the trial court’s failure to comply with the
guidelines, appellant’s guilty plea is deemed
improvidently made and thus rendered inefficacious.
This does not mean, however, that the case should
be remanded to the trial court. This course of action is
appropriate only when the appellant’s guilty plea was the
sole basis for his conviction. As held in People v. Mira, -
Notwithstanding the
incautiousness that attended
appellant’s guilty plea, we are not
inclined to remand the case to the trial
court as suggested by appellant.
Convictions based on an improvident
plea of guilt are set aside only if such
plea is the sole basis of the judgment. If
the trial court relied on sufficient and
credible evidence in finding the
accused guilty, the judgment must be
sustained, because then it is predicated
not merely on the guilty plea of the
accused but also on evidence proving
his commission of the offense
charged.[11]
On the whole, we find that the appellate court committed no
reversible error in affirming the trial court’s ruling convicting Documento.
Lastly, on the matter of the appellate court’s award of exemplary
damages, we increase the award from P25,000.00 to P30,000.00 in line
with prevailing jurisprudence.
WHEREFORE, premises considered, the Court of Appeals Decision
dated August 13, 2008 in CA-G.R. CR–HC No. 00285 isAFFIRMED with
the MODIFICATION that the award of exemplary damages is hereby
increased from P25,000.00 to P30,000.00. The Decision is affirmed in all
other respects.
SO ORDERED.
G.R. No. 114331. May 27, 1997]
CESAR E. A. VIRATA,Petitioner, vs. THE HONORABLE SANDIGANBAYAN and
THE REPUBLIC OF THE PHILIPPINES,Respondents.
DECISION
TORRES, JR., J.:
In times past, when due process was more of a myth - empty accusations
have had its day. In a more enlightened age, a sage was heard to say -
Strike me if you must, but hear me first! We have come a long way, indeed,
for in our time one who is required to answer for an alleged wrong must at
least know what is it all about.
This is the case before Us.
In this case, petitioner Cesar E. A. Virata (Virata, for brevity) is one of the
defendants in Civil Case No. 0035, entitled Republic of the Philippines
versus Benjamin (Kokoy) Romualdez, et. al.. The case, which was filed by
the Presidential Commission on Good Government in behalf of the
Republic of the Philippines (Republic, for brevity) against fifty three
persons (53)1 including Virata, involves the recovery of ill-gotten wealth
amassed by the defendants during the twenty year reign of former
President Ferdinand Marcos.
The complaint against the defendants was amended three times. The last
amended complaint filed with the Sandiganbayan, hereafter known as the
expanded Second Amended Complaint, states, inter alia, the following
relevant allegations against petitioner Virata:
V. SPECIFIC AVERMENTS OF DEFENDANTS ILLEGAL ACTS
xxx.
14. Defendants Benjamin (Kokoy) Romualdez and Juliette Gomez
Romualdez, acting by themselves and/or in unlawful concert with
Defendants Ferdinand E. Marcos and Imelda R. Marcos, and taking
undue advantage of their relationship, influence and connection with
the latter Defendant spouses, engaged in devises, schemes and
strategems to unjustly enrich themselves at the expense of plaintiff
and the Filipino people, among others:
xxx
(b) gave MERALCO undue advantage (i) by effecting the increase of power
rates with automatic authority to tack into the consumers electric bills the
so-called purchase and currency adjustment, and (ii) with the active
collaboration of Defendant Cesar E. A. Virata, by reducing the electric
franchise tax from 5% to 2% of gross receipts and the tariff duty on fuel oil
imports by public utilities from 20% to 10%, resulting in substantial savings
for MERALCO but without any significant benefit to the consumers of
electric power and loss of millions of pesos in much needed revenues to
the government;
xxx
(g) secured, in a veiled attempt to justify MERALCOs anomalous acquisition
of the electric cooperatives, with the active collaborations of Defendants
Cesar E. A. Virata, Juanito R. Remulla, Isidro Rodriguez, Jose C. Hernandez,
Pedro Dumol, Ricardo C. Galing, Francisco C. Gatmaitan, Mario D. Camacho
and the rest of the Defendants, the approval by Defendant Ferdinand E.
Marcos and his cabinet of the so-called Three-Year Program for the
Extension of MERALCOs Services to Areas Within the 60-Kilometer Radius
of Manila, which required government capital investment amounting to
millions of pesos;
xxx
(m) manipulated, with the support, assistance and collaboration of
Philguarantee officials led by Chairman Cesar E. A. Virata and the senior
managers of FMMC/PNI Holdings Incorporated led by Jose S. Sandejas, Jr.,
Jose M. Mantecon and Kurt S. Bachman, Jr., among others, the formation
of Erectors Holdings, Inc. without infusing additional capital solely for the
purpose of making it assume the obligation of Erectors Incorporated with
Philguarantee in the amount of P527,387,440.71 with insufficient
securities/collaterals just to enable Erectors Inc. to appear viable and to
borrow more capitals, so much so that its obligation with Philguarantee
has reached a total of more than P2 Billion as of June 30, 1987.
xxx
17. The following Defendants acted as dummies, nominees and/or
agents by allowing themselves (i) to be used as instruments in
accumulating ill-gotten wealth through government concessions,
orders and/or policies prejudicial to plaintiff, or (ii) to be
incorporators, directors or members of corporations beneficially held
and/or controlled by Defendants Ferdinand E. Marcos, Imelda R.
Marcos, Benjamin (Kokoy) T. Romualdez and Julliette Gomez
Romualdez in order (to) conceal and prevent recovery of assets
illegally obtained: xxx Cesar E. A. Virata xxx.
xxx
18. The acts of Defendants, singly or collectively, and/or in unlawful
concert with one another, constitute gross abuse of official position
and authority, flagrant breach of public trust and fiduciary
obligations, acquisition of unexplained wealth, brazen abuse of right
and power, unjust enrichment, violation of the Constitution and laws
of the Republic of the Philippines, to the grave and irreparable
damage of Plaintiff and the Filipino
people."2chanroblesvirtuallawlibrary
Asserting that the foregoing allegations are vague and are not averred with
sufficient definiteness as to enable him to effectively prepare his
responsive pleading, petitioner Virata filed a motion for a bill of particulars
on January 31, 1992.
In a Resolution promulgated on 4 August 1992, the Sandiganbayan partially
granted the said motion by requiring the Republic to submit a bill of
particulars concerning the charges against petitioner Virata stated only in
paragraph 17 (acting as dummy, nominee and/or agent) and paragraph 18
(gross abuse of authority and violation of laws and the Constitution) of the
expanded Second Amended Complaint. However, as to the other charges,
namely: 1) Viratas alleged active collaboration in the reduction of electric
franchise tax and the tariff duty on fuel oil imports, as stated in paragraph
14 b (ii), 2) his active collaboration in securing the approval by Ferdinand
Marcos of the Three Year Program for the Extension of MERALCOs Services
to Areas within the 60 Kilometer Radius of Manila, mentioned in paragraph
14 g, and 3) his support, assistance and collaboration in the formation of
Erectors Holdings Incorporated as reflected in paragraph 14 m of the
expanded Second Amended Complaint, the Sandiganbayan declared that
these accusations are clear and specific enough to allow Virata to submit
an intelligent responsive pleading, hence, the motion for a bill of
particulars respecting the foregoing three charges was denied.
In view of the Sandiganbayans order of August 4, 1992 requiring the
Republic to amplify the charges in paragraphs 17 and 18 of the expanded
Second Amended Complaint, the Republic through the Office of the
Solicitor General submitted the bill of particulars dated October 22, 1992,
hereafter called as the Limited Bill of Particulars, which was signed by a
certain Ramon A. Felipe IV, who was designated in the bill of particulars as
private counsel, the relevant portion of which provides that:
xxx
1. Defendant Virata, while being one of the members of the
Central Banks Monetary Board, approved Resolution No. 2320
dated December 14, 1973, allowing the Benpres Corporation,
Meralco Securities Corporation (MSC) and Manila Electric
Company (MERALCO) to refinance/restructure their
outstanding loan obligations, a sweetheart or behest
accommodation which enabled Meralco Foundation, Inc. to
acquire ownership and control of Manila Electric Company.
Meralco Foundation, Inc. was then controlled by the Marcos-
Romualdez Group with Benjamin (Kokoy) Romualdez being the
beneficial owner and, thereby, expanding the said groups
accumulation of ill-gotten wealth.
2. On July 11, 1978 defendant Virata representing the Republic
of the Philippines as Finance Minister, executed an Agreement
with the Manila Electric Company (MERALCO) whereby the
government agreed to buy the parcels of land, improvements
and facilities known as Gardner Station Unit No. 1, Gardner
Station Unit No. 2, Snyder Station Unit No. 1, Snyder Station
Unit No. 2 and Malaya Station Unit No. 1 for One Billion One
Hundred Million Pesos (P1,100,000,000.00), a transaction
which was so disadvantageous to the government and most
favorable to MERALCO which gained a total of P206.2 million.
As a result of this transaction, MERALCO is relieved of its heavy
burden in servicing its foreign loans which were assumed by the
government. Furthermore, the agreement clearly showed the
sweetheart deal and favors being given by the government to
MERALCO which was then owned/and or controlled by
Benjamin Romualdez representing the Marcos-Romualdez
group, when it provided that the sale is subject to the
reservation of rights, leases and easements in favor of
Philippine Petroleum Corp., First Philippine Industrial Corp.
(formerly MERALCO Securities Industrial Corp.) and Pilipinas
Shell Petroleum Corp. insofar as the same are presently in force
and applicable. This enabled the Marcos-Romualdez Group to
further accumulate and expand the ill-gotten wealth and
plunder the nation.
3. At the meeting of the Board of Directors of the Philippine
Export and Foreign Loan Guarantee Corp. held on September
16, 1983 defendant Virata acting as Chairman, together with
the other members of the board, approved the request of
Erectors, Inc., a Benjamin Romualdez owned and/or controlled
corporation, for a guarantee to cover 100 % of its proposed
behest loan of US $33.5 Million under the Central Bank
Consolidated Foreign Borrowing Program with the Philippine
National Bank, Development Bank of the Philippines, Interbank,
Philippine Commercial International Bank and Associated Bank
as conduit banks, to refinance Erectors, Inc.s short term loans
guaranteed by Philguarantee, which at present forms part of
the governments huge foreign debt. Such act of defendant
Virata was a flagrant breach of public trust as well as a violation
of his duty to protect the financial condition and economy of
 the country against, among others, abuses and
corruption.3chanroblesvirtuallawlibrary
On 3 December 1992, a motion to strike out the Limited Bill of Particulars
and to defer the filing of the answer was filed by Virata on the grounds
that the Limited Bill of Particulars avers for the first time new actionable
wrongs allegedly committed by him in various official capacities and that
the allegations therein do not indicate that Virata acted as dummy,
nominee or agent but rather as a government officer, acting as such in his
own name. This motion was not acted upon by the Sandiganbayan.
Way back on September 1, 1992, Virata, who was dissatisfied with the
Sandiganbayan Resolution of August 4, 1992, filed a petition
for certiorari (G.R. No. 106527) with this Court questioning the
Sandiganbayan s denial of his motion for a bill of particulars as regards the
first three charges stated in paragraph 14 b(ii), paragraph 14g and
paragraph 14m of the expanded Second Amended Complaint. The petition
was granted by this Court in our decision promulgated on April 6, 1993.
Accordingly, the Sandiganbayan Resolution of August 4, 1992 to the extent
that it denied the motion for a bill of particulars with respect to the first
three (3) charges was set aside and the Republic was required by this Court
to submit to Virata a bill of particulars containing the facts prayed for by
the latter insofar as to these first three (3) actionable wrongs are
concerned.4chanroblesvirtuallawlibrary
On August 20, 1993, the Office of the Solicitor General (OSG) filed a
manifestation and motion dated August 18, 1993 alleging, inter alia, that
the OSG and PCGG agreed that the required bill of particulars would be
filed by the PCGG since the latter is the investigating body which has the
complete records of the case, hence, in a better position to supply the
required pleading. The Sandiganbayan took note of this manifestation in a
Resolution dated August 26, 1993. On the basis of this arrangement, the
PCGG submitted the bill of particulars dated November 3, 1993, which was
apparently signed by a certain Reynaldo G. Ros, who was named in the bill
of particulars as deputized prosecutor of the PCGG. This bill of particulars,
which incorporates by reference the Limited Bill of Particulars of October
22, 1992, states, inter alia:
xxx
1. On the Specific Averments of Defendants Illegal Acts a (i) [paragraph 14
b (ii) of the expanded Second Amended Complaint]
Immediately after defendants Ferdinand E. Marcos and Benjamin Kokoy
Romualdez took complete control of Meralco and its subsidiaries,
defendant Ferdinand E. Marcos issued Presidential Decree No. 551 on
September 11, 1974 which effected the reduction of electric franchise tax
being paid by Meralco from 5% to 2% as well as lowered tariff duty of fuel
oil imports from 20% to 10% and allowed Meralco to retain 3% reduction
in franchise tax rates thereby allowing it to save as much as P258 million as
of December 31, 1992.
Defendant Cesar Virata then Minister of Finance, supported PD 551 and in
fact issued the guidelines on its implementation which were heavily relied
upon by the Board of Energy in its questioned ruling dated 25 November
1982 by allowing Meralco to continue charging higher electric
consumption rates despite their savings from the aforesaid reduction of
franchise tax without any significant benefit to the consumers of electric
power and resulting in the loss of millions of pesos in much needed
revenues to the government.
2. On the Specific Averments of Defendants Illegal Acts a (ii) [par. 14g of
the expanded Second Amended Complaint]
Defendant Cesar E.A. Virata, then Prime Minester [sic], caused the issuance
of a confidential memorandum dated October 12, 1982 to then President
Ferdinand E. Marcos informing the latter of the recommendation of the
cabinet of the so called Three Year Program for the Extension of Meralco
Services of Areas within the 60 Kilometer Radius of Manila in order to
justify Meralcos anomalous acquisition of electric cooperatives and which
later required the Monetary Board and Philguarantee then headed by
defendant Virata to recommend the restructuring of Meralcos foreign and
local obligation which led to the extending of loan accommodations by the
Development Bank of the Philippines and Philippine National Bank in favor
of Meralco.
3. On the Specific Averments of Defendants Illegal Acts a (iii) [par. 14m of
the expanded Second Amended Complaint]
Defendant Cesar Virata, as Chairman of Philguarantee and the Senior
Managers of FMMC/PNI Holdings Inc. led by Jose S. Sandejas, J. Jose N.
Mantecon and Kurt S. Bachmann, Jr., supported and assisted the formation
of Erectors Holdings, Inc. for the purpose of making it assume the
obligation of Erectors Inc. with Philguarantee in the amount of
P527,387,440.71 without sufficient securities/collateral and despite this
outstanding obligation, defendant Virata, as Chairman of Philguarantee,
approved the Erectors Inc. Applications for loan guarantees that reached
more than P2 Billion as of June 30, 1987.
4. On the Specific Averments of Defendants Illegal Acts a (iv) [par. 17 of the
expanded Second Amended Complaint]
Plaintiff, hereby incorporates by reference plaintiffs Limited Bill of
Particulars previously submitted to this Honorable Court with the
qualification that defendant Cesar Virata merely acted as
agent.5chanroblesvirtuallawlibrary
Consequently, Virata filed on November 23, 1993 his comment on the bill
of particulars with motion to dismiss the expanded Second Amended
Complaint. He alleges that both the bills of particulars dated October 22,
1992 and November 3, 1993 are pro forma and should be stricken off the
records. According to him, the bill of particulars dated November 3, 1993 is
merely a rehash of the assertions made in the expanded Second Amended
Complaint, hence, it is not the bill of particulars that is required by this
Court in the previous case of Virata vs. Sandiganbayan, et. al. (G.R. No.
106527). Furthermore, a reading of the Limited Bill of Particulars dated
October 22, 1992 shows that it alleges new imputations which are
immaterial to the charge of being a dummy, nominee or agent, and that
Virata acted, not as a dummy, nominee or agent of his co-defendants as
what is charged in the complaint, but as a government officer of the
Republic. Virata also questions the authority of PCGG and its deputized
prosecutor to file the bill of particulars in behalf of the Republic. He asserts
that the legal representation of the Republic by the OSG is mandated by
law and that the Sandiganbayan, through its Resolution dated August 26,
1993, should not have allowed the OSG to abdicate its duty as the counsel
of record for the Republic.
The Republic filed its Opposition to Viratas Comment to Bill of Particulars
on December 17, 1993. Subsequently, Virata filed his Reply to Opposition
on January 18, 1994.
After considering the relevant pleadings and motions submitted by the
parties, the Sandiganbayan, in a Resolution of February 16, 1994, admitted
the bill of particulars submitted by the Republic and ordered Virata to file
his responsive pleading to the expanded Second Amended Complaint. The
relevant portion of the Resolution states as follows:
In the resolution of this incident, We find that the bill of particulars, filed
by the plaintiff on November 3, 1993 in compliance with the Supreme
Courts directive, appears to have substantially set out additional
averments and particulars which were not previously alleged in the
Expanded Amended Complaint. We likewise consider these additional
averments and particulars to be sufficient enough to enable defendant
Virata to frame his responsive pleading or answer and that what he feels
are still necessary in preparing for trial should be obtained by various
modes of discovery, such as interrogatories, depositions, etc. A bill of
particulars is sufficient if matters constituting the causes of action have
already been specified with sufficient particularity and which matters are
within the moving partys knowledge. It cannot be utilized to challenge the
sufficiency of the claim asserted.
Simplicity of pleading is the idea of modern procedure, hence, evidentiary
facts and details should not be allowed to clutter a complaint as much as
possible, consistent with the right of the moving party to compel disclosure
in instances where it is beyond cavil that He cannot adequately frame a
responsive pleading. In the instant case, the bill of particulars submitted by
the plaintiff, in Our considered opinion, is sufficient and adequate enough
to fulfill its mission.6chanroblesvirtuallawlibrary
Dissatisfied, Virata filed this instant petition for certiorari under Rule 65 of
the Rules of Court to challenge the foregoing Resolution of the
Sandiganbayan.
The issues to be resolved in the instant case are as follows:
1. WHETHER OR NOT THE SANDIGANBAYAN COMMITTED GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN
ADMITTING THE BILL OF PARTICULARS SUBMITTED BY THE REPUBLIC.
2. WHETHER OR NOT THE OFFICE OF THE SOLICITOR GENERAL AND THE
PCGG ARE AUTHORIZED BY LAW TO DEPUTIZE A COUNSEL TO FILE THE BILL
OF PARTICULARS IN BEHALF OF THE REPUBLIC.
Petitioner maintains the view that the allegations in the bill of particulars
of November 3, 1993 remain vague, general and ambiguous, and the
purported illegal acts imputed to Virata have not been averred with
sufficient definiteness so as to inform Virata of the factual and legal basis
thereof.
Respecting the Limited Bill of Particulars dated October 22, 1992, which
amplifies paragraphs 17 and 18 of the expanded Second Amended
Complaint, Virata reiterates his basic arguments that the Limited Bill of
Particulars fails to provide the relevant and material averments sought to
be clarified by him and that it asserts for the first time new matters
allegedly committed by him in different official capacities, to wit: a) as a
member of the Central Bank Monetary Board, he, with the other Monetary
Board members, approved Resolution No. 2320 dated December 14, 1973
regarding the restructuring of the loans of Benpres Corporation, Meralco
Securities Corporation, and the Manila Electric Company, b) as Finance
Minister, he executed an agreement with Manila Electric Company in
connection with the sale of lands and facilities of the Gardner Station Unit
No. 1, Gardner Station Unit No. 2, Snyder Station Unit No. 1, Snyder Station
Unit No. 2, and Malaya Station Unit No. 1, and, c) as Chairman of the Board
of Directors of the Philippine Export and Foreign Loan Guarantee
Corporation, approved the request of Erector, Incorporated, for a
guarantee to cover 100% of its proposed behest loan of US $ 33.5 Million
under the Central Bank Consolidated Foreign Borrowing Program. He
argues that the thrust of paragraphs 17 and 18 of the expanded Second
Amended Complaint is the charge that Virata acted as dummy, nominee
and/or agent, however, the foregoing allegations in the Limited Bill of
Particulars do not indicate that he acted as dummy, nominee or agent, but
rather, as a government officer.
Invoking Section 3, Rule 17 of the Rules of Court, Virata argued that both
the bills of particulars submitted by the Republic did not follow the Rules
of Court and the orders of the Sandiganbayan and this Honorable Court, as
such, the failure to comply with these legal orders is a ground for dismissal
of the action. Additionally, it is asserted that under Rule 12, Section 1(c) of
the Rules of Court, if an order of the court for a bill of particulars is not
obeyed, it may order the striking out of the pleading to which the motion
was directed. Accordingly, Virata prayed for the striking out of the bills of
particulars dated October 22, 1992 and November 3, 1993 and the
dismissal of the expanded Second Amended Complaint in so far as he is
concerned.
We find the instant petition meritorious.
The rule is that a complaint must contain the ultimate facts constituting
plaintiffs cause of action. A cause of action has the following elements, to
wit: (1) a right in favor of the plaintiff by whatever means and under
whatever law it arises or is created; (2) an obligation on the part of the
named defendant to respect or not to violate such right; and (3) an act or
omission on the part of such defendant violative of the right of the plaintiff
or constituting a breach of the obligation of the defendant to the plaintiff
for which the latter may maintain an action for recovery of damages.7As
long as the complaint contains these three elements, a cause of action
exists even though the allegations therein are vague, and dismissal of the
action is not the proper remedy when the pleading is ambiguous because
the defendant may ask for more particulars. As such, Section 1, Rule 12 of
the Rules of Court, provides, inter alia, that a party may move for more
definite statement or for a bill of particulars of any matter which is not
averred with sufficient definiteness or particularity to enable him properly
to prepare his responsive pleading or to prepare for trial. Such motion shall
point out the defects complained of and the details desired. Under this
Rule, the remedy available to a party who seeks clarification of any issue or
matter vaguely or obscurely pleaded by the other party, is to file a motion,
either for a more definite statement or for a bill of particulars. 8 An order
directing the submission of such statement or bill, further, is proper where
it enables the party movant intelligently to prepare a responsive pleading,
or adequately to prepare for trial.9chanroblesvirtuallawlibrary
A bill of particulars is a complementary procedural document consisting of
an amplification or more particularized outline of a pleading, and being in
the nature of a more specific allegation of the facts recited in the
pleading.10 It is the office of the bill of particulars to inform the opposite
party and the court of the precise nature and character of the cause of
action or defense which the pleader has attempted to set forth and
thereby to guide his adversary in his preparations for trial, and reasonably
to protect him against surprise at the trial.11 It gives information of the
specific proposition for which the pleader contends, in respect to any
material and issuable fact in the case, and it becomes a part of the
pleading which it supplements.12 It has been held that a bill of particulars
must inform the opposite party of the nature of the pleaders cause of
action or defense, and it must furnish the required items of the claim with
reasonable fullness and precision.13 Generally, it will be held sufficient if it
fairly and substantially gives the opposite party the information to which
he is entitled, as required by the terms of the application and of the order
therefor. It should be definite and specific and not contain general
allegations and conclusions. It should be reasonably certain and as specific
as the circumstances will allow.14chanroblesvirtuallawlibrary
Guided by the foregoing rules and principles, we are convinced that both
the bill of particulars dated November 3, 1993 and the Limited Bill of
Particulars of October 22, 1992 are couched in such general and uncertain
terms as would make it difficult for petitioner to submit an intelligent
responsive pleading to the complaint and to adequately prepare for trial.
Let us examine the bill of particulars dated November 3, 1993:
1. The first paragraph of the foregoing bill of particulars provides that
(I)mmediately after defendants Ferdinand E. Marcos and Benjamin Kokoy
Romualdez took control of Meralco and its subsidiaries, defendant
Ferdinand E. Marcos issued Presidential Decree No. 551 on September 11,
1974 which effected the reduction of electric franchise tax being paid by
Meralco from 5% to 2% as well as lowered tariff duty of fuel oil imports
from 20% to 10% and allowed Meralco to retain the 3% reduction in
franchise tax rates thereby allowing it to save as much as P258 million as of
December 31, 1992. Further, it is stated that (D)efendant Cesar Virata then
Minister of Finance, supported PD 551 and in fact issued the guidelines on
its implementation which were heavily relied upon by the Board of Energy
in its questioned ruling dated 25 November 1982 by allowing Meralco to
continue charging higher electric consumption rates despite their savings
from the aforesaid reduction of franchise tax without any significant
benefit to the consumers of electric power and resulting in the loss of
millions of pesos in much needed revenues to the government.
The abovequoted paragraph of the said bill of particulars is supposed to be
the amplification of the charge against Virata stated in paragraph 14(b) of
the expanded Second Amended Complaint-which is his alleged active
collaboration in the reduction of electric franchise tax and tariff duty of
fuel oil imports. Yet, a careful perusal of the said paragraph shows that
nothing is said about his alleged active collaboration in reducing the taxes.
Aside from the bare assertion that he supported PD 551 and issued the
guidelines on its implementation, the bill of particulars is disturbingly silent
as to what are the particular acts of Virata that establish his active
collaboration in the reduction of taxes. The allegation that he supported
PD 551 and issued its implementing guidelines is an insufficient
amplification of the charge because the same is but a general statement
bereft of any particulars. It may be queried-how did Virata support PD
551? What were the specific acts indicating his support? What were these
implementing guidelines issued by him and when were they issued? In
supporting PD 551 and in issuing its implementing guidelines, what law or
right, if there is any, is violated by Virata? It is worthy to note that, until
now, PD 551 has not been declared unconstitutional. In fact, this Court
upheld its validity in the case of Philippine Consumer Foundation, Inc. vs.
Board of Energy and Meralco.15chanroblesvirtuallawlibrary
2. In the second paragraph of the said bill of particulars, it is alleged that
(D)efendant Cesar E.A. Virata, then Prime Minester [sic], caused the
issuance of a confidential memorandum dated October 12, 1982 to then
President Ferdinand E. Marcos informing the latter of the recommendation
of the cabinet of the so called Three Year Program for the Extension of
Meralco Services of Areas within the 60 Kilometer Radius of Manila in
order to justify Meralcos anomalous acquisition of electric cooperatives
and which later required the Monetary Board and Philguarantee then
headed by defendant Virata to recommend the restructuring of Meralcos
foreign and local obligation which led to the extending of loan
accommodation by the Development Bank of the Philippines and
Philippine National Bank in favor of Meralco.
The foregoing allegation purportedly amplifies the charge stated in
paragraph 14 (g) of the expanded Second Amended Complaint, that is-
Viratas active collaboration in securing the approval by Ferdinand Marcos
and his cabinet of the Three Year Program for the Extension of Meralcos
Services within the Manila Area. However, just like the first paragraph of
the said bill of particulars, this Court finds that the second paragraph failed
to set forth particularly or specifically the charge against Virata. It is an
incomplete or floating disclosure of material facts replete with
generalizations and indefinite statements which seemingly ends to
nowhere. There are certain matters alleged that need to be clarified and
filled up with details so that Virata can intelligently and fairly contest them
and raise them as cogent issues, to wit: a) In causing the issuance of the
said memorandum, what law, duty or right, if there is any, is violated by
Virata?; b) What was the recommendation of the cabinet regarding the
Three Year Program? The Republic should have at least furnish the
substantial or important features of the recommendation; c) What were
these electric cooperatives? Were these cooperatives the same as those
enumerated in paragraph 14(e) of the expanded Second Amended
Complaint?16 Why was the acquisition of these cooperatives anomalous?;
and d) What were Viratas specific acts as the head of Philguarantee which
led to the restructuring of Meralcos obligation? What was his participation
in recommending the restructuring of Meralcos obligation? What were
these foreign and local obligations? How much of the obligation was
recommended for restructuring? What were the loan accommodations
given in favor of Meralco? When were they given and how much were
involved in the transaction?
3. Regarding the third paragraph of the said bill of particulars, We find the
same as a mere recast or restatement of the charge set forth in paragraph
14 (m) of the expanded Second Amended Complaint, which is Viratas
alleged support, assistance and collaboration in the formation of Erectors
Holding, Incorporated. The said paragraph of the bill of particulars states
that (D)efendant Cesar Virata, as Chairman of Philguarantee and the Senior
Managers of FMMC/PNI Holdings Inc. led by Jose S. Sandejas, J. Jose N.
Mantecon and Kurt S. Bachmann, Jr. supported and assisted the formation
of Erectors Holdings, Inc. for the purpose of making it assume the
obligation of Erectors Inc. with Philguarantee in the amount of
P527,387,440.71 without sufficient securities/collateral and despite this
outstanding obligation, defendant Virata, as Chairman of Philguarantee,
approved the Erectors Inc. Applications for loan guarantees that reached
more than P2 Billion as of June 30, 1987.
Clearly from the foregoing allegation, the Republic failed miserably to
amplify the charge against Virata because, instead of supplying the
pertinent facts and specific matters that form the basis of the charge, it
only made repetitive allegations in the bill of particulars that Virata
supported and assisted the formation of the corporation concerned, which
is the very same charge or allegation in paragraph 14 (m) of the expanded
Second Amended Complaint which requires specifications and unfailing
certainty. As such, the important question as to what particular acts of
Virata that constitute support and assistance in the formation of Erectors
Holding, Incorporated is still left unanswered, a product of uncertainty.
We now take a closer look at the Limited Bill of Particulars dated October
22, 1992.
The said bill of particulars was filed by the Republic to amplify the charge
of Viratas being a dummy, nominee or agent stated in paragraphs 17 and
18 of the expanded Second Amended Complaint. In the subsequent bill of
particulars dated November 3, 1993, the said charge was qualified by the
Republic in the sense that Virata allegedly acted only as an agent. Let us
consider each paragraph of the said bill of particulars:
1. The first paragraph of the Limited Bill of Particulars states that
(D)efendant Virata, while being one of the members of the Central Banks
Monetary Board, approved Resolution No. 2320 dated December 14, 1973,
allowing the Benpres Corporation, Meralco Securities Corp. (MSC) and
Manila Electric Company (MERALCO) to refinance/restructure their
outstanding loan obligations, a sweetheart or behest accommodation
which enabled Meralco Foundation, Inc. to acquire ownership and control
of Manila Electric Company. It is stated further that Meralco Foundation,
Inc. was then controlled by the Marcos-Romualdez Group with Benjamin
(Kokoy) Romualdez being the beneficial owner and, thereby, expanding the
said groups accumulation of ill gotten wealth.
It is apparent from the foregoing allegations that the Republic did not
furnish Virata the following material matters which are indispensable for
him to be placed in such a situation wherein he can properly be informed
of the charges against him: a) Did Virata, who was only one of the
members of the Board, act alone in approving the Resolution? Who really
approved the Resolution, Virata or the Monetary Board?; b) What were
these outstanding loan obligations of the three corporations concerned?
Who were the creditors and debtors of these loan obligations? How much
were involved in the restructuring of the loan obligations? What made the
transaction a sweetheart or behest accommodation?; and c) How was the
acquisition of MERALCO by Meralco Foundation, Inc. related to the
Resolution restructuring the loan obligations of the three corporations?
2. The second paragraph provides that (O)n July 11, 1978 defendant Virata
representing the Republic of the Philippines as Finance Minister, executed
an Agreement with the Manila Electric Co. (MERALCO) whereby the
government agreed to buy the parcels of land, improvements and facilities
known as Gardner Station Unit No. 1, Gardner Station Unit No. 2, Snyder
Station Unit No. 1, Snyder Station Unit No. 2 and Malaya Station Unit No. 1
for One Billion One Hundred Million Pesos (P1,100,000,000.00), a
transaction which was so disadvantageous to the government and most
favorable to MERALCO which gained a total of P206.2 million; that (A)s a
result of this transaction, MERALCO was relieved of its heavy burden in
servicing its foreign loans which were assumed by the government; that
xxx, the agreement clearly showed the sweetheart deal and favors being
given by the government to MERALCO which was then owned and/or
controlled by Benjamin Romualdez representing the Marcos-Romualdez
group, when it provided that the sale is subject to the reservation of rights,
leases and easements in favor of Philippine Petroleum Corp., First
Philippine Industrial Corp. (formerly MERALCO Securities Industrial Corp.)
and Pilipinas Shell Petroleum Corp. insofar as the same are presently in
force and applicable.
There are certain matters in the foregoing allegations which lack in
substantial particularity. They are broad and definitely vague which require
specifications in order that Virata can properly define the issues and
formulate his defenses. The following are the specific matters which the
Republic failed to provide, to wit: a) What made the transaction
disadvantageous to the government? The allegation that it was
disadvantageous is a conclusion of law that lacks factual basis. How did
MERALCO gain the P206.2 million? The Republic should have provided for
more specifics how was the transaction favorable to MERALCO?; b) What
were these foreign obligations of MERALCO which were assumed by the
government? Who were the creditors in these obligations? When were
these obligations contracted? How much were involved in the assumption
of foreign obligations by the government?; and c) By the presence of the
provision of the contract quoted by the Republic, what made the
agreement a sweetheart deal? The allegation that the agreement is a
sweetheart deal is a general statement that needs further amplification.
3. The third paragraph states that (A)t the meeting of the Board of
Directors of the Philippine Export and Foreign Loan Guarantee Corp. held
on September 16, 1983 defendant Virata acting as Chairman, together with
the other members of the board, approved the request of Erectors Inc., a
Benjamin Romualdez owned and/or controlled corporation, for a
guarantee to cover 100% of its proposed behest loan of US$ 33.5 Million
under the Central Bank Consolidated Foreign Borrowing Program with the
Philippine National Bank, Development Bank of the Philippines, Interbank,
Philippine Commercial International Bank and Associated Bank as conduit
banks, to refinance Erectors, Inc.s short term loans guaranteed by
Philguarantee, which at present forms part of the governments huge
foreign debt; that (S)uch act of defendant Virata was a flagrant breach of
public trust as well as a violation of his duty to protect the financial
condition and economy of the country against, among others, abuses and
corruption.
In like manner, the foregoing paragraph contains incomplete and indefinite
statement of facts because it fails to provide the following relevant
matters: a) What was this $33.5 million proposed behest loan? What were
its terms? Who was supposed to be the grantor of this loan?; b) What were
these short term loans? Who were the parties to these transactions?
When were these transacted? How was this $ 33.5 million behest loan
related to the short term loans?
Furthermore, as correctly asserted by petitioner Virata, the Limited Bill of
Particulars contains new matters which are not covered by the charge that
Virata acted as agent of his co-defendants in the expanded Second
Amended Complaint. Apparently, as may be examined from the three
paragraphs of the Limited Bill of Particulars, Virata, in so doing the acts,
can not be considered as an agent of any of his co-defendants, on the
contrary, the factual circumstances stated in the said bill of particulars
indicate that Virata acted on behalf of the government, in his official
capacity as a government officer. This observation is established by the
allegations that Virata acted as a member of the Central Bank Monetary
Board, as chairman of the Board of Directors of the Philippine Export and
Foreign Loan Guarantee Corporation, and, when he executed the
Agreement with Meralco on July 7, 1978 concerning the sale of certain
properties, he acted as the Finance Minister of the government and as a
representative of the Republic in the contract. In performing the said acts,
he, therefore, acted as an agent of the government, not as an agent of his
co-defendants, which is the charge against him in the expanded Second
Amended Complaint. Accordingly, the allegations in the Limited Bill of
Particulars are irrelevant and immaterial to the charge that Virata acted as
an agent of his co-defendants.
As clearly established by the foregoing discussion, the two bills of
particulars filed by the Republic failed to properly amplify the charges
leveled against Virata because, not only are they mere reiteration or
repetition of the allegations set forth in the expanded Second Amended
Complaint, but, to the large extent, they contain vague, immaterial and
generalized assertions which are inadmissible under our procedural rules.
It must be remembered that in our decision promulgated on April 6, 1993
(G.R. No. 106527), We required the Republic to submit a bill of particulars
concerning the first three charges against Virata averred in paragraphs 14
b(ii), 14 g, and 14 m of the expanded Second Amended Complaint, on the
other hand, as regards the charges stated in paragraphs 17 and 18 of the
said complaint, the Republic was ordered to file the required bill of
particulars by the Sandiganbayan through its Resolution dated August 4,
1992. The Republic purportedly complied with these orders by filing the
questioned bill of particulars dated November 3, 1993 and the Limited Bill
of Particulars of October 22, 1992. However, as shown by the above
discussion, the two bills of particulars were not the bills of particulars
which fully complied with the Rules of Court and with the orders of the
Sandiganbayan and this Court.
As such, in view of the Republics failure to obey this Courts directive of
April 6, 1993 (G.R. No. 106527) and the Sandiganbayans order of August 4,
1992 to file the proper bill of particulars which would completely amplify
the charges against Virata, this Court deems it just and proper to order the
dismissal of the expanded Second Amended Complaint, in so far as the
charges against Virata are concerned. This action is justified by Section 3,
Rule 17 of the Rules of Court, which provides that:
Section 3. Failure to prosecute. - If plaintiff fails to appear at the time
of the trial, or to prosecute his action for an unreasonable length of
time, or to comply with these rules or any order of the court, the
action may be dismissed upon motion of the defendant or upon the
courts own motion. This dismissal shall have the effect of an
adjudication upon the merits, unless otherwise provided by court.
(italics ours)
Regarding the second issue of the instant case, Virata contends that the
Presidential Commission on Good Government is not authorized by law to
deputize a counsel to prepare and file pleadings in behalf of the Republic.
Neither can the Office of the Solicitor General validly deputize an outside
counsel to completely take over the case for the Republic. According to
petitioner, only the Office of the Solicitor General is mandated by law to
act counsel for the Republic. Thus, the bill of particulars filed for the
Republic by private counsel or deputized prosecutor of the PCGG is
unauthorized.
This contention is devoid of merit.
We are of the opinion that the Limited Bill of Particulars dated October 22,
1992 signed by Ramon Felipe IV and the Bill of Particulars dated November
3, 1993 signed by Reynaldo Ros are valid pleadings which are binding upon
the Republic because the two lawyer-signatories are legally deputized and
authorized by the Office of the Solicitor General and the Presidential
Commission on Good Government to sign and file the bills of particulars
concerned.
Realizing that it can not adequately respond to this Courts order of April 6
1993 (G.R. No. 106527) requiring the Republic to submit the bill of
particulars concerning the first three charges against Virata, the Office of
the Solicitor deemed it better to seek the help of the Presidential
Commission on Good Government by availing the services of the latters
lawyer who would directly file the required bill of particulars in behalf of
the Republic. This circumstance prompted the Office of the Solicitor
General to manifest before the Sandiganbayan on August 20, 1993 that it
would be the PCGG which would file the required bill of particulars and
move that it be excused from doing so as the PCGG, being in-charge of
investigating the case, was in a better position than the OSG. Armed with
this authority given by the OSG, the PCGG, through one of its deputized
prosecutors, Reynaldo Ros, filed the bill of particulars dated November 3,
1993 to amplify the first three charges against Virata stated in paragraphs
14 b(ii), 14g, and 14 m of the expanded Second Amended Complaint.
The action of the OSG in seeking the assistance of the PCGG is not without
legal basis. The Administrative Code of 1987, which virtually reproduces
the powers and functions of the OSG enumerated in P.D. No. 478 (The Law
Defining the Powers and Functions of the Office of the Solicitor General),
provides, inter alia, that:
Section 35. Powers and Functions. xxx.
It (the OSG) shall have the following specific powers and
functions:
xxx
(8) Deputize legal officers of government departments, bureaus,
agencies and offices to assist the Solicitor General and appear
or represent the Government in cases involving their respective
offices, brought before the courts and exercise supervision and
control over such legal officers with respect to such cases.
(9) Call on any department, bureau, office, agency, or
instrumentality of the Government for such service assistance
and cooperation as may be necessary in fulfilling its functions
and responsibilities and for this purpose enlist the services of
any government official or employee in the pursuit of his task.
xxx.17chanroblesvirtuallawlibrary
Contrary to Viratas contention, the Solicitor General did not abdicate his
function and turn over the handling of the instant case to the PCGG.
Nowhere in the manifestation and motion filed by the OSG on August 20,
1993 is there an iota or indication that the OSG is withdrawing from the
case and that the PCGG is taking over its prosecution. What the OSG did
was merely to call the PCGG for assistance and authorize it to respond to
the motion for a bill of particulars filed by Virata. The OSG was impelled to
act this way because of the existence of the special circumstance that the
PCGG, which has the complete records of the case and being in charge of
its investigation, was more knowledgeable and better informed of the facts
of the case than the OSG.
The authority, therefore, of Attorney Reynaldo Ros to sign and submit in
behalf of the Republic the bill of particulars dated November 3, 1993 is
beyond dispute because 1) he was duly deputized by the PCGG in
pursuance to its power to prosecute cases of ill-gotten wealth under
Executive Order No. 14 of May 14, 1986, 2) the OSG empowered the PCGG
to file the bill of particulars as evidenced by the OSGs manifestation and
motion filed on August 20, 1993, and 3) there was no abdication of OSGs
duty by giving the PCGG the authority to file the bill of particulars.
On the other hand, the deputation of Ramon Felipe IV by the Solicitor
General to sign and file the Limited Bill of Particulars is based on Section 3
of Presidential Decree No. 478, which provides that:
Section 3. The Solicitor General may, when necessary and after
consultation with the Government entity concerned, employ, retain,
and compensate on a contractual basis, in the name of the
Government, such attorneysand experts or technical personnel as he
may deem necessary to assist him in the discharge of his duties. The
compensation and expenses may be charged to the agency or office
in whose behalf the services have to be rendered. (italics ours)
The Solicitor General is mandated by law to act as the counsel of the
Government and its agencies in any litigation and matter requiring the
services of a lawyer. In providing the legal representation for the
Government, he is provided with vast array of powers, which includes the
power to retain and compensate lawyers on contractual basis, necessary
to fulfill his sworn duty with the end view of upholding the interest of the
Government. Thus, the Solicitor General acted within the legal bounds of
its authority when it deputized Attorney Felipe IV to file in behalf of the
Republic the bill of particulars concerning the charges stated in paragraph
17 and 18 of the expanded Second Amended Complaint.
At any rate, whether or not the lawyer-signatories are duly deputized
would not be decisive in the resolution of this case considering that the
two bills of particulars filed by the Republic are mere scraps of paper which
miserably failed to amplify the charges against Virata. For the Republics
failure to comply with the courts order to file the required bill of
particulars that would completely and fully inform Virata of the charges
against him, the dismissal of the action against him is proper based on
Section 3, Rule 17 of the Revised Rules of Court and the relevant
jurisprudence thereon.18 Simple justice demands that as stated earlier,
petitioner must know what the complaint is all about. The law requires no
less.
Although this Court is aware of the Governments laudable efforts to
recover ill-gotten wealth allegedly taken by the defendants, this Court,
however, cannot shrink from its duty of upholding the supremacy of the
law under the aegis of justice and fairness. This Court in dismissing the
action against the petitioner has rightfully adhered in the unyielding tenet -
principia, non homines - the rule of law, not of men.
ACCORDINGLY, the instant petition is hereby GRANTED and the expanded
Second Amended Complaint, in so far as petitioner Virata is concerned, is
hereby ordered DISMISSED.
SO ORDERED.
Puno and Mendoza, JJ, concur.
Regalado, (Chairman), J., in the result.
G.R. No. 173588 April 22, 2009
ARIEL M. LOS BAÑOS, on behalf of P/Supt. Victor Arevalo, SPO2 Marcial
Olympia, SPO1 Rocky Mercene and PO1 Raul Adlawan, and in his
personal capacity, Petitioner,
vs.
JOEL R. PEDRO, Respondent.
DECISION
BRION, J.:
We review in this petition for review on certiorari1 the September 19, 2005
decision2 and the July 6, 2006 resolution3 of the Court of Appeals (CA) in
CA-G.R. SP No. 80223. The petition seeks to revive the case against
respondent Joel R. Pedro (Pedro) for election gun ban violation after the
CA declared the case permanently dismissed pursuant to Section 8, Rule
117 of the Rules of Court.
THE ANTECEDENTS
Pedro was charged in court for carrying a loaded firearm without the
required written authorization from the Commission on Elections
(Comelec) a day before the May 14, 2001 national and local elections. The
Information reads:
That on or about the 13th day of May 2001 at about 4:00 o’clock in the
afternoon, in [S]itio Bantauyan, [B]arangay Bantad, Municipality of Boac,
Province of Marinduque, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused did then and there, willfully,
unlawfully and feloniously carry a Revolver Cal. 357, Magnum Ruger 100
loaded with six (6) ammunitions, with Serial No. 173-56836 outside his
residence during the election period, without authorization in writing from
the Commission on Election[s].
CONTRARY TO LAW.4
The accusation was based on Batas Pambansa Bilang 881 or the Omnibus
Election Code (Code) after the Marinduque Philippine National Police
(PNP) caught Pedro illegally carrying his firearm at a checkpoint at Boac,
Marinduque. The Boac checkpoint team was composed of Police Senior
Inspector Victor V. Arevalo, SPO2 Marshal Olympia, SPO1 Rocky Mercene,
and PO1 Raul Adlawan. The team stopped a silver-gray Toyota Hi-Ace with
plate number WHT-371 on the national highway, coming from the Boac
town proper. When Pedro (who was seated at the rear portion) opened
the window, Arevalo saw a gun carry case beside him. Pedro could not
show any COMELEC authority to carry a firearm when the checkpoint team
asked for one, but he opened the case when asked to do so. The
checkpoint team saw the following when the case was opened: 1) one
Revolver 357 Magnum Ruger GP100, serial number 173-56836, loaded
with six ammunitions; 2) one ammunition box containing 100 bullets; 3)
two pieces speed loader with six ammunitions each; and 4) one set ear
protector. Pedro was with three other men. The checkpoint team brought
all of them to the Boac police station for investigation.
The Boac election officer filed a criminal complaint against Pedro for
violating the election gun ban, i.e., for carrying a firearm outside of his
residence or place of business without any authority from the Comelec.
After an inquest, the Marinduque provincial prosecutor filed the above
Information against Pedro with the Marinduque Regional Trial Court (RTC)
for violation of the Code’s Article XXII, Section 261 (q),5 in relation to
Section 264.6
Pedro filed a Motion for Preliminary Investigation, which the RTC
granted.7 The preliminary investigation, however, did not materialize.
Instead, Pedro filed with the RTC a Motion to Quash, arguing that the
Information "contains averments which, if true, would constitute a legal
excuse or justification8 and/or that the facts charged do not constitute an
offense."9 Pedro attached to his motion a Comelec Certification dated
September 24, 2001 that he was "exempted" from the gun ban. The
provincial prosecutor opposed the motion.
The RTC quashed the Information and ordered the police and the
prosecutors to return the seized articles to Pedro.10
The petitioner, private prosecutor Ariel Los Baños (Los Baños),
representing the checkpoint team, moved to reopen the case, as Pedro’s
Comelec Certification was a "falsification," and the prosecution was
"deprived of due process" when the judge quashed the information
without a hearing. Attached to Los Baños’ motion were two Comelec
certifications stating that: (1) Pedro was not exempted from the firearm
ban; and (2) the signatures in the Comelec Certification of September 24,
2001 were forged.
The RTC reopened the case for further proceedings, as Pedro did not
object to Los Baños’ motion.11 Pedro moved for the reconsideration of the
RTC’s order primarily based on Section 8 of Rule 117,12 arguing that the
dismissal had become permanent. He likewise cited the public prosecutor’s
lack of express approval of the motion to reopen the case.
The public prosecutor, however, manifested his express conformity with
the motion to reopen the case. The trial court, for its part, rejected the
position that Section 8, Rule 117 applies, and explained that this provision
refers to situations where both the prosecution and the accused mutually
consented to the dismissal of the case, or where the prosecution or the
offended party failed to object to the dismissal of the case, and not to a
situation where the information was quashed upon motion of the accused
and over the objection of the prosecution. The RTC, thus, set Pedro’s
arraignment date.
Pedro filed with the CA a petition for certiorari and prohibition to nullify
the RTC’s mandated reopening.13 He argued that the RTC committed grave
abuse of discretion amounting to lack or excess of jurisdiction in ruling that
the dismissal contemplated under Section 8, Rule 117 refers to situations
where either the prosecution and the accused mutually consented to, or
where the prosecution alone moved for, the provisional dismissal of the
case; in rejecting his argument that the prescriptive periods under Article
90 of the Revised Penal Code14 or Act No. 332615 find no application to his
case as the filing of the Information against him stopped the running of the
prescriptive periods so that the prescription mandated by these laws
became irrelevant; and, in setting the case for arraignment and pre-trial
conference, despite being barred under Section 8 of Rule 117.
THE COURT OF APPEALS DECISION
The CA initially denied Pedro’s petition. For accuracy, we quote the
material portions of its ruling:
The petition lacks merit.
The trial court erred in ruling that Section 8, Rule 117 does not apply to
provisional dismissals on motion of the accused. The Rule merely provides
that a case shall not be provisionally dismissed, except with the express
consent of the accused and with notice to the offended party. Nothing in
the said rule proscribes its application to dismissal on motion of the
accused.
Nevertheless, we find no basis for issuing the extraordinary writs of
certiorari and prohibition, as there is no showing that the error was tainted
with grave abuse of discretion. Grave abuse of discretion implies capricious
and whimsical exercise of judgment amounting to lack of jurisdiction. The
grave abuse of discretion must be so patent and gross as to amount to an
evasion or refusal to perform a duty enjoined by law.
Before the petitioner may invoke the time-bar in Section 8, he must
establish the following:
1. the prosecution, with the express conformity of the accused or
the accused moves for a provisional (sin perjuicio) dismissal of the
case; or both the prosecution and the accused move for a
provisional dismissal of the case;
2. the offended party is notified of the motion for a provisional
dismissal of the case;
3. the court issues an order granting the motion and dismissing
the case provisionally;
4. the public prosecutor is served, with a copy of the order of
provisional dismissal of the case.
Although the second paragraph of Section 8 states that the order of
dismissal shall become permanent one year after the issuance thereof,
without the case having been revived, such provision should be construed
to mean that the dismissal shall become permanent one year after service
of the order of dismissal on the public prosecutor, as the public prosecutor
cannot be expected to comply with the timeliness requirement unless he is
served with a copy of the order of dismissal.
In the instant, case, the records are bereft of proof as to when the public
prosecutor was served the order of dismissal dated 22 November 2001.
Absent such proof, we cannot declare that the State is barred from
reviving the case.
WHEREFORE, the petition is DENIED.
In his motion for reconsideration, Pedro manifested the exact date and
time of the Marinduque provincial prosecutor’s receipt of the quashal
order to be "2:35 p.m., December 10, 2001," and argued that based on this
date, the provisional dismissal of the case became "permanent" on
December 10, 2002. Based on this information, the CA reversed itself,
ruling as follows:
On 9 September 2005, we ruled that Section 8, Rule 117 is applicable to a
dismissal on motion of the accused. However, we did not issue the writs of
certiorari and prohibition, because it was shown that the trial court
committed grave abuse of discretion in ordering the reopening of the case.
Moreover, we stated that we cannot rule on the issue of whether or not
the State is barred from reopening the case because it was not shown
when the public prosecutor was served the order of dismissal.
xxx
The arguments raised in the respondents’ motion for modification were
duly passed upon in arriving at the decision dated 9 September 2005, and
no new matters were raised which would warrant a reconsideration
thereof.
On the other hand, the petitioner was able to prove that the motion to
reopen the case was filed after the lapse of more than one year from the
time the public prosecutor was served the notice of dismissal. Therefore,
the state is barred from reopening the case.
WHEREFORE, petitioner Joel Pedro’s motion for partial reconsideration is
hereby GRANTED, and respondent Ariel Los Banos’ motion for modification
of judgment is, accordingly, DENIED.
To summarize this ruling, the appellate court, while initially saying that
there was an error of law but no grave abuse of discretion that would call
for the issuance of a writ, reversed itself on motion for reconsideration; it
then ruled that the RTC committed grave abuse of discretion because it
failed to apply Section 8, Rule 17 and the time-bar under this provision.
THE PETITION
Los Baños prays in his petition that the case be remanded to the RTC for
arraignment and trial, or that a new charge sheet be filed against Pedro, or
that the old information be re-filed with the RTC. He contends that under
Section 6 of Rule 117, an order sustaining a motion to quash does not bar
another prosecution for the same offense, unless the motion was based on
the grounds specified in Section 3(g)16 and (i)17 of Rule 117. Los Baños
argues that the dismissal under Section 8 of Rule 117 covers only situations
where both the prosecution and the accused either mutually consented or
agreed to, or where the prosecution alone moved for the provisional
dismissal of the case; it can also apply to instances of failure on the part of
the prosecution or the offended party to object, after having been
forewarned or cautioned that its case will be dismissed. It does not apply
where the information was quashed. He adds that although the trial court
granted the motion to quash, it did not categorically dismiss the case,
either provisionally or permanently, as the judge simply ordered the return
of the confiscated arms and ammunition to Pedro. The order was "open-
ended," and did not have the effect of provisionally dismissing the case
under Section 8 of Rule 117.
Los Baños also contends that the CA gravely erred when: (1) it ruled in
effect that the Order dated November 22, 2001 granting the motion to
quash is considered a provisional dismissal, which became permanent one
year from the prosecutor’s receipt of the order; the order to quash the
Information was based on Section 3 of Rule 117, not on Section 8 of this
Rule; (2) it granted Pedro’s motion for reconsideration and denied Los
Baños’ motion for modification of judgment, when Section 6 of Rule 117
clearly provides that an order granting a motion to quash is not a bar to
another prosecution for the same offense.
He notes that the grounds Pedro relied upon in his motion to quash are
not subsections (g) or (i) of Rule 117, but its subsections (a) – that the facts
charged do not constitute an offense, and (h) – that it contains averments
which if true would constitute a legal justification. Pedro’s cited grounds
are not the exceptions that would bar another prosecution for the same
offense.18 The dismissal of a criminal case upon the express application of
the accused (under subsections [a] and [h]) is not a bar to another
prosecution for the same offense, because his application is a waiver of his
constitutional prerogative against double jeopardy.
In response to all these, respondent Pedro insists and fully relies on the
application of Section 8 of Rule 117 to support his position that the RTC
should not have granted Los Banos’ motion to reopen the case.
THE ISSUES
The issue is ultimately reduced to whether Section 8, Rule 117 is applicable
to the case, as the CA found. If it applies, then the CA ruling effectively lays
the matter to rest. If it does not, then the revised RTC decision reopening
the case should prevail.
OUR RULING
We find the petition meritorious and hold that the case should be
remanded to the trial court for arraignment and trial.
Quashal v. Provisional Dismissal
a. Motion to Quash
A motion to quash is the mode by which an accused assails, before
entering his plea, the validity of the criminal complaint or the criminal
information filed against him for insufficiency on its face in point of law, or
for defect apparent on the face of the Information. 19 The motion, as a rule,
hypothetically admits the truth of the facts spelled out in the complaint or
information. The rules governing a motion to quash are found under Rule
117 of the Revised Rules of Court. Section 3 of this Rule enumerates the
grounds for the quashal of a complaint or information, as follows:
(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.
b. Provisional Dismissal
On the other hand, Section 8, Rule 117 that is at the center of the dispute
states that:
SEC.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.
A case is provisionally dismissed if the following requirements concur:
1) the prosecution with the express conformity of the accused, or
the accused, moves for a provisional dismissal (sin perjuicio) of his
case; or both the prosecution and the accused move for its
provisional dismissal;
2) the offended party is notified of the motion for a provisional
dismissal of the case;
3) the court issues an order granting the motion and dismissing
the case provisionally; and
4) the public prosecutor is served with a copy of the order of
provisional dismissal of the case.20
In People v. Lacson,21 we ruled that there are sine quanon requirements in
the application of the time-bar rule stated in the second paragraph of
Section 8 of Rule 117. We also ruled that the time-bar under the foregoing
provision is a special procedural limitation qualifying the right of the State
to prosecute, making the time-bar an essence of the given right or as an
inherent part thereof, so that the lapse of the time-bar operates to
extinguish the right of the State to prosecute the accused.
c. Their Comparison
An examination of the whole Rule tells us that a dismissal based on a
motion to quash and a provisional dismissal are far different from one
another as concepts, in their features, and legal consequences. While the
provision on provisional dismissal is found within Rule 117 (entitled Motion
to Quash), it does not follow that a motion to quash results in a provisional
dismissal to which Section 8, Rule 117 applies.
A first notable feature of Section 8, Rule 117 is that it does not exactly
state what a provisional dismissal is. The modifier "provisional" directly
suggests that the dismissals which Section 8 essentially refers to are those
that are temporary in character (i.e., to dismissals that are without
prejudice to the re-filing of the case), and not the dismissals that are
permanent (i.e., those that bar the re-filing of the case). Based on the law,
rules, and jurisprudence, permanent dismissals are those barred by the
principle of double jeopardy,22 by the previous extinction of criminal
liability,23 by the rule on speedy trial,24 and the dismissals after plea
without the express consent of the accused. 25 Section 8, by its own terms,
cannot cover these dismissals because they are not provisional.
A second feature is that Section 8 does not state the grounds that lead to a
provisional dismissal. This is in marked contrast with a motion to quash
whose grounds are specified under Section 3. The delimitation of the
grounds available in a motion to quash suggests that a motion to quash is a
class in itself, with specific and closely-defined characteristics under the
Rules of Court. A necessary consequence is that where the grounds cited
are those listed under Section 3, then the appropriate remedy is to file a
motion to quash, not any other remedy. Conversely, where a ground does
not appear under Section 3, then a motion to quash is not a proper
remedy. A motion for provisional dismissal may then apply if the
conditions required by Section 8 obtain.
A third feature, closely related to the second, focuses on the consequences
of a meritorious motion to quash. This feature also answers the question
of whether the quashal of an information can be treated as a provisional
dismissal. Sections 4, 5, 6, and 7 of Rule 117 unmistakably provide for the
consequences of a meritorious motion to quash. Section 4 speaks of an
amendment of the complaint or information, if the motion to quash
relates to a defect curable by amendment. Section 5 dwells on the effect of
sustaining the motion to quash - the complaint or information may be re-
filed, except for the instances mentioned under Section 6. The latter
section, on the other hand, specifies the limit of the re-filing that Section 5
allows – it cannot be done where the dismissal is based on extinction of
criminal liability or double jeopardy. Section 7 defines double jeopardy and
complements the ground provided under Section 3(i) and the exception
stated in Section 6.1awwphi1
Rather than going into specifics, Section 8 simply states when a provisional
dismissal can be made, i.e., when the accused expressly consents and the
offended party is given notice. The consent of the accused to a dismissal
relates directly to what Section 3(i) and Section 7 provide, i.e., the
conditions for dismissals that lead to double jeopardy. This immediately
suggests that a dismissal under Section 8 – i.e., one with the express
consent of the accused – is not intended to lead to double jeopardy as
provided under Section 7, but nevertheless creates a bar to further
prosecution under the special terms of Section 8.
This feature must be read with Section 6 which provides for the effects of
sustaining a motion to quash – the dismissal is not a bar to another
prosecution for the same offense – unless the basis for the dismissal is the
extinction of criminal liability and double jeopardy. These unique terms,
read in relation with Sections 3(i) and 7 and compared with the
consequences of Section 8, carry unavoidable implications that cannot but
lead to distinctions between a quashal and a provisional dismissal under
Section 8. They stress in no uncertain terms that, save only for what has
been provided under Sections 4 and 5, the governing rule when a motion
to quash is meritorious are the terms of Section 6. The failure of the Rules
to state under Section 6 that a Section 8 provisional dismissal is a bar to
further prosecution shows that the framers did not intend a dismissal
based on a motion to quash and a provisional dismissal to be confused
with one another; Section 8 operates in a world of its own separate from
motion to quash, and merely provides a time-bar that uniquely applies to
dismissals other than those grounded on Section 3. Conversely, when a
dismissal is pursuant to a motion to quash under Section 3, Section 8 and
its time-bar does not apply.
Other than the above, we note also the following differences stressing that
a motion to quash and its resulting dismissal is a unique class that should
not be confused with other dismissals:
First, a motion to quash is invariably filed by the accused to
question the efficacy of the complaint or information filed against
him or her (Sections 1 and 2, Rule 117); in contrast, a case may be
provisionally dismissed at the instance of either the prosecution
or the accused, or both, subject to the conditions enumerated
under Section 8, Rule 117.26
Second, the form and content of a motion to quash are as stated
under Section 2 of Rule 117; these requirements do not apply to a
provisional dismissal.
Third, a motion to quash assails the validity of the criminal
complaint or the criminal information for defects or defenses
apparent on face of the information; a provisional dismissal may
 be grounded on reasons other than the defects found in the
information.
Fourth, a motion to quash is allowed before the arraignment
(Section 1, Rule 117); there may be a provisional dismissal of the
case even when the trial proper of the case is already underway
provided that the required consents are present.27
Fifth, a provisional dismissal is, by its own terms, impermanent
until the time-bar applies, at which time it becomes a permanent
dismissal. In contrast, an information that is quashed stays
quashed until revived; the grant of a motion to quash does not
per se carry any connotation of impermanence, and becomes so
only as provided by law or by the Rules. In re-filing the case, what
is important is the question of whether the action can still be
brought, i.e., whether the prescription of action or of the offense
has set in. In a provisional dismissal, there can be no re-filing after
the time-bar, and prescription is not an immediate consideration.
To recapitulate, quashal and provisional dismissal are different concepts
whose respective rules refer to different situations that should not be
confused with one another. If the problem relates to an intrinsic or
extrinsic deficiency of the complaint or information, as shown on its face,
the remedy is a motion to quash under the terms of Section 3, Rule 117. All
other reasons for seeking the dismissal of the complaint or information,
before arraignment and under the circumstances outlined in Section 8, fall
under provisional dismissal.
Thus, we conclude that Section 8, Rule 117 does not apply to the
reopening of the case that the RTC ordered and which the CA reversed; the
reversal of the CA’s order is legally proper.
Pedro’s Motion to Quash
The merits of the grant of the motion to quash that the RTC initially
ordered is not a matter that has been ruled upon in the subsequent
proceedings in the courts below, including the CA. We feel obliged to refer
back to this ruling, however, to determine the exact terms of the remand
of the case to the RTC that we shall order.
The grounds Pedro cited in his motion to quash are that the Information
contains averments which, if true, would constitute a legal excuse or
justification [Section 3(h), Rule 117], and that the facts charged do not
constitute an offense [Section 3(a), Rule 117]. We find from our
examination of the records that the Information duly charged a specific
offense and provides the details on how the offense was
committed.28 Thus, the cited Section 3(a) ground has no merit. On the
other hand, we do not see on the face or from the averments of the
Information any legal excuse or justification. The cited basis, in fact, for
Pedro’s motion to quash was a Comelec Certification (dated September 24,
2001, issued by Director Jose P. Balbuena, Sr. of the Law Department,
Committee on Firearms and Security Personnel of the Comelec, granting
him an exemption from the ban and a permit to carry firearms during the
election period)29 that Pedro attached to his motion to quash. This
COMELEC Certification is a matter aliunde that is not an appropriate
motion to raise in, and cannot support, a motion to quash grounded on
legal excuse or justification found on the face of the Information.
Significantly, no hearing was ever called to allow the prosecution to
contest the genuineness of the COMELEC certification. 30
Thus, the RTC grossly erred in its initial ruling that a quashal of the
Information was in order. Pedro, on the other hand, also misappreciated
the true nature, function, and utility of a motion to quash. As a
consequence, a valid Information still stands, on the basis of which Pedro
should now be arraigned and stand trial.
One final observation: the Information was not rendered defective by the
fact that Pedro was charged of violating Section 261(q) of the Code,
instead of Section 32 of R.A. No. 7166, which amended Section 261(q);
these two sections aim to penalize among others, the carrying of firearms
(or other deadly weapons) in public places during the election period
without the authority of the Comelec. The established rule is that the
character of the crime is not determined by the caption or preamble of the
information or from the specification of the provision of law alleged to
have been violated; the crime committed is determined by the recital of
the ultimate facts and circumstances in the complaint or
information31 Further, in Abenes v. Court of Appeals, 32 we specifically
recognized that the amendment under Section 32 of R.A. No. 7166 does
not affect the prosecution of the accused who was charged under Section
261(q) of the Code.
WHEREFORE, we hereby GRANT the petition and accordingly declare the
assailed September 19, 2005 decision and the July 6, 2006 resolution of the
Court of Appeals in CA-G.R. SP No. 80223 respectively MODIFIED and
REVERSED. The case is remanded to the Regional Trial Court of Boac, A Variation/Extra Work Order No. 1 was approved for the excavation of
Marinduque for the arraignment and trial of respondent Joel R. Pedro, unsuitable materials and road filling works. As a consequence, Arceo Cruz
after reflecting in the Information the amendment introduced on Section of A.C. Cruz Construction submitted the fourth billing and Report of
261(q) of the Code by Section 32 of Republic Act No. 7166. Physical Accomplishments on 6 May 1991. Fajutag, Jr., however,
discovered certain deficiencies. As a result, he issued Work Instruction No.
SO ORDERED. 1 requiring some supporting documents, such as: (1) copy of approved
concrete pouring; (2) survey results of original ground and finished leaks;
ARTURO D. BRION (3) volume calculation of earth fill actually rendered on site; (4) test results
Associate Justice as to the quality of materials and compaction; and (5) copy of work
instructions attesting to the demolished concrete structures.61avvphi1.zw+
G.R. No. 180122 March 13, 2009
The contractor failed to comply with the work instruction. Upon Fajutag,
Jr.’s further verification, it was established that there was no actual
FELICISIMO F. LAZARTE, JR., Petitioner,
excavation and road filling works undertaken by A.C. Cruz Construction.
vs.
Fajutag, Jr.’s findings are summarized as follows:
SANDIGANBAYAN (First Division) and PEOPLE OF THE
PHILIPPINES, Respondents.
1. No topographic map was appended, even if the same is
necessary in land development works; a discarded drawing sheet:
DECISION
"Spot Elevations and Existing Gradelines" of the project site was
found, but this contrasted significantly with the alleged joint-
TINGA, J.:
survey results in support of the Variation/Extra Work Order No. 1;

