Rule 110.
CRIMINAL PROCEDURE – FULL TEXT 22 CASES
1. G.R. No. L-16456 June 29, 1963
PEOPLE OF THE PHILIPPINES, plaintiff-appellant,
vs.
DOLORES COQUIA, defendant-appellee.
Office of the Solicitor General for plaintiff-appellant.
M. B. Palma for defendant-appellee.
Criminal law; Prescription of offenses; Interruption by complaint or information
filed in the proper court, not in the fiscal's office.—Conformably to the
doctrine, of People vs. Del Rosario, L15140, Dec. 29, 1960, the prescriptive
period for the case at bar was never interrupted. In the said case We declared
that—under Article 90 of the Revised Penal Code, light offenses prescribe in
two months. Article 91 of the same Code provides that the period of
prescription shall commence to run from the day on which the crime was
discovered by the offended party, the authorities, or their agents, and shall be
interrupted by the filing of the complaint or information, and shall commence
to run again when such proceedings terminate without the accused being
convicted or acquitted, or are justifiably stopped for any reason not imputable
to him, the complaint or information referred to in the above prescriptive
period, as ruled in the case of People v. Tayco (73 Phil. 509), is that which is
filed in the proper court and not the denuncia or accusation lodged by the
offended party in the Fiscal's Office.
Same; Same: Same; Meaning of term "proper court".—The proper court in the
present litigation was the Court of First, Instance of Camarines Sur. The records
of this case clearly show that no formal complaint or information as
contemplated by the aforementioned Article 91 of the Penal Code was ever
filed therein within the reglementary period. As a matter of fact, the said
formal complaint or information was filed only after the lapse of more than one
year. Considering that under the Code, the prescriptive period for grave oral
defamation is six months (Art. 90, Revised Penal Code). the only conclusion
deducible is that the same has prescribed. People vs. Coquia, 8 SCRA 349, No. L-
16456 June 29, 1963
REGALA, J.:
From an incident which occurred on July 1, 1957, one David C. Naval
filed with the Municipal Court of the City of Naga a complaint for grave
oral defamation against the herein defendant-appellee, Dolores Coquia.
Thereafter and by virtue of that complaint, the same court ordered her
arrest. On July 22, 1957, however, the same court forwarded the records
of the case to the Court First Instance of Camarines Sur for the
continuance of the proceedings since the accused had renounced her
right to the second stage of preliminary investigation. In turn, on August
2, 1957, the last mentioned court endorsed the case to the Office of the referred to in the above provisions which interrupts the running
City Attorney for reinformation. For some explained reasons, the case of the prescriptive period, as ruled in the case of People v.
was left completely unacted on by the City Fiscal's office until January Tayco (73 Phil. 509), is that which is filed in the proper court and
26, 1959 when the City Fiscal filed with the Court of First Instance of not the denuncia or accusation lodged by the offended party in
Camarines Sur the corresponding, information for grave oral defamation the Fiscal's Office . . . .
against the accused, appellee herein.
It should be recalled that the proper court in the present litigation was the
The defense filed a Motion to Dismiss on the ground of prescription Court of First Instance of Camarines Sur. The records of this case clearly
which was opposed by the prosecution Ruling on the motion, the court a show that no formal complaint or information is contemplated by the
quo sustained the movant and dismissed the case. A motion for aforementioned Article 91 of the Penal Code was ever filed therein within
reconsideration therefor having been denied, the City Attorney, the reglementary period. As a matter of fact, the said formal complaint or
represented by the Solicitor General's Office, appealed to this information was filed only after the lapse of more than one year.
Court.1äwphï1.ñët Considering that under the Code, the prescriptive period for grave oral
defamation is six months (Art. 90, Revised Penal Code), the only
conclusion deducible is that the same has prescribed.
The Solicitor General concedes that the delay in the filing of the
information for this case had been unduly long. Quite subtly even, the
concession extends to an admission that prescription had indeed set in. It Applying the principle laid down in the aforecited case of People v. Del
was expressed, however, that the instant appeal was nevertheless Rosario, supra, We can not speak of the resumption of the prescriptive
interposed so that a ruling may be secured as to the precise period when period since it has never been interrupted.
a criminal proceeding should be considered as having been "unjustifiably
stopped to mark the resumption of the running of the period of WHEREFORE, the appeal taken by the Government is hereby dismissed
prescription" pursuant to the provisions of Article 91 of the Revised Penal and the order dismissing the information is hereby affirmed in full.
Code, hereunder quoted: Costs de oficio.
ART. 91. Computation of prescription of offenses. — The period
of prescription shall commence to run from the day on which the
crime is discovered by the offended party, the authorities, or
their agents, and shall be interrupted by the filing of the
complaint or information, and shall commence to run again
when such proceedings terminate without the accused being
convicted or acquitted, or are unjustifiably stopped for any
reason not imputable to him.
The term of prescription shall not run when the offender is
absent from the Philippine Archipelago.
We do not believe that the facts of this case warrant a resolution of the
issue raised. It is sufficient to indicate and conformably to the doctrine
expressed in the case of People v. Juan del Rosario, G. R. No. L-15140,
December 29, 1960, the prescriptive period for the case at bar was never
interrupted. In the said case, We declared that —
Under Article 90 of the Revised Penal Code, light offenses
prescribe in two months. Article 91 of the same Code provides
that "the period of prescription shall commence to run from the
day on which the crime was discovered by the offended party,
the authorities, or their agents, and shall be interrupted by the
filing of the complaint or information, and shall commence to run
again when such proceedings terminate without the accused
being convicted or acquitted, or are unjustifiably stopped for any
reason not imputable to him." The complaint or information
1
Rule 110. CRIMINAL PROCEDURE – FULL TEXT 22 CASES
2. G.R. No. L-22465 February 28, 1967
PEOPLE OF THE PHILIPPINES, ET AL., plaintiffs-appellants,
vs.
ASCENSION P. OLARTE, defendant-appellee.
Saturnino D. Bautista for plaintiff-appellant Meris.
Office of the Solicitor General Arturo A. Alafriz and Solicitor Ceferino S.
Gaddi for plaintiff-appellant People of the Philippines.
Chuidian Law Offices, P. V. Sison, D. Acuna, J. Asuncion, E. G. Bruno
and Silverio B. de Leon for defendant-appellee.
Same; Prescription of crimes; Prior ruling on prescription is binding.—A prior
ruling of the Supreme Court, that an offense has not yet prescribed, is binding
and cannot be set aside in subsequent proceedings in the same case.
Same; Filing of complaint in municipal court interrupts prescription.—The f
filing of a criminal complaint in the municipal court, although merely for
purposes of preliminary examination or investigation, interrupts the period for
the prescription of the offense even if the said court cannot try the case on its
merits. This rule modifies the ruling in People vs. Coquia, L-15456, June 29,
1963.
REYES, J.B.L., J.:
This is the second time the present case is brought on appeal to this
Supreme Court on the identical issue of prescription.
The antecedents of this case are briefly stated in the decision of the
previous appeal (L-13027):
Defendant 'Ascension P. Olarte is charged with libel. It is
alleged in the information that on or about the 24th day of
February, 1954 and subsequently thereafter said defendant had
willfully, unlawfully and feloniously written certain letters which
were libelous, contemptuous and derogatory to Miss Visitacion
M. Meris, 'with evident and malicious purpose of insulting,
dishonoring, humiliating and bringing into contempt the good
name and reputation' of said complainant.
It appears that on January 7, 1956, Miss Meris lodged the
corresponding charge of libel with the provincial fiscal of
Pangasinan, who assigned it to an assistant provincial fiscal;
that upon the latter's advice, on February 22, 1956, she filed
with the Justice of the Peace Court of Pozorrubio, Pangasinan,
a complaint for libel against Ascencion P. Olarte that the
defendant waived her right to a preliminary investigation,
whereupon the justice of the peace court forwarded the case to
the Court of First Instance of Pangasinan, in which the
corresponding information was filed on July 3, 1956; that the
defendant seasonably moved to quash the information upon the
ground of prescription of the offense; and that, after due
hearing, the court of first instance granted said motion and
dismissed the case, with costs de oficio. Hence, this appeal by
complainant Miss Meris with the conformity of the special
counsel of the office of the provincial fiscal of Pangasinan, who
represented the prosecution in said court.
This Court, likewise, stated in said previous appeal:
It is conceded that, as provided in Article 90 of the Revised
Penal Code, 'the crime of libel ... shall prescribe in two (2) years,
which, pursuant to Article 91 of the same Code, 'shall
commence to run from the day on which the crime is discovered
by the offended party, the authorities or their agents, and shall
be interrupted by the filing of the complaint or information ....' In
an affidavit, attached to the complaint filed with the justice of the
peace court, Miss Meris stated that one defamatory letter was
received by her on February 27, 1954 and that there were other
libelous letters, seemingly written after the first. According to
another affidavit, likewise, attached to said complaint, the
subsequent letters were received on or about March 1 and 13,
April 26 and May 9, 1954. The issue in the lower court, as well
as in this appeal, is whether the statute of limitations was
suspended by the filing of the complaint with the justice of the
peace court on February 22, 1956, as claimed by appellant, or
continued to run until July 3, 1956, when the information was
filed with the court of first instance, as contended by the
defendant. His Honor, the trial Judge adopted the latter
alternative, and, accordingly, held that the prescriptive period
had expired before the filing of said information. (Emphasis
supplied)
Resolving the issue thus posed on the basis of the abovequoted facts,
this Court, speaking through the then Associate Justice (now Chief
Justice) Roberto Concepcion, and after an extensive and exhaustive
dissertation on the applicable laws and pertinent decisions on the
subject, rendered a decision, promulgated on June 30, 1960, the
dispositive portion of which reads:
IN VIEW OF THE FOREGOING, it is our considered opinion
that the filing of the complainant with the justice of the peace
court of Pozorrubio, Pangasinan, interrupted the running of the
statute of limitations, as regards the crime of libel with which
defendant herein is charged, and that said crime has not been
extinguished, therefore, by prescription, for which reason the
order appealed from is reversed, and the records of this case
are hereby remanded to the lower court for further proceedings,
conformably with law.
IT IS SO ORDERED.
The above ruling became final and executory, and, pursuant thereto, the
lower court set the case for hearing on the merits and the prosecution
started presenting its evidence. However, on August 26, 1963, the
defense presented anew a motion to quash the information,
supplemented by another motion of September 5, 1963, on the ground of
prescription of the offense charged in the information. In said motions,
the defense invoked the subsequent ruling of this Court in the case of
People vs. Coquia, G.R. No. L-15456, promulgated on June 29, 1963.
On November 4, 1963, the prosecution opposed said motions. The
defense submitted its reply on November 13, 1963.
After due hearing on this incident, the lower court issued the appealed
order, dated January 16, 1964, sustaining the defense's new motion to
quash upon the ground of prescription. In this order, the lower court, after
comparing and finding that the set of facts obtaining in the case at bar is
practically identical with those of the Coquia case, opined that inasmuch
as the latter is inconsistent with or contradicts the previous decision
(L-13027) in the case at bar, promulgated on June 30, 1960, the 1963
ruling in the Coquia case indicates that this Supreme Court intended to
abandon the one made in 1960 in the first appeal of this same case (L-
13027).
Not satisfied, the prosecution (special counsel of the Office of the
Provincial Fiscal of Pangasinan and the private prosecutor jointly)
interposed the present appeal to this Court on a pure question of law.
The complainant Miss Meris through her private prosecutor, filed her
brief. Subsequently, the Solicitor General, in representation of plaintiff-
appellant People of the Philippines, instead of filing a brief, filed, on
August 18, 1964, a manifestation, stating to the effect that they are
submitting the case without any brief, said complainant having filed a
brief in her behalf; and that they are of the opinion that the order of the
lower court dismissing the case was well taken. In view of this
manifestation, defendant-appellee presented, on September 7, 1964, a
motion to dismiss the appeal.
This Court, by resolution dated October 2, 1964, denied said motion for
the present.
Defendant-appellee moved to reconsider said denial but this Court, in its
resolution of October 21, 1964, overruled the defendant's
motion.1äwphï1.ñët
Thereafter, said defendant-appellee filed her brief and the case was
submitted for decision.
The only issue presented for determination in this appeal is the effect of
this Court's ruling on the first appeal to this very same case (L-13027)
and whether the decision in the later case of People vs. Coquia, G.R. No.
L-15456, June 29, 1963, warrants the dismissal of the information in the
case at bar on the ground of prescription.
2
Rule 110. CRIMINAL PROCEDURE – FULL TEXT 22 CASES
Suffice it to say that our ruling in Case L-13027, rendered on the first
appeal, constitutes the law of the case, and, even if erroneous, it may no
longer be disturbed or modified since it has become final long ago. A
subsequent reinterpretation of the law may be applied to new cases but
certainly not to an old one finally and conclusively determined (People vs.
Pinuila, G.R. No. L-11374, May 30, 1958; 55 O.G. 4228).
'Law of the case' has been defined as the opinion delivered on a
former appeal. More specifically, it means that whatever is once
irrevocably established as the controling legal rule of decision
between the same parties in the same case continues to be the
law of the case, whether correct on general principles or not, so
long as the facts on which such decision was predicated
continue to be the facts of the case before the court. (21 C.J.S.
330). (cited in Pinuila case, supra)
As a general rule a decision on a prior appeal of the same case
is held to be the law of the case whether that decision is right or
wrong, the remedy of the party being to seek a rehearing (5
C.J.S. 1277). (also cited in Pinuila case)
It is also aptly held in another case that:
It need not be stated that the Supreme Court, being the court of
last resort, is the final arbiter of all legal question properly
brought before it and that its decision in any given case
constitutes the law of that particular case. Once its judgment
becomes final it is binding on all inferior courts, and hence
beyond their power and authority to alter or modify. (Kabigting
vs. Acting Director of Prisons, G.R. No. L-15548, October 30,
1962).
More categorical still is the pronouncement of this Court in Pomeroy vs.
Director of Prisons, 1,14284-85, February 24, 1960:
It will be seen that the prisoner's stand assumes that doctrines
and rulings of the Supreme Court operate retrospectively, and
that they can claim the benefit of decisions in People vs.
Hernandez; People vs. Geronimo, and People vs. Dugonon (L-
6025-26, July 18, 1956; L-8936, Oct. 31, 1956; and L-8926,
June 29, 1957, respectively), promulgated four or more years
after the prisoner applicants had been convicted by final
judgment and started serving sentence. However, the rule
adopted by this Court (and by the Federal Supreme Court) is
that judicial doctrines have only prospective operation and do
not apply to cases previously decided (People vs. Pinuila, L-
11374, promulgated May 30, 1958.)
In the foregoing decision, furthermore, this Court quoted and reiterated
the rule in the following excerpts from People vs. Pinuila, G.R. No. L-
11374, jam cit.:
'The decision of this Court on that appeal by the government
from the order of dismissal, holding that said appeal did not
place the appellants, including Absalon Bignay, in double
jeopardy, signed and concurred in by six justices as against
three dissenters headed by the Chief Justice, promulgated way
back in the year 1952, has long become the law of the case. It
may be erroneous, judged by the law on double jeopardy as
recently interpreted by this same Tribunal. Even so, it may not
be disturbed and modified. Our recent interpretation of the law
may be applied to new cases, but certainly not to an old one
finally and conclusively determined. As already stated, the
majority opinion in that appeal is now the law of the case.'
The same principle, the immutability of the law of the case
notwithstanding subsequent changes of judicial opinion, has been
followed in civil cases:
Fernando vs. Crisostomo, 90 Phil. 585;
Padilla vs. Paterno, 93 Phil. 884;
Samahang Magsasaka, Inc. vs. Chua Guan, L-7252, February,
1955.
It is thus clear that posterior changes in the doctrine of this Court can not
retroactively be applied to nullify a prior final ruling in the same
proceeding where the prior adjudication was had, whether the case
should be civil or criminal in nature.
Analysis of the precedents on the issue of prescription discloses that
there are two lines of decisions following differing criteria in determining
whether prescription of crimes has been interrupted. One line of
precedents holds that the filing of the complaint with the justice of the
peace (or municipal judge) does interrupt the course of the prescriptive
term: People vs. Olarte L-13027, June 30, 1960 and cases cited
therein; People vs. Uba, L-13106, October 16, 1959; People vs. Aquino,
68 Phil. 588, 590. Another series of decisions declares that to produce
interruption the complaint or information must have been filed in the
proper court that has jurisdiction to try the case on its merits: People vs.
Del Rosario, L-15140, December 29, 1960; People vs. Coquia, L-15456,
June 29, 1963.
In view of this diversity of precedents, and in order to provide guidance
for Bench and Bar, this Court has reexamined the question and, after
mature consideration, has arrived at the conclusion that the true doctrine
is, and should be, the one established by the decisions holding that the
filing of the complaint in the Municipal Court, even if it be merely for
purposes of preliminary examination or investigation, should, and does,
interrupt the period of prescription of the criminal responsibility, even if
the court where the complaint or information is filed can not try the case
on its merits. Several reasons buttress this conclusion: first, the text of
Article 91 of the Revised Penal Code, in declaring that the period of
prescription "shall be interrupted by the filing of the complaint or
information" without distinguishing whether the complaint is filed in the
court for preliminary examination or investigation merely, or for action on
the merits. Second, even if the court where the complaint or information
is filed may only proceed to investigate the case, its actuations already
represent the initial step of the proceedings against the offender. Third, it
is unjust to deprive the injured party of the right to obtain vindication on
account of delays that are not under his control. All that the victim of the
offense may do on his part to initiate the prosecution is to file the
requisite complaint.
And it is no argument that Article 91 also expresses that the interrupted
prescription " shall commence to run again when such proceedings
terminate without the accused being convicted or acquitted", thereby
indicating that the court in which the complaint or information is filed must
have power to acquit or convict the accused. Precisely, the trial on the
merits usually terminates in conviction or acquittal, not otherwise. But it is
in the court conducting a preliminary investigation where the proceedings
may terminate without conviction or acquittal, if the court should
discharge the accused because no prima facie case has been shown.
Considering the foregoing reasons, the Court hereby overrules the
doctrine of the cases of People vs. Del Rosario L-15140, December 29,
1960; and People vs. Coquia, L-15456, promulgated June 29, 1963.
And it having been finally decided in the previous appeal that the criminal
action here was not barred, the issue of prescription is utterly foreclosed,
and all that remains is to try and decide the case on the merits. It is
expected that it will be done with the utmost dispatch, this case having
been already pending for many years.
Wherefore, the appealed order of dismissal is hereby set aside and
reversed, and the records of this case ordered remanded to the lower
court for further proceedings conformably with this decision. With costs
against defendant-appellee.
3
Rule 110. CRIMINAL PROCEDURE – FULL TEXT 22 CASES
3. G.R. No. 108747 April 6, 1995
PABLO C. FRANCISCO, petitioner,
vs.
COURT OF APPEALS AND THE HONORABLE MAXIMO C.
CONTRERAS, respondents.
Criminal Procedure; Probation Law; Probation should be availed of at the first
opportunity by convicts who are willing to be reformed and rehabilitated who
manifest spontaneity, contrition and remorse.—The law expressly requires that
an accused must not have appealed his conviction before he can avail of
probation. This outlaws the element of speculation on the part of the
accused—to wager on the result of his appeal—that when his conviction is
finally affirmed on appeal, the moment of truth well-nigh at hand, and the
service of his sentence inevitable, he now applies for probation as an “escape
hatch” thus rendering nugatory the appellate court’s affirmance of his
conviction. Consequently, probation should be availed of at the first
opportunity by convicts who are willing to be reformed and rehabilitated, who
manifest spontaneity, contrition and remorse.
Same; Same; Probation is a mere privilege, not a right.—Probation is a mere
privilege, not a right. Its benefits cannot extend to those not expressly included.
Probation is not a right of an accused, but rather an act of grace and clemency
or immunity conferred by the state which may be granted by the court to a
seemingly deserving defendant who thereby escapes the extreme rigors of the
penalty imposed by law for the offense of which he stands convicted. It is a
special prerogative granted by law to a person or group of persons not enjoyed
by others or by all.
Same; Same; The grant of probation rests solely upon the discretion of the
court which is to be exercised primarily for the benefit of organized society, and
only incidentally for the benefit of the accused.—Accordingly, the grant of
probation rests solely upon the discretion of the court which is to be exercised
primarily for the benefit of organized society, and only incidentally for the
benefit of the accused. The Probation Law should not therefore be permitted to
divest the state or its government of any of the latter’s prerogatives, rights or
remedies, unless the intention of the legislature to this end is clearly expressed,
and no person should benefit from the terms of the law who is not clearly
within them.
Same; Same; An appeal should not bar the accused from applying for probation
if the appeal is taken solely to reduce the penalty is simply contrary to the clear
and express mandate of Sec. 4 of the Probation Law.—Therefore, that an
appeal should not bar the accused from applying for probation if the appeal is
taken solely to reduce the penalty is simply contrary to the clear and express
mandate of Sec. 4 of the Probation Law, as amended, which opens with a
negative clause, “no application for probation shall be entertained or granted if
the defendant has perfected the appeal from the judgment of conviction.”
Same; Same; The multiple prison terms are distinct from each other and if none
of the terms exceeds the limit set out in the Probation Law, i.e., not more than
six (6) years, then he is entitled to probation, unless he is otherwise specifically
disqualified.—At the outset, the penalties imposed by the MeTC were already
probationable. Hence, there was no need to appeal if only to reduce the
penalties to within the probationable period. Multiple prison terms imposed
against an accused found guilty of several offenses in one decision are not, and
should not be, added up. And, the sum of the multiple prison terms imposed
against an applicant should not be determinative of his eligibility for, nay his
disqualification from, probation. The multiple prison terms are distinct from
each other, and if none of the terms exceeds the limit set out in the Probation
Law, i.e., not more than six (6) years, then he is entitled to probation, unless he
is otherwise specifically disqualified. The number of offenses is immaterial as
long as all the penalties imposed, taken separately, are within the
probationable period. For, Sec. 9, par. (a), P.D. 968, as amended, uses the word
maximum, not total, when it says that “[t]he benefits of this Decree shall not be
extended to those x x x x sentenced to serve a maximum term of imprisonment
of more than six years.” Evidently, the law does not intend to sum up the
penalties imposed but to take each penalty separately and distinctly with the
others.
Same; Same; The basis of the disqualification is principally the gravity of the
offense committed and the concomitant degree of penalty imposed.—Fixing
the cut-off point at a maximum term of six (6) years imprisonment for
probation is based on the assumption that those sentenced to higher penalties
pose too great a risk to society, not just because of their demonstrated
capability for serious wrongdoing but because of the gravity and serious
consequences of the offense they might further commit. The Probation Law, as
amended, disqualifies only those who have been convicted of grave felonies as
defined in Art.9 in relation to Art. 25 of The Revised Penal Code, and not
necessarily those who have been convicted of multiple offenses in a single
proceeding who are deemed to be less perverse. Hence, the basis of the
disqualification is principally the gravity of the offense committed and the
concomitant degree of penalty imposed. Those sentenced to a maximum term
not exceeding six (6) years are not generally considered callous, hard core
criminals, and thus may avail of probation.
Same; Same; The law considers appeal and probation mutually exclusive
remedies.—In fine, considering that the multiple prison terms should not be
summed up but taken separately as the totality of all the penalties is not the
test, petitioner should have immediately filed an application for probation as he
was already qualified after being convicted by the MeTC, if indeed thereafter he
felt humbled, was ready to unconditionally accept the verdict of the court and
admit his liability. Consequently, in appealing the Decision of the MeTC to the
RTC, petitioner lost his right to probation. For, plainly, the law considers appeal
and probation mutually exclusive remedies. Francisco vs. Court of Appeals, 243
SCRA 384, G.R. No. 108747 April 6, 1995
BELLOSILLO, J.:
Probation is a special privilege granted by the state to a penitent qualified
offender. It essentially rejects appeals and encourages an otherwise
eligible convict to immediately admit his liability and save the state of
time, effort and expenses to jettison an appeal. The law expressly
requires that an accused must not have appealed his conviction before
he can avail of probation. This outlaws the element of speculation on the
part of the accused — to wager on the result of his appeal — that when
his conviction is finally affirmed on appeal, the moment of truth well-nigh
at hand, and the service of his sentence inevitable, he now applies for
probation as an "escape hatch" thus rendering nugatory the appellate
court's affirmance of his conviction. Consequently, probation should be
availed of at the first opportunity by convicts who are willing to be
reformed and rehabilitated, who manifest spontaneity, contrition and
remorse.
As conceptualized, is petitioner entitled to probation within the purview of
P.D. 968, as amended by P.D. 1257 and P.D. 1990?
Petitioner's woes started when as President and General Manager of
ASPAC Trans. Company he failed to control his outburst and blurted —
You employees in this office are all tanga, son of a bitches (sic),
bullshit. Puro kayo walang utak . . . . Mga anak ng puta . . .
. Magkano ba kayo . . . God damn you all.
Thus for humiliating his employees he was accused of multiple grave oral
defamation in five (5) separate Informations instituted by five (5) of his
employees, each Information charging him with gravely maligning them
on four different days, i.e., from 9 to 12 April 1980.
On 2 January 1990, after nearly ten (10) years, the Metropolitan Trial
Court of Makati, Br. 61, found petitioner guilty of grave oral defamation in
four (4) of the five (5) cases filed against him, i.e., Crim. Cases Nos.
105206, 105207, 105209 and 105210, sentenced him to a prison term of
one (1) year and one (l) day to one (1) year and eight (8) months
of prision correccional "in each crime committed on each date of each
case, as alleqed in the information(s)," ordered him to indemnify each of
the offended parties, Victoria Gatchalian, Rowena Ruiz, Linda Marie
Ayala Pigar and Marie Solis, P10,000.00 as exemplary damages, and
P5,000.00 for attorney's fees, plus costs of suit.1 He was however
acquitted in Crim. Case No. 105208 for persistent failure of the offended
party, Edgar Colindres, to appear and testify.
Not satisfied with the Decision of the MeTC, and insisting on his
innocence, petitioner elevated his case to the Regional Trial Court.
On 5 August 1991 the Regional Trial Court of Makati, Br. 59, affirmed his
conviction but appreciated in his favor a mitigating circumstance
analogous to passion or obfuscation. Thus —
. . . (he) was angry and shouting when he uttered the
defamatory words complained of . . . . he must have
4
Rule 110. CRIMINAL PROCEDURE – FULL TEXT 22 CASES
been angry and worried "about some missing
documents . . . as well as the letter of the Department
of Tourism advising ASPAC about its delinquent tax of
P1.2 million . . . . " the said defamatory words must
have been uttered in the heat of anger which is a
mitigating circumstance analogous to passion or
obfuscation.2
Accordingly, petitioner was sentenced "in each case to a STRAIGHT
penalty of EIGHT (8) MONTHS imprisonment . . . . "3 After he failed to
interpose an appeal therefrom the decision.of the RTC became final. The
case was then set for execution of judgment by the MeTC which, as a
consequence, issued a warrant of arrest. But·before he could be arrested
petitioner filed an application for probation which the MeTC denied "in the
light of the ruling of the Supreme Court in Llamado v. Court of Appeals,
G.R. No, 84850, 29 June 1989, 174 SCRA 566 . . . ."4
Forthwith he went to the Court of Appeals on certiorari which on 2 July
1992 dismissed his petition on the following grounds —
Initially, the Court notes that the petitioner has failed to comply
with the provisions of Supreme Court Circular No. 28-91 of
September 4, 1991. Violation of the circular is sufficient cause for
dismissal of the petition.