This is a Petition for Certiorari1 under Rule 65 of the 1997 Rules of Civil
2. No laboratory tests were conducted to ascertain unsuitability of
Procedure assailing the Resolution2dated 2 March 2007 of the First Division
materials, even if the same should have been required as essential
of the Sandiganbayan in Criminal Case No. 26583 entitled, "People of the
basis thereof;
Philippines v. Robert P. Balao, et al.," which denied petitioner Felicisimo F.
Lazarte, Jr.’s Motion to Quash. The Resolution3 dated 18 October 2007 of
3. There were no records of the excavation and disposal of
said court denying petitioner’s motion for reconsideration is likewise
unsuitable materials and of road filling works having been made
challenged in this petition.
by the previous engineers, Rodolfo de los Santos and Noel Lobrido
at the time said activities were allegedly executed;
The antecedents follow.
4. The excavation of unsuitable materials and road filling works
In June 1990, the National Housing Authority (NHA) awarded the original
were overestimated to the prejudice of the government:
contract for the infrastructure works on the Pahanocoy Sites and Services
Project, Phase 1 in Bacolod City to A.C. Cruz Construction. The project, with
a. in a 10.00 meter right-of-way (ROW) road, the entire
a contract cost of P7,666,507.55, was funded by the World Bank under the
width of 10.00 meters was used in calculating the volume
Project Loan Agreement forged on 10 June 1983 between the Philippine
of cut of unsuitable materials when the undisturbed
Government and the IBRD-World Bank.4
natural grounds on both sides of the road was only 6.00
meters;
A.C. Cruz Construction commenced the infrastructure works on 1 August
1990.5 In April 1991, the complainant Candido M. Fajutag, Jr.(Fajutag, Jr.)
b. the mathematical calculation in determining the
was designated Project Engineer of the project.
volume of cut of unsuitable materials are contrary to the
 contract’s technical specifications which provides for cut
measurements, i.e.[,] by end-area method;
c. in a 10.00 ROW road, an effective width of 8.70 meters
was used in calculating the volume of road fill when the
undisturbed natural grounds on both sides of the road
was only 6.00 meters apart;
d. the mathematical calculations in determining the
volume of roadfill are contrary to the contract’s technical
specifications, specifically Section 3.11 thereof, i.e., by
end-area method.
5. No laboratory test was made to ascertain the quality of
imported road fill materials.7
In a Memorandum dated 27 June 1991, the Project Office recommended
the termination of the infrastructure contract with A.C. Construction. 8
In its Report dated 12 August 1991, the Inventory and Acceptance
Committee determined the total accomplishment of the contractor at
40.89%, representing P3,433,713.10 out of the total revised contract
amount of P8,397,225.09 inclusive of Variation Order No. 1 in the amount
of P710,717.54. Thereafter, said Committee recommended that the
temporary project suspension imposed by the contractor, which incurred
delays in the project completion, be referred to the Legal Department for
appropriate action.9
On 19 August 1991, the Manager of the Legal Department issued a
Memorandum addressed to the General Manager of NHA endorsing
approval of the Regional Projects Department’s (RPD’s) recommendation.
The NHA General Manager through a letter dated 29 August 1991
informed the contractor of the rescission of his contract for the
development of the said project upon his receipt thereof without prejudice
to NHA’s enforcing its right under the contract in view of the contractor’s
unilateral and unauthorized suspension of the contract works amounting
to abandonment of the project. Despite the rescission notice issued by the
NHA per letter dated 29 August 1991, the contractor continued working
intermittently with very minimal workforce until such time as the award of
remaining infrastructure works is effected by NHA to another contractor. 10
In March 1992, the NHA Board of Directors, per Resolution No. 2453,
approved the mutual termination of the A.C. Cruz Construction contract
and awarded the remaining work to Triad Construction and Development
Corporation (Triad). The contract amount for the remaining work
was P9,554,837.32.11 Thereafter, representatives from A.C. Cruz
Construction, Triad and NHA-Bacolod conducted a joint measurement at
the site to determine the total accomplishment of A.C. Cruz Construction
inclusive of accomplishments after NHA inventory.
The Project Office was subsequently informed by the Central Office that
the accomplishments made by A.C. Cruz Construction after the NHA
inventory would be paid directly to said contractor by Triad. As of 27
March 1992, Triad had issued checks in favor of A.C. Cruz Construction
amounting to One Million Pesos (P1,000,000.00) which were received by
Arceo M. Cruz per Official Receipt No. 3003.12
In its Memorandum dated 22 June 1992, the Regional Projects Department
recommended to the General Manager that the fund settlement to A.C.
Cruz Construction be effected.13
Thereafter, Triad discovered that certain work items that had been in
under the inventory report as accomplished and acceptable were in fact
non-existent. Fajutag, Jr. brought these irregularities to the attention of
the Commission on Audit (COA).
After its special audit investigation, the COA uncovered some anomalies,
among which, are ghost activities, specifically the excavation of unsuitable
materials and road filling works and substandard, defective workmanship.
Laboratory tests confirmed the irregularities. 14
Further, according to the COA, while it is true that the fourth billing of A.C.
Cruz Construction had not been paid its accomplishments after the August
1991 inventory found acceptable by NHA amounting to P896,177.08 were
paid directly by Triad. Effectively, A.C. Cruz Construction had been
overpaid by as much as P232,628.35, which amount is more than the net
payment due per the computation of the unpaid fourth billing. 15
Consequently, petitioner, as manager of the Regional Projects Department
and Chairman of the Inventory and Acceptance Committee, and other NHA
officials were charged in an Information16 dated 5 March 2001, worded as
follows:
 INFORMATION
The undersigned Ombudsman Prosecutor II of the Office of the
Ombudsman-Visayas, accuses ROBERT P. BALAO, FELICISIMO F. LAZARTE,
JR., VIRGILIO V. DACALOS, JOSEPHINE O. ANGSICO, JOSEPHINE T.
ESPINOSA, NOEL H. LOBRIDO AND ARCEO C. CRUZ for VIOLATION OF
SECTION 3 (e) of REPUBLIC ACT No. 3019, AS AMENDED (THE ANTI-GRAFT
AND CORRUPT PRACTICES ACT), committed as follows:
That in or about the month of March, 1992 at Bacolod City, Province of
Negros Occidental, Philippines and within the jurisdiction of this Honorable
Court, above-named accused, ROBERT P. BALAO, JOSEPHINE C. ANGSICO,
VIRGILIO V. DACALOS, FELICISIMO F. LAZARTE, JR., JOSEPHINE T. ESPINOSA,
and NOEL H. LOBRIDO, Public Officers, being the
General Manager, Team Head, Visayas Mgt. Office, Division Manager
(Visayas), Manager, RPD, Project Mgt. Officer A and Supervising Engineer,
Diliman, Quezon City, in such capacity and committing the offense in
relation to office and while in the performance of their official functions,
conniving, confederating and mutually helping with each other and with
accused ARCEO C. CRUZ, a private individual and General Manager of A.C.
Cruz Construction with address at 7486 Bagtikan Street, Makati City with
deliberate intent, with manifest partiality and evident bad faith, did then
and there willfully, unlawfully and feloniously cause to be paid to A.C.
Construction public funds in the amount of TWO HUNDRED THIRTY TWO
THOUSAND SIX HUNDRED TWENTY EIGHT PESOS and THIRTY FIVE
CENTAVOS (P232,628.35) PHILIPPINE CURRENCY, supposedly for the
excavation and roadfilling works on the Pahanocoy Sites and Services
Project in Bacolod City despite the fact no such works were undertaken by
A.C. Construction as revealed by the Special Audit conducted by the
Commission on Audit, thus accused public officials in the performance of
their official functions had given unwarranted benefits, advantage and
preference to accused Arceo C. Cruz and A.C. Construction and themselves
to the damage and prejudice of the government.
CONTRARY TO LAW.17
On 2 October 2006, petitioner filed a motion to quash the Information
raising the following grounds: (1) the facts charged in the information do
not constitute an offense; (2) the information does not conform
substantially to the prescribed form; (3) the constitutional rights of the
accused to be informed of the nature and cause of the accusations against
them have been violated by the inadequacy of the information; and (4) the
prosecution failed to determine the individual participation of all the
accused in the information in disobedience with the Resolution dated 27
March 2005.18
On 2 March 2007, the Sandiganbayan issued the first assailed resolution
denying petitioner’s motion to quash. We quote the said resolution in part:
Among the accused-movants, the public officer whose participation in the
alleged offense is specifically mentioned in the May 30, 2006
Memorandum is accused Felicisimo Lazarte, Jr., the Chairman of the
Inventory and Acceptance Committee (IAC), which undertook the
inventory and final quantification of the accomplishment of A.C. Cruz
Construction. The allegations of Lazarte that the IAC, due to certain
constraints, allegedly had to rely on the reports of the field engineers
and/or the Project Office as to which materials were actually installed; and
that he supposedly affixed his signature to the IAC Physical Inventory
Report and Memoranda dated August 12, 1991 despite his not being able
to attend the actual inspection because he allegedly saw that all the
members of the Committee had already signed are matters of defense
which he can address in the course of the trial. Hence, the quashal of the
information with respect to accused Lazarte is denied for lack of merit.
WHEREFORE, in view of the foregoing, the Court hereby resolves as
follows:
(1) Accused Robert Balao, Josephine Angsico and Virgilio Dacalos’
Motion to Admit Motion to Quash dated October 4, 2006 is
GRANTED; the Motion to Quash dated October 4, 2006 attached
thereto, is GRANTED. Accordingly, the case is hereby DISMISSED
insofar as the said accused-movants are concerned.
(2) The Motion to Quash dated October 2, 2006 of accused
Engr. Felicisimo F. Lazarte, Jr. is hereby DENIED for lack of merit. Let the
arraignment of the accused proceed as scheduled on March 13, 2007.
SO ORDERED.19
Subsequently, the Sandiganbayan issued the second assailed resolution
denying petitioner’s motion for reconsideration. Pertinently, it held:
The Motion for Reconsideration of accused Lazarte, Jr. merely reiterated
the grounds and arguments which had been duly considered and passed
upon in the assailed Resolution. Nonetheless, after a careful review of the
same, the Court still finds no cogent reason to disturb the finding of
probable cause of the Office of the Ombudsman to indict accused Lazarte,
Jr., Espinosa, Lobrido and Cruz of the offense charged. In its Memorandum
dated July 27, 2004 and May 30, 2006, the prosecution was able to show
with sufficient particularity the respective participation of the
aforementioned accused in the commission of the offense charged. The
rest of the factual issues by accused Lazarte, Jr. would require the
presentation of evidence in the course of the trial of this case.
The Court also maintains the validity and sufficiency of the information
against accused Lazarte, Jr., Espinosa, Lobrido and Cruz. The information
has particularly alleged the ultimate facts constituting the essential
elements of the offense charged which are as follows:
1. that accused Lazarte, Jr., Espinosa, and Lobrido are public
officers being the Department Manager, Project Management
Officer A, and Supervising Engineer of the NHA during the time
material in the criminal information; and
2. that the said accused, in their respective official capacities and
in conspiracy with accused Cruz, a private individual and the
General manager of A.C. Cruz Construction, have acted with
manifest partiality or evident bad faith and have given
unwarranted benefits, preference, and advantage to Arceo C. Cruz
and A.C. Cruz Construction or have caused damage and prejudice
to the government, by "[causing] to be paid A.C. Cruz
Construction public funds in the amount of Two Hundred Thirty
Two Thousand Six Hundred Twenty Eight Pesos and Thirty Five
Centavos (P232,628.35) supposedly for the excavation and
roadfilling works on the Pahanocoy Sites and Services Project in
Bacolod City despite the fact that no such works were undertaken
by A.C. Cruz Construction as revealed by the Special Audit
conducted by the Commission on Audit."
The other factual details which accused Lazarte, Jr. cited are matters of
evidence best threshed out in the course of the trial. 20
Hence, the instant petition which is a reiteration of petitioner’s
submissions. Petitioner ascribes grave abuse of discretion amounting to
lack or excess of jurisdiction to the Sandiganbayan in: (1) upholding the
validity and sufficiency of the Information despite its failure to make out an
offense and conform to the prescribed form; (2) denying his motion to
quash considering that the remaining averments in the Information have
been rendered unintelligible by the dismissal of the charges against some
of his co-accused; and (3) using as bases the Prosecution’s Memoranda
dated 27 July 2004 and 30 May 2006 to supplement the inadequacies of
the Information. In addition, petitioner avers that his constitutional right to
be informed of the nature and cause of the accusation against him had
been violated for failure of the Information to specify his participation in
the commission of the offense. Petitioner also argues that the facts
charged in the Information do not constitute an offense as no damage or
injury had been made or caused to any party or to the government. Finally,
petitioner maintains that the Sandiganbayan lost its jurisdiction over him
upon the dismissal of the charges against his co-accused as the remaining
accused are public officers whose salary grade is below 27.
In its Comment21 dated 21 December 2007, the Office of the Ombudsman,
through the Office of the Special Prosecutor, counters that separate
allegations of individual acts perpetrated by the conspirators are not
required in an Information and neither should they be covered by evidence
submitted to establish the existence of probable cause. Allegations
regarding the nature and extent of petitioner’s participation and
justification for his acts which constitute the offense charged are
evidentiary matters which are more properly addressed during trial. The
Ombudsman reiterates our ruling in Ingco v. Sandiganbayan22 that the
fundamental test in reflecting on the viability of a motion to quash is the
sufficiency of the averments in the information that is, whether the facts
asseverated, if hypothetically admitted, would establish the essential
elements of the crime defined by law. And relying on the case of Domingo
v. Sandiganbayan,23 the Ombudsman states that informations need only
state the ultimate facts; the reasons therefor are to be proved during the
trial.24 The Ombudsman moreover maintains that the Sandiganbayan has
jurisdiction over petitioner. The Ombudsman argues that it is of no
moment that petitioner’s position is classified as
salary grade 26 as he is a manager within the legal contemplation of
paragraph 1(g), Section 4(a) of Republic Act No. 8249.25
In his Reply26 dated 9 October 2008, petitioner strongly asseverates that,
according to the Constitution, in a conspiracy indictment the participation
of each accused in the so-called conspiracy theory should be detailed in
order to apprise the accused of the nature of the accusation against them
in relation to the participation of the other accused. A general statement
that all the accused conspired with each other without stating the
participation of each runs afoul of the Constitution.27 Petitioner adds that
the ultimate facts intended by law refer to determinate facts and
circumstances which should become the basis of the cause of action;
statement of facts which would be in complete accord with the
constitutional requirement of giving the accused sufficient information
about the nature and the cause of the accusation against him.28 Petitioner
also avers that the Ombudsman’s reliance on and citation of the cases of
Ingco v. Sandiganbayan29 and Domingo v. Sandiganbayan30 is misplaced
and misleading.
Petitioner’s main argument is that the Information filed before the
Sandiganbayan insufficiently averred the essential elements of the crime
charged as it failed to specify the individual participation of all the accused.
The Court is not persuaded. The Court affirms the resolutions of the
Sandiganbayan.
At the outset, it should be stressed that the denial of a motion to quash is
not correctible by certiorari. Well-established is the rule that when a
motion to quash in a criminal case is denied, the remedy is not a petition
for certiorari but for petitioners to go to trial without prejudice to
reiterating the special defenses invoked in their motion to quash. Remedial
measures as regards interlocutory orders, such as a motion to quash, are
frowned upon and often dismissed. The evident reason for this rule is to
avoid multiplicity of appeals in a single court.31
This general rule, however, is subject to certain exceptions. If the court, in
denying the motion to dismiss or motion to quash acts without or in excess
of jurisdiction or with grave abuse of discretion, then certiorari or
prohibition lies.32 And in the case at bar, the Court does not find the
Sandiganbayan to have committed grave abuse of discretion.
The fundamental test in reflecting on the viability of a motion to quash on
the ground that the facts charged do not constitute an offense is whether
or not the facts asseverated, if hypothetically admitted, would establish
the essential elements of the crime defined in law. 33 Matters aliunde will
not be considered.34
Corollarily, Section 6 of Rule 110 of the Rules of Court states that:
SEC. 6. Sufficiency of complaint or information.—A complaint or
information is sufficient if it states the name of the accused, the
designation of the offense by the statute, the acts or omissions complained
of as constituting the offense; the name of the offended party; the
approximate time of the commission of the offense, and the place wherein
the offense was committed.
When an offense is committed by more than one person, all of them shall
be included in the complaint or information.
The acts or omissions complained of must be alleged in such form as is
sufficient to enable a person of common understanding to know what
offense is intended to be charged and enable the court to know the proper
judgment. The Information must allege clearly and accurately the elements
of the crime charged. What facts and circumstances are necessary to be
included therein must be determined by reference to the definition and
elements of the specific crimes.35
The test is whether the crime is described in intelligible terms with such
particularity as to apprise the accused, with reasonable certainty, of the
offense charged. The raison d’etre of the rule is to enable the accused to
suitably prepare his defense.36 Another purpose is to enable accused, if
found guilty, to plead his conviction in a subsequent prosecution for the
same offense. The use of derivatives or synonyms or allegations of basic
facts constituting the offense charged is sufficient.37
Pertinently, Section 3(e) of Republic Act No. 3019, otherwise known as the
Anti-Graft and Corrupt Practices Act, reads:
SEC. 3. Corrupt practices of public officers.—In addition to acts or
omissions of public officers already penalized by existing law, the following
shall constitute corrupt practices of any public officer and are hereby
declared to be unlawful:
xxx
(e) Causing any undue injury to any party, including the Government, or
giving any private party any unwarranted benefits, advantage or
preference in the discharge of his official, administrative or judicial
functions through manifest partiality, evident bad faith or gross
inexcusable negligence. This provision shall apply to officers and
employees of offices or government corporations charged with the grant
of licenses or permits or other concessions. 38
The essential elements for violation of Section 3(e) of R.A. No. 3019 are as
follows:
1. The accused is a public officer or private person charged in
conspiracy with him;
2. Said public officer commits the prohibited acts during the
performance of his official duties or in relation to his public
position;
3. He causes undue injury to any party, whether the government
or private party;
4. Such undue injury is caused by giving unwarranted benefits,
advantage or preference to such parties; and
5. The public officer has acted with manifest partiality, evident
bad faith or gross inexcusable negligence.39
The Court finds that the Information in this case alleges the essential
elements of violation of Section 3(e) of R.A. No. 3019. The Information
specifically alleges that petitioner, Espinosa and Lobrido are public officers
being then the Department Manager, Project Management Officer A and
Supervising Engineer of the NHA respectively; in such capacity and
committing the offense in relation to the office and while in the
performance of their official functions, connived, confederated and
mutually helped each other and with accused Arceo C. Cruz, with
deliberate intent through manifest partiality and evident bad faith gave
unwarranted benefits to the latter, A.C. Cruz Construction and to
themselves, to the damage and prejudice of the government. The
felonious act consisted of causing to be paid to A.C. Cruz Construction
public funds in the amount of P232,628.35 supposedly for excavation and
road filling works on the Pahanocoy Sites and Services Project in Bacolod
City despite the fact that no such works were undertaken by said
construction company as revealed by the Special Audit conducted by COA.
On the contention that the Information did not detail the individual
participation of the accused in the allegation of conspiracy in the
Information, the Court underscores the fact that under Philippine law,
conspiracy should be understood on two levels. Conspiracy can be a mode
of committing a crime or it may be constitutive of the crime itself.
Generally, conspiracy is not a crime in our jurisdiction. It is punished as a
crime only when the law fixes a penalty for its commission such as in
conspiracy to commit treason, rebellion and sedition.40
When conspiracy is charged as a crime, the act of conspiring and all the
elements of said crime must be set forth in the complaint or information.
But when conspiracy is not charged as a crime in itself but only as the
mode of committing the crime as in the case at bar, there is less necessity
of reciting its particularities in the Information because conspiracy is not
the gravamen of the offense charged. The conspiracy is significant only
because it changes the criminal liability of all the accused in the conspiracy
and makes them answerable as co-principals regardless of the degree of
their participation in the crime. The liability of the conspirators is collective
and each participant will be equally responsible for the acts of others, for
the act of one is the act of all.41
Notably, in People v. Quitlong,42 as pointed out by respondent, the Court
ruled on how conspiracy as a mode of committing the offense should be
alleged in the Information, viz:
x x x Where conspiracy exists and can rightly be appreciated, the individual
acts done to perpetrate the felony becomes of secondary importance, the
act of one being imputable to all the others. Verily, an accused must know
from the information whether he faces a criminal responsibility not only
for his acts but also for the acts of his co-accused as well.
A conspiracy indictment need not, of course, aver all the components of
conspiracy or allege all the details thereof, like the part that each of the
parties therein have performed, the evidence proving the common design
or the facts connecting all the accused with one another in the web of the
conspiracy. Neither is it necessary to describe conspiracy with the same
degree of particularity required in describing a substantive offense. It is
enough that the indictment contains a statement of facts relied upon to be
constitutive of the offense in ordinary and concise language, with as much
certainty as the nature of the case will admit, in a manner that can enable
a person of common understanding to know what is intended, and with
such precision that the accused may plead his acquittal or conviction to a
subsequent indictment based on the same facts. It is said, generally, that
an indictment may be held sufficient "if it follows the words of the statute
and reasonably informs the accused of the character of the offense he is
charged with conspiring to commit, or, following the language of the
statute, contains a sufficient statement of an overt act to effect the object
of the conspiracy, or alleges both the conspiracy and the contemplated
crime in the language of the respective statutes defining them (15A C.J.S.
842-844).
x x x Conspiracy arises when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it. Conspiracy
comes to life at the very instant the plotters agree, expressly or impliedly,
to commit the felony and forthwith to actually pursue it. Verily, the
information must state that the accused have confederated to commit the
crime or that there has been a community of design, a unity of purpose or
an agreement to commit the felony among the accused. Such an
allegation, in the absence of the usual usage of the words "conspired" or
"confederated" or the phrase "acting in conspiracy," must aptly appear in
the information in the form of definitive acts constituting conspiracy. In
fine, the agreement to commit the crime, the unity of purpose or the
community of design among the accused must be conveyed such as either
by the use of the term "conspire" or its derivatives and synonyms or by
allegations of basic facts constituting the conspiracy. Conspiracy must be
alleged, not just inferred, in the information on which basis an accused can
aptly enter his plea, a matter that is not to be confused with or likened to
the adequacy of evidence that may be required to prove it. In establishing
conspiracy when properly alleged, the evidence to support it need not
necessarily be shown by direct proof but may be inferred from shown acts
and conduct of the accused.43
In addition, the allegation of conspiracy in the Information should not be
confused with the adequacy of evidence that may be required to prove it.
A conspiracy is proved by evidence of actual cooperation; of acts indicative
of an agreement, a common purpose or design, a concerted action or
concurrence of sentiments to commit the felony and actually pursue it. A
statement of the evidence on the conspiracy is not necessary in the
Information.44
The other details cited by petitioner, such as the absence of any damage or
injury caused to any party or the government, likewise are matters of
evidence best raised during trial.
As to the contention that the residual averments in the Information have
been rendered unintelligible by the dismissal of the charges against some
of his co-accused, the Court finds that the Information sufficiently makes
out a case against petitioner and the remaining accused.
With regard to the alleged irregular use by the Sandiganbayan of the
Prosecution’s Memoranda dated 27 July 2004 and 30 May 2006 to
supplement the inadequacies of the Information, the Court finds adequate
its explanation in the first assailed resolution, to wit:
It may be recalled that a reinvestigation of the case was ordered by this
Court because the prosecution failed to satisfactorily comply with an
earlier directive of the former Chairperson and Members of the First
Division, after noting the inadequacy of the information, to clarify the
participation of each of the accused. In ordering the reinvestigation, the
Court noted that the prosecution’s July 27, 2004 Memorandum did not
address the apprehensions of the former Chairperson and Members of the
First Division as to the inadequacy of the allegations in the information.
This time, despite a reinvestigation, the prosecution’s Memorandum dated
May 30, 2006 still failed to specify the participation of accused-movants
Balao, Angsico and Dacalos. The most recent findings of the prosecution
still do not address the deficiency found by the Court in the information.
The prosecution avers that pursuant to Section 3, Rule 117 of the Rules of
Court, in determining the viability of a motion to quash based on the
ground of "facts charged in the information do not constitute an offense,"
the test must be whether or not the facts asseverated, if hypothetically
admitted, would establish the essential elements of the crime as defined
by law. The prosecution contends that matter aliunde should not be
considered. However, in the instant case, the Court has found the
information itself to be inadequate, as it does not satisfy the requirements
of particularly alleging the acts or omissions of the said accused-movants,
which served as the basis of the allegation of conspiracy between the
aforementioned accused-movants and the other accused, in the
commission of the offense charged in the information.45
Finally, the Court sustains the Sandiganbayan’s jurisdiction to hear the
case. As correctly pointed out by the Sandiganbayan, it is of no moment
that petitioner does not occupy a position with Salary Grade 27 as he was a
department manager of the NHA, a government-owned or controlled
corporation, at the time of the commission of the offense, which position
falls within the ambit of its jurisdiction. Apropos, the Court held in the case
of Geduspan v. People46 which involved a regional Manager/Director of
Region VI of the Philippine Health Insurance Corporation (Philhealth) with
salary grade 26, to wit:
It is of no moment that the position of petitioner is merely classified as
salary grade 26. While the first part of the above–quoted provision covers
only officials of the executive branch with the salary grade 27 and higher,
the second part thereof "specifically includes" other executive officials
whose positions may not be of grade 27 and higher but who are by express
provision of law placed under the jurisdiction of the said court.
Hence, respondent court is vested with jurisdiction over petitioner
together with Farahmand, a private individual charged together with her.
The position of manager in a government-owned or controlled
corporation, as in the case of Philhealth, is within the jurisdiction of
respondent court. It is the position that petitioner holds, not her salary
grade, that determines the jurisdiction of the Sandiganbayan.
This Court in Lacson v. Executive Secretary, et al. ruled:
A perusal of the aforequoted Section 4 of R.A. 8249 reveals that to fall
under the exclusive jurisdiction of the Sandiganbayan, the following
requisites must concur: (1) the offense committed is a violation of (a) R.A.
3019, as amended (the Anti-Graft and Corrupt Practices Act), (b) R.A. 1379
(the law on ill-gotten wealth), (c) Chapter II, Section 2, Title VII, book II of
the Revised Penal Code (the law on bribery), (d) Executive Order Nos. 1,2,
14 and 14-A, issued in 1986 (sequestration cases), or (e) other offenses or
felonies whether simple or complexed with other crimes; (2) the offender
committing the offenses in items (a), (b), (c) and (e) is a public official or
employee holding any of the positions enumerated in paragraph a of
section 4; and (3) the offense committed is in relation to the office.
To recapitulate, petitioner is a public officer, being a department manager
of Philhealth, a government-owned and controlled corporation. The
position of manager is one of those mentioned in paragraph a, Section 4 of
RA 8249 and the offense for which she was charged was committed in
relation to her office as department manager of Philhealth. Accordingly,
the Sandiganbayan has jurisdiction over her person as well as the subject
matter of the case.47
WHEREFORE, premises considered, the instant petition is DISMISSED. The
Resolutions dated 2 March 2007 and 18 October 2007 of the First Division
of the Sandiganbayan are AFFIRMED.
SO ORDERED.
.R. No. 149453 May 28, 2002
PEOPLE OF THE PHILIPPINES, ET AL.,
vs.
PANFILO M. LACSON
RESOLUTION
Before us is a petition for review on certiorari seeking to reverse and set
aside the Decision1 of the Court of Appeals dated August 24, 2001 in CA-
G.R. SP No. 65034.2 The said Decision of the appellate court granted
respondent Lacson's Second Amended Petition for Prohibition with
application for the issuance of a Temporary Restraining Order, (1) assailing
the Order issued by Judge Herminia Pasamba of the Regional Trial Court
(RTC) of Manila, Branch 40, that allowed the continuation of the re-
investigation of Criminal Cases Nos. Q-99-81679 to Q-99-81689 or the
Kuratong Baleleng cases; and (2) praying for the dismissal of Criminal Cases
Nos. Q-01-101102 to Q-01-101112 entitled "People of the Philippines v.
Panfilo Lacson, et al." pending before Branch 81 of the RTC of Quezon City.
The following appear in the records of this case:
(1) On May 18, 1995, then PNP Director-General Recaredo Sarmiento II
announced, in a press conference, the killing of eleven (11) members of
the Kuratong Baleleng Gang (KBG) in a shootout with police elements near
the fly-over along Commonwealth Avenue, Quezon City at about 4:00 A.M.
that day.3
(2) On May 22, 1995, morning papers carried the news that SPO2 Eduardo
delos Reyes had claimed that the killing of the eleven (11) gang members
was a "rub-out" or summary execution and not a shootout. 4
(3) In an affidavit he executed the following day, delos Reyes stated,
among others, that he was part of a composite police team called the Anti-
Bank Robbery and Intelligence Task Force Group (ABRITFG) composed of
elements of the National Capital Region Command (NCRC) and headed by
Chief Superintendent Jewel Canson; Traffic Management Command,
headed by Senior Superintendent Francisco Subia, Jr.; Presidential Anti-
Crime Commission (PACC), headed by Chief Superintendent Panfilo M.
Lacson; Central Police District Command, headed by Chief Superintendent
Ricardo de Leon; and Criminal Investigation Command (CIC), headed by
Chief Superintendent Romeo Acop. Delos Reyes claimed that the police
team arrested the eleven (11) gang members in early morning of May 18,
1995 at the gang's safe house in Superville Subdivision, Parañaque; that
after their arrest, the gang members were made to board two vans, their
hands tied behind their backs, and brought initially to Camp Crame where
a decision to summarily execute them was made, and later to
Commonwealth Avenue where they were shot to death by elements of
ABRITFG.5
(4) On May 26, 1995, SPO2 Corazon dela Cruz, another CIC investigator,
executed an affidavit corroborating the material allegations of delos Reyes.
Dela Cruz claimed that she was with delos Reyes from the time the eleven
(11) KBG members were arrested up to the time they were killed in
Commonwealth Avenue.6
(5) On May 31, 1995, Armando Capili, a reporter of Remate, executed an
affidavit stating that he was present when the KBG members were
arrested in Superville Subdivision.7
(6) On June 1, 1995, Chief Superintendent Job A. Mayo, PNP Director for
Investigation, filed murder charges with the Office of the Ombudsman
against ninety-seven (97) officers and personnel of ABRITFG. The next-of-
kin of the slain KBG members also filed murder charges against the same
officers and personnel.8
(7) Ombudsman Aniano Desierto then created a panel of investigators to
conduct a preliminary investigation of the murder charges. The panel was
headed by Deputy Ombudsman for Military Affairs Bienvenido Blancaflor.
On October 20, 1995, the panel issued a resolution recommending the
dismissal of the charges for lack of probable cause.
(8) Ombudsman Desierto referred the resolution for review by a panel
composed of Over-all Deputy Ombudsman Francisco Villa as head, and
Special Prosecutor Leonardo Tamayo and Assistant Ombudsman Abelardo
Aportadera as members. On November 20, 1995, the review panel
reversed the Blancaflor resolution and found probable cause for the
prosecution of multiple murder charges against twenty-six (26) officers and
personnel of ABRITFG.9
(9) On November 2, 1995, the Ombudsman filed before
the Sandiganbayan eleven (11) Informations for MURDER, docketed as
Criminal Cases Nos. 23047 to 23057, against respondent Panfilo M. Lacson
and twenty-five (25) other accused. All twenty-six (26) of them were
charged as principals.10 The following appear to be the victims: Meleubren
Sorronda in Crim. Case No. 23047; Welbor Elcamel in Crim. Case No.
23048; Carlito Alap-ap in Crim. Case No. 23049; Jevy Redillas in Crim. Case
No. 23050; Ray Abalora in Crim. Case No. 23051; Joel Amora in Crim. Case
No. 23052; Alex Neri in Crim. Case No. 23053; Rolando Siplon in Crim. Case
No. 23054; Manuel Montero in Crim. Case No. 23055; Sherwin Abalora in
Crim. Case No. 23056; and Pacifico Montero in Crim. Case No. 23057.
(10) Upon motion of the respondent, the criminal cases were remanded to
the Ombudsman for reinvestigation. On March 1, 1996, Amended
Informations were filed against the same twenty-six (26) suspects but the
participation of respondent Lacson was downgraded from principal to
accessory. Arraignment then followed and respondent entered a plea of
not guilty.11
(11) With the downgrading of charges against him, respondent Lacson
questioned the jurisdiction of theSandiganbayan to hear the criminal cases
as none of the "principal" accused in the Amended Informations was a
government official with a Salary Grade (SG) 27 or higher, citing Section 2
of R. A. No. 7975 then prevailing. Accordingly, the Sandiganbayan ordered
the cases transferred to the Regional Trial Court.12
(12) The Office of the Special Prosecutor filed a motion for reconsideration
of the transfer. Pending resolution of the motion, R. A. No. 8249 took
effect on February 23, 1997, amending R. A. No. 7975. In particular, the
amendatory law deleted the word "principal" in Section 2 of R. A. No.
7975, thereby expanding the jurisdiction of the Sandiganbayan to include
all cases where at least one of the accused, whether principal, accomplice
or accessory, is a government official of Salary Grade (SG) 27 or higher. The
amendment is made applicable to all cases pending in any court in which
trial has not yet begun as of the date of its approval.13
(13) In Lacson v. Executive Secretary,14 respondent Lacson challenged the
constitutionality of the amendment and contended that
the Sandiganbayan had no jurisdiction over the criminal cases. This Court,
while dismissing the constitutional challenge, nonetheless ordered the
transfer of the criminal cases to the Regional Trial Court on the ground that
the Amended Informations for murder failed to indicate that the offenses
charged therein were committed in relation to, or in discharge of, the
official functions of the respondent, as required by R. A. No. 8249.
(14) Criminal Cases Nos. 23047 to 23057 were raffled off to Branch 81 of
the Regional Trial Court of Quezon City, then presided by Judge, now
Associate Justice of the Court of Appeals, Wenceslao Agnir, Jr., and re-
docketed as Criminal Cases Nos. Q-99-81679 to Q-99-81689.
(15) Before the accused could be arraigned, prosecution witnesses
Eduardo de los Reyes, Corazon de la Cruz, Armando Capili and Jane Gomez
recanted their affidavits which implicated respondent Lacson in the
murder of the KBG members.
On the other hand, private complainants Myrna Abalora, 15 Leonora
Amora,16 Nenita Alap-ap,17 Imelda Montero,18 Margarita
Redillas,19 Carmelita Elcamel20 and Rolando Siplon21 also executed their
respective affidavits of desistance declaring that they were no longer
interested to prosecute these cases.22
(16) Due to these developments, the twenty-six (26) accused, including
respondent Lacson, filed five separate but identical motions to (1) make a
judicial determination of the existence of probable cause for the issuance
of warrants of arrest; (2) hold in abeyance the issuance of the warrants,
and (3) dismiss the cases should the trial court find lack of probable cause.
(17) The records of the case before us are not clear whether the private
offended parties were notified of the hearing on March 22, 1999 23 held by
Judge Agnir to resolve the motions filed by respondent Lacson and the
other accused.
(18) During the said hearing, the private offended parties who desisted do
not appear to have been presented on the witness stand. In their stead,
Atty. Godwin Valdez testified that he assisted them in preparing their
affidavits of desistance and that he signed said affidavits as witness. On the
other hand, Atty. Aurora Bautista of the Philippine Lawyer's League
presented the affidavits of recantation of prosecution witnesses Eduardo
de los Reyes, Armando Capili and Jane Gomez. Only prosecution witness
Corazon de la Cruz testified to affirm her affidavit.24
(19) On March 29, 1999, Judge Agnir issued a Resolution25 dismissing
Criminal Cases Nos. Q-99-81679 to Q-99-81689, as follows:
"As already seen, the documents attached to the Informations in
support thereof have been rendered meaningless, if not absurd,
with the recantation of the principal prosecution witnesses and
the desistance of the private complainants. There is no more
evidence to show that a crime has been committed and that the
accused are probably guilty thereof. Following the doctrine
above-cited, there is no more reason to hold the accused for trial
and further expose them to an open and public accusation. It is
time to write finis to these cases and lay to rest the ghost of the
incident of May 18, 1995 so that all those involved--- the accused,
the prosecution witnesses and the private complainants alike---
may get on with their lives.
The Court is not unmindful of the admonition in the recent case of
People vs. Court of Appeals (G.R. No. 126005, January 21, 1999)
where the Supreme Court said that the general rule is that 'if the
Information is valid on its face and there is no showing of
manifest error, grave abuse of discretion or prejudice on the part
of the public prosecutor, courts should not dismiss it for want of
evidence, because evidentiary matters should be presented and
heard during the trial', and that the ruling in Allado vs. Diokno 'is
an exception to the general rule and may be invoked only if
similar circumstances are clearly shown to exist.'
This Court holds that the circumstances in the case at bench
clearly make an exception to the general rule.
WHEREFORE, in view of the foregoing, the Court finds no
probable cause for the issuance of the warrants of arrest against
the accused or to hold them for trial. Accordingly, the
Informations in the above-numbered cases are hereby ordered
dismissed."
SO ORDERED."26
(20) On March 27, 2001, PNP Director Leandro R. Mendoza indorsed to the
Department of Justice the new affidavits of P/Insp. Ysmael S. Yu and P/S
Insp. Abelardo Ramos regarding the Kuratong Baleleng incident for
preliminary investigation. On the strength of this indorsement, Secretary of
Justice Hernando B. Perez formed a panel to investigate the matter. On
April 17, 2001, the respondent was subpoenaed to attend the investigation
of Criminal Cases Nos. Q-99-81679 to Q-99-81689.27
(21) On May 28, 2001, respondent Lacson, et al., invoking, among others,
their constitutional right against double jeopardy, filed a petition for
prohibition with application for temporary restraining order and/or writ of
preliminary injunction with the Regional Trial Court of Manila, primarily to
enjoin the State prosecutors from conducting the preliminary
investigation. The petition was docketed as Civil Case No. 01-100933 and
raffled to Branch 40, presided by Judge Herminia V. Pasamba.28
(22) The plea for temporary restraining order was denied by Judge
Pasamba in an Order29 dated June 5, 2001,viz:
"After a study, this Court submits that the dismissal of Criminal
Cases Nos. Q-99-81679 to Q-99-81689 is not one on the merits
and without any recorded arraignment and entered plea on the
part of the herein petitioners. The dismissal was a direct
consequence of the finding of the Quezon City RTC that no
probable cause exists for the issuance of warrants of arrest
against petitioners herein and to hold them for trial. The
arraignment had with the Sandiganbayan does not put the case in
a different perspective since theSandiganbayan was adjudged to
be without any jurisdiction to try the cases. It is the People of the
Philippines who is the complainant in the Kuratong Baleleng case
and remains to be the complainant in the present investigation
initiated thru a letter of PNP Chief Mendoza dated March 27,
2001 (Exhibit "B") together with the sworn statements of
witnesses Ramos and Yu (Exhibits "2" and "3" - supportive of the
refiling of the case (Exhibit "9").
xxx xxx xxx
Above considered, this Court finds petitioners have not
preliminarily established that they have a right to be preserved
pending hearing on the injunctive relief.
WHEREFORE, the prayer for temporary restraining order is hereby
DENIED.
SO ORDERED."30
(23) On June 6, 2001, eleven (11) Informations for murder involving the
killing of the same members of theKuratong Baleleng gang were filed
before the Regional Trial Court of Quezon City and were docketed as
Criminal Cases Nos. 01-101102 to 01-101112. The new Informations
charged as principals thirty-four (34) people, including respondent Lacson
and his twenty-five (25) other co-accused in Criminal Cases Nos. Q-99-
81679 to Q-99-81689. The criminal cases were assigned to Judge Ma.
Theresa L. Yadao.
(24) On the same day, respondent Lacson filed before the Court of Appeals
a petition for certiorari31 against Judge Pasamba, the Secretary of Justice,
the PNP Chief, State Prosecutors Ong and Zacarias, 2nd Assistant City
Prosecutor Jamolin, and the People of the Philippines. The said petition
was amended to implead as additional party-respondents State Prosecutor
Claro Arellano and the RTC, Quezon City, Branch 81 in which the
Informations in Criminal Cases Nos. 01-101102 to 01-101112 were filed.32
(25) The Second Amended Petition33 dated June 14, 2001 and admitted by
the Court of Appeals on June 26, 2001, alleged:
"The reliefs of certiorari, prohibition and injunction against the
questioned Order (Annex A) and the new Informations in Criminal
Cases Nos. 01-101102 to 01-101112 pending before respondent
Yadao (Annex B) are founded upon the grave abuse of discretion
by respondent Judge Pasamba of her discretion in its issuance, the
illegality of the proceedings of the respondent State Prosecutors
as they cannot revive complaints which had been dismissed over
two (2) years from the date the dismissal order was issued, and
the invalidity of the new Informations for Murder filed against
petitioners and others, all in defiance of law and jurisprudence as
shown by the following:
(a) Respondent judge had ruled on the merits of the main
prohibition action a quo rendering the same moot and academic
by concluding that the dismissal of Criminal Cases Nos. Q-99-
81679-Q-99-81689 by the QC RTC was not final and executory,
hence [i] the complaints therein can be reinvestigated, and [ii]
petitioner's arraignment while the case had not yet been
remanded to the QC RTC and while the Sandiganbayan had valid
jurisdiction thereover [Criminal Cases No. 23047-2048] was void,
notwithstanding that the only issue in the TRO application was the
 existence or lack of a valid complaint as defined in S1 and S3, Rule
110.
(b) Respondent Judge ruled that respondent State Prosecutors
could proceed to re-investigate and thereafter file new
Informations on June 6, 2001 covering those offenses subject of
Criminal Cases Nos. Q-99-81679-Q-99-81689 on the basis of
affidavits filed after said cases were dismissed on March 29, 1999,
despite the fact that under Section 8, Rule 117, cases similar to
those filed against the petitioner and others (where the penalty
imposable is imprisonment of six (6) years or more) cannot be
revived after two (2) years from the date the dismissal order was
issued.
(c) Respondent Judge held that the petitioner had not shown a
right to be preserved despite evidence showing the short cuts
taken by respondent State prosecutors in re-investigating a
dismissed case, in not complying with Rules in respect of its re-
opening, and in insisting that a valid complaint was filed in clear
violation of the Rules and case law thereon, and despite the fact
that the petitioner had shown that an inextendible deadline of
June 5, 2001 was given him to file his counter-affidavit without
which his indictment for a non-bailable offense is assured because
of DOJ Secretary Hernando Perez's political schemes."34
(26) In the meantime, on June 8, 2001, respondent Lacson also filed with
the RTC-QC Branch 81 (presided by Judge Ma. Theresa Yadao), a Motion
for Judicial Determination of Probable Cause and in the absence thereof,
to dismiss the cases outright. Respondent Lacson, however, filed a
Manifestation and Motion dated June 13, 2001 seeking the suspension of
the proceedings before the trial court.35
(27) The Court of Appeals issued a temporary restraining order enjoining
Judge Yadao from issuing a warrant of arrest or conducting any proceeding
or hearing in Criminal Cases Nos. 01-101102 to 01-101112.36
(28) On August 24, 2001, the Court of Appeals (Special Third Division),
rendered the now assailed Decision. It characterized the termination of
Criminal Cases Nos. Q-99-81679 to Q-99-81689 as "provisional dismissal,"
and considered Criminal Cases Nos. 01-101102 to 01-101112 as mere
revivals of the same. Applying Section 8, Rule 117 of the 2000 Revised
Rules of Criminal Procedure, it dismissed the criminal cases against the
respondent, viz:
"In sum, this Court is of the considered view that the subject
dismissal of [the] criminal cases was provisional in nature and that
the cases presently sought to be prosecuted by the respondents
are mere revival or re-opening of the dismissed cases. The present
controversy, being one involving "provisional dismissal" and
revival of criminal cases, falls within the purview of the
prescriptive period provided under Section 8, Rule 117 of the
2000 Revised Rules of Criminal Procedure. The second paragraph
of the said provision is couched in clear, simple and categorical
words. It mandates that for offenses punishable by imprisonment
of more than six (6) years, as the subject criminal cases, their
provisional dismissal shall become permanent two (2) years after
the issuance of the order without the case having been revived. It
should be noted that the revival of the subject criminal cases,
even if reckoned from the DOJ's issuance of subpoenas to
petitioner, was commenced only on April 19, 2001, that is, more
than two (2) years after the issuance, on March 29, 1999, of RTC-
Quezon City's Resolution, provisionally dismissing the criminal
cases now sought to be revived. Applying the clear and categorical
mandate of Section 8, Rule 117, supra, such efforts to revive the
criminal cases are now definitely barred by the two-year
prescriptive period provided therein.
xxx xxx xxx
WHEREFORE, the petition is GRANTED. As prayed for, the
Temporary Restraining Order earlier issued against the conduct of
further proceedings in Criminal Cases Nos. 01-101102 to 01-
101112, including the issuance of warrants of arrest against the
petitioner, PANFILO M. LACSON, is hereby made PERMANENT.
Accordingly, with respect to said accused, the proceedings
conducted by respondent State Prosecutors in respect of the said
criminal cases are declared NULL AND VOID and the
corresponding Informations, docketed as Criminal Cases Nos. 01-
101102 to 01-101112, entitled 'People of the Philippines vs.
Panfilo M. Lacson, et al." and filed before respondent Judge Maria
Theresa L. Yadao of Branch 81 of the Regional Trial Court of
Quezon City, are hereby ordered DISMISSED.
 SO ORDERED."37 that only seven (7) persons submitted their affidavits of desistance,
namely:
The issue is whether Section 8, Rule 117 bars the filing of the eleven (11)
informations against the respondent Lacson involving the killing of some a. Myrna Abalora, mother of the victims Sherwin Abalora and Rey
members of the Kuratong Baleleng gang. This rule which took effect on Abalora
December 1, 2000 provides:
b. Carmelita Elcamel, wife of Wilbur Elcamel;
"SEC. 8. Provisional dismissal.- A case shall not be provisionally
dismissed except with the express consent of the accused and c. Leonora Amora, mother of victim Joel Amora;
with notice to the offended party.
d. Nenita Alap-ap, wife of victim Carlito Alap-ap;
The provisional dismissal of offenses punishable by imprisonment
not exceeding six (6) years or a fine of any amount, or both, shall e. Imelda Montero, wife of victim Manuel Montero;
become permanent one (1) year after issuance of the order
without the case having been revived. With respect to offenses
f. Margarita Redillas, mother of victim Hilario Jevy Redillas; and
punishable by imprisonment of more than six (6) years, their
provisional dismissal shall become permanent two (2) years after
g. Rolando Siplon.
issuance of the order without the case having been revived."