Secondly, the petitioner does not allege anywhere in the petition
that he had asked the respondent court to reconsider its above
order; in fact, he had failed to give the court an.opportunity to
correct itself if it had, in fact, committed any error on the matter.
He is, however, required to move for reconsideration of the
questioned order before filing a petition for certiorari (Sy It v.
Tiangco, 4 SCRA 436). This failure is fatal to his cause. It is a
ground for dismissal of his petition (Santos v. Vda. de Cerdenola,
5 SCRA 823; Acquiao v. Estenso, 14 SCRA 18; Del Pilar Transit,
Inc. v. Public Service Commission, 31-SCRA 372).
Thirdly, it is obvious that respondent court did not commit any
capricious, arbitrary, despotic or whimsical exercise of power in
denying the petitioner's application for probation . . . .
Fourthly, the petition for probation was filed by the petitioner out
of time . . . .
Fifthly, the Court notes that Section 4 of PD 968 allows the trial court to
grant probation after conviction, upon an application by the defendant
within the period of appeal, upon terms and conditions and period
appropriate to each case, but expressly rules out probation where an
appeal has been taken . . . . 5
The motion for reconsideration was likewise denied.
In the present recourse, petitioner squirms out of each ground and seeks
this Court's compassion in dispensing with the minor technicalities which
may militate against his petition as he now argues before us that he has
not yet lost his right to avail of probation notwithstanding his appeal from
the MeTC to the RTC since "[t]he reason for his appeal was precisely to
enable him to avail himself of the benefits of the Probation Law because
the original Decision of the (Metropolitan) Trial Court was such that he
would not then be entitled to probation." 6 He contends that "he appealed
from the judgment of the trial court precisely for the purpose of reducing
the penalties imposed upon him by the said court to enable him to qualify
for probation." 7
The central issue therefore is whether petitioneris still qualified to avail of
probation even after appealing his conviction to the RTC which affirmed
the MeTC except with regard to the duration of the penalties imposed.
Petitioner is no longer eligible for probation.
First. Probation is a mere privilege, not a right. 8 Its benefits cannot
extend to those not expressly included. Probation is not a right of an
accused, but rather an act of grace and clemency or immunity conferred
by the state which may be granted by the court to a seemingly deserving
defendant who thereby escapes the extreme rigors of the penalty
imposed by law for the offense of which he stands convicted. 9 It is a
special prerogative granted by law to a person or group of persons not
enjoyed by others or by all. Accordingly, the grant of probation rests
solely upon the discretion of the court which is to be exercised primarily
for the benefit of organized society, and only incidentally for the benefit of
the accused.10 The Probation Law should not therefore be permitted to
divest the state or its government of any of the latter's prerogatives, rights
or remedies, unless the intention of the legislature to this end is clearly
expressed, and no person should benefit from the terms of the law who is
not clearly within them.
Neither Sec. 4 of the Probation Law, as amended, which clearly
mandates that "no application for probation shall be entertained or
granted if the defendant has perfected the appeal from the judgment of
conviction," nor Llamado v. Court of Appeals 11 which interprets the
quoted provision, offers any ambiguity or qualification. As such, the
application of the law should not be subjected to any to suit the case of
petitioner. While the proposition that an appeal should not bar the
accused from applying for probation if the appealis solely to reduce the
penalty to within the probationable limit may be equitable, we are not yet
prepared to accept this interpretation under existing law and
jurisprudence. Accordingly, we quote Mr. Justice Feliciano speaking for
the Court en banc in Llamado v. Court of Appeals—
. . . we note at the outset that Probation Law is not a penal
statute. We, however, understand petitioner's argument to be
really that any statutory language that appears to favor the
accused in acriminal case should be given.a "liberal
interpretation." Courts . . . have no authority to invoke "liberal
interpretation" or "the spirit of the law" where the words of the
statute themselves, and·as illuminated by the history of that
statute, leave no room for doubt or interpretation. We do not
believe that "the spirit of·the law" may legitimately be invoked
to set at naught words which have a clear and definite meaning
imparted to them by our procedural law. The "true legislative
intent" must obviously be given effect by judges and all others
who are charged with the application and implementation of a
statute. It is absolutely essential to bear in mind, however, that
the spirit of the law and the intent that is to be given effect are
derived from the words actually used by the law-maker, and
not from some external, mystical or metajuridical source
independent of and transcending the words of the legislature.
The Court is not here to be understood as giving a "strict
interpretation" rather than a "liberal" one to Section 4 of the
Probation Law of 1976 as amended by P.D. No. 1990. "Strict" and
"liberal" are adjectives which too frequently impede a disciplined and
principled search for the meaning which the law-making authority
projected when it promulgated the language which we must apply.
That meaning is clearly visible in the text of Section 4, as plain and
unmistakable as the nose on a man's face. The Courtis
simply·reading Section 4 as it is in fact written. There is no need for
the involved process of construction that petitioner invites us to
engage in, a process made necessary only because petitioner
rejects the conclusion or meaning which shines through the words of
the statute. The first duty of the judge is to take and apply a statute
as he finds it, not as he would like·it to be. Otherwise, as this Court
in Yangco v. Court of First Instance warned, confusion and
uncertainty will surely follow, making, we might add, stability and
continuity in the law much more difficult to achieve:
. . . [w]here language is plain, subtle refinements which tinge
words as to give them the color of a particular judicial theory
are not only unnecessary but decidedly harmful. That which
has caused so much confusion in the law, which has made it
so difficult for the public to understand and know what the law
is with respect to a given matter, is in considerable measure
the unwarranted interference by judicial tribunals with the
English language as found in statutes and contracts, cutting
the words here and inserting them there, making them fit
personal ideas of what the legislature ought to have done or
what parties should have agreed upon, giving them meanings
which they do not ordinarily have cutting, trimming, fitting,
changing and coloring until lawyers themselves are unable to
advise their clients as to the meaning of a given statute or
contract until it has been submitted to some court for its
interpretation and construction.
5
Rule 110. CRIMINAL PROCEDURE – FULL TEXT 22 CASES
The point in this warning may be expected to become
sharper as our people's grasp of English is steadily
attenuated. 12
Therefore, that an appeal should not·bar the accused from applying for
probation if the appeal is taken solely to reduce the penalty is simply
contrary to the clear and express mandate of Sec, 4 of the Probation
Law, as amended, which opens with a negativeclause, "no application for
probation shall be entertained or granted if the defendant has perfected
the appeal from the judgment of conviction." In Bersabal v.
Salvador, 13 we said —
By its very language, the Rule is mandatory. Under the
rule of statutory construction. negative words and
phrases are to be regarded as mandatory while those
in the affirmative are merely directory. . . . the use of
the term "shall" further emphasizes its mandatory
character and means that it is imperative, operating to
impose a duty which may be enforced.
And where the law does not distinguish the courts should not distinguish;
where the law does not make exception the court should not except.
Second. At the outset, the penalties imposed by the MeTC were already
probationable. Hence, there was no need to appeal if only to reduce the
penalties to within the probationable period. Multiple prison terms
imposed against an accused found guilty of several offenses in one
decision are not, and should not be, added up. And, the sum of the
multiple prison terms imposed against an applicant should not be
determinative of his eligibility for, nay his disqualification from, probation.
The multiple prison terms are distinct from each other, and if none of the
terms exceeds the limit set out in the Probation Law,i.e., not more than
six (6) years, then he is entitled to probation, unless he is otherwise
specifically disqualified. The number of offenses is immaterial as long as
all the penalties imposed, taken separately, are within the probationable
period. For, Sec. 9, par. (a), P.D. 968, as amended, uses the
word maximum not total when it says that "[t]he benefits of this Decree
shall not be extended to those . . . . sentenced to serve a maximum term
of imprisonment of more than six years." Evidently, the law does not
intend to sum up the penalties imposed but to take each penalty
separately and distinctly with the others. Consequently, even if petitioner
was supposed to have served his prison term of one (1) year and one (1)
day to one (1) year and eight (8) months of prision correccional sixteen
(16) times as he was sentenced to serve the prison term for "each crime
committed on each date of each case, as alleged in the information(s),"
and in each of the four (4) informations, he was charged with.having
defamed the four (4) private complainants on four (4) different, separate
days, he was still·eligible for probation, as each prison term imposed on
petitioner was probationable.
Fixing the cut-off point at a maximum term of six (6) years imprisonment
for probation is based on the assumption that those sentenced to higher
penalties pose too great a risk to society, not just because of their
demonstrated capability for serious wrong doing but because of the
gravity and serious consequences of the offense they might further
commit. 14 The Probation Law, as amended, disqualifies only those who
have been convicted of grave felonies as defined in Art. 9 in relation to
Art. 25 of The Revised Penal Code, 15 and not necessarily those who
have been convicted of multiple offenses in a single proceeding who are
deemed to be less perverse. Hence, the basis of the disqualification is
principally the gravity of the offense committed and the concomitant
degree of penalty imposed. Those sentenced to a maximum term not
exceeding six (6) years are not generally considered callous, hard core
criminals, and thus may avail of probation.
To demonstrate the point, let ustake for instance one who is convicted in
a single decision of, say, thirteen (13) counts of grave oral defamation
(for having defamed thirteen [13] individuals in one outburst) and
sentenced to a total prison term of thirteen (13) years, and another who
has been found guilty of mutilation and sentenced to six (6) years and
one (l) day of prision mayor minimum as minimum to twelve (l2) years
and one (1) day of reclusion temporal minimum as maximuin. Obviously,
the latter offender is more perverse and is disqualified from availing of
probation.
Petitioner thus proceeds on an erroneous assumption that under the
MeTC Decision he could not have availed of the benefits of probation.
Since he could have, although he did not, his appeal now precludes him
from applying for probation.
And, even if we go along with the premise of petitioner, however
erroneous it may be, that the penalties imposed against him should be
summed up, still he would not have qualified under the Decision
rendered by the RTC since if the "STRAIGHT penalty of EIGHT (8)
MONTHS imprisonment" imposed by the RTC is multiplied sixteen (16)
times, the total imposable penalty would be ten (10) years and eight (8)
months, which is still way beyond the limit of not more than six (6) years
provided for in the Probation Law, as amended. To illustrate: 8 months
multiplied by 16 cases = 128 months; 128 months divided by 12 months
(in a year) = 10 years and 8 months, hence, following his argument,
petitioner cannot still be eligible for probation as the total of his penalties
exceeds six (6) years.
The assertion that the Decision of the RTC should be multiplied only four
(4) times since there are only four (4) Informations thereby allowing
petitioner to qualify for probation, instead of sixteen (16) times, is quite
difficult to understand. The penalties imposed by the MeTC cannot be
any clearer — "one (1) year and one (1) day to one (1) year and eight (8)
months of prision correccional, in each crime committed on each date of
each case, as alleged in the information(s). "Hence, petitioner should
suffer the imposed penalties sixteen (16) times. On the other hand, the
RTC affirmed, the judgment of conviction and merely reduced the
duration of each penalty imposed by the MeTC "in each case to a
STRAIGHT penalty of EIGHT (8) MONTHS imprisonment" on account of
a mitigating circumstance for each case, count or incident of grave oral
defamation·There is no valid reason therefore why the penalties imposed
by the RTC should be multiplied only four (4) times, and not sixteen (16)
times, considering that the RTC merely affirmed the MeTC as regards the
culpability of petitioner in each of the sixteen (16) cases and reducing
only the duration of the penalties imposed therein. Thus —
Premises considered, the judgment of conviction rendered by the
trial court is AFFIRMED with modification, as follows:
WHEREFORE, the Court hereby finds the accused Pablo C.
Francisco GUILTY beyond reasonable doubt in each of the above
entitled cases and appreciating in his favor the mitigating
circumstance which is analogous to passion or obfuscation, the
Court hereby sentences the said accused in each case to a straight
penalty of EIGHT (8) MONTHS imprisonment, with the accessory
penalties prescribed by law; and to pay the costs. 16
Nowhere in the RTC Decision is it stated or even hinted at that the
accused was acquitted or absolved in any of the four (4) counts under
each of the four (4) Informatfons, or that any part of thejudgment of
conviction was reversed, or that any of the cases, counts or incidents
was dismissed. Otherwise, we will have to account for the twelve (12)
other penalties imposed by the MeTC. Can we? What is clear is that the
judgment of conviction rendered by the was affirmed with the sole
modification on the duration of the penalties.
In fine, considering that the multiple prison terms should not be summed
up but taken separately as the totality of all the penalties is not the test,
petitioner should have immediately filed an application for probation as
he was already qualified after being convicted by the MeTC, if indeed
thereafter he felt humbled, was ready to unconditionally accept the
verdict of the court and admit his liability. Consequently, in appealing the
Decision of the MeTC to the RTC, petitioner lost his right to probation.
For, plainly, the law considers appeal and probation mutually exclusive
remedies. 17
Third. Petitioner appealed to the RTC not to reduce or even correct the
penalties imposed by the MeTC, but to assert his innocence. Nothing
more. The cold fact is that petitioner appealed his conviction to the RTC
not for the sole purpose of reducing his penalties to make him eligible for
probation — since he was already qualified under the MeTC Decision —
but rather to insist on his innocence. The appeal record is wanting of any
other purpose. Thus, in his Memorandum before the RTC, he raised only
three (3) statements of error purportedly committed by the MeTC all
aimed at his acquittal: (a) in finding that the guilt of the accused has been
established because of his positive identification by the witness for the
prosecution; (b) in giving full faith and credence to the bare statements of
the private complainants despite the absence of corroborating
6
Rule 110. CRIMINAL PROCEDURE – FULL TEXT 22 CASES
testimonies; and, (c)in not acquitting him in all the
cases," 18 Consequently, petitioner insisted that the trial court committed
an error in relying on his positive identification considering that private
complainants could not have missed identifying him who was their
President and General Manager with whom they worked for a good
number of years. Petitioner further argued that although the alleged
defamatory words were uttered in the presence of other persons, mostly
private complainants, co-employees and clients, not one of them was
presented as a witness. Hence, according to petitioner, the trial court
could not have convicted him on the basis of the uncorroborative
testimony of private complainants. 19
Certainly, the protestations of petitioner connote profession of
guiltlessness, if not complete innocence, and do not simply put in issue
the propriety of the penalties imposed. For sure, the accused never
manifested that he was appealing only for the purpose of correcting a
wrong penalty — to reduce it to within the probationable range. Hence,
upon interposing an appeal, more so after asserting his innocence
therein, petitioner should be precluded from seeking probation. By
perfecting his appeal, petitioner ipso facto relinquished his alternative
remedy of availing of the Probation Law the purpose of which is simply to
prevent speculation or opportunism on the part of an accused who
although already eligible does not at once apply for probation, but doing
so only after failing in his appeal.
The fact that petitioner did not elevate the affirmance of his conviction by
the RTC to the Court of Appeals does not necessarily mean that his
appeal to the RTC was solely to reduce his penalties. Conversely, he
was afraid that the Court of Appeals would increase his penalties, which
could be worse for him. Besides, the RTC Decision had already become
final and executory because of the negligence, according to him, of his
former counsel who failed to seek possible remedies within the period
allowed by law.
Perhaps it should be mentioned that at the outset petitioner, in
accordance with Sec 3, par. (e), Rule 117 of the Rules of Court, 20 should
have moved to quash as each of the four (4) Informations filed against
him charged four (4) separate crimes of grave oral defamation,
committed on four (4) separate days. His failure to do so however may
now be deemed a waiver under Sec. 8 of the same Rule 21 and he can
be validly convicted, as in the instant case, of as many crimes charged in
the Information.
Fourth. The application for probation was filed way beyond the period
allowed by law. This is vital way beyond the period allowed by law and
crucial. From the records it is clear that the application for probation was
filed "only after a warrant for the arrest of petitioner had been issued . . .
(and) almost two months after (his) receipt of the Decision" 22of the RTC.
This is a significant fact which militates against the instant petition. We
quote with affirmance the well-written, albeit assailed, ponencia of now
Presiding Justice of the Court of Appeals Nathanael P. De Pano, Jr., on
the specific issue —
. . . the petition for probation was filed by the petitioner out of SO ORDERED.
time. The law in point, Section 4 of P.D. 968, as amended,
provides thus:
Sec. 4. Grant of Probation. — Subject to the provisions of
this Decree, the trial court may, after it shall have
convicted and sentenced a defendant, and upon
application by said defendant within the period for
perfecting an appeal. . . . place the defendant on
probation . . . .
Going to the extreme, and assuming that an application for
probation from one who had appealed the trial court's
judgment is allowed by law, the petitioner's plea for probation
was filed out of time. In the petition is a clear statement that
the petitioner was up for execution of judgment before he filed
his application for probation. P.D. No. 968 says that the
application for probation must be filed "within the period for
perfecting an appeal;" but in this case, such period for appeal
had passed, meaning to say that the Regional Trial Court's
decision had attained finality, and no appeal therefrom was
possible under the law. Even granting that an appeal from
the appellate court's judgment is contemplated by P.D. 968, in
addition to the judgment rendered by the trial court, that
appellate judgment had become final and was, in fact, up for
actual execution before the application for probation was
attempted by the petitioner. The petitioner did not file his
application for probation before the finality of the said
judgment; therefore, the petitioner's attempt at probation was
filed too late.
Our minds cannot simply rest easy on. the proposition that an application
for probation may yet be granted even if it was filed only after judgment
has become final, the conviction already set for execution and a warrant
of arrest issued for service of sentence.
The argument that petitioner had to await the remand of the case to the
MeTC, which necessarily must be after the decision of the RTC had
become final, for him to file the application for probation with the trial
court, is to stretch the law beyond comprehension. The law, simply, does
not allow probation after an appeal has been perfected.
Accordingly, considering that prevailing jurisprudence treats appeal and
probation as mutually exclusive remedies, and petitioner appealed from
his conviction by the MeTC although the imposed penalties were already
probationable, and in his appeal, he asserted only his innocence and did
not even raise the issue of the propriety of the penalties imposed on him,
and finally, he filed an application for probation outside the period for
perfecting an appeal granting he was otherwise eligible for probation, the
instant petition for review should be as it is hereby DENIED.
7
Rule 110. CRIMINAL PROCEDURE – FULL TEXT 22 CASES
4. [G.R. No. 122274. July 31, 1996]
SUSAN V. LLENES, petitioner, vs. HON. ISAIAS P. DICDICAN,
Presiding Judge, Regional Trial Court of Cebu, Branch 11,
HON. AMADO B. BAJARIAS, SR., Presiding Judge,
Municipal Trial Court, Branch 7, and VIVIAN G.
GINETE, respondents.
Criminal Procedure; Prescription; The basic substantive laws on
prescription of offenses are Articles 90 and 91 of the
Revised Penal Code for offenses punished thereunder, and
Act No. 3326, as amended, for those penalized by special
laws.—The basic substantive laws on prescription of
offenses are Articles 90 and 91 of the Revised Penal Code
for offenses punished thereunder, and Act No. 3326, as
amended, for those penalized by special laws. Under Article
90 of the Revised Penal Code, the crime of grave oral
defamation, which is the subject of the information in
Criminal Case No. 35684-R of the MTC of Cebu, prescribes
in 6 months. Since Article 13 of the Civil Code provides that
when the law speaks of months it shall be understood to be
of 30 days, then grave oral defamation prescribes in 180
days.
Same; Same; The matter of interruption of the prescriptive period
due to the filing of the complaint or information had been
the subject of conflicting decisions of the Court.—The
matter of interruption of the prescriptive period due to the
filing of the complaint or information had been the subject
of conflicting decisions of this Court. In People vs. Tayco,
People vs. Del Rosario, and People vs. Coquia, this Court
held that it is the filing of the complaint or information with
the proper court, viz., the court having jurisdiction over the
crime, which interrupts the running of the period of
prescription. On the other hand, in the first case of People
vs. Olarte, a case for libel, this Court held that the filing of
the complaint with the justice of the peace court even for
preliminary investigation purposes only interrupts the
running of the statute of limitations.
Same; Same; Decision in the second case of People vs. Olarte
resolved once and for all what should be the doctrine, viz.,
that the filing of the complaint with the municipal trial court
even for purposes of preliminary investigation only
suspends the running of the prescriptive period.—However,
the decision of 28 February 1967 of this Court in the second
case of People vs. Olarte resolved once and for all what
should be the doctrine, viz., that the filing of the complaint
with the municipal trial court even for purposes of
preliminary investigation only suspends the running of the
prescriptive period.
Same; Same; Decision of the Court in Francisco vs. Court of
Appeals holds that the filing of the complaint in the fiscal’s
office for preliminary investigation also suspends the
running of the prescriptive period.—Then, in its decision of
30 May 1983 in Francisco vs. Court of Appeals, this Court
not only reiterated Olarte of 1967 but also broadened its
scope by holding that the filing of the complaint in the
fiscal’s office for preliminary investigation also suspends
the running of the prescriptive period.
Same; Same; The filing of the private respondent’s complaint for
grave oral defamation against the petitioner with the
Ombudsman-Visayas tolled the running of the period of
prescription of the said offense.—The Ombudsman-Visayas
then has authority to conduct preliminary investigation of
the private respondent’s complaint against the petitioner
for grave oral defamation. Undoubtedly, the rationale of the
first Olarte case, reiterated as the controlling doctrine in the
second Olarte case, which was broadened in Francisco and
reiterated in Calderon-Bargas, must apply to complaints
filed with the Office of the Ombudsman against public
officers and employees for purposes of preliminary
investigation. Accordingly, the filing of the private
respondent’s complaint for grave oral defamation against
the petitioner with the Ombudsman-Visayas tolled the
running of the period of prescription of the said offense.
Since the complaint was filed on 13 October 1993, or barely
twenty days from the commission of the crime charged, the
filing then of the information on 28 March 1994 was very
well within the six-month prescriptive period.
Llenes vs. Dicdican, 260 SCRA 207, G.R. No. 122274 July 31, 1996
DAVIDE, JR., J.:
The key issue raised in this special civil action for certiorari under
Rule 65 of the Rules of Court is whether the filing with the Office of the
Ombudsman of a complaint against a government official for grave oral
defamation interrupts the period of prescription of such offense.
We find this issue to be important enough to merit our attention. We
thus resolved to give due course to the petition, consider the private
respondent's comment on the petition[1] as the answer thereto, and
decide it on the basis of the pleadings which have sufficiently discussed
the issue.
The factual and procedural antecedents are not disputed.
On 13 October 1993, private respondent Vivian G. Ginete, then
officer-in-charge of the Physical Education and School Sports (PESS)
Division of the Regional Office of Region VII in Cebu City of the
Department of Education, Culture and Sports (DECS), filed with the
Office of the Deputy Ombudsman for the Visayas
(hereinafter Ombudsman-Visayas) a complaint for grave oral
defamation[2] allegedly committed on 23 September 1993 by petitioner
Susan V. Llenes, an Education Supervisor II of the same Regional Office.
The petitioner was required to file a counter-affidavit pursuant to
Administrative Order No. 7 of the Office of the Ombudsman, but she
failed to do so.
In his resolution of 15 March 1994,[3] Antonio B. Yap, Graft
Investigation Officer I of the said office, recommended that the case be
indorsed to the Office of the City Prosecutor of Cebu City for the filing of
the necessary information against the petitioner. This resolution was
approved by the Deputy Ombudsman-Visayas.
On 28 March 1994, the City Prosecutor of Cebu City filed with the
Municipal Trial Court (MTC) in Cebu City an information [4] for grave oral
defamation against the petitioner. This was docketed as Criminal Case
No. 35684-R and assigned to Branch 7 thereof.
On 30 May 1994, the petitioner filed a motion to quash[5] the
information on the ground that the "criminal action or liability" has been
extinguished. She contended that under Article 90 of the Revised Penal
Code, the offense of grave oral defamation prescribes in months and that
since the information was filed only on 28 March 1994, or 186 days or 6
months and 6 days after its alleged commission, the crime had then
already prescribed. In support thereof, she cited the decision in
"Zalderia[6] vs. Reyes, Jr., G.R. No. 102342, July 3, 1992, 211 SCRA
277," wherein this Court ruled that the filing of an information at the
fiscal's office will not stop the running of the prescriptive period for
crimes.
In her opposition,[7] the private respondent cited Section 1, Rule 110
of the Rules of Court which provides, inter alia, that for offenses not
subject to the rule on summary procedure in special cases and which fall
within the jurisdiction of Municipal Trial Courts and Municipal Circuit Trial
Courts, the filing of the complaint directly with the said court or with the
fiscal's office interrupts the period of prescription of the offense charged.
The filing of the complaint by the private respondent with the Office of the
Deputy Ombudsman-Visayas was equivalent to the filing of a complaint
with the fiscal's (now prosecutor's) office under said Section 1 pursuant to
its powers under Section 15(1) of R.A. No. 6770, otherwise known as the
Ombudsman Act of 1989. The private respondent further claimed
that Zaldivia is inapplicable because it involves an offense covered by the
rule on summary procedure and it explicitly stated that Section 1 of Rule
110 excludes cases covered by the Rule on Summary Procedure.
The Municipal Trial Court, per public respondent Judge Bajarias,
denied the motion to quash in the order of 18 July 1994. [8] It fully agreed
with the stand of the private respondent.
Her motion to reconsider[9] the above order having been denied on
29 November 1994,[10] the petitioner filed with the Regional Trial Court
(RTC) of Cebu a special civil action for certiorari,[11] which was docketed
therein as Civil Case No. CEB-16988. The case was assigned to Branch
11.
8
Rule 110. CRIMINAL PROCEDURE – FULL TEXT 22 CASES
In its decision of 3 July 1995,[12] the RTC, per public respondent
Judge Isaias P. Dicdican, affirmed the challenged orders of Judge
Bajarias of 18 July 1994 and 29 November 1994. It ruled that the order
denying the motion to quash is interlocutory and that the petitioner's
remedy, per Acharon vs. Purisima,[13] reiterated in People vs.
Bans,[14] was to go to trial without prejudice on her part to reiterate the
special defense she had invoked in her motion to quash and, if after trial
on the merits an adverse decision is rendered, to appeal therefrom in the
manner authorized by law. Besides, the petitioner has not satisfactorily
and convincingly shown that Judge Bajarias has acted with grave abuse
of discretion in issuing the orders considering that the ground invoked by
her does not appear to be indubitable. And even assuming that the MTC
erred in venturing an opinion that the filing of the complaint with the
Office of the Ombudsman is equivalent to the filing of a complaint with
the fiscal's office, such error is merely one of judgment. For, there is no
decided case on the matter, and the substantive laws have not clearly
stated as to what bodies or agencies of government should complaints or
informations be filed in order that the period of prescription of crimes or
offenses should be considered interrupted. Article 91 of the Revised
Penal Code simply states that the prescriptive period shall be interrupted
by the "filing of the complaint or information" and has not specified further
where such complaint or information should be filed.