From the records of the case before us, it cannot be determined whether
Like any other favorable procedural rule, this new rule can be given
there were affidavits of desistance executed by the relatives of the three
retroactive effect. However, this Court cannot rule on this jugular issue due
to the lack of sufficient factual bases. Thus, there is need of proof of the (3)38 other victims, namely: Meleubren Soronda, Pacifico Montero, Jr., and
Alex Neri. The same records do not show whether they were notified of
following facts, viz: (1) whether the provisional dismissal of the cases had
the hearing or had knowledge thereof. To be sure, it is not fair to expect
the express consent of the accused; (2) whether it was ordered by the
the element of notice to be litigated before then Judge Agnir for Section 8,
court after notice to the offended party, (3) whether the 2-year period to
Rule 117 was yet inexistent at that time.
revive has already lapsed, and (4) whether there is any justification for the
filing of the cases beyond the 2-year period.
The fact of notice to the offended parties was not raised either in the
petition for prohibition with application for temporary restraining order or
There is no uncertainty with respect to the fact that the provisional
writ of preliminary injunction filed by respondent Lacson in the RTC of
dismissal of the cases against respondent Lacson bears his express
Manila, presided by Judge Pasamba, to enjoin the prosecutors from
consent. It was respondent Lacson himself who moved to dismiss the
reinvestigating the said cases against him. The only question raised in said
subject cases for lack of probable cause before then Judge Agnir, hence, it
petition is whether the reinvestigation will violate the right of respondent
is beyond argument that their dismissal bears his express consent.
Lacson against double jeopardy. Thus, the issue of whether or not the
reinvestigation is barred by Section 8, Rule 117 was not tackled by the
The records of the case, however, do not reveal with equal clarity and
litigants.
conclusiveness whether notices to the offended parties were given before
the cases against the respondent Lacson were dismissed by then Judge
Nor was the fact of notice to the offended parties the subject of proof
Agnir. It appears from the resolution of then Judge Agnir that the relatives
after the eleven (11) informations for murder against respondent Lacson
of the victims who desisted did not appear during the hearing to affirm
and company were revived in the RTC of Quezon City presided by Judge
their affidavits. Their affidavits of desistance were only presented by Atty.
Yadao. There was hardly any proceeding conducted in the case for
Godwin Valdez who testified that he assisted the private complainants in
respondent Lacson immediately filed a petition for certiorari in the
preparing their affidavits and he signed them as a witness. It also appears
appellate court challenging, among others, the authority of Judge Yadao to
entertain the revived informations for multiple murder against him.
This is not to be wondered at. The applicability of Section 8, Rule 117 was
never considered in the trial court. It was in the Court of Appeals where
respondent Lacson raised for the first time the argument that Section 8,
Rule 117 bars the revival of the multiple murder cases against him. But
even then, the appellate court did not require the parties to elucidate the
crucial issue of whether notices were given to the offended parties before
Judge Agnir ordered the dismissal of the cases against respondent Lacson
and company. To be sure, there is a statement in the Decision of the
appellate court to the effect that "records show that the prosecution and
the private offended parties were notified of the hearing x x x."39 It is
doubtful whether this finding is supported by the records of the case. It
appears to be contrary to Judge Agnir's finding that only seven (7) of the
complainants submitted affidavits of desistance.
Indeed, the records of this case are inconclusive on the factual issue of
whether the multiple murder cases against respondent Lacson are being
revived within or beyond the 2-year bar. The reckoning date of the 2-year
bar has to be first determined - - - whether it is from the date of the Order
of then Judge Agnir dismissing the cases or from the dates the Order were
received by the various offended parties or from the date of the effectivity
of the new rule.
If the cases were revived only after the 2-year bar, the State must be given
the opportunity to justify its failure to comply with said timeline. The new
rule fixes a timeline to penalize the State for its inexcusable delay in
prosecuting cases already filed in courts. It can therefore present
compelling reasons to justify the revival of cases beyond the 2-year bar.
In light of the lack of or the conflicting evidence on the various
requirements to determine the applicability of Section 8, Rule 117, this
Court is not in a position to rule whether or not the re-filing of the cases
for multiple murder against respondent Lacson should be enjoined.
Fundamental fairness requires that both the prosecution and the
respondent Lacson should be afforded the opportunity to be heard and to
adduce evidence on the presence or absence of the predicate facts upon
which the application of the new rule depends. They involve disputed facts
and arguable questions of law. The reception of evidence on these various
issues cannot be done in this Court but before the trial court.
IN VIEW OF THE FOREGOING, the case at bar is remanded to the RTC -
Quezon City, Branch 81 so that the State prosecutors and the respondent
Lacson can adduce evidence and be heard on whether the requirements of
Section 8, Rule 117 have been complied with on the basis of the evidence
of which the trial court should make a ruling on whether the Informations
in Criminal Cases Nos. 01-101102 to 01-101112 should be dismissed or not.
Pending the ruling, the trial court is restrained from issuing any warrant of
arrest against the respondent Lacson. Melo and Carpio, JJ., take no part.
SO ORDERED.
R. No. 126029 March 27, 2003
PEOPLE OF THE PHILIPPINES, appellee,
vs.
REY SUNGA, RAMIL LANSANG, INOCENCIO PASCUA, LITO OCTAC and
LOCIL CUI @ GINALYN CUYOS,accused,
REY SUNGA, RAMIL LANSANG and INOCENCIO PASCUA, appellants.
CARPIO-MORALES, J.:
The sole, uncorroborated testimony of an accused who turned state
witness may suffice to convict his co-accused if it is given unhesitatingly
and in a straightforward manner and is full of details which by their nature
could not have been the result of deliberate afterthought;1 otherwise, it
needs corroboration the presence or lack of which may ultimately decide
the cause of the prosecution and the fate of the accused.
On July 12, 1994, the mutilated body of Jocelyn Tan (Jocelyn), a minor and
a high school student of Palawan Integrated National School, (PINS), was
found at a coffee plantation in Jacana, Barangay Bancao-Bancao in Puerto
Princesa City, Palawan.
The hunt for the possible killers of Jocelyn was swift, several arrests having
been made in a span of days, followed by the conduct of the requisite
preliminary investigation by the Municipal Trial Court in Cities (MTCC) in
Puerto Princesa City which culminated in the filing before the Regional
Trial Court (RTC) of Puerto Princesa City of the information for rape with
homicide against the suspects. The case was raffled to Branch 48 of the
court.
Accused in the Information were Rey Sunga, Ramil Lansang, Inocencio
Pascua, Jr., and Lito Octac as principals, and Locil Cui alias Ginalyn Cuyos as
accomplice the accusatory portion of the information dated September 6,
1994 reads as follows:
xxx
That on or about June 29, 1994 in the afternoon, at Barangay
Irawan, Puerto Princesa City, Philippines, and within the
jurisdiction of this Honorable Court, the said accused conspiring
and confederating together and mutually helping one another, did
then and there wilfully, unlawfully and feloniously, by means of
force, violence and intimidation, to wit: by pinning down one
JOCELYN TAN, a minor, fifteen (15) years of age, succeeded in
having carnal knowledge of her against her will and without her
consent; that on the occasion of said rape and to enable them to
conceal the commission of the crime, the herein accused in
furtherance of the conspiracy together with LOCIL CUI, a minor,
acting with discernment and who cooperated in the execution of
the offense as ACCOMPLICE, did then and there wilfully,
unlawfully and feloniously, taking advantage of their superior
number and strength, with intent to kill, treacherously attack,
assault, and use personal violence upon JOCELYN TAN by
repeatedly stabbing and smashing a stone on her head, thereby
inflicting upon her mortal wounds and multiple fractures on her
skull which were the direct cause of her death shortly thereafter.
CONTRARY TO LAW.2
x x x.
The case was docketed as Criminal Case No. 11984.
Upon arraignment all the accused pleaded not guilty.
On September 26, 1994, the accused through counsel filed a petition for
bail,3 underscoring the weakness of the People’s evidence, there being no
direct evidence against them, a fact admitted by the City Prosecutor in his
resolution4 for their indictment. Hearings on the bail petition were
conducted in the course of which the prosecution, after presenting several
witnesses, filed on October 18, 1994 a motion to discharge 5 accused Locil
Cui (Locil) to be a state witness, averring therein that the legal requisites
for her discharge had been complied with, and submitting her sworn
statement6 which detailed how her co-accused carried out the crime. The
respective counsels for the other accused opposed the motion, insisting
that it could only be filed during trial on the merits and that Locil’s
testimony was not absolutely necessary.7 By Order of October 20,
1994,8 the trial court deferred the resolution of the bail petition until after
the prosecution had rested its case, but it granted the motion to discharge
Locil.
The accused assailed the discharge of Locil via a petition for certiorari and
prohibition9 before the Court of Appeals which issued a temporary
restraining order (TRO) enjoining the trial court from proceeding with the
trial of the case.10 The TRO lapsed, however, without a preliminary
injunction being issued, hence, the trial of the case resumed.
Through state witness Locil, then 14 years old and an elementary school
dropout who had been living away from her parents and using the alias
"Ginalyn Cuyos"11 to evade, by her own account,12 her mother and aunt
who were looking for her after she got pregnant (the pregnancy was later
aborted), the prosecution established the following version:
At about 2:00 p. m. of June 29, 1994, Locil boarded a tricycle bearing the
marking "Ryan-Ryan" from the Social Security System (SSS) Office in Puerto
Princesa City. Already on board the tricycle was a lesbian who had a
birthmark on the right side of the face and who invited Locil for a joy
ride.13 Upon instruction of the lesbian, the tricycle driver, whom she did
not know but whom she later identified and who answered to the name
Rey Sunga (Sunga), repaired to the Mendoza Park.
At the Mendoza Park, the lesbian alighted and spoke to Jocelyn Tan, the
victim, who was dressed in a PINS uniform. The lesbian, together with
Jocelyn, then joined Locil aboard the tricycle which was already driven by
Inocencio Pascua (Pascua) vice Sunga who had in the meantime left. Still
aboard the tricycle, the four of them proceeded to and reached Barangay
Irawan, Puerto Princesa City and on reaching a forested area, Jocelyn was
met by Sunga who held her and by Ramil Lansang (Lansang) who wrapped
his arm around her waist as they dragged her to a nearby "buho" clumps.
There, Jocelyn was made to lie down. Her skirt was raised and her panty
was taken off by Lansang. As she lay face up with both her hands held by
Sunga and Pascua, Lansang stripped naked, placed himself on top of
Jocelyn, inserted his penis into her vagina and "seemed to be pumping."14
After Lansang, Sunga took turn to have sexual intercourse with Jocelyn as
Lansang and one who was not known to Locil and whom the latter
described as one who has "chinky" or "narrow eyes," later identified to be
Pascua, kept Jocelyn pinned down by her hands.15
Pascua too subsequently had carnal knowledge of Jocelyn who all along
struggled against her malefactors.16
After Pascua satisfied his lust, Sunga, with a sharp bladed weapon, stabbed
the abdomen of the motionless Jocelyn, drawing her to rise to a sitting
position and clutch her abdomen. Sunga then passed on the bladed
weapon to Lansang who smashed Jocelyn’s head with an irregularly
shaped stone, causing her to fall to the ground lifeless. Locil, who
witnessed everything, was then pulled by the lesbian and led back into the
tricycle where they awaited Lansang, Sunga and Pascua to ride with them.
All five thereafter headed back to Puerto Princesa City proper, leaving
Jocelyn’s body behind.17
When the five reached the Mendoza Park where Locil alighted, she heard
the voice of someone from inside the tricycle warning her to keep mum
about the incident, otherwise something would also happen to her. Locil
then repaired to her boarding house. Until she was arrested following the
discovery on July 12, 1994 of Jocelyn’s corpse, she did not report the
incident to anyone.18
The other prosecution witnesses provided testimonies pertaining to
circumstances after the fact.
Oscar Devilleres, a garbage truck driver, recalled that he was on his way
home in Jacana, Barangay Bancao-Bancao at 12:30 a. m. of June 30, 1994,
a day after the incident, when from a distance of about 30 meters, he saw
Lansang walking back and forth and appearing restless near the coffee
plantation in Jacana, Barangay Bancao-Bancao where Jocelyn’s body was
later found on July 12, 1994. Although it was then nighttime, Devilleres had
a good look at Lansang due to the illumination provided by the electric
light post under which Lansang was situated.19
Igleceria Gabinete, a resident of Jacana, declared that she was among
those who saw the mutilated body of Jocelyn in the morning of July 12,
1994 at a coffee plantation near her place; that in the afternoon of that
date and while tending her sari-sari store, a tricycle arrived with three men
on board, one of whom, Lito Octac (Octac) alighted, leaving the two inside
the tricycle who seemed to be hiding their faces; that one of those two
men inside the tricycle inquired from her whether the discovered corpse,
that of Jocelyn, was from Barangay Caroray; that the following day, she
reported to the police about the three suspicious looking men who went to
her store; and that two days later, she was made to, as she did, identify
Lansang at the police station as one of the men who went to her store in
the afternoon of July 12, 1994 and inquired as to Jocelyn’s corpse.20
Galahad Tan (Tan), Jocelyn’s father, recounted as follows: During the wake
of his daughter at the Sampaton Funeral Parlor, at 1:30 a. m. of July 14,
1994 (15th day following the incident), Lansang arrived and told him as
follows: "Total tayo ay magkaisang barangay lang ay ayosin natin itong
kaso at magtulungan na lang, mayroon na akong alam na makakapagturo
kung sino and may kagagawan sa krimen. Huwag na lang nating sabihin sa
mga polis." When he asked Lansang who he was referring to, Lansang
replied that he would return. Lansang did not return, however, prompting
Tan to relay to law enforcers the statements of Lansang, his neighbor who
was courting Jocelyn at the time and with whose family his own family was
in good terms.21
Testifying on the autopsy she conducted on Jocelyn, Dr. Ma. Carla Gallego -
Vigonte (Dr. Vigonte) affirmed the following findings in her report 22 dated
July 12, 1994:
POST-MORTEM FINDINGS
1. The cadaver was seen in advanced stage of decomposition.
2. Depressed fracture noted at the frontal bone of the skull about
2 cm anterior to the bregma, measuring 2.5 cm in width and 3.5
cm in length, with a rounded hole at its right side with irregular
edges measuring 4 cm x 5 cm in diameter; with a linear fracture
about 2 cm in length extending from the depressed fracture up to
the bregma; linear fracture about 3 cm in length along the coronal
suture, right side, extending from the hole to the bregma.
3. Multiple linear fracture with lengths ranging from 2 cm to 5 cm,
noted at the lambdoid suture, about 2 cm right side of the
lambda, extending to the right side of the occipital and parietal
bones of the skull.
 PROBABLE CAUSE OF DEATH: Intracranial Hemorrhage secondary
to multiple fractures of the skull.
Dr. Vigonte opined that a blunt object or instrument like a hard wood or a
rock caused the injury noted in post-mortem finding no. 2 which was fatal,
it being a deep wound in the skull affecting its inner organ and lacerating
the tissues of the brain, thus causing hemorrhage; that for said fatal
wound, the assailant was probably at Jocelyn’s left side; that for the injury
in post-mortem finding no. 3, the attacker was at the back of Jocelyn; and
that in light of the multiple injuries, there were more than one
perpetrator.23 Dr. Vigonte was, however, unable to determine whether
Jocelyn was also raped.24
The prosecution adduced documentary evidence consisting mainly of two
supposed extrajudicial confessions made by Sunga.
In a sworn statement (Exhibit "A")25 dated July 18, 1994 which was
executed before SPO2 Jose P. Janoras (SPO2 Janoras), Sunga made the
following disclosures:
At about 10:00 a. m. of the day of the incident, June 29, 1994, as he was
then at work as a tricycle dispatcher, Lansang arrived in a tricycle bearing
the marking "Ryan-Ryan" and invited him to accompany him in fetching
Jocelyn at the PINS. He obliged and just before reaching their destination,
Locil boarded the tricycle. At the gate of the school, Lansang talked to
Jocelyn who was then wearing the school uniform after which the two
boarded the tricycle which he (Sunga) drove to a spot at the corner of Rizal
Avenue and Lacao St. in the Puerto Princesa City proper where the four of
them (Sunga, Lansang, Locil and Jocelyn) transferred to an "owner’s jeep"
brought by Octac alias "Toto." The group then proceeded to and reached
Barangay Irawan at around 10:30 a. m. and at a forested area in Sitio
Tagaud, everyone alighted except for Octac. Lansang then forcibly
undressed Jocelyn and raped her while he (Sunga) and Locil watched. After
consummating his carnal desire, Lansang hit Jocelyn with a 2" x 2" piece of
wood on her head and successively on different parts of her body. When
Jocelyn was already dead, Locil also whacked Jocelyn’s body many times.
The group then headed back to the city proper, leaving Jocelyn’s remains
at the scene of the crime.
In accordance with their previous agreement, he (Sunga), Lansang and
Locil returned to Barangay Irawan aboard a jeep driven by Octac four
days after June 29, 1994 and took Jocelyn’s body for the purpose of
bringing it to Jacana in Barangay Bancao-Bancao in accordance with
Lansang’s wish. On their way to Bancao-Bancao, Locil inserted a cigarette
into the corpse’s mouth – "…. pinasigarilyo ni [Locil] ang bangkay upang
ikubli sa maaaring makakita ang tunay na kaanyuan ni Jocelyn Tan."26 At
Barangay Bancao-Bancao, he (Sunga), Lansang and Locil carried the
victim’s body and left the same at a coffee plantation fifty meters away
from Jacana Road while Octac served as a lookout by the roadside. On
their return to the city, the four parted ways at the corner of Rizal Avenue
and Lacao Street. He (Sunga) then drove the tricycle with the marking
"Ryan-Ryan" with Locil aboard while Lansang and Octac remained together
at the jeep.27
The above sworn statement bears Sunga’s signature and that of his
assisting counsel, Atty. Agustin Rocamora (Atty. Rocamora), Puerto
Princesa City Legal Officer.
Testifying as to the investigation he conducted upon Sunga, SPO2 Janoras
recalled that he was on duty at the Puerto Princesa City police precinct in
the morning of July 18, 1994 when SPO4 Boy Pantollano and patrolman
Bolos arrived together with Sunga. The two brought Sunga inside a room
and asked him questions pertaining to Jocelyn’s death and after about
thirty minutes, Sunga was presented before him (SPO2 Janoras) for
investigation. He initially asked Sunga whether he knew anything about
Jocelyn’s death and Sunga replied affirmatively, prompting him to inform
him of his rights under custodial interrogation. After Sunga signified his
desire to avail of the services of a lawyer, Sunga chose Atty. Rocamora to
be his counsel from among the names of lawyers mentioned by him (SPO2
Janoras). He thereupon fetched Atty. Rocamora from his residence. Atty.
Rocamora briefly conferred with Sunga, asking him if he wanted to give a
confession and informing him of the consequences thereof. Thereafter, the
investigation proceeded with Sunga voluntarily giving his answers to
questions he (SPO2 Janoras) propounded at the end of which investigation
Sunga and Atty. Rocamora affixed their respective signatures on the
recorded statement.28
The execution of Exhibit "A" was, during the preliminary investigation
before the Municipal Trial Court,29 affirmed by Sunga. Apart from
acknowledging its contents, Sunga answered the investigating judge’s
other queries as he implicated Lansang, Locil and Octac in the killing of
Jocelyn. This time, however, he alleged that not only Lansang but also
Octac raped Jocelyn, adding that he merely held Jocelyn’s hand.30
Subsequently or on August 3, 1994, Sunga executed another sworn
statement (Exhibit "I")31 before Special Investigator Reynaldo O. Abordo of
the Puerto Princesa office of the National Bureau of Investigation
(NBI). Exhibit "I" varied in a number of respects from Exhibit "A." In Exhibit
"I," Sunga declared that in the morning of June 28, 1994 he already had an
agreement with Lansang to fetch Jocelyn from her school on the following
day; that at 8:00 a. m. of the following day, June 29, 1994, he, together
with Lansang, Lito Octa (should be Octac) and a certain Jun left Mendoza
Park and proceeded to Irawan after asking Locil, one Bing Manila, and a
certain Josie to fetch Jocelyn at her school; that Jun drove the tricycle back
to the city proper and he transported their female companions including
Jocelyn to Irawan; that at Irawan, Lansang raped the struggling Jocelyn
whose hands were then held by Josie; that after Lansang and Jun raped
Jocelyn, Lansang smashed her head twice in accordance with his plan to kill
her which plan was known to him (Sunga), Locil, Octac and Jun; that at
1:30 a. m. of June 30, 1994, Lansang, Sunga, Octa and Jun returned to
Irawan, took Jocelyn’s corpse and dumped it at a coffee plantation in
Jacana Road; and that he did not take part in the rape or killing of Jocelyn
but merely joined the group due to Lansang’s promise to give him
P500.00. Exhibit "I" embodied a waiver by Sunga of his right to counsel.32
The prosecution evidence with respect to Jocelyn’s family’s incurring of the
amount of P11,000.00 for Jocelyn’s funeral expenses was admitted by the
defense.33
Upon the other hand, all the accused proffered alibi.
Accused-appellant Sunga, who had previously been convicted for robbery
with homicide, denied having anything to do with the rape and killing of
Jocelyn. He branded as false the testimony of Locil whom he claimed is a
prostitute and a pimp and was always seen loitering at Mendoza Park.
While he acknowledged knowing Octac and Pascua, he denied being in
their company on June 29, 1994 or in Lansang’s.34
Confronted with his sworn statement-Exhibit "A," Sunga explained the
circumstances behind his execution thereof as follows: After having been
arrested without a warrant by the police in the evening of July 15, 1994 at
the corner of Rizal and Valencia streets while "picking up passengers," he
was brought to the police station where he was subjected to violence and
intimidation by SPO2 Pantollano and a certain Ka Ronnie to coerce him to
"pinpoint to anybody", and he involuntarily did. After being mauled and
kicked, he was made to appear before police investigator Janoras on that
same night of July 15, 1994 during which he signed the second and third
pages of a three paged affidavit embodying his questioned extrajudicial
confession without the assistance of counsel and under threats and
intimidation from SPO2 Pantollano. He was later brought on July 18, 1994
to the Capitol building where he signed the first page of his confession
after which Atty. Agustin Rocamora also signed the same. 35
As to his other sworn statement-Exhibit "I" executed before the NBI, Sunga
initially affirmed having given the answers to questions propounded
therein by the NBI Investigator and having executed the "confession" for
the purpose of applying to become a state witness in the case. 36 He
subsequently retracted his acknowledgement of Exhibit "I" as his own
confession.37 While he admitted having participated in the preliminary
investigation at the MTCC of Puerto Princesa City, he could not remember
having given most of the statements he made therein.38
The defense presented other witnesses.
Joel Esquela Mayo (Mayo), an employee of Puerto Princesa City’s crime
watchdog "Bantay Puerto," declared that in the morning of July 14, 1994
he and a co-employee Miguel Abrina (Abrina) were at Jacana in Barangay
Bancao-Bancao upon orders from their superior to be on the lookout for
the possible return thereto of the perpetrators behind Jocelyn’s killing;
seeing Locil uneasy as she alighted from a tricycle, they approached and
asked her how she was related to Jocelyn to which she replied that she
was a friend; then Locil brought the two to the very spot where Jocelyn’s
remains were found and while there she acted as if she was looking for
something; Locil later commented that it was there that Jocelyn and she
had a fight; and Locil was subsequently apprehended by the police. 39
Abrina substantially corroborated Mayo’s story.40
Another witness, Orlando Lacsamana (Lacsamana), a detainee at the
Puerto Princesa City jail, testified that while he was conversing with Locil,
also a detainee, on August 15, 1994, they saw Lansang being brought
inside. Lacsamana asked Locil if she knew Lansang but she denied having
known Lansang or having been her companion.41
Detention prisoners John Pulga (Pulga) and Jerry Galgarin (Galgarin) as well
as Bureau of Jail Management and Penology (BJMP) personnel Joel
Rabanal (Rabanal) and SPO2 Conrado Guzman Rafael (SPO2
Rafael) testified as to Locil’s failure to correctly identify Lansang on
separate occasions.
Thus detention prisoner Pulga narrated that on July 21, 1994, he was made
to form part of a police line-up together with three other detainees; and
that when Locil was asked by the police to identify who among them was
Lansang, she pointed to him (Pulga) whom she called Ramil Lansang.42
Corroborating Pulga’s testimony was BJMP personnel Rabanal who
brought out Pulga and the three others for the police line-up, he too
alleging that Locil indeed pointed to Pulga as Lansang.43
Detention prisoner Galgarin, who was detained at the 263rd Mobile Post of
the Philippine National Police on July 23, 1994, declared that he saw Locil
arrive in a police car after which Lansang and three other detainees were
made to stand in a police line-up; and that when Locil was asked to identify
Lansang, she said he was not there.44
SPO2 Rafael testified that while he was on duty in the aforesaid PNP
Mobile Post on August 23, 1994, Locil hesitated to identify Lansang even
after the police assured her not to be afraid.45
Accused-appellant Pascua disclaimed knowledge of anyone of his co-
accused prior to the June 29, 1994 incident. He denied having anything to
do with the killing or rape of Jocelyn and branded Locil’s account as a lie.
He claimed that he was staying with his uncle Victor de Felipe at 27 E.
Burgos St., Puerto Princesa City from April to July 14, 1994; that while he
was driving the tricycle with the marking "Ryan-Ryan" for a living, he
returned it to its owner on June 27, 1994 due to engine trouble and never
drove it again; that at about 8:00 a. m. of June 29, 1994, he, together with
his uncle Victor De Felipe and a carpenter, went to San Pedro also in
Puerto Princesa City where he helped in recovering materials from De
Felipe’s demolished house thereat for use in the latter’s other residence at
Burgos St.; and that he was at San Pedro until 4:00 p. m. of the same day. 46
Continuing, Pascua declared that on July 14, 1994, he left for his
stepfather’s home at Barangay Burirao of the town of Narra where he was,
on July 23, 1994, arrested without a warrant by the police on suspicion
that he might have been involved in the subject crime, he having driven for
sometime the tricycle bearing the marking "Ryan-Ryan;" that the
apprehending policemen sought his cooperation so he could be utilized as
a witness against Lansang, even offering him a P100,000.00 reward and his
exclusion from the criminal information, but he refused for he knew
nothing about the crime; that inside a small room at the police station in
the city, he again refused to obey SPO4 Pantollano’s order for him to say
certain things about the crime, thereby infuriating Pantollano who
threatened to implicate him; that while still under detention on July 24,
1994, he was brought before Locil for identification purposes but Locil
denied knowing him; and that he did not go into hiding after June 29, 1994
for he took up a farming course at the Palawan National Agricultural
College (PNAC).47
Victor De Felipe corroborated his accused nephew’s testimony as to his
whereabouts on June 29, 1994 and his returning the tricycle two days
before the incident.48 Felix Mayor, De Felipe’s carpenter, confirmed
Pascua’s being with him and De Felipe the whole day of June 29, 1994 at
Barangay San Pedro to retrieve building materials from De Felipe’s
demolished house in the said place.49
The testimony of witness Espiridion Labotoy was dispensed with when the
prosecution admitted its corroboration of Pascua’s allegation that the
latter returned the tricycle to its owner on June 27, 1994. 50
Filomena Pascua-Tesorio also corroborated her nephew Pascua’s claim
that Locil did not identify him as one of those who wronged Jocelyn. And
she added that during her visit to Pascua at the police station on July 24,
1994, she asked Locil if she was acquainted with Pascua and she replied in
the negative, saying it was her first time to see Pascua.51
Cesar Batin (Batin), an instructor at PNAC, attested that Pascua was
enrolled at PNAC Abo-Abo Center in Brooke’s point on July 18, 1994 but
that he attended classes for only about a week and resumed his studies on
August 16, 1994 until October 11, 1994. Batin affirmed the certification he
issued as to Pascua’s school attendance.52
Pascua’s mother Teodora Española testified that she accompanied her
arrested son when he was brought by the police to Puerto Princesa City on
July 23, 1994 and confirmed that the policemen offered Pascua a reward in
exchange for his admitting responsibility for the crime but that she
rebuffed them.53
Lito Octac, also clinging to alibi, alleged that on the day of the incident he
was working at Pambato Forwarder loading cargoes and pieces of baggage,
in support of which he presented an entry (Exhibit "9")54 in his employer’s
logbook showing that he reported for work from 1:00 to 5:00 p. m. of June
29, 1994.55
Lansang, who operated a pump boat that ferried passengers from
Barangay Caruray, San Vicente, Palawan where his parents reside, to
Barangay Bahile, Puerto Princesa City and vice-versa, declared as follows:
At about 8:30 a. m. of June 29, 1994, he met his sister Gloria Negosa in her
office at the Philippine Ports Authority for the purpose of borrowing from
her P3,000.00 which he would use to buy pieces of plywood and paint for
his boat. His sister, however, directed him to get the money from his
mother who happened to be at her office at the time and who received
two PCIB checks both dated June 29, 1994 payable to cash, one in the
amount of two thousand (P2,000.00) pesos, and another in the amount of
Nine Thousand Six Hundred Sixteen (P9,616.00) pesos from Gloria. Shortly
after, he and his mother went to the PCI Bank where he, instead of his
mother who did not have any identification card and Community Tax
Certificate, did the encashing (at 9:53 a. m.) of the checks- (Exhibits "12"
and "12-A"). The two left the bank and proceeded to the Palawan Poultry
store from which they purchased fertilizer. Thereafter, they bought
plywood and paint at the Unico Merchandising.56 (An official receipt dated
June 6, 1994 of P2,206 representing the purchase price of the goods was
marked as Exhibit "11".)57
Continuing, Lansang declared that while his mother left to make her other
purchases, he remained at the Unico Merchandising until 12:00 noon when
he went to the house of his brothers-in-law to pick up her mother’s goods.
At the said house, he briefly met a resident thereof named Ariel Bactad
and then took his mother’s goods. He loaded all their purchases in a jeep
bound for Barangay Bahile from which point they were to be transported
via a pump boat to his parent’s home in Barangay Caruray. As his mother
no longer showed up, he was constrained to accompany his cargo aboard
the jeep which departed at 1:00 p. m. and reached Barangay Bahile at 3:00
p. m. of the same day, June 29, 1994. At Barangay Bahile, he loaded the
goods into his boat with the help of the boat driver, Arnel Tulonghari. He
then took lunch at the carinderia of a certain Jerry (or Jerico) Rufano where
he waited in vain for two hours for his mother to come to Barangay Bahile.
At 5:00 p. m. of June 29, 1994, Rufano drove him to Barangay Salvacion
where he got a jeepney ride on his way home to the city proper, arriving
there at about 8:30 p. m. still of the same day.58
Lansang further declared that he had never been to Barangay Irawan or to
Jacana in Barangay Bancao-Bancao. While he admitted that he, together
with one Joel Egaña, went to the Sampaton Funeral Parlor in the evening
of July 13, 1994 to condole with the Tans, he denied having told Tan that
he (Lansang) knew somebody who could pinpoint those responsible for the
crime. He likewise denied asking Tan to refrain from seeking the assistance
of law enforcers, he having merely informed Tan that Sunga, with whom
(he) Lansang got to be acquainted earlier that same evening, knew Jocelyn.
Finally, Lansang disclaimed having been Jocelyn’s suitor for he had a live-in
partner named Mary Ann Dineros whom he intended to marry but could
not do so due to his indictment in the case at bar.59
Witnesses Jerry Rufano, Arnel Tulonghari and Ariel Bactad corroborated
pertinent parts of Lansang’s testimony as to his whereabouts and activities
on June 29, 1994.60
Joel Egaña also affirmed having accompanied Lansang to Sampaton
Funeral parlor on the night of July 13, 1994.61
Melisa P. Mateo, on the other hand, testified that as a bank teller of PCI
Bank, she received and processed for encashment the two checks (Exhibit
"12")62 from Lansang at almost 10:00 a. m. of June 29, 1994, which checks
as well as Lansang’s signatures and hers and other inscriptions thereon she
identified.63
Edgardo Caisip declared that he was the driver of the jeepney which
Lansang rode on together with his cargo for a trip from the city proper to
Barangay Bahile from 1:00 to 3:00 p. m. of June 29, 1994. Caisip added that
he already knew Lansang before that time, the Lansangs having been his
usual passengers.64
Finally, Freddie Gallego, a barangay councilor of Barangay Caruray, claimed
that Lansang was with him in the afternoon of July 12, 1994 on the
occasion of a birthday party in the said barangay.65
By decision of March 7, 1996, the trial court convicted Sunga and Lansang
as principals of the crime of Rape with Homicide and sentenced each to
suffer the penalty of DEATH, and Pascua as principal in the crime of Rape.
The dispositive portion of the decision reads, quoted verbatim:
WHEREFORE, premises considered, the Court finds accused REY
SUNGA and RAMIL LANSANG GUILTY beyond reasonable doubt as
principals of the crime charged and are sentenced to each suffer
the penalty of DEATH. Accused INOCENCIO PASCUA, JR., is also
 found GUILTY as principal of the crime of Rape and is hereby
sentenced to suffer the penalty of RECLUSION PERPETUA.
Accused RAMIL LANSANG, REY SUNGA and INOCENCIO PASCUA,
JR. are jointly and severally liable to indemnify the heirs of Jocelyn
Tan the sum of P150,000.00 as moral, actual and compensatory
damages with all the accessory penalties provided for the law and
to pay the costs.
For failure of the prosecution to prove the guilt of accused LITO
OCTAC beyond reasonable doubt, he is hereby ACQUITTED of the
crime charged.
It appearing that Lito Octac is detained and Locil Cui alias Ginalyn
Cuyos is still under the custody of the PNP, Puerto Princesa City
their release are hereby ordered unless held for other lawful
cause or causes.
The City Jail Warden of Puerto Princesa City and Chief of Jimmy
Carbonell of Puerto Princesa City, are hereby ordered to transfer
immediately the bodies of accused REY SUNGA and RAMIL
LANSANG to the New Bilibid Prison, Muntinlupa, Metro Manila
pending review by the Supreme Court of this decision.
SO ORDERED.66
Hence, the automatic review of the case by this Court pursuant to Article
47 of the Revised Penal Code, as amended.
Sunga, Lansang and Pascua filed their respective appeal briefs.
In the Appellee’s Brief, the Solicitor General prays for the affirmance of
Sunga and Lansang’s conviction and the modification of Pascua’s
conviction such that he be also convicted for rape with homicide and
sentenced to suffer the penalty of death.
The issues in the case boil down to:
(1) Whether the discharge by the lower court of Locil Cui as a
state witness is in accordance with law; and
(2) Whether the guilt of appellants has been proven beyond
reasonable doubt.
After examining the record of the proceedings prior to the trial court’s
questioned issuance of the order discharging Locil to become, as she did, a
state witness, this Court is satisfied that there was nothing irregular
therewith. Her discharge was ordered in the course of what originally were
hearings on the petition of the accused for bail and after the prosecution
had presented several of its witnesses and submitted Locil’s sworn
statement. Contrary to accused’s counsels’ argument that a motion for
discharge could only be filed during trial on the merits, it could be done at
any stage of the proceedings, and discharge can be effected from the filing
of the information to the time the defense starts to offer any evidence. 67
From the records, it appears that the following conditions for Locil’s
discharge under Section 9, Rule 119 of the Revised Rules of Court were
satisfied:
1. the discharge must be with the consent of the accused sought
to be a state witness;
2. his testimony is absolutely necessary;
3. no other direct evidence is available for the proper prosecution
of the offense committed except his testimony;
4. his testimony can be substantially corroborated in its material
points;
5. he does not appear to be the most guilty; and
6. he has not at any time been convicted of any offense involving
moral turpitude.
It is undisputed that at the start of the trial, the prosecution did not have
direct evidence, testimonial or otherwise, to establish the culpability of the
accused.
Based on Locil’s sworn statement, she was the only person who saw what
happened to Jocelyn. Her testimony was thus indispensable. That she did
not appear to be the most guilty among the accused and that she had not
been convicted of an offense involving moral turpitude were shown, as
was the susceptibility of material corroboration of her testimony at the
time of her discharge in view of the other evidence in the hands of the
prosecution.
That the trial court ordered Locil’s discharge a day before the scheduled
hearing on the motion for her discharge is of no moment. The requirement
of "a hearing in support of the discharge" had been substantially complied
with when the trial court, during the hearings on the bail petition, already
received evidence from the prosecutionincluding Locil’s sworn statement
and also heard in open court the defense’s arguments in opposition
thereto. A hearing did take place but interspersed with the hearings on the
bail petition. So long as the trial court was able to receive evidence for and
against the discharge, its subsequent order granting or denying the motion
for discharge is in order notwithstanding the lack of actual hearing on said
motion.68
In fine, even if Locil’s discharge failed to comply with all the requirements
embodied in Section 9, Rule 119 of the Rules of Court, her testimony
would not, for that sole reason, be discarded or disregarded for, in the
discharge of a co-defendant, the trial court may reasonably be expected to
commit error which is not reversible, the underlying principle being that it
does not affect the competency and quality of testimony of the discharged
defendant.69
From the prosecution evidence, the testimony of the erstwhile accused-
turned state witness Locil is the most pivotal, for it is
an eyewitness’ account of what transpired before and at the time of
Jocelyn’s death. Her testimony is the only direct evidence identifying
appellants and relating in detail their specific overt acts.
Yet like any other testimony, this Court may not readily accept Locil’s
statements hook, line and sinker because in the assessment of the
testimony of a co-accused-turned state witness, the same must be received
with great caution and must be carefully scrutinized.70
The rule in this jurisdiction is that the testimony of a self-confessed
accomplice or co-conspirator imputing the blame to or implicating his co-
accused cannot, by itself and without corroboration, be regarded as proof
to a moral certainty that the latter committed or participated in the
commission of the crime. The testimony must be substantially
corroborated in its material points71 by unimpeachable testimony and
strong circumstances and must be to such an extent that its
trustworthiness becomes manifest.72
Was Locil’s testimony corroborated in its material points by the
prosecution’s other evidence? If in the affirmative, was the corroborative
evidence unimpeachable testimony and strong circumstances to such an
extent that Locil’strustworthiness becomes manifest?
Appellant Sunga’s two extrajudicial confessions, which strictly speaking
were admissions for they referred to statements of fact which did not
directly involve an acknowledgement of guilt or of the criminal intent to
commit the offense with which he was charged,73 could have lent
corroborative support to Locil’s testimony, having likewise given details of
how the crime took place. Contrary, however, to the trial court’s
ruling, this Court finds Sunga’s admissions to be inadmissible in evidence
not only against him but also against his co-accused appellants.
A person under investigation for the commission of an offense is
guaranteed the following rights by the Constitution: (1) the right to remain
silent; (2) the right to have competent and independent counsel of his own
choice, and to be provided with one if he cannot afford the services of
counsel; and (3) the right to be informed of these rights. 74
The right to counsel was denied Sunga during his execution of Exhibit "A" -
admission before the police on the ground that the counsel who assisted
him, Atty. Agustin Rocamora, was the City Legal Officer of Puerto Princesa.
In People v. Bandula,75 this Court made it sufficiently clear that the
independent counsel for the accused in custodial investigations cannot be
a special counsel, public or private prosecutor, counsel of the police, or a
municipal attorney whose interest is admittedly adverse to the accused. A
legal officer of the city, like Atty. Rocamora, provides legal aid and support
to the mayor and the city in carrying out the delivery of basic services to
the people, which includes maintenance of peace and order and, as such,
his office is akin to that of a prosecutor who unquestionably cannot
represent the accused during custodial investigation due to conflict of
interest.76 That Sunga chose him to be his counsel, even if true, did not
render his admission admissible. Being of a very low educational
attainment,77 Sunga could not have possibly known the ramifications of his
choice of a city legal officer to be his counsel. The duty of law enforcers to
inform him of his Constitutional rights during custodial interrogations to
their full, proper and precise extent does not appear to have been alleged investigation started, as you said 6:00 o’clock in the
discharged. morning?

Notatu dignum is the fact that nothing in the records shows that Atty. A: Yes, sir. It did not take long because they were already
Rocamora exerted efforts to safeguard Sunga’s rights and interests, ready (Emphasis supplied.)79
especially that of his right not to be a witness against himself. In fact,
glaringly, Atty. Rocamora was not even made to testify so he could have xxx
related the extent of legal assistance he extended to Sunga at the police
station. This Court is thus constrained to rely on the COURT -
following verbatim testimony of SPO2 Janoras which described how Atty.
Rocamora assisted Sunga during the investigation:
Q: Who propounded the questions to accused Rey Sunga?

ATTY. ENRIQUEZ (Defense Counsel) -

A: I was the one, Your Honor.

Q: Did not Atty. Rocamora warn you, as the investigator, that

Q: And who gave the answers?
simply he is invoking his client’s right to remain silent? Did not
Atty. Rocamora first confer with the accused Rey Sunga prior to
A: Rey Sunga was the one answering me, Your Honor.
the investigation?

Continue.
A: They conversed.

PROSECUTOR GONZALES -
Q: You said a while ago that immediately upon your arrival
you already started the investigation. And now you are claiming
that they had a conversation first. Which is correct? Q: And what, if any, did Atty. Agustin Rocamora do, if any, at
the time these questions were being asked Rey Sunga?
A: They conversed for a very short while because everybody
was already there. I was on my typewriter and they were seated A: He instructed Rey Sunga to just answer the questions,
just very near me (Emphasis supplied.)78 sir (Emphasis supplied.)80

xxx xxx

ATTY. CRUZAT (Defense Counsel) -
Q: And you informed Atty. Rocamora that allegedly Mr. Rey
Sunga wanted to confess his alleged participation in the
commission of the offense, Mr. Witness?
From the foregoing testimony of SPO2 Janoras, it can be gathered that
Atty. Rocamora did not, if at all, fully apprise Sunga of his rights and
options prior to giving his (Sunga’s) admission. Evidently, Atty. Rocamora,
without more, merely acted to facilitate the taking of the admission from
Sunga.