Since the Regional Trial Court denied her motion to
reconsider[15] the decision in the order of 23 August 1995,[16] the
petitioner filed this special civil action wherein she reiterates the
arguments she adduced before the two courts below. The private
respondent likewise did nothing more in her responsive pleading than
reiterate what she had raised before the said courts.
The basic substantive laws on prescription of offenses are Articles
90 and 91 of the Revised Penal Code for offenses punished thereunder,
and Act No. 3326, as amended, for those penalized by special laws.
Under Article 90 of the Revised Penal Code, the crime of grave oral
defamation, which is the subject of the information in Criminal Case No.
35684-R of the MTC of Cebu, prescribes in 6 months. Since Article 13 of
the Civil Code provides that when the law speaks of months it shall be
understood to be of 30 days, then grave oral defamation prescribes in
180 days.[17] Article 91 of the Revised Penal Code provides:
ART. 91. Computation of prescription of offenses. The period of prescription
shall commence to run from the day on which the crime is discovered by the
offended party, the authorities, or their agents, and shall be interrupted by the
filing of the complaint or information, and shall commence to run again when
such proceedings terminate without the accused being convicted or acquitted, or
are unjustifiably stopped for any reason not imputable to him.
The term of prescription shall not run when the offender is absent from the
Philippine Archipelago.
In the instant case, the alleged defamatory words were directly
uttered in the presence of the offended party on 23 September 1993.
Hence, the prescriptive period for the offense started to run on that date.
The matter of interruption of the prescriptive period due to the filing
of the complaint or information had been the subject of conflicting
decisions of this Court. In People vs. Tayco,[18] People vs. Del
Rosario,[19] and People vs. Coquia,[20] this Court held that it is the filing of
the complaint or information with the proper court, viz., the court having
jurisdiction over the crime, which interrupts the running of the period of
prescription. On the other hand, in the first case of People vs. Olarte,[21] a
case for libel, this Court held that the filing of the complaint with the
justice of the peace court even for preliminary investigation purposes
only interrupts the running of the statute of limitations.
However, the decision of 28 February 1967 of this Court in the
second case of People vs. Olarte[22] resolved once and for all what
should be the doctrine, viz., that the filing of the complaint with the
municipal trial court even for purposes of preliminary investigation only
suspends the running of the prescriptive period. Thus:
Analysis of the precedents on the issue of prescription discloses that there are
two lines of decisions following differing criteria in determining whether
prescription of crimes has been interrupted. One line of precedents holds that the
filing of the complaint with the justice of the peace (now municipal judge) does
interrupt the course of the prescriptive term: People vs. Olarte, L-13027, June 30,
1960 and cases cited therein; People vs. Uba, L-13106, October 16, 1959;
People vs. Aquino, 68 Phil. 588, 590. Another series of decisions declares that to
produce interruption the complaint or information must have been filed in the
proper court that has jurisdiction to try the case on its merits: People vs. Del
Rosario, L-15140, December 29, 1960; People vs. Coquia, L-15456, June 29,
1963.
In view of this diversity of precedents, and in order to provide guidance for
Bench and Bar, this Court has reexamined the question and, after mature
consideration, has arrived at the conclusion that the true doctrine is, and should
be, the one established by the decisions holding that the filing of the complaint
in the Municipal Court, even if it be merely for purposes of preliminary
examination or investigation, should, and does, interrupt the period of
prescription of the criminal responsibility, even if the court where the complaint
or information is filed cannot try the case on its merits. Several reasons buttress
this conclusion: First, the text of Article 91 of the Revised Penal Code, in
declaring that the period of prescription "shall be interrupted by the filing of the
complaint or information" without distinguishing whether the complaint is filed
in the court for preliminary examination or investigation merely, or for action on
the merits. Second, even if the court where the complaint or information is filed
may only proceed to investigate the case, its actuations already represent the
initial step of the proceedings against the offender. Third, it is unjust to deprive
the injured party of the right to obtain vindication on account of delays that are
not under his control. All that the victim of the offense may do on his part to
initiate the prosecution is to file the requisite complaint.
And it is no argument that Article 91 also expresses that the interrupted
prescription "shall commence to run again when such proceedings terminate
without the accused being convicted or acquitted," thereby indicating that the
court in which the complaint or information is filed must have power to acquit or
convict the accused. Precisely, the trial on the merits usually terminates in
conviction or acquittal, not otherwise. But it is in the court conducting a
preliminary investigation where the proceedings may terminate without
conviction or acquittal, if the court should discharge the accused because
no prima facie case has been shown.
Considering the foregoing reasons, the Court hereby overrules the doctrine of the
cases of People vs. Del Rosario, L-15140, December 29, 1960; and
People vs. Coquia, L-15456, promulgated June 29, 1963.
Then, in its decision of 30 May 1983 in Francisco vs. Court of
Appeals,[23] this Court not only reiterated Olarte of 1967 but also
broadened its scope by holding that the filing of the complaint in the
fiscal's office for preliminary investigation also suspends the running of
the prescriptive period. Thus:
Article 91 of the Revised Penal Code provides that . . . .
Interpreting the foregoing provision, this Court in People vs. Tayco held that the
complaint or information referred to in Article 91 is that which is filed in the
proper court and not the denuncia or accusation lodged by the offended party in
the Fiscal's Office. This is so, according to the court, because under this rule it is
so provided that the period shall commence to run again when the proceedings
initiated by the filing of the complaint or information terminate without the
accused being convicted or acquitted, adding that the proceedings in the Office
of the Fiscal cannot end there in the acquittal or conviction of the accused.
The basis of the doctrine in the Tayco case, however, was disregarded by this
Court in the Olarte case, cited by the Solicitor General. It should be recalled that
before the Olarte case, there was diversity of precedents on the issue of
prescription. One view declares that the filing of the complaint with the justice
of the peace (or municipal judge) does interrupt the course of prescriptive term.
This view is found-in People v. Olarte, L-13027, June 30, 1960 and cases cited
therein; People v. Uba, L-13106, October 16, 1959; People v. Aquino, 68 Phil.
588, 590. The other pronouncement is that to produce interruption, the
complainant or information must have been filed in the proper court that has
jurisdiction to try the case on its merits, found in the cases of People v. del
Rosario, L-15140, December 29, 1960; People v. Coquia, L-15456, June 29,
1963.
The Olarte case set at rest the conflict views, and enunciated the doctrine
aforecited by the Solicitor General. The reasons for the doctrine which We find
applicable to the case at bar read:
xxx xxx xxx
As is a well-known fact, like the proceedings in the court conducting a
preliminary investigation, a proceeding in the Fiscal's Office may terminate
without conviction or acquittal.
9
Rule 110. CRIMINAL PROCEDURE – FULL TEXT 22 CASES
As Justice Claudio Teehankee has observed:
To the writer's mind, these reasons logically call with equal force, for the express
overruling also of the doctrine in People vs. Tayco, 73 Phil. 509, (1941) that the
filing of a complaint or denuncia by the offended party with the City Fiscal's
Office which is required by law to conduct the preliminary investigation does
not interrupt the period of prescription. In chartered cities, criminal prosecution
is generally initiated by the filing of the complaint or denuncia with the city
fiscal for preliminary investigation. In the case of provincial fiscals, besides
being empowered like municipal judges to conduct preliminary investigations,
they may even reverse actions of municipal judges with respect to charges triable
by Courts of First Instance x x x.
Clearly, therefore, the filing of the denuncia or complaint for intriguing against
honor by the offended party, later changed by the Fiscal to grave oral
defamation, even if it were in the Fiscal's Office, 39 days after the alleged
defamatory remarks were committed (or discovered) by the accused interrupts
the period of prescription. (Italics supplied)
This Court reiterated Francisco in its resolution of 1 October 1993
in Calderon-Bargas vs. Regional Trial Court of Pasig, Metro Manila.[24]
The procedural law articulating Francisco is the last paragraph of
Section 1, Rule 110 (Prosecution of Offenses) of the Rules of Court. We
quote the entire Section for a better understanding of the last paragraph:
SEC. 1. How instituted. For offenses not subject to the rule on summary
procedure in special cases, the institution of criminal actions shall be as follows:
(a) For offenses falling under the jurisdiction of the Regional
Trial Courts, by filing the complaint with the
appropriate officer for the purpose ofconducting the
requisite preliminary investigation therein;
(b) For offenses falling under the jurisdiction of the Municipal
Trial Courts and Municipal Circuit Trial Courts, by
filing the complaint or information directly with the
said courts, or a complaint with the fiscal's office.
However, in Metropolitan Manila and other chartered
cities, the complaint may be filed only with the office
of the fiscal.
In all cases, such institution shall interrupt the period of prescription of the
offense charged. (Italics supplied)
The rule, however, is entirely different under Act No. 3326, as
amended, whose Section 2 explicitly provides that the period of
prescription shall be interrupted by the institution of judicial
proceedings, i.e., the filing of the complaint or information with the court.
The said section reads:
SEC. 2. Prescription shall begin to run from the day of the commission of the
violation of the law, and if the same be not known at the time, from the
discovery thereof and the institution of judicial proceedings for its investigation
and punishment.
The prescription shall be interrupted when proceedings are instituted against the
guilty person, and shall begin to run again if the proceedings are dismissed for
reasons not constituting double jeopardy. (Italics supplied)
And so, in Zaldivia vs. Reyes,[25] this Court held that the
proceedings referred to in said Section 2 are "judicial proceedings,"
which means the filing of the complaint or information with the proper
court.
Zaldivia, however, provides no safe refuge to the petitioner, and her
invocation thereof is misplaced. In the first place, it involved a violation of
an ordinance, which is covered by the Rule on Summary Procedure. By
its express mandate, Section 1, Rule 110 of the Rules of Court does not
apply to cases covered by the Rule on Summary Procedure. Second,
since the ordinance in question partakes of a special penal statute Act
No. 3326 is then applicable; hence, it is the filing in the proper court of
the complaint or information which suspends the running of the period of
prescription. In Zaldivia, this Court categorically interpreted Section 9 of
the Rule on Summary Procedure to mean that "the running of the
prescriptive period shall be halted on the date the case is actually filed in
court and not on any date before that," which is in consonance with
Section 2 of Act No. 3326.
What is then left to be determined is whether the filing of the private
respondent's complaint for grave oral defamation with the Office of the
Ombudsman-Visayas is equivalent to filing the complaint in the
prosecutor's office such that it interrupted the prescriptive period for
grave oral defamation.
Sections 12 and 13(1), Article XI of the Constitution provide:
SEC. 12. The Ombudsman and his Deputies, as protectors of the people, shall
act promptly on complaints filed in any form or manner against public officials
or employees of the Government, or any subdivision or instrumentality thereof,
including government-owned or controlled corporations, and shall, in
appropriate cases, notify the complainants of the action taken and the result
thereof.
SEC. 13. The Office of the Ombudsman shall have the following powers,
functions, and duties:
1. Investigate on its own, or on complaint by any person, any
act or omission of any public official, employee, office
or agency, when such act or omission appears to be
illegal, unjust, improper, or inefficient.
Corollarily, Sections 13, 15(1), and 16 of R.A. No. 6770, otherwise
known as The Ombudsman Act of 1989, which Congress enacted
pursuant to paragraph 8[26] of the aforementioned Section 13, Article XI of
the Constitution, provide as follows:
SEC. 13. Mandate. The Ombudsman and his Deputies, as protectors of the
people, shall act promptly on complaints filed in any form or manner against
officers or employees of the Government, or of any subdivision, agency or
instrumentality thereof, including government-owned or controlled corporations,
and enforce their administrative, civil and criminal liability in every case where
the evidence warrants in order to promote efficient service by the Government to
the people.
xxx xxx xxx
SEC. 15. Powers, Functions and Duties. The Office of the Ombudsman shall
have the following powers, functions and duties:
1. Investigate and prosecute on its own or on complaint by any
person, any act or omission of any public officer or
employee, office or agency, when such act or omission
appears to be illegal, unjust, improper or inefficient. It
has primary jurisdiction over cases cognizable by the
Sandiganbayan and, in the exercise of this primary
jurisdiction, it may take over, at any stage from any
investigatory agency of the Government, the
investigation of such cases.
SEC. 16. Applicability. The provisions of this Act shall apply to all kinds of
malfeasance, misfeasance, and nonfeasance that have been committed by any
officer or employee as mentioned in Section 13 hereof, during his tenure in
office.
Needless to state, these broad constitutional and statutory
provisions vest upon the Ombudsman and his Deputies the power to
initiate or conduct preliminary investigations in criminal cases filed
against public officers or employees, including government-owned or
controlled corporations. Thus, in Deloso vs. Domingo,[27] this Court held:
As protector of the people, the office of the Ombudsman has the power, function
and duty "to act promptly on complaints filed in any form or manner against
public officials" (Sec. 12) and to "investigate x x x any act or omission of any
public official x x x when such act or omission appears to be illegal, unjust,
improper or inefficient." (Sec. 13[1]) The Ombudsman is also empowered to
"direct the officer concerned," in this case the Special Prosecutor, "to take
appropriate action against a public official x x x and to recommend his
prosecution" (Sec. 13[3]).
The clause "any [illegal] act or omission of any public official" is broad enough
to embrace any crime committed by a public official. The law does not qualify
the nature of the illegal act or omission of the public official or employee that
the Ombudsman may investigate. It does not require that the act or omission be
10
Rule 110. CRIMINAL PROCEDURE – FULL TEXT 22 CASES
related to or be connected with or arise from, the performance of official duty.
Since the law does not distinguish, neither should we.
It must, however, be stressed that the authority of the Ombudsman
to investigate any illegal act or omission of any public officer is not an
exclusive authority; rather, it is a "shared or concurrent authority in
respect of the offense charged."[28]
A public officer, as distinguished from a government "employee," is
a person whose duties involve the exercise of discretion in the
performance of the functions of government. [29] The petitioner, being an
Education Supervisor II of the Regional Office of Region VII of the DECS,
is a public officer. The Ombudsman-Visayas then has authority to
conduct preliminary investigation of the private respondent's complaint
against the petitioner for grave oral defamation. Undoubtedly, the
rationale of the first Olarte case, reiterated as the controlling doctrine in
the second Olarte case, which was broadened in Francisco and
reiterated in Calderon-Bargas, must apply to complaints filed with the
Office of the Ombudsman against public officers and employees for
purposes of preliminary investigation. Accordingly, the filing of the private
respondent's complaint for grave oral defamation against the petitioner
with the Ombudsman-Visayas tolled the running of the period of
prescription of the said offense. Since the complaint was filed on 13
October 1993, or barely twenty days from the commission of the crime
charged, the filing then of the information on 28 March 1994 was very
well within the six-month prescriptive period.
WHEREFORE, the instant petition is DISMISSED for want of merit.
No pronouncement as to costs.
SO ORDERED.

11
Rule 110. CRIMINAL PROCEDURE – FULL TEXT 22 CASES
5. G.R. Nos. 169823-24 September 11, 2013
HERMINIO T. DISINI, Petitioner,
vs.
THE HON. SANDIGANBAYAN, FIRST DIVISION, AND THE PEOPLE
OF THE PHILIPPINES, Respondents.
x-----------------------x
G.R. Nos. 174764-65
HERMINIO T. DISINI, Petitioner,
vs.
SANDIGANBAYAN, FIRST DIVISION, AND THE PEOPLE OF THE
PHILIPPINES, Respondents.
Remedial Law; Criminal Procedure; Prosecution of Offenses; Prescription
of Offenses; Actions; The filing of the criminal complaints in the Office of
the Ombudsman effectively interrupted the running of the period of
prescription.―We note, too, that the criminal complaints were filed and
their records transmitted by the PCGG to the Office of the Ombudsman
on April 8, 1991 for the conduct the preliminary investigation. In
accordance with Article 91 of the Revised Penal Code and the ruling in
Panaguiton, Jr. v. Department of Justice, 571 SCRA 549 (2008), the filing
of the criminal complaints in the Office of the Ombudsman effectively
interrupted the running of the period of prescription.
Same; Same; Same; Same; Same; Irrespective of whether the offense
charged is punishable by the Revised Penal Code or by a special law, it
is the filing of the complaint or information in the office of the public
prosecutor for purposes of the preliminary investigation that interrupts the
period of prescription.―The prevailing rule is, there-fore, that irrespective
of whether the offense charged is punishable by the Revised Penal Code
or by a special law, it is the filing of the complaint or information in the
office of the public prosecutor for purposes of the preliminary
investigation that interrupts the period of prescription. Consequently,
prescription did not yet set in because only five years elapsed from 1986,
the time of the discovery of the offenses charged, up to April 1991, the
time of the filing of the criminal complaints in the Office of the
Ombudsman.
Same; Same; Same; Same; Same; A complaint or information must state
every single fact necessary to constitute the offense charged; otherwise,
a motion to dismiss or to quash on the ground that the complaint or
information charges no offense may be properly sustained.―It is
axiomatic that a complaint or information must state every single fact
necessary to constitute the offense charged; otherwise, a motion to
dismiss or to quash on the ground that the complaint or information
charges no offense may be properly sustained. The fundamental test in
determining whether a motion to quash may be sustained based on this
ground is whether the facts alleged, if hypothetically admitted, will
establish the essential elements of the offense as defined in the law.
Extrinsic matters or evidence aliunde are not considered. The test does
not require absolute certainty as to the presence of the elements of the
offense; otherwise, there would no longer be any need for the
Prosecution to proceed to trial. Disini vs. Sandiganbayan, First Division,
705 SCRA 459, G.R. Nos. 169823-24 September 11, 2013
DECISION
BERSAMIN, J.:
The Sandiganbayan has exclusive original jurisdiction over the criminal
action involving petitioner notwithstanding that he is a private individual
considering that his criminal prosecution is intimately related to the
recovery of ill-gotten wealth of the Marcoses, their immediate family,
subordinates and close associates.
The Case
Petitioner Herminio T. Disini assails via petition for certiorari there
solutions promulgated by the Sandiganbayan in Criminal Case No.
28001and Criminal Case No. 28002, both entitled People v. Herminio T.
Disini, on January 17, 2005 (denying his motion to quash the
informations)1 and August 10, 2005 (denying his motion for
reconsideration of the denial of his motion to quash),2 alleging that the
Sandiganbayan (First Division) thereby committed grave abuse of
discretion amounting to lack or excess of jurisdiction.
Antecedents
The Office of the Ombudsman filed two informations dated June 30,2004
charging Disini in the Sandiganbayan with corruption of public officials,
penalized under Article 212 in relation to Article 210 of the Revised Penal
Code (Criminal Case No. 28001), and with a violation of Section 4(a) of
Republic Act 3019 (R.A. No. 3019), also known as the Anti-Graft and
Corrupt Practices Act (Criminal Case No. 28002).
The accusatory portions of the informations read as follows:
Criminal Case No. 28001
That during the period from 1974 to February 1986, in Manila,
Philippines, and within the jurisdiction of this Honorable Court, accused
HERMINIO T. DISINI, conspiring together and confederating with the
then President of the Philippines Ferdinand E. Marcos, did then and
there, willfully, unlawfully and feloniously offer, promise and give gifts and
presents to said Ferdinand E. Marcos, consisting of accused DISINI’s
ownership of two billion and five hundred (2.5 billion) shares of stock in
Vulcan Industrial and Mining Corporation and four billion (4 billion)shares
of stock in The Energy Corporation, with both shares of stock having then
a book value of ₱100.00 per share of stock, and subcontracts, to
Engineering and Construction Company of Asia, owned and controlled by
said Ferdinand E. Marcos, on the mechanical and electrical construction
work on the Philippine Nuclear Power Plant Project("Project") of the
National Power Corporation at Morong, Bataan, all for and in
consideration of accused Disini seeking and obtaining for Burns and Roe
and Westinghouse Electrical Corporation (Westinghouse), the contracts
to do the engineering and architectural design and to construct,
respectively, the Project, as in fact said Ferdinand E. Marcos, taking
undue advantage of his position and committing the offense in relation to
his office and in consideration of the aforesaid gifts and presents, did
award or cause to be awarded to said Burns and Roe and Westinghouse,
the contracts to do the engineering and architectural design and to
construct the Project, respectively, which acts constitute the crime of
corruption of public officials.
CONTRARY TO LAW.3
Criminal Case No. 28002
That during the period 1974 to February 1986, in Manila, Philippines, and
within the jurisdiction of the Honorable Court, accused HERMINIO T.
DISINI, conspiring together and confederating with the then President of
the Philippines, Ferdinand E. Marcos, being then the close personal
friend and golfing partner of said Ferdinand E. Marcos, and being further
the husband of Paciencia Escolin-Disini who was the first cousin of then
First Lady Imelda Romualdez-Marcos and family physicianof the Marcos
family, taking advantage of such close personal relation, intimacy and
free access, did then and there, willfully, unlawfully and criminally, in
connection with the Philippine Nuclear Power Plant (PNPP)Project
("PROJECT") of the National Power Corporation (NPC) at Morong,
Bataan, request and receive from Burns and Roe, a foreign consultant,
the total amount of One Million U.S. Dollars ($1,000,000.00),more or
less, and also from Westinghouse Electric
Corporation(WESTINGHOUSE), the total amount of Seventeen Million
U.S. Dollars($17,000,000.00), more or less, both of which entities were
then having business, transaction, and application with the Government
of the Republic of the Philippines, all for and in consideration of accused
DISINI securing and obtaining, as accused Disini did secure and obtain,
the contract for the said Burns and Roe and Westinghouse to do the
engineering and architectural design, and construct, respectively, the
said PROJECT, and subsequently, request and receive subcontracts for
Power Contractors, Inc. owned by accused DISINI, and Engineering and
Construction Company of Asia (ECCO-Asia), owned and controlled by
said Ferdinand E. Marcos, which stated amounts and subcontracts
constituted kickbacks, commissions and gifts as material or pecuniary
advantages, for securing and obtaining, as accused DISINI did secure
and obtain, through the direct intervention of said Ferdinand E. Marcos,
for Burns and Roe the engineering and architectural contract, and for
Westinghouse the construction contract, for the PROJECT.
CONTRARY TO LAW.4
12
Rule 110. CRIMINAL PROCEDURE – FULL TEXT 22 CASES
On August 2, 2004, Disini filed a motion to quash,5 alleging that the
criminal actions had been extinguished by prescription, and that the
informations did not conform to the prescribed form. The Prosecution
opposed the motion to quash.6
On September 16, 2004, Disini voluntarily submitted himself for
arraignment to obtain the Sandiganbayan’s favorable action on his
motion for permission to travel abroad.7 He then entered a plea of not
guilty to both informations.
As stated, on January 17, 2005, the Sandiganbayan (First Division)
promulgated its first assailed resolution denying the motion to quash.8
Disini moved for the reconsideration of the resolution dated January 17,
2005,9 but the Sandiganbayan (First Division) denied his motion on
August 10, 2005 through the second assailed resolution.10
Issues
Undaunted, Disini commenced this special civil action for certiorari,
alleging that:
A. THE RESPONDENT COURT HAS NO JURISDICTION
OVER THEOFFENSES CHARGED.
1. THE RESPONDENT COURT GRAVELY ERRED
WHEN ITRULED THAT SECTION 4, PARAGRAPHS
(A) AND (B) OFREPUBLIC ACT NO. 8249 DO NOT
APPLY SINCE THEINFORMATIONS WERE "FILED
PURSUANT TO E.O. NOS. 1,2, 14 AND 14-A".
2. THE RESPONDENT COURT GRAVELY ERRED
WHEN ITASSUMED JURISDICTION WITHOUT
HAVING MET THEREQUISITE UNDER SECTION 4
OF R.A. 8249 THAT THEACCUSED MUST BE A
PUBLIC OFFICER.
B. THE RESPONDENT COURT ACTED WITH SUCH
GRAVEABUSE OF DISCRETION WHEN IT EFFECTIVELY
IGNORED, DISREGARDED, AND DENIED
PETITIONER’SCONSTITUTIONAL AND STATUTORY RIGHT
TOPRESCRIPTION.
1. THE RESPONDENT COURT GRAVELY ERRED
INDETERMINING THE APPLICABLE PRESCRIPTIVE
PERIOD.
2. THE RESPONDENT COURT GRAVELY ERRED
INDETERMINING THE COMMENCEMENT OF
THEPRESCRIPTIVE PERIOD.
3. THE RESPONDENT COURT GRAVELY ERRED
INDETERMINING THE POINT OF INTERRUPTION
OF THEPRESCRIPTIVE PERIOD.
C. BY MERELY ASSUMING THE PRESENCE OF
GLARINGLYABSENT ELEMENTS IN THE OFFENSES
CHARGED TOUPHOLD THE ‘SUFFICIENCY’ OF THE
INFORMATIONS INCRIMINAL CASE NOS. 28001 AND 28002,
THE RESPONDENTCOURT DEMONSTRATED ITS
PREJUDGMENT OVER THE SUBJECT CASES AND ACTED
WITH GRAVE ABUSE OF ITSDISCRETION.
D. THE RESPONDENT COURT ACTED WITH GRAVE ABUSE
OFDISCRETION IN REFUSING TO QUASH THE
INFORMATIONSDESPITE THEIR UTTER FAILURE TO
COMPLY WITH THEPRESCRIBED FORM, THUS
EFFECTIVELY DENYING THEACCUSED HIS
CONSTITUTIONAL AND STATUTORY RIGHTTO BE
INFORMED OF THE NATURE AND CAUSE OF
THEACCUSATION AGAINST HIM.11
Ruling
The petition for certiorari has no merit.
1.Preliminary Considerations
To properly resolve this case, reference is made to the ruling of the Court
in G.R. No. 175730 entitled Herminio Disini v. Sandiganbayan,12 which
involved the civil action for reconveyance, reversion, accounting,
restitution, and damages (Civil Case No. 0013 entitled Republic v.
HerminioT. Disini, et al.) filed by the Presidential Commission on Good
Government(PCGG) against Disini and others.13 The amended complaint
in Civil Case No. 0013 alleged that Disini had acted in unlawful concert
with his co-defendants in acquiring and accumulating ill-gotten wealth
through them is appropriation of public funds, plunder of the nation’s
wealth, extortion, embezzlement, and other acts of corruption,14 as
follows:
4. Defendant HERMINIO T. DISINI is a close associate of defendant
Ferdinand E. Marcos and the husband of the first cousin of Defendant
Imelda R. Marcos. By reason of this relationship xxx defendant Herminio
Disini obtained staggering commissions from the Westinghouse in
exchange for securing the nuclear power plant contract from the
Philippine government.
xxxx
13. Defendants Herminio T. Disini and Rodolfo Jacob, by themselves
and/or in unlawful concert, active collaboration and willing participation of
defendants Ferdinand E. Marcos and Imelda R. Marcos, and taking
undue advantage of their association and influence with the latter
defendant spouses in order to prevent disclosure and recovery of ill-
gotten assets, engaged in devices, schemes, and stratagems such as:
xxxx
(c) unlawfully utilizing the Herdis Group of Companies and Asia
Industries, Inc. as conduits through which defendants received, kept,
and/or invested improper payments such as unconscionably large
commissions from foreign corporations like the Westinghouse
Corporation; (d) secured special concessions, privileges and/or benefits
from defendants Ferdinand E. Marcos and Imelda R. Marcos, such as a
contract awarded to Westinghouse Corporation which built an inoperable
nuclear facility in the country for a scandalously exorbitant amount that
included defendant’s staggering commissions – defendant Rodolfo Jacob
executed for HGI the contract for the aforesaid nuclear plant; 15
Through its letter dated April 8, 1991,16 the PCGG transmitted the
records of Criminal Case No. 28001 and Criminal Case No. 28002 to
then Ombudsman Conrado M. Vasquez for appropriate action, to wit:
In line with the decision of the Supreme Court in the case of EduardoM.