Moreover, that Sunga was first questioned by SPO4 Pantollano and

A: Yes, sir.
Patrolman Bolos before he was investigated by SPO2 Janoras does not
escape the attention of this Court. Although Sunga failed to present
Q: And so upon arrival at the police station it did not take
evidence as to the maltreatment he claimed to have suffered in the hands
Atty. Rocamora a long time to confer with Rey Sunga before the
of SPO4 Pantollano and Patrolman Bolos, he did not have any lawyer by his
side at the time these two policemen started asking him questions about
Jocelyn’s death. At that point, Sunga was already under custodial
investigation without the assistance of counsel.
Custodial investigation is the stage "where the police investigation is no
longer a general inquiry into an unsolved crime but has begun to focus on a
particular suspect taken into custody by the police who carry out a process
of interrogation that lends itself to elicit incriminating statements (Italics in
the original; Emphasis supplied.).81 Under such circumstances, this Court
cannot but entertain serious misgivings as to the admission Sunga
subsequently gave to SPO2 Janoras.
Like Exhibit "A," Sunga’s second extrajudicial admission-Exhibit "I" is
inadmissible, due to the absence of counsel to assist him when he
executed it on August 3, 1994 before the NBI of Puerto Princesa City.
Although Sunga declared in open court that he made such admission in
connection with his desire to apply as state witness which admission he
later repudiated, this does not make Exhibit "I" admissible. Sunga was at
the time still under detention at the NBI office and had been languishing in
jail since his arrest in mid-July 1994. His desire to regain his freedom is not
difficult to understand, he having lost it once due to his conviction for
another crime. His admission which was done without the benefit of
counsel consisted of answers to questions propounded by the investigating
agent of the NBI and not of a unilateral declaration of his participation in
the crime. To this Court, these conditions are constitutive of an
atmosphere pervading that of a custodial investigation and necessitating
the assistance of a competent and independent counsel of Sunga’s
choice as a matter of right but which he had none.
Any information or admission given by a person while in custody which
may appear harmless or innocuous at the time without the competent
assistance of an independent counsel must be struck down as
inadmissible.82 Even if the confession contains a grain of truth or even if it
had been voluntarily given, if it was made without the assistance of
counsel, it is inadmissible.83
The waiver by Sunga of his right to counsel as contained in his sworn
statement-Exhibit "I" was not a valid waiver for, on its face, it was
executed not in the presence of counsel, contrary to the express
requirement of the Constitution.84
Sunga having had no counsel when he made his admission before the NBI
and his waiver of the right to have one being invalid, his statement- Exhibit
"I" is inadmissible.
The testimony of Sunga during the preliminary investigation before the
Municipal Trial Court whereby he expressly acknowledged having executed
Exhibit "A" and affirmed the contents thereof did not render his
extrajudicial admission into a judicial one which could be used against him
and his co-appellants. Neither could his other statements in such
proceeding admitting his participation in the crime be utilized to establish
his and the other appellants’ guilt. For in that preliminary investigation,
Sunga again was effectively denied of his essential right to counsel. Atty.
Rocamora was appointed Sunga’s counsel de officio but just like the
assistance he extended during the execution of Exhibit "A," Atty. Rocamora
utterly did nothing in defense of Sunga’s cause. While Sunga was being
asked by the judge a barrage of questions calling for answers which could
and did incriminate him, Atty. Rocamora did not offer the slightest
objection to shield his client from the damning nature thereof.
The right to counsel applies in certain pretrial proceedings that can be
deemed "critical stages" in the criminal process.85 The preliminary
investigation can be no different from the in-custody interrogations by the
police, for a suspect who takes part in a preliminary investigation will be
subjected to no less than the State’s processes, oftentimes intimidating
and relentless, of pursuing those who might be liable for criminal
prosecution. In the case at bar, Sunga was thrust into the preliminary
investigation and while he did have a counsel, for the latter’s lack of
vigilance and commitment to Sunga’s rights, he was virtually denied his
right to counsel.
The right to counsel involves more than just the presence of a lawyer in the
courtroom or the mere propounding of standard questions and objections;
rather it means an efficient and decisive legal assistance and not a simple
perfunctory representation.86 As in People v. Abano87 where the confession
by the therein accused in the preliminary investigation was excluded as
inadmissible due to the absence of her counsel, this Court will not admit
Sunga’s. This makes it unnecessary to discuss and emphasize the conflict
on material points of Sunga’s and Locil’s accounts of the incident.
As for the rest of the prosecution evidence, it fails to corroborate Locil’s
testimony. The declarations of witnesses Tan, Devilleres and Gabinete can
in no way enhance the veracity of the essential, material aspects of Locil’s
account for they relate not to the crime itself but to events thereafter.
Tan’s testimony that Lansang informed him that he knew someone who
could reveal the identity of Jocelyn’s assailants and that Lansang suggested
to him to no longer report to the police does not at all constitute
incriminating evidence, for there was no admission, express or implied, by
Lansang of any wrongdoing or criminal participation on his part. Besides,
why would Lansang suggest to Tan not to report to the police when the
police early on had its hands full in trying to solve the crime.
of details which, by their nature, could not have been the result of
deliberate afterthought.89 An exhaustive review of the transcript of
stenographic notes of Locil’s testimony reveals, however, that the manner
by which she related it was punctuated with marks of tentativeness,
uncertainty and indecisiveness which the trial court unfortunately failed to
take note of in its decision on review.
Consider the following portions of her testimony, quoted verbatim:
COURT:

Dr. Vigonte’s affirmation of her finding of a fatal injury on Jocelyn’s head is Q Do you know the name of the woman who died?
supportive only of the fact that the victim was hit with something on her
head which caused her death, but this by no means is evidence that A Jocelyn Tan
appellants inflicted said fatal injury.
ATTY. GACOTT [Private Prosecutor]:
As for the circumstances testified to by the other witnesses, they do not,
by and in themselves, rise to the level of circumstantial evidence which
Maybe we can use the sound system.
warrant appellants’ conviction.
ATTY. GACOTT:
In the appreciation of circumstantial evidence, there must be at least two
proven circumstances which in complete sequence lead to no other logical
Q: Miss Witness, you said that you are fourteen years old.
conclusion than that of the guilt of the accused. 88 The circumstances that
How come that you are 14 years old?
Lansang was seen on June 30, 1994, a day after the incident, walking back
and forth and appearing restless near the place where Jocelyn’s body was
eventually found; that Lansang was in the company of Octac and inquired, A: (Witness handing a document to counsel.)
the day after Jocelyn’s body was discovered on July 12, 1994, if Jocelyn was
from Barangay Caruray; that Lansang told Jocelyn’s father that he knew (To the Court:)
someone who could pinpoint those responsible for the crime; and that
Jocelyn was fatally hit on the head by a blunt object are too fragile to lead Your Honor, the witness handed to me a birth certificate.
to the inference that Lansang and his co-appellants are liable for Jocelyn’s
rape and slaying. These circumstances in the scheme of things are not ATTY. CRUZAT (Defense Counsel): We are requesting for the
indubitable pieces of evidence of a person’s commission of a crime for they witness to speak loud and not merely hand over certain
are susceptible of explanations which do not necessarily speak of guilt or documents.
culpability.
COURT: Instruct the witness to speak louder. (Emphasis
Standing alone and uncorroborated, can Locil’s testimony serve as a basis supplied.)90
for appellants’ conviction? As an exception to the general rule on the
requirement of corroboration of the testimony of an accomplice or co- xxx
conspirator-turned state witness, her testimony may, even if
uncorroborated, be sufficient as when it is shown to be sincere in itself
ATTY. GACOTT -
because it is given unhesitatingly and in a straightforward manner and full
Q: Miss Witness, how many times did you attain your Grade I Q: Could you please relate to this Honorable Court what
schooling? happened during that date?

A: Three times. A: Yes, sir.

Q: What about your Grade II schooling? ATTY. CRUZAT: I may be compelled to ask this Honorable Court for
a coercive authority to declare her in contempt for repeatedly
A: Two years. disobeying the instruction of the Court for her to speak louder.

Q: How about your Grade III schooling? COURT: You speak louder, otherwise you will be cited in
contempt of court.
A: One year.
WITNESS: Yes, Your Honor.92
ATTY. CRUZAT: I am already tired of requesting this Honorable
Court to instruct the witness to speak quite louder. She is just xxx
whispering to the interpreter.
ATTY. GACOTT -
COURT: You speak louder (Emphasis supplied.)91
Q: You mean to say, Miss Witness, that this Tomboy that you
xxx are referring to went upstairs of Mendoza Park, and once there
she talked to the woman sitting there?
ATTY. GACOTT -
A: Yes, sir.
Q: Now, Miss Witness, where were you last June 29, 1994 at
around 2:00 o’clock in the afternoon? Q: Do you know the name of that woman?

A: In Mendoza. A: No, sir.

COURT - Q: After getting near to that woman, what did they do after
that?
Q: What is that Mendoza?
A: They talked, sir.
A: Mendoza Park.
Q: Then what happened next?
ATTY. GACOTT -
ATTY. CRUZAT: This woman does not speak quite loud, Your
Q: During that date, do you remember any unusual thing that Honor.
happened to you?
COURT: You talk louder (Emphasis supplied.)93
A: Yes, sir.
 xxx
A scrutiny of her testimony likewise reveals a strain of improbability
ingrained therein. To recapitulate, Locil claimed that on June 29, 1994 she
boarded a tricycle bearing a lesbian who invited her for a joyride,
proceeded to the Mendoza Park and picked up Jocelyn, whom she was not
acquainted with, then brought by the same tricycle to Irawan where the
latter was raped and brutally murdered. In other words, she wanted to
convey that she was deliberately brought by appellants with them on June
29, 1994 to the place where they were to carry out, which they did, their
abominable acts against Jocelyn. This strikes this Court as improbable if not
bizarre. For it is contrary to human nature and experience for those who
undertake the commission of a crime to bring a spectator thereof. A
criminal would certainly take steps to evade detection or discovery of his
criminal act, to keep it from being witnessed or known by others who
might later turn against him. Yet, from Locil’s testimony, appellants took
the trouble of bringing her to the locus criminis so she could bear witness
to a horrible crime which appellants carried out with evident secrecy in a
remote, uninhabited place in Puerto Princesa City.
That appellants required Locil’s presence at the time and place of the
crime only to threaten her later against divulging what she had witnessed
thus defies comprehension.
Evidence to be believed should not only proceed from the mouth of a
credible witness but should also be credible in itself such as the common
experience and observation of mankind can approve as probable under the
circumstances.94
This Court is not in fact prepared to accord Locil credibly as a witness. Who
can trust one who, in her early teens, gets pregnant, flees home and stays
in a boarding house albeit she has no visible means of income to pay
therefor, and carries an alias name to evade being traced by her mother
and aunt?
Locil’s testimony on how appellants put her in a position to have direct
knowledge of their malevolent acts despite taking measures to conceal
their deeds fails to inspire belief and must, therefore, be discredited.
A serious question too abounds on Locil’s identification of appellant Pascua
as one of those who raped Jocelyn. She described Pascua, the man who
according to her raped the victim after appellants Lansang and Sunga did,
as having, among other things, singkit (chinky) eyes. But as Pascua did not
have singkit eyes, even the trial court was prompted to ask her if she was
sure that the third person who raped Jocelyn had singkit eyes.95 Thus, with
the court’s approval, the defense made it of record that Pascua did not
have chinky eyes, contrary to Locil’s description of him. 96
The aforementioned observations pertaining to both the weak,
incomprehensible voice with which Locil gave her testimony, the
improbability with which she was precisely made by appellants to be a
witness to their crime, and the failure of her description of Pascua’s eyes
to match the latter’s actual physical feature cannot but engender serious
doubts as to the reliability of her testimony against all appellants. This
Court thus finds her uncorroborated account to have failed the
jurisprudentially established touchstone for its credibility and sufficiency,
that of straightforwardness and deliberateness, as evidence to warrant
appellants’ conviction.
In light of the weak evidence for the prosecution, the defense of alibi as
well as of denial by appellants is accorded credence, for it is precisely when
the prosecution’s case is weak that the defense of alibi assumes
importance and becomes crucial in negating criminal liability.97 It bears
noting that the alibi proffered by appellants, especially that by Lansang,
had been corroborated.
In fine, regardless of the probative weight of appellants’ alibi, the
prosecution still has the onus of proving the guilt beyond reasonable doubt
of the accused and cannot rely on the weakness of the defense evidence.
The prosecution having failed to discharge its burden, appellants’
presumed innocence remains and must thus be acquitted.
WHEREFORE, for failure of the prosecution to prove beyond reasonable
doubt the guilt of appellants Rey Sunga, Ramil Lansang and Inocencio
Pascua in Criminal Case No. 11984 the decision therein is hereby SET ASIDE
and REVERSED and said appellants are hereby ACQUITTED of the crime
charged.
The Director of the Bureau of Corrections is ORDERED to cause the
IMMEDIATE RELEASE of the appellants from custody, unless they are being
held for some other lawful cause, and to INFORM this Court within five (5)
days from receipt of this Decision of the date appellants were actually
released from confinement.
Costs de oficio. The instant case stemmed from a complaint filed by Aquilino
Pimentel, Jr., a senatorial candidate in the May 1995 elections, against
SO ORDERED. private respondents Salayon and Llorente, Chairman and Vice-Chairman,
respectively, of the City Board of Canvassers of Pasig City, and a certain
OPLE OF THE PHILIPPINES, G.R. Nos. 154218 & 154372 Reynaldo San Juan, Campaign Manager of senatorial candidate Juan Ponce
Petitioner, Enrile, for allegedly decreasing Pimentel's votes in the Statement of Votes
per precinct and in the City Certificate of Canvass for Pasig City. Pimentel
filed a petition with this Court, docketed as G.R. No. 133509, which sought
Present: the reversal of the resolutions of the COMELEC dismissing his complaint for
lack of probable cause. On February 9, 2000, we promulgated our Decision
PUNO, J., Chairperson, in said case, granting Pimentel's petition and ordering the COMELEC "to
- versus - SANDOVAL- file forthwith with the proper [RTC] the necessary criminal information for
GUTIERREZ, *CORONA, violation of Section 27(b) of [Republic Act] No. 6646,[3] otherwise known as
AZCUNA, and the Electoral Reforms Law of 1987, against private respondents Ligaya
GARCIA, JJ. Salayon and Antonio Llorente."[4]

Pursuant thereto, the COMELEC filed a total of 321 informations for

HON. JUDGE JOSE R. HERNANDEZ, violation of Section 27(b) of R.A. No. 6646 against private respondents
in his capacity as Presiding Judge, Promulgated: Llorente and Salayon on the following dates: a) nine (9) informations were
Br. 158, RTC-Pasig City, ATTY. filed on August 28, 2000, docketed as Criminal Case Nos. 118823-
LIGAYA P. SALAYON and ATTY. 118831; b) forty-four (44) informations on August 29, 2000, docketed as
ANTONIO M. LLORENTE, Criminal Case Nos. 118848-118891; c) one hundred sixty-two (162)
Respondents. August 28, 2006 informations on August 31, 2000, docketed as Criminal Case Nos. 118902-
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x 119063; and d) 106 informations on September 7, 2000, docketed as
Criminal Case Nos. 119099-119204. The four sets of informations were
raffled to Branches 164, 158, 153 and 69, respectively, of the RTC of Pasig
DECISION City.

PUNO, J.:
Before us is a Petition for Review on Certiorari under Rule 45 of the
Rules of Court, seeking the reversal of the Joint Decision [1] of the Court of
Appeals (CA) in CA-G.R. SP Nos. 68922 and 69703 which affirmed the
Order[2] issued by respondent Judge Jose R. Hernandez, presiding judge of
Branch 158 of the Regional Trial Court (RTC) of Pasig City, dismissing
Criminal Case Nos. 118823-31, 118848-91, 118902-9063 and 119099-204
for violation of private respondents Llorente and Salayon's right to speedy
trial.
First, the facts.
Private respondent Llorente filed an Urgent Ex-Parte Motion for
Consolidation[5] of Criminal Case Nos. 118823-118831 (pending
before Branch 164) with Criminal Case Nos. 118848-118891 (pending
before Branch 158). This motion was granted by Branch 164,[6]thereby
consolidating the nine (9) informations pending before it with the 44 other
informations pending with Branch 158.
Subsequently, private respondent Llorente filed three (3) Omnibus
Motions before Branches 158, 153 and 69 of the RTC of Pasig City, asking
them: 1) to consolidate all the cases filed against him for violation of
Section 27(b) of R.A. No. 6646; 2) to declare the multiple informations filed
against him as constituting only one offense; 3) to treat the 321
informations filed against him as only one information for violation of
Section 27(b) of R.A. No. 6646; and 4) to allow him to post bail to only one
information.

After finding private respondent Llorente's prayer to consolidate to
be "meritorious and there being no objection" from the prosecution, Judge
Ericcio C. Ygaña of Branch 153 granted the same and remanded Criminal
Case Nos. 118902-119063 to the Office of the Clerk of Court of the RTC of
Pasig City for proper disposition.[7] Similarly, Judge Lorifel Lacap Pahimna
of Branch 69 granted private respondent Llorente's motion to consolidate,
finding that "it is for the convenience of the parties that these cases
(Criminal Case Nos. 119099-119204) be consolidated with those cases
pending before Branch 158 considering that all cases involved common
questions of fact and law and the parties may have to introduce common
evidence in support of their respective positions in these cases." Judge
Pahimna forwarded the cases pending before Branch 69 to Branch 158
"unless the presiding judge of said branch interposes objection to such
consolidation." Moreover, the other issues raised by private respondent
Llorente were referred to Branch 158 for appropriate action.[8]
On September 27, 2000, Senior State Prosecutor Rogelio Bagabuyo
filed his Notice of Appearance with Branch 158 of the RTC of Pasig
City.[9] He likewise filed an Urgent Omnibus Motion To: 1) hold in
abeyance the implementation of the orders of the court prior to his
appearance as counsel; 2) remand all the cases pending before it to the
Office of the Clerk of Court of the RTC of Pasig City; 3) hold in abeyance the
resolution of all motions filed by private respondent Llorente with the
court; 4) order the Office of the Clerk of Court of the RTC of Pasig City to
hold in abeyance the re-raffling of all the "dagdag-bawas" cases against
private respondents; and 5) allow him ample time to secure from the
Supreme Court a transfer of venue of the cases from Pasig City to Manila
or Pasay City.[10]
Private respondent Llorente filed an Opposition (to the Prosecution's
Urgent Omnibus Motion dated 25 September 2000)[11] with Branch 158 of
the RTC of Pasig City. On December 13, 2000, petitioner, through Senior
State Prosecutor Bagabuyo, filed with Branch 158 of the RTC of Pasig City
its Comment/Opposition to [the] Omnibus Motions filed by Accused
Llorente,[12] reiterating its prayers in its Omnibus Motion dated September
25, 2000.
On March 2, 2001, respondent Judge issued an Order, the dispositive
portion which reads:
WHEREFORE, accused Llorente's Omnibus Motion
dated September 5, 2000, Omnibus Motion dated
September 6, 2000 and Omnibus Motion dated
September 8, 2000 are granted allowing the
consolidation of cases against accused Llorente pending
before Branches 69, 153 and 164 of this Court with
those pending before this branch. The multiple acts
alleged in the 321 Informations filed against him are
declared to constitute only one violation of Section
27(b) of Republic Act No. 6646. There should then be
only one information against accused Llorente. This
benefit applies also to accused Salayon. Public
Prosecutor's (sic) Bagabuyo's Omnibus Motion
dated September 25, 2000 is denied.
The arraignment and pre-trial of both accused is
(sic) set on March 20, 2001 at 8:30 in the morning.
SO ORDERED.[13]
The trial court noted that during the hearing on private respondent
Llorente's motion on September 12, 2000, the prosecution, then through
Director Jose P. Balbuena of the COMELEC, was heard on the matter of
consolidation of the cases and in fact gave its consent thereto. Even the
representative from the office of Senator Aquilino Pimentel, Jr., an Atty.
Luis Gana, did not register any objection thereto. In ruling that only one
information for violation of Section 27(b) of R.A. No. 6646 should have
been filed, the trial court held:
[I]n this case[,] the unity of criminal intent is
manifested by the fact that the several acts of
tampering[,] while allegedly done separately over a
three-day period, were perpetuated on one single
occasion which is the canvassing of the votes cast in the
May 8, 1995 elections in Pasig City, and, significantly,
perpetuated only on one single document, the SoV, a
document of fifty-eight (58) pages. While there maybe
several acts of tampering, this Court could attribute
only one crime against accused Llorente. This is what
the Comelec did in People vs. Maria Arsenia Garcia, et
al. docketed as Criminal Case No. 3485-A before the
Regional Trial Court of Alaminos, Pangasinan. The
multiple acts of tampering by the accused were treated
by the COMELEC as one offense or a single count of (sic)
the violation of Section 27(b) of R.A. 6646. There is no
 reason then why accused Llorente should be treated
differently.[14]
On March 25, 2001, petitioner moved for the reconsideration of
the March 2, 2001 Order of the trial court.[15] Private respondent Llorente
filed his Comment and Opposition,[16] to which petitioner filed its
rejoinder.[17]
In his Order[18] dated May 11, 2001, respondent Judge denied
petitioner's motion for reconsideration of the March 2, 2001 Order and
set the arraignment and pre-trial of private respondents "on June 15, 2001
at 8:30 in the morning."
On June 15, 2001, private respondents Llorente and Salayon were
arraigned and pleaded "not guilty." Senior State Prosecutor Bagabuyo was
absent during the arraignment but the same nevertheless proceeded in
the presence of Public Prosecutor Jose Danilo C. Jabson, the assigned
prosecutor in the trial court. The trial court held:
Both accused, assisted by their respective
counsels, after having been informed of the charge filed
against them and its attending consequences, entered a
plea of NOT GUILTY.
Pursuant to the Order of March 2, 2001, the
three hundred [twenty-one] (321) informations filed
against both accused were treated to be only a single
offense for which they should be made answerable. It is
for this reason that both accused were arraigned and
entered their plea to a single or one information only.
Having entered their plea, set the pre-trial of this
case on June 29, 2001 at 8:30 in the morning.[19]
On June 27, 2001, petitioner filed an Omnibus Motion to Postpone
and Motion for Reconsideration[20] of the Order dated June 15, 2001 of the
trial court, asking the trial court to nullify the arraignment of respondents
for lack of notice to the prosecution. The June 29, 2001hearing was reset
to July 6, 2001 in view of the prosecution's filing of the Omnibus Motion to
Postpone and Motion for Reconsideration. TheJuly 6, 2001 hearing was
cancelled as Senior State Prosecutor Bagabuyo did not appear, a
representative having telephoned the trial court that he was
indisposed. The hearing was reset to July 26, 2001.[21] However, the
hearing on July 26, 2001 was again cancelled and reset toAugust 2,
2001 for Senior State Prosecutor Bagabuyo's failure to appear, thus:
Since Prosecutor Rogelio Bagabuyo is again not
available for today's hearing because he is indisposed as
relayed to this Court by his representative, Atty. Jay I.
Dejaresco, and through a telephone call from his
secretary Orlando Nicolas, as prayed for, and over the
vehement objection of counsels for both accused, the
pre-trial/trial scheduled today is cancelled and reset on
August 2, 2001 at 8:30 in the morning.
xxx
In the event that there will again be no
appearance from Prosecutor Bagabuyo at the next
scheduled hearing, the Legal Department of the
COMELEC shall then make its appearance and take over
the prosecution of this case.
SO ORDERED.[22]
After considering the respective positions of the prosecution and the
private respondents, the trial court issued its Order dated August 2,
2001[23] denying the prosecution's Omnibus Motion to Postpone and
Motion for Reconsideration. It found that contrary to the prosecution's
claim that it was not notified of the arraignment on June 15, 2001, the
records revealed that the Order of the trial court datedMay 11,
2001 which set the date of the arraignment and pre-trial on June 15,
2001 was received by the Department of Justice on May 17, 2001. As a
consequence, the arraignment of private respondents Llorente and
Salayon proceeded as scheduled. The Motion for Reconsideration of the
trial court's March 2, 2001 Order was likewise denied for being in the
nature of a second motion for reconsideration which is a prohibited
pleading under the Rules of Court. Despite the denial of the prosecution's
motions, the pre-trial and trial were cancelled and reset to September 4,
2001 in view of the prosecution's manifestation that it was appealing the
trial court's order to a higher court. The court warned that "[i]n the event
that the prosecution shall not be able to get any restraining order to stop
the proceedings in this case, the hearing on said date shall proceed as
scheduled."[24]
 Accordingly, petitioner, through Senior State Prosecutor
Bagabuyo, filed a petition for Certiorari, Prohibition, Mandamus,
Injunction with Prayer for a Temporary Restraining Order with the CA,
docketed as CA-G.R. No. SP No. 65966. On August 16, 2001, said petition
was dismissed outright for having been filed without the participation of
the Office of the Solicitor General (OSG), in violation of Section 35(1),
Chapter 12, Title III, Book IV of the 1987 Administrative
Code.[25] Petitioner filed a Motion for Reconsideration, to no
avail.[26] Unhindered, petitioner filed a Motion for Extension of Time to File
Petition for Review on Certiorari[27] with this Court on October 30, 2001,
pursuant to Section 2, Rule 45 of the Rules of Court. We granted
petitioner's motion in our Resolution dated December 12, 2001. Petitioner
filed its Petition for Review on January 10, 2002, docketed as G.R. No.
150317. We resolved to deny the petition on January 30, 2002 for having
been filed out of time and for Senior State Prosecutor Bagabuyo's failure
to sign the petition.[28] Petitioner again filed a Motion for Reconsideration
with this Court, to no avail.[29]
Meantime, in the trial court, the hearing set on September 4,
2001 did not proceed due to Senior State Prosecutor Bagabuyo's
absence. Another representative from the office of Senator Pimentel, an
Atty. Galimpin, appeared in court and requested for a
postponement. Again, the court received a call from the secretary of
Senior State Prosecutor Bagabuyo that the latter had his tooth extracted,
hence, could not appear in court. The trial court found this excuse quite
odd since Atty. Galimpin informed the court that he saw Senior State
Prosecutor Bagabuyo at the Office of the Clerk of Court in the first floor
of the same building where the court sits. Private respondents moved for
the dismissal of the instant cases due to the denial of their right to speedy
trial. The trial court denied their motion and gave the prosecution the last
opportunity to prosecute the instant cases, setting the next hearings on
October 3 and 15, 2001, with the admonition that failure to proceed will
be dealt with accordingly.[30]
On October 3, 2001, the prosecution refused to proceed with
pre-trial and trial, giving as reason its pending petition before the
CA. Private respondent Llorente reiterated his motion to dismiss the case
on the ground of violation of his right to speedy trial. The trial court
granted private respondents a period of three (3) days therefrom within
which to formalize their motions to dismiss and the prosecution was also
given three (3) days from receipt of private respondents' motions within
which to file its comment or objection.[31]
Private respondent Llorente filed his Motion to Dismiss
dated October 4, 2001.[32] Before petitioner could file an opposition, it
filed its Motion to Inhibit[33] dated October 5, 2001, asking Judge
Hernandez to voluntarily inhibit himself from hearing the instant cases and
remand the same to the Clerk of Court of Pasig City for re-raffling. Later,
the prosecution likewise filed its Opposition (to [Private Respondent's
Motion to] Dismiss with Prayer to Hold in Abeyance its Resolution until
after Resolution of our Motion to Inhibit). Private respondent Llorente
filed his Reply (to Prosecution's Opposition dated October 7, 2001) and
Comment-Opposition (to Prosecution's Prayer for Inhibition). The
prosecution filed its Rejoinder (to Reply to Opposition to the Motion to
Dismiss with Prayer to Hold in Abeyance its Resolution until after
Resolution of our Motion to Inhibit) and Counter-Comment (to the
Opposition to Motion to Inhibit). Private respondent Salayon filed a
Manifestation dated October 6, 2001, adopting all the allegations
mentioned in the Motion to Dismiss of his co-respondent
Llorente. On October 15, 2001, the parties opted not to have a hearing
after having agreed to put all their arguments in their respective
pleadings.[34]
On November 23, 2001, the trial court rendered its assailed
order, the dispositive portion of which states:
WHEREFORE, the Motion to Dismiss
dated October 4, 2001 filed by accused Antonio M.
Llorente, adopted by co-accused Ligaya P. Salayon, is
granted and this case is dismissed. The cash bail posted
by each accused is ordered released to them.
SO ORDERED.[35]
Petitioner, through Senior State Prosecutor Bagabuyo, then
filed with
this Court a Petition for Certiorari, Prohibition and
Mandamus[36] dated February 1, 2002 under Rule 65 of the Rules of Court,
docketed as G.R. Nos. 151461-151781. Petitioner prayed that:
1. Upon the filing hereof, this case be consolidated with
[the] Petition for Review, filed last January 10,
2002 [with the Supreme Court], and docketed as G.R.
No. 150317;
2. The Order dismissing the instant cases be recalled,
set aside and the 321 criminal cases filed against both
accused Salayon and Llorente be reinstated; after which
they be arraigned for the 321 counts for the violation of
Section 27(b) of R.A. 6646;
3. The Order, dated June 15, 2001, be declared as null
and void and set aside;
4. All the cases that used to be pending before the
respondent, Honorable RTC-158 be ordered remanded
to the Office of the Clerk of Court for re-raffle to the
other branches, except those where these cases were
originally assigned to; or in the alternative,
5. An Order be issued changing venue from the City
of Pasig to either Manila, Pasay or Makati; and,
6. Plaintiff-petitioner prays for such other relief
consistent with law and equity on the matter.[37]
Pursuant to Section 6, Rule 56 of the Rules of Court, we referred
said petition to the CA for appropriate action.[38] In the CA, the case was
docketed as CA-G.R. SP No. 69703.
Meantime, on February 2, 2001, petitioner, this time through the
OSG, filed a Motion for Extension of Time to File a petition for certiorari
under Rule 65 directly with the CA, docketed as CA-G.R. SP No. 68922. The
motion having been granted,[39] petitioner, through the OSG, filed its
petition[40] contending that respondent Judge "committed grave abuse of
discretion and/or acted without or in excess of jurisdiction in issuing the
order of dismissal dated November 23, 2001 allegedly on account of the
speedy trial rule."[41]
Subsequently, CA-G.R. SP Nos. 69703 and 68922 were
consolidated.[42]
On July 4, 2002, the CA rendered its assailed Joint Decision in CA-G.R.
SP Nos. 69703 and 68922, the dispositive portion of which states:
WHEREFORE, premises considered, the petitions
in CA-G.R. SP No. 68922 and CA-G.R. SP No. 69703 are
hereby both DENIED DUE COURSE and accordingly
DISMISSED, for lack of merit. The assailed Order dated
November 23, 2001 issued by Branch 158 of the Regional
Trial Court of Pasig City in Criminal Case Nos. 118823-31;
118848-91; 118902-9063; and 119099-204, all entitled
“People of the Philippines v. Ligaya P. Salayon and
Antonio M. Llorente,” is hereby AFFIRMED and UPHELD.
No pronouncement as to costs.
SO ORDERED.[43]
The CA noted that as to CA-G.R. SP No. 69703, Senior State
Prosecutor Bagabuyo filed an Urgent Motion to Withdraw Petition
datedApril 21, 2002 with the Supreme Court despite our referral of the
case to the CA. The CA held that the petition instituted by Senior State
Prosecutor Bagabuyo should be "effectively withdrawn" as the same was
filed without the participation of the OSG, in violation of Section 35(1),
Chapter 12, Title III, Book IV of the 1987 Administrative Code. At any rate,
the CA likewise found no merit in the petition instituted by the OSG. It
held that petitioner was essentially assailing an error of judgment and not
of jurisdiction, hence, its resort to a special civil action for certiorari under
Rule 65 of the Rules of Court instead of an ordinary appeal was
erroneous. Even assuming that petitioner's recourse was proper, the CA
held that respondent Judge did not act with grave abuse of discretion
amounting to lack or excess of jurisdiction when he rendered his assailed
Order dated November 23, 2001. The ruling of the trial court was found to
be supported by Sections 6 and 9 of the Revised Rules of Criminal
Procedure, Sections 9 and 13 of R.A. No. 8493 and Sections 14(2) and 16,
Article III of the 1987 Constitution. It restated the principle that "[t]he
right to speedy trial means one free from vexatious, capricious and
oppressive delays, its salutary objective being to assure that an innocent
person may be freed from the anxiety and expense of a court litigation or,
if otherwise, of having his guilt determined within the shortest possible
time compatible with the presentation and considerations of whatever
legitimate defense he may interpose."[44] The CA found that the
cancellation of the hearings in the trial court by the prosecution without
any valid grounds was "certainly vexatious, capricious and
oppressive." Citing People v. Abaño,[45] it held that "the dismissal of the
cases following a number of postponements at the instance of the
prosecution is not an abuse of discretion." The CA likewise held that "delay
resulting from extraordinary remedies against interlocutory orders," as an
exclusion to the computation of the 80-day period within which to
commence trial under Section 3(3), Rule 119 of the Rules of Court, should
be read in harmony with Section 7 of Rule 65 of the Rules of Court. Hence,
in the case at bar, the mere expedient of petitioner's filing before the CA of
a petition for certiorari, prohibition and mandamus under Rule 65
questioning the trial court's interlocutory order did not interrupt the
running of the 80-day period. Moreover, petitioner's reliance on Section
3(7) of Rule 119 is also misplaced as the trial court did not state in its
orders granting continuance that the ends of justice in granting the
continuance outweigh the best interest of the public and the right of the
accused to a speedy trial. Finally, the CA pointed out that the prosecution
failed to commence with the trial even after the lapse of 122 days from the
arraignment of private respondents.
Hence, the instant petition on certiorari under Rule 45 in which
petitioner raises the following issues:
I. [WHETHER] THE COURT OF APPEALS ERRED ON A
QUESTION OF LAW IN HOLDING THAT THE WRIT OF
CERTIORARI IS NOT WARRANTED INASMUCH AS WHAT
IS BEING IMPUGNED IS "AN ERROR OF JUDGMENT."
II. [WHETHER] THE COURT OF APPEALS ERRED ON A
QUESTION OF LAW IN UPHOLDING THE DISMISSAL OF
THE 321 CRIMINAL CASES AGAINST PRIVATE
RESPONDENTS.[46]
The issues to be resolved are: a) whether a special civil action for
certiorari under Rule 65 is the proper remedy from the dismissal of the
cases before the trial court on the ground of the denial of private
respondents' right to speedy trial; and b) whether the CA erred in finding
that respondent Judge did not commit grave abuse of discretion in
dismissing the instant criminal cases against private respondents upon a
finding that the right of private respondents to speedy trial has been
violated.
We shall first resolve the procedural issue.
Petitioner contends that its petition for certiorari under Rule 65 with
the CA was the proper remedy since respondent Judge committed grave
abuse of discretion amounting to lack or excess of jurisdiction when he
consolidated the 321 criminal cases into one information and dismissed
the "criminal case" on the ground of the denial of private respondents'
right to speedy trial, without giving the prosecution the chance to present
evidence. Citing People v. Velasco,[47] petitioner contends that the
dismissal of the "criminal case" against private respondents is tantamount
to their acquittal which, as a general rule, the prosecution cannot appeal
from in the absence of a statute clearly conferring that right. In any case,
the alleged existence of the remedy of appeal does not always foreclose
the remedy of a petition for certiorari under Rule 65.
Petitioner's remedy with the CA was correct.
Section 1, Rule 122 of the Revised Rules of Criminal Procedure
provides that “[a]ny party may appeal from a judgment or final
order,unless the accused will be placed in double jeopardy.”
As a general rule, the prosecution cannot appeal or bring error
proceedings from a judgment in favor of the defendant in a criminal case in
the absence of a statute clearly conferring that right.[48] Thus, errors of
judgment are not appealable by the prosecution. Appeal by the
prosecution from the order of dismissal of the criminal case by the trial
court may be allowed only on errors of jurisdiction when there was denial
of due process resulting in loss or lack of jurisdiction.[49] This is so as while
it is true that double jeopardy will attach in case the prosecution appeals a
decision acquitting the accused, an acquittal rendered in grave abuse of
discretion amounting to lack or excess of jurisdiction does not really
"acquit" and therefore does not terminate the case as there can be no
double jeopardy based on a void indictment.[50]
In the case at bar, the trial court dismissed the cases against private
respondents for the denial of their right to speedy trial. In a long line of
cases, we have held that a dismissal on the ground of the denial of the
accused's right to a speedy trial will have the effect of acquittal that
would
bar further prosecution of the accused for the same offense. [51] Thus, we
have held that where after such dismissal the prosecution moved for the
reconsideration of the order of dismissal and the court re-set the case for
trial, the accused can successfully claim double jeopardy as the said order
was actually an acquittal, was final and cannot be reconsidered. [52] Hence,
petitioner was correct in filing a petition for certiorari under Rule 65,
alleging that "respondent judge committed grave abuse of discretion
and/or acted without or in excess of jurisdiction in issuing the order of
dismissal dated November 23, 2001 allegedly on account of the speedy
trial rule" as an appeal was not available to it. Where the dismissal of the
case was allegedly capricious, certiorari lies from such order of dismissal
and does not involve double jeopardy, as the petition challenges not the
correctness but the validity of the order of dismissal and such grave abuse
of discretion amounts to lack of jurisdiction which prevents double
jeopardy from attaching.[53]
Having settled that a petition for certiorari under Rule 65 with the CA
was the proper remedy from the dismissal of the instant cases by the trial
court, the crucial issue is: was the CA correct in ruling that a writ of
certiorari was not warranted inasmuch as the respondent Judge did not act
in grave abuse of discretion amounting to lack or excess of jurisdiction in
dismissing the instant cases against private respondents for the denial of
their right to speedy trial?
A writ of certiorari is warranted when 1) 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 2) there is no
appeal, nor any plain, speedy and adequate remedy in the ordinary course
of law.[54] An act of a court or tribunal may be considered as in grave abuse
of discretion when the same was performed in a capricious or whimsical
exercise of judgment amounting to lack of jurisdiction. The abuse of
discretion must be so patent and gross as to amount to an evasion of a
positive duty, or to a virtual refusal to perform a duty enjoined by law, as
where the power is exercised in an arbitrary and despotic manner because
of passion or hostility.[55]
We affirm the CA's ruling that no such grave abuse of discretion was
shown to exist in respondent Judge's dismissal of the instant cases.
The right of the accused to a speedy trial is guaranteed under
Sections 14(2) and 16, Article III of the 1987 Constitution. [56] In 1998,
Congress enacted R.A. No. 8493, otherwise known as the "Speedy Trial Act
of 1998." The law provided for time limits in order "to ensure a speedy trial
of all criminal cases before the Sandiganbayan, [RTC], Metropolitan Trial
Court, Municipal Trial Court, and Municipal Circuit Trial Court." On August
11, 1998, the Supreme Court issued Circular No. 38-98, the Rules
Implementing R.A. No. 8493. The provisions of said circular were adopted
in the 2000 Revised Rules of Criminal Procedure. As to the time limit
within which trial must commence after arraignment, the 2000 Revised
Rules of Criminal Procedure states:
Sec. 6, Rule 119. Extended time limit.-- Notwithstanding
the provisions of section 1(g), Rule 116 and the
preceding section 1, for the first twelve-calendar-month
period following its effectivity on September 15,
1998, the time limit with respect to the period from
arraignment to trial imposed by said provision shall
be one hundred eighty (180) days. For the second
twelve-month period, the time limit shall be one
hundred twenty (120) days, and for the third twelve-
month period, the time limit shall be eighty (80) days.
R.A. No. 8493 and its implementing rules and the Revised Rules of
Criminal Procedure enumerate certain reasonable delays as exclusions in
the computation of the prescribed time limits. They also provide that "no
provision of law on speedy trial and no rule implementing the same shall
be interpreted as a bar to any charge of denial of speedy trial as provided
by Article III, Section 14(2), of the 1987 Constitution."[57] Thus, in spite
of the prescribed time limits, jurisprudence continues to adopt the view
that the concept of "speedy trial" is a relative term and must necessarily be
a flexible concept.[58] In Corpuz v. Sandiganbayan,[59] we held:
The right of the accused to a speedy trial and
to a speedy disposition of the case against him was
designed to prevent the oppression of the citizen by
holding criminal prosecution suspended over him for an
indefinite time, and to prevent delays in the
administration of justice by mandating the courts to
proceed with reasonable dispatch in the trial of criminal
cases. Such right to a speedy trial and a speedy
disposition of a case is violated only when the
proceeding is attended by vexatious, capricious and
oppressive delays. x x x
 While justice is administered with dispatch, the
essential ingredient is orderly, expeditious and not mere
speed. It cannot be definitely said how long is too long
in a system where justice is supposed to be swift, but
deliberate. It is consistent with delays and depends
upon circumstances. It secures rights to the accused,
but it does not preclude the rights of public justice.
Also, it must be borne in mind that the rights given to
the accused by the Constitution and the Rules of Court
are shields, not weapons; hence, courts are to give
meaning to that intent.

A balancing test of applying societal interests

and the rights of the accused necessarily compels the
court to approach speedy trial cases on an ad
hoc basis.
In determining whether the accused has been
deprived of his right to a speedy disposition of the case
and to a speedy trial, four factors must be considered:
(a) length of delay; (b) the reason for the
 delay; (c) the defendant’s assertion of his right; and (d) restraining order was issued to stop the proceedings in
prejudice to the defendant. (citations omitted) this case, the pre-trial and trial shall proceed
on September 4, 2001. But the hearing of September 4,
2001 did not proceed on account of the absence of
In the cases at bar, in finding that private respondents were Prosecutor Bagabuyo. Another representative from the
denied of their right to speedy trial, respondent Judge recounted the
office of Senator Pimentel, a certain Atty. Rolando
following incidents in the trial court:
Galimpin, appeared and requested for another
postponement. Like before, the Court received a call
The Court considers the accused['s] arraignment
from the secretary of Prosecutor Bagabuyo that the
of June 15, 2001 and notes that the pre-trial was initially
latter had his tooth extracted and would not be in a
set on June 29, 2001. This initial setting did not proceed,
position to appear at the hearing. This Court found the
as earlier, the Prosecution, through State Prosecutor
motion for postponement odd because Atty. Galimpin
Bagabuyo, filed an Omnibus Motion to Postpone and
informed the Court he saw Prosecutor Bagabuyo at the
Motion for Reconsideration. The Court, nevertheless, set
Office of the Clerk of Court, which is located at the first
the hearing to July 5, 2001 and gave proper notice to the
floor of the building where this Court sits. Even then, the
Prosecution. This July 6 setting also did not proceed as a
Court denied the accused['s] oral motion to dismiss and
staff of Prosecutor Bagabuyo made a telephone call with
gave the Prosecution the last opportunity to prosecute
this Court seeking for a postponement as Prosecutor
this case. The Prosecution was given two dates, October
Bagabuyo was not feeling well. The Court issued its
3 and 15, 2001, the dates Prosecutor Bagabuyo would be
Order of July 6, 2001 setting the pre-trial again to July 26,
available as represented by Atty. Galimpin. Despite
2001 at 8:30 a.m. The July 26 pre-trial hearing likewise
these dates of October 3 and 15, 2001, the Prosecution
did not proceed, as Prosecutor Bagabuyo was
still failed to proceed to pre-trial and trial. Given the
indisposed. This matter was relayed to this Court in a
period of time to prosecute this case as above narrated,
telephone call of Orlando Nicolas, secretary of
the last opportunity on October 3 and 15, 2001, this
Prosecutor Bagabuyo. During the hearing, Atty. Jay I.
Court resolves that this case must now be dismissed. The
Dejaresco, a lawyer from the office of Senator Aquilino
accused’[s] right to speedy trial under Section 9, Rule 116
Pimentel, appeared and confirmed the inability of
(sic) of the Revised Rules of Criminal Procedure has been
Prosecutor Bagabuyo to appear during the pre-trial
violated.[60]
hearing. The Court also requested Atty. Dejaresco to
inform Senator Pimentel on the delay caused by the non-
appearance of the Prosecutor. The hearing was reset
Clearly, the one hundred eleven (111) days that have elapsed
toAugust 2, 2001, the date suggested by Atty. Dejaresco.
from the time private respondents were arraigned on June 15, 2001 up to
the filing of the Motion to Dismiss by private respondents on the ground
The August 2, 2001 hearing was held, but the
of the denial of their right to speedy trial on October 4, 2001 is beyond the
Prosecution, through Prosecutor Bagabuyo, manifested
80-day limit provided under the law and the rules. The incidents that
that it would question the Order of this Court dated June
transpired before the trial court likewise show that the postponements at
15, 2001 and the Court’s Order on said date denying the
the instance of the prosecution were not justified. As found by the CA:
Prosecution’s Motion for Reconsideration to the Order of
June 15, 2001. As requested, the Court granted the The Court a quo has sufficiently justified its order
Prosecution 30 days to file the proper petition before the
of dismissal for failure to prosecute in violation of the
higher court, and the pre-trial and trial was reset anew
constitutional right of the accused to a speedy trial as
to September 4, 2001. The Court [h]as impressed with
mandated by Section 14(2) and Section 16 of Article III
the commitment of the Prosecution that in the event no of the 1987 Constitution. The right to speedy trial
 means one free from vexatious, capricious and
oppressive delays, its salutary objective being to assure
that an innocent person may be freed from the anxiety
and expense of a court litigation or, if otherwise, of
having his guilt determined within the shortest possible
time compatible with the presentation and
consideration of whatever legitimate defense he may
interpose.[61]
xxx
The cancellation of the hearings by the
prosecution without any valid ground is certainly
vexatious, capricious and oppressive and it has been
held that the dismissal of the case following a number
of postponements at the instance of the prosecution is
not an abuse of discretion,[62] and especially taking into
account the periods in Rule 119 which are explicitly
provided.[63]
Petitioner invokes the exclusions provided in Section 3(a)(3) and
(f), Rule 119 of the 2000 Revised Rules of Criminal Procedure which state:
Sec. 3. Exclusions.-- The following periods of
delay shall be excluded in computing the time within
which trial must commence:
a) Any period of delay resulting
from other proceedings concerning the
accused, including but not limited to
the following:
xxx
3) Delay
resulting from
extraordinary
remedies against
interlocutory orders;
xxx
f) Any period of delay resulting
from a continuance granted by any
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 served by taking such action
outweigh the best interest of the public
and the accused in a speedy trial.
Petitioner contends that there was no inordinate delay on the
part of the prosecution to justify a dismissal of the cases based on a
violation of the private respondents' right to speedy trial. The date of
arraignment was June 15, 2001. Senior State Prosecutor Bagabuyo filed a
certiorari petition questioning the arraignment before the CA on August 6,
2001. Thus, a total of 51 days elapsed before the filing of the CA
petition. On August 24, 2001, Senior State Prosecutor Bagabuyo received
a copy of the CA Resolution dismissing his petition. OnSeptember 6, 2001,
he filed a motion for reconsideration of the CA Resolution. At this point,
only 64 days have passed since the arraignment. On October 17, 2001,
Senior State Prosecutor Bagabuyo received a copy of the CA Resolution
denying his motion for reconsideration. On October 30, 2001, he filed a
motion for extension of time to file a petition under Rule 45 with this
Court. Prior to his filing of this motion for extension, 76 days have lapsed
from the date of arraignment. This Court granted him 30 days within
which to file the petition or until December 1, 2001. Hence, when Judge
Hernandez issued an Order of dismissal dated November 23, 2001, the 80-
day period mandated under Section 6 of Rule 119 has not yet
lapsed. Deducting the time it took Judge Hernandez to resolve petitioner's
Omnibus Motion to Postpone and Motion for Reconsideration dated June
27, 2001, only 41 days had lapsed after private respondents' arraignment
onJune 15, 2001. Section 3 of Rule 119 provides that "delay resulting from
extraordinary remedies against interlocutory orders" is excluded in
computing the time within which trial must commence. This provision is
not in conflict with Section 3(f) of Rule 119 as they speak of two different
kinds of delay. If Section 3(f) is not applicable, Section 3(a) definitely is.
We are not persuaded. As correctly held by the CA, "delay resulting
from extraordinary remedies against interlocutory orders" must be read in
harmony with Section 7, Rule 65 of the Rules of Court which provides that
the "[p]etition [under Rule 65] shall not interrupt the course of the
principal case unless a temporary restraining order or a writ of
preliminary injunction has been issued against the public respondent
from further proceeding in the case." This was clearly spelled out by
respondent Judge when, in addition to granting a 30-day continuance in
view of the manifestation of the prosecution that it would file an appeal
from the interlocutory order of the trial court with a higher court, the trial
court, in its August 2, 2001 Order, gave a warning that "[i]n the event that
the prosecution shall not be able to get any restraining order to stop the
proceedings in this case, the hearing on [September 4, 2001] shall proceed
as scheduled." Despite this warning, however, Senior State Prosecutor
Bagabuyo did not appear for the prosecution on the September 4, 2001
hearing set by the trial court and the court only received a call from the
secretary of said Senior State Prosecutor that the latter had his tooth
extracted and would not be in a position to appear at the hearing. What
made the manner of postponement worse was that Atty. Galimpin, the
private prosecutor, informed the trial court that he saw Senior State
Prosecutor Bagabuyo at the Office of the Clerk of Court, which is located
at the first floor of the same building where the trial court sits.
propriety of [the] June 15, 2001 Order of this Court and
the Honorable Court of Appeals dated August 16, 2001
dismissed the petition outright. It also notes the
resolution of the said Court dated October 9,
2001 denying the Prosecution’s Motion for
Reconsideration. Given these resolution, the
Prosecution had no option under the circumstances but
to proceed to pre-trial and trial during the October 15,
2001 hearing. All and still, the Prosecution stood on its
ground not to prosecute this case and would only have
itself to blame for the dismissal of this case.[64]