Cojuangco, Jr. versus the PCGG (G.R. Nos. 92319–92320) dated
October 2, 1990, we are hereby transmitting to your Office for appropriate
action the records of the attached criminal case which we believe is
similar to the said Cojuangco case in certain aspects, such as: (i) some
parts or elements are also parts of the causes of action in the civil
complaints[-]filed with the Sandiganbayan; (ii) some properties or assets
of the respondents have been sequestered; (iii) some of the respondents
are also party defendants in the civil cases.
Although the authority of the PCGG has been upheld by the Supreme
Court, we are constrained to refer to you for proper action the herein-
attached case in view of the suspicion that the PCGG cannot conduct an
impartial investigation in cases similar to that of the Cojuangco case. x x
x
Ostensibly, the PCGG’s letter of transmittal was adverting to the ruling in
Cojuangco, Jr. v. Presidential Commission on Good Government
(Cojuangco, Jr.),17 viz:
x x x The PCGG and the Solicitor General finding a prima facie basis filed
a civil complaint against petitioner and intervenors alleging substantially
the same illegal or criminal acts subject of the subsequent criminal
13
Rule 110. CRIMINAL PROCEDURE – FULL TEXT 22 CASES
complaints the Solicitor General filed with the PCGG for preliminary
investigation. x x x.
Moreover, when the PCGG issued the sequestration and freeze orders
against petitioner’s properties, it was on the basis of a prima facie finding
that the same were ill-gotten and/or were acquired in relation to the illegal
disposition of coconut levy funds. Thus, the Court finds that the PCGG
cannot possibly conduct the preliminary investigation of said criminal
complaints with the "cold neutrality of an impartial judge," as it has
prejudged the matter. x x x18
xxxx
The Court finds that under the circumstances of the case, the PCGG
cannot inspire belief that it could be impartial in the conduct of the
preliminary investigation of the aforesaid complaints against petitioner
and intervenors. It cannot possibly preside in the said preliminary
investigation with an even hand.
The Court holds that a just and fair administration of justice can be
promoted if the PCGG would be prohibited from conducting the
preliminary investigation of the complaints subject of this petition and the
petition for intervention and that the records of the same should be
forwarded to the Ombudsman, who as an independent constitutional
officer has primary jurisdiction over cases of this nature, to conduct such
preliminary investigation and take appropriate action.19 (Bold emphasis
supplied)
It appears that the resolutions of the Office of the Ombudsman, following
its conduct of the preliminary investigation on the criminal complaints
thus transmitted by the PCGG, were reversed and set aside by the Court
in Presidential Commission on Good Government v. Desierto,20
with the Court requiring the Office of the Ombudsman to file the
informations that became the subject of Disini’s motion to quash in
Criminal Case No.28001 and Criminal Case No. 28002.
2.
Sandiganbayan has exclusive and
original jurisdiction over the offenses charged
Disini challenges the jurisdiction of the Sandiganbayan over the offenses
charged in Criminal Case No. 28001 and Criminal Case No. 28002.He
contends that: (1) the informations did not allege that the charges were
being filed pursuant to and in connection with Executive Order (E.O.)
Nos.1, 2, 14 and 14-A; (2) the offenses charged were not of the nature
contemplated by E.O. Nos. 1, 2, 14 and 14-A because the allegations in
the informations neither pertained to the recovery of ill-gotten wealth, nor
involved sequestration cases; (3) the cases were filed by the Office of the
Ombudsman instead of by the PCGG; and (4) being a private individual
not charged as a co-principal, accomplice or accessory of a public officer,
he should be prosecuted in the regular courts instead of in the
Sandiganbayan.
The Office of the Solicitor General (OSG) counters that the
Sandiganbayan has jurisdiction over the offenses charged because
Criminal Case No. 28001 and Criminal Case No. 28002 were filed within
the purview of Section 4 (c) of R.A. No. 8249; and that both cases
stemmed from the criminal complaints initially filed by the PCGG
pursuant to its mandate under E.O. Nos. 1, 2, 14 and 14-A to investigate
and file the appropriate civil or criminal cases to recover ill-gotten wealth
not only of the Marcoses and their immediately family but also of their
relatives, subordinates and close associates.
We hold that the Sandiganbayan has jurisdiction over Criminal Case No.
28001 and Criminal Case No. 28002.
Presidential Decree (P.D.) No. 1606 was the law that established the
Sandiganbayan and defined its jurisdiction. The law was amended by
R.A. No. 7975 and R.A. No. 8249. Under Section 4 of R.A. No. 8249, the
Sandiganbayan was vested with original and exclusive jurisdiction over
all cases involving:
a. Violations of Republic Act No. 3019, as amended, otherwise
known as the Anti-Graft and Corrupt Practices Act, Republic Act
No.1379, and Chapter II, Section 2, Title VII, Book II of the
Revised Penal Code, where one or more of the accused are
officials occupying the following positions in the government
whether in a permanent, acting or interim capacity, at the time of
the commission of the offense:
xxxx
b. Other offenses or felonies whether simple or complexed with
other crimes committed by the public officials and employees
mentioned in subsection (a) of this section in relation to their
office.
c. Civil and criminal cases filed pursuant to and in connection
with Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986.
(Bold emphasis supplied)
In cases where none of the accused are occupying positions
corresponding to salary grade ‘27’ or higher, as prescribed in the said
Republic Act No. 6758, or military or PNP officers mentioned above,
exclusive original jurisdiction thereof shall be vested in the proper
regional trial court, metropolitan trial court, municipal trial court and
municipal circuit trial court, as the case may be, pursuant to their
respective jurisdiction as provided in Batas Pambansa Blg. 129, as
amended.
xxxx
In case private individuals are charged as co-principals, accomplices or
accessories with the public officers or employees, including those
employed in government-owned or controlled corporations, they shall be
tried jointly with said public officers and employees in the proper courts
which shall exercise exclusive jurisdiction over them. x x x x
It is underscored that it was the PCGG that had initially filed the criminal
complaints in the Sandiganbayan, with the Office of the Ombudsman
taking over the investigation of Disini only after the Court issued in
Cojuangco, Jr. the directive to the PCGG to refer the criminal cases to
the Office of the Ombudsman on the ground that the PCGG would not be
an impartial office following its finding of a prima facie case being
established against Disini to sustain the institution of Civil Case No.
0013.
Also underscored is that the complaint in Civil Case No. 0013 and the
informations in Criminal Case No. 28001 and Criminal Case No.
28002involved the same transaction, specifically the contracts awarded
through the intervention of Disini and President Marcos in favor of Burns
& Roe to do the engineering and architectural design, and Westinghouse
to do the construction of the Philippine Nuclear Power Plant Project
(PNPPP). Given their sameness in subject matter, to still expressly aver
in Criminal Case No.28001 and Criminal Case No. 28002 that the
charges involved the recovery of ill-gotten wealth was no longer
necessary.21 With Criminal Case No.28001 and Criminal Case No. 28002
being intertwined with Civil Case No.0013, the PCGG had the authority to
institute the criminal prosecutions against Disini pursuant to E.O. Nos. 1,
2, 14 and 14-A.
That Disini was a private individual did not remove the offenses charged
from the jurisdiction of the Sandiganbayan. Section 2 of E.O. No.1, which
tasked the PCGG with assisting the President in "the recovery of all ill-
gotten wealth accumulated by former President Ferdinand E. Marcos, his
immediate family, relatives, subordinates and close associates, whether
located in the Philippines or abroad, including the takeover or
sequestration of all business enterprises and entities owned or controlled
by them, during his administration, directly or through nominees, by
taking undue advantage of their public office and/or using their powers,
authority, influence, connections or relationship," expressly granted the
authority of the PCGG to recover ill-gotten wealth covered President
Marcos’ immediate family, relatives, subordinates and close associates,
without distinction as to their private or public status.
Contrary to Disini’s argument, too, the qualifying clause found in Section
4 of R.A. No. 824922
14
Rule 110. CRIMINAL PROCEDURE – FULL TEXT 22 CASES
applied only to the cases listed in Subsection 4aand Subsection 4b of
R.A. No. 8249, the full text of which follows:
xxxx
a. Violations of Republic Act No. 3019, as amended, otherwise known as
the Anti-Graft and Corrupt Practices Act, Republic Act No.1379, and
Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where
one or more of the accused are officials occupying the following positions
in the government whether in a permanent, acting or interim capacity, at
the time of the commission of the offense:
(1) Officials of the executive branch occupying the positions of
regional director and higher, otherwise classified as Grade ‘27’
and higher, of the Compensation and Position Classification Act
of 1989(Republic Act No. 6758), specifically including:
(a) Provincial governors, vice-governors, members of
the sangguniang panlalawigan and provincial
treasurers, assessors, engineers and other provincial
department heads;
(b) City mayors, vice-mayors, members of the
sangguniang panlungsod, city treasurers, assessors
engineers and other city department heads;
(c) Officials of the diplomatic service occupying the
position of consul and higher;
(d) Philippine army and air force colonels, naval
captains, and all officers of higher rank;
(e) Officers of the Philippine National Police while
occupying the position of provincial director and those
holding the rank of senior superintendent or higher;
(f) City and provincial prosecutors and their assistants,
and officials and prosecutors in the Office of the
Ombudsman and special prosecutor;
(g) Presidents, directors or trustees, or managers of
government-owned or -controlled corporations, state
universities or educational institutions or foundations;
(2) Members of Congress and officials thereof classified as
Grade‘27’ and up under the Compensation and Position
Classification Act of 1989;
(3) Members of the judiciary without prejudice to the provisions
of the Constitution;
(4) Chairmen and members of Constitutional Commissions,
without prejudice to the provisions of the Constitution; and
(5) All other national and local officials classified as Grade
‘27’and higher under the Compensation and Position
Classification Act of 1989. b. Other offenses or felonies whether
simple or complexed with other crimes committed by the public
officials and employees mentioned in subsection a of this
section in relation to their office. (bold emphasis supplied)
xxxx
Unquestionably, public officials occupying positions classified as Grade
27 or higher are mentioned only in Subsection 4a and Subsection
4b,signifying the plain legislative intent of limiting the qualifying clause to
such public officials. To include within the ambit of the qualifying clause
the persons covered by Subsection 4c would contravene the exclusive
mandate of the PCGG to bring the civil and criminal cases pursuant to
and in connection with E.O. Nos. 1, 2, 14 and 14-A. In view of this, the
Sandiganbayan properly took cognizance of Criminal Case No. 28001
and Criminal Case No. 28002 despite Disini’s being a private individual,
and despite the lack of any allegation of his being the co-principal,
accomplice or accessory of a public official in the commission of the
offenses charged.
3.
The offenses charged in the
informations have not yet prescribed
In resolving the issue of prescription, the following must be considered,
namely: (1) the period of prescription for the offense charged;(2) the time
when the period of prescription starts to run; and (3) the time when the
prescriptive period is interrupted.23
The information in Criminal Case No. 28001 alleged that Disini had
offered, promised and given gifts and presents to Ferdinand E. Marcos;
that said gifts were in consideration of Disini obtaining for Burns & Roe
and Westinghouse Electrical Corporation (Westinghouse) the contracts,
respectively, to do the engineering and architectural design of and to
construct the PNPPP; and that President Marcos did award or cause to
be awarded the respective contracts to Burns & Roe and Westinghouse,
which acts constituted the crime of corruption of public officials. 24
The crime of corruption of public officials charged in Criminal Case No.
28001 is punished by Article 212 of the Revised Penal Code with the"
same penalties imposed upon the officer corrupted."25 Under the second
paragraph of Article 210 of the Revised Penal Code (direct bribery), 26 if
the gift was accepted by the officer in consideration of the execution of
an act that does not constitute a crime, and the officer executes the act,
he shall suffer the penalty of prision mayor in its medium and minimum
periods and a fine of not less than three times the value of the gift.
Conformably with Article 90 of the Revised Penal Code,27 the period of
prescription for this specie of corruption of public officials charged against
Disini is 15 years.
As for Criminal Case No. 28002, Disini was charged with a violation of
Section 4(a) of R.A. No. 3019. By express provision of Section 11 of R.A.
No. 3019, as amended by Batas Pambansa Blg. 195, the offenses
committed under R.A. No. 3019 shall prescribe in 15 years. Prior to the
amendment, the prescriptive period was only 10 years. It became settled
in People v. Pacificador,28 however, that the longer prescriptive period of
15years would not apply to crimes committed prior to the effectivity of
Batas Pambansa Blg. 195, which was approved on March 16, 1982,
because the longer period could not be given retroactive effect for not
being favorable to the accused. With the information alleging the period
from 1974 to February1986 as the time of the commission of the crime
charged, the applicable prescriptive period is 10 years in order to accord
with People v. Pacificador .
For crimes punishable by the Revised Penal Code, Article 91 thereof
provides that prescription starts to run from the day on which the crime is
discovered by the offended party, the authorities, or their agents. As to
offenses punishable by R.A. No. 3019, Section 2 of R.A. No.
332629 states:
Section 2. Prescription shall begin to run from the day of the commission
of the violation of the law, and if the same be not known at the time, from
the discovery thereof and the institution of judicial proceedings for its
investigation and punishment.
The prescription shall be interrupted when proceedings are instituted
against the guilty person, and shall begin to run again if the proceedings
are dismissed for reasons not constituting double jeopardy.
The ruling on the issue of prescription in Presidential Ad Hoc Fact-
Finding Committee on Behest Loans v. Desierto30 is also enlightening,
viz:
Generally, the prescriptive period shall commence to run on the day the
crime is committed. That an aggrieved person "entitled to an action has
no knowledge of his right to sue or of the facts out of which his right
arises," does not prevent the running of the prescriptive period. An
exception to this rule is the "blameless ignorance" doctrine, incorporated
in Section 2 of Act No. 3326. Under this doctrine, "the statute of
limitations runs only upon discovery of the fact of the invasion of a right
which will support a cause of action. In other words, the courts would
decline to apply the statute of limitations where the plaintiff does not
15
Rule 110. CRIMINAL PROCEDURE – FULL TEXT 22 CASES
know or has no reasonable means of knowing the existence of a cause
of action." It was in this accord that the Court confronted the question on
the running of the prescriptive period in People v. Duque which became
the cornerstone of our 1999 Decision in Presidential Ad Hoc Fact-Finding
Committee on Behest Loans v. Desierto (G.R. No. 130149), and the
subsequent cases which Ombudsman Desierto dismissed, emphatically,
on the ground of prescription too. Thus, we held in a catena of cases,
that if the violation of the special law was not known at the time of its
commission, the prescription begins to run only from the discovery
thereof, i.e., discovery of the unlawful nature of the constitutive act or
acts.
Corollary, it is safe to conclude that the prescriptive period for the crime
which is the subject herein, commenced from the date of its discovery in
1992 after the Committee made an exhaustive investigation. When the
complaint was filed in 1997, only five years have elapsed, and, hence,
prescription has not yet set in. The rationale for this was succinctly
discussed in the 1999 Presidential Ad Hoc Fact-Finding Committee on
Behest Loans, that "it was well-high impossible for the State, the
aggrieved party, to have known these crimes committed prior to the
1986EDSA Revolution, because of the alleged connivance and
conspiracy among involved public officials and the beneficiaries of the
loans." In yet another pronouncement, in the 2001 Presidential Ad Hoc
Fact-Finding Committee on Behest Loans v. Desierto (G.R. No. 130817),
the Court held that during the Marcos regime, no person would have
dared to question the legality of these transactions. (Citations omitted) 31
Accordingly, we are not persuaded to hold here that the prescriptive
period began to run from 1974, the time when the contracts for the PNPP
Project were awarded to Burns & Roe and Westinghouse. Although the
criminal cases were the offshoot of the sequestration case to recover ill-
gotten wealth instead of behest loans like in Presidential Ad Hoc Fact-
Finding Committee on Behest Loans v. Desierto, the connivance and
conspiracy among the public officials involved and the beneficiaries of
the favors illegally extended rendered it similarly well-nigh impossible for
the State, as the aggrieved party, to have known of the commission of
the crimes charged prior to the EDSA Revolution in 1986.
Notwithstanding the highly publicized and widely-known nature of the
PNPPP, the unlawful acts or transactions in relation to it were discovered
only through the PCGG’s exhaustive investigation, resulting in the
establishment of a prima facie case sufficient for the PCGG to institute
Civil Case No. 0013 against Disini. Before the discovery, the PNPPP
contracts, which partook of a public character, enjoyed the presumption
of their execution having been regularly done in the course of official
functions.32
Considering further that during the Marcos regime, no person would have
dared to assail the legality of the transactions, it would be unreasonable
to expect that the discovery of the unlawful transactions was possible
prior to 1986.
We note, too, that the criminal complaints were filed and their records
transmitted by the PCGG to the Office of the Ombudsman on April 8,
1991for the conduct the preliminary investigation.33 In accordance with
Article 91 of the
Revised Penal Code34 and the ruling in Panaguiton, Jr. v. Department of
Justice,35 the filing of the criminal complaints in the Office of the
Ombudsman effectively interrupted the running of the period of
prescription. According to Panaguiton:36
In Ingco v. Sandiganbayan and Sanrio Company Limited v. Lim, which
involved violations of the Anti-Graft and Corrupt Practices Act(R.A. No.
3019) and the Intellectual Property Code (R.A. No. 8293),which are both
special laws, the Court ruled that the prescriptive period is interrupted by
the institution of proceedings for preliminary investigation against the
accused. In the more recent case of Securities and Exchange
Commission v. Interport Resources Corporation, the Court ruled that the
nature and purpose of the investigation conducted by the Securities and
Exchange Commission on violations of the Revised Securities Act,
another special law, is equivalent to the preliminary investigation
conducted by the DOJ in criminal cases, and thus effectively interrupts
the prescriptive period.
The following disquisition in the Interport Resources case is instructive,
thus:
While it may be observed that the term "judicial proceedings" in Sec. 2 of
Act No. 3326 appears before" investigation and punishment" in the old
law, with the subsequent change in set-up whereby the investigation of
the charge for purposes of prosecution has become the exclusive
function of the executive branch, the term "proceedings" should now be
understood either executive or judicial in character: executive when it
involves the investigation phase and judicial when it refers to the trial and
judgment stage. With this clarification, any kind of investigative
proceeding instituted against the guilty person which may ultimately lead
to his prosecution should be sufficient to toll prescription.
Indeed, to rule otherwise would deprive the injured party the right to
obtain vindication on account of delays that are not under his control.
The prevailing rule is, therefore, that irrespective of whether the offense
charged is punishable by the Revised Penal Code or by a special law, it
is the filing of the complaint or information in the office of the public
prosecutor for purposes of the preliminary investigation that interrupts the
period of prescription. Consequently, prescription did not yet set in
because only five years elapsed from 1986, the time of the discovery of
the offenses charged, up to April 1991, the time of the filing of the
criminal complaints in the Office of the Ombudsman.
The informations were sufficient in form and substance
It is axiomatic that a complaint or information must state every single fact
necessary to constitute the offense charged; otherwise, a motion to
dismiss or to quash on the ground that the complaint or information
charges no offense may be properly sustained. The fundamental test in
determining whether a motion to quash may be sustained based on this
ground is whether the facts alleged, if hypothetically admitted, will
establish the essential elements of the offense as defined in the
law.37 Extrinsic matters or evidence aliunde are not considered.38
The test does not require absolute certainty as to the presence of the
elements of the offense; otherwise, there would no longer be any need
for the Prosecution to proceed to trial.
The informations in Criminal Case No. 28001 (corruption of public
officials) and Criminal Case No. 28002 (violation of Section 4(a) of RA
No.3019) have sufficiently complied with the requirements of Section 6,
Rule110 of the Rules of Court, viz:
Section 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 given by the statute; the acts or omissions
complained of as constituting the offense; the name of the offended
party; the approximate date of the commission of the offense; and the
place where the offense was committed.
When the offense is committed by more than one person, all of them
shall be included in the complaint or information.
The information in Criminal Case No. 28001 alleging corruption of public
officers specifically put forth that Disini, in the period from 1974 to
February 1986 in Manila, Philippines, conspiring and confederating with
then President Marcos, willfully, unlawfully and feloniously offered,
promised and gave gifts and presents to President Marcos, who, by
taking undue advantage of his position as President, committed the
offense in relation to his office, and in consideration of the gifts and
presents offered, promised and given by Disini, President Marcos caused
to be awarded to Burns & Roe and Westinghouse the respective
contracts to do the engineering and architectural design of and to
construct the PNPPP. The felonious act consisted of causing the
contracts for the PNPPP to be awarded to Burns & Roe and
Westinghouse by reason of the gifts and promises offered by Disini to
President Marcos.
The elements of corruption of public officials under Article 212 of the
Revised Penal Code are:
1. That the offender makes offers or promises, or gives gifts or
presents to a public officer; and
16
Rule 110. CRIMINAL PROCEDURE – FULL TEXT 22 CASES
2. That the offers or promises are made or the gifts or presents
are given to a public officer under circumstances that will make
the public officer liable for direct bribery or indirect bribery.
The allegations in the information for corruption of public officials, if
hypothetically admitted, would establish the essential elements of the
crime. The information stated that: (1) Disini made an offer and promise,
and gave gifts to President Marcos, a public officer; and (2) in
consideration of the offers, promises and gifts, President Marcos, in
causing the award of the contracts to Burns & Roe and Westinghouse by
taking advantage of his position and in committing said act in relation to
his office, was placed under circumstances that would make him liable for
direct bribery.39
connection with the PNPPP; (3) President Marcos, the public officer with
whom Disini had family or close personal relations, intervened to secure
and obtain for Burns & Roe the engineering and architectural contract,
and for Westinghouse the construction of the PNPPP.
WHEREFORE, the Court DISMISSES the petition for certiorari;
AFFIRMS the resolutions promulgated on January 17, 2005 and August
10, 2005 by the Sandiganbayan (First Division) in Criminal Case No.
28001 and Criminal Case No. 28002; and DIRECTS petitioner to pay the
costs of suit.
SO ORDERED.

The second element of corruption of public officers simply required the

public officer to be placed under circumstances, not absolute certainty,
that would make him liable for direct or indirect bribery. Thus, even
without alleging that President Marcos received or accepted Disini’s
offers, promises and gifts – an essential element in direct bribery – the
allegation that President Marcos caused the award of the contracts to
Burns & Roe and Westinghouse sufficed to place him under
circumstances of being liable for direct bribery.

The sufficiency of the allegations in the information charging the violation

of Section 4(a) of R.A. No. 3019 is similarly upheld. The elements of the
offense under Section 4(a) of R.A. No. 3019 are:

1. That the offender has family or close personal relation with a

public official;

2. That he capitalizes or exploits or takes advantage of such

family or close personal relation by directly or indirectly
requesting or receiving any present, gift, material or pecuniary
advantage from any person having some business, transaction,
application, request or contract with the government;

3. That the public official with whom the offender has family or
close personal relation has to intervene in the business
transaction, application, request, or contract with the
government.

The allegations in the information charging the violation of Section 4(a) of

R.A. No. 3019, if hypothetically admitted, would establish the elements of
the offense, considering that: (1) Disini, being the husband of Paciencia
Escolin-Disini, the first cousin of First Lady Imelda Romualdez-Marcos,
and at the same time the family physician of the Marcoses, had close
personal relations and intimacy with and free access to President
Marcos, a public official; (2) Disini, taking advantage of such family and
close personal relations, requested and received $1,000,000.00 from
Burns & Roe and $17,000,000.00 from Westinghouse, the entities then
having business, transaction, and application with the Government in
17
Rule 110. CRIMINAL PROCEDURE – FULL TEXT 22 CASES
6. G.R. No. L-53373
MARIO FL. CRESPO, petitioner,
vs.
HON. LEODEGARIO L. MOGUL, Presiding Judge, CIRCUIT
CRIMINAL COURT OF LUCENA CITY, 9th Judicial Dist., THE
PEOPLE OF THE PHILIPPINES, represented by the SOLICITOR
GENERAL, RICARDO BAUTISTA, ET AL., respondents.
GANCAYCO, J.:
Criminal Procedure; A court that grant a motion of the fiscal to dismiss a
case commits no error and the fiscal’s view thereon, in a clash of views
with the judge or complainant, should normally prevail.—Thus, a fiscal
who asks for the dismissal of the case for insufficiency of evidence has
authority to do so, and Courts that grant the same commit no error. The
fiscal may re-investigate a case and subsequently move for the dismissal
should the re-investigation show either that the defendant is innocent or
that his guilt may not be established beyond reasonable doubt. In a clash
of views between the judge who did not investigate and the fiscal who
did, or between the fiscal and the offended party or the defendant, those
of the fiscal’s should normally prevail. On the other hand, neither an
injunction, preliminary or final nor a writ of prohibition may be issued by
the Courts to restrain a criminal prosecution except in the extreme case
where it is necessary for the Courts to do so for the orderly administration
of justice or to prevent the use of the strong arm of the law in an
oppressive and vindictive manner.
Same; Once an information is filed in court, the court’s prior permission
must be secured if fiscal wants to reinvestigate the case.—The
preliminary investigation conducted by the fiscal for the purpose of
determining whether a prima facie case exists warranting the prosecution
of the accused is terminated upon the filing of the information in the
proper court. In turn, as above stated, the filing of said information sets in
motion the criminal action against the accused in Court. Should the fiscal
find it proper to conduct a reinvestigation of the case, at such stage, the
permission of the Court must be secured. After such reinvestigation the
finding and recommendations of the fiscal should be submitted to the
Court for appropriate action. While it is true that the fiscal has the quasi
judicial discretion to determine whether or not a criminal case should be
filed in court or not, once the case had already been brought to Court
whatever disposition the fiscal may feel should be proper in the case
thereafter should be addressed for the consideration of the Court, The
only qualification is that the action of the Court must not impair the
substantial rights of the accused, or the right of the People to due
process of law.
Same; Same.—Whether the accused had been arraigned or not and
whether it was due to a reinvestigation by the fiscal or a review by the
Secretary of Justice whereby a motion to dismiss was submitted to the
Court, the Court in the exercise of its discretion may grant the motion or
deny it and require that the trial on the merits proceed for the proper
determination of the case,
Same; Where the court refuses to grant the fiscal’s motion to dismiss,
including a case where the Secretary of Justice ordered the fiscal to
move to dismiss the case, the fiscal should continue to appear in the
case although he may turn over the presentation of evidence to the
private prosecutor.—However, one may ask, if the trial court refuses to
grant the motion to dismiss filed by the fiscal upon the directive of the
Secretary of Justice will there not be a vacuum in the prosecution? A
state prosecutor to handle the case cannot possibly be designated by the
Secretary of Justice who does not believe that there is a basis for
prosecution nor can the fiscal be expected to handle the prosecution of
the case thereby defying the superior order of the Secretary of Justice.
The answer is simple. Therole of the fiscal or prosecutor as We all know
is to see that justice is done and not necessarily to secure the conviction
of the person accused before the Courts. Thus, in spite of his opinion to
the contrary, it is the duty of the fiscal to proceed with the presentation of
evidence of the prosecution to the Court to enable the Court to arrive at
its own independent judgment as to whether the accused should be
convicted or acquitted. The fiscal should not shirk from the responsibility
of appearing for the People of the Philippines even under such
circumstances much less should he abandon the prosecution of the case
leaving it to the hands of a private prosecutor for then the entire
proceedings will be null and void. The least that the fiscal should do is to
continue to appear for the prosecution although he may turn over the
presentation of the evidence to the private prosecutor but still under his
direction and control. Crespo vs. Mogul, 151 SCRA 462, No. L-53373
June 30, 1987
---facts:
The issue raised in this ease is whether the trial court acting on a motion
to dismiss a criminal case filed by the Provincial Fiscal upon instructions
of the Secretary of Justice to whom the case was elevated for review,
may refuse to grant the motion and insist on the arraignment and trial on
the merits.
On April 18, 1977 Assistant Fiscal Proceso K. de Gala with the approval
of the Provincial Fiscal filed an information for estafa against Mario Fl.
Crespo in the Circuit Criminal Court of Lucena City which was docketed
as Criminal Case No. CCCIX-52 (Quezon) '77.1 When the case was set
for arraigment the accused filed a motion to defer arraignment on the
ground that there was a pending petition for review filed with the
Secretary of Justice of the resolution of the Office of the Provincial Fiscal
for the filing of the information. In an order of August 1, 1977, the
presiding judge, His Honor, Leodegario L. Mogul, denied the motion. 2 A
motion for reconsideration of the order was denied in the order of August
5, 1977 but the arraignment was deferred to August 18, 1977 to afford
time for petitioner to elevate the matter to the appellate court. 3
A petition for certiorari and prohibition with prayer for a preliminary writ of
injunction was filed by the accused in the Court of Appeals that was
docketed as CA-G.R. SP No. 06978. 4 In an order of August 17, 1977 the
Court of Appeals restrained Judge Mogul from proceeding with the
arraignment of the accused until further orders of the Court. 5 In a
comment that was filed by the Solicitor General he recommended that
the petition be given due course. 6 On May 15, 1978 a decision was
rendered by the Court of Appeals granting the writ and perpetually
restraining the judge from enforcing his threat to compel the arraignment
of the accused in the case until the Department of Justice shall have
finally resolved the petition for review. 7
On March 22, 1978 then Undersecretary of Justice, Hon.Catalino
Macaraig, Jr., resolving the petition for review reversed the resolution of
the Office of the Provincial Fiscal and directed the fiscal to move for
immediate dismissal of the information filed against the accused. 8 A
motion to dismiss for insufficiency of evidence was filed by the Provincial
Fiscal dated April 10, 1978 with the trial court, 9 attaching thereto a copy
of the letter of Undersecretary Macaraig, Jr. In an order of August 2,
1978 the private prosecutor was given time to file an opposition
thereto.10 On November 24, 1978 the Judge denied the motion and set
the arraigniment stating:
ORDER
For resolution is a motion to dismiss this rase filed by the procuting
fiscal premised on insufficiency of evidence, as suggested by the
Undersecretary of Justice, evident from Annex "A" of the motion
wherein, among other things, the Fiscal is urged to move for dismissal
for the reason that the check involved having been issued for the
payment of a pre-existing obligation the Hability of the drawer can
only be civil and not criminal.
The motion's thrust being to induce this Court to resolve the
innocence of the accused on evidence not before it but on that
adduced before the Undersecretary of Justice, a matter that not only
disregards the requirements of due process but also erodes the
Court's independence and integrity, the motion is considered as
without merit and therefore hereby DENIED.
WHEREFORE, let the arraignment be, as it is hereby set for
December 18, 1978 at 9:00 o'clock in the moming.
SO ORDERED. 11
The accused then filed a petition for certiorari, prohibition and mandamus
with petition for the issuance of preliminary writ of prohibition and/or
temporary restraining order in the Court of Appeals that was docketed as
CA-G.R. No. SP-08777. 12 On January 23, 1979 a restraining order was
issued by the Court of Appeals against the threatened act of arraignment
of the accused until further orders from the Court. 13 In a decision of
18
Rule 110. CRIMINAL PROCEDURE – FULL TEXT 22 CASES
October 25, 1979 the Court of Appeals dismissed the petition and lifted
the restraining order of January 23, 1979. 14 A motion for reconsideration
of said decision filed by the accused was denied in a resolution of
February 19, 1980. 15
Hence this petition for review of said decision was filed by accused
whereby petitioner prays that said decision be reversed and set aside,
respondent judge be perpetually enjoined from enforcing his threat to
proceed with the arraignment and trial of petitioner in said criminal case,
declaring the information filed not valid and of no legal force and effect,
ordering respondent Judge to dismiss the said case, and declaring the
obligation of petitioner as purely civil. 16
In a resolution of May 19, 1980, the Second Division of this Court without
giving due course to the petition required the respondents to comment to
the petition, not to file a motiod to dismiss, within ten (10) days from
notice. In the comment filed by the Solicitor General he recommends that
the petition be given due course, it being meritorious. Private respondent
through counsel filed his reply to the comment and a separate conunent
to the petition asking that the petition be dismissed. In the resolution of
February 5, 1981, the Second Division of this Court resolved to transfer
this case to the Court En Banc. In the resolution of February 26, 1981,
the Court En Banc resolved to give due course to the petition.
Petitioner and private respondent filed their respective briefs while the
Solicitor General filed a Manifestation in lieu of brief reiterating that the
decision of the respondent Court of Appeals be reversed and that
respondent Judge be ordered to dismiss the information.
It is a cardinal principle that an criminal actions either commenced by
complaint or by information shall be prosecuted under the direction and
control of the fiscal. 17 The institution of a criminal action depends upon
the sound discretion of the fiscal. He may or may not file the complaint or
information, follow or not fonow that presented by the offended party,
according to whether the evidence in his opinion, is sufficient or not to
establish the guilt of the accused beyond reasonable doubt. 18 The
reason for placing the criminal prosecution under the direction and
control of the fiscal is to prevent malicious or unfounded prosecution by
private persons. 19 It cannot be controlled by the
complainant. 20 Prosecuting officers under the power vested in them by
law, not only have the authority but also the duty of prosecuting persons
who, according to the evidence received from the complainant, are
shown to be guilty of a crime committed within the jurisdiction of their
office. 21 They have equally the legal duty not to prosecute when after an
investigation they become convinced that the evidence adduced is not
sufficient to establish a prima faciecase. 22
It is through the conduct of a preliminary investigation 23 that the fiscal
determines the existence of a puma facie case that would warrant the
prosecution of a case. The Courts cannot interfere with the fiscal's
discretion and control of the criminal prosecution. It is not prudent or
even permissible for a Court to compel the fiscal to prosecute a
proceeding originally initiated by him on an information, if he finds that
the evidence relied upon by him is insufficient for conviction. 24 Neither
has the Court any power to order the fiscal to prosecute or file an
information within a certain period of time, since this would interfere with
the fiscal's discretion and control of criminal prosecutions. 25 Thus, a
fiscal who asks for the dismissal of the case for insufficiency of evidence
has authority to do so, and Courts that grant the same commit no
error. 26 The fiscal may re-investigate a case and subsequently move for
the dismissal should the re-investigation show either that the defendant is
innocent or that his guilt may not be established beyond reasonable
doubt. 27 In a clash of views between the judge who did not investigate
and the fiscal who did, or between the fiscal and the offended party or the
defendant, those of the Fiscal's should normally prevail. 28 On the other
hand, neither an injunction, preliminary or final nor a writ of prohibition
may be issued by the courts to restrain a criminal prosecution 29 except in
the extreme case where it is necessary for the Courts to do so for the
orderly administration of justice or to prevent the use of the strong arm of
the law in an op pressive and vindictive manner. 30
However, the action of the fiscal or prosecutor is not without any
limitation or control. The same is subject to the approval of the provincial
or city fiscal or the chief state prosecutor as the case maybe and it
maybe elevated for review to the Secretary of Justice who has the power
to affirm, modify or reverse the action or opinion of the fiscal.
Consequently the Secretary of Justice may direct that a motion to dismiss
the rase be filed in Court or otherwise, that an information be filed in
Court. 31
The filing of a complaint or information in Court initiates a criminal action.
The Court thereby acquires jurisdiction over the case, which is the
authority to hear and determine the case. 32 When after the filing of the
complaint or information a warrant for the arrest of the accused is issued
by the trial court and the accused either voluntarily submited himself to
the Court or was duly arrested, the Court thereby acquired jurisdiction
over the person of the accused. 33
The preliminary investigation conducted by the fiscal for the purpose of
determining whether a prima facie case exists warranting the prosecution
of the accused is terminated upon the filing of the information in the
proper court. In turn, as above stated, the filing of said information sets in
motion the criminal action against the accused in Court. Should the fiscal
find it proper to conduct a reinvestigation of the case, at such stage, the
permission of the Court must be secured. After such reinvestigation the
finding and recommendations of the fiscal should be submitted to the
Court for appropriate action. 34 While it is true that the fiscal has the quasi
judicial discretion to determine whether or not a criminal case should be
filed in court or not, once the case had already been brought to Court
whatever disposition the fiscal may feel should be proper in the rase
thereafter should be addressed for the consideration of the Court, 35 The
only qualification is that the action of the Court must not impair the
substantial rights of the accused. 36 or the right of the People to due
process of law. 36a
Whether the accused had been arraigned or not and whether it was due
to a reinvestigation by the fiscal or a review by the Secretary of Justice
whereby a motion to dismiss was submitted to the Court, the Court in the
exercise of its discretion may grant the motion or deny it and require that
the trial on the merits proceed for the proper determination of the case.
However, one may ask, if the trial court refuses to grant the motion to
dismiss filed by the fiscal upon the directive of the Secretary of Justice
will there not be a vacuum in the prosecution? A state prosecutor to
handle the case cannot possibly be designated by the Secretary of
Justice who does not believe that there is a basis for prosecution nor can
the fiscal be expected to handle the prosecution of the case thereby
defying the superior order of the Secretary of Justice.
The answer is simple.1âwphi1 The role of the fiscal or prosecutor as We
all know is to see that justice is done and not necessarily to secure the
conviction of the person accused before the Courts. Thus, in spite of his
opinion to the contrary, it is the duty of the fiscal to proceed with the
presentation of evidence of the prosecution to the Court to enable the
Court to arrive at its own independent judgment as to whether the
accused should be convicted or acquitted. The fiscal should not shirk
from the responsibility of appearing for the People of the Philippines even
under such circumstances much less should he abandon the prosecution
of the case leaving it to the hands of a private prosecutor for then the
entire proceedings will be null and void. 37 The least that the fiscal should
do is to continue to appear for the prosecution although he may turn over
the presentation of the evidence to the private prosecutor but still under
his direction and control. 38
The rule therefore in this jurisdiction is that once a complaint or
information is filed in Court any disposition of the case as 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.
In order therefor to avoid such a situation whereby the opinion of the
Secretary of Justice who reviewed the action of the fiscal may be
disregarded by the trial court, the Secretary of Justice should, 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
19
Rule 110. CRIMINAL PROCEDURE – FULL TEXT 22 CASES
been filed in Court. The matter should be left entirely for the
determination of the Court.
WHEREFORE, the petition is DISMISSED for lack of merit without
pronouncement as to costs.
SO ORDERED.
7. G.R. No. L-43602 January 31, 1989
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ANTONIO PAILANO, accused-appellant.
The Solicitor General for plaintiff-appellee.
Raul T. Montesino for accused-appellant.
Same; Same; Same; Criminal Procedure; Complaint;
Accusedappellant cannot be convicted on a finding that accused
had raped complainant while she was unconscious or deprived of
reason, as the complaint alleged the commission of the crime by
means of force and intimidation.—The criminal complaint in this
case alleged the commission of the crime through the first method
although the prosecution sought to establish at the trial that the
complainant was a mental retardate. Its purpose in doing so is not
clear. But whatever it was, it has not succeeded. If the prosecution
was seeking to convict the accused-appellant on the ground that he
violated Anita while she was deprived of reason or unconscious,
such conviction could not have been possible under the criminal
complaint as worded. This described the offense as having been
committed by “Antonio Pailano, being then provided with a scythe,
by means of violence and intimidation, (who) did, then and there,
wilfully, unlawfully and feloniously have carnal knowledge of the
complainant, Anita Ibañez, 15 years of age, against her will.” No
mention was made of the second circumstance.
Same; Same; Same; Same; Same; Same; If the procedure is
allowed, it would violate the right of accused to be informed of the
nature and cause of the accusation against him.—Conviction of the
accused-appellant on the finding that he had raped Anita while she
was unconscious or otherwise deprived of reason—and not through
force and intimidation, which was the method alleged—would have
violated his right to be informed of the nature and cause of the
accusation against him. This right is safeguarded by the
Constitution to every accused so he can prepare an adequate
defense against the charge against him. Convicting him of a ground
not alleged while he is concentrating his defense against the
ground alleged would plainly be unfair and underhanded. This right
was, of course, available to the herein accused-appellant.
Same; Same; Same; Absence of proof that during the encounter in
the bushes, the complainant’s mental condition was so weakened
that she could not resist the appellant’s advances.—In the first
place, the doctor who examined Anita reported that he saw no
evidence of insanity in her family history nor was there any
indication of such condition in the complainant herself. He did
observe that she had the mentality of a thirteen-year old, which was
not that serious an impediment as her age at the time was only
fifteen. Secondly, and more importantly, the prosecution has not
proved that during that encounter in the bushes, Anita’s mental
condition was so weakened that she could not resist Pailano’s
supposed advances.
Same; Same; Same; Constitutional Law; Statutory presumption of
sanity and constitutional presumption of innocence, not
overcome.—The statutory presumption of sanity and the
constitutional presumption of innocence have not been overcome.
Same; Same; Same; Delay in reporting the alleged rape to the
authorities, fatal to the rape charge.—There is evidence that
Filomeno reported the incident in the bushes on the same day to
Anita’s mother, but she took no action whatsoever, for reasons not
disclosed. It was only two-and-a-half months later that she decided
to complain to the authorities, but then it was already suspiciously
late. The only possible explanation for her delay is that the liaison
between her daughter and Pailano had already become a scandal by
that time and she must have thought she could redeem Anita’s
honor by initiating the criminal complaint. The delay, however,
blunts the charge of rape. People vs. Pailano, 169 SCRA 649, G.R.
No. 43602 January 31, 1989
CRUZ, J.:
At the time the rape was allegedly committed by the accused-appellant,
he was already sixty-nine years old. 1 The prosecution will have to
contend not only with the presumption of innocence but also of
impotence.
The crime was allegedly perpetrated in October of 1971 in Barrio
Sampinit, Baybay in the City of Bago. 2 It was reported to the authorities
on December 24, 1971, 3 and the corresponding criminal complaint was
filed on July 10, 1972. 4 Judgment was rendered on January 30, 1976,
sentencing the accused-appellant to reclusion perpetua plus civil
indemnity of P2,000 and the costs. 5 He now wants this decision
reversed.
The complainant is Anita Ibañez, who was fifteen years old at the time of
the alleged offense. She says that on the day in question, she was
dragged by the accused-appellant to a bushy place on the seashore
where she was waiting for her mother. She could not resist because he
was threatening her with a scythe he was carrying. In the bushes, be
pointed the scythe at her neck and then forcibly took her. She could not
cry out because she was afraid. She did not report the matter to her
mother because the accused-appellant bad warned her he would kill her
if she did. 6
The accused-appellant has a different version. He does not deny he had
sexual intercourse with Anita, but he insists it was voluntary. As a matter
of fact, he says, it was the complainant who enticed him into the bushes,
where she wantonly opened herself to him. He was unable at first to have
an erection because of his age. But Anita herself rubbed his organ in
hers until, thus stimulated, he succeeded in penetrating her. Afterwards,
noticing some people nearby who might have seen them, the girl put
back her panty on and left. He followed a few minutes later. 7
As the medical examination of the complainant was made more than two
months afterwards, there naturally could not be any finding of the
bruises, cuts and scratches that usually attend forcible rape. But there
was the tell-tale hymeneal laceration in the complainant that even the
accused-appellant could not dispute. 8
Given the choice between the separate accounts of the complainant and
the accused-appellant, the court inclines in favor of the latter. It is in our
view more believable. Anita never spoke of any difficulty on the part of
Pailano in violating her. She simply said he removed her panty and
entered her. No effort was mentioned; it seemed she was talking of a
vigorous stud. Yet, the accused-appellant was not a teenager or even
only in the prime of his life at the time of their sexual encounter. He was
all of sixty-nine years old.
Considering his age and the emotional pressures of the moment, we
doubt if Pailano could have accomplished the rape as easily as Anita
narrated it. The prosecution has not offered any proof of his sexual
prowess, and under stress at that. By contrast, the accused-appellant did
not hesitate to testify, at the risk of his manly pride, that he did not easily
have an erection during the tryst with Anita and that it took some fondling
from her before his organ could respond. This was a hard and humiliating
fact but it had to be admitted.
We are disposed to believe the testimony of Leonardo Filomeno that he
saw Pailano and Anita coupling on the day in question, 9 but not on the
other previous occasions claimed by him. His presence in all of these
meetings seems too much of a coincidence to be credible. However,
Pailano is also corroborated by Natividad Madrigal, who declared she
saw Anita and Pailano caressing each other, with the girl in fact
assuming the more aggressive role. 10There is no reason not to believe
this witness.
20
Rule 110. CRIMINAL PROCEDURE – FULL TEXT 22 CASES
Article 335 of the Revised Penal Code provides that rape is committed by
having carnal knowledge of a woman under any of the following
circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise unconscious; and
3. When the woman is under twelve years of age, even though neither of
the circumstances mentioned in the two next preceding paragraphs shall
be present.
The criminal complaint in this case alleged the commission of the crime
through the first method although the prosecution sought to establish at
the trial that the complainant was a mental retardate. Its purpose in doing
so is not clear. But whatever it was, it has not succeeded.
If the prosecution was seeking to convict the accused-appellant on the
ground that he violated Anita while she was deprived of reason or
unconscious, such conviction could not have been possible under the
criminal complaint as worded. This described the offense as having been
committed by "Antonio Pailano, being then provided with a scythe, by
means of violence and intimidation, (who) did, then and there, wilfully,
unlawfully and feloniously have carnal knowledge of the complainant,
Anita Ibañez, 15 years of age, against her will." No mention was made of
the second circumstance.
Conviction of the accused-appellant on the finding that he had raped
Anita while she was unconscious or otherwise deprived of reason and
not through force and intimidation, which was the method alleged would
have violated his right to be informed of the nature and cause of the
accusation against him. 11 This right is safeguarded by the Constitution to
every accused so he can prepare an adequate defense against the
charge against him. Convicting him of a ground not alleged while he is
concentrating his defense against the ground alleged would plainly be
unfair and underhanded. This right was, of course, available to the herein
accused-appellant.
In People v. Ramirez, 12 we held that a person charged with rape could
not be found guilty of qualified seduction, which had not been alleged in
the criminal complaint against him. In the case of People v.
Montes, 13 the Court did not permit the conviction for homicide of a
person held responsible for the suicide of the woman he was supposed
to have raped, as the crime he was accused of and acquitted was not
homicide but rape. More to the point is Tubb v. People of the
Philippines, 14 where the accused was charged with the misappropriation
of funds held by him in trust with the obligation to return the same under
Article 315, paragraph 1(b) of the Revised Penal Code, but was
convicted of swindling by means of false pretenses, under paragraph
2(b) of the said Article, which was not alleged in the information. The
Court said such conviction would violate the Bill of Rights.
It may be argued that although initially deficient, the criminal complaint
was deemed corrected when the prosecution introduced evidence of the
complainant's mental condition and the defense did not object, thereby
waiving the procedural defect. Even so, the charge has not been
adequately establish established.
In the first place, the doctor who examined Anita reported that he saw no
evidence of insanity in her family history nor was there any indication of
such condition in the complainant herself. 15 He did observe that she had
the mentality of a thirteen-year old, 16 which was not that serious an
impediment as her age at the time was only fifteen.
Secondly, and more importantly, the prosecution has not proved that
during that encounter in the bushes, Anita's mental condition was so
weakened that she could not resist Pailano's supposed advances.
The statutory presumption of sanity 17 and the constitutional presumption
of innocence 18 have not been overcome. There is evidence that
Filomeno reported the incident in the bushes on the same day to Anita's
mother, 19 but she took no action whatsoever, for reasons not disclosed.
It was only two-and-a-half months later that she decided to complain to
the authorities, but then it was already suspiciously late. The only
possible explanation for her delay is that the liaison between her
daughter and Pailano had already become a scandal by that time and
she must have thought she could redeem Anita's honor by initiating the
criminal complaint. The delay, however, blunts the charge of rape.
What we see here is an aging Lothario having his last lustful fling and a
young girl with a rather weak mind and a ripe body offering him a flaccid
return to his youth. We do not mean to romanticize this sordid affair. It is
wrong and is not here excused, made light of, or dismissed. It is
disdained for what it is an unseemly seduction where it is not clear who
the tempter and the tempted are although neither can really claim to be
blameless. But, in our view, it is definitely not rape.
WHEREFORE, the appealed conviction is REVERSED and the accused-
appellant is ACQUITTED on reasonable doubt. No costs.
SO ORDERED.
21
Rule 110. CRIMINAL PROCEDURE – FULL TEXT 22 CASES
8. G.R. No. 75853 January 31, 1989
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ANDRES BUGTONG, defendant-appellant.
Criminal Procedure; Information; Jurisdiction; Complaint under Art.
344 of the Revised Penal Code is merely a condition precedent to
the exercise by the proper authorities of the power to prosecute the
guilty parties; Reason for the rule; What confers jurisdiction on the
court is not the complaint but the Judiciary Law.—Only recently, did
this Court reiterate its ruling on the meaning and import of this
requirement. We said in People vs. Hon. Santiago Tañada, G.R. No.
L-32215, October 17, 1988, that: “x x x In the 1966 case of
Valdepenas v. People this Court, through then Associate, later Chief
Justice Roberto Concepcion clarified: . . . It is true that pursuant to
the third paragraph of Art. 344 of the Revised Penal Code, . . . the
offenses of seduction, abduction, rape or acts of lasciviousness,
shall not be prosecuted except upon a complaint filed by the
offended party or her parents . . . The provision does not determine,
however, the jurisdiction of our courts over the offenses therein
enumerated. It could not affect said jurisdiction, because the same
is governed by the Judiciary Act of 1948, not by the Revised Penal
Code, which deals primarily with the definition of crimes and the
factors pertinent to the punishment of the culprit. The complaint
required in said Article is merely a condition precedent to the
exercise by the proper authorities of the power to prosecute the
guilty parties. And such condition has been imposed out of
consideration for the offended woman and her family who might
prefer to suffer the outrage in silence rather than go through, with
the scandal of a public trial.
Same; Same; Same; Same; Same; In case at bar, the prosecution for
rape was initiated by the offended party herself with the assistance
of her mother.—ln the case at bar, it is evident that the prosecution
for rape was initiated by the offended party herself with the
assistance of her mother.
Same; Same; Same; Same; Same; The information for rape filed by
the fiscal does not require the signing and verification of the
information by the complainant.—The appellant’s insinuation that
the Information should have been signed and sworn to by the
complainant is incorrect for it is not necessary for the complainant
to sign and verify the Information for rape filed by the Fiscal.
Criminal Law; Evidence; Rape; Accused-appellant cannot be
convicted of a crime under a mode of commission different from
that alleged in the information.—There is merit in this contention.
While the conviction of accused-appellant under paragraphs (1) and
(2) of Article 335 of the Revised Penal Code appears to be an
innocuous error as these paragraphs refer merely to the modes of
commission of the same crime of rape punishable by the same
penalty of reclusion perpetua, the harm inflicted upon accused-
appellant gains considerable proportion when we consider not only
the no-win situation in which appellant was placed by reason of
such conviction, but more importantly, the surprise attendant to his
conviction for a crime under a mode of commission different from
that alleged in the information. Having been charged with Rape
allegedly committed thru force or intimidation; it is to be expected
that appellant should focus his defense on showing that the sexual
intercourse complained of was the result of mutual consent, rather
than of force or intimidation. This defense, however, has been
rendered futile and ineffective by the appellant’s further conviction
under par. (2) of Art. 335, for even if he should succeed in
convincing us that the sexual act under consideration was born out
of mutual consent, he nonetheless remains liable under par. (2) of
Art. 335, wherein consent of the offended party is not a defense, the
latter being considered to be legally incapable of giving her
consent.
Same; Same; Same; Same; Constitutional Law; Right to be informed
of the nature and cause of the accusation; As appellant was tried on
an information charging him with rape committed thru force and
intimidation, his conviction for rape committed when the woman is
deprived of reason or otherwise unconscious is violative of his
constitutional right to be informed of the nature and cause of the
accusation against him.—Furthermore, and more importantly, as
herein appellant was tried on an information charging him with rape
committed thru force and intimidation, his conviction for rape
committed when the woman is deprived of reason or otherwise
unconscious would be violative of his constitutional right as an
accused to be informed of the nature and cause of the accusation
against him.
Same; Same; Same; Same; Only the conviction of appellant under
Par. 2 of Art. 335 of the Penal Code is nullified as his guilt of the
crime of rape committed thru force and intimidation as charged in
the information has been proven beyond reasonable doubt.—This is
not to say however, that the conviction of accused-appellant should
be set aside altogether. Only his conviction under par. (2) of Article
335 of the Revised Penal Code is nullified as his guilt of the crime of
rape committed thru force and intimidation, as charged in the
Information, has been proven beyond reasonable doubt.
Same; Same; Same; Same; Accused-appellant succeeded in
obtaining carnal knowledge of complainant thru force and
intimidation, established by complainant’s testimony.—That
accused-appellant succeeded in obtaining carnal knowledge of
Irene thru force and intimidation has been established by Irene’s
testimony that appellant uttered the following threat: “If you will
report the matter, I will kill you, anyway our house (sic) are near
each other.”
Same; Same; Same; Same; Force used on rape need not be
irresistible.—Moreover, it has been ruled that the force used need
not be irresistible. As long as it is present and brings the desired
result, all consideration of whether it was more or less irresistible is
beside the point. People vs. Bugtong, 169 SCRA 797, G.R. No. 75853
January 31, 1989
FERNAN, C.J.:
What makes this case of rape most unfortunate is that the victim is a
fifteen-year old lass with a mental age of between five (5) and eight (8)
years and a numerical I.Q. of 47.
Irene Cutiam, the minor complainant, was born on December 30, 1968 in
Sitio Duban, Tublay, Benguet. The accused, Andres Bugtong, is her
neighbor.