Petitioner's reliance on Section 3(f) of Rule 119 is also misplaced

as nowhere in the Orders granting continuance did respondent Judgeset
forth that his order was based on findings that “the ends of justice served
by taking such action outweigh the best interest of the public and the
accused in a speedy trial,” as required under the law and the Rules of
Court. To the contrary, the successive continuances granted by the trial
court were compelled by the repeated absence of the public prosecutor or
his refusal to proceed with the pre-trial and trial. The orders of the court
contained repeated warnings that "[i]n the event that there will again be
no appearance from Prosecutor Bagabuyo at the next scheduled hearing,
the Legal Department of the COMELEC shall then make its appearance and
take over the prosecution of this case." In its September 4, 2001 Order
denying private respondents' oral motions to dismiss and giving the
prosecution another chance to prosecute the cases by resetting the
hearings to October 3 and 15, 2001, the trial court gave an admonition
that the prosecution's failure to appear will be dealt with
accordingly. Even when Senior State Prosecutor Bagabuyo appeared
on October 3, 2001, the prosecution refused to proceed with the pre-trial
and trial of the cases on the ground of the pendency of its petition with
the CA. This, despite the fact that as early as August 16, 2001, the CA has
dismissed CA-G.R. No. SP. No. 65966 which raised the issue of the validity
of the private respondents' arraignment. As the trial court held:
The Court notes the petition for certiorari that
Prosecutor Bagabuyo filed before the Court of Appeals
docketed as CA-GR SP No. 65966 questioning the
 Petitioner also contends in the instant petition that respondent such declaration continues to be the law of that case
Judge's decision declaring the 321 Informations against private even on a subsequent appeal. The rule made by an
respondents for violation of Section 27(b) of R.A. No. 6646 as only one appellate court, while it may be reversed in other cases,
Information, the arraignment of the accused to only one information and cannot be departed from in subsequent proceedings in
his Decision dismissing the "case" against private respondents give rise to the same case. The “Law of the Case,” as applied to a
the following questions: 1) Which one of the 321 Informations did private former decision of an appellate court, merely expresses
respondents plead "not guilty" to? and 2) What case did Judge Hernandez the practice of the courts in refusing to reopen what has
dismiss when he stated that "this case is dismissed"? been decided. Such a rule is "necessary to enable an
appellate court to perform its duties satisfactorily and
efficiently, which would be impossible if a question,
The contention is unavailing. Contrary to petitioner's claim, a once considered and decided by it, were to be litigated
reading of the June 15, 2001 Order of the trial court during arraignment anew in the same case upon any and every subsequent
leaves no room for vagueness. It states: appeal." Again, the rule is necessary as a matter of
policy in order to end litigation. "There would be no end
Pursuant to the Order of March 2, 2001, the
to a suit if every obstinate litigant could, by repeated
three hundred [twenty-one] (321) informations filed
appeals, compel a court to listen to criticisms on their
against both accused were treated to be only a single
opinions, or speculate of chances from changes in its
offense for which they should be made answerable. It is
members."
for this reason that both accused were arraigned and
entered their plea to a single or one information
only.[65]
Petitioner's contention that the prosecution was clearly deprived of
its day in court when it was not afforded the right to be present during the
private respondents' arraignment and to proceed to trial cannot stand
What this argument reflects is petitioner's stubborn insistence
scrutiny. Again, the issue of the validity of the arraignment of the private
not to recognize the trial court's interlocutory Orders dated March 2,
respondents without the presence of Senior State Prosecutor Bagabuyo
2001and June 15, 2001, granting private respondent Llorente's motion to
has already been established with finality in the prosecution's previous
consider all the 321 informations filed against each of them as constituting
appeal with the CA in CA-G.R. SP. No. 65966 and with this Court in G.R. No.
only one offense and declaring the arraignment of private respondents to
150317 and, thus, constitutes the law of the case between the
only one information, respectively. Notably, petitioner's Motion for
parties. Petitioner cannot re-raise said issue in this petition. Moreover,
Reconsideration of this Order on March 25, 2001 has been denied by the
petitioner's failure to proceed to trial, as clearly shown by the events that
trial court and was denied again when re-raised by petitioner with the trial
transpired in the trial court, was due to its own fault.
court in its Omnibus Motion to Postpone and Motion for Reconsideration
on June 27, 2001. On appeal to the CA raising said issue, the CA dismissed
In order that a judgment or order of acquittal may be successfully
the appeal for the non-participation of the OSG and the CA likewise denied
challenged in a petition for certiorari under Rule 65, the petitioner must
the motion for reconsideration it filed. Petitioner filed a petition with this
prove that the trial court, in acquitting the accused, committed not merely
Court raising the same issue and was likewise denied on January 30,
errors of judgment, but grave abuse of discretion amounting to lack or
2002 for having been filed out of time. We likewise denied its Motion for
excess of jurisdiction.[67] No such grave abuse of discretion can be
Reconsideration on April 24, 2002. Hence petitioner can no longer raise
attributed to respondent Judge in dismissing the instant cases for the
the same issue in this petition. InZarate v. Director of Lands,[66] we held
denial of private respondents' right to speedy trial.
that:
A last note. The first and the foremost state principle announced
A well-known legal principle is that when an
in our Constitution is that “the Philippines is a democratic and republican
appellate court has once declared the law in a case,
State. Sovereignty resides in the people and all government authority
emanates from them.”[68] Our people express their mighty sovereignty
mainly thru the election ballot where they decide, free from any fetter,
who will represent them in government. In a representative government,
the choice by the people of who will be their voice is nothing less than
sacred, hence, its desecration is unpardonable. Regrettably, the prosecutor
failed in vindicating this constitutional principle whose wisdom has not
been diminished by the erosions of time. The lack of zealousness on the
part of the prosecution to prove that the senatorial elections held in May
1995 was marred by the condemnable practice of “dagdag-bawas” which
led to the dismissal of the criminal charges against the private respondents
cannot but be lamented. The inexplicable failure has left this Court no
alternative except to affirm the dismissal of said charges for the
constitutional right of the accused to speedy trial cannot be held hostage
by the disinterest and mistakes of the prosecution in discharging its duty.
IN VIEW WHEREOF, the petition is denied. The Joint Decision
dated July 4, 2002 of the Court of Appeals in CA-G.R. SP Nos. 68922 and
69703 is affirmed.
No cost.
G.R. No. 177960 January 29, 2009
JEFFREY RESO DAYAP, Petitioner,
vs.
PRETZY-LOU SENDIONG, GENESA SENDIONG, ELVIE SY and DEXIE
DURAN, Respondents.
DECISION
Tinga, J.:
Before us is a petition for review1 on certiorari of the Decision2 dated 17
August 2006 and Resolution3 dated 25 April 2007 by the Court of Appeals
in CA-G.R. SP No. 01179 entitled, Pretzy-Lou P. Sendiong, Genesa R.
Sendiong, Elvie H. Sy and Dexie Duran v. Hon. Judge Cresencio Tan and
Jeffrey Reso Dayap.
The case had its origins in the filing of an Information 4 on 29 December
2004 by the Provincial Prosecutor’s Office, Sibulan, Negros Oriental,
charging herein petitioner Jeffrey Reso Dayap with the crime of Reckless
Imprudence resulting to Homicide, Less Serious Physical Injuries, and
Damage to Property. The pertinent portion of the information reads:
That at about 11:55 o’clock in the evening of 28 December 2004 at Brgy.
Maslog, Sibulan, Negros Oriental, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, did then and there,
willfully, unlawfully and feloniously drive in a reckless and imprudent
manner a 10-wheeler cargo truck with plate number ULP-955, color blue,
fully loaded with sacks of coconut shell, registered in the name of Ruben
Villabeto of Sta. Agueda Pamplona, Negros Oriental, thereby hitting an
automobile, a Colt Galant with plate number NLD-379 driven by Lou Gene
R. Sendiong who was with two female passengers, namely: Dexie Duran
and Elvie Sy, thus causing the instantaneous death of said Lou Gene R.
Sendiong, less serious physical injuries on the bodies of Dexie Duran and
Elvie Sy and extensive damage to the above-mentioned Colt Galant which
is registered in the name of Cristina P. Weyer of 115 Dr. V. Locsin St.,
Dumaguete City, to the damage of the heirs of the same Lou Gene R.
Sendiong and the other two offended parties above-mentioned.
An act defined and penalized by Article 365 of the Revised Penal Code.
On 10 January 2005, before the Municipal Trial Court (MTC) of Sibulan,
Negros Oriental, petitioner was arraigned and he pleaded not guilty to the
charge.5
On 17 January 2005, respondents Pretzy-Lou P. Sendiong, Genesa
Sendiong and Dexie Duran filed a motion for leave of court to file an
amended information.6 They sought to add the allegation of abandonment
of the victims by petitioner, thus: "The driver of the 10-wheeler cargo truck
abandoned the victims, at a time when said [Lou-Gene] R. Sendiong was
still alive inside the car; he was only extracted from the car by the by-
standers."7
On 21 January 2005, however, the Provincial Prosecutor filed an Omnibus
Motion praying that the motion to amend the information be considered
withdrawn.8 On 21 January 2003, the MTC granted the withdrawal and the
motion to amend was considered withdrawn.9
Pre-trial and trial of the case proceeded. Respondents testified for the
prosecution. After the prosecution had rested its case, petitioner sought
leave to file a demurrer to evidence which was granted. Petitioner filed his
Demurrer to Evidence10 dated 15 April 2005 grounded on the prosecution’s
failure to prove beyond reasonable doubt that he is criminally liable for
reckless imprudence, to which respondents filed a Comment11 dated 25
April 2005.
In the Order12 dated 16 May 2005, the MTC granted the demurrer and
acquitted petitioner of the crime of reckless imprudence. The MTC found
that the evidence presented by respondents failed to establish the
allegations in the Information. Pertinent portions of the order state:
An examination of the allegations in the information and comparing the
same with the evidence presented by the prosecution would reveal that
the evidence presented has not established said allegations. The facts and
circumstances constituting the allegations charged have not been proven.
It is elementary in the rules of evidence that a party must prove his own
affirmative allegations.
xxxx
Nowhere in the evidence of the prosecution can this Court find that it was
the accused who committed the crime as charged. Its witnesses have
never identified the accused as the one who has committed the crime. The
prosecution never bothered to establish if indeed it was the accused who
committed the crime or asked questions which would have proved the
elements of the crime. The prosecution did not even establish if indeed it
was the accused who was driving the truck at the time of the incident. The
Court simply cannot find any evidence which would prove that a crime has
been committed and that the accused is the person responsible for it.
There was no evidence on the allegation of the death of Lou Gene R.
Sendiong as there was no death certificate that was offered in evidence.
The alleged less serious physical injuries on the bodies of Dexie Duran and
Elvie Sy were not also proven as no medical certificate was presented to
state the same nor was a doctor presented to establish such injuries. The
alleged damage to the [C]olt [G]alant was also not established in any
manner as no witness ever testified on this aspect and no documentary
evidence was also presented to state the damage. The prosecution
therefore failed to establish if indeed it was the accused who was
responsible for the death of Lou Gene R. Sendiong and the injuries to Dexie
Duran and Elvie Sy, including the damage to the Colt Galant. The mother of
the victim testified only on the expenses she incurred and the shock she
and her family have suffered as a result of the incident. But sad to say, she
could not also pinpoint if it was the accused who committed the crime and
be held responsible for it. This Court could only say that the prosecution
has practically bungled this case from its inception.
xxxx
The defense furthermore argued that on the contrary, the prosecution’s
[evidence] conclusively show that the swerving of vehicle 1 [the Colt
Galant] to the lane of vehicle 2 [the cargo truck] is the proximate cause of
the accident. The court again is inclined to agree with this argument of the
defense. It has looked carefully into the sketch of the accident as indicated
in the police blotter and can only conclude that the logical explanation of
the accident is that vehicle 1 swerved into the lane of vehicle 2, thus
hitting the latter’s inner fender and tires. Exhibit "7" which is a picture of
vehicle 2 shows the extent of its damage which was the effect of vehicle
1’s ramming into the rear left portion of vehicle 2 causing the differential
guide of vehicle 2 to be cut, its tires busted and pulled out together with
their axle. The cutting of the differential guide cause[d] the entire housing
connecting the tires to the truck body to collapse, thus causing vehicle 2 to
tilt to its left side and swerve towards the lane of vehicle 1. It was this
accident that caused the swerving, not of [sic] any negligent act of the
accused.
xxxx
Every criminal conviction requires of the prosecution to prove two things—
the fact of the crime, i.e., the presence of all the elements of the crime for
which the accused stands charged, and the fact that the accused is the
perpetrator of the crime. Sad to say, the prosecution has miserably failed
to prove these two things. When the prosecution fails to discharge its
burden of establishing the guilt of the accused, an accused need not even
offer evidence in his behalf.
xxxx
WHEREFORE, premises considered, the demurrer is granted and the
accused JEFFREY RESO DAYAP is hereby acquitted for insufficiency of
evidence. The bail bond posted for his temporary liberty is also hereby
cancelled and ordered released to the accused or his duly authorized
representative.
SO ORDERED.13
Respondents thereafter filed a petition for certiorari under Rule
65,14 alleging that the MTC’s dismissal of the case was done without
considering the evidence adduced by the prosecution. Respondents added
that the MTC failed to observe the manner the trial of the case should
proceed as provided in Sec. 11, Rule 119 of the Rules of Court as well as
failed to rule on the civil liability of the accused in spite of the evidence
presented. The case was raffled to the Regional Trial Court (RTC) of Negros
Oriental, Br. 32.
In the order15 dated 23 August 2005, the RTC affirmed the acquittal of
petitioner but ordered the remand of the case to the MTC for further
proceedings on the civil aspect of the case. The RTC ruled that the MTC’s
recital of every fact in arriving at its conclusions disproved the allegation
that it failed to consider the evidence presented by the prosecution. The
records also demonstrated that the MTC conducted the trial of the case in
the manner dictated by Sec. 11, Rule 119 of the Rules of Court, except that
the defense no longer presented its evidence after the MTC gave due
course to the accused’s demurrer to evidence, the filing of which is
allowed under Sec. 23, Rule 119. The RTC however agreed that the MTC
failed to rule on the accused’s civil liability, especially since the judgment
of acquittal did not include a declaration that the facts from which the civil
liability might arise did not exist. Thus, the RTC declared that the aspect of
civil liability was not passed upon and resolved to remand the issue to the
MTC. The dispositive portion of the decision states:
WHEREFORE, the questioned order of the Municipal Trial Court of Sibulan
on accused’s acquittal is AFFIRMED. The case is REMANDED to the court of
origin or its successor for further proceedings on the civil aspect of the
case. No costs.
SO ORDERED.16
Both parties filed their motions for reconsideration of the RTC order, but
these were denied for lack of merit in the order 17 dated 12 September
2005.
Respondents then filed a petition for review with the Court of Appeals
under Rule 42, docketed as CA-G.R. SP. No. 01179. The appellate court
subsequently rendered the assailed decision and resolution. The Court of
Appeals ruled that there being no proof of the total value of the properties
damaged, the criminal case falls under the jurisdiction of the RTC and the
proceedings before the MTC are
null and void. In so ruling, the appellate court cited Tulor v. Garcia (correct
title of the case is Cuyos v. Garcia)18which ruled that in complex crimes
involving reckless imprudence resulting in homicide or physical injuries and
damage to property, the jurisdiction of the court to take cognizance of the
case is determined by the fine imposable for the damage to property
resulting from the reckless imprudence, not by the corresponding penalty
for the physical injuries charged. It also found support in Sec. 36 of the
Judiciary Reorganization Act of 1980 and the 1991 Rule 8 on Summary
Procedure, which govern the summary procedure in first-level courts in
offenses involving damage to property through criminal negligence where
the imposable fine does not exceed P10,000.00. As there was no proof of
the total value of the property damaged and respondents were claiming
the amount ofP1,500,000.00 as civil damages, the case falls within the
RTC’s jurisdiction. The dispositive portion of the Decision dated 17 August
2006 reads:
WHEREFORE, premises considered, judgment is hereby rendered by Us
REMANDING the case to the Regional Trial Court (RTC), Judicial Region,
Branch 32, Negros Oriental for proper disposition of the merits of the case.
SO ORDERED.19
Petitioner moved for reconsideration of the Court of Appeals
decision,20 arguing that jurisdiction over the case is determined by the
allegations in the information, and that neither the 1991 Rule on Summary
Procedure nor Sec. 36 of the Judiciary Reorganization Act of 1980 can be
the basis of the RTC’s jurisdiction over the case. However, the Court of
Appeals denied the motion for reconsideration for lack of merit in the
Resolution dated 25 April 2007.21 It reiterated that it is the RTC that has
proper jurisdiction considering that the information alleged a willful,
unlawful, felonious killing as well as abandonment of the victims.
In the present petition for review, petitioner argues that the MTC had
jurisdiction to hear the criminal case for reckless imprudence, owing to the
enactment of Republic Act (R.A.) No. 7691,22 which confers jurisdiction to
first-level courts on offenses involving damage to property through
criminal negligence. He asserts that the RTC could not have acquired
jurisdiction on the basis of a legally unfiled and officially withdrawn
amended information alleging abandonment. Respondents are also faulted
for challenging the MTC’s order acquitting petitioner through a special civil
action for certiorari under Rule 65 in lieu of an ordinary appeal under Rule
42.
The petition has merit. It should be granted.
The first issue is whether the Court of Appeals erred in ruling that
jurisdiction over the offense charged pertained to the RTC.
Both the MTC and the RTC proceeded with the case on the basis of the
Information dated 29 December 2004 charging petitioner only with the
complex crime of reckless imprudence resulting to homicide, less serious
physical injuries and damage to property. The Court of Appeals however
declared in its decision that petitioner should have been charged with the
same offense but aggravated by the circumstance of abandonment of the
victims. It appears from the records however that respondents’ attempt to
amend the information by charging the aggravated offense was
unsuccessful as the MTC had approved the Provincial Prosecutor’s motion
to withdraw their motion to amend the information. The information filed
before the trial court had remained unamended.23Thus, petitioner is
deemed to have been charged only with the offense alleged in the original
Information without any aggravating circumstance.
Article 365 of the Revised Penal Code punishes any person who, by
reckless imprudence, commits any act which, had it been intentional,
would constitute a grave felony, with the penalty of arresto mayor in its
maximum period toprision correccional in its medium period. When such
reckless imprudence the use of a motor vehicle, resulting in the death of a
person attended the same article imposes upon the defendant the penalty
of prision correccional in its medium and maximum periods.
The offense with which petitioner was charged is reckless imprudence
resulting in homicide, less serious physical injuries and damage to
property, a complex crime. Where a reckless, imprudent, or negligent act
results in two or more grave or less grave felonies, a complex crime is
committed.24 Article 48 of the Revised Penal Code provides that when the
single act constitutes two or more grave or less grave felonies, or when an
offense is a necessary means for committing the other, the penalty for the
most serious crime shall be imposed, the same to be applied in its
maximum period. Since Article 48 speaks of felonies, it is applicable to
crimes through negligence in view of the definition of felonies in Article 3
as "acts or omissions punishable by law" committed either by means of
deceit (dolo) or fault (culpa).25 Thus, the penalty imposable upon
petitioner, were he to be found guilty, is prision correccional in its medium
period (2 years, 4 months and 1 day to 4 years) and maximum period (4
years, 2 months and 1 day to 6 years).
Applicable as well is the familiar rule that the jurisdiction of the court to
hear and decide a case is conferred by the law in force at the time of the
institution of the action, unless such statute provides for a retroactive
application thereof.26 When this case was filed on 29 December 2004,
Section 32(2) of Batas Pambansa Bilang 129 had already been amended by
R.A. No. 7691. R.A. No. 7691 extended the jurisdiction of the first-level
courts over criminal cases to include all offenses punishable with
imprisonment not exceeding six (6) years irrespective of the amount of
fine, and regardless of other imposable accessory or other penalties
including those for civil liability. It explicitly states "that in offenses
involving damage to property through criminal negligence, they shall have
exclusive original jurisdiction thereof." It follows that criminal cases for
reckless
imprudence punishable with prision correccional in its medium and
maximum periods should fall within the jurisdiction of the MTC and not the
RTC. Clearly, therefore, jurisdiction to hear and try the same pertained to
the MTC and the RTC did not have original jurisdiction over the criminal
case.27 Consequently, the MTC of Sibulan, Negros Oriental had properly
taken cognizance of the case and the proceedings before it were valid and
legal.
As the records show, the MTC granted petitioner’s demurrer to evidence
and acquitted him of the offense on the ground of insufficiency of
evidence. The demurrer to evidence in criminal cases, such as the one at
bar, is "filed after the prosecution had rested its case," and when the same
is granted, it calls "for an appreciation of the evidence adduced by the
prosecution and its sufficiency to warrant conviction beyond reasonable
doubt, resulting in a dismissal of the case on the merits, tantamount to an
acquittal of the accused."28 Such dismissal of a criminal case by the grant of
demurrer to evidence may not be appealed, for to do so would be to place
the accused in double jeopardy.29 But while the dismissal order
consequent to a demurrer to evidence is not subject to appeal, the same is
still reviewable but only by certiorari under Rule 65 of the Rules of Court.
Thus, in such case, the factual findings of the trial court are conclusive
upon the reviewing court, and the only legal basis to reverse and set aside
the order of dismissal upon demurrer to evidence is by a clear showing
that the trial court, in acquitting the accused, committed grave abuse of
discretion amounting to lack or excess of jurisdiction or a denial of due
process, thus rendering the assailed judgment void.30
Accordingly, respondents filed before the RTC the petition for certiorari
alleging that the MTC gravely abused its discretion in dismissing the case
and failing to consider the evidence of the prosecution in resolving the
same, and in allegedly failing to follow the proper procedure as mandated
by the Rules of Court. The RTC correctly ruled that the MTC did not abuse
its discretion in dismissing the criminal complaint. The MTC’s conclusions
were based on facts diligently recited in the order thereby disproving that
the MTC failed to consider the evidence presented by the prosecution. The
records also show that the MTC correctly followed the procedure set forth
in the Rules of Court.
The second issue is whether the Court of Appeals erred in ordering the
remand of the case of the matter of civil liability for the reception of
evidence.
We disagree with the Court of Appeals on directing the remand of the case
to the RTC for further proceedings on the civil aspect, as well as with the
RTC in directing a similar remand to the MTC.
The acquittal of the accused does not automatically preclude a judgment
against him on the civil aspect of the case. The extinction of the penal
action does not carry with it the extinction of the civil liability where: (a)
the acquittal is based on reasonable doubt as only preponderance of
evidence is required; (b) the court declares that the liability of the accused
is only civil; and (c) the civil liability of the accused does not arise from or is
not based upon the crime of which the accused is acquitted. 31 However,
the civil action based on delict may be deemed extinguished if there is a
finding on the final judgment in the criminal action that the act or omission
from which the civil liability may arise did not exist32 or where the accused
did not commit the acts or omission imputed to him. 33
Thus, if demurrer is granted and the accused is acquitted by the court, the
accused has the right to adduce evidence on the civil aspect of the case
unless the court also declares that the act or omission from which the civil
liability may arise did not exist.34 This is because when the accused files a
demurrer to evidence, he has not yet adduced evidence both on the
criminal and civil aspects of the case. The only evidence on record is the
evidence for the prosecution. What the trial court should do is issue an
order or partial judgment granting the demurrer to evidence and
acquitting the accused, and set the case for continuation of trial for the
accused to adduce evidence on the civil aspect of the case and for the
private complainant to adduce evidence by way of rebuttal. Thereafter,
the court shall render judgment on the civil aspect of the case. 35
A scrutiny of the MTC’s decision supports the conclusion that the acquittal
was based on the findings that the act or omission from which the civil
liability may arise did not exist and that petitioner did not commit the acts
or omission imputed to him; hence, petitioner’s civil liability has been
extinguished by his acquittal. It should be noted that the MTC categorically
stated that it cannot find any evidence which would prove that a crime had
been committed and that accused was the person responsible for it. It
added that the prosecution failed to establish that it was petitioner who
committed the crime as charged since its witnesses never identified
petitioner as the one who was driving the cargo truck at the time of the
incident. Furthermore, the MTC found that the proximate cause of the
accident is the damage to the rear portion of the truck caused by the
swerving of the Colt Galant into the rear left portion of the cargo truck and
not the reckless driving of the truck by petitioner, clearly establishing that
petitioner is not guilty of reckless imprudence. Consequently, there is no
more need to remand the case to the trial court for proceedings on the
civil aspect of the case, since petitioner’s acquittal has extinguished his civil
liability.
WHEREFORE, the petition is GRANTED. The Court of Appeals’ Decision
dated 17 August 2006 and Resolution dated 25 April 2007 in CA-G.R. SP.
No. 01179 are REVERSED and SET ASIDE. The Order dated 16 May 2005 of
the Municipal Trial Court of Sibulan, Negros Oriental in Criminal Case No.
3016-04 granting the Demurrer to Evidence and acquitting petitioner
Jeffrey Reso Dayap of the offense charged therein is REINSTATED and
AFFIRMED.
SO ORDERED.
NAMER SALAZAR, petitioner, vs. THE PEOPLE OF THE PHILIPPINES and J.Y.
BROTHERS MARKETING CORPORATION, respondents.
DECISION
CALLEJO, SR., J.:
This is a petition for review on certiorari under Rule 45 of the 1997
Rules of Criminal Procedure of the Order[1] of the Regional Trial Court, 5th
Judicial Region, Legazpi City, Branch 5,[2] dated November 19, 2001, and its
Order[3] dated January 14, 2002 denying the motion for reconsideration of
the decision of the said court on the civil aspect thereof and to allow her to
present evidence thereon.
On June 11, 1997, an Information for estafa was filed against herein
petitioner Anamer D. Salazar and co-accused Nena Jaucian Timario with
the Regional Trial Court of Legazpi City, docketed as Criminal Case No.
7474 which reads as follows:
That sometime in the month of October, 1996, in the City of Legazpi,
Philippines, and within the jurisdiction of this Honorable Court, the above
named-accused, conspiring and confederating with each other, with intent
to defraud by means of false pretenses or fraudulent acts executed
simultaneously with the commission of the fraud, did then and there
wilfully, unlawfully and feloniously, on the part of accused NENA JAUCIAN
TIMARIO, drew and issue[d] PRUDENTIAL BANK, LEGASPI CITY BRANCH
CHECK NO. 067481, dated October 15, 1996, in the amount of P214,000.00
in favor of J.Y. BROTHERS MARKETING CORPORATION, represented by its
Branch Manager, JERSON O. YAO, and accused ANAMER D. SALAZAR
endorsed and negotiated said check as payment of 300 cavans of rice
obtained from J.Y. BROTHERS MARKETING CORPORATION, knowing fully
well that at that time said check was issued and endorsed, Nena Jaucian
Timario did not have sufficient funds in or credit with the drawee bank to
cover the amount called for therein and without informing the payee of
such circumstance; that when said check was presented to the drawee
bank for payment, the same was consequently dishonored and refused
payment for the reason of “ACCOUNT CLOSED”; that despite demands,
accused failed and refused and still fail and refuse to pay and/or make
arrangement for the payment of the said check, to the damage and
prejudice of said J.Y. BROTHERS MARKETING CORPORATION.
CONTRARY TO LAW.[4]
Upon arraignment, the petitioner, assisted by counsel, entered a plea
of not guilty. Trial thereafter ensued.
The Evidence of the Prosecution
On October 15, 1996, petitioner Anamer Salazar purchased
300 cavans of rice from J.Y. Brothers Marketing Corporation, through Mr.
Jerson Yao. As payment for these cavans of rice, the petitioner gave the
private complainant Check No. 067481 drawn against the Prudential Bank,
Legazpi City Branch, dated October 15, 1996, by one Nena Jaucian Timario
in the amount of P214,000. Jerson Yao accepted the check upon the
petitioner’s assurance that it was a good check. The cavans of rice were
picked up the next day by the petitioner. Upon presentment, the check
was dishonored because it was drawn under a closed account (“Account
Closed”). The petitioner was informed of such dishonor. She replaced the
Prudential Bank check with Check No. 365704 drawn against the Solid
Bank, Legazpi Branch, which, however, was returned with the word
“DAUD” (Drawn Against Uncollected Deposit).
After the prosecution rested its case, the petitioner filed a Demurrer
to Evidence with Leave of Court[5] alleging that she could not be guilty of
the crime as charged for the following reasons: (a) she was merely an
indorser of the check issued by Nena Timario, and Article 315, paragraph
2(d) on estafa penalizes only the issuer of the check and not the indorser
thereof; (b) there is no sufficient evidence to prove that the petitioner
conspired with the issuer of the check, Nena Jaucian Timario, in order to
defraud the private complainant; (c) after the first check was dishonored,
the petitioner replaced it with a second one. The first transaction had
therefore been effectively novated by the issuance of the second
check. Unfortunately, her personal check was dishonored not for
insufficiency of funds, but for “DAUD,” which in banking parlance means
“drawn against uncollected deposit.” According to the petitioner, this
means that the account had sufficient funds but was still restricted
because the deposit, usually a check, had not yet been cleared.
The prosecution filed its comment/opposition to the petitioner’s
demurrer to evidence.
On November 19, 2001, the trial court rendered judgment acquitting
the petitioner of the crime charged but ordering her to remit to the private
complainant the amount of the check as payment for her purchase. The
trial court ruled that the evidence for the prosecution did not establish the
existence of conspiracy beyond reasonable doubt between the petitioner
and the issuer of the check, her co-accused Nena Jaucian Timario, for the
purpose of defrauding the private complainant. In fact, the private
complainant, Jerson Yao, admitted that he had never met Nena Jaucian
Timario who remained at large. As a mere indorser of the check, the
petitioner’s breach of the warranty that the check was a good one is not
synonymous with the fraudulent act of falsely pretending to possess credit
under Article 315(2)(d). The decretal portion of the trial court’s judgment
reads as follows:
WHEREFORE, premises considered, the accused Anamer D. Salazar is
hereby ACQUITTED of the crime charged but is hereby held liable for the
value of the 300 bags of rice. Accused Anamer D. Salazar is therefore
ordered to pay J.Y. Brothers Marketing Corporation the sum
of P214,000.00. Costs against the accused.[6]
Within the reglementary period therefor, the petitioner filed a
motion for reconsideration on the civil aspect of the decision with a plea
that he be allowed to present evidence pursuant to Rule 33 of the Rules of
Court. On January 14, 2002, the court issued an order denying the motion.
In her petition at bar, the petitioner assails the orders of the trial
court claiming that after her demurrer to evidence was granted by the trial
court, she was denied due process as she was not given the opportunity to
adduce evidence to prove that she was not civilly liable to the private
respondent. The petitioner invokes the applicability of Rule 33 of the Rules
of Civil Procedure in this case, contending that before being adjudged
liable to the private offended party, she should have been first accorded
the procedural relief granted in Rule 33.
The Petition Is Meritorious
According to Section 1, Rule 111 of the Revised Rules of Criminal
Procedure –
SECTION 1. Institution of criminal and civil actions. – (a) When a criminal
action is instituted, the civil action for the recovery of civil liability arising
from the offense charged shall be deemed instituted with the criminal
action unless the offended party waives the civil action, reserves the right
to institute it separately or institutes the civil action prior to the criminal
action.
The reservation of the right to institute separately the civil action shall be
made before the prosecution starts presenting its evidence and under
circumstances affording the offended party a reasonable opportunity to
make such reservation.
When the offended party seeks to enforce civil liability against the accused
by way of moral, nominal, temperate, or exemplary damages without
specifying the amount thereof in the complaint or information, the filing
fees therefor shall constitute a first lien on the judgment awarding such
damages.
Where the amount of damages, other than actual, is specified in the
complaint or information, the corresponding filing fees shall be paid by the
offended party upon the filing thereof in court.
Except as otherwise provided in these Rules, no filing fees shall be required
for actual damages.
No counterclaim, cross-claim or third-party complaint may be filed by the
accused in the criminal case, but any cause of action which could have
been the subject thereof may be litigated in a separate civil action.
(b) The criminal action for violation of Batas Pambansa Blg. 22 shall be
deemed to include the corresponding civil action. No reservation to file
such civil action separately shall be allowed.
Upon filing of the aforesaid joint criminal and civil actions, the offended
party shall pay in full the filing fees based on the amount of the check
involved, which shall be considered as the actual damages claimed. Where
the complaint or information also seeks to recover liquidated, moral,
nominal, temperate or exemplary damages, the offended party shall pay
additional filing fees based on the amounts alleged therein. If the amounts
are not so alleged but any of these damages are subsequently awarded by
the court, the filing fees based on the amount awarded shall constitute a
first lien on the judgment.
Where the civil action has been filed separately and trial thereof has not
yet commenced, it may be consolidated with the criminal action upon
application with the court trying the latter case. If the application is
granted, the trial of both actions shall proceed in accordance with section
2 of this Rule governing consolidation of the civil and criminal actions.
The last paragraph of Section 2 of the said rule provides that the extinction
of the penal action does not carry with it the extinction of the civil
action. Moreover, the civil action based on delict shall be deemed
extinguished if there is a finding in a final judgment in the criminal action
that the act or omission from which the civil liability may arise did not
exist.[7]
 The criminal action has a dual purpose, namely, the punishment of
the offender and indemnity to the offended party. The dominant and
primordial objective of the criminal action is the punishment of the
offender. The civil action is merely incidental to and consequent to the
conviction of the accused. The reason for this is that criminal actions are
primarily intended to vindicate an outrage against the sovereignty of the
state and to impose the appropriate penalty for the vindication of the
disturbance to the social order caused by the offender. On the other hand,
the action between the private complainant and the accused is intended
solely to indemnify the former.[8]
Unless the offended party waives the civil action or reserves the right
to institute it separately or institutes the civil action prior to the criminal
action, there are two actions involved in a criminal case. The first is the
criminal action for the punishment of the offender. The parties are the
People of thePhilippines as the plaintiff and the accused. In a criminal
action, the private complainant is merely a witness for the State on the
criminal aspect of the action. The second is the civil action arising from the
delict. The private complainant is the plaintiff and the accused is the
defendant. There is a merger of the trial of the two cases to avoid
multiplicity of suits.
The quantum of evidence on the criminal aspect of the case is proof
beyond reasonable doubt, while in the civil aspect of the action, the
quantum of evidence is preponderance of evidence. [9] Under Section 3,
Rule 1 of the 1997 Rules of Criminal Procedure, the said rules shall govern
the procedure to be observed in action, civil or criminal.
The prosecution presents its evidence not only to prove the guilt of
the accused beyond reasonable doubt but also to prove the civil liability of
the accused to the offended party. After the prosecution has rested its
case, the accused shall adduce its evidence not only on the criminal but
also on the civil aspect of the case. At the conclusion of the trial, the court
should render judgment not only on the criminal aspect of the case but
also on the civil aspect thereof:
SEC. 2. Contents of the judgment. – If the judgment is of conviction, it shall
state (1) the legal qualification of the offense constituted by the acts
committed by the accused and the aggravating or mitigating circumstances
which attended its commission; (2) the participation of the accused in the
offense, whether as principal, accomplice, or accessory after the fact; (3)
the penalty imposed upon the accused; and (4) the civil liability or
damages caused by his wrongful act or omission to be recovered from the
accused by the offended party, if there is any, unless the enforcement of
the civil liability by a separate civil action has been reserved or waived.
In case the judgment is of acquittal, it shall state whether the evidence of
the prosecution absolutely failed to prove the guilt of the accused or
merely failed to prove his guilt beyond reasonable doubt. In either case,
the judgment shall determine if the act or omission from which the civil
liability might arise did not exist.[10]
The acquittal of the accused does not prevent a judgment against him
on the civil aspect of the case where (a) the acquittal is based on
reasonable doubt as only preponderance of evidence is required; (b)
where the court declared that the liability of the accused is only civil; (c)
where the civil liability of the accused does not arise from or is not based
upon the crime of which the accused was acquitted. Moreover, the civil
action based on the delict is extinguished if there is a finding in the final
judgment in the criminal action that the act or omission from which the
civil liability may arise did not exist or where the accused did not commit
the acts or omission imputed to him.
If the accused is acquitted on reasonable doubt but the court renders
judgment on the civil aspect of the criminal case, the prosecution cannot
appeal from the judgment of acquittal as it would place the accused in
double jeopardy. However, the aggrieved party, the offended party or the
accused or both may appeal from the judgment on the civil aspect of the
case within the period therefor.
After the prosecution has rested its case, the accused has the option
either to (a) file a demurrer to evidence with or without leave of court
under Section 23, Rule 119 of the Revised Rules of Criminal Procedure, or
to (b) adduce his evidence unless he waives the same. The aforecited rule
reads:
Sec. 23. Demurrer to evidence. – After the prosecution rests its case, the
court may dismiss the action on the ground of insufficiency of evidence (1)
on its own initiative after giving the prosecution the opportunity to be
heard or (2) upon demurrer to evidence filed by the accused with or
without leave of court.
If the court denies the demurrer to evidence filed with leave of court, the
accused may adduce evidence in his defense. When the demurrer to
evidence is filed without leave of court, the accused waives his right to
present evidence and submits the case for judgment on the basis of the
evidence for the prosecution.
The motion for leave of court to file demurrer to evidence shall specifically
state its grounds and shall be filed within a non-extendible period of five
(5) days after the prosecution rests its case. The prosecution may oppose
the motion within a non-extendible period of five (5) days from its receipt.
If leave of court is granted, the accused shall file the demurrer to evidence
within a non-extendible period of ten (10) days from notice. The
prosecution may oppose the demurrer to evidence within a similar period
from its receipt.
The order denying the motion for leave of court to file demurrer to
evidence or the demurrer itself shall not be reviewable by appeal or by
certiorari before the judgment.
In criminal cases, the demurrer to evidence partakes of the nature of
a motion to dismiss the case for failure of the prosecution to prove his guilt
beyond reasonable doubt. In a case where the accused files a demurrer to
evidence without leave of court, he thereby waives his right to present
evidence and submits the case for decision on the basis of the evidence of
the prosecution. On the other hand, if the accused is granted leave to file
a demurrer to evidence, he has the right to adduce evidence not only on
the criminal aspect but also on the civil aspect of the case if his demurrer is
denied by the court.
If demurrer is granted and the accused is acquitted by the court, the
accused has the right to adduce evidence on the civil aspect of the case
unless the court also declares that the act or omission from which the civil
liability may arise did not exist. If the trial court issues an order or renders
judgment not only granting the demurrer to evidence of the accused and
acquitting him but also on the civil liability of the accused to the private
offended party, said judgment on the civil aspect of the case would be a
nullity for the reason that the constitutional right of the accused to due
process is thereby violated. As we held in Alonte v. Savellano, Jr.:[11]
Section 14, paragraphs (1) and (2), of Article III, of the Constitution
provides the fundamentals.
“(1) No person shall be held to answer for a criminal offense without
due process of law.
“(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.”
Jurisprudence acknowledges that due process in criminal proceedings, in
particular, require (a) that the court or tribunal trying the case is properly
clothed with judicial power to hear and determine the matter before it; (b)
that jurisdiction is lawfully acquired by it over the person of the accused;
(c) that the accused is given an opportunity to be heard; and (d) that
judgment is rendered only upon lawful hearing.
The above constitutional and jurisprudentially postulates, by now
elementary and deeply imbedded in our own criminal justice system, are
mandatory and indispensable. The principles find universal acceptance
and are tersely expressed in the oft-quoted statement that procedural due
process cannot possibly be met without a “law which hears before it
condemns, which proceeds upon inquiry and renders judgment only after
trial.”[12]
This is so because when the accused files a demurrer to evidence, the
accused has not yet adduced evidence both on the criminal and civil
aspects of the case. The only evidence on record is the evidence for the
prosecution. What the trial court should do is to issue an order or partial
judgment granting the demurrer to evidence and acquitting the accused;
and set the case for continuation of trial for the petitioner to adduce
evidence on the civil aspect of the case, and for the private complainant to
adduce evidence by way of rebuttal after which the parties may adduce
their sur-rebuttal evidence as provided for in Section 11, Rule 119 of the
Revised Rules of Criminal Procedure:
Sec. 11. Order of trial. – The trial shall proceed in the following order:
(a) The prosecution shall present evidence to prove the charge and, in
the proper case, the civil liability.
(b) The accused may present evidence to prove his defense and
damages, if any, arising from the issuance of a provisional remedy in the
case.
(c) The prosecution and the defense may, in that order, present rebuttal
and sur-rebuttal evidence unless the court, in furtherance of justice,
permits them to present additional evidence bearing upon the main issue.
(d) Upon admission of the evidence of the parties, the case shall be
deemed submitted for decision unless the court directs them to argue
orally or to submit written memoranda.
(e) When the accused admits the act or omission charged in the
complaint or information but interposes a lawful defense, the order of trial
may be modified.
Thereafter, the court shall render judgment on the civil aspect of the
case on the basis of the evidence of the prosecution and the accused.
In this case, the petitioner was charged with estafa under Article 315,
paragraph 2(d) of the Revised Penal Code. The civil action arising from the
delict was impliedly instituted since there was no waiver by the private
offended party of the civil liability nor a reservation of the civil
action. Neither did he file a civil action before the institution of the
criminal action.
The petitioner was granted leave of court to file a demurrer to
evidence. The court issued an order granting the demurrer on its finding
that the liability of the petitioner was not criminal but only civil. However,
the court rendered judgment on the civil aspect of the case and ordered
the petitioner to pay for her purchases from the private complainant even
before the petitioner could adduce evidence thereon. Patently, therefore,
the petitioner was denied her right to due process.
IN LIGHT OF ALL THE FOREGOING, the Petition is GRANTED. The
Orders dated November 19, 2001 and January 14, 2002 are SET ASIDE AND
NULLIFIED. The Regional Trial Court of Legazpi City, Branch 5, is hereby
DIRECTED to set Criminal Case No. 7474 for the continuation of trial for the
reception of the evidence-in-chief of the petitioner on the civil aspect of
the case and for the rebuttal evidence of the private complainant and the
sur-rebuttal evidence of the parties if they opt to adduce any.
SO ORDERED.
CONCEPCION CUENCO VDA. DE MANGUERRA and THE G.R. No. 152643
HON. RAMON C. CODILLA, JR., Presiding Judge of
theRegional Trial Court of Cebu City, Branch 19, Present:
Petitioners,
YNARES-SANTIAGO, J.,
- versus - Chairperson,
AUSTRIA-MARTINEZ,
CHICO-NAZARIO,
RAUL RISOS, SUSANA YONGCO, LEAH ABARQUEZ and ATTY. NACHURA, and
GAMALIEL D.B. BONJE, REYES, JJ.
Respondents.
Promulgated:
August 28, 2008
x------------------------------------------------------------------------------------x
DECISION
NACHURA, J.:
This is a petition for review on certiorari under Rule 45 of the
Rules of Court, assailing the Court of Appeals (CA) Decision[1] datedAugust
15, 2001 and its Resolution[2] dated March 12, 2002. The CA decision set
aside the Regional Trial Court (RTC) Orders datedAugust 25,
2000[3] granting Concepcion Cuenco Vda. de Manguerra’s (Concepcion’s)
motion to take deposition, and dated November 3, 2000[4] denying the
motion for reconsideration of respondents Raul G. Risos, Susana Yongco,
Leah Abarquez, and Atty. Gamaliel D.B. Bonje.
The facts of the case, as culled from the records, follow:
On November 4, 1999, respondents were charged with Estafa
Through Falsification of Public Document before the RTC of Cebu City,
Branch 19, through a criminal information dated October 27, 1999, which
was subsequently amended on November 18, 1999. The case, docketed as
Criminal Case No. CBU-52248,[5] arose from the falsification of a deed of
real estate mortgage allegedly committed by respondents where they
made it appear that Concepcion, the owner of the mortgaged property
known as the Gorordo property, affixed her signature to the
document. Hence, the criminal case.[6]

Earlier, on September 10, 1999, Concepcion, who was a resident

of Cebu City, while on vacation in Manila, was unexpectedly confined at
the Makati Medical Center due to upper gastro-intestinal bleeding; and
was advised to stay in Manila for further treatment.[7]

On November 24, 1999, respondents filed a Motion for

Suspension of the Proceedings in Criminal Case No. CBU-52248 on the
ground of prejudicial question. They argued that Civil Case No. CEB-20359,
which was an action for declaration of nullity of the mortgage, should first
be resolved.[8] On May 11, 2000, the RTC granted the aforesaid
motion. Concepcion’s motion for reconsideration was denied on June 5,
2000.[9]

This prompted Concepcion to institute a special civil action

for certiorari before the CA seeking the nullification of the May 11 and
June 5 RTC orders. The case was docketed as CA-G.R. SP No. 60266 and
remains pending before the appellate court to date.[10]

On August 16, 2000, the counsel of Concepcion filed a motion to

take the latter’s deposition.[11] He explained the need to
perpetuateConcepcion’s testimony due to her weak physical condition and
old age, which limited her freedom of mobility.

On August 25, 2000, the RTC granted the motion and directed
that Concepcion’s deposition be taken before the Clerk of Court of Makati
City.[12] The respondents’ motion for reconsideration was denied by the
trial court on November 3, 2000. The court ratiocinated that procedural
technicalities should be brushed aside because of the urgency of the
situation, since Concepcion was already of advanced age.[13] After several
motions for change of venue of the deposition-taking, Concepcion’s
deposition was finally taken on March 9, 2001 at her residence.[14]

Aggrieved, respondents assailed the August 25 and November 3

RTC orders in a special civil action for certiorari before the CA in CA-G.R. SP
No. 62551.[15]
 On August 15, 2001, the CA rendered a Decision[16] favorable to
the respondents, the dispositive portion of which reads:
WHEREFORE, the petition is GRANTED and
the August 25, 2000 and November 3, 2000 orders of the
court a quo are hereby SET ASIDE, and any deposition
that may have been taken on the authority of such void
orders is similarly declared void.
SO ORDERED.[17]
At the outset, the CA observed that there was a defect in the
respondents’ petition by not impleading the People of the Philippines, an
indispensable party. This notwithstanding, the appellate court resolved
the matter on its merit, declaring that the examination of prosecution
witnesses, as in the present case, is governed by Section 15, Rule 119 of
the Revised Rules of Criminal Procedure and not Rule 23 of the Rules of
Court. The latter provision, said the appellate court, only applies to civil
cases. Pursuant to the specific provision of Section 15, Rule
119, Concepcion’s deposition should have been taken before the judge or
the court where the case is pending, which is the RTC of Cebu, and not
before the Clerk of Court of Makati City; and thus, in issuing the assailed
order, the RTC clearly committed grave abuse of discretion. [18]
In its Resolution dated March 12, 2002 denying petitioner’s motion
for reconsideration, the CA added that the rationale of the Rules in
requiring the taking of deposition before the same court is the
constitutional right of the accused to meet the witnesses face to face. The
appellate court likewise concluded that Rule 23 could not be applied
suppletorily because the situation was adequately addressed by a specific
provision of the rules of criminal procedure.[19]
Hence, the instant petition raising the following issues:
I.
WHETHER OR NOT RULE 23 OF THE 1997 RULES OF CIVIL
PROCEDURE APPLIES TO THE DEPOSITION OF
PETITIONER.
II.
WHETHER OR NOT FAILURE TO IMPLEAD THE “PEOPLE
OF THE PHILIPPINES” IN A PETITION FOR CERTIORARI
ARISING FROM A CRIMINAL CASE A QUO CONSTITUTES A
WAIVABLE DEFECT IN THE PETITION FOR CERTIORARI.[20]
It is undisputed that in their petition for certiorari before the CA,
respondents failed to implead the People of the Philippines as a party
thereto. Because of this, the petition was obviously defective. As provided
in Section 5, Rule 110 of the Revised Rules of Criminal Procedure, all
criminal actions are prosecuted under the direction and control of the
public prosecutor. Therefore, it behooved the petitioners (respondents
herein) to implead the People of the Philippines as respondent in the CA
case to enable the Solicitor General to comment on the petition. [21]
However, this Court has repeatedly declared that the failure to
implead an indispensable party is not a ground for the dismissal of an
action. In such a case, the remedy is to implead the non-party claimed to
be indispensable. Parties may be added by order of the court, on motion
of the party or on its own initiative at any stage of the action and/or such
times as are just. If the petitioner/plaintiff refuses to implead an
indispensable party despite the order of the court, the latter may dismiss
the complaint/petition for the petitioner’s/plaintiff’s failure to
comply.[22]
In this case, the CA disregarded the procedural flaw by allowing the
petition to proceed, in the interest of substantial justice. Also noteworthy
is that, notwithstanding the non-joinder of the People of the Philippines as
party-respondent, it managed, through the Office of the Solicitor General,
to file its Comment on the petition for certiorari. Thus, the People was
given the opportunity to refute the respondents’ arguments.
Instructive is the Court’s pronouncement in Commissioner Domingo
v. Scheer[23] in this wise:
There is nothing sacred about processes or
pleadings, their forms or contents. Their sole purpose is
to facilitate the application of justice to the rival claims of
contending parties. They were created, not to hinder
and delay, but to facilitate and promote, the
administration of justice. They do not constitute the
thing itself, which courts are always striving to secure to
litigants. They are designed as the means best adapted
 to obtain that thing. In other words, they are a means to
an end. When they lose the character of the one and
become the other, the administration of justice is at fault
and courts are correspondingly remiss in the
performance of their obvious duty.[24]
Accordingly, the CA cannot be faulted for deciding the case on the merits
despite the procedural defect.
On the more important issue of whether Rule 23 of the Rules of
Court applies to the instant case, we rule in the negative.
It is basic that all witnesses shall give their testimonies at the trial of
the case in the presence of the judge.[25] This is especially true in criminal
cases in order that the accused may be afforded the opportunity to cross-
examine the witnesses pursuant to his constitutional right to confront the
witnesses face to face.[26] It also gives the parties and their counsel the
chance to propound such questions as they deem material and necessary
to support their position or to test the credibility of said
witnesses.[27] Lastly, this rule enables the judge to observe the witnesses’
demeanor.[28]
This rule, however, is not absolute. As exceptions, Rules 23 to 28 of
the Rules of Court provide for the different modes of discovery that may
be resorted to by a party to an action. These rules are adopted either to
perpetuate the testimonies of witnesses or as modes of discovery. In
criminal proceedings, Sections 12,[29] 13[30] and 15,[31] Rule 119 of the
Revised Rules of Criminal Procedure, which took effect on December 1,
2000, allow the conditional examination of both the defense and
prosecution witnesses.
In the case at bench, in issue is the examination of a prosecution
witness, who, according to the petitioners, was too sick to travel and
appear before the trial court. Section 15 of Rule 119 thus comes into play,
and it provides:
Section 15. Examination of witness for the
prosecution. – When it satisfactorily appears that a
witness for the prosecution is too sick or infirm to appear
at the trial as directed by the court, or has to leave
the Philippines with no definite date of returning, he may
forthwith be conditionally examined before the court
where the case is pending. Such examination, in the
presence of the accused, or in his absence after
reasonable notice to attend the examination has been
served on him, shall be conducted in the same manner as
an examination at the trial. Failure or refusal of the
accused to attend the examination after notice shall be
considered a waiver. The statement taken may be
admitted in behalf of or against the accused.
Petitioners contend that Concepcion’s advanced age and health
condition exempt her from the application of Section 15, Rule 119 of the
Rules of Criminal Procedure, and thus, calls for the application of Rule 23
of the Rules of Civil Procedure.
The contention does not persuade.
The very reason offered by the petitioners to
exempt Concepcion from the coverage of Rule 119 is at once the ground
which places her squarely within the coverage of the same provision. Rule
119 specifically states that a witness may be conditionally examined: 1) if
the witness is too sick or infirm to appear at the trial; or 2) if the witness
has to leave the Philippines with no definite date of returning. Thus,
whenConcepcion moved that her deposition be taken, had she not been
too sick at that time, her motion would have been denied. Instead of
conditionally examining her outside the trial court, she would have been
compelled to appear before the court for examination during the trial
proper.
Undoubtedly, the procedure set forth in Rule 119 applies to the case
at bar. It is thus required that the conditional examination be madebefore
the court where the case is pending. It is also necessary that the accused
be notified, so that he can attend the examination, subject to his right to
waive the same after reasonable notice. As to the manner of examination,
the Rules mandate that it be conducted in the same manner as an
examination during trial, that is, through question and answer.
At this point, a query may thus be posed: in granting Concepcion’s
motion and in actually taking her deposition, were the above rules
complied with? The CA answered in the negative. The appellate court
considered the taking of deposition before the Clerk of Court of Makati
City erroneous and contrary to the clear mandate of the Rules that the
same be made before the court where the case is pending. Accordingly,
said the CA, the RTC order was issued with grave abuse of discretion.
We agree with the CA and quote with approval its ratiocination in
this wise:
Unlike an examination of a defense witness which,
pursuant to Section 5, Rule 119 of the previous Rules,
and now Section 13, Rule 119 of the present Revised
Rules of Criminal Procedure, may be taken before any
“judge, or, if not practicable, a member of the Bar in
good standing so designated by the judge in the order,
or, if the order be made by a court of superior
jurisdiction, before an inferior court to be designated
therein,” the examination of a witness for the
prosecution under Section 15 of the Revised Rules of
Criminal Procedure (December 1, 2000) may be done
only “before the court where the case is pending.”[32]
Rule 119 categorically states that the conditional examination of a
prosecution witness shall be made before the court where the case is
pending. Contrary to petitioners’ contention, there is nothing in the rule
which may remotely be interpreted to mean that such requirement applies
only to cases where the witness is within the jurisdiction of said court and
not when he is kilometers away, as in the present case. Therefore, the
court may not introduce exceptions or conditions. Neither may it engraft
into the law (or the Rules) qualifications not contemplated. [33] When the
words are clear and categorical, there is no room for interpretation. There
is only room for application.[34]
Petitioners further insist that Rule 23 applies to the instant case,
because the rules on civil procedure apply suppletorily to criminal cases.
It is true that Section 3, Rule 1 of the Rules of Court provides that the
rules of civil procedure apply to all actions, civil or criminal, and special
proceedings. In effect, it says that the rules of civil procedure have
suppletory application to criminal cases. However, it is likewise true that
the criminal proceedings are primarily governed by the Revised Rules of
Criminal Procedure. Considering that Rule 119 adequately and squarely
covers the situation in the instant case, we find no cogent reason to apply
Rule 23 suppletorily or otherwise.
To reiterate, the conditional examination of a prosecution witness for
the purpose of taking his deposition should be made before the court, or
at least before the judge, where the case is pending. Such is the clear
mandate of Section 15, Rule 119 of the Rules. We find no necessity to
depart from, or to relax, this rule. As correctly held by the CA, if the
deposition is made elsewhere, the accused may not be able to attend, as
when he is under detention. More importantly, this requirement ensures
that the judge would be able to observe the witness’ deportment to
enable him to properly assess his credibility. This is especially true when
the witness’ testimony is crucial to the prosecution’s case.
While we recognize the prosecution’s right to preserve its witness’
testimony to prove its case, we cannot disregard rules which are designed
mainly for the protection of the accused’s constitutional rights. The giving
of testimony during trial is the general rule. The conditional examination
of a witness outside of the trial is only an exception, and as such, calls for a
strict construction of the rules.
WHEREFORE, the petition is hereby DENIED. The Court of Appeals
Decision and Resolution dated August 25, 2000 and March 12, 2002,
respectively, in CA-G.R. SP No. 62551, are AFFIRMED.
SO ORDERED.
R. No. 143093 May 21, 2007
RIMBERTO T. SALVANERA, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES and LUCITA PARANE, Respondents.
DECISION
PUNO, C.J.:
On appeal are the Decision dated April 30, 1999 and the two Resolutions of
the Court of Appeals, dated September 22, 1999 and May 11, 2000, in CA-
G.R. SP No. 46945. The Court of Appeals discharged accused Feliciano
Abutin and Domingo Tampelix from the Information in Criminal Case No.
TM-1730 for Murder, pending before the Regional Trial Court of Trece
Martires City, to become state witnesses. The appellate court likewise
cancelled the bail bond of petitioner Rimberto Salvanera.
First, the facts:
In an Information1 dated November 30, 1996, petitioner Rimberto
Salvanera, together with Feliciano Abutin, Edgardo Lungcay and Domingo
Tampelix, is charged with the murder of Ruben Parane, committed as
follows:
That on or about October 23, 1995, in the Municipality of Gen. Trias,
Province of Cavite, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, conspiring, confederating and mutually
helping each other, with treachery and evident premeditation, then armed
with a firearm, did, then and there, wilfully, unlawfully and feloniously
assault, attack and shoot one RUBEN PARANE Y MAGSAMBOL, inflicting
gunshot wound on his body, resulting to his instantaneous death, to the
damage and prejudice of the heirs of the said victim.
CONTRARY TO LAW.
As per theory of the prosecution, petitioner was the alleged mastermind;
Lungcay, the hired hitman; Abutin, the driver of the motorcycle which
carried Lungcay to the place of the commission of the crime; while
Tampelix delivered the blood money to the latter. All the accused have
been arrested and detained, except Edgardo Lungcay who remained at-
large.
Respondent Lucita Parane is the spouse of victim Ruben Parane.
On January 22, 1997, petitioner applied for bail. The prosecution, on
March 4, 1997, moved for the discharge of accused Feliciano Abutin and
Domingo Tampelix, to serve as state witnesses.
In an Omnibus Order2 dated September 5, 1997, the trial court granted
petitioner’s application for bail and denied the prosecution’s motion for
the discharge of accused Abutin and Tampelix. The prosecution moved for
reconsideration but the motion was denied.
The prosecution then appealed to the Court of Appeals. It contended that
the trial court committed grave abuse of discretion when it denied the
motion to discharge accused Abutin and Tampelix to be state witnesses. It
alleged that the testimonies of the two accused are absolutely necessary
to establish that petitioner masterminded the murder of Ruben Parane.
The prosecution likewise claimed that it was premature and baseless for
the trial court to grant petitioner’s application for bail because the
prosecution had not yet rested its case in the hearing for the discharge of
the two accused.
The Court of Appeals sustained the prosecution. It discharged accused
Feliciano Abutin and Domingo Tampelix from the Information to become
state witnesses, and cancelled the bail bond of petitioner Salvanera. In its
Resolution dated September 22, 1999, it denied petitioner's Motion for
Reconsideration. Petitioner then filed his Motion for Clarification with
Leave of Court. The same was also denied in a Resolution dated May 11,
2000.
Hence, this appeal.
Petitioner enumerates the grounds for his appeal, as follows:
I. RESPONDENT COURT OF APPEALS COMMITTED SERIOUS ERROR
IN RENDERING THE FIRST, SECOND AND THIRD ASSAILED ORDERS
DEFYING LAW AND JURISPRUDENCE THEREON WHEN IT RULED
THAT THE "SUBSTANTIAL CORROBORATION" REQUIREMENT
UNDER SECTION 9, RULE 119 OF THE REVISED RULES OF COURT
WAS SATISFIED BY THE PROSECUTION DESPITE THE FACT THAT -
A. THE "SUBSTANTIAL CORROBORATION" REQUIREMENT
MUST BE SATISFIED THROUGH THE TESTIMONY OF THE
OTHER PROSECUTION WITNESSES WHO ARE NOT
AN (sic) ACCUSED SOUGHT TO BE DISCHARGED AS STATE
WITNESS, NOT BY ANOTHER ACCUSED LIKEWISE SOUGHT
TO BE DISCHARGED.
B. THE SWORN STATEMENT OF AN ACCUSED SOUGHT TO
BE DISCHARGED CANNOT BE USED AS EVIDENCE FOR
PURPOSES OTHER THAN HIS OWN DISCHARGE PRIOR TO
THE ISSUANCE BY A COMPETENT COURT OF THE ORDER
OF HIS DISCHARGE.
C. THE TESTIMONIES OF ABUTIN AND TAMPELIX CANNOT
BE SUBSTANTIALLY CORROBORATED IN ITS MATERIAL
POINTS BY THE OTHER PROSECUTION WITNESSES.
 D. THE TESTIMONY GIVEN BY AN ACCUSED SOUGHT TO
BE DISCHARGED AS STATE WITNESS CANNOT BE USED TO
CORROBORATE THE TESTIMONY GIVEN BY ANOTHER
ACCUSED LIKEWISE SOUGHT TO BE DISCHARGED AS
STATE WITNESS.
II. RESPONDENT COURT OF APPEALS COMMITTED SERIOUS ERROR
IN RENDERING THE FIRST, SECOND AND THIRD ASSAILED ORDERS,
DEFYING LAW AND JURISPRUDENCE ON THE MATTER, WHEN IT
CANCELLED PETITIONER'S BAIL BOND DESPITE THE FACT THAT
THE TRIAL COURT JUDGE ALREADY RULED THAT THE EVIDENCE OF
HIS GUILT IS NOT STRONG.3
We uphold the ruling of the Court of Appeals.
In the discharge of an accused in order that he may be a state witness, the
following conditions must be present, namely:
(1) Two or more accused are jointly charged with the commission
of an offense;
(2) The motion for discharge is filed by the prosecution before it
rests its case;
(3) The prosecution is required to present evidence and the sworn
statement of each proposed state witness at a hearing in support
of the discharge;
(4) The accused gives his consent to be a state witness; and
(5) The trial court is satisfied that:
a) There is absolute necessity for the testimony of the
accused whose discharge is requested;
b) There is no other direct evidence available for the
proper prosecution of the offense committed, except the
testimony of said accused;
c) The testimony of said accused can be substantially
corroborated in its material points;
d) Said accused does not appear to be the most guilty;
and,
e) Said accused has not at any time been convicted of
any offense involving moral turpitude.4
According to petitioner, the testimony of an accused sought to be
discharged to become a state witness must be substantially corroborated,
not by a co-accused likewise sought to be discharged, but by other
prosecution witnesses who are not the accused in the same criminal case.
Petitioner justifies this theory on the general principles of justice and
sound logic. He contends that it is a notorious fact in human nature that a
culprit, confessing a crime, is likely to put the blame on others, if by doing
so, he will be freed from any criminal responsibility. Thus, in the instant
case, petitioner supposes that both Abutin and Tampelix will naturally
seize the opportunity to be absolved of any liability by putting the blame
on one of their co-accused. Petitioner argues that prosecution witnesses
Parane and Salazar, who are not accused, do not have personal knowledge
of the circumstances surrounding the alleged conspiracy. Thus, they could
not testify to corroborate the statement of Abutin and Tampelix that
petitioner is the mastermind or the principal by induction.
We agree with the Court of Appeals in dismissing this reasoning as
specious. To require the two witnesses Parane and Salazar to corroborate
the testimony of Abutin and Tampelix on the exact same points is to
render nugatory the other requisite that "there must be no other direct
evidence available for the proper prosecution of the offense committed,
except the testimony of the state witness."5 The corroborative evidence
required by the Rules does not have to consist of the very same evidence
as will be testified on by the proposed state witnesses. We have ruled that
"a conspiracy is more readily proved by the acts of a fellow criminal than
by any other method. If it is shown that the statements of the conspirator
are corroborated by other evidence, then we have convincing proof of
veracity. Even if the confirmatory testimony only applies to some
particulars, we can properly infer that the witness has told the truth in
other respects."6 It is enough that the testimony of a co-conspirator is
corroborated by some other witness or evidence. In the case at bar, we are
satisfied from a reading of the records that the testimonies of Abutin and
Tampelix are corroborated on important points by each other’s
testimonies and the circumstances disclosed through the testimonies of
the other prosecution witnesses, and "to such extent that their
trustworthiness becomes manifest."7
As part of the conspiracy, Abutin and Tampelix can testify on the criminal
plan of the conspirators. Where a crime is contrived in secret, the
discharge of one of the conspirators is essential because only they have
knowledge of the crime.8 The other prosecution witnesses are not
eyewitnesses to the crime, as, in fact, there is none. No one except the
conspirators knew and witnessed the murder. The testimonies of the
accused and proposed state witnesses Abutin and Tampelix can directly
link petitioner to the commission of the crime.
In Chua v. Court of Appeals,9 we ruled that the trial court has to rely on
the information offered by the public prosecutor as to who would best
qualify as a state witness. The prosecutor knows the evidence in his
possession and the witnesses he needs to establish his case. In Mapa v.
Sandiganbayan,10 we held:
Lastly, we affirm the ruling of the appellate court in cancelling the bail
bond of petitioner. The grant of petitioner’s application for bail is
premature. It has to await the testimony of state witnesses Abutin and
Tampelix. Their testimonies must be given their proper weight in
determining whether the petitioner is entitled to bail.
IN VIEW WHEREOF, the petition is DENIED and the Decision and
Resolutions of the Court of Appeals in CA-G.R. SP No. 46945, dated April
30, 1999, September 22, 1999 and May 11, 2000, respectively, are
AFFIRMED in toto.
SO ORDERED.
EN BANC