Sometime in July, 1984, Luisa Cutiam noticed that the stomach of her
daughter Irene was growing bigger and bigger. Dr. Salome Pilit, a
government physician who conducted a medical examination confirmed
that Irene was pregnant. Irene, at first, would not reveal the identity of the
man responsible for her condition, but when she felt something moving
inside her belly, she confessed to her mother Luisa that accused raped
her and that her refusal to talk earlier was due to the fear that accused
would make good his threats to kill her should she squeal.
With this information, Luisa, together with Irene, went to the Acop Tublay
Police Station to report the crime which resulted in Irene's pregnancy.
Irene gave birth to a baby boy later on. 1
Andres Bugtong was thereafter charged before the Regional Trial Court
of La Trinidad, Benguet with the crime of Rape allegedly committed as
follows:
... the above-named accused by means of force and intimidation
and threats, did then and there wilfully, unlawfully and
feloniously have sexual intercourse and carnal knowledge of
one Irene Cutiam, a fifteen-year old girl against her will and
consent. 2
On accused's plea of not guilty, trial ensued. When Irene was called to
the witness stand, it was observed that she had difficulty understanding
the questions propounded to her. On motion of the fiscal, she was made
to undergo pyschological testing which revealed that she had an
Intelligence Quotient (IQ) of only 47, equivalent to the mental age of a
person between the ages of 5 and 8 years, far below her actual age of 15
years. Her mental retardation was classified as moderate. 3
22
Rule 110. CRIMINAL PROCEDURE – FULL TEXT 22 CASES
Her testimony, as summarized by the trial court, is as follows:
On November 13, 1984, Irene Cutiam testified. ... One day in
January 1984, she was sent by her mother Luisa Cutiam to the
house of Andres Bugtong, the herein accused to pay her account
to the latter in the amount of TEN PESOS (P10.00).This fact of
indebtedness and payment of the same was previously testified
on by Luisa Cutiam. 4 Witness claimed that when she handed the
money to Andres Bugtong, the latter grabbed her other hand and
placed her on the bed, and when she tried to shout, the accused
covered her mouth with his hand and allegedly threatened her by
saying: 'If you will report the matter, I will kill you, anyway our
house (sic) are near each other. 5 After having uttered those
threatening words, Irene was apparently released from the hold
of the accused as could be inferred from the following:
Q After saying that, what is the next thing he did, if any?
A While he was removing his pants, I tried to open the door but
it was locked then he came again and pulled me.
Q And when he came again to pull you, where did he bring you?
A In their bed just the same, Sir.
Q What did he do when you were already in bed?
A He did the act and after doing the act he opened the door and
let me go out. 6
xxx xxx xxx
On recross-examination, complainant disclosed that at one time
the accused came to their house when she was with her two
younger brothers. The accused sent the two boys to the
mountain to gather guavas and after they have left, had again
sexual intercourse with her; that when the two boys came back
and knocked at the door, accused barred her from opening and
again was threatened with death if she would do so; that she
just kept on crying until the accused sneaked out through the
other door of the house. 7
Accused Andres Bugtong, testifying on January 23, 1985 gave the
following version:
... He and his wife are farmers with a vegetables garden near
their house and another one which is farther. They usually start
working early in the morning and go home for breakfast after
having watered the plants and then go back to continue with
their garden works (sic). At 2:00 o'clock noon they go home for
lunch after which the wife goes back to the garden while the
accused sometimes stays behind for some works (sic) at home.
They have two houses which are near each other. Seven (7) of
their eight (8) children occupy one of these two houses while he
and his wife stay in the other house. 8Occasionally especially
during harvesting season, they used to engage the services of
Irene Cutiam to help them in the garden.
One day in January 1984, Irene came to their house after lunch.
Andres Bugtong was then alone. Without any word, she just
entered the one-room house, sat on the bed and kept on smiling
and never talked although repeatedly asked by the accused of
what she needed because he was then about to leave for the
garden. He served her with coffee and while both of them were
drinking, the accused, without any word sat beside the
complainant, who in turn leaned on the former with her breast
on his left shoulder. At this juncture, the accused said:
Q And what happened after that?
A So I told her, 'your breast is big.'
Q What did she answer you if any?
A None, she was just smiling.
Q So what did you do?
A And so I put my left arm around her shoulders.
Q What did she do when you put your left hand or arm around
her shoulder?
A I took hold of her breast.
xxx xxx xxx
Q And what did she do when you held her breast?
A She was placing down her coffee and then she encircled her
9
two arms around my body (Witness illustrating his both hands.)
At this stage when accused was already sexually aroused, he
laid down the complainant on the bed and after closing the door,
he removed his clothes, sat between the legs of the former,
lifted her skirt and when he noticed that complainant had no
panty, he proceeded with the sexual intercourse with both
hands holding her shoulders while the latter took hold of his
waist. This was the first sexual intercourse which was repeated
four or five times during the succeeding months of 1984. All
were done in his house after lunch time. Accused said further
that during all these sex contacts with complainant and
thereafter, no words were uttered neither they (sic) converse
with each other. He only learned that the latter was already
pregnant after this case was filed. (Ibid., pp, 12-16) 10
Giving credence to the prosecution's version, the trial court rendered
judgment finding Andres Bugtong guilty beyond reasonable doubt of the
crime of Rape as defined in Article 335 (1) and (2) of the Revised Penal
Code and sentencing him to suffer the penalty of Reclusion Perpetua; to
recognize the child born to Irene Cutiam as a result of the crime; to
indemnify the complainant in the sum of Twenty Thousand (P20,000.00)
pesos as moral damages and to pay the costs. From said judgment,
Bugtong interposed the present appeal.
He alleges that:
The lower court erred:
I
IN TAKING JURISDICTION OF THE CASE
II
IN CONVICTING THE ACCUSED AS DEFINED IN
ART. 335 (1) AND (2), AS AMENDED, OF THE
REVISED PENAL CODE.
III
IN NOT DISMISSING THE CASE. 11
Appellant contends that as rape is a personal offense which, under
Article 334 of the Revised Penal Code and Section 4, Rule 110 of the
Rules of Court, now Section 5, Rule 110 of the 1985 Rules on Criminal
Procedure, must be prosecuted upon a complaint filed by the offended
party, the trial court erred in assuming jurisdiction over the instant case
on the basis of the Information signed by the fiscal alone.
Only recently, did this Court reiterate its ruling on the meaning and import
of this requirement. We said in People vs. Hon. Santiago Tañada G.R.
No. L-32215, October 17, 1988, that:
23
Rule 110. CRIMINAL PROCEDURE – FULL TEXT 22 CASES
... In the 1966 case of Valdepenas v. People this Court,
through then Associate, later Chief Justice Roberto
Concepcion clarified:
... It is true that pursuant to the third paragraph of Art.
344 of the Revised Penal Code,
... the offenses of seduction, abduction, rape or acts of
lasciviousness, shall not be prosecuted except upon a
complaint filed by the offended party or her parents ...
... The provision does not determine, however, the
jurisdiction of our courts over the offenses therein
enumerated. It could not affect said jurisdiction,
because the same is governed by the Judiciary Act of
1948, not by the Revised Penal Code, which deals
primarily with the definition of crimes and the factors
pertinent to the punishment of the culprit. The
complaint required in said Article is merely a condition
precedent to the exercise by the proper authorities of
the power to prosecute the guilty parties. And such
condition has been imposed out of consideration for
the offended woman and her family who might prefer to
suffer the outrage in silence rather than go through,
with the scandal of a public trial. 12
xxx xxx xxx
This ruling was followed in the subsequent case
of People v. Babasa where the Court, citing
the Valdepeñas case, ruled that Act 344 was not
enacted for the specific purpose of benefiting the
accused. When it is said that the requirement in Article
334 that there should be a complaint of the offended
party or her relatives is jurisdictional, what is meant is
that it is the complaint that starts the prosecutory
proceeding. It is not the complaint which confers
jurisdiction on the Court to try the case. The Court's
jurisdiction is vested in it by the Judiciary Law.
In the case at bar, it is evident that the prosecution for rape was initiated
by the offended party herself with the assistance of her mother. The
Information filed by the Fiscal said so, thus:
the undersigned 3rd Assistant Provincial Fiscal, upon
a sworn originally filed by the offended party accuses
Andres Bugtong of the crime of Rape... 13
And extant on record is Exhibit "B",14 the criminal complaint 15 filed by
Irene Cutiam with the assistance of her mother. The appellant's
insinuation that the Information should have been signed and sworn to by
the complainant is incorrect for it is not necessary for the complainant to
sign and verify the Information for rape filed by the Fiscal. 16
Based on the foregoing, no error can be imputed to the trial court in
taking cognizance of the Information filed by the fiscal.
Appellant questions next the trial court's finding that he is guilty of the
crime of rape as defined in Article 335 (1) and (2) of the Revised Penal
Code. He contends that since it is clear from the allegations in the
Information that the offense charged falls under par. 1 of Art. 335, to find
him guilty of rape under par. 2 thereof is violative of his constitutional
right to be informed of the charges against him.
There is merit in this contention. While the conviction of accused-
appellant under paragraphs (1) and (2) of Article 335 of the Revised
Penal Code appears to be an innocuous error as these paragraphs refer
merely to the modes of commission of the same crime of rape punishable
by the same penalty of reclusion perpetua, the harm inflicted upon
accused-appellant gains considerable proportion when we consider not
only the no win situation in which appellant was placed by reason of such
conviction, but more importantly, the surprise attendant to his conviction
for a crime under a mode of commission different from that alleged in the
information.
Having been charged with Rape allegedly committed thru force or
intimidation, it is to be expected that appellant should focus his defense
on showing that the sexual intercourse complained of was the result of
mutual consent, rather than of force or intimidation. This defense,
however, has been rendered futile and ineffective by the appellant's
further conviction under par. (2) of Art. 335, for even if he should succeed
in convincing us that the sexual act under consideration was born out of
mutual consent, he nonetheless remains liable under par. (2) of Art. 335,
wherein consent of the offended party is not a defense, the latter being
considered to be legally incapable of giving her consent.
Furthermore, and more importantly, as herein appellant was tried on an
information charging him with rape committed thru force and intimidation,
his conviction for rape committed when the woman is deprived of reason
or otherwise unconcious would be violative of his constitutional right as
an accused to be informed of the nature and cause of the accusation
against him. 17
This is not to say however, that the conviction of accused-appellant
should be set aside altogether. Only his conviction under par. (2) of
Article 335 of the Revised Penal Code is nullified as his guilt of the crime
of rape committed thru force and intimidation, as charged in the
Information, has been proven beyond reasonable doubt. 18
That accused-appellant succeeded in obtaining carnal knowledge of
Irene thru force and intimidation has been established by Irene's
testimony that appellant uttered the following threat:
If you will report the matter, I will kill you, anyway our
house (sic) are near each other. 19
with respect to which we share the Solicitor-General's observation, thus:
At first blush, it would seem that the force employed by
the appellant and the resistance put up by Irene would
not meet the degree of force and resistance required to
qualify the sex act for rape. However, it is to be
stressed that force and intimidation are not limited to
physical force, it includes the moral kind such as fear
especially in the case at bar where it was established
that Irene, had the mental capacity of a child between
five (5) to eight (8) years old. 20
Moreover, it has been ruled that the force used need not be irresistible.
As long as it is present and brings the desired result, all consideration of
whether it was more or less irresistible is beside the point. 21
WHEREFORE, except for the modifications that (1) the conviction of
accused-appellant under paragraph (2) of Article 335 of the Revised
Penal Code is set aside and (2) the civil indemnity to be paid to the victim
is increased to P30,000.00, the appealed decision is hereby AFFIRMED
in all other respect.
SO ORDERED
9. G.R. No. L-63971 May 9, 1989
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RICARDO ELESTERIO y CARPENTERS, defendant-appellant.
FE CRUZ, petitioner,
vs.
EX-JUDGE ENRIQUE AGANA, THE CHIEF, NEW BILIBID PRISON,
MUNTINLUPA, METRO MANILA, respondents.
Carreon & Associates Law Office for defendant-appellant and Fe Cruz.
CRUZ, J.:
24
Rule 110. CRIMINAL PROCEDURE – FULL TEXT 22 CASES
At two o'clock in the morning of 8 June 1981, a police car sighted a group
of three men and one woman on the sidewalk of Libertad street in Pasay
City and stopped to investigate. Patrolmen Joseph Nepomuceno and
Ernesto Maneja alighted. While they were frisking two of the men, the
third male made a run for it but was caught after a brief pursuit. A search
of his person yielded a .32 caliber revolver and two rounds of live
ammunition. The holster he had dropped while attempting to escape was
also recovered. Ricardo Elesterio for that was his name — admitted that
he had no permit or authority to carry the firearm. 1
In due time an information was flied against him in the Court of First
Instance of Pasay City reading as follows:
The undersigned Assistant City Fiscal accuses RICARDO ELESTERIO Y
CARPENTERS of the crime of VIOLATION OF GENERAL ORDER NO.
6 in rel. to PAR. 2, PRESIDENTIAL DECREE NO. 9, as amended,
committed as follows:
That on or about the 8th day of June, 1981, in Pasay City,
Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, RICARDO
ELESTERIO y CARPENTERS, did then and there wilfully,
unlawfully and feloniously have in his possession and carry
outside of his residence a .32 caliber revolver with SN-23271
and (2) two rounds live ammunitions, without having been
permitted or authorized by law.
General Order No. 6, dated September 22,1972, reads in material part as
follows:
WHEREAS, in order to restore the tranquility and stability of the
nation and secure the people from violence, injuries and loss of
lives in the quickest possible manner and time, it is necessary to
prohibit the inhabitants of the country from keeping any firearm
without a permit duly and legally issued for that purpose as well
as to prohibit the carrying of such firearm outside the residence
of the duly licensed holder thereof;
NOW, THEREFORE, I, FERDINAND E. MARCOS,
Commander-in-Chief of all the Armed Forces of the
Philippines, and pursuant to Proclamation No. 1081
dated September 21, 1972, do hereby order that
henceforth and until otherwise ordered by me or lay my
duly designated representative, no person shall keep,
possess or carry outside of his residence any firearm
unless such person is duly authorized to keep possess
or carry any such firearm and any person violating this
order shall forthwith be arrested and taken into custody
and held for the duration of the emergency unless
ordered released by me or by my duly designated
representative.
Presidential Decree No. 9, promulgated on October 2, 1972, reads partly
as follows:
WHEREAS, by virtue of said Proclamation No. 1081, General
Order No. 6 dated September 22, 1972 and General Order No. 7
dated September 23, 1972, have been promulgated by me;
WHEREAS, subversion, rebellion, insurrection, lawless violence,
criminality, chaos and public disorder mentioned in the aforesaid
Proclamation No. 1081 are committed and abetted by the use of
firearms, explosives and other deadly weapons;
NOW, THEREFORE, I, FERDINAND E. MARCOS Commander-in-
Chief of all the Armed Forces of the Philippines, in order to attain
the desired result of the aforesaid Proclamation No. 1081 and
General Order Nos. 6 and 7, do hereby order and decree that:
1. Any violation of the aforesaid General Order Nos. 6 and 7 is
unlawful and the violator shall, upon conviction suffer:
xxx
(b) The penalty of imprisonment ranging from twenty years to life
imprisonment as a Military Court/Tribunal/Commission may direct,
when the violation is not attended by any of the circumstances
enumerated under the preceding paragraph.
The accused pleaded not guilty when arraigned on 15 July 1981. 2 Trial
was held on 14 August 1981. 3 Patrolman Nepomuceno testified for the
prosecution and narrated the arrest and search of the accused. The
accused, testifying for himself, said the firearm did no belong to him but
was passed to him by one Ray Arong minutes before the patrol car
passed by them. The judge then asked if the defense had any more
witnesses to present. The defense counsel said he had, to corroborate
the testimony of the accused that he had earlier gone to several
discotheques. The judge said this would only be cumulative, whereupon
the counsel said, "Well, if that is the case, Your Honor, we rest our case
with the testimony of our lone witness." 4 The judge thereupon dictated
his decision in open court finding the accused guilty and sentencing him
to life imprisonment. 5 The defense counsel manifested his intention to
appeal, to which the judge replied: "The appeal is automatic. In the
meantime he has to be held in custody. I am cancelling the bailbond." 6
Elesterio was committed to the national penitentiary on 17 August 1981.
He escaped on 21 October 1981, and filed a motion for reconsideration,
which was denied on 18 November 1981. He was recaptured on 30
March 1983. On 12 May 1983, his aunt, Fe Cruz, filed a petition
for habeas corpus on his behalf, alleging that: a) the sentence imposed
upon him was unlawful and excessive; b) he was denied due process
because the trial was held only in one sitting and the defense was not
allowed to present additional witnesses; and c) the person who
represented him at the trial was not a lawyer.
In its resolution dated 3 December 1984, the Court dismissed the petition
for habeas corpus after considering the same with the return to the writ
submitted by the Solicitor General. However, it resolved "to consider the
said accused to have filed a timely notice of appeal; to REQUIRE the
court a quo to elevate the records of Criminal Case No. 81-913-P to this
Court within ten (10) days from notice; and to ALLOW the accused to
post a bail bond of P5,000.00 for his provisional release. 7 The parties
subsequently submitted their respective briefs.
In dispensing with the testimony of the other defense witnesses who
were only intended to corroborate the averment of the accused that he
had been to several discotheques before his apprehension, the trial court
was not acting arbitrarily. The trial judge had the right to control the
conduct of the trial and to bar unnecessary testimony, such as that
intended merely to corroborate relatively unimportant matters, that would
only unnecessarily delay the case. In People v. Barabasa, 8 we held that
suppression of that kind of evidence "did not deprive the accused of any
substantial right" as "the evidence was merely cumulative and
unnecessary because it would not have affected the result of the case in
the least."
The mere fact that the trial was concluded in one sitting only is not
necessarily indicative of irregularity or inordinate haste. If all the evidence
needed by both parties could be presented by them in that single
session, there is no reason why any reseting had to be made.
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
undeniably carrying 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. 9
The Court agrees, however, that Judge Enrique Agana was exceptionally
careless, if not deliberately high-handed, when he immediately after the
trial dictated his decision in open court. One may well suspect that he
had prejudged the case and had a prepared decision to foist upon the
accused even before the submission of the case. And what is worse is
that the decision was wrong.
The elements of the offense punished by General Order No. 6 in relation
to Par. 2, Presidential Decree No. 9, as amended, are first, the carrying
of a firearm outside one's residence, and second, the motive for such act,
which is "in furtherance of or to abet, or in connection with subversion,
rebellion, insurrection, lawless violence, criminality, chaos or public
disorder."
25
Rule 110. CRIMINAL PROCEDURE – FULL TEXT 22 CASES
A reading of the information filed against the accused will readily show
that the second element of the imputed crime is not alleged at all. All that
is averred is that Elesterio on the date and place indicated, had in his
possession and was carrying outside his residence a firearm and two live
bullets without the proper permit or authorization. That is only the first
element. There is no allegation in the information that the accused was
carrying the weapon outside his residence for the purposes mentioned in
the laws supposedly violated.
This omission was all too obvious, and it is a wonder that the trial judge
did not see it at all. Perhaps he did not choose to see it. In any event, it is
clear that the accused could not have been convicted of a violation of
General Order No. 6 in relation to P.D. No. 9, par. 2, and so should not
have been sentenced to the severe penalty of life imprisonment.
"prima facie" proof that such article is intended to be used in
the manufacture of firearms or ammunition.
Under this provision, mere possession of an unlicensed firearm is malum
prohibitum and is punishable regardless of lack of criminal intent or proof
of the ownership of the firearm by another person. Even if it were not, the
accused in the case at bar still has not been able to explain his
possession of the revolver short of the unsupported statement that it had
been handed to him by one Ray Arong who, by his own testimony, was a
casual acquaintance he had met only two days earlier. He does not even
explain why he received the gun when it was for no apparent reason
shoved on him by the said Arong.
deducting from the sentence such period of detention, if any, to which the
accused may be entitled." But since the records show that he has been
under detention since 1983, or for more than the maximum sentence
imposable on him, there is no question that he is entitled to be released
immediately upon payment of the fine, as an indispensable part of the
penalty, which we hereby fix at P1,000.00.
WHEREFORE, the accused is declared guilty of Illegal Possession of
Firearms under Section 2692 of the Revised Administrative Code as
amended. Inasmuch as he has been detained for more than the
maximum period of imprisonment imposable for the offense, he is hereby
ordered released immediately upon payment of the fine of P1,000.00.
SO ORDERED.

But all this notwithstanding, the accused-appellant is not entirely
guiltless. For, although his act is not punishable under the laws invoked
by the prosecution, it is undeniable that it comes under the provision of
Section 2692 of the Revised Administrative Code, as amended by Rep.
Act No. 4, for illegal possession of firearms.
This provision reads as follows:
SEC. 2692. Unlawful manufacture, dealing in, acquisition,
disposition, or possession of firearms, or ammunitions
therefor, or instrument used or intended to be used in the
manufacture of firearms or ammunition. — Any person who
manufactures, deals in, acquires poses, or possesses, any
firearm, parts of firearms, or ammunition therefor, or
instrument or implement used or intended to be used in the
manufacture of firearms or ammunition in violation of any
provision of sections eight hundred and seventy-seven to nine
hundred and six, inclusive, of this Code, as amended, shall,
upon conviction, be punished by imprisonment for a period of
not less than one year and one day nor more than five years,
or both such imprisonment and a fine of not less than one
thousand pesos nor more than five thousand pesos, in the
discretion of the court. If the article illegally possessed is a
rifle, carbine, grease gun, bazooka, machine gun,
submachine gun, hand grenade, bomb, artillery of any kind or
ammunition exclusively intended for such weapons, such
period of imprisonment shall not be iless than five years nor
more than ten years. A conviction under this section shall
carry with it the forfeiture the prohibited article or articles to
the Philippine Government.
The possession of any instrument or implement which is
directly useful in the manufacture of firearms or ammunition
on the part of any person whose business or employment
does not deal with such instrument or implement shall be
It is well-settled that the nature and cause of the accusation are
determined not by the name given to the offense but by the description of
the manner and circumstances in which it was committed. The
designation of the offense or of the law violated is a conclusion of law
made by the prosecuting officer but this is not binding on the court. That
conclusion must ultimately be made only by the court itself after the trial
and following its own ascertainment of the facts needed to constitute the
elements of the crime attributed to the accused. If an essential element is
not alleged to prove a graver crime, no conviction therefore may be
rendered. Conversely, if the elements proved constitute a less serious
offense, conviction therefor is justified although it is the higher offense
that is alleged. In other words, it is the recitals of the facts of the
commission of the offense, and not the nomenclature of the offense, that
should determine the crime being charged in the information. 10
Of particular relevance is the case of People v. Mamogay, 11 where the
failure of the information to allege that the murder had been committed
with the use of an illegally possessed firearm removed it from the
coverage of P.D. No. 9 in relation to G.O. No. 6. Nevertheless, the
recitals in the information were specific enough to justify the conviction of
the accused under Section 2692 of the Revised Administrative Code for
illegal possession of firearms.
The information in the case at bar contained allegations (later established
at the trial) which were sufficient to warrant the conclusion that the
offense committed by the accused was violation of Section 2692 of the
Revised Administrative Code as amended. He should therefore have
been meted the penalty prescribed therein, not the sentence of life
imprisonment for violation of the presidential decree.
The prescribed penalty is imprisonment for a period of not less than one
year nor more than five years and a fine of not less than P1,000.00 nor
more than P5,000.00 in the discretion of the court. The recommendation
of the Solicitor General, considering the facts and circumstances of this
case, is "an indeterminate penalty of imprisonment from three years and
one day as minimum to five years as maximum and a fine of P3,000.00,
26
Rule 110. CRIMINAL PROCEDURE – FULL TEXT 22 CASES
10. G.R. No. L-18202 April 30, 1964
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
PERCIVAL GILO, defendant-appellant.
Office of the Solicitor General for plaintiff-appellee.
Eugenio G. Gemarino for defendant-appellant.
BAUTISTA ANGELO, J.:
Appellant was charged before the Justice of the Peace Court of Guimbal,
Iloilo, with a crime labelled as "Acts of Lasciviousness" described in a
complaint filed by the offended party. After conducting the required
preliminary investigation, the justice of the peace forwarded the case to
the court of first instance where the provincial fiscal filed an information
charging a similar crime of "Acts of Lasciviousness." It was alleged this
time that the act were committed "with lewd design."
Trial was conducted by the latter court, and after the prosecution had
rested its case, appellant filed a motion to dismiss alleging lack of
jurisdiction in view of the lack of allegation of lewd design in the
complaint subscribed by the offended party. The court, however, deferred
action on the motion until after trial had been completed. Thereafter, the
court rendered decision finding that the act committed was merely one of
unjust vexation and sentence appellant to pay a fine of P20.00. Appellant
interposed the present appeal.
The complaint filed before the Justice of the Peace Court of Guimbal,
Iloilo, by the offended party, which was labelled as "Acts of
Lasciviousness", reads as follows:
That on or about December 11, 1957, in the Municipality of
Guimbal, Province of Iloilo, Philippines and within the jurisdiction
of this Honorable Court, the said accused Percival Gilo taking
advantage of his being drank with force and intimidation did
then and there intentionally, maliciously, feloniously, and
criminally touch the breast and face of Verna Genzola against
her will and consent and as a result of which Verna Genzola
suffered shame, embarrassment, and lost her self-respect.
Considering that in order that a crime constitution acts of lasciviousness
may be committed it is necessary that it be alleged that it was committed
with lewd design, the latter being an indispensable element of all crimes
against chastity, such as abduction, seduction and rape, including acts of
lasciviousness, the complaint copied above cannot really be considered
as charging a crime of acts of lasciviousness because of the absence of
such element, event if the complaint is labelled as "Acts of
Lasciviousness."1 What characterizes a criminal charge is not the title but
the body of the complaint or information. In this sense, the lower court did
not acquire jurisdiction over the case, even if the information filed by the
provincial fiscal be one of acts of lasciviousness, because the complaint
that gave initial life to the case is merely one of unjust vexation. This fatal
defect can only be cured by making the proper correction in the
complaint filed by the offended party, which here was not done. Verily,
the lower court acted without jurisdiction, thereby rendering all its
proceedings null and void.
The contention of the government that the complaint filed by the offended
party before the Justice of the Peace Court of Guimbal, Iloilo, is sufficient
even if it does not allege that the act was committed with lewd design is
untenable, because the words "feloniously and criminally" that are
alleged in the complaint are mere general terms which denote the
criminal intent of the accused but which do not necessarily connote the
idea of lust needed in the act. Lust or lewd design is an element that
characterizes all crimes against chastity, apart from the felonious or
criminal intent of the offender, and such element must be always present
in order that they may be considered in contemplation of law. The
absence of element converts the act into another crime, which this case
is unjust vexation.
WHEREFORE, the decision appealed from is It is ordered that this case
be remanded to the lower court with the directive that it be in turn
remanded to the Justice of the Peace Court of Guimbal, Iloilo, so that trial
proceed under the complaint filed by the offended No costs.1äwphï1.ñët
11. G.R. No. 18035 February 28, 1964
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FELINO SIMON Y CUILAO, ET AL., defendants,
FELINO SIMON Y CUILAO and REMIGIO DE VERA Y
SERRANO, defendant-appellants.
Criminal procedure; Accused cannot be convicted for a crime higher than
that alleged in the information,—Although two separate crimes of murder
and frustrated murder, both qualified by treachery, were fully established,
however, the appellants cannot be punished for such crimes, since the
information filed against them is only for attempted robbery in an
inhabited house with homicide and frustrated homicide, and inasmuch as
no attempted robbery in an inhabited house was proven at all, the said
appellants can be held guilty only of homicide and frustrated homicide
aggravated by treachery. People vs. Simon, 10 SCRA 280, No. L-18035
February 28, 1964
REYES, J.B.L., J.:
The above-named accused were charged, together with Felix Sarmiento
and Romulo Ranin, in the Court of First Instance of Manila with the crime
of attempted robbery in an inhabited house with homicide and frustrated
homicide.
After trial, the court a quo (Judge Conrado M. Vasquez presiding)
absolved Sarmiento and Ranin on insufficiency of evidence to establish
guilt beyond reasonable doubt, but found the accused Felino Simon and
Remigio de Vera guilty of the crimes of murder and frustrated murder,
and imposed upon them the corresponding penalties for these
crimes.1äwphï1.ñët
However, on motion of accused de Vera, the court (Judge Felix Q.
Antonio presiding) modified its judgment, with respect to de Vera only, as
follows:
WHEREFORE, in view of the foregoing, the judgment of this
Court of November 29, 1960, is hereby modified with respect to
the accused Remigio de Vera only, as follows:
WHEREFORE, the Court finds the accused Remigio
de Vera guilty beyond reasonable doubt, as principal,
of the crime of homicide and frustrated homicide,
aggravated by the circumstance of treachery, and
hereby sentences him for the crime of homicide with
respect to the killing of Co Too, to suffer an
indeterminate penalty from 12 years of prision mayor,
as the minimum, to 20 years of reclusion temporal, as
the maximum, with the accessories of the law, to
indemnify the heirs of the deceased, Co too, jointly and
severally with his co-accused, Felino Simon, in the sum
of P6,000.00 without subsidiary imprisonment in case
of insolvency, and for the crime of frustrated homicide
for the shooting of Chua Sam, to suffer an
indeterminate penalty from 6 years of prision
correccional, as the minimum, to 12 years of prision
mayor, as the maximum, with the accessories of the
law, and to pay ¼ of the costs.
Both Felino Simon and Remigio de Vera interposed the instant appeal.
We agree substantially with the findings of fact of the trial court, insofar
as these appellants are concerned, which are as follows:
Chua Sam is a Chinaman engaged in selling "puto" (native cakes). In one
of his early rounds, at about four o'clock on 4 October 1958, he went to
deliver his goods to a sari-sari store at 2450 San Anton Street,
Sampaloc, Manila. Arriving in a tricycle, he knocked at the door. The door
was opened and a hand reached for him, held him by the front of his
shirt, and pulled him inside the store. Once inside the store, Chua was
told to squat, and he did. He saw Benito Co. Alias Co Too, a Chinese
27
Rule 110. CRIMINAL PROCEDURE – FULL TEXT 22 CASES
helper in the store, lying on the floor, face down and hands tied. He also
saw a man holding a gun, and this man was shorter than the one who
pulled Chua inside the store.
While Chua was in squatting position, the smaller man shot him and then
shot Co Too. Immediately thereafter, the taller man — the man who
pulled Chua inside — and the man with the gun scampered away. Chua
and Co Too also managed to flee in different directions, with Chua hailing
a taxi and telling the driver to bring him to the hospital; but the driver,
seeing his passenger wounded, brought him instead to Precinct 2 of the
Manila Police where a policeman accompanied Chua to the North
General Hospital. Co Too (who apparently managed to untie his hands)
was later found by policemen sprawled on the street some distance from
the store and was taken to the same hospital, where he died of shock
and hemorrhage due to a gunshot wound at the right molar region,
fracturing the molar bone and cricoid cartilage, lacerating the tongue and
the left carotid artery.
Chua Sam was treated for: "1. Wound, gunshot, thru and thru, point of
entrance, neck lateral right, POX chest, postero-lateral level of 4th rib,
along the post axillary line, left; 2. Intra-thoracic injury; 3. Shock,
secondary", which could have produced death but for the timely and
skillful treatment at the hospital.
Police investigators, who rushed to the scene of the crime that same
morning of 4 October 1958 and took pictures inside the store, were
unable to discover any fingerprints; however, they found empty shells
and a slug of a 38 caliber pistol. No sign of a struggle was seen, and
money in a box and the goods in the store were found intact.
The main factual issue in this case is the identification of the two men
who Chua Sam encountered inside the store standing over the helpless
Co Too. The prosecution rested its case on this issue on the sole
testimony of Chua Sam identified these two men to be the accused-
appellants Felino Simon and Remigio de Vera as a result of police
inducement.
Although uncorroborated, we find nothing incredible in the testimony of
the witness Chua Sam. When he was pulled inside the store, he came
face to face with the assailants. The place, which the pictures (Exhs. "L",
"L-3" & "L-4") show not to be a large establishments, was lighted with
four long flourescent lamps set in a row. Proof of motive for the otherwise
senseless killing is not essential; but it could well be that the assailants
realized that they were known to their victims, and, for this reason,
wanted them liquidated.
Chua Sam testified that he knew the appellants before the incident, and
that he had seen them loitering in San Anton Street. When the original
four defendants (Simon, Vera, Sarmiento and Ranin) were lined up
before him by the police, at the time Chua was confined at the hospital
but after he regained consciousness, the witness pointed to appellants
Felino Simon and Remigio de Vera.
The trial court has remarked Chua's "sincerity and straightforward
manner of giving his testimony". And while the police exceeded their
authority in maltreating Sarmiento and Ranin until they confessed, as it
was found by the courta quo in acquitting this pair, Chua Sam never
incriminated these defendants, a fact which strengthens his credibility
and at the same time belies the insinuation that the police merely put the
words into his mouth to clinch their case. If they had instructed Chua
Sam on what to say, they would have seen to it that his testimony
dovetailed with the confession extorted from Ranin and Sarmiento.
The defense of both the accused-appellants is difficult to believe. Felino
Simon testified that he slept in his house at 2327-H San Anton,
Sampaloc, Manila, from 9 o'clock in the evening of 3 October 1958 until
his wife awakened him at 7 o'clock the following morning to inform him of
a commotion in the Chinese store across the street. Simon's house is
barely eight meters from the store, and while his wife admitted that she
was a light sleeper, she claims to have heard no gun-fire.
De Vera's alibi is that he was also sound asleep at the time of the
incident, having passed out after a drinking spree at about 5 o'clock in
the afternoon of 3 October 1958, and did not wake up until 9 o'clock the
following morning. It might be true that a friend of his, Carlitos de
Guzman, dropped by de Vera in the morning of 3 October 1958 to invite
him to his birthday on 12 October, but that upon suggestion of de Vera,
Guzman decided to celebrate his birthday right then and there, the two
consuming four bottles of Tanduay rum and a case of beer; but Guzman
left the house of de Vera at 5 o'clock in the afternoon and did not return
until 9 o'clock the following morning, thus leaving unaccounted for where
de Vera was during Guzman's absence.
Standing independently of any other evidence, the actions of Simon and
de Vera in committing the crime show conspiracy; they were both inside
the store of Chua unsuspectingly knocked at the door on that fatal dawn;
lying prostrate was Co Too, rendered defenseless by the two appellants;
one opened the door while the other stood guard with a gun; and their
instant and simultaneous flight from the scene of their crime after
shooting their victims all show identity of design. From these facts also,
treachery in the commission of the misdeed is made manifest, since the
squatting Chua Sam and the prostrate Co Too were both unarmed and
plainly unable to put up any effective defense; thus the accused ran no
risk whatever in shooting both Chinamen.
No attempted robbery in an inhabited house was proven at all, although
two separate crimes of murder and frustrated murder, both qualified by
treachery, were fully established. However, the appellants cannot be
convicted and punished for murder and frustrated murder, since the
information filed against them is only for attempted robbery in an
inhabited house with homicide and frustrated homicide (U.S. vs. Com.,
23 Phil. 368; People vs. Alonzo, l-4405, July 31, 1954). The appellants
can thus be held guilty only of homicide and frustrated homicide,
aggravated by treachery, as correctly held by Judge Antonio in the
amended judgment on de Vera, which should be made extensive to the
other accused-appellant Felino Simon.
WHEREFORE, the appealed decision is modified; both accused-
appellants, Remigio de Vera and Felino Simon, and found guilty of the
crimes of homicide and frustrated homicide, aggravated by the
circumstance of treachery. For the killing of Co too, each of them shall
suffer an indeterminate penalty ranging from twelve (12) years of prision
mayor, as minimum, to twenty (20) years of reclusion temporal, as
maximum, with the accessory penalties set by the law; to indemnify,
jointly and severally, the heirs of Co Too in the sum of P6,000.00, without
subsidiary imprisonment in case of insolvency.
For the shooting of Chua Sam, each of the appellants shall also suffer an
indeterminate penalty of not less than six (6) years of prision correctional,
as the minimum, and not more than twelve (12) years of prision mayor,
as the maximum, with the accessories of the law; and to pay the costs.
And it appearing that the alleged confession of Felix Sarmiento and
Romulo Ranin were obtained through violence the trial court is instructed
to refer the record of the case to the Department of Justice, after reading
of the sentenced to appellants herein, for investigation and such
administrative action against the person found responsible as the facts
may warrant.
Finally, the separate action for damage for the injuries to Chua Sam is
hereby reserved.
12. G.R. No. 202122 January 15, 2014
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
BERNABE PAREJA y CRUZ, Accused-Appellant.
DECISION
LEOANRDO-DE CASTRO, J.:
The accused-appellant Bernabe Pareja y Cruz (Pareja) is appealing the
January 19, 2012 Decision1 of the Court of Appeals in CA-G.R. CR.-H.C.
No. 03794, which affirmed in toto the conviction for Rape and Acts of
Lasciviousness meted out by Branch 113, Regional Trial Court (RTC) of
Pasay City in Criminal Case Nos. 04-1556-CFM and 04-1557-CFM.2
28
Rule 110. CRIMINAL PROCEDURE – FULL TEXT 22 CASES
On May 5, 2004, Pareja was charged with two counts of Rape and one
Attempted Rape. The Informations for the three charges read as follows:
I. For the two counts of Rape:
Criminal Case No. 04-15 5 6-CFM
That on or about and sometime in the month of February, 2004, in Pasay
City, Metro Manila, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, Bernabe Pareja y Cruz,
being the common law spouse of the minor victim’s mother, through
force, threats and intimidation, did then and there willfully, unlawfully and
feloniously commit an act of sexual assault upon the person of [AAA 3], a
minor 13 years of age, by then and there mashing her breast and
inserting his finger inside her vagina against her will.4
Criminal Case No. 04-1557-CFM
That on or about and sometime in the month of December, 2003, in
Pasay City, Metro Manila, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, Bernabe Pareja y Cruz,
being the stepfather of [AAA], a minor 13 years of age, through force,
threats and intimidation, did then and there willfully, unlawfully and
feloniously have carnal knowledge of said minor against her will. 5
II. For the charge of Attempted Rape:
Criminal Case No. 04-1558-CFM
That on or about the 27th day of March, 2004, in Pasay City, Metro
Manila, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, BERNABE PAREJA Y CRUZ, being the common
law spouse of minor victim’s mother by means of force, threats and
intimidation, did then and there willfully, unlawfully and feloniously
commence the commission of the crime of Rape against the person of
minor, [AAA], a13 years old minor by then and there crawling towards her
direction where she was sleeping, putting off her skirt, but did not perform
all the acts of execution which would have produce[d] the crime of rape
for the reason other than his own spontaneous desistance, that is the
timely arrival of minor victim’s mother who confronted the accused, and
which acts of child abuse debased, degraded and demeaned the intrinsic
worth and dignity of said minor complainant as a human being. 6
On June 17, 2004, Pareja, during his arraignment, pleaded not guilty to
the charges filed against him.7 After the completion of the pre-trial
conference on September 16, 2004,8 trial on the merits ensued.
The antecedents of this case, as narrated by the Court of Appeals, are as
follows:
AAA was thirteen (13) years of age when the alleged acts of
lasciviousness and sexual abuse took place on three (3) different dates,
particularly [in December 2003], February 2004, and March 27, 2004.
AAA’s parents separated when she was [only eight years old9]. At the
time of the commission of the aforementioned crimes, AAA was living
with her mother and with herein accused-appellant Bernabe Pareja who,
by then, was cohabiting with her mother, together with three (3) of their
children, aged twelve (12), eleven (11) and nine (9), in x x x, Pasay City.
The first incident took place [i]n December 2003 [the December 2003
incident]. AAA’s mother was not in the house and was with her relatives
in Laguna. Taking advantage of the situation, [Pareja], while AAA was
asleep, placed himself on top of [her]. Then, [Pareja], who was already
naked, begun to undress AAA. [Pareja] then started to suck the breasts
of [AAA]. Not satisfied, [Pareja] likewise inserted his penis into AAA’s
anus. Because of the excruciating pain that she felt, AAA immediately
stood up and rushed outside of their house.
Despite such traumatic experience, AAA never told anyone about the
[December 2003] incident for fear that [Pareja] might kill her. [Pareja]
threatened to kill AAA in the event that she would expose the incident to
anyone.
AAA further narrated that the [December 2003] incident had happened
more than once. According to AAA, in February 2004 [the February 2004
incident], she had again been molested by [Pareja]. Under the same
circumstances as the [December 2003 incident], with her mother not
around while she and her half-siblings were asleep, [Pareja] again laid on
top of her and started to suck her breasts. But this time, [Pareja]
caressed [her] and held her vagina and inserted his finger [i]n it.
With regard to the last incident, on March 27, 2004 [the March 2004
incident], it was AAA’s mother who saw [Pareja] in the act of lifting the
skirt of her daughter AAA while the latter was asleep. Outraged, AAA’s
mother immediately brought AAA to the barangay officers to report the
said incident. AAA then narrated to the barangay officials that she had
been sexually abused by [Pareja] x x x many times x x x.
Subsequently, AAA, together with her mother, proceeded to the Child
Protection Unit of the Philippine General Hospital for a medical and
genital examination. On March 29, 2004, Dr. Tan issued Provisional
Medico-Legal Report Number 2004-03-0091. Her medico-legal report
stated the following conclusion:
Hymen: Tanner Stage 3, hymenal remnant from 5-7 o’clock area, Type of
hymen: Crescentic
xxxx
Genital findings show Clear Evidence of Blunt Force or Penetrating
Trauma.
After the results of the medico-legal report confirmed that AAA was
indeed raped, AAA’s mother then filed a complaint for rape before the
Pasay City Police Station.
To exculpate himself from liability, [Pareja] offered both denial and ill
motive of AAA against him as his defense. He denied raping [AAA] but
admitted that he knew her as she is the daughter of his live-in partner
and that they all stay in the same house.
Contrary to AAA’s allegations, [Pareja] averred that it would have been
impossible that the alleged incidents happened. To justify the same,
[Pareja] described the layout of their house and argued that there was no
way that the alleged sexual abuses could have happened.
According to [Pareja], the house was made of wood, only about four (4)
meters wide by ten (10) meters, and was so small that they all have to sit
to be able to fit inside the house. Further, the vicinity where their house is
located was thickly populated with houses constructed side by side.
Allegedly, AAA also had no choice but to sleep beside her siblings.
All taken into account, [Pareja] asseverated that it was hard to imagine
how he could possibly still go about with his plan without AAA’s siblings
nor their neighbors noticing the same.
Verily, [Pareja] was adamant and claimed innocence as to the
imputations hurled against him by AAA. He contended that AAA filed
these charges against him only as an act of revenge because AAA was
mad at [him] for being the reason behind her parents’ separation. 10
Ruling of the RTC
On January 16, 2009, the RTC acquitted Pareja from the charge of
attempted rape but convicted him of the crimes of rape and acts of
lasciviousness in the December 2003 and February 2004 incidents,
respectively. The dispositive portion of the Decision11 reads as follows:
WHEREFORE, the herein accused Bernabe Pareja y Cruz is hereby
acquitted from the charge of attempted rape in Crim. Case No. 04-1558,
for want of evidence.
In Crim. Case No. 04-1556, the said accused is CONVICTED with Acts of
Lasciviousness and he is meted out the penalty of imprisonment, ranging
from 2 years, 4 months and 1 day as minimum to 4 years and 2 months
of prision [correccional] as maximum.
29
Rule 110. CRIMINAL PROCEDURE – FULL TEXT 22 CASES
In Crim. Case No. 04-1557, the said accused is CONVICTED as charged
with rape, and he is meted the penalty of reclusion perpetua.
The accused shall be credited in full for the period of his preventive
imprisonment.
The accused is ordered to indemnify the offended party [AAA], the sum
of ₱50,000.00, without subsidiary imprisonment, in case of insolvency. 12
The RTC, in convicting Pareja of the crime of Rape and Acts of
Lasciviousness, gave more weight to the prosecution’s evidence as
against Pareja’s baseless denial and imputation of ill motive. However,
due to the failure of the prosecution to present AAA’s mother to testify
about what she had witnessed in March 2004, the RTC had to acquit
Pareja of the crime of Attempted Rape in the March 2004 incident for
lack of evidence. The RTC could not convict Pareja on the basis of AAA’s
testimony for being hearsay evidence as she had no personal knowledge
of what happened on March 27, 2004 because she was sleeping at that
time.
Ruling of the Court of Appeals
Wanting to reverse his two convictions, Pareja appealed13 to the Court of
Appeals, which on January 19, 2012, affirmed in toto the judgment of the
RTC in Criminal Case Nos. 04-1556 and 04-1557, to wit:
WHEREFORE, in view of the foregoing premises, the instant appeal is
hereby DENIED and, consequently, DISMISSED. The appealed
Decisions rendered by Branch 113 of the Regional Trial Court of the
National Capital Judicial Region in Pasay City on January 16, 2009 in
Criminal Cases Nos. 04-1556 to 04-1557 are hereby AFFIRMED in
toto.14
Issues
Aggrieved, Pareja elevated his case to this Court15 and posited before us
the following errors as he did before the Court of Appeals:
I
THE TRIAL COURT SERIOUSLY ERRED IN CONVICTING [PAREJA]
OF THE CRIMES CHARGED NOTWITHSTANDING THAT HIS GUILT
HAS NOT BEEN PROVEN BEYOND REASONABLE DOUBT.
II
THE TRIAL COURT GRAVELY ERRED IN CONVICTING [PAREJA]
BASED SOLELY ON THE PROSECUTION WITNESS’ TESTIMONY.16
In his Supplemental Brief17 Pareja added the following argument:
The private complainant’s actuations after the incident negate the
possibility that she was raped.18
Pareja’s main bone of contention is the reliance of the lower courts on
the testimony of AAA in convicting him for rape and acts of
lasciviousness. Simply put, Pareja is attacking the credibility of AAA for
being inconsistent. Moreover, he claimed, AAA acted as if nothing
happened after the alleged sexual abuse.
Ruling of this Court
This Court finds no reason to reverse Pareja’s conviction.
Core Issue: Credibility of AAA
Pareja claims that AAA’s testimony cannot be the lone basis of his
conviction as it was riddled with inconsistencies.19
We find such argument untenable.
When the issue of credibility of witnesses is presented before this Court,
we follow certain guidelines that have overtime been established in
jurisprudence. In People v. Sanchez,20 we enumerated them as follows:
First, the Court gives the highest respect to the RTC’s evaluation of the
testimony of the witnesses, considering its unique position in directly
observing the demeanor of a witness on the stand. From its vantage
point, the trial court is in the best position to determine the truthfulness of
witnesses.
Second, absent any substantial reason which would justify the reversal of
the RTC’s assessments and conclusions, the reviewing court is generally
bound by the lower court’s findings, particularly when no significant facts
and circumstances, affecting the outcome of the case, are shown to have
been overlooked or disregarded.
And third, the rule is even more stringently applied if the CA concurred
with the RTC. (Citations omitted.)
The recognized rule in this jurisdiction is that the "assessment of the
credibility of witnesses is a domain best left to the trial court judge
because of his unique opportunity to observe their deportment and
demeanor on the witness stand; a vantage point denied appellate courts-
and when his findings have been affirmed by the Court of Appeals, these
are generally binding and conclusive upon this Court." 21 While there are
recognized exceptions to the rule, this Court has found no substantial
reason to overturn the identical conclusions of the trial and appellate
courts on the matter of AAA’s credibility.
Besides, inaccuracies and inconsistencies in a rape victim’s testimony
are generally expected.22 As this Court stated in People v. Saludo23:
Rape is a painful experience which is oftentimes not remembered in
detail. For such an offense is not analogous to a person’s achievement or
accomplishment as to be worth recalling or reliving; rather, it is something
which causes deep psychological wounds and casts a stigma upon the
victim, scarring her psyche for life and which her conscious and
subconscious mind would opt to forget. Thus, a rape victim cannot be
expected to mechanically keep and then give an accurate account of the
traumatic and horrifying experience she had undergone. (Citation
omitted.)
Since human memory is fickle and prone to the stresses of emotions,
accuracy in a testimonial account has never been used as a standard in
testing the credibility of a witness.24 The inconsistencies mentioned by
Pareja are trivial and non-consequential matters that merely caused AAA
confusion when she was being questioned. The inconsistency regarding
the year of the December incident is not even a matter pertaining to
AAA’s ordeal.25 The date and time of the commission of the crime of rape
becomes important only when it creates serious doubt as to the
commission of the rape itself or the sufficiency of the evidence for
purposes of conviction. In other words, the "date of the commission of the
rape becomes relevant only when the accuracy and truthfulness of the
complainant’s narration practically hinge on the date of the commission
of the crime."26 Moreover, the date of the commission of the rape is not
an essential element of the crime.27
In this connection, Pareja repeatedly invokes our ruling in People v.
Ladrillo,28 implying that our rulings therein are applicable to his case.
However, the factual circumstances in Ladrillo are prominently missing in
Pareja’s case. In particular, the main factor for Ladrillo’s acquittal in that
case was because his constitutional right to be informed of the nature
and cause of the accusation against him was violated when the
Information against him only stated that the crime was committed "on or
about the year 1992." We said:
The peculiar designation of time in the Information clearly violates Sec.
11, Rule 110, of the Rules Court which requires that the time of the
commission of the offense must be alleged as near to the actual date as
the information or complaint will permit. More importantly, it runs afoul of
the constitutionally protected right of the accused to be informed of the
nature and cause of the accusation against him. The Information is not
sufficiently explicit and certain as to time to inform accused-appellant of
the date on which the criminal act is alleged to have been committed.
The phrase "on or about the year 1992" encompasses not only the twelve
(12) months of 1992 but includes the years prior and subsequent to
30
Rule 110. CRIMINAL PROCEDURE – FULL TEXT 22 CASES
1992, e.g., 1991 and 1993, for which accused-appellant has to virtually
account for his whereabouts. Hence, the failure of the prosecution to
allege with particularity the date of the commission of the offense and,
worse, its failure to prove during the trial the date of the commission of
the offense as alleged in the Information, deprived accused-appellant of
his right to intelligently prepare for his defense and convincingly refute
the charges against him. At most, accused-appellant could only establish
his place of residence in the year indicated in the Information and not for
the particular time he supposedly committed the rape.
xxxx
Indeed, the failure of the prosecution to prove its allegation in the
Information that accused-appellant raped complainant in 1992 manifestly
shows that the date of the commission of the offense as alleged was
based merely on speculation and conjecture, and a conviction anchored
mainly thereon cannot satisfy the quantum of evidence required for a
pronouncement of guilt, that is, proof beyond reasonable doubt that the
crime was committed on the date and place indicated in the
Information.29 (Citation omitted.)
In this case, although the dates of the December 2003 and February
2004 incidents were not specified, the period of time Pareja had to
account for was fairly short, unlike "on or about the year 1992."
Moreover, Ladrillo was able to prove that he had only moved in the
house where the rape supposedly happened, in 1993, therefore negating
the allegation that he raped the victim in that house in 1992. 30
While it may be true that the inconsistencies in the testimony of the victim
in Ladrillo contributed to his eventual acquittal, this Court said that they
alone were not enough to reverse Ladrillo’s conviction, viz:
Moreover, there are discernible defects in the complaining witness’
testimony that militates heavily against its being accorded the full credit it
was given by the trial court. Considered independently, the defects might
not suffice to overturn the trial court’s judgment of conviction, but
assessed and weighed in its totality, and in relation to the testimonies of
other witnesses, as logic and fairness dictate, they exert a powerful
compulsion towards reversal of the assailed judgment. 31 (Emphasis
supplied.)
It is worthy to note that Ladrillo also offered more than just a mere denial
of the crime charged against him to exculpate him from liability. He also
had an alibi, which, together with the other evidence, produced
reasonable doubt that he committed the crime as charged. In contrast,
Pareja merely denied the accusations against him and even imputed ill
motive on AAA.
As regards Pareja’s concern about AAA’s lone testimony being the basis
of his conviction, this Court has held:
Furthermore, settled is the rule that the testimony of a single witness may
be sufficient to produce a conviction, if the same appears to be
trustworthy and reliable. If credible and convincing, that alone would be
sufficient to convict the accused. No law or rule requires the
corroboration of the testimony of a single witness in a rape
case.32 (Citations omitted.)
Improbability of sexual abuse
in their small house and in the
presence of AAA’s sleeping siblings
Pareja argues that it was improbable for him to have sexually abused
AAA, considering that their house was so small that they had to sleep
beside each other, that in fact, when the alleged incidents happened,
AAA was sleeping beside her younger siblings, who would have noticed
if anything unusual was happening.33
This Court is not convinced. Pareja’s living conditions could have
prevented him from acting out on his beastly desires, but they did not.
This Court has observed that many of the rape cases appealed to us
were not always committed in seclusion. Lust is no respecter of time or
place,34 and rape defies constraints of time and space. In People v.
Sangil, Sr.,35 we expounded on such occurrence in this wise:
In People v. Ignacio, we took judicial notice of the interesting fact that
among poor couples with big families living in small quarters, copulation
does not seem to be a problem despite the presence of other persons
around them. Considering the cramped space and meager room for
privacy, couples perhaps have gotten used to quick and less disturbing
modes of sexual congresses which elude the attention of family
members; otherwise, under the circumstances, it would be almost
impossible to copulate with them around even when asleep. It is also not
impossible nor incredible for the family members to be in deep slumber
and not be awakened while the sexual assault is being committed. One
may also suppose that growing children sleep more soundly than grown-
ups and are not easily awakened by adult exertions and suspirations in
the night. There is no merit in appellant’s contention that there can be no
rape in a room where other people are present. There is no rule that rape
can be committed only in seclusion. We have repeatedly declared that
"lust is no respecter of time and place," and rape can be committed in
even the unlikeliest of places. (Citations omitted.)