The decision to grant immunity from prosecution forms a constituent part PEOPLE OF THEPHILIPPINES, G.R. No. 171655
of the prosecution process. It is essentially a tactical decision to forego Appellee,
prosecution of a person for government to achieve a higher objective. It is Present:
a deliberate renunciation of the right of the State to prosecute all who
appear to be guilty of having committed a crime. Its justification lies in the PUNO, C.J.,
particular need of the State to obtain the conviction of the more guilty QUISUMBING,
criminals who, otherwise, will probably elude the long arm of the law. YNARES-SANTIAGO,
Whether or not the delicate power should be exercised, who should be - versus - CARPIO,
extended the privilege, the timing of its grant, are questions addressed CORONA,
solely to the sound judgment of the prosecution. The power to prosecute CARPIO MORALES,
includes the right to determine who shall be prosecuted and the corollary CHICO-NAZARIO,
right to decide whom not to prosecute. VELASCO, JR.,
NACHURA,
We further ruled: PABLO L. ESTACIO, JR. and MARITESS ANG, LEONARDO-DE CASTRO,
Appellants. BRION,
In reviewing the exercise of prosecutorial discretion in these areas, the PERALTA, and
jurisdiction of the respondent court is limited. For the business of a court BERSAMIN, JJ.
of justice is to be an impartial tribunal, and not to get involved with the
success or failure of the prosecution to prosecute. Every now and then, the Promulgated:
prosecution may err in the selection of its strategies, but such errors are July 22, 2009
not for neutral courts to rectify, any more than courts should correct the x------------------------------- ------------------ x
blunders of the defense. For fairness demands that courts keep the scales
of justice at equipoise between and among all litigants. Due process DECISION
demands that courts should strive to maintain the legal playing field
perfectly even and perpetually level. CARPIO MORALES, J.:
 Appellant Maritess Ang (Maritess) was charged before the
Regional Trial Court (RTC) of Quezon City with kidnapping for ransom,
allegedly committed as follows:

That on or about the 10th of October 1995, in

Quezon City, Philippines, the above-named accused
conspiring together, confederating with two (2) other
persons whose true names, identities and
whereabouts have not as yet been ascertained and
mutually helping one another did then and there,
willfully, unlawfully and
 feloniously kidnap one CHARLIE CHUA, a
businessman, from the Casa Leonisa Bar located at
Examiner Street, Quezon City and brought him to an
unknown place and detained him up to the present
for the purpose of extorting ransom money in the
amount of P15,000,000.00, Philippine Currency,
thereby depriving him of his liberty from October 10,
1995 up to the present, to the damage and prejudice
of said offended party.[1]
The Information was subsequently amended to implead the other
appellant, Pablo Estacio, Jr. (Estacio), and to change the charge from
kidnapping for ransom to kidnapping with murder. The accusatory portion
of the Amended Information reads:
The evidence for the prosecution presents the following version of
events:[5]
At around 10:00 in the evening of October 10, 1995, Maritess,
together with Estacio and Sumipo, arrived at Casa Leonisa, a bar-restaurant
at Examiner Street, Quezon City where the three of them would meet with
Charlie Mancilla Chua (the victim). Maritess had earlier told Sumipo that
she would settle her debt to the victim and then “deretsong dukot na
rin x x x kay Charlie [the victim].”[6] Sumipo assumed, however, that
Maritess was just joking.
After the victim arrived past midnight and talked to Maritess for a
short while, the group boarded his car, Maritess taking the seat beside the
victim who was driving, as Estacio and Sumipo took the backseat.

That on or about the 11th day of October, Not long after, Estacio pulled out a gun and ordered the victim to
1995, in Quezon City, Philippipnes, the above-named pull the car over. As the victim complied, Estacio, with a gun pointed at
accused, conspiring, confederating with another him, pulled him to the backseat as Maritess transferred to the backseat, sat
person whose true name and identity has not as yet beside the victim, tied the victim’s hands behind his back, and placed tape
been ascertained and mutually helping one another, on his mouth. Estacio then directed Sumipo to take over the wheels as he
did then and there, willfully, unlawfully and did.[7]
feloniously kidnap one CHARLIE MANCILLAN CHUA, a
businessman, with the use of motor vehicle from While Sumipo tried to dissuade appellants from pursuing their
Casa Leonisa Bar located at Examiner Street, Quezon plan, they replied that they would kill the victim so that he would not take
City and brought him to BRGY. STO. CRISTO, San Jose, revenge.[8] Thereupon, the victim told Maritess, “bakit mo nagawa sa akin
del Monte, Bulacan and thereafter with intent to kill,
qualified by evident premeditation, did, then and
there, willfully, unlawfully and feloniously repeatedly
stab said CHARLIE MANCILLAN CHUA on the different
parts of his body with the use of [a] fan knife, thereby
inflicting upon him serious and mortal wounds, which
were the direct and immediate cause of his death, to
the damage and prejudice of the heirs of said Charlie
Mancillan Chua.[2] (Underscoring in the original.)

Still later, the Information was further amended to additionally

implead one Hildo Sumipo (Sumipo)[3] who was, however, subsequently
discharged as state witness.[4]
ito sa kabila ng lahat?,” to which she replied, “Bayad na ako sa utang ko sa
iyo ngayon.”
On Estacio’s instruction, Sumipo drove towards San Jose del
Monte, Bulacan and on reaching a secluded place, Estacio ordered Sumipo
to stop the car as he did. Maritess and Estacio then brought the victim to a
grassy place. Estacio with bloodied hands later resurfaced.
The three then headed towards Malinta, Valenzuela, Bulacan. On
the way, Estacio and Maritess talked about how they killed the victim,
Estacio telling Maritess, “Honey, wala na tayong problema dahil siguradong
patay na si Charlie sa dami ng saksak na nakuha niya.”
On Estacio’s and Maritess’ directive, Sumipo stopped by a drug
store where Maritess bought alcohol to clean their hands. Along the way,
Maritess and Estacio threw out the victim’s attaché case. Maritess later
told Estacio “Honey, sana hindi muna natin pinatay si Charlie para
makahingi pa tayo ng pera sa mga magulang [niya].”
The three later abandoned the car in Malinta.
The following morning, Estacio went to the residence of Sumipo
where he called up by telephone the victim’s mother and demanded
aP15,000,000 ransom. The mother replied, however, that she could not
afford that amount.
In the afternoon of the same day, Maritess and Estacio went to
Sumipo’s residence again where Estacio again called up the victim’s mother,
this time lowering the ransom demand to P10,000,000 which she still found
to be too steep. Sumipo expressed his misgivings about future calls, as they
might get caught, but Estacio and Maritess assured him that that call would
be the last.
The group then went to Greenhills where Estacio still again called
up the victim’s mother, still lowering the ransom demand
toP5,000,000, P1,000,000 of which should be advanced. The victim’s
mother having agreed to the demand, Maritess and Estacio directed her to
place the money in a garbage can near Pizza Hut in Greenhills at 11:30 in
the evening. Estacio and Sumipo later proceeded to Pizza Hut, and as they
were seated there, a patrol car passed by, drawing them to leave and part
ways.
Sumipo soon learned that Maritess and Estacio sold Chua’s gun,
watch, and necklace from the proceeds of which he was given P7,000.
On May 16, 1996, Sumipo surrendered to the National Bureau of
Investigation. On May 23, 1996, Estacio surrendered to the police. The
police then informed the victim’s mother that Estacio had admitted having
killed her son, and that he offered to accompany them to the crime scene.
The police, accompanied by the victim’s mother and Estacio, went
to the crime scene and recovered the remains of the victim who was
identified by his mother by the clothes attached to his bones. The victim’s
dentist found his teeth to match his dental record.
Sumipo explained in an affidavit,[9] which he identified in open
[10]
court, that Maritess got angry with the victim after he lent money to her
husband, one Robert Ong,[11] enabling him to leave the country without her
knowledge, while Estacio was jealous of the victim with whom Maritess had
a relationship.[12]
In his affidavit[13] which he identified in open court, Estacio
claimed that a quarrel broke out in the car between the victim and Maritess
about a debt to the victim; that he tried to pacify the two, but the victim
got angry at him, prompting him to point a fan knife at his neck; and that he
then asked Sumipo to drive the car up to Barangay Sto. Cristo, San Jose del
Monte, Bulacan where he dragged the victim away from the car and
accidentally stabbed him.
When asked on cross-examination why the stabbing was
accidental, Estacio replied that he and Maritess originally planned to leave
the victim in Bulacan, but since there was talk of the victim getting back at
them, he “got confused and so it happened.”[14]
Maritess for her part denied[15] having conspired with Estacio. She
claimed that while on board the car, the victim took issue with her
“friendship” with Estacio, whom he insulted. Incensed, Estacio grabbed the
victim by the collar, prompting the victim to pull out a gun from under the
driver’s seat which he aimed at Estacio.
Continuing, Maritess claimed that she tried to pacify the quarreling
men; that the car stopped at San Jose del Monte and the three men
alighted; that Sumipo returned to the car and was later followed by Estacio
who said “Masama raw ang nangyari,”[16] he adding that he did not intend
to stab the victim.
 A. x x x Discharging Sumipo as State Witness and
Branch 219 of the Quezon City RTC found both Estacio and in Relying on His Testimony for the Conviction
Maritess guilty of “kidnapping on the occasion of which the victim was of Appellant Ang.[21]
killed,” disposing as follows: xxx
B. x x x Finding That There was Kidnapping with
WHEREFORE, finding accused Pablo Estacio, Murder and That Appellant Ang is Guilty
Jr. and Maritess Ang guilty beyond reasonable doubt Thereof.
of the crime of kidnapping on the occasion of which C. x x x Not Concluding that the Crime Committed
the victim was killed, the court hereby sentences was Plain Homicide, and That Accused Estacio
each of them to suffer the maximum penalty is Solely Responsible Therefor.[22](Emphasis and
of Death; to jointly and severally pay the heirs of underscoring in the original)
Charlie Chua the amount of P200,000.00, as actual
damages, and P1,000,000.00, as moral damages; and
to pay the costs.
By Decision[23] of May 12, 2005, the Court of Appeals affirmed,
[17]
SO ORDERED. (Emphasis and with modification, the trial court’s decision, disposing as follows:
underscoring supplied)
WHEREFORE, in view of all the foregoing, the
decision of the Regional Trial Court of Quezon City in
The case was forwarded to this Court for automatic Criminal Case No. Q-95-63818 finding accused-
review.[18] However, the Court referred it to the Court of Appeals for appellants Maritess Ang and Pablo Estacio, Jr. guilty
intermediate review following People v. Mateo.[19] beyond reasonable doubt of the crime of kidnapping
with murder and sentencing them to each suffer the
Estacio faulted the trial court for: penalty of DEATH, is AFFIRMED with
MODIFICATION. Accused-appellants are ordered to
I pay, jointly and severally, the heirs of the deceased
the amounts of P50,000.00 as civil
x x x FINDING THAT THE GUILT OF HEREIN ACCUSED- indemnity; P25,000.00 as exemplary
APPELLANT FOR THE CRIME CHARGED WAS PROVEN damages and P500,000.00 as moral damages.
BEYOND REASONABLE DOUBT.
In view of the death penalty imposed, let the
II entire records of this case be forwarded to the
Honorable Supreme Court for further review.
x x x CONVICTING HEREIN ACCUSED-APPELLANT OF
THE CRIME CHARGED DESPITE FAILURE OF THE SO ORDERED.[24] (Emphasis and
PROSECUTION TO PROVE THE INDISPENSABLE underscoring supplied)
ELEMENTS OF DETENTION AND “LOCK
UP”.[20] (Emphasis and underscoring supplied)
Appellants manifested before this Court that supplemental
pleadings would not be necessary, all relevant matters having already been
As for Maritess, she faulted the trial court for: taken up.[25]
 Findings of fact of the trial court, its calibration of the testimonies
of witnesses, and its assessment of the probative weight thereof, as well as
its conclusions anchored on said findings are accorded high respect, if not
conclusive effect, by this Court because of the trial court’s unique
advantage in observing and monitoring at close range the demeanor,
deportment, and conduct of the witnesses as they testify. [26] This Court
need not thus pass upon the findings of fact of the trial court, especially if
they have been affirmed on appeal by the appellate court, as in the present
case.[27] Nevertheless, the Court combed through the records of the case
and found no ground to merit a reversal of appellants’ conviction.
The Court finds, however, that the offense of which appellants
were convicted was erroneously designated.
Appellants were eventually charged with and convicted of the
special complex crime of kidnapping with murder, defined in the last
paragraph of Article 267 of the Revised Penal Code. In a special complex
crime, the prosecution must prove each of the component offenses with
the same precision that would be necessary if they were made the subject
of separate complaints.[28]
In the case at bar, kidnapping was not sufficiently proven.
Although appellants bound and gagged Chua and transported him to
Bulacan against his will, they did these acts to facilitate his killing, not
because they intended to detain or confine him. As soon as they arrived at
thelocus criminis, appellants wasted no time in killing him. That appellants’
intention from the beginning was to kill the victim is confirmed by the
conversation which Sumipo heard in the car in which Maritess said that a
knife would be used to kill him so that it would not create
noise.[29] The subsequent demand for ransom was an afterthought which
did not qualify appellants’ prior acts as kidnapping.
People v. Padica[30] instructs:
We have consistently held that where the
taking of the victim was incidental to the basic
purpose to kill, the crime is only murder, and this is
true even if, before the killing but for purposes
thereof, the victim was taken from one place to
another. Thus, where the evident purpose of taking
the victims was to kill them, and from the acts of the
accused it cannot be inferred that the latter’s
purpose was actually to detain or deprive the victims
of their liberty, the subsequent killing of the victims
constitute the crime of murder, hence the crime of
kidnapping does not exist and cannot be considered
as a component felony to produce the complex crime
of kidnapping with murder. In fact, as we held in the
aforecited case of Masilang, et. al., although the
accused had planned to kidnap the victim for ransom
but they first killed him and it was only later that
they demanded and obtained the money, such
demand for ransom did not convert the crime into
kidnapping since no detention or deprivation of
liberty was involved, hence the crime committed was
only murder.
That from the beginning of their criminal
venture appellant and his brothers intended to kill
the victim can be readily deduced from the manner
by which they swiftly and cold-bloodedly snuffed out
his life once they reached the isolated sugarcane
plantation in Calamba, Laguna. Furthermore, there
wasno evidence whatsoever to show or from which it
can be inferred that from the outset the killers of the
victim intended to exchange his freedom for ransom
money. On the contrary, the demand for ransom
appears to have arisen and was consequently made
as an afterthought, as it was relayed to the victim’s
family very much later that afternoon after a
sufficient interval for consultation and deliberation
among the felons who had killed the victim around
five hours earlier.
x x x The fact alone that ransom money is
demanded would not per se qualify the act of
preventing the liberty of movement of the victim into
the crime of kidnapping, unless the victim is actually
restrained or deprived of his liberty for some
appreciable period of time or that such restraint was
the basic intent of the accused. Absent such
determinant intent and duration of restraint, the
mere curtailment of freedom of movement would at
most constitute coercion.[31] (Underscoring supplied)
 The crime committed was thus plain Murder. The killing was
qualified by treachery. The victim was gagged, bound, and taken
fromQuezon City to an isolated place in Bulacan against his will to prevent
him from defending himself and to facilitate the killing.
This Court’s finding that the offense committed is Murder
notwithstanding, the resulting penalty is the same. Under Article 248 of the
Revised Penal Code, murder shall be punished by reclusion perpetua to
death. The use of a motor vehicle, having been alleged in the Information
and proven, can be appreciated as a generic aggravating
circumstance. There being one generic aggravating circumstance, the
resulting penalty is death. In view, however, of the enactment of Republic
Act No. 9346 on June 24, 2006 prohibiting the imposition of death penalty,
the penalty is reduced to reclusion perpetua, without eligibility for parole.
Respecting the assigned error in discharging Sumipo as a state
witness, the same does not lie.
The conditions for the discharge of an accused as a state witness
are as follows:
(a) There is absolute necessity for the
testimony of the accused whose discharge is
requested;
(b) There is no other direct evidence available
for the proper prosecution of the offense
committed, except the testimony of said
accused;
(c) The testimony of said accused can be
substantially corroborated in its material
points;
(d) Said accused does not appear to be the
most guilty; and
(e) Said accused has not at any time been
convicted of any offense involving moral
turpitude.[32]
These conditions were established by the prosecution. Sumipo
was the only person other than appellants who had personal knowledge of
the acts for which they were being prosecuted. Only he could positively
identify appellants as the perpetrators of the crime. He does not appear to
be the most guilty. He did not participate in planning the commission of the
crime. He in fact at first thought that Maritess was joking when she said,
“Diretsong dukot na rin kay Charlie.” He tried to dissuade appellants from
pursuing their plan. He did not participate in the actual stabbing. And he
tried to extricate himself from the attempts to extract ransom from the
victim’s family.
Sumipo’s testimony was corroborated on material points. The
victim’s mother testified regarding the demands for ransom.[33] Cesar
Moscoso, an employee of Casa Leonisa, testified to seeing the victim,
Estacio, and Maritess at the bar-restaurant on the day and at the time in
question.[34] Henry Hong, the victim’s cousin who arrived at Pizza Hut,
Greenhills ahead of the victim’s brother during the scheduled delivery of
the ransom, testified to seeing Estacio there with companions. [35] And the
victim’s skeletal remains were found at the scene of the crimeupon
Estacio’s information and direction.
And there is no proof that Sumipo had, at any time, been convicted
of a crime involving moral turpitude.
Even assuming arguendo that the discharge of Sumipo as a state
witness was erroneous, such error would not affect the competency and
quality of his testimony.[36]
Finally, the Court brushes aside Maritess’ disclaimer
of participation in killing the victim. It was she who bound the hands and
gagged the victim. When Estacio, in Maritess’ company, brought the victim
to the scene of the crime and thereafter returned to the car, her and
Estacio’s hands were bloodied.
Parenthetically, prosecution witness Arlene Francisco, Maritess’
friend who visited her in prison, testified that Maritess admitted having
killed Chua.[37] And the prosecution presented letters from Maritess to
Estacio, written from prison, where she admitted the deed.[38]
WHEREFORE, the Decision of the Court of Appeals of May 12,
2005 is AFFIRMED with MODIFICATION. The Court finds appellants
Maritess Ang and Pablo Estacio, Jr. guilty beyond reasonable doubt of
Murder, with the generic aggravating circumstance of use of motor
vehicle. And in view of the enactment of Republic Act No. 9346 on June
24, 2006, the penalty is reduced to reclusion perpetuawithout eligibility for Supervising Examiner, did then and there willfully,
parole. unlawfully and feloniously and with intent of personal
gain, directly demand and extort from a certain Mrs.
SO ORDERED. Maria Angeles Ramasola Cesar the amount of TWENTY
THOUSAND PESOS (P20,000.00), Philippine Currency, in
JUANITO T. MERENCILLO, G.R. Nos. 142369-70 connection, in consideration and in exchange for the
Petitioner, release of the certification of her payment of the capital
Present: gains tax for the land purchased by the Ramasola
[Superstudio] Inc. from one Catherine Corpuz Enerio, a
PUNO, C.J., C transaction wherein the aforesaid accused has to
hairperson, intervene in his official capacity, and to which the said
SANDOVAL-GUTIERREZ, Mrs. Maria Angeles Ramasola Cesar reluctantly agreed
- versus - CORONA, but upon prior consultation with the military authorities
AZCUNA and particularly the elements of the 702nd Criminal
GARCIA, JJ. Investigation Command [CIC] who set up the accused for
a possible entrapment resulting to (sic) his being caught
in the act of receiving an envelope supposedly
PEOPLE OF THE PHILIPPINES,* containing the amount of TWENTY THOUSAND PESOS
Respondent. Promulgated: (P20,000.00) but consisting only of four (4) marked one
hundred peso bills and the rest all bogus (paper)
April 13, 2007 monies, to the damage and prejudice of the said Mrs.
Maria Angeles Ramasola Cesar in particular and the
x------------------------------------------x public and the government in general in the amount to
be proved during the trial of the case.
DECISION
CORONA, J.: Acts committed contrary to the provisions of
Section 3(b) of [RA] 3019.[7]
This petition for review[1] assails the June 18, 1999 decision[2] of the
Sandiganbayan in A.R. Case Nos. 004-005 affirming[3] the omnibus
decision[4] of the Regional Trial Court (RTC) of Tagbilaran City, Branch 47, in On the other hand, the information for direct bribery penalized
Criminal Case Nos. 9482-83 finding petitioner Juanito T. Merencillo guilty under Article 210 of the Revised Penal Code in Criminal Case No. 9483
of violating Section 3(b) of RA 3019[5]and Article 210[6] of the Revised Penal charged:
Code.
That, on or about the 28th day of September, 1995
The information charging petitioner for violation of Section 3(b) of in the City of Tagbilaran, Philippines, and within the
RA 3019 in Criminal Case No. 9482 read: jurisdiction of this Honorable Court, the above-named
accused being then a public official connected with the
performance of official duty as its Group Supervising
That, on or about the 28th day of September, Examiner, did then and there willfully, unlawfully and
1995, in the City of Tagbilaran, Philippines, and within feloniously and with intent of personal gain, demand,
the jurisdiction of this Honorable Court, the above- extort and agree to perform an act constituting a crime,
named accused being then a public official connected an act which is in violation of the Anti-Graft and Corrupt
with the Bureau of Internal Revenue as its Group Practices Act, that is – that the certification for payment of
 the capital gains tax relative to the land purchased by the
Ramasola Superstudio Incorporated from Catherine
Corpus Enerio be released by him only upon payment of
an additional under the table transaction in the amount of
TWENTY THOUSAND PESOS (P20,000.00), Philippine
Currency, which Mrs. Maria Angeles Ramasola Cesar
reluctantly agreed, but upon prior consultation with the
military authorities particularly the elements of the
702nd Criminal [Investigation] Command (CIC) who set up
the accused for a possible entrapment resulting to (sic) his
being caught in the act of receiving an envelope
supposedly containing the amount of TWENTY THOUSAND
PESOS (P20,000.00) but, consisting only of four (4) marked
one hundred pesos bills and the rest all bogus (paper)
monies, an act performed by the accused in his official
capacity as Group Supervising Examiner of the BIR, to the
damage and prejudice of Mrs. Maria Angeles Ramasola
Cesar in particular and the public and the government in
general in the amount to be proved during the trial of the
case.
Acts committed contrary to the provisions of Article
210 of the Revised Penal Code of the Philippines.[8]
Petitioner pleaded not guilty to both charges when arraigned.
Thereafter trial ensued and the cases were tried jointly.
THE FACTS ESTABLISHED
BY THE PROSECUTION
In the morning of September 13, 1995, Lucit Estillore went to the
Bureau of Internal Revenue (BIR) office in Tagbilaran City to ask for the
computation of taxes due on the sale of real property to Ramasola
Superstudio, Inc. and to apply for a certificate authorizing registration
(CAR).[9] At the BIR office, she was entertained by revenue examiner
Lourdes Fuentes who computed the documentary stamp tax (P37,500) and
capital gains tax (P125,000) due on the transaction. The computation was
approved by petitioner in his capacity as group supervisor. Estillore paid
the taxes in the bank and returned to apply for a CAR. She submitted the
application together with relevant documents to Fuentes for processing.
Fuentes prepared the revenue audit reports and submitted them together
with the application for the CAR to petitioner for preliminary approval.
[The application was to be forwarded thereafter to the Revenue District
Officer (RDO) for final approval.] Fuentes advised Estillore that the CAR
would be released after seven days.
At around 10:00 a.m. of the same day, private complainant Maria
Angeles Ramasola Cesar[10] (Cesar) received a call from Estillore. She was
told that petitioner wanted to see her “for some negotiation.” She
proceeded to petitioner’s office where the latter demanded P20,000 in
exchange for the approval of the CAR. Cesar replied that she needed to
confer with her two brothers who were her business associates.
The following day, on September 14, 1995, Cesar received a call
from petitioner who was following up his demand. Later that day, Cesar
received another call from petitioner who told her that she could get the
CAR after four or five days.
Cesar was able to return to the BIR only on September 20, 1995.
When petitioner saw her, he repeated his demand for P20,000 although
the CAR had in fact been signed by RDO Galahad Balagon the day before,
on September 19, 1995, and was therefore ready for release. On Cesar’s
inquiry, the releasing clerk, Susan Cabangon, informed Cesar that she
(Cabangon) was still waiting for petitioner’s go signal to release the
document.
On September 22, 1995, Cesar visited RDO Balagon and
complained about petitioner’s refusal to release the CAR unless his
demand was met. RDO Balagon assured Cesar that he would look into her
complaint. Subsequently, Cesar received a call from petitioner informing
her that she could get the CAR but reminded her of his demand. He told
her that he was willing to accept a lesser amount. It was at this point that
Cesar decided to report the matter to the authorities. She sought the help
of the Provincial Director of the Philippine National Police (PNP) in Bohol,
Senior Superintendent Dionaid Baraguer.
The following day, Sr. Supt. Baraguer referred Cesar’s complaint
to the chief of police of Tagbilaran City who coordinated with Cesar for the
entrapment of petitioner. Cesar was instructed to prepare two bundles of
bogus money by putting a one-hundred peso bill on each side of each of
the two bundles to make it appear that the two bundles amounted
to P10,000 each or a total of P20,000. After the serial numbers of the four
one-hundred peso bills were recorded, the entrapment was set for
September 28, 1995.

On the appointed day, Cesar called petitioner and pleaded for the
release of the CAR as well as for the reduction of petitioner’s demand.
Petitioner cautiously told Cesar not to talk about the matter on the phone
and asked her to see him instead. Cesar went to petitioner’s office with the
two bundles of bogus money inside a white envelope.
Petitioner was entertaining a lady visitor when Cesar arrived. The
members of the PNP entrapment team were already in petitioner’s office
posing as civilians. On seeing Cesar, petitioner handed the CAR to her and,
as she was signing the acknowledgment for the release of the CAR, he
informed her that he was going down to the second floor. Cesar took this
as a cue for her to follow.
As petitioner left his office, he held the door open for Cesar to
follow. On reaching the third floor lobby, petitioner uttered “Here only.”
Cesar handed the envelope containing the two bundles of marked money
to petitioner who, upon receiving it, asked “Why is this thick?” Before
Cesar could answer, a member of the PNP entrapment team photographed
petitioner holding the envelope. Petitioner panicked, hid the envelope
behind his back and turned towards the window at the back of the BIR
building. On seeing that the window was closed, he turned around towards
the open window facing the street. He threw the envelope towards the
window but it hit the ceiling instead, bounced and fell to the first floor of
the BIR building.[11] The PNP entrapment team then introduced themselves
to petitioner and invited him to go with them to their headquarters.
Charges were filed against petitioner. During the trial,
petitioner’s evidence consisted of nothing more than a general denial of
the charges against him. He claimed that he never asked for money and
that the allegations of demand for money existed only in Cesar’s mind
after she was told that there was a misclassification of the asset and
additional taxes had to be paid. He was surprised when policemen
suddenly arrested him as soon as Cesar handed him a white envelope the
contents of which he suspected to be money.
After trial, the RTC found petitioner guilty as charged. The dispositive
portion of the decision read:
WHEREFORE, premises considered, the Court
finds the accused Juanito T. Merencillo,
guilty beyond reasonable doubt as principal by direct
participation, defined and penalized by Section 3(b)
of [RA] 3019, otherwise known as the Anti-Graft and
Corrupt Practices Act, and sentences him to suffer the
indeterminate penalty of imprisonment for eight (8)
years and one (1) month as minimum to fifteen (15)
years as maximum, there being aggravating
circumstances considered under Section 3(e) and
Section (f) of [RA] 3019 in relation to Article 14(1) and
(11) of the [RPC] in the sense that the offender have
taken advantage of his public position, and that the
crime was committed in consideration of a price or
promise, without any mitigating or extenuating
circumstances to neutralize or offset any of the
aggravating circumstances, with perpetual
disqualification from public office, and the Court
further finds the accused guilty beyond reasonable
doubt as principal by direct participation, for the
crime of Direct Bribery defined and penalized by
Article 210 of the Revised Penal Code and sentences
him to suffer the indeterminate penalty of four (4)
years and one (1) day as minimum to eight (8) years
of prision mayor as maximum and a fine of Sixty
Thousand (P60,000.00) Pesos, all as mandated by law.
The accused Juanito T. Merencillo likewise is ordered
to indemnify private complainant [Cesar] to pay
moral damages in the amount of P50,000.00 and
attorney’s fees in the amount of Five Thousand
(P5,000.00) Pesos. Costs shall also be taxed against
the accused.
CONTRARY TO LAW.[12]
Petitioner appealed the RTC decision to the Sandiganbayan. The
Sandiganbayan, however, denied the appeal and affirmed the RTC decision
with modification reducing the penalty of imprisonment for violation of
Section 3(b) of RA 3019 to an indeterminate sentence of six years and one
month of prision mayor, as minimum, to ten years of prision mayor, as
maximum.[13] Thus, this petition.
Petitioner basically raises two points: (1) the Sandiganbayan’s
refusal to believe his evidence over that of the prosecution’s and (2) the
Sandiganbayan’s failure to recognize that he was placed in double
jeopardy.
 Petitioner faults the Sandiganbayan for affirming the RTC decision
and disregarding his evidence. He claims that, had the RTC and the
Sandiganbayan not ignored the inconsistencies in the testimonies of the
prosecution’s witnesses,[14] he would have been acquitted. He also asserts
that he was placed twice in jeopardy when he was prosecuted for violation
of Section 3(b) of RA 3019 and for direct bribery.
Petitioner is wrong.
TRIAL COURT’S
EVALUATION OF
EVIDENCE WILL
NOT BE DISTU
RBED
Both the RTC and the Sandiganbayan found the testimonies of the
prosecution’s witnesses (that petitioner demanded and received money
from private complainant Cesar for the release of the CAR) sufficient and
credible enough to sustain conviction.
This notwithstanding, petitioner now asks this Court to review the
entire evidence anew, re-evaluate the credibility of witnesses and make
another factual determination of the case – a course of action clearly
improper given the nature of the instant petition. [15] Questions of fact
cannot generally be raised for the consideration of this Court.
The calibration of evidence and the relative weight thereof belongs to
the appellate court.[16] Its findings and conclusions cannot be set aside by
this Court unless there is no evidence on record to support them. [17] In this
case, however, the findings of fact of the Sandiganbayan, affirming the
factual findings of the RTC, were amply supported by evidence and the
conclusions therein were not against the law and jurisprudence. There is
no reason to disturb the congruent findings of the trial and appellate
courts.
Moreover, findings and conclusions of the trial court on the
credibility of witnesses enjoy the respect of appellate courts because trial
courts have the distinct advantage of observing the demeanor of witnesses
as they testify.[18] In the absence of any arbitrariness in the trial court’s
findings and evaluation of evidence tending to show that it overlooked
certain material facts and circumstances, its findings and evaluation of
evidence should be respected on review.[19] The presiding judge of the trial
court had the opportunity to actually observe the conduct and demeanor
of the witnesses on the witness stand on direct examination by the
prosecution, cross-examination by the defense as well as during
clarificatory questioning by the trial judge himself.[20] Between the trial
judge and this Court, the former was concededly in a better position to
determine whether or not a witness was telling the truth.[21] Based on the
records, we find no reason to disagree with the trial court’s assessment
and to discredit the prosecution’s witnesses.
Contrary to petitioner’s contention, the RTC and the
Sandiganbayan considered the alleged inconsistencies in the testimonies of
the prosecution witnesses. Both courts, however, ruled that the
inconsistencies referred only to minor details that did not detract from the
truth of the prosecution’s testimonial evidence. We agree.
Witnesses testifying on the same event do not have to be consistent in
each and every detail. Differences in the recollection of the event are
inevitable and inconsequential variances are commonly regarded as signs
of truth instead of falsehood. Inconsistencies in the testimonies of
prosecution witnesses with respect to minor details and collateral matters
do not affect either the substance of their declaration, their veracity or the
weight of their testimony.[22] In fact, such minor flaws may even enhance
the worth of a testimony for they guard against memorized falsities.[23]
Minor discrepancies or inconsistencies do not impair the essential
integrity of the prosecution’s evidence as a whole or reflect on the
witnesses’ honesty.[24] The test is whether the testimonies agree on
essential facts and whether the respective versions corroborate and
substantially coincide with each other so as to make a consistent and
coherent whole.[25] Thus, inconsistencies and discrepancies in details which
are irrelevant to the elements of the crime cannot be successfully invoked
as grounds for acquittal.[26]
The RTC and the Sandiganbayan correctly ruled that the
inconsistencies pointed out by petitioner were neither material nor
relevant to the elements of the offenses for which he was charged. For
instance, whether or not it was petitioner himself who handed the CAR to
private respondent was immaterial. The fact was that petitioner demanded
and received money in consideration for the issuance of the CAR.
PETITION
ER WAS
NOT
PLACED Sec. 3. In addition to acts or omissions of public
IN DOUBLE JEOPAR officers already penalized by existing law, the following
DY shall constitute corrupt practices of any public officer
and are hereby declared unlawful:

Section 3 of RA 3019 begins with the following statement: xxx xxx xxx

(b) Directly or indirectly requesting or receiving

Sec. 3. In addition to acts or omissions of any gift, present, share percentage or
public officers already penalized by existing law, the benefit, for himself or for any other
following [acts] shall constitute corrupt practices of any person, in connection with any contract or
public officer and are hereby declared unlawful: transaction between the Government and
any other party, wherein the public officer
xxx xxx xxx (emphasis in his official capacity has to intervene
supplied) under the law.

xxx xxx xxx

One may therefore be charged with violation of RA 3019 in addition to a
felony under the Revised Penal Code for the same delictual act, that is,
either concurrently or subsequent to being charged with a felony under The elements of the crime penalized under Section 3(b) of RA 3019
the Revised Penal Code.[27] There is no double jeopardy if a person is are:
charged simultaneously or successively for violation of Section 3 of RA (1) the offender is a public officer;
3019 and the Revised Penal Code.
(2) he requested or received a gift, present,
The rule against double jeopardy prohibits twice placing a person share, percentage or benefit;
in jeopardy of punishment for the same offense.[28] The test is whether one
offense is identical with the other or is an attempt to commit it or a (3) he made the request or receipt on behalf of the
frustration thereof; or whether one offense necessarily includes or is offender or any other person;
necessarily included in the other, as provided in Section 7 of Rule 117 of
the Rules of Court.[29] An offense charged necessarily includes that which is (4) the request or receipt was made in connection
proved when some of the essential elements or ingredients of the former, with a contract or transaction with the
as alleged in the complaint or information, constitute the latter; and an government and
offense charged is necessarily included in the offense proved when the
essential ingredients of the former constitute or form a part of those (5) he has the right to intervene, in an official capacity
constituting the latter.[30] under the law, in connection with a contract or
transaction has the right to intervene.[31]
A comparison of the elements of the crime of direct bribery
defined and punished under Article 210 of the Revised Penal Code and
those of violation of Section 3(b) of RA 3019 shows that there is neither On the other hand, direct bribery has the following essential
identity nor necessary inclusion between the two offenses. elements:

Section 3(b) of RA 3019 provides: (1) the offender is a public officer;

 (2) the offender accepts an offer or promise or
receives a gift or present by himself or through
another;
(3) such offer or promise be accepted or gift or
present be received by the public officer with a
view to committing some crime, or in
consideration of the execution of an act which
does not constitute a crime but the act must be
unjust, or to refrain from doing something which it
is his official duty to do and
(4) the act which the offender agrees to perform or
which he executes is connected with the
performance of his official duties.[32]
Clearly, the violation of Section 3(b) of RA 3019 is neither
identical nor necessarily inclusive of direct bribery. While they have
common elements, not all the essential elements of one offense are
included among or form part of those enumerated in the other. Whereas
the mere request or demand of a gift, present, share, percentage or
benefit is enough to constitute a violation of Section 3(b) of RA 3019,
acceptance of a promise or offer or receipt of a gift or present is required
in direct bribery. Moreover, the ambit of Section 3(b) of RA 3019 is
specific. It is limited only to contracts or transactions involving monetary
consideration where the public officer has the authority to intervene under
the law. Direct bribery, on the other hand, has a wider and more general
scope: (a) performance of an act constituting a crime; (b) execution of an
unjust act which does not constitute a crime and (c) agreeing to refrain or
refraining from doing an act which is his official duty to do.
Although the two charges against petitioner stemmed from the
same transaction, the same act gave rise to two separate and distinct
offenses. No double jeopardy attached since there was a variance between
the elements of the offenses charged.[33] The constitutional protection
against double jeopardy proceeds from a second prosecution for the same
offense, not for a different one.[34]
WHEREFORE, the petition is hereby DENIED. The June 18, 1999
decision of the Sandiganbayan in A.R. Case Nos. 004-005 is AFFIRMED.
Costs against petitioner.
SO ORDERED.
G.R. No. 179462 February 12, 2009
PEDRO C. CONSULTA, Appellant,
vs.
PEOPLE OF THE PHILIPPINES, Appellee,
DECISION
CARPIO MORALES, J.:
The Court of Appeals having, by Decision of April 23, 2007,1 affirmed the
December 9, 2004 Decision of the Regional Trial Court of Makati City,
Branch 139 convicting Pedro C. Consulta (appellant) of Robbery with
Intimidation of Persons, appellant filed the present petition.
The accusatory portion of the Information against appellant reads:
That on or about the 7th day of June, 1999, in the City of Makati,
Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, with intent of gain, and by means of force, violence and
intimidation, did then and there willfully, unlawfully and feloniously take,
steal and carry away complainant’s NELIA R. SILVESTRE gold necklace
worth P3,500.00, belonging to said complainant, to the damage and
prejudice of the owner thereof in the aforementioned amount of
P3,500.00.
CONTRARY TO LAW.2 (Emphasis in the original, underscoring supplied)
From the evidence for the prosecution, the following version is gathered:
At about 2:00 o’clock in the afternoon of June 7, 1999, private complainant
Nelia R. Silvestre (Nelia), together with Maria Viovicente (Maria) and
Veronica Amar (Veronica), boarded a tricycle on their way to Pembo,
Makati City. Upon reaching Ambel Street, appellant and his brother Edwin
Consulta (Edwin) blocked the tricycle and under their threats, the driver
alighted and left. Appellant and Edwin at once shouted invectives at Nelia,
saying "Putang ina mong matanda ka, walanghiya ka, kapal ng mukha mo,
papatayin ka namin." Appellant added "Putang ina kang matanda ka, wala
kang kadala dala, sinabihan na kita na kahit saan kita matiempuhan,
papatayin kita."
Appellant thereafter grabbed Nelia’s 18K gold necklace with a crucifix
pendant which, according to an "alajera" in the province, was of 18k gold,
and which was worth P3,500, kicked the tricycle and left saying "Putang
ina kang matanda ka! Kayo mga nurses lang, anong ipinagmamalaki niyo,
mga nurses lang kayo. Kami, marami kaming mga abogado. Hindi niyo
kami maipapakulong kahit kailan!"
Nelia and her companions immediately went to the Pembo barangay hall
where they were advised to undergo medical examination. They, however,
repaired to the Police Station, Precinct 8 in Comembo, Makati City and
reported the incident. They then proceeded to Camp Crame where they
were advised to return in a few days when any injuries they suffered were
expected to manifest.
Nine days after the incident or on June 16, 1999, Nelia submitted a
medico-legal report and gave her statement before a police investigator.
Denying the charge, appellant branded it as fabricated to spite him and his
family in light of the following antecedent facts:
He and his family used to rent the ground floor of Nelia’s house in Pateros.
Nelia is his godmother. The adjacent house was occupied by Nelia’s
parents with whom she often quarreled as to whom the rental payments
should be remitted. Because of the perception of the parents of Nelia that
his family was partial towards her, her parents disliked his family. Nelia’s
father even filed a case for maltreatment against him which was dismissed
and, on learning of the maltreatment charge, Nelia ordered him and his
family to move out of their house and filed a case against him for grave
threats and another for light threats which were dismissed or in which he
was acquitted.
Appellant went on to claim that despite frequent transfers of residence to
avoid Nelia, she would track his whereabouts and cause scandal.
Appellant’s witness Darius Pacaña testified that on the date of the alleged
robbery, Nelia, together with her two companions, approached him while
he was at Ambel Street in the company of Michael Fontanilla and Jimmy
Sembrano, and asked him (Pacaña) if he knew a bald man who is big/stout
with a big tummy and with a sister named Maria. As he replied in the
affirmative, Nelia at once asked him to accompany them to appellant’s
house, to which he acceded. As soon as the group reached appellant’s
house, appellant, on his (Pacaña’s) call, emerged and on seeing the group,
told them to go away so as not to cause trouble. Retorting, Nelia uttered
"Mga hayop kayo, hindi ko kayo titigilan."
Another defense witness, Thelma Vuesa, corroborated Pacaña’s account.
The trial court, holding that intent to gain on appellant’s part "is presumed
from the unlawful taking" of the necklace, and brushing aside appellant’s
denial and claim of harassment, convicted appellant of Robbery, disposing
as follows:
WHEREFORE, premises considered, this Court finds accused PEDRO C.
CONSULTA guilty beyond reasonable doubt, as principal of the felony of
Robbery with Intimidation of Persons defined and penalized under Article
294, paragraph No. 5, in relation to Article 293 of the Revised Penal
Code and hereby sentences him to suffer the penalty of imprisonment
from one (1) year, seven (7) months and eleven (11) days of arresto mayor,
as minimum, to eight (8) years, eight (8) months and one (1) day of prision
mayor, as maximum, applying the Indeterminate Sentence Law, there
being no mitigating or aggravating circumstances which attended the
commission of the said crime.
The said accused is further ordered to pay unto the complainant Nelia
Silvestre the amount of P3,500.00 representing the value of her necklace
taken by him and to pay the costs of this suit.
SO ORDERED. (Italics in the original, underscoring supplied)
The appellate court affirmed appellant’s conviction with modification on
the penalty.
In his present appeal, appellant raises the following issues:
(1) Whether or not appellant was validly arraigned;
 (2) Whether or not appellant was denied due process having been
represented by a fake lawyer during arraignment, pre-trial and
presentation of principal witnesses for the prosecution;
(3) Whether or not appellant has committed the crime of which
he was charged; and
(4) Whether or not the prosecution was able to prove the guilt of
the appellant beyond reasonable doubt. (Underscoring supplied)
The first two issues, which appellant raised before the appellate court only
when he filed his Motion for Reconsideration of said court’s decision, were
resolved in the negative in this wise:
On the matter of accused-appellant’s claim of having been denied due
process, an examination of the records shows that while accused-appellant
was represented by Atty. Jocelyn P. Reyes, who "seems not a lawyer,"
during the early stages of trial, the latter withdrew her appearance with
the conformity of the former as early as July 28, 2000 and subsequently,
approved by the RTC in its Order dated August 4, 2000. Thereafter,
accused-appellant was represented by Atty. Rainald C. Paggao from the
Public Defender’s (Attorney’s) Office of Makati City. Since the accused-
appellant was already represented by a member of the Philippine Bar who
principally handled his defense, albeit unsuccessfully, then he cannot now
be heard to complain about having been denied of due
process.3 (Underscoring supplied)
That appellant’s first counsel may not have been a member of the bar does
not dent the proven fact that appellant prevented Nelia and company from
proceeding to their destination. Further, appellant was afforded
competent representation by the Public Attorneys’ Office during the
presentation by the prosecution of the medico-legal officer and during the
presentation of his evidence. People v. Elesterio4 enlightens:
"As for the circumstance that the defense counsel turned out later to be a
non-lawyer, it is observed that he was chosen by the accused himself and
that his representation does not change the fact that Elesterio was
undeniablycarrying an unlicensed firearm when he was arrested. At any
rate, he has since been represented by a member of the Philippine bar,
who prepared the petition for habeas corpus and the appellant’s brief."
(Underscoring supplied)
On the third and fourth issues. Article 293 of the Revised Penal Code under
which appellant was charged provides:
Art. 293. Who are guilty of robbery. – Any person who, with intent to gain,
shall take any personal property belonging to another, by means of
violence against or intimidation of any person, or using force upon
anything, shall be guilt of robbery. (Italics in the original, underscoring
supplied)
Article 294, paragraph 5, under which appellant was penalized provides:
Art. 294. Robbery with violence against or intimidation of persons –
Penalties. – Any person guilty of robbery with the use of violence against
or intimidation of any person shall suffer:
xxxx
5. The penalty of prision correccional in its maximum period to prision
mayor in its medium period in other cases. x x x (Citations omitted; italics
in the original; underscoring supplied)
The elements of robbery are thus: 1) there is a taking of personal property;
2) the personal property belongs to another; 3) the taking is with animus
lucrandi; and 4) the taking is with violence against or intimidation of
persons or with force upon things.
Animus lucrandi or intent to gain is an internal act which can be
established through the overt acts of the offender. It may be presumed
from the furtive taking of useful property pertaining to another, unless
special circumstances reveal a different intent on the part of the
perpetrator.5
The Court finds that under the above-mentioned circumstances
surrounding the incidental encounter of the parties, the taking of Nelia’s
necklace does not indicate presence of intent to gain on appellant’s part.
That intent to gain on appellant’s part is difficult to appreciate gains light
given his undenied claim that his relationship with Nelia is rife with ill-
feelings, manifested by, among other things, the filing of
complaints6 against him by Nelia and her family which were subsequently
dismissed or ended in his acquittal.7
Absent intent to gain on the part of appellant, robbery does not lie against
him. He is not necessarily scot-free, however.
From the pre-existing sour relations between Nelia and her family on one
hand, and appellant and family on the other, and under the circumstances
related above attendant to the incidental encounter of the parties,
appellant’s taking of Nelia’s necklace could not have been animated with
animus lucrandi. Appellant is, however, just the same, criminally liable.
For "[w]hen there is variance between the offense charged in the
complaint or information and that proved, and the offense as charged is
included in or necessarily includes the offense proved, the accused shall be
convicted of the offense proved which is included in the offense charged,
or of the offense charged which is included in the offense proved." 8
SEC. 5. When an offense includes or is included in another. – An offense
charged necessarily includes the offense proved when some of the
essential elements or ingredients of the former, as alleged in the complaint
or information, constitute the latter. And an offense charged is necessarily
included in the offense proved, when the essential ingredients of the
former constitute or form part of those constituting the latter.9 (Italics in
the original, underscoring supplied)
Grave coercion, like robbery, has violence for one of its elements. Thus
Article 286 of the Revised Penal Code provides:
"Art. 286. Grave coercions. – The penalty of prision correccional and a fine
not exceeding six thousand pesos shall be imposed upon any person who,
without authority of law,
shall, by means of violence, threats orintimidation, prevent another from d
oing something not prohibited by law or compel him to do something
against his will, whether it be right or wrong.
If the coercion be committed in violation of the exercise of the right of
suffrage or for the purpose of compelling another to perform any religious
act or to prevent him from exercising such right or from doing such act, the
penalty next higher in degree shall be imposed." (Italics in the original;
underscoring supplied)
The difference in robbery and grave coercion lies in the intent in the
commission of the act. The motives of the accused are the prime criterion:
"The distinction between the two lines of decisions, the one holding to
robbery and the other to coercion, is deemed to be the intention of the
accused. Was the purpose with intent to gain to take the property of
another by use of force or intimidation? Then, conviction for robbery. Was
the purpose, without authority of law but still believing himself the owner
or the creditor, to compel another to do something against his will and to
seize property? Then, conviction for coercion under Article 497 of the
Penal Code. The motives of the accused are the prime criterion. And there
was no common robber in the present case, but a man who had fought
bitterly for title to his ancestral estate, taking the law into his own hands
and attempting to collect what he thought was due him.Animus
furandi was lacking."10 (Italics in the original; citations omitted;
underscoring supplied)
The Court finds that by appellant’s employment of threats, intimidation
and violence consisting of, inter alia, uttering of invectives, driving away of
the tricycle driver, and kicking of the tricycle, Nelia was prevented from
proceeding to her destination.
Appellant is thus guilty of grave coercion which carries the penalty
of prision correccional and a fine not exceedingP6,000. There being no
aggravating or mitigating circumstance, the penalty shall be imposed in its
medium term. Applying the Indeterminate Sentence Law, the minimum
that may be imposed is anywhere from one (1) month and one (1) day to
six (6) months of arresto mayor, as minimum, and from two (2) years, four
(4) months and one (1) day to four (4) years and two (2) months of prision
correccional, as maximum.
WHEREFORE, the Court SETS ASIDE the challenged Court of Appeals
Decision and another is rendered finding appellant, Pedro C. Consulta,
GUILTY beyond reasonable doubt of Grave Coercion and sentences him to
suffer the indeterminate penalty of from six (6) months of arresto mayor
as minimum, to three (3) years and six (6) months of prision correccional
medium as maximum.
Appellant is further ordered to return the necklace, failing which he is
ordered to pay its value, Three Thousand Five Hundred (P3,500) Pesos.
Costs de oficio.
SO ORDERED.
G.R. No. 141181 April 27, 2007
SAMSON CHING, Petitioner,
vs.
CLARITA NICDAO and HON. COURT OF APPEALS, Respondents.
DECISION
CALLEJO, SR., J.:
Before the Court is a petition for review on certiorari filed by Samson Ching
of the Decision1 dated November 22, 1999 of the Court of Appeals (CA) in
CA-G.R. CR No. 23055. The assailed decision acquitted respondent Clarita
Nicdao of eleven (11) counts of violation of Batas Pambansa
Bilang (BP) 22, otherwise known as "The Bouncing Checks Law." The
instant petition pertains and is limited to the civil aspect of the case as it
submits that notwithstanding respondent Nicdao’s acquittal, she should be
held liable to pay petitioner Ching the amounts of the dishonored checks in
the aggregate sum of P20,950,000.00.
days from the date thereof, was dishonored by the drawee bank for the
reason that it was drawn against insufficient funds and notwithstanding
receipt of notice of such dishonor the said accused failed and refused and
still fails and refuses to pay the value of the said check in the amount of
[P20,000,000.00] or to make arrangement with the drawee bank for the
payment in full of the same within five (5) banking days after receiving the
said notice, to the damage and prejudice of the said Samson T.Y. Ching in
the aforementioned amount of [P20,000,000.00], Philippine Currency.
CONTRARY TO LAW.
Dinalupihan, Bataan, October 21, 1997.
(Sgd.) SAMSON T.Y. CHING
Complainant
The cases were docketed as Criminal Cases Nos. 9433 up to 9443 involving
the following details:

Factual and Procedural Antecedents

Reason for
Check Private
Amount Date the
On October 21, 1997, petitioner Ching, a Chinese national, instituted No. Complainant
Dishonor
criminal complaints for eleven (11) counts of violation of BP 22 against
respondent Nicdao. Consequently, eleven (11) Informations were filed Oct.
with the First Municipal Circuit Trial Court (MCTC) of Dinalupihan- Samson T.Y.
0025242 P 20,000,000 6, DAIF*
Hermosa, Province of Bataan, which, except as to the amounts and check Ching
1997
numbers, uniformly read as follows:
Oct.
The undersigned accuses Clarita S. Nicdao of a VIOLATION OF BATAS 0088563 150,000 6, " "
PAMBANSA BILANG 22, committed as follows: 1997

Oct.
That on or about October 06, 1997, at Dinalupihan, Bataan, Philippines, 0121424 100,000 6, " "
and within the jurisdiction of this Honorable Court, the said accused did 1997
then and there willfully and unlawfully make or draw and issue Hermosa
Savings & Loan Bank, Inc. Check No. [002524] dated October 06, 1997 in Oct.
the amount of [P20,000,000.00] in payment of her obligation with 0045315 50,000 6, " "
complainant Samson T.Y. Ching, the said accused knowing fully well that at 1997
the time she issued the said check she did not have sufficient funds in or
credit with the drawee bank for the payment in full of the said check upon Oct.
0022546 100,000 " "
presentment, which check when presented for payment within ninety (90) 6,
 1997 allegedly issued to him by respondent Nicdao amounting
to P20,950,000.00. He identified the signatures appearing on the checks as
Oct. those of respondent Nicdao. He recognized her signatures because
0088757 100,000 6, " " respondent Nicdao allegedly signed the checks in his presence. When
1997 petitioner Ching presented these checks for payment, they were
dishonored by the bank, HSLB, for being "DAIF" or "drawn against
Oct. insufficient funds."
0089368 50,000 6, " "
1997 Petitioner Ching averred that the checks were issued to him by respondent
Nicdao as security for the loans that she obtained from him. Their
Oct.
transaction began sometime in October 1995 when respondent Nicdao,
0022739 50,000 6, " "
proprietor/manager of Vignette Superstore, together with her husband,
1997
approached him to borrow money in order for them to settle their
Oct. financial obligations. They agreed that respondent Nicdao would leave the
00894810 150,000 6, " " checks undated and that she would pay the loans within one year.
1997 However, when petitioner Ching went to see her after the lapse of one
year to ask for payment, respondent Nicdao allegedly said that she had no
Oct. cash.
00893511 100,000 6, " "
1997 Petitioner Ching claimed that he went back to respondent Nicdao several
times more but every time, she would tell him that she had no money.
Oct.
12 Then in September 1997, respondent Nicdao allegedly got mad at him for
010377 100,000 6, " "
being insistent and challenged him about seeing each other in court.
1997
Because of respondent Nicdao's alleged refusal to pay her obligations, on
October 6, 1997, petitioner Ching deposited the checks that she issued to
At about the same time, fourteen (14) other criminal complaints, also for him. As he earlier stated, the checks were dishonored by the bank for
violation of BP 22, were filed against respondent Nicdao by Emma Nuguid, being "DAIF." Shortly thereafter, petitioner Ching, together with Emma
said to be the common law spouse of petitioner Ching. Allegedly fourteen Nuguid, wrote a demand letter to respondent Nicdao which, however,
(14) checks, amounting to P1,150,000.00, were issued by respondent went unheeded. Accordingly, they separately filed the criminal complaints
Nicdao to Nuguid but were dishonored for lack of sufficient funds. The against the latter.
Informations were filed with the same MCTC and docketed as Criminal
Cases Nos. 9458 up to 9471. On cross-examination,14 petitioner Ching claimed that he had been a
salesman of the La Suerte Cigar and Cigarette Manufacturing for almost
At her arraignment, respondent Nicdao entered the plea of "not guilty" to ten (10) years already. As such, he delivered the goods and had a
all the charges. A joint trial was then conducted for Criminal Cases Nos. warehouse. He received salary and commissions. He could not, however,
9433-9443 and 9458-9471. state his exact gross income. According to him, it increased every year
because of his business. He asserted that aside from being a salesman, he
For the prosecution in Criminal Cases Nos. 9433-9443, petitioner Ching and was also in the business of extending loans to other people at an interest,
Imelda Yandoc, an employee of the Hermosa Savings & Loan Bank, Inc., which varied depending on the person he was dealing with.
were presented to prove the charges against respondent Nicdao. On
direct-examination,13 petitioner Ching preliminarily identified each of the Petitioner Ching confirmed the truthfulness of the allegations contained in
eleven (11) Hermosa Savings & Loan Bank (HSLB) checks that were the eleven (11) Informations that he filed against respondent Nicdao. He
reiterated that, upon their agreement, the checks were all signed by
respondent Nicdao but she left them undated. Petitioner Ching admitted
that he was the one who wrote the date, October 6, 1997, on those checks
when respondent Nicdao refused to pay him.
With respect to the P20,000,000.00 check (Check No. 002524), petitioner
Ching explained that he wrote the date and amount thereon when, upon
his estimation, the money that he regularly lent to respondent Nicdao
beginning October 1995 reached the said sum. He likewise intimated that
prior to 1995, they had another transaction amounting to P1,200,000.00
and, as security therefor, respondent Nicdao similarly issued in his favor
checks in varying amounts of P100,000.00 and P50,000.00. When the said
amount was fully paid, petitioner Ching returned the checks to respondent
Nicdao.
Petitioner Ching maintained that the eleven (11) checks subject of Criminal
Cases Nos. 9433-9443 pertained to respondent Nicdao’s loan transactions
with him beginning October 1995. He also mentioned an instance when
respondent Nicdao’s husband and daughter approached him at a casino to
borrow money from him. He lent themP300,000.00. According to
petitioner Ching, since this amount was also unpaid, he included it in the
other amounts that respondent Nicdao owed to him which
totaled P20,000,000.00 and wrote the said amount on one of respondent
Nicdao’s blank checks that she delivered to him.
Petitioner Ching explained that from October 1995 up to 1997, he regularly
delivered money to respondent Nicdao, in the amount of P1,000,000.00
until the total amount reached P20,000,000.00. He did not ask respondent
Nicdao to acknowledge receiving these amounts. Petitioner Ching claimed
that he was confident that he would be paid by respondent Nicdao
because he had in his possession her blank checks. On the other hand, the
latter allegedly had no cause to fear that he would fill up the checks with
just any amount because they had trust and confidence in each other.
When asked to produce the piece of paper on which he allegedly wrote the
amounts that he lent to respondent Nicdao, petitioner Ching could not
present it; he reasoned that it was not with him at that time.
It was also averred by petitioner Ching that respondent Nicdao confided to
him that she told her daughter Janette, who was married to a foreigner,
that her debt to him was only between P3,000,000.00 and P5,000,000.00.
Petitioner Ching claimed that he offered to accompany respondent Nicdao
to her daughter in order that they could apprise her of the amount that
she owed him. Respondent Nicdao refused for fear that it would cause
disharmony in the family. She assured petitioner Ching, however, that he
would be paid by her daughter.
Petitioner Ching reiterated that after the lapse of one (1) year from the
time respondent Nicdao issued the checks to him, he went to her several
times to collect payment. In all these instances, she said that she had no
cash. Finally, in September 1997, respondent Nicdao allegedly went to his
house and told him that Janette was only willing to pay him
between P3,000,000.00 and P5,000,000.00 because, as far as her daughter
was concerned, that was the only amount borrowed from petitioner Ching.
On hearing this, petitioner Ching angrily told respondent Nicdao that she
should not have allowed her debt to reach P20,000,000.00 knowing that
she would not be able to pay the full amount.
Petitioner Ching identified the demand letter that he and Nuguid sent to
respondent Nicdao. He explained that he no longer informed her about
depositing her checks on his account because she already made that
statement about seeing him in court. Again, he admitted writing the date,
October 6, 1997, on all these checks.
Another witness presented by the prosecution was Imelda Yandoc, an
employee of HSLB. On direct-examination,15 she testified that she worked
as a checking account bookkeeper/teller of the bank. As such, she received
the checks that were drawn against the bank and verified if they were
funded. On October 6, 1997, she received several checks issued by
respondent Nicdao. She knew respondent Nicdao because the latter
maintained a savings and checking account with them. Yandoc identified
the checks subject of Criminal Cases Nos. 9433-9443 and affirmed that
stamped at the back of each was the annotation "DAIF". Further, per the
bank’s records, as of October 8, 1997, only a balance of P300.00 was left in
respondent Nicdao’s checking account andP645.83 in her savings account.
On even date, her account with the bank was considered inactive.
On cross-examination,16 Yandoc stated anew that respondent Nicdao’s
checks bounced on October 7, 1997 for being "DAIF" and her account was
closed the following day, on October 8, 1997. She informed the trial court
that there were actually twenty-five (25) checks of respondent Nicdao that
were dishonored at about the same time. The eleven (11) checks were
purportedly issued in favor of petitioner Ching while the other fourteen
(14) were purportedly issued in favor of Nuguid. Yandoc explained that
respondent Nicdao or her employee would usually call the bank to inquire
if there was an incoming check to be funded.
For its part, the defense proffered the testimonies of respondent Nicdao,
Melanie Tolentino and Jocelyn Nicdao. On direct-
examination,17 respondent Nicdao stated that she only dealt with Nuguid.
She vehemently denied the allegation that she had borrowed money from
both petitioner Ching and Nuguid in the total amount ofP22,950,000.00.
Respondent Nicdao admitted, however, that she had obtained a loan from
Nuguid but only forP2,100,000.00 and the same was already fully paid. As
proof of such payment, she presented a Planters Bank demand draft dated
August 13, 1996 in the amount of P1,200,000.00. The annotation at the
back of the said demand draft showed that it was endorsed and negotiated
to the account of petitioner Ching.
In addition, respondent Nicdao also presented and identified several
cigarette wrappers18 at the back of which appeared computations. She
explained that Nuguid went to the grocery store everyday to collect
interest payments. The principal loan was P2,100,000.00 with 12% interest
per day. Nuguid allegedly wrote the payments for the daily interests at the
back of the cigarette wrappers that she gave to respondent Nicdao.
The principal loan amount of P2,100,000.00 was allegedly delivered by
Nuguid to respondent Nicdao in varying amounts of P100,000.00
and P150,000.00. Respondent Nicdao refuted the averment of petitioner
Ching that prior to 1995, they had another transaction.
With respect to the P20,000,000.00 check, respondent Nicdao admitted
that the signature thereon was hers but denied that she issued the same to
petitioner Ching. Anent the other ten (10) checks, she likewise admitted
that the signatures thereon were hers while the amounts and payee
thereon were written by either Jocelyn Nicdao or Melanie Tolentino, who
were employees of Vignette Superstore and authorized by her to do so.
Respondent Nicdao clarified that, except for the P20,000,000.00 check, the
other ten (10) checks were handed to Nuguid on different occasions.
Nuguid came to the grocery store everyday to collect the interest
payments. Respondent Nicdao said that she purposely left the checks
undated because she would still have to notify Nuguid if she already had
the money to fund the checks.
Respondent Nicdao denied ever confiding to petitioner Ching that she was
afraid that her daughter would get mad if she found out about the amount
that she owed him. What allegedly transpired was that when she already
had the money to pay them (presumably referring to petitioner Ching and
Nuguid), she went to them to retrieve her checks. However, petitioner
Ching and Nuguid refused to return the checks claiming that she
(respondent Nicdao) still owed them money. She demanded that they
show her the checks in order that she would know the exact amount of her
debt, but they refused. It was at this point that she got angry and dared
them to go to court.
After the said incident, respondent Nicdao was surprised to be notified by
HSLB that her check in the amount ofP20,000,000.00 was just presented to
the bank for payment. She claimed that it was only then that she
remembered that sometime in 1995, she was informed by her employee
that one of her checks was missing. At that time, she did not let it bother
her thinking that it would eventually surface when presented to the bank.
Respondent Nicdao could not explain how the said check came into
petitioner Ching’s possession. She explained that she kept her checks in an
ordinary cash box together with a stapler and the cigarette wrappers that
contained Nuguid’s computations. Her saleslady had access to this box.
Respondent Nicdao averred that it was Nuguid who offered to give her a
loan as she would allegedly need money to manage Vignette Superstore.
Nuguid used to run the said store before respondent Nicdao’s daughter
bought it from Nuguid’s family, its previous owner. According to
respondent Nicdao, it was Nuguid who regularly delivered the cash to
respondent Nicdao or, if she was not at the grocery store, to her saleslady.
Respondent Nicdao denied any knowledge that the money loaned to her
by Nuguid belonged to petitioner Ching.
At the continuation of her direct-examination,19 respondent Nicdao said
that she never dealt with petitioner Ching because it was Nuguid who went
to the grocery store everyday to collect the interest payments. When
shown theP20,000,000.00 check, respondent Nicdao admitted that the
signature thereon was hers but she denied issuing it as a blank check to
petitioner Ching. On the other hand, with respect to the other ten (10)
checks, she also admitted that the signatures thereon were hers and that
the amounts thereon were written by either Josie Nicdao or Melanie
Tolentino, her employees whom she authorized to do so. With respect to
the payee, it was purposely left blank allegedly upon instruction of Nuguid
who said that she would use the checks to pay someone else.
On cross-examination,20 respondent Nicdao explained that Josie Nicdao
and Melanie Tolentino were caretakers of the grocery store and that they
manned it when she was not there. She likewise confirmed that she
authorized them to write the amounts on the checks after she had affixed
her signature thereon. She stressed, however, that the P20,000,000.00
check was the one that was reported to her as lost or missing by her
saleslady sometime in 1995. She never reported the matter to the bank
because she was confident that it would just surface when it would be
presented for payment.
Again, respondent Nicdao identified the cigarette wrappers which
indicated the daily payments she had made to Nuguid. The latter allegedly
went to the grocery store everyday to collect the interest payments.
Further, the figures at the back of the cigarette wrappers were written by
Nuguid. Respondent Nicdao asserted that she recognized her handwriting
because Nuguid sometimes wrote them in her presence. Respondent
Nicdao maintained that she had already paid Nuguid the amount
of P1,200,000.00 as evidenced by the Planters Bank demand draft which
she gave to the latter and which was subsequently negotiated and
deposited in petitioner Ching’s account. In connection thereto, respondent
Nicdao refuted the prosecution’s allegation that the demand draft was
payment for a previous transaction that she had with petitioner Ching. She
clarified that the payments that Nuguid collected from her everyday were
only for the interests due. She did not ask Nuguid to make written
acknowledgements of her payments.
Melanie Tolentino was presented to corroborate the testimony of
respondent Nicdao. On direct-examination,21Tolentino stated that she
worked at the Vignette Superstore and she knew Nuguid because her
employer, respondent Nicdao, used to borrow money from her. She knew
petitioner Ching only by name and that he was the "husband" of Nuguid.
As an employee of the grocery store, Tolentino stated that she acted as its
caretaker and was entrusted with the custody of respondent Nicdao’s
personal checks. Tolentino identified her own handwriting on some of the
checks especially with respect to the amounts and figures written thereon.
She said that Nuguid instructed her to leave the space for the payee blank
as she would use the checks to pay someone else. Tolentino added that
she could not recall respondent Nicdao issuing a check to petitioner Ching
in the amount of P20,000,000.00. She confirmed that they lost a check
sometime in 1995. When informed about it, respondent Nicdao told her
that the check could have been issued to someone else, and that it would
just surface when presented to the bank.
Tolentino recounted that Nuguid came to the grocery store everyday to
collect the interest payments of the loan. In some instances, upon
respondent Nicdao’s instruction, Tolentino handed to Nuguid checks that
were already signed by respondent Nicdao. Sometimes, Tolentino would
be the one to write the amount on the checks. Nuguid, in turn, wrote the
amounts on pieces of paper which were kept by respondent Nicdao.
On cross-examination,22 Tolentino confirmed that she was authorized by
respondent Nicdao to fill up the checks and hand them to Nuguid. The
latter came to the grocery store everyday to collect the interest payments.
Tolentino claimed that in 1995, in the course of chronologically arranging
respondent Nicdao’s check booklets, she noticed that a check was missing.
Respondent Nicdao told her that perhaps she issued it to someone and
that it would just turn up in the bank. Tolentino was certain that the
missing check was the same one that petitioner Ching presented to the
bank for payment in the amount of P20,000,000.00.
Tolentino stated that she left the employ of respondent Nicdao sometime
in 1996. After the checks were dishonored in October 1997, Tolentino got
a call from respondent Nicdao. After she was shown a fax copy thereof,
Tolentino confirmed that the P20,000,000.00 check was the same one that
she reported as missing in 1995.
Jocelyn Nicdao also took the witness stand to corroborate the testimony of
the other defense witnesses. On direct-examination,23 she averred that she
was a saleslady at the Vignette Superstore from August 1994 up to April
1998. She knew Nuguid as well as petitioner Ching.
Jocelyn Nicdao further testified that respondent Nicdao was indebted to
Nuguid. Jocelyn Nicdao used to fill up the checks of respondent Nicdao
that had already been signed by her and give them to Nuguid. The latter
came to the grocery store everyday to pick up the interest payments.
Jocelyn Nicdao identified the checks on which she wrote the amounts and,
in some instances, the name of Nuguid as payee. However, most of the
time, Nuguid allegedly instructed her to leave as blank the space for the
payee.
Jocelyn Nicdao identified the cigarette wrappers as the documents on
which Nuguid acknowledged receipt of the interest payments. She
explained that she was the one who wrote the minus entries and they
represented the daily interest payments received by Nuguid.
On cross-examination,24 Jocelyn Nicdao stated that she was a distant
cousin of respondent Nicdao. She stopped working for her in 1998 because
she wanted to take a rest. Jocelyn Nicdao reiterated that she handed the
checks to Nuguid at the grocery store.
After due trial, on December 8, 1998, the MCTC rendered judgment in
Criminal Cases Nos. 9433-9443 convicting respondent Nicdao of eleven
(11) counts of violation of BP 22. The MCTC gave credence to petitioner
Ching’s testimony that respondent Nicdao borrowed money from him in
the total amount of P20,950,000.00. Petitioner Ching
delivered P1,000,000.00 every month to respondent Nicdao from 1995 up
to 1997 until the sum reachedP20,000,000.00. The MCTC also found that
subsequent thereto, respondent Nicdao still borrowed money from
petitioner Ching. As security for these loans, respondent Nicdao issued
checks to petitioner Ching. When the latter deposited the checks (eleven in
all) on October 6, 1997, they were dishonored by the bank for being
"DAIF."
The MCTC explained that the crime of violation of BP 22 has the following
elements: (a) the making, drawing and issuance of any check to apply to
account or for value; (b) the knowledge of the maker, drawer or issuer that
at the time of issue he does not have sufficient funds in or credit with the
drawee bank for the payment of such check in full upon its presentment;
and (c) subsequent dishonor of the check by the drawee bank for
insufficiency of funds or credit or dishonor for the same reason had not the
drawer, without any valid cause, ordered the bank to stop payment. 25
According to the MCTC, all the foregoing elements are present in the case
of respondent Nicdao’s issuance of the checks subject of Criminal Cases
Nos. 9433-9443. On the first element, respondent Nicdao was found by the
MCTC to have made, drawn and issued the checks. The fact that she did
not personally write the payee and date on the checks was not material
considering that under Section 14 of the Negotiable Instruments Law,
"where the instrument is wanting in any material particular, the person in
possession thereof has a prima facie authority to complete it by filling up
the blanks therein. And a signature on a blank paper delivered by the
person making the signature in order that the paper may be converted into
a negotiable instrument operates as a prima facie authority to fill it up as
such for any amount x x x." Respondent Nicdao admitted that she
authorized her employees to provide the details on the checks after she
had signed them.
The MCTC disbelieved respondent Nicdao’s claim that the P20,000,000.00
check was the same one that she lost in 1995. It observed that ordinary
prudence would dictate that a lost check would at least be immediately
reported to the bank to prevent its unauthorized endorsement or
negotiation. Respondent Nicdao made no such report to the bank. Even if
the said check was indeed lost, the MCTC faulted respondent Nicdao for
being negligent in keeping the checks that she had already signed in an
unsecured box.
The MCTC further ruled that there was no evidence to show that petitioner
Ching was not a holder in due course as to cause it (the MCTC) to believe
that the said check was not issued to him. Respondent Nicdao’s admission
of indebtedness was sufficient to prove that there was consideration for
the issuance of the checks.
The second element was also found by the MCTC to be present as it held
that respondent Nicdao, as maker, drawer or issuer, had knowledge that at
the time of issue she did not have sufficient funds in or credit with the
drawee bank for the payment in full of the checks upon their presentment.
As to the third element, the MCTC established that the checks were
subsequently dishonored by the drawee bank for being "DAIF" or drawn
against insufficient funds. Stamped at the back of each check was the
annotation "DAIF." The bank representative likewise testified to the fact of
dishonor.
Under the foregoing circumstances, the MCTC declared that the conviction
of respondent Nicdao was warranted. It stressed that the mere act of
issuing a worthless check was malum prohibitum; hence, even if the checks
were issued in the form of deposit or guarantee, once dishonored, the
same gave rise to the prosecution for and conviction of BP 22.26 The
decretal portion of the MCTC decision reads:
WHEREFORE, in view of the foregoing, the accused is found guilty of
violating Batas Pambansa Blg. 22 in 11 counts, and is hereby ordered to
pay the private complainant the amount of P20,950,000.00 plus 12%
interest per annum from date of filing of the complaint until the total
amount had been paid. The prayer for moral damages is denied for lack of
evidence to prove the same. She is likewise ordered to suffer
imprisonment equivalent to 1 year for every check issued and which
penalty shall be served successively.
SO ORDERED.27
Incidentally, on January 11, 1999, the MCTC likewise rendered its judgment
in Criminal Cases Nos. 9458-9471 and convicted respondent Nicdao of the
fourteen (14) counts of violation of BP 22 filed against her by Nuguid.
On appeal, the Regional Trial Court (RTC) of Dinalupihan, Bataan, Branch 5,
in separate Decisions both dated May 10, 1999, affirmed in toto the
decisions of the MCTC convicting respondent Nicdao of eleven (11) and
fourteen (14) counts of violation of BP 22 in Criminal Cases Nos. 9433-9443
and 9458-9471, respectively.
Respondent Nicdao forthwith filed with the CA separate petitions for
review of the two decisions of the RTC. The petition involving the eleven
(11) checks purportedly issued to petitioner Ching was docketed as CA-G.R.
CR No. 23055 (assigned to the 13th Division). On the other hand, the
petition involving the fourteen (14) checks purportedly issued to Nuguid
was docketed as CA-G.R. CR No. 23054 (originally assigned to the 7th
Division but transferred to the 6th Division). The Office of the Solicitor
General (OSG) filed its respective comments on the said petitions.
Subsequently, the OSG filed in CA-G.R. CR No. 23055 a motion for its
consolidation with CA-G.R. CR No. 23054. The OSG prayed that CA-G.R. CR
No. 23055 pending before the 13th Division be transferred and
consolidated with CA-G.R. CR No. 23054 in accordance with the Revised
Internal Rules of the Court of Appeals (RIRCA).
Acting on the motion for consolidation, the CA in CA-G.R. CR No. 23055
issued a Resolution dated October 19, 1999 advising the OSG to file the
motion in CA-G.R. CR No. 23054 as it bore the lowest number. Respondent
Nicdao opposed the consolidation of the two cases. She likewise filed her
reply to the comment of the OSG in CA-G.R. CR No. 23055.
On November 22, 1999, the CA (13th Division) rendered the assailed
Decision in CA-G.R. CR No. 23055 acquitting respondent Nicdao of the
eleven (11) counts of violation of BP 22 filed against her by petitioner
Ching. The decretal portion of the assailed CA Decision reads:
WHEREFORE, being meritorious, the petition for review is hereby
GRANTED. Accordingly, the decision dated May 10, 1999, of the Regional
Trial Court, 3rd Judicial Region, Branch 5, Bataan, affirming the decision
dated December 8, 1998, of the First Municipal Circuit Trial Court of
Dinalupihan-Hermosa, Bataan, convicting petitioner Clarita S. Nicdao in
Criminal Cases No. 9433 to 9443 of violation of B.P. Blg. 22 is REVERSED
and SET ASIDE and another judgment rendered ACQUITTING her in all
these cases, with costs de oficio.
SO ORDERED.28
On even date, the CA issued an Entry of Judgment declaring that the above
decision has become final and executory and is recorded in the Book of
Judgments.
In acquitting respondent Nicdao in CA-G.R. CR No. 23055, the CA made the
following factual findings:
Petitioner [respondent herein] Clarita S. Nicdao, a middle-aged mother and
housekeeper who only finished high school, has a daughter, Janette Boyd,
who is married to a wealthy expatriate.
Complainant [petitioner herein] Samson Ching is a Chinese national, who
claimed he is a salesman of La Suerte Cigar and Cigarette Factory.
Emma Nuguid, complainant’s live-in partner, is a CPA and formerly
connected with Sycip, Gorres and Velayo. Nuguid used to own a grocery
store now known as the Vignette Superstore. She sold this grocery store,
which was about to be foreclosed, to petitioner’s daughter, Janette Boyd.
Since then, petitioner began managing said store. However, since
petitioner could not always be at the Vignette Superstore to keep shop,
she entrusted to her salesladies, Melanie Tolentino and Jocelyn Nicdao,
pre-signed checks, which were left blank as to amount and the payee, to
cover for any delivery of merchandise sold at the store. The blank and
personal checks were placed in a cash box at Vignette Superstore and were
filled up by said salesladies upon instruction of petitioner as to amount,
payee and date.
Soon thereafter, Emma Nuguid befriended petitioner and offered to lend
money to the latter which could be used in running her newly acquired
store. Nuguid represented to petitioner that as former manager of the
Vignette Superstore, she knew that petitioner would be in need of credit
to meet the daily expenses of running the business, particularly in the daily
purchases of merchandise to be sold at the store. After Emma Nuguid
succeeded in befriending petitioner, Nuguid was able to gain access to the
Vignette Superstore where petitioner’s blank and pre-signed checks were
kept.29
In addition, the CA also made the finding that respondent Nicdao
borrowed money from Nuguid in the total amount of P2,100,000.00
secured by twenty-four (24) checks drawn against respondent Nicdao’s
account with HSLB. Upon Nuguid’s instruction, the checks given by
respondent Nicdao as security for the loans were left blank as to the payee
and the date. The loans consisted of (a) P950,000.00 covered by ten (10)
checks subject of the criminal complaints filed by petitioner Ching (CA-G.R.
CR No. 23055); and (b) P1,150,000.00 covered by fourteen (14) checks
subject of the criminal complaints filed by Nuguid (CA-G.R. CR No. 23054).
The loans totaledP2,100,000.00 and they were transacted between
respondent Nicdao and Nuguid only. Respondent Nicdao never dealt with
petitioner Ching.
Against the foregoing factual findings, the CA declared that, based on the
evidence, respondent Nicdao had already fully paid the loans. In particular,
the CA referred to the Planters Bank demand draft in the amount
ofP1,200,000.00 which, by his own admission, petitioner Ching had
received. The appellate court debunked petitioner Ching’s allegation that
the said demand draft was payment for a previous transaction. According
to the CA, petitioner Ching failed to adduce evidence to prove the
existence of a previous transaction between him and respondent Nicdao.
Apart from the demand draft, the CA also stated that respondent Nicdao
made interest payments on a daily basis to Nuguid as evidenced by the
computations written at the back of the cigarette wrappers. Based on
these computations, as of July 21, 1997, respondent Nicdao had made a
total of P5,780,000.00 payments to Nuguid for the interests alone. Adding
up this amount and that of the Planters Bank demand draft, the CA placed
the payments made by respondent Nicdao to Nuguid as already amounting
to P6,980,000.00 for the principal loan amount of only P2,100,000.00.
The CA negated petitioner Ching’s contention that the payments as
reflected at the back of the cigarette wrappers could be applied only to the
interests due. Since the transactions were not evidenced by any document
or writing, the CA ratiocinated that no interests could be collected
because, under Article 1956 of the Civil Code, "no interest shall be due
unless it has been expressly stipulated in writing."
The CA gave credence to the testimony of respondent Nicdao that when
she had fully paid her loans to Nuguid, she tried to retrieve her checks.
Nuguid, however, refused to return the checks to respondent Nicdao.
Instead, Nuguid and petitioner Ching filled up the said checks to make it
appear that: (a) petitioner Ching was the payee in five checks; (b) the six
checks were payable to cash; (c) Nuguid was the payee in fourteen (14)
checks. Petitioner Ching and Nuguid then put the date October 6, 1997 on
all these checks and deposited them the following day. On October 8,
1997, through a joint demand letter, they informed respondent Nicdao
that her checks were dishonored by HSLB and gave her three days to settle
her indebtedness or else face prosecution for violation of BP 22.
With the finding that respondent Nicdao had fully paid her loan obligations
to Nuguid, the CA declared that she could no longer be held liable for
violation of BP 22. It was explained that to be held liable under BP 22, it
must be established, inter alia, that the check was made or drawn and
issued to apply on account or for value. According to the CA, the word
"account" refers to a pre-existing obligation, while "for value" means an
obligation incurred simultaneously with the issuance of the check. In the
case of respondent Nicdao’s checks, the pre-existing obligations secured by
them were already extinguished after full payment had been made by
respondent Nicdao to Nuguid. Obligations are extinguished by, among
others, payment.30 The CA believed that when petitioner Ching and Nuguid
refused to return respondent Nicdao’s checks despite her total payment
of P6,980,000.00 for the loans secured by the checks, petitioner Ching and
Nuguid were using BP 22 to coerce respondent Nicdao to pay a debt which
she no longer owed them.
With respect to the P20,000,000.00 check, the CA was not convinced by
petitioner Ching’s claim that he deliveredP1,000,000.00 every month to
respondent Nicdao until the amount reached P20,000,000.00 and, when
she refused to pay the same, he filled up the check, which she earlier
delivered to him as security for the loans, by writing thereon the said
amount. In disbelieving petitioner Ching, the CA pointed out that, contrary
to his assertion, he was never employed by the La Suerte Cigar and
Cigarette Manufacturing per the letter of Susan Resurreccion, Vice-
President and Legal Counsel of the said company. Moreover, as admitted
by petitioner Ching, he did not own the house where he and Nuguid lived.
Moreover, the CA characterized as incredible and contrary to human
experience that petitioner Ching would, as he claimed, deliver a total sum
of P20,000,000.00 to respondent Nicdao without any documentary proof
thereof, e.g., written acknowledgment that she received the same. On the and undelivered. Hence, petitioner Ching did not acquire any right or
other hand, it found plausible respondent Nicdao’s version of the story interest therein and could not assert any cause of action founded on the
that the P20,000,000.00 check was the same one that was missing way
back in 1995. The CA opined that this missing check surfaced in the hands stolen checks.32 Under these circumstances, the CA concluded that
of petitioner Ching who, in cahoots with Nuguid, wrote the respondent could not be held liable for violation of BP 22.
amount P20,000,000.00 thereon and deposited it in his account. To the
mind of the CA, the inference that the check was stolen was anchored on The Petitioner’s Case
competent circumstantial evidence. Specifically, Nuguid, as previous
manager/owner of the grocery store, had access thereto. Likewise
As mentioned earlier, the instant petition pertains and is limited solely to
applicable, according to the CA, was the presumption that the person in
the civil aspect of the case as petitioner Ching argues that notwithstanding
possession of the stolen article was presumed to be guilty of taking the
respondent Nicdao’s acquittal of the eleven (11) counts of violation of BP
stolen article.31
22, she should be held liable to pay petitioner Ching the amounts of the
dishonored checks in the aggregate sum ofP20,950,000.00.
The CA emphasized that the P20,000,000.00 check was never delivered by
respondent Nicdao to petitioner Ching. As such, the said check without the
He urges the Court to review the findings of facts made by the CA as they
details as to the date, amount and payee, was an incomplete and
are allegedly based on a misapprehension of facts and manifestly
undelivered instrument when it was stolen and ended up in petitioner
erroneous and contradicted by the evidence. Further, the CA’s factual
Ching’s hands. On this point, the CA applied Sections 15 and 16 of the
findings are in conflict with those of the RTC and MCTC.
Negotiable Instruments Law:
Petitioner Ching vigorously argues that notwithstanding respondent
SEC. 15. Incomplete instrument not delivered. – Where an incomplete
Nicdao’s acquittal by the CA, the Supreme Court has the jurisdiction and
instrument has not been delivered, it will not, if completed and negotiated
authority to resolve and rule on her civil liability. He invokes Section 1, Rule
without authority, be a valid contract in the hands of any holder, as against
111 of the Revised Rules of Court which, prior to its amendment, provided,
any person whose signature was placed thereon before delivery.
in part:

SEC. 16. Delivery; when effectual; when presumed. – Every contract on a

SEC. 1. Institution of criminal and civil actions. – When a criminal action is
negotiable instrument is incomplete and revocable until delivery of the
instituted, the civil action for the recovery of civil liability is impliedly
instrument for the purpose of giving effect thereto. As between immediate
instituted with the criminal action, unless the offended party waives the
parties and as regards a remote party other than a holder in due course,
civil action, reserves his right to institute it separately, or institutes the civil
the delivery, in order to be effectual, must be made either by or under the
action prior to the criminal action.
authority of the party making, drawing, accepting or indorsing, as the case
may be; and, in such case, the delivery may be shown to have been
Such civil action includes the recovery of indemnity under the Revised
conditional, or for a special purpose only, and not for the purpose of
Penal Code, and damages under Articles 32, 33, 34 and 2176 of the Civil
transferring the property. But where the instrument is in the hands of a
Code of the Philippines arising from the same act or omission of the
holder in due course, a valid delivery thereof by all parties prior to him so
accused. x x x
as to make them liable to him is conclusively presumed. And where the
instrument is no longer in the possession of a party whose signature
appears thereon, a valid and intentional delivery by him is presumed until Supreme Court Circular No. 57-9733 dated September 16, 1997 is also cited
the contrary is proved. as it provides in part:

The CA held that the P20,000,000.00 check was filled up by petitioner 1. The criminal action for violation of Batas Pambansa Blg. 22 shall be
Ching without respondent Nicdao’s authority. Further, it was incomplete deemed to necessarily include the corresponding civil action, and no
reservation to file such civil action separately shall be allowed or
recognized. x x x
Petitioner Ching theorizes that, under Section 1, Rule 111 of the Revised
Rules of Court, the civil action for the recovery of damages under Articles
32, 33, 34, and 2176 arising from the same act or omission of the accused
is impliedly instituted with the criminal action. Moreover, under the above-
quoted Circular, the criminal action for violation of BP 22 necessarily
includes the corresponding civil action, which is the recovery of the
amount of the dishonored check representing the civil obligation of the
drawer to the payee.
In seeking to enforce the alleged civil liability of respondent Nicdao,
petitioner Ching maintains that she had loan obligations to him
totaling P20,950,000.00. The existence of the same is allegedly established
by his testimony before the MCTC. Also, he asks the Court to take judicial
notice that for a monetary loan secured by a check, the check itself is the
evidence of indebtedness.
He insists that, contrary to her protestation, respondent Nicdao also
transacted with him, not only with Nuguid. Petitioner Ching pointed out
that during respondent Nicdao’s testimony, she referred to her creditors in
plural form, e.g. "[I] told them, most checks that I issued I will inform them
if I have money." Even respondent Nicdao’s employees allegedly knew
him; they testified that Nuguid instructed them at times to leave as blank
the payee on the checks as they would be paid to someone else, who
turned out to be petitioner Ching.
It was allegedly erroneous for the CA to hold that he had no capacity to
lend P20,950,000.00 to respondent Nicdao. Petitioner Ching clarified that
what he meant when he testified before the MCTC was that he was
engaged in dealership with La Suerte Cigar and Cigarette Manufacturing,
and not merely its sales agent. He stresses that he owns a warehouse and
is also in the business of lending money. Further, the CA’s reasoning that
he could not possibly have lent P20,950,000.00 to respondent Nicdao since
petitioner Ching and Nuguid did not own the house where they live, is
allegedly non sequitur.
Petitioner Ching maintains that, contrary to the CA’s finding, the Planters
Bank demand draft for P1,200,000.00 was in payment for respondent
Nicdao’s previous loan transaction with him. Apart from
the P20,000,000.00 check, the other ten (10) checks (totaling P950,000.00)
were allegedly issued by respondent Nicdao to petitioner Ching as security
for the loans that she obtained from him from 1995 to 1997. The existence
of another loan obligation prior to the said period was allegedly
established by the testimony of respondent Nicdao’s own witness, Jocelyn
Nicdao, who testified that when she started working in Vignette
Superstore in 1994, she noticed that respondent Nicdao was already
indebted to Nuguid.
Petitioner Ching also takes exception to the CA’s ruling that the payments
made by respondent Nicdao as reflected on the computations at the back
of the cigarette wrappers were for both the principal loan and interests. He
insists that they were for the interests alone. Even respondent Nicdao’s
testimony allegedly showed that they were daily interest payments.
Petitioner Ching further avers that the interest payments
totaling P5,780,000.00 can only mean that, contrary to respondent
Nicdao’s claim, her loan obligations amounted to much more
thanP2,100,000.00. Further, she is allegedly estopped from questioning
the interests because she willingly paid the same.
Petitioner Ching also harps on respondent Nicdao’s silence when she
received his and Nuguid’s demand letter to her. Through the said letter,
they notified her that the twenty-five (25) checks valued at P22,100,000.00
were dishonored by the HSLB, and that she had three days to settle her
ndebtedness with them, otherwise, face prosecution. Respondent Nicdao’s
silence, i.e., her failure to deny or protest the same by way of reply, vis-à-
vis the demand letter, allegedly constitutes an admission of the statements
contained therein.
On the other hand, the MCTC’s decision, as affirmed by the RTC, is
allegedly based on the evidence on record; it has been established that the
checks were respondent Nicdao’s personal checks, that the signatures
thereon were hers and that she had issued them to petitioner Ching. With
respect to the P20,000,000.00 check, petitioner Ching assails the CA’s
ruling that it was stolen and was never delivered or issued by respondent
Nicdao to him. The issue of the said check being stolen was allegedly not
raised during trial. Further, her failure to report the alleged theft to the
bank to stop payment of the said lost or missing check is allegedly contrary
to human experience. Petitioner Ching describes respondent Nicdao’s
defense of stolen or lost check as incredible and, therefore, false.
Aside from the foregoing substantive issues that he raised, petitioner Ching
also faults the CA for not acting and ordering the consolidation of CA-G.R.
CR No. 23055 with CA-G.R. CR No. 23054. He informs the Court that latter
case is still pending with the CA.
In fine, it is petitioner Ching’s view that the CA gravely erred in
disregarding the findings of the MCTC, as affirmed by the RTC, and submits
that there is more than sufficient preponderant evidence to hold
respondent Nicdao civilly liable to him in the amount of P20,950,000.00.
He thus prays that the Court direct respondent Nicdao to pay him the said
amount plus 12% interest per annum computed from the date of written
demand until the total amount is fully paid.
The Respondent’s Counter-Arguments
Respondent Nicdao urges the Court to deny the petition. She posits
preliminarily that it is barred under Section 2(b), Rule 111 of the Revised
Rules of Court which states:
SEC. 2. Institution of separate of civil action. - Except in the cases provided
for in Section 3 hereof, after the criminal action has been commenced, the
civil action which has been reserved cannot be instituted until final
judgment in the criminal action.
xxxx
(b) Extinction of the penal action does not carry with it extinction of the
civil, unless the extinction proceeds from a declaration in a final judgment
that the fact from which the civil might arise did not exist.
According to respondent Nicdao, the assailed CA decision has already
made a finding to the effect that the fact upon which her civil liability
might arise did not exist. She refers to the ruling of the CA that
the P20,000,000.00 check was stolen; hence, petitioner Ching did not
acquire any right or interest over the said check and could not assert any
cause of action founded on the said check. Consequently, the CA held that
respondent Nicdao had no obligation to make good the stolen check and
cannot be held liable for violation of BP 22. She also refers to the CA’s
pronouncement relative to the ten (10) other checks that they were not
issued to apply on account or for value, considering that the loan
obligations secured by these checks had already been extinguished by her
full payment thereof.
To respondent Nicdao’s mind, these pronouncements are equivalent to a
finding that the facts upon which her civil liability may arise do not exist.
The instant petition, which seeks to enforce her civil liability based on the
eleven (11) checks, is thus allegedly already barred by the final and
executory decision acquitting her.
In any case, respondent Nicdao contends that the CA did not commit
serious misapprehension of facts when it found that the P20,000,000.00
check was a stolen check and that she never made any transaction with
petitioner Ching. Moreover, the other ten (10) checks were not issued to
apply on account or for value. These findings are allegedly supported by
the evidence on record which consisted of the respective testimonies of
the defense witnesses to the effect that: respondent Nicdao had the
practice of leaving pre-signed checks placed inside an unsecured cash box
in the Vignette Superstore; the salesladies were given the authority to fill
up the said checks as to the amount, payee and date; Nuguid beguiled
respondent Nicdao to obtain loans from her; as security for the loans,
respondent Nicdao issued checks to Nuguid; when the salesladies gave the
checks to Nuguid, she instructed them to leave blank the payee and date;
Nuguid had access to the grocery store; in 1995, one of the salesladies
reported that a check was missing; in 1997, when she had fully paid her
loans to Nuguid, respondent Nicdao tried to retrieve her checks but Nuguid
and petitioner Ching falsely told her that she still owed them money; they
then maliciously filled up the checks making it appear that petitioner Ching
was the payee in the five checks and the six others were payable to "cash";
and knowing fully well that these checks were not funded because
respondent Nicdao already fully paid her loans, petitioner Ching and
Nuguid deposited the checks and caused them to be dishonored by HSLB.
It is pointed out by respondent Nicdao that her testimony (that
the P20,000,000.00 check was the same one that she lost sometime in
1995) was corroborated by the respective testimonies of her employees.
Another indication that it was stolen was the fact that among all the
checks which ended up in the hands of petitioner Ching and Nuguid, only
the P20,000,000.00 check was fully typewritten; the rest were invariably
handwritten as to the amounts, payee and date.
Respondent Nicdao defends the CA’s conclusion that the P20,000,000.00
check was stolen on the ground that an appeal in a criminal case throws
open the whole case to the appellate court’s scrutiny. In any event, she
maintains that she had been consistent in her theory of defense and
merely relied on the disputable presumption that the person in possession
of a stolen article is presumed to be the author of the theft.
Considering that it was stolen, respondent Nicdao argues,
the P20,000,000.00 check was an incomplete and undelivered instrument
in the hands of petitioner Ching and he did not acquire any right or interest
therein. Further, he cannot assert any cause of action founded on the said
stolen check. Accordingly, petitioner Ching’s attempt to collect payment on
the said check through the instant petition must fail.
Respondent Nicdao describes as downright incredible petitioner Ching’s
testimony that she owed him a total sum of P20,950,000.00 without any
documentary proof of the loan transactions. She submits that it is contrary
to human experience for loan transactions involving such huge amounts of
money to be devoid of any documentary proof. In relation thereto,
respondent Nicdao underscores that petitioner Ching lied about being
employed as a salesman of La Suerte Cigar and Cigarette Manufacturing. It
is underscored that he has not adequately shown that he possessed the
financial capacity to lend such a huge amount to respondent Nicdao as he
so claimed.
Neither could she be held liable for the ten (10) other checks (in the total
amount of P950,000,000.00) because as respondent Nicdao asseverates,
she merely issued them to Nuguid as security for her loans obtained from
the latter beginning October 1995 up to 1997. As evidenced by the
Planters Bank demand draft in the amount ofP1,200,000.00, she already
made payment in 1996. The said demand draft was negotiated to
petitioner Ching’s account and he admitted receipt thereof. Respondent
Nicdao belies his claim that the demand draft was payment for a prior
existing obligation. She asserts that petitioner Ching was unable to present
evidence of such a previous transaction.
In addition to the Planters Bank demand draft, respondent Nicdao insists
that petitioner Ching received, through Nuguid, cash payments as
evidenced by the computations written at the back of the cigarette
wrappers. Nuguid went to the Vignette Superstore everyday to collect
these payments. The other defense witnesses corroborated this fact.
Petitioner Ching allegedly never disputed the accuracy of the accounts
appearing on these cigarette wrappers; nor did he dispute their
authenticity and accuracy.
Based on the foregoing evidence, the CA allegedly correctly held that,
computing the amount of the Planters Bank demand draft (P1,200,000.00)
and those reflected at the back of the cigarette wrappers (P5,780,000.00),
respondent Nicdao had already paid petitioner Ching and Nuguid a total
sum of P6,980,000.00 for her loan obligations totaling only P950,000.00, as
secured by the ten (10) HSLB checks excluding the stolenP20,000,000.00
check.
Respondent Nicdao rebuts petitioner Ching’s argument (that the daily
payments were applied to the interests), and claims that this is illegal.
Petitioner Ching cannot insist that the daily payments she made applied
only to the interests on the loan obligations, considering that there is
admittedly no document evidencing these loans, hence, no written
stipulation for the payment of interests thereon. On this point, she invokes
Article 1956 of the Civil Code, which proscribes the collection of interest
payments unless expressly stipulated in writing.
Respondent Nicdao emphasizes that the ten (10) other checks that she
issued to Nuguid as security for her loans had already been discharged
upon her full payment thereof. It is her belief that these checks can no
longer be used to coerce her to pay a debt that she does not owe.
On the CA’s failure to consolidate CA-G.R. CR No. 23055 and CA-G.R. CR
No. 23054, respondent Nicdao proffers the explanation that under the
RIRCA, consolidation of the cases is not mandatory. In fine, respondent
Nicdao urges the Court to deny the petition as it failed to discharge the
burden of proving her civil liability with the required preponderance of
evidence. Moreover, the CA’s acquittal of respondent Nicdao is premised
on the finding that, apart from the stolen check, the ten (10) other checks
were not made to apply to a valid, due and demandable obligation. This, in
effect, is a categorical ruling that the fact from which the civil liability of
respondent Nicdao may arise does not exist.
The Court’s Rulings
The petition is denied for lack of merit.
Notwithstanding respondent Nicdao’s acquittal, petitioner Ching is entitled
to appeal the civil aspect of the case within the reglementary period
It is axiomatic that "every person criminally liable for a felony is also civilly
liable."34 Under the pertinent provision of the Revised Rules of Court, the
civil action is generally impliedly instituted with the criminal action. At the
time of petitioner Ching’s filing of the Informations against respondent
Nicdao, Section 1,35 Rule 111 of the Revised Rules of Court, quoted earlier,
provided in part:
SEC. 1. Institution of criminal and civil actions. – When a criminal action is
instituted, the civil action for the recovery of civil liability is impliedly
instituted with the criminal action, unless the offended party waives the
civil action, reserves his right to institute it separately, or institutes the civil
action prior to the criminal action.
Such civil action includes the recovery of indemnity under the Revised
Penal Code, and damages under Articles 32, 33, 34 and 2176 of the Civil
Code of the Philippines arising from the same act or omission of the
accused.
xxxx
As a corollary to the above rule, an acquittal does not necessarily carry
with it the extinguishment of the civil liability of the accused. Section
2(b)36 of the same Rule, also quoted earlier, provided in part:
(b) Extinction of the penal action does not carry with it extinction of the
civil, unless the extinction proceeds from a declaration in a final judgment
that the fact from which the civil might arise did not exist.
It is also relevant to mention that judgments of acquittal are required to
state "whether the evidence of the prosecution absolutely failed to prove
the guilt of the accused or merely failed to prove his guilt beyond
reasonable doubt. In either case, the judgment shall determine if the act or
omission from which the civil liability might arise did not exist."37
38
In Sapiera v. Court of Appeals, the Court enunciated that the civil liability
is not extinguished by acquittal: (a) where the acquittal is based on
reasonable doubt; (b) where the court expressly declares that the liability
of the accused is not criminal but only civil in nature; and (c) where the civil
liability is not derived from or based on the criminal act of which the
accused is acquitted. Thus, under Article 29 of the Civil Code –
ART. 29. When the accused in a criminal prosecution is acquitted on the
ground that his guilt has not been proved beyond reasonable doubt, a civil
action for damages for the same act or omission may be instituted. Such
action requires only a preponderance of evidence. Upon motion of the
defendant, the court may require the plaintiff to file a bond to answer for
damages in case the complaint should be found to be malicious.
If in a criminal case the judgment of acquittal is based upon reasonable
doubt, the court shall so declare. In the absence of any declaration to that
effect, it may be inferred from the text of the decision whether or not the
acquittal is due to that ground.
The Court likewise expounded in Salazar v. People39 the consequences of
an acquittal on the civil aspect in this wise:
The acquittal of the accused does not prevent a judgment against him on
the civil aspect of the criminal case where: (a) the acquittal is based on
reasonable doubt as only preponderance of evidence is required; (b) the
court declared that the liability of the accused is only civil; (c) the civil
liability of the accused does not arise from or is not based upon the crime
of which the accused is acquitted. Moreover, the civil action based on the
delict is extinguished if there is a finding in the final judgment in the
criminal action that the act or omission from which the civil liability may
arise did not exist or where the accused did not commit the act or
omission imputed to him.
If the accused is acquitted on reasonable doubt but the court renders
judgment on the civil aspect of the criminal case, the prosecution cannot
appeal from the judgment of acquittal as it would place the accused in
double jeopardy. However, the aggrieved party, the offended party or the
accused or both may appeal from the judgment on the civil aspect of the
case within the period therefor.
From the foregoing, petitioner Ching correctly argued that he, as the
offended party, may appeal the civil aspect of the case notwithstanding
respondent Nicdao’s acquittal by the CA. The civil action was impliedly
instituted with the criminal action since he did not reserve his right to
institute it separately nor did he institute the civil action prior to the
criminal action.
Following the long recognized rule that "the appeal period accorded to the
accused should also be available to the offended party who seeks redress
of the civil aspect of the decision," the period to appeal granted to
petitioner Ching is the same as that granted to the accused. 40 With
petitioner Ching’s timely filing of the instant petition for review of the civil
aspect of the CA’s decision, the Court thus has the jurisdiction and
authority to determine the civil liability of respondent Nicdao
notwithstanding her acquittal.
In order for the petition to prosper, however, it must establish that the
judgment of the CA acquitting respondent Nicdao falls under any of the
three categories enumerated in Salazar and Sapiera, to wit:
(a) where the acquittal is based on reasonable doubt as only
preponderance of evidence is required;
(b) where the court declared that the liability of the accused is
only civil; and
(c) where the civil liability of the accused does not arise from or is
not based upon the crime of which the accused is acquitted.
Salazar also enunciated that the civil action based on the delict is
extinguished if there is a finding in the final judgment in the criminal action
that the act or omission from which the civil liability may arise did not exist
or where the accused did not commit the act or omission imputed to him.
For reasons that will be discussed shortly, the Court holds that respondent
Nicdao cannot be held civilly liable to petitioner Ching.
The acquittal of respondent Nicdao likewise effectively extinguished her
civil liability
A painstaking review of the case leads to the conclusion that respondent
Nicdao’s acquittal likewise carried with it the extinction of the action to
enforce her civil liability. There is simply no basis to hold respondent
Nicdao civilly liable to petitioner Ching.
First, the CA’s acquittal of respondent Nicdao is not merely based on
reasonable doubt. Rather, it is based on the finding that she did not
commit the act penalized under BP 22. In particular, the CA found that
the P20,000,000.00 check was a stolen check which was never issued nor
delivered by respondent Nicdao to petitioner Ching. As such, according to
the CA, petitioner Ching "did not acquire any right or interest over Check
No. 002524 and cannot assert any cause of action founded on said
check,"41 and that respondent Nicdao "has no obligation to make good the
stolen check and cannot, therefore, be held liable for violation of B.P. Blg.
22."42
With respect to the ten (10) other checks, the CA established that the
loans secured by these checks had already been extinguished after full
payment had been made by respondent Nicdao. In this connection, the
second element for the crime under BP 22, i.e., "that the check is made or
drawn and issued to apply on account or for value," is not present.
Second, in acquitting respondent Nicdao, the CA did not adjudge her to be
civilly liable to petitioner Ching. In fact, the CA explicitly stated that she
had already fully paid her obligations. The CA computed the payments
made by respondent Nicdao vis-à-vis her loan obligations in this manner:
Clearly, adding the payments recorded at the back of the cigarette cartons
by Emma Nuguid in her own handwriting totaling P5,780,000.00 and
the P1,200,000.00 demand draft received by Emma Nuguid, it would
appear that petitioner [respondent herein] had already made payments in
the total amount of P6,980,000.00 for her loan obligation of
only P2,100,000.00 (P950,000.00 in the case at bar and P1,150,000.00 in
CA-G.R. CR No. 23054).43
On the other hand, its finding relative to the P20,000,000.00 check that it
was a stolen check necessarily absolved respondent Nicdao of any civil
liability thereon as well.
Third, while petitioner Ching attempts to show that respondent Nicdao’s
liability did not arise from or was not based upon the criminal act of which
she was acquitted (ex delicto) but from her loan obligations to him (ex
contractu), however, petitioner Ching miserably failed to prove by
preponderant evidence the existence of these unpaid loan obligations.
Significantly, it can be inferred from the following findings of the CA in its
decision acquitting respondent Nicdao that the act or omission from which
her civil liability may arise did not exist. On theP20,000,000.00 check, the
CA found as follows:
True, indeed, the missing pre-signed and undated check no. 002524
surfaced in the possession of complainant Ching who, in cahoots with his
paramour Emma Nuguid, filled up the blank check with his name as payee
and in the fantastic amount of P20,000,000.00, dated it October 6, 1997,
and presented it to the bank on October 7, 1997, along with the other
checks, for payment. Therefore, the inference that the check was stolen is
anchored on competent circumstantial evidence. The fact already
established is that Emma Nuguid , previous owner of the store, had access
to said store. Moreover, the possession of a thing that was stolen , absent
a credible reason, as in this case, gives rise to the presumption that the
person in possession of the stolen article is presumed to be guilty of taking
the stolen article (People v. Zafra, 237 SCRA 664).
As previously shown, at the time check no. 002524 was stolen, the said
check was blank in its material aspect (as to the name of payee, the
amount of the check, and the date of the check), but was already pre-
signed by petitioner. In fact, complainant Ching himself admitted that
check no. 002524 in his possession was a blank check (TSN, Jan. 7, 1998,
pp. 24-27, Annex J, Petition).
Moreover, since it has been established that check no. 002524 had been
missing since 1995 (TSN, Sept. 9, 1998, pp. 14-15, Annex DD, Petition; TSN,
Sept. 10, 1998, pp. 43-46, Annex EE, Petition), it is abundantly clear that
said check was never delivered to complainant Ching. Check no. 002524
was an incomplete and undelivered instrument when it was stolen and
ended up in the hands of complainant Ching. Sections 15 and 16 of the
Negotiable Instruments Law provide:
xxxx
In the case of check no. 002524, it is admitted by complainant Ching that
said check in his possession was a blank check and was subsequently
completed by him alone without authority from petitioner. Inasmuch as
check no. 002524 was incomplete and undelivered in the hands of
complainant Ching, he did not acquire any right or interest therein and
cannot, therefore, assert any cause of action founded on said stolen check
(Development Bank of the Philippines v. Sima We, 219 SCRA 736, 740).
It goes without saying that since complainant Ching did not acquire any
right or interest over check no. 002524 and cannot assert any cause of
action founded on said check, petitioner has no obligation to make good
the stolen check and cannot, therefore, be held liable for violation of B.P.
Blg. 22.44
Anent the other ten (10) checks, the CA made the following findings:
Evidence sufficiently shows that the loans secured by the ten (10) checks
involved in the cases subject of this petition had already been paid. It is not
controverted that petitioner gave Emma Nuguid a demand draft valued
atP1,200,000 to pay for the loans guaranteed by said checks and other
checks issued to her. Samson Ching admitted having received the demand
draft which he deposited in his bank account. However, complainant
Samson Ching claimed that the said demand draft represents payment for
a previous obligation incurred by petitioner. However, complainant Ching
failed to adduce any evidence to prove the existence of the alleged
obligation of the petitioner prior to those secured by the subject checks.
Apart from the payment to Emma Nuguid through said demand draft, it is
also not disputed that petitioner made cash payments to Emma Nuguid
who collected the payments almost daily at the Vignette Superstore. As of
July 21, 1997, Emma Nuguid collected cash payments amounting to
approximately P5,780,000.00. All of these cash payments were recorded at
the back of cigarette cartons by Emma Nuguid in her own handwriting, the
authenticity and accuracy of which were never denied by either
complainant Ching or Emma Nuguid.
Clearly, adding the payments recorded at the back of the cigarette cartons
by Emma Nuguid in her own handwriting totaling P5,780,000.00 and
the P1,200,000.00 demand draft received by Emma Nuguid, it would
appear that petitioner had already made payments in the total amount
of P6,980,000.00 for her loan in the total amount of P6,980,000.00 for her
loan obligation of only P2,100,000.00 (P950,000.00 in the case at bar and
P1,150,000.00 in CA-G.R. CR No. 23054).45
Generally checks may constitute evidence of indebtedness.46 However, in
view of the CA’s findings relating to the eleven (11) checks - that
the P20,000,000.00 was a stolen check and the obligations secured by the
other ten (10) checks had already been fully paid by respondent Nicdao –
they can no longer be given credence to establish respondent Nicdao’s civil
liability to petitioner Ching. Such civil liability, therefore, must be
established by preponderant evidence other than the discredited checks.
After a careful examination of the records of the case, 47 the Court holds
that the existence of respondent Nicdao’s civil liability to petitioner Ching
in the amount of P20,950,000.00 representing her unpaid obligations to
the latter has not been sufficiently established by preponderant evidence.
Petitioner Ching mainly relies on his testimony before the MCTC to
establish the existence of these unpaid obligations. In gist, he testified that
from October 1995 up to 1997, respondent Nicdao obtained loans from
him in the total amount of P20,950,000.00. As security for her obligations,
she issued eleven (11) checks which were invariably blank as to the date,
amounts and payee. When respondent Nicdao allegedly refused to pay her
obligations despite his due demand, petitioner filled up the checks in his
possession with the corresponding amounts and date and deposited them
in his account. They were subsequently dishonored by the HSLB for being
"DAIF" and petitioner Ching accordingly filed the criminal complaints
against respondent Nicdao for violation of BP 22.
It is a basic rule in evidence that the burden of proof lies on the party who
makes the allegations – Et incumbit probatio, qui dicit, non qui negat; cum
per rerum naturam factum negantis probatio nulla sit (The proof lies upon
him who affirms, not upon him who denies; since, by the nature of things,
he who denies a fact cannot produce any proof).48 In civil cases, the party
having the burden of proof must establish his case by a preponderance of
evidence. Preponderance of evidence is the weight, credit, and value of
the aggregate evidence on either side and is usually considered to be
synonymous with the term "greater weight of evidence" or "greater weight
of the credible evidence." Preponderance of evidence is a phrase which, in
the last analysis, means probability of the truth. It is evidence which is
more convincing to the court as worthy of belief than that which is offered
in opposition thereto.49 Section 1, Rule 133 of the Revised Rules of Court
offers the guidelines in determining preponderance of evidence:
SEC. 1. Preponderance of evidence, how determined. – In civil cases, the
party having the burden of proof must establish his case by a
preponderance of evidence. In determining where the preponderance or
superior weight of evidence on the issues involved lies, the court may
consider all the facts and circumstances of the case, the witnesses’ manner
of testifying, their intelligence, their means and opportunity of knowing
the facts to which they are testifying, the nature of the facts to which they
testify, the probability or improbability of their testimony, their interest or
want of interest, and also their personal credibility so far as the same may
legitimately appear upon the trial. The court may also consider the number
of witnesses, though the preponderance is not necessarily with the greater
number.
Unfortunately, petitioner Ching’s testimony alone does not constitute
preponderant evidence to establish respondent Nicdao’s civil liability to
him amounting to P20,950,000.00. Apart from the discredited checks, he
failed to adduce any other documentary evidence to prove that
respondent Nicdao still has unpaid obligations to him in the said amount.
Bare allegations, unsubstantiated by evidence, are not equivalent to proof
under our Rules.50
In contrast, respondent Nicdao’s defense consisted in, among others, her
allegation that she had already paid her obligations to petitioner Ching
through Nuguid. In support thereof, she presented the Planters Bank
demand draft for P1,200,000.00. The said demand draft was negotiated to
petitioner Ching’s account and he admitted receipt of the value thereof.
Petitioner Ching tried to controvert this by claiming that it was payment
for a previous transaction between him and respondent Nicdao. However,
other than his self-serving claim, petitioner Ching did not proffer any
documentary evidence to prove the existence of the said previous
transaction. Considering that the Planters Bank demand draft was dated
August 13, 1996, it is logical to conclude that, absent any evidence to the
contrary, it formed part of respondent Nicdao’s payment to petitioner
Ching on account of the loan obligations that she obtained from him since
October 1995.
Additionally, respondent Nicdao submitted as evidence the cigarette
wrappers at the back of which were written the computations of the daily
payments that she had made to Nuguid. The fact of the daily payments
was corroborated by the other witnesses for the defense, namely, Jocelyn
Nicdao and Tolentino. As found by the CA, based on these computations,
respondent Nicdao had made a total payment of P5,780,000.00 to Nuguid
as of July 21, 1997.51 Again, the payments made, as reflected at the back of
these cigarette wrappers, were not disputed by petitioner Ching. Hence,
these payments as well as the amount of the Planters Bank demand draft
establish that respondent Nicdao already paid the total amount
of P6,980,000.00 to Nuguid and petitioner Ching.
The Court agrees with the CA that the daily payments made by respondent
Nicdao amounting to P5,780,000.00 cannot be considered as interest
payments only. Even respondent Nicdao testified that the daily payments
that she made to Nuguid were for the interests due. However, as correctly
ruled by the CA, no interests could be properly collected in the loan
transactions between petitioner Ching and respondent Nicdao because
there was no stipulation therefor in writing. To reiterate, under Article
1956 of the Civil Code, "no interest shall be due unless it has been
expressly stipulated in writing."
Neither could respondent Nicdao be considered to be estopped from WHEREFORE, premises considered, the Petition is DENIED for lack of merit.
denying the validity of these interests. Estoppel cannot give validity to an
act that is prohibited by law or one that is against public policy.52 Clearly, SO ORDERED.
the collection of interests without any stipulation therefor in writing is
prohibited by law. Consequently, the daily payments made by respondent G.R. No. 158802 November 17, 2004
Nicdao amounting to P5,780,000.00 were properly considered by the CA as
applying to the principal amount of her loan obligations.
IN RE: THE WRIT OF HABEAS CORPUS FOR REYNALDO DE VILLA (detained
at the New Bilibid Prisons, Muntinlupa City)
With respect to the P20,000,000.00 check, the defense of respondent JUNE DE VILLA, petitioner-relator,
Nicdao that it was stolen and that she never issued or delivered the same vs.
to petitioner Ching was corroborated by the other defense witnesses, THE DIRECTOR, NEW BILIBID PRISONS, respondent.
namely, Tolentino and Jocelyn Nicdao.

All told, as between petitioner Ching and respondent Nicdao, the requisite
quantum of evidence - preponderance of evidence - indubitably lies with
DECISION
respondent Nicdao. As earlier intimated, she cannot be held civilly liable to
petitioner Ching for her acquittal; under the circumstances which have just
been discussed lengthily, such acquittal carried with it the extinction of her
civil liability as well.
YNARES-SANTIAGO, J.:
The CA committed no reversible error in not consolidating CA-G.R. CR No.
23055 and CA-G.R. CR No. 23054 This is a petition for the issuance of a writ of habeas corpus under Rule 102
of the Rules of Court. Petitioner Reynaldo de Villa, joined by his son,
petitioner-relator June de Villa, seeks a two-fold relief: First, that
During the pendency of CA-G.R. CR No. 23055 and CA-G.R. CR No. 23054 in
respondent Director of Prisons justify the basis for the imprisonment of
the CA, the pertinent provision of the RIRCA on consolidation of cases
petitioner Reynaldo de Villa; and second, that petitioner be granted a new
provided:
trial.1 These reliefs are sought on the basis of purportedly exculpatory
evidence, gathered after performing deoxyribonucleic acid (DNA) testing
SEC. 7. Consolidation of Cases. – Whenever two or more allied cases are
on samples allegedly collected from the petitioner and a child born to the
assigned to different Justices, they may be consolidated for study and
victim of the rape.
report to a single Justice.
By final judgment dated February 1, 2001, in People of the Philippines v.
(a) At the instance of any party or Justice to whom the case is assigned for
Reynaldo de Villa,2 we found petitioner guilty of the rape of Aileen
study and report, and with the conformity of all the Justices concerned,
Mendoza, his niece by affinity; sentenced him to suffer the penalty of
the consolidation may be allowed when the cases to be consolidated
reclusión perpetua; and ordered him to pay the offended party civil
involve the same parties and/or related questions of fact and/or law. 53
indemnity, moral damages, costs of the suit, and support for Leahlyn
Corales Mendoza, the putative child born of the rape. Petitioner is
The use of the word "may" denotes the permissive, not mandatory, nature currently serving his sentence at the New Bilibid Prison, Muntinlupa City.
of the above provision, Thus, no grave error could be imputed to the CA
when it proceeded to render its decision in CA-G.R. CR No. 23055, without
As summarized in our Decision dated February 1, 2001, Aileen Mendoza
consolidating it with CA-G.R. CR No. 23054.
charged petitioner Reynaldo de Villa with rape in an information dated
January 9, 1995, filed with the Regional Trial Court of Pasig City. When
arraigned on January 26, 1995, petitioner entered a plea of "not guilty." 3
During the trial, the prosecution established that sometime in the third
week of April 1994, at about 10:00 in the morning, Aileen Mendoza woke
up in her family's rented room in Sagad, Pasig, Metro Manila, to find
petitioner on top of her. Aileen was then aged 12 years and ten months.
She was unable to shout for help because petitioner covered her mouth
with a pillow and threatened to kill her. Aileen could not do anything but
cry. Petitioner succeeded in inserting his penis inside her vagina. After
making thrusting motions with his body, petitioner ejaculated. This
encounter allegedly resulted in Aileen's pregnancy, which was noticed by
her mother, Leonila Mendoza, sometime in November 1994. When
confronted by her mother, Aileen revealed that petitioner raped her.
Aileen's parents then brought her to the Pasig Police Station, where they
lodged a criminal complaint against petitioner.4
Dr. Rosaline Cosidon, who examined Aileen, confirmed that she was eight
months pregnant and found in her hymen healed lacerations at the 5:00
and 8:00 positions. On December 19, 1994, Aileen gave birth to a baby girl
whom she named Leahlyn Mendoza.5
In his defense, petitioner alleged that, at the time of the alleged rape, he
was already 67 years old. Old age and sickness had rendered him incapable
of having an erection. He further averred that Aileen's family had been
holding a grudge against him, which accounted for the criminal charges.
Finally, he interposed the defense of alibi, claiming that at the time of the
incident, he was in his hometown of San Luis, Batangas. 6
The trial court found petitioner guilty beyond reasonable doubt of the
crime of qualified rape, and sentenced him to death, to indemnify the
victim in the amount of P50,000.00, to pay the costs of the suit and to
support the child, Leahlyn Mendoza.7
On automatic review,8 we found that the date of birth of Aileen's child was
medically consistent with the time of the rape. Since it was never alleged
that Aileen gave birth to a full-term nine-month old baby, we gave
credence to the prosecution's contention that she prematurely gave birth
to an eight-month old baby by normal delivery. 9 Thus, we affirmed
petitioner's conviction for rape, in a Decision the dispositive portion of
which reads:
WHEREFORE, the judgment of the Regional Trial Court, finding
accused-appellant guilty beyond reasonable doubt of the crime of
rape, is AFFIRMED with the MODIFICATIONS that he is sentenced
to suffer the penalty of reclusión perpetua and ordered to pay the
offended party P50,000.00 as civil indemnity; P50,000.00 as moral
damages; costs of the suit and to provide support for the child
Leahlyn Corales Mendoza.
SO ORDERED.10
Three years after the promulgation of our Decision, we are once more
faced with the question of Reynaldo de Villa's guilt or innocence.
Petitioner-relator in this case, June de Villa, is the son of Reynaldo. He
alleges that during the trial of the case, he was unaware that there was a
scientific test that could determine once and for all if Reynaldo was the
father of the victim's child, Leahlyn. Petitioner-relator was only informed
during the pendency of the automatic review of petitioner's case that DNA
testing could resolve the issue of paternity.11 This information was
apparently furnished by the Free Legal Assistance Group (FLAG) Anti-Death
Penalty Task Force, which took over as counsel for petitioner.
Thus, petitioner's brief in People v. de Villa sought the conduct of a blood
type test and DNA test in order to determine the paternity of the child
allegedly conceived as a result of the rape.12 This relief was implicitly
denied in our Decision of February 21, 2001.
On March 16, 2001, Reynaldo de Villa filed a Motion for Partial
Reconsideration of the Decision, wherein he once more prayed that DNA
tests be conducted.13 The Motion was denied with finality in a Resolution
dated November 20, 2001.14 Hence, the Decision became final and
executory on January 16, 2002.15
Petitioner-relator was undaunted by these challenges. Having been
informed that DNA tests required a sample that could be extracted from
saliva, petitioner-relator asked Billy Joe de Villa, a grandson of Reynaldo de
Villa and a classmate of Leahlyn Mendoza, to ask Leahlyn to spit into a
new, sterile cup.16 Leahlyn readily agreed and did so. Billy Joe took the
sample home and gave it to the petitioner-relator, who immediately
labeled the cup as "Container A."
Petitioner-relator then gathered samples from four grandchildren of
Reynaldo de Villa. These samples were placed in separate containers with
distinguishing labels and temporarily stored in a refrigerator prior to
transport to the DNA Analysis Laboratory at the National Science Research
Institute (NSRI).17 During transport, the containers containing the saliva
samples were kept on ice.
Petitioner-relator requested the NSRI to conduct DNA testing on the
sample given by Leahlyn Mendoza, those given by the grandchildren of
Reynaldo de Villa, and that given by Reynaldo de Villa himself. The
identities of the donors of the samples, save for the sample given by
Reynaldo de Villa, were not made known to the DNA Analysis Laboratory. 18
After testing, the DNA Laboratory rendered a preliminary report on March
21, 2003, which showed that Reynaldo de Villa could not have sired any of
the children whose samples were tested, due to the absence of a match
between the pertinent genetic markers in petitioner's sample and those of
any of the other samples, including Leahlyn's.19
Hence, in the instant petition for habeas corpus, petitioner argues as
follows:
DNA ANALYSIS ON PATERNITY SHOWS CONCLUSIVELY THAT
PETITIONER DE VILLA IS NOT THE FATHER OF LEAHLYN MENDOZA;
HIS CONVICTION FOR RAPE, BASED ON THE FACT THAT LEAHLYN
WAS SIRED AS A RESULT OF THE ALLEGED RAPE, CANNOT STAND
AND MUST BE SET ASIDE.20
xxx xxx xxx
A NEW TRIAL TO CONSIDER NEWLY DISCOVERED EVIDENCE IS
PROPER AND MAY BE ORDERED BY THIS COURT IN VIEW OF THE
RESULTS OF THE DNA TESTS CONDUCTED.21
Considering that the issues are inter-twined, they shall be discussed
together.
In brief, petitioner relies upon the DNA evidence gathered subsequent to
the trial in order to re-litigate the factual issue of the paternity of the child
Leahlyn Mendoza. Petitioner alleges that this issue is crucial, considering
that his conviction in 2001 was based on the factual finding that he sired
the said child. Since this paternity is now conclusively disproved, he argues
that the 2001 conviction must be overturned.
In essence, petitioner invokes the remedy of the writ of habeas corpus to
collaterally attack the 2001 Decision. The ancillary remedy of a motion for
new trial is resorted to solely to allow the presentation of what is alleged
to be newly-discovered evidence. This Court is thus tasked to determine,
first, the propriety of the issuance of a writ of habeas corpus to release an
individual already convicted and serving sentence by virtue of a final and
executory judgment; and second, the propriety of granting a new trial
under the same factual scenario.
The extraordinary writ of habeas corpus has long been a haven of relief for
those seeking liberty from any unwarranted denial of freedom of
movement. Very broadly, the writ applies "to all cases of illegal
confinement or detention by which a person has been deprived of his
liberty, or by which the rightful custody of any person has been withheld
from the person entitled thereto".22 Issuance of the writ necessitates that
a person be illegally deprived of his liberty. In the celebrated case of
Villavicencio v. Lukban,23 we stated that "[a]ny restraint which will
preclude freedom of action is sufficient."24
The most basic criterion for the issuance of the writ, therefore, is that the
individual seeking such relief be illegally deprived of his freedom of
movement or placed under some form of illegal restraint. If an individual's
liberty is restrained via some legal process, the writ of habeas corpus is
unavailing. Concomitant to this principle, the writ of habeas corpus cannot
be used to directly assail a judgment rendered by a competent court or
tribunal which, having duly acquired jurisdiction, was not deprived or
ousted of this jurisdiction through some anomaly in the conduct of the
proceedings.
Thus, notwithstanding its historic function as the great writ of liberty, the
writ of habeas corpus has very limited availability as a post-conviction
remedy. In the recent case of Feria v. Court of Appeals, 25 we ruled that
review of a judgment of conviction is allowed in a petition for the issuance
of the writ of habeas corpus only in very specific instances, such as when,
as a consequence of a judicial proceeding, (a) there has been a deprivation
of a constitutional right resulting in the restraint of a person; (b) the court
had no jurisdiction to impose the sentence; or (c) an excessive penalty has
been imposed, as such sentence is void as to such excess. 26
In this instance, petitioner invokes the writ of habeas corpus to assail a
final judgment of conviction, without, however, providing a legal ground
on which to anchor his petition. In fine, petitioner alleges neither the
deprivation of a constitutional right, the absence of jurisdiction of the
court imposing the sentence, or that an excessive penalty has been
imposed upon him.
In fine, petitioner invokes the remedy of habeas corpus in order to seek
the review of findings of fact long passed upon with finality. This relief is
far outside the scope of habeas corpus proceedings. In the early case of
Abriol v. Homeres,27 for example, this Court stated the general rule that
the writ of habeas corpus is not a writ of error, and should not be thus
used. The writ of habeas corpus, whereas permitting a collateral challenge
of the jurisdiction of the court or tribunal issuing the process or judgment
by which an individual is deprived of his liberty, cannot be distorted by
extending the inquiry to mere errors of trial courts acting squarely within
their jurisdiction.28 The reason for this is explained very simply in the case
of Velasco v. Court of Appeals:29 a habeas corpus petition reaches the
body, but not the record of the case. 30 A record must be allowed to
remain extant, and cannot be revised, modified, altered or amended by
the simple expedient of resort to habeas corpus proceedings.
Clearly, mere errors of fact or law, which did not have the effect of
depriving the trial court of its jurisdiction over the case and the person of
the defendant, are not correctible in a petition for the issuance of the writ
of habeas corpus; if at all, these errors must be corrected on certiorari or
on appeal, in the form and manner prescribed by law. 31 In the past, this
Court has disallowed the review of a court's appreciation of the evidence
in a petition for the issuance of a writ of habeas corpus, as this is not the
function of said writ.32 A survey of our decisions in habeas corpus cases
demonstrates that, in general, the writ of habeas corpus is a high
prerogative writ which furnishes an extraordinary remedy; it may thus be
invoked only under extraordinary circumstances.33 We have been
categorical in our pronouncements that the writ of habeas corpus is not to
be used as a substitute for another, more proper remedy. Resort to the
writ of habeas corpus is available only in the limited instances when a
judgment is rendered by a court or tribunal devoid of jurisdiction. If, for
instance, it can be demonstrated that there was a deprivation of a
constitutional right, the writ can be granted even after an individual has
been meted a sentence by final judgment.
Thus, in the case of Chavez v. Court of Appeals,34 the writ of habeas corpus
was held to be available where an accused was deprived of the
constitutional right against self-incrimination. A defect so pronounced as
the denial of an accused's constitutional rights results in the absence or
loss of jurisdiction, and therefore invalidates the trial and the consequent
conviction of the accused. That void judgment of conviction may be
challenged by collateral attack, which precisely is the function of habeas
corpus.35 Later, in Gumabon v. Director of the Bureau of Prisons,36 this
Court ruled that, once a deprivation of a constitutional right is shown to
exist, the court that rendered the judgment is deemed ousted of
jurisdiction and habeas corpus is the appropriate remedy to assail the
legality of the detention.37 Although in Feria v. Court of Appeals38 this
Court was inclined to allow the presentation of new evidence in a petition
for the issuance of a writ of habeas corpus, this was an exceptional
situation. In that case, we laid down the general rule, which states that the
burden of proving illegal restraint by the respondent rests on the
petitioner who attacks such restraint. Where the return is not subject to
exception, that is, where it sets forth a process which, on its face, shows
good ground for the detention of the prisoner, it is incumbent on
petitioner to allege and prove new matter that tends to invalidate the
apparent effect of such process.39
In the recent case of Calvan v. Court of Appeals,40 we summarized the
scope of review allowable in a petition for the issuance of the writ of
habeas corpus. We ruled that the writ of habeas corpus, although not
designed to interrupt the orderly administration of justice, can be invoked
by the attendance of a special circumstance that requires immediate
action. In such situations, the inquiry on a writ of habeas corpus would be
addressed, not to errors committed by a court within its jurisdiction, but to
the question of whether the proceeding or judgment under which a person
has been restrained is a complete nullity. The probe may thus proceed to
check on the power and authority, itself an equivalent test of jurisdiction,
of the court or the judge to render the order that so serves as the basis of
imprisonment or detention.41 It is the nullity of an assailed judgment of
conviction which makes it susceptible to collateral attack through the filing
of a petition for the issuance of the writ of habeas corpus.
Upon a perusal of the records not merely of this case but of People v. de
Villa, we find that the remedy of the writ of habeas corpus is unavailing.
First, the denial of a constitutional right has not been alleged by petitioner.
As such, this Court is hard-pressed to find legal basis on which to anchor
the grant of a writ of habeas corpus. Much as this Court sympathizes with
petitioner's plea, a careful scrutiny of the records does not reveal any
constitutional right of which the petitioner was unduly deprived.
We are aware that other jurisdictions have seen fit to grant the writ of
habeas corpus in order to test claims that a defendant was denied
effective aid of counsel.42 In this instance, we note that the record is
replete with errors committed by counsel, and it can be alleged that the
petitioner was, at trial, denied the effective aid of counsel. The United
States Supreme Court requires a defendant alleging incompetent counsel
to show that the attorney's performance was deficient under a reasonable
standard, and additionally to show that the outcome of the trial would
have been different with competent counsel. 43 The purpose of the right to
effective assistance of counsel is to ensure that the defendant receives a
fair trial.44
The U.S. Supreme Court asserts that in judging any claim of ineffective
assistance of counsel, one must examine whether counsel's conduct
undermined the proper functioning of the adversarial process to such an
extent that the trial did not produce a fair and just result. 45 The proper
measure of attorney performance is "reasonable" under the prevailing
professional norms, and the defendant must show that the representation
received fell below the objective standard of reasonableness.46 For the
petition to succeed, the strong presumption that the counsel's conduct
falls within the wide range or reasonable professional assistance must be
overcome.47
In the case at bar, it appears that in the middle of the appeal, the
petitioner's counsel of record, a certain Atty. Alfonso G. Salvador, suddenly
and inexplicably withdrew his appearance as counsel, giving the sole
explanation that he was "leaving for the United States for an indefinite
period of time by virtue of a petition filed in his favor." 48In the face of this
abandonment, petitioner made an impassioned plea that his lawyer be
prevented from this withdrawal in a handwritten "Urgent Motion for
Reconsideration and Opposition of Counsel's Withdrawal of Appearance
with Leave of Court" received by this Court on September 14,
1999.49 Petitioner alleged that his counsel's withdrawal is an "untimely and
heartbreaking event", considering that he had placed "all [his] trust and
confidence on [his counsel's] unquestionable integrity and dignity."50
While we are sympathetic to petitioner's plight, we do not, however, find
that there was such negligence committed by his earlier counsel so as to
amount to a denial of a constitutional right. There is likewise no showing
that the proceedings were tainted with any other jurisdictional defect.
In fine, we find that petitioner invokes the remedy of the petition for a writ
of habeas corpus to seek a re-examination of the records of People v. de
Villa, without asserting any legal grounds therefor. For all intents and
purposes, petitioner seeks a reevaluation of the evidentiary basis for his
conviction. We are being asked to reexamine the weight and sufficiency of
the evidence in this case, not on its own, but in light of the new DNA
evidence that the petitioner seeks to present to this Court. This relief is
outside the scope of a habeas corpus petition. The petition for habeas
corpus must, therefore, fail.
Coupled with the prayer for the issuance of a writ of habeas corpus,
petitioner seeks a new trial to re-litigate the issue of the paternity of the
child Leahlyn Mendoza.
It must be stressed that the issue of Leahlyn Mendoza's paternity is not
central to the issue of petitioner's guilt or innocence. The rape of the
victim Aileen Mendoza is an entirely different question, separate and
distinct from the question of the father of her child. Recently, in the case
of People v. Alberio,51 we ruled that the fact or not of the victim's
pregnancy and resultant childbirth are irrelevant in determining whether
or not she was raped. Pregnancy is not an essential element of the crime of
rape. Whether the child which the victim bore was fathered by the
purported rapist, or by some unknown individual, is of no moment in
determining an individual's guilt.
In the instant case, however, we note that the grant of child support to
Leahlyn Mendoza indicates that our Decision was based, at least in small
measure, on the victim's claim that the petitioner fathered her child. This
claim was given credence by the trial court, and, as a finding of fact, was
affirmed by this Court on automatic review.
The fact of the child's paternity is now in issue, centrally relevant to the
civil award of child support. It is only tangentially related to the issue of
petitioner's guilt. However, if it can be conclusively determined that the
petitioner did not sire Leahlyn Mendoza, this may cast the shadow of
reasonable doubt, and allow the acquittal of the petitioner on this basis.
Be that as it may, it appears that the petitioner once more relies upon
erroneous legal grounds in resorting to the remedy of a motion for new
trial. A motion for new trial, under the Revised Rules of Criminal
Procedure, is available only for a limited period of time, and for very
limited grounds. Under Section 1, Rule 121, of the Revised Rules of
Criminal Procedure, a motion for new trial may be filed at any time before
a judgment of conviction becomes final, that is, within fifteen (15) days
from its promulgation or notice. Upon finality of the judgment, therefore, a
motion for new trial is no longer an available remedy. Section 2 of Rule 121
enumerates the grounds for a new trial:
SEC. 2. Grounds for a new trial.—The court shall grant a new trial
on any of the following grounds:
(a) That errors of law or irregularities prejudicial to the substantial
rights of the accused have been committed during the trial;
(b) That new and material evidence has been discovered which
the accused could not with reasonable diligence have discovered
and produced at the trial and which if introduced and admitted
would probably change the judgment.
In the case at bar, petitioner anchors his plea on the basis of purportedly
"newly-discovered evidence", i.e., the DNA test subsequently conducted,
allegedly excluding petitioner from the child purportedly fathered as a
result of the rape.
The decision sought to be reviewed in this petition for the issuance of a
writ of habeas corpus has long attained finality, and entry of judgment was
made as far back as January 16, 2002. Moreover, upon an examination of
the evidence presented by the petitioner, we do not find that the DNA
evidence falls within the statutory or jurisprudential definition of "newly-
discovered evidence".
A motion for new trial based on newly-discovered evidence may be
granted only if the following requisites are met: (a) that the evidence was
discovered after trial; (b) that said evidence could not have been
discovered and produced at the trial even with the exercise of reasonable
diligence; (c) that it is material, not merely cumulative, corroborative or
impeaching; and (d) that the evidence is of such weight that that, if
admitted, it would probably change the judgment.52 It is essential that the
offering party exercised reasonable diligence in seeking to locate the
evidence before or during trial but nonetheless failed to secure it. 53
In this instance, although the DNA evidence was undoubtedly discovered
after the trial, we nonetheless find that it does not meet the criteria for
"newly-discovered evidence" that would merit a new trial. Such evidence
disproving paternity could have been discovered and produced at trial with
the exercise of reasonable diligence.
Petitioner-relator's claim that he was "unaware" of the existence of DNA
testing until the trial was concluded carries no weight with this Court. Lack
of knowledge of the existence of DNA testing speaks of negligence, either
on the part of petitioner, or on the part of petitioner's counsel. In either
instance, however, this negligence is binding upon petitioner. It is a settled
rule that a party cannot blame his counsel for negligence when he himself
was guilty of neglect.54 A client is bound by the acts of his counsel,
including the latter's mistakes and negligence. 55 It is likewise settled that
relief will not be granted to a party who seeks to be relieved from the
effects of the judgment when the loss of the remedy at law was due to his
own negligence, or to a mistaken mode of procedure. 56
Even with all of the compelling and persuasive scientific evidence
presented by petitioner and his counsel, we are not convinced that
Reynaldo de Villa is entitled to outright acquittal. As correctly pointed out
by the Solicitor General, even if it is conclusively proven that Reynaldo de
Villa is not the father of Leahlyn Mendoza, his conviction could, in theory,
still stand, with Aileen Mendoza's testimony and positive identification as
its bases.57The Solicitor General reiterates, and correctly so, that the
pregnancy of the victim has never been an element of the crime of
rape.58 Therefore, the DNA evidence has failed to conclusively prove to this
Court that Reynaldo de Villa should be discharged. Although petitioner
claims that conviction was based solely on a finding of paternity of the
child Leahlyn, this is not the case. Our conviction was based on the clear
and convincing testimonial evidence of the victim, which, given credence
by the trial court, was affirmed on appeal.
WHEREFORE, in view of the foregoing, the instant petition for habeas
corpus and new trial is DISMISSED for lack of merit.
No costs.
SO ORDERED.
Puno, Quisumbing, Sandoval-Gutierrez, Austria-Martinez, Carpio-Morales,
Azcuna, Tinga, Chico-Nazario, and Garcia, JJ., concur.
Davide, Jr., C.J., and Panganiban, J., joins Carpio and Callejo, Sr., JJ., in their 73. Petitioner is also the private complainant in Criminal Case Nos. 92-
separate opinion. 8157 and 92-8158 for violation of Batas Pambansa Blg. 22 with respondent
Carpio, J., please see separate concurring opinion. Generoso Damaso as accused. Upon motion of respondents, said civil and
Callejo, Sr., J., please see separate opinion. criminal cases were consolidated and jointly tried.
Corona, J., on leave.
On February 21, 2003, the RTC promulgated its
Decision[3] dated January 16, 2003, the dispositive portion of which reads
RODRIGO SUMIRAN, G.R. No. 162518 as follows:
Petitioner,

Present: WHEREFORE, premises considered,

accused GENEROSO DAMASO is hereby ACQUITTED in
Criminal Case Nos. 92-8157 and 92-8158 on grounds of
CARPIO MORALES, J.,*
insufficiency of evidence.
CHICO-NAZARIO,
- versus - Acting Chairperson,**
As for Civil Case No. 93-2588, in the interest justice
VELASCO, JR.,
and equity, judgment is hereby rendered against the
NACHURA, and
plaintiff Rodrigo Sumiran and in favor of the defendants
PERALTA, JJ.
Damaso. The plaintiff is further ordered to pay to the
defendants the following:
SPOUSES GENEROSO DAMASO and Promulgated:
EVA DAMASO, a. P50,000.00 as moral damages
Respondents. August 19, 2009 b. P20,000.00 as exemplary damages, and
x-----------------------------------------------------------------------------------------x c. the cost of suit.

SO ORDERED.[4]
DECISION

On March 6, 2003, petitioner filed a motion for reconsideration

PERALTA, J.:
This resolves the Petition for Review on Certiorari under Rule 45 of
the Rules of Court, praying that the Decision[1] of the Court of Appeals (CA)
in CA-G.R. SP No. 80267, dated December 22, 2003, and the
Resolution[2] dated February 20, 2004, denying petitioner's motion for
reconsideration, be reversed and set aside.
dated Match 4, 2003, stating that he received a duplicate original copy of
the decision on February 21, 2003. Respondents opposed said
motion. On May 9, 2003, the RTC issued an Order denying petitioner’s
motion for reconsideration. Thereafter, on May 29, 2003, petitioner filed a
Notice of Appeal dated May 28, 2003, stating instead that he received a
copy of the decision dated January 16, 2003 only on March 8, 2003 and of
the Order dated May 9, 2003 denying his motion for reconsideration
on May 19, 2003.

The antecedent facts are as follows.

Petitioner filed a complaint for sum of money and damages with
prayer for preliminary attachment (Civil Case No. 93-2588) against On June 2, 2003, the RTC issued an Order denying due course to
respondents before the Regional Trial Court (RTC) of Antipolo City, Branch the notice of appeal for having been filed out of time, emphasizing that the
decision was promulgated on February 21, 2003 in the presence of both
parties and their counsels. Considering counsel for petitioner to have
received a copy of the decision on said date of promulgation, the RTC ruled
that since petitioner had filed a motion for reconsideration on the 13 th day
(March 6, 2003), he had belatedly filed the notice of appeal when he filed
it ten (10) days after allegedly receiving the Order of May 9, 2003 on May
19, 2003. A motion for reconsideration was filed by petitioner on June 20,
2003, but the same was denied by the RTC on October 1, 2003.
Petitioner then filed a petition for certiorari with the
CA. However, the CA found the petition unmeritorious and dismissed the
same in its Decision dated December 22, 2003. Ruling that petitioner was
bound by his judicial admission that he received the Decision of the RTC
when it was promulgated on February 21, 2003, the CA held that
petitioner’s period within which to file an appeal had lapsed by the time
the Notice of Appeal was filed on May 29, 2003. Petitioner’s motion for
reconsideration of the CA Decision was denied per Resolution
datedFebruary 20, 2004.
Hence, this petition where it is alleged that the CA erred in ruling
that petitioner’s period to appeal had lapsed, as such ruling was premised
on misapprehension of facts and contradicted by evidence on record. The
CA also allegedly failed to state in its decision and resolution the particular
evidence upon which the same was based; and there were supposedly
some facts that, if properly noticed and considered, would justify a
different conclusion.
The petition deserves some consideration.
As early as 2005, the Court categorically declared in Neypes v.
Court of Appeals[5] that by virtue of the power of the Supreme Court to
amend, repeal and create new procedural rules in all courts, the Court is
allowing a fresh period of 15 days within which to file a notice of appeal in
the RTC, counted from receipt of the order dismissing or denying a motion
for new trial or motion for reconsideration. This would standardize the
appeal periods provided in the Rules and do away with the confusion as to
when the 15-day appeal period should be counted. Thus, the Court
stated:
To recapitulate, a party-litigant may either file his
notice of appeal within 15 days from receipt of the
Regional Trial Court’s decision or file it within 15 days
from receipt of the order (the “final order”) denying his
motion for new trial or motion for
reconsideration. Obviously, the new 15-day period may
be availed of only if either motion is filed; otherwise, the
decision becomes final and executory after the lapse of
the original appeal period provided in Rule 41, Section
3.[6]
The foregoing ruling of the Court was reiterated in Makati Insurance
Co., Inc. v. Reyes,[7] to wit:
Propitious to petitioner is Neypes v. Court of
Appeals, promulgated on 14 September 2005 while the
present Petition was already pending before us. x x x
xxxx
With the advent of the "fresh period rule," parties
who availed themselves of the remedy of motion for
reconsideration are now allowed to file a notice of appeal
within fifteen days from the denial of that motion.
The “fresh period rule” is not inconsistent with
Rule 41, Section 3 of the Revised Rules of Court which
states that the appeal shall be taken “within fifteen (15)
days from notice of judgment or final order appealed
from.” The use of the disjunctive word “or” signifies
disassociation and independence of one thing from
another. It should, as a rule, be construed in the sense
which it ordinarily implies. Hence, the use of “or” in the
above provision supposes that the notice of appeal may be
filed within 15 days from the notice of judgment or within
15 days from notice of the “final order,” x x x.
xxxx
The “fresh period rule” finally eradicates the
confusion as to when the 15-day appeal period should be
counted – from receipt of notice of judgment or from
receipt of notice of “final order” appealed from.
Taking our bearings from Neypes, in Sumaway v.
Urban Bank, Inc., we set aside the denial of a notice of
appeal which was purportedly filed five days late. With
the fresh period rule, the 15-day period within which to
 file the notice of appeal was counted from notice of the
denial of the therein petitioner’s motion for
reconsideration.
We followed suit in Elbiña v. Ceniza, wherein we
applied the principle granting a fresh period of 15 days
within which to file the notice of appeal, counted from
receipt of the order dismissing a motion for new trial or
motion for reconsideration or any final order or
resolution.
Thereafter, in First Aqua Sugar Traders, Inc. v.
Bank of the Philippine Islands, we held that a party-litigant
may now file his notice of appeal either within fifteen days
from receipt of the original decision or within fifteen days
from the receipt of the order denying the motion for
reconsideration.
In De los Santos v. Vda. de Mangubat, we applied
the same principle of “fresh period rule,” expostulating
that procedural law refers to the adjective law which
prescribes rules and forms of procedure in order that
courts may be able to administer justice. Procedural laws
do not come within the legal conception of a retroactive
law, or the general rule against the retroactive operation
of statutes. The "fresh period rule" is irrefragably
procedural, prescribing the manner in which the
appropriate period for appeal is to be computed or
determined and, therefore, can be made applicable to
actions pending upon its effectivity, such as the present
case, without danger of violating anyone else’s rights.
(Emphasis supplied)
The retroactivity of the Neypes rule in cases where the period for
appeal had lapsed prior to the date of promulgation
of Neypes onSeptember 14, 2005, was clearly explained by the Court in Fil-
Estate Properties, Inc. v. Homena-Valencia,[8] stating thus:
The determinative issue is whether the “fresh
period” rule announced in Neypes could retroactively
apply in cases where the period for appeal had lapsed
prior to 14 September 2005 when Neypes was
promulgated. That question may be answered with the
guidance of the general rule that procedural laws may be
given retroactive effect to actions pending and
undetermined at the time of their passage, there being
no vested rights in the rules of procedure. Amendments
to procedural rules are procedural or remedial in
character as they do not create new or remove vested
rights, but only operate in furtherance of the remedy or
confirmation of rights already existing.
Sps. De los Santos reaffirms these principles and
categorically warrants that Neypes bears the quested
retroactive effect, to wit:
Procedural law refers to the
adjective law which prescribes rules and
forms of procedure in order that courts
may be able to administer
justice. Procedural laws do not come
within the legal conception of a
retroactive law, or the general rule
against the retroactive operation of
statues ― they may be given retroactive
effect on actions pending and
undetermined at the time of their
passage and this will not violate any right
of a person who may feel that he is
adversely affected, insomuch as there
are no vested rights in rules of
procedure.
The “fresh period rule” is a
procedural law as it prescribes a fresh
period of 15 days within which an
appeal may be made in the event that
the motion for reconsideration is
denied by the lower court. Following
the rule on retroactivity of procedural
laws, the “fresh period rule” should be
applied to pending actions, such as the
present case.
Also, to deny herein petitioners
the benefit of the “fresh period rule” will
amount to injustice, if not absurdity,
 since the subject notice of judgment and
final order were issued two years later or
in the year 2000, as compared to the
notice of judgment and final order
in Neypes which were issued in 1998. It
will be incongruous and illogical that
parties receiving notices of judgment
and final orders issued in the year 1998
will enjoy the benefit of the “fresh
period rule” while those later rulings of
the lower courts such as in the instant
case, will not.[9]

Since this case was already pending in this Court at the time of
promulgation of Neypes, then, ineluctably, the Court must also apply the
foregoing rulings to the present case. Petitioner is entitled to a “fresh
period” of 15 days − counted from May 19, 2003, the date of petitioner’s
receipt of the Order denying his motion for reconsideration of the RTC
Decision − within which to file his notice of appeal. Therefore, when he filed
said notice on May 29, 2003, or only ten (10) days after receipt of the Order
denying his motion for reconsideration, his period to appeal had not yet
lapsed.

IN VIEW OF THE FOREGOING, the petition is GRANTED. The Decision

of the Court of Appeals in CA-G.R. SP No. 80267, dated December 22,
2003, and the Resolution dated February 20, 2004, are
hereby REVERSED and SET ASIDE. The Order of
theRegional Trial Court of Antipolo City, Branch 73, dated June 2, 2003 in
Civil Case No. 93-2588, and its Order dated October 1, 2003, reiterating the
June 2, 2003 Order, are hereby
declared NULL and VOID. The Regional Trial Court of Antipolo City, Branch
73, isDIRECTED to give due course to petitioner’s Notice of Appeal
dated May 28, 2003. No costs.

SO ORDERED.