Demeanor of AAA
as a rape victim
Pareja asseverates that AAA’s demeanor and conduct belie her claim
that she was raped. He said that "the ordinary Filipina [would have
summoned] every ounce of her strength and courage to thwart any
attempt to besmirch her honor and blemish her purity." Pareja pointed out
that they lived in a thickly populated area such that any commotion inside
their house would have been easily heard by the neighbors, thus, giving
AAA the perfect opportunity to seek their help.36 Moreover, Pareja said,
AAA’s delay in reporting the incidents to her mother or the authorities
negates the possibility that he indeed committed the crimes. AAA’s
belated confession, he claimed, "cannot be dismissed as trivial as it puts
into serious doubt her credibility."37
A person accused of a serious crime such as rape will tend to escape
liability by shifting the blame on the victim for failing to manifest
resistance to sexual abuse. However, this Court has recognized the fact
that no clear-cut behavior can be expected of a person being raped or
has been raped. It is a settled rule that failure of the victim to shout or
seek help do not negate rape. Even lack of resistance will not imply that
the victim has consented to the sexual act, especially when that person
was intimidated into submission by the accused. In cases where the rape
is committed by a relative such as a father, stepfather, uncle, or common
law spouse, moral influence or ascendancy takes the place of
violence.38 In this case, AAA’s lack of resistance was brought about by
her fear that Pareja would make good on his threat to kill her if she ever
spoke of the incident.
AAA’s conduct, i.e., acting like nothing happened, after being sexually
abused by Pareja is also not enough to discredit her. Victims of a crime
as heinous as rape, cannot be expected to act within reason or in
accordance with society’s expectations. It is unreasonable to demand a
standard rational reaction to an irrational experience, especially from a
young victim. One cannot be expected to act as usual in an unfamiliar
situation as it is impossible to predict the workings of a human mind
placed under emotional stress. Moreover, it is wrong to say that there is a
standard reaction or behavior among victims of the crime of rape since
each of them had to cope with different circumstances.39
Likewise, AAA’s delay in reporting the incidents to her mother or the
proper authorities is insignificant and does not affect the veracity of her
charges. It should be remembered that Pareja threatened to kill her if she
told anyone of the incidents. In People v. Ogarte,40 we explained why a
rape victim’s deferral in reporting the crime does not equate to
falsification of the accusation, to wit:
The failure of complainant to disclose her defilement without loss of time
to persons close to her or to report the matter to the authorities does not
perforce warrant the conclusion that she was not sexually molested and
that her charges against the accused are all baseless, untrue and
fabricated. Delay in prosecuting the offense is not an indication of a
fabricated charge. Many victims of rape never complain or file criminal
charges against the rapists. They prefer to bear the ignominy and pain,
rather than reveal their shame to the world or risk the offenders’ making
good their threats to kill or hurt their victims. (Citation omitted.)
Medical examination
not indispensable
31
Rule 110. CRIMINAL PROCEDURE – FULL TEXT 22 CASES
Pareja avers that the Medico-Legal Report indicating that there is
evidence of blunt force or penetrating trauma upon examination of AAA’s
hymen, "cannot be given any significance, as it failed to indicate how and
when the said signs of physical trauma were inflicted." Furthermore,
Pareja said, the findings that AAA’s hymen sustained trauma cannot be
utilized as evidence against him as the alleged sexual abuse that
occurred in December, was not by penetration of the vagina.41
This Court has time and again held that an accused can be convicted of
rape on the basis of the sole testimony of the victim. In People v.
Colorado,42 we said:
[A] medical certificate is not necessary to prove the commission of rape,
as even a medical examination of the victim is not indispensable in a
prosecution for rape. Expert testimony is merely corroborative in
character and not essential to conviction. x x x.
Therefore, the absence of testimony or medical certificate on the state of
AAA’s anus at the time she was examined is of no consequence. On the
contrary, the medical examination actually bolsters AAA’s claim of being
raped by Pareja on more than one occasion, and not just by anal
penetration. However, as the prosecution failed to capitalize on such
evidence and prove the incidence of carnal knowledge, Pareja cannot be
convicted of rape under paragraph 1 of Article 266-A of the Revised
Penal Code.
In People v. Perez,43 this Court aptly held:
This Court has held time and again that testimonies of rape victims who
are young and immature deserve full credence, considering that no
young woman, especially of tender age, would concoct a story of
defloration, allow an examination of her private parts, and thereafter
pervert herself by being subject to a public trial, if she was not motivated
solely by the desire to obtain justice for the wrong committed against her.
Youth and immaturity are generally badges of truth. It is highly
improbable that a girl of tender years, one not yet exposed to the ways of
the world, would impute to any man a crime so serious as rape if what
she claims is not true. (Citations omitted.)
Criminal Case No. 04-1557-CFM:
The December 2003 Incident
In Criminal Case No. 04-1557-CFM or the December 2003 incident,
Pareja was charged and convicted of the crime of rape by sexual assault.
The enactment of Republic Act No. 8353 or the Anti-Rape Law of 1997,
revolutionized the concept of rape with the recognition of sexual violence
on "sex-related" orifices other than a woman’s organ is included in the
crime of rape; and the crime’s expansion to cover gender-free rape. "The
transformation mainly consisted of the reclassification of rape as a crime
against persons and the introduction of rape by ‘sexual assault’ as
differentiated from the traditional ‘rape through carnal knowledge’ or ‘rape
through sexual intercourse.’"44Republic Act No. 8353 amended Article
335, the provision on rape in the Revised Penal Code and incorporated
therein Article 266-A which reads:
Article 266-A. Rape, When and How Committed. – Rape is committed –
1) By a man who shall have carnal knowledge of a woman under any of
the following circumstances:
a) Through force, threat or intimidation;
b) When the offended party is deprived of reason or is otherwise
unconscious,
c) By means of fraudulent machination or grave abuse of authority;
d) When the offended party is under twelve (12) years of age or is
demented, even though none of the circumstances mentioned above be
present;
2) By any person who, under any of the circumstances mentioned in
paragraph 1 hereof, shall commit an act of sexual assault by inserting his
penis into another person’s mouth or anal orifice, or any instrument or
object, into the genital or anal orifice of another person.
Thus, under the new provision, rape can be committed in two ways:
1. Article 266-A paragraph 1 refers to Rape through sexual
intercourse, also known as "organ rape" or "penile rape."45 The
central element in rape through sexual intercourse is carnal
knowledge, which must be proven beyond reasonable doubt.46
2. Article 266-A paragraph 2 refers to rape by sexual assault,
also called "instrument or object rape," or "gender-free rape."47 It
must be attended by any of the circumstances enumerated in
subparagraphs (a) to (d) of paragraph 1.48
In People v. Abulon,49 this Court differentiated the two modes of
committing rape as follows:
(1) In the first mode, the offender is always a man, while in the
second, the offender may be a man or a woman;
(2) In the first mode, the offended party is always a woman,
while in the second, the offended party may be a man or a
woman;
(3) In the first mode, rape is committed through penile
penetration of the vagina, while the second is committed by
inserting the penis into another person’s mouth or anal orifice, or
any instrument or object into the genital or anal orifice of another
person; and
(4) The penalty for rape under the first mode is higher than that
under the second.
Under Article 266-A, paragraph 2 of the Revised Penal Code, as
amended, rape by sexual assault is "by any person who, under any of the
circumstances mentioned in paragraph 1 hereof, shall commit an act of
sexual assault by inserting his penis into another person’s mouth or anal
orifice, or any instrument or object, into the genital or anal orifice of
another person."
AAA positively and consistently stated that Pareja, in December 2003,
inserted his penis into her anus. While she may not have been certain
about the details of the February 2004 incident, she was positive that
Pareja had anal sex with her in December 2003, thus, clearly
establishing the occurrence of rape by sexual assault. In other words, her
testimony on this account was, as the Court of Appeals found, clear,
positive, and probable.50
However, since the charge in the Information for the December 2003
incident is rape through carnal knowledge, Pareja cannot be found guilty
of rape by sexual assault even though it was proven during trial. This is
due to the material differences and substantial distinctions between the
two modes of rape; thus, the first mode is not necessarily included in the
second, and vice-versa. Consequently, to convict Pareja of rape by
sexual assault when what he was charged with was rape through carnal
knowledge, would be to violate his constitutional right to be informed of
the nature and cause of the accusation against him.51
Nevertheless, Pareja may be convicted of the lesser crime of acts of
lasciviousness under the variance doctrine embodied in Section 4, in
relation to Section 5, Rule 120 of the Rules of Criminal Procedure, 52 to
wit:
SEC. 4. Judgment in case of variance between allegation and proof. –
When there is a 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.
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
32
Rule 110. CRIMINAL PROCEDURE – FULL TEXT 22 CASES
ingredients of the former constitute or form part of those constituting the
latter.
Article 336 of the Revised Penal Code provides:
Art. 336. Acts of lasciviousness. — Any person who shall commit any act
of lasciviousness upon other persons of either sex, under any of the
circumstances mentioned in the preceding article, shall be punished by
prisión correccional.
The elements of the above crime are as follows:
(1) That the offender commits any act of lasciviousness or
lewdness;
(2) That it is done under any of the following circumstances:
a. By using force or intimidation; or
b. When the offended party is deprived of reason or
otherwise unconscious; or
c. When the offended party is under 12 years of age;
and
(3) That the offended party is another person of either
sex.53 (Citation omitted.)
Clearly, the above-mentioned elements are present in the December
2003 incident, and were sufficiently established during trial. Thus, even
though the crime charged against Pareja was for rape through carnal
knowledge, he can be convicted of the crime of acts of lasciviousness
without violating any of his constitutional rights because said crime is
included in the crime of rape.54
Nonetheless, the Court takes this case as an opportunity to remind the
State, the People of the Philippines, as represented by the public
prosecutor, to exert more diligence in crafting the Information, which
contains the charge against an accused. The primary duty of a lawyer in
public prosecution is to see that justice is done55 – to the State, that its
penal laws are not broken and order maintained; to the victim, that his or
her rights are vindicated; and to the offender, that he is justly punished
for his crime. A faulty and defective Information, such as that in Criminal
Case No. 04-1556-CFM, does not render full justice to the State, the
offended party, and even the offender. Thus, the public prosecutor
should always see to it that the Information is accurate and appropriate.
Criminal Case No. 04-1556-CFM:
The February 2004 Incident
It is manifest that the RTC carefully weighed all the evidence presented
by the prosecution against Pareja, especially AAA’s testimony. In its
scrutiny, the RTC found AAA’s declaration on the rape in the December
2003 incident credible enough to result in a conviction, albeit this Court
had to modify it as explained above. However, it did not find that the
same level of proof, i.e., beyond reasonable doubt, was fully satisfied by
the prosecution in its charge of attempted rape and a second count of
rape against Pareja. In Criminal Case No. 04-1556-CFM, or the February
2004 incident, the RTC considered AAA’s confusion as to whether or not
she was actually penetrated by Pareja, and eventually resolved the
matter in Pareja’s favor.
This Court agrees with such findings. AAA, in her Sinumpaang
Salaysay,56 stated that aside from sucking her breasts, Pareja also
inserted his finger in her vagina. However, she was not able to give a
clear and convincing account of such insertion during her testimony.
Despite being repeatedly asked by the prosecutor as to what followed
after her breasts were sucked, AAA failed to testify, in open court, that
Pareja also inserted his finger in her vagina. Moreover, later on, she
added that Pareja inserted his penis in her vagina during that incident.
Thus, because of the material omissions and inconsistencies, Pareja
cannot be convicted of rape in the February 2004 incident. Nonetheless,
Pareja’s acts of placing himself on top of AAA and sucking her breasts,
fall under the crime of acts of lasciviousness, which, as we have
discussed above, is included in the crime of rape.
Verily, AAA was again positive and consistent in her account of how
Pareja sucked both her breasts in the February 2004 incident. Thus,
Pareja was correctly convicted by the courts a quo of the crime of acts of
lasciviousness.
Defense of Denial
and Improper Motive
Pareja sought to escape liability by denying the charges against him,
coupled with the attribution of ill motive against AAA. He claims that AAA
filed these cases against him because she was angry that he caused her
parents’ separation. Pareja added that these cases were initiated by
AAA’s father, as revenge against him.57
Such contention is untenable. "AAA’s credibility cannot be diminished or
tainted by such imputation of ill motives.1âwphi1 It is highly unthinkable
for the victim to falsely accuse her father solely by reason of ill motives or
grudge."58Furthermore, motives such as resentment, hatred or revenge
have never swayed this Court from giving full credence to the testimony
of a minor rape victim.59 In People v. Manuel,60 we held:
Evidently, no woman, least of all a child, would concoct a story of
defloration, allow examination of her private parts and subject herself to
public trial or ridicule if she has not, in truth, been a victim of rape and
impelled to seek justice for the wrong done to her being. It is settled
jurisprudence that testimonies of child-victims are given full weight and
credit, since when a woman or a girl-child says that she has been raped,
she says in effect all that is necessary to show that rape was indeed
committed.
Liability for Acts of Lasciviousness
The penalty for acts of lasciviousness under Article 336 of the Revised
Penal Code is prisión correccional in its full range. Applying the
Indeterminate Sentence Law,61 the minimum of the indeterminate penalty
shall be taken from the full range of the penalty next lower in
degree,62 i.e., arresto mayor, which ranges from 1 month and 1 day to 6
months.63 The maximum of the indeterminate penalty shall come from
the proper penalty64 that could be imposed under the Revised Penal
Code for Acts of Lasciviousness,65 which, in this case, absent any
aggravating or mitigating circumstance, is the medium period of prisión
correccional, ranging from 2 years, 4 months and 1 day to 4 years and 2
months.66
In line with prevailing jurisprudence, the Court modifies the award of
damages as follows: ₱20,000.00 as civil indemnity;67 ₱30,000.00 as
moral damages; and ₱10,000.00 as exemplary damages,68 for each
count of acts of lasciviousness. All amounts shall bear legal interest at
the rate of 6% per annum from the date of finality of this judgment.
WHEREFORE, premises considered, the Decision of the Court of
Appeals in CA-G.R. CR.-H.C. No. 03794 is hereby AFFIRMED with
MODIFICATION. We find accused-appellant Bernabe Pareja y Cruz
GUILTY of two counts of Acts of Lasciviousness, defined and penalized
under Article 336 of the Revised Penal Code, as amended. He is
sentenced to two (2) indeterminate prison terms of 6 months of arresto
mayor, as minimum, to 4 years and 2 months of prisi6n correccional, as
maximum; and is ORDERED to pay the victim, AAA, ₱20,000.00 as civil
indemnity, ₱30,000.00 as moral damages, and ₱10,000.00 as exemplary
damages, for each count of acts of lasciviousness, all with interest at the
rate of 6% per annum from the date of finality of this judgment.
SO ORDERED.
13. G.R. No. 103102 March 6, 1992
CLAUDIO J. TEEHANKEE, JR., petitioner,
vs.
HON. JOB B. MADAYAG and PEOPLE OF THE
PHILIPPINES, respondents.
33
Rule 110. CRIMINAL PROCEDURE – FULL TEXT 22 CASES
Criminal Procedure; Information; Amendment and substitution,
distinguished.—It may accordingly be posited that both amendment and
substitution of the information may be made before or after the defendant
pleads, but they differ in the following respects: 1. Amendment may
involve either formal or substantial changes, while substitution
necessarily involves a substantial change from the original charge; 2.
Amendment before plea has been entered can be effected without leave
of court, but substitution of information must be with leave of court as the
original information has to be dismissed; 3. Where the amendment is only
as to form, there is no need for another preliminary investigation and the
retaking of the plea of the accused; in substitution of information, another
preliminary investigation is entailed and the accused has to plead anew
to the new information; and An amended information refers to the same
offense charged in the original information or to an offense which
necessarily includes or is necessarily included in the original charge,
hence substantial amendments to the information after the plea has been
taken cannot be made over the objection of the accused, for if the
original information would be withdrawn, the accused could invoke
double jeopardy. On the other hand, substitution requires or presupposes
that the new information involves a different offense which does not
include or is not necessarily included in the original charge, hence the
accused cannot claim double jeopardy.
Same; Same; Identity of offenses charged in original and amended
information.—Going now to the case at bar, it is evident that frustrated
murder is but a stage in the execution of the crime of murder, hence the
former is necessarily included in the latter. It is indispensable that the
essential element of intent to kill, as well as qualifying circumstances
such as treachery or evident premeditation, be alleged in both an
information for frustrated murder and for murder, thereby meaning and
proving that the same material allegations are essential to the sufficiency
of the informations filed for both. This is because, except for the death of
the victim, the essential elements of consummated murder likewise
constitute the essential ingredients to convict herein petitioner for the
offense of frustrated murder. In the present case, therefore, there is an
identity of offenses charged in both the original and the amended
information. What is involved here is not a variance in the nature of
different offenses charged, but only a change in the stage of execution of
the same offense from frustrated to consummated murder. This being the
case, we hold that an amendment of the original information will suffice
and, consequent thereto, the filing of the amended information for murder
is proper.
Same; Same; Substantial and formal amendments.—A substantial
amendment consists of the recital of facts constituting the offense
charged and determinative of the jurisdiction of the court. All other
matters are merely of form. Thus, the following have been held to be
merely formal amendments, viz.: (1) new allegations which relate only to
the range of the penalty that the court might impose in the event of
conviction; (2) an amendment which does not charge another offense
different or distinct from that charged in the original one; (3) additional
allegations which do not alter the prosecution’s theory of the case so as
to cause surprise to the accused and affect the form of defense he has or
will assume; and (4) an amendment which does not adversely affect any
substantial right of the accused, such as his right to invoke prescription.
Same; Same; Nature of offense originally charged not changed in
amended information.—An objective appraisal of the amended
information for murder filed against herein petitioner will readily show that
the nature of the offense originally charged was not actually changed.
Instead, an additional allegation, that is, the supervening fact of the death
of the victim was merely supplied to aid the trial court in determining the
proper penalty for the crime. That the accused committed a felonious act
with intent to kill the victim continues to be the prosecution’s theory.
There is no question that whatever defense herein petitioner may adduce
under the original information for frustrated murder equally applies to the
amended information for murder. Under the circumstances thus
obtaining, it is irremissible that the amended information for murder is, at
most, an amendment as to form which is allowed even during the trial of
the case. Teehankee, Jr. vs. Madayag, 207 SCRA 134, G.R. No. 103102
March 6, 1992
REGALADO, J.:
In this special civil action for certiorari, prohibition and mandamus,
petitioner principally seeks: (1) to nullify the order 1 of respondent judge
admitting the amended information for murder filed in Criminal Case No.
91-4606; (2) to nullify the arraignment and the plea of not guilty entered
by order of respondent judge when petitioner refused to be arraigned on
the amended information for lack of preliminary investigation therefor; (3)
to nullify the appointment of a counsel de oficio/PAO lawyer to represent
petitioner; (4) to prohibit respondent judge from "over-speedy and
preferential scheduling of the trial of the aforementioned criminal case;"
and (5) to compel respondent judge to order preliminary investigation of
the crime charged in the amended information.
Petitioner was originally charged on July 19, 1991 in an information 2 for
the crime of frustrated murder allegedly committed as follows:
That on or about the 13th day of July 1991, in the
Municipality of Makati, Metro Manila, Philippines, and
within the jurisdiction of this Honorable Court, the
above-named accused, while armed with a handgun,
with intent to kill, treachery and evident premeditation,
did then and there willfully, unlawfully, and feloniously
attack, assault and shoot one Maureen Navarro
Hultman on the head, thereby inflicting gunshot
wounds, which ordinarily would have caused the death
of said Maureen Navarro Hultman, thereby performing
all the acts of execution which would have produced
the crime of Murder as a consequence, but
nevertheless did not produce it by reason of cause or
causes independent of her will, that is, due to the
timely and able medical assistance rendered to said
Maureen Navarro Hultman which prevented her death.
After the prosecution had rested its case, petitioner was allowed to file a
motion for leave to file a demurrer to evidence. However, before the said
motion could be filed, Maureen Navarro Hultman died.
Consequently, private prosecutor Rogelio A. Vinluan filed an omnibus
motion 3 for leave of court to file an amended information and to admit
said amended information. The amended information, 4 filed on October
31, 1991, reads:
That on or about the 13th day of July, 1991, in the
Municipality of Makati, Metro Manila, Philippines and
within the jurisdiction of this Honorable Court, the said
Claudio Teehankee, Jr. y. Javier, armed with a
handgun, with intent to kill and evident premeditation
and by means of treachery, did then and there willfully,
unlawfully and feloniously attack, assault and
shoot with the said handgun Maureen Navarro
Hultman who was hit in the head, thereby inflicting
mortal wounds which directly caused the death of said
Maureen Hultman.
Petitioner filed an opposition 5 thereto, as well as a rejoinder 6 to the
reply 7 of the prosecution. On November 13, 1991, the trial court issued
the questioned order admitting the amended information.
At the scheduled arraignment on November 26, 1991, petitioner refused
to be arraigned on the amended information for lack of a preliminary
investigation thereon. By reason of such refusal, respondent judge
ordered that a plea of "not guilty" be entered for petitioner.
Thereafter, respondent judge ordered the prosecution to present its
evidence. When petitioner's counsel manifested that he would not take
part in the proceedings because of the legal issue raised, the trial court
appointed a counsel de oficio to represent herein petitioner.
Petitioner now raises the following issues before us:
(a) Whether or not an amended information involving a
substantial amendment, without preliminary
investigation, after the prosecution has rested on the
original information, may legally and validly be
admitted;
(b) Whether or not a counsel de oficio may legally and
validly be appointed to represent an accused who is
represented by counsel of choice who refuses to
participate in the proceedings because of a perceived
34
Rule 110. CRIMINAL PROCEDURE – FULL TEXT 22 CASES
denial of due process and after a plea for appellate
remedies within a short period is denied by the trial
court; and
(c) Whether or not a particular criminal case may
legally and validly be rushed and preferentially
scheduled for trial over and at the expense and
sacrifice of other, specially older, criminal cases. 8
In our resolution of January 14, 1992, we required the Solicitor General
to file a comment to the basic petition. It appearing from a further review
of the record that the operative facts and determinant issues involved in
this case are sufficiently presented in the petition and the annexes
thereto, both in regard to the respective positions of petitioner and
respondents, the Court has decided to dispense with the aforesaid
comment to obviate needless delay in fairness to petitioner.
I. Petitioner avers that the additional allegation in the amended
information, as herein underscored, that the accused ". . . did then and
there willfully, unlawfully and feloniously attack, assault and shoot with
the said handgun Maureen Navarro Hultman who was hit in the head,
thereby inflicting mortal wounds which directly caused the death of said
Maureen Hultman . . ." constitutes a substantial amendment since it
involves a change in the nature of the offense charged, that is, from
frustrated to consummated murder. Petitioner further submits that
"(t)here is a need then to establish that the same mortal wounds, which
were initially frustrated (sic) by timely and able medical assistance,
ultimately caused the death of the victim, because it could have been
caused by a supervening act or fact which is not imputable to the
offender." 9 From this, he argues that there being a substantial
amendment, the same may no longer be allowed after arraignment and
during the trial.
Corollary thereto, petitioner then postulates that since the amended
information for murder charges an entirely different offense, involving as
it does a new fact, that is, the fact of death whose cause has to be
established, it is essential that another preliminary investigation on the
new charge be conducted before the new information can be admitted.
We find no merit in the petition. There are sufficient legal and
jurisprudential moorings for the orders of the trial court.
Section 14, Rule 110 of the 1985 Rules on Criminal Procedure provides:
Sec. 14. Amendment. — The information or complaint
may be amended, in substance or form, without leave
of court, at any time before the accused pleads; and
thereafter and during the trial as to all matters of form,
by leave and at the discretion of the court, when the
same can be done without prejudice to the rights of the
accused.
If it appears at any time before judgment that a mistake
has been made in charging the proper offense, the
court shall dismiss the original complaint or information
upon the filing of a new one charging the proper
offense in accordance with Rule 119, Section
11, provided the accused would not be placed thereby
in double jeopardy and may also require the witnesses
to give bail for their appearance at the trial.
The first paragraph provides the rules for amendment of the information
or complaint, while the second paragraph refers to the substitution of the
information or complaint.
It may accordingly be posited that both amendment and substitution of
the information may be made before or after the defendant pleaded, but
they differ in the following respects:
1. Amendment may involve either formal or substantial changes, while
substitution necessarily involves a substantial change from the original
charge;
2. Amendment before plea has been entered can be effected without
leave of court, but substitution of information must be with leave of court
as the original information has to be dismissed;
3. Where the amendment is only as to form, there is no need for another
preliminary investigation and the retaking of the plea of the accused; in
substitution of information, another preliminary investigation is entailed
and the accused has to plead anew to the new information; and
4. An amended information refers to the same offense charged in the
original information or to an offense which necessarily includes or is
necessarily included in the original charge, hence substantial
amendments to the information after the plea has been taken cannot be
made over the objection of the accused, for if the original information
would be withdrawn, the accused could invoke double jeopardy. On the
other hand, substitution requires or presupposes that the new information
involves a different offense which does not include or is not necessarily
included in the original charge, hence the accused cannot claim double
jeopardy.
In determining, therefore, whether there should be an amendment under
the first paragraph of Section 14, Rule 110, or a substitution of
information under the second paragraph thereof, the rule is that where
the second information involves the same offense, or an offense which
necessarily includes or is necessarily included in the first information, and
amendment of the information is sufficient; otherwise, where the new
information charges an offense which is distinct and different from that
initially charged, a substitution is in order.
There is identity between the two offenses when the evidence to support
a conviction for one offense would be sufficient to warrant a conviction for
the other, or when the second offense is exactly the same as the first, or
when the second offense is an attempt to commit or a frustration of, or
when it necessarily includes or is necessarily included in, the offense
charged in the first information. In this connection, an offense may be
said to necessarily include another when some of the essential elements
or ingredients of the former, as this is alleged in the information,
constitute the latter. And, vice-versa, an offense may be said to be
necessarily included in another when the essential ingredients of the
former constitute or form a part of those constituting the latter. 10
Going now to the case at bar, it is evident that frustrated murder is but a
stage in the execution of the crime of murder, hence the former is
necessarily included in the latter. It is indispensable that the essential
element of intent to kill, as well as qualifying circumstances such as
treachery or evident premeditation, be alleged in both an information for
frustrated murder and for murder, thereby meaning and proving that the
same material allegations are essential to the sufficiency of the
informations filed for both. This is because, except for the death of the
victim, the essential elements of consummated murder likewise constitute
the essential ingredients to convict herein petitioner for the offense of
frustrated murder.
In the present case, therefore, there is an identity of offenses charged in
both the original and the amended information. What is involved here is
not a variance in the nature of different offenses charged, but only a
change in the stage of execution of the same offense from frustrated to
consummated murder. This is being the case, we hold that an
amendment of the original information will suffice and, consequent
thereto, the filing of the amended information for murder is proper.
Petitioner would insist, however, that the additional allegation on the fact
of death of the victim Maureen Navarro Hultman constitutes a substantial
amendment which may no longer be allowed after a plea has been
entered. The proposition is erroneous and untenable.
As earlier indicated, Section 14 of Rule 110 provides that an amendment,
either of form or substance, may be made at any time before the accused
enters a plea to the charge and, thereafter, as to all matters of form with
leave of court.
A substantial amendment consists of the recital of facts constituting the
offense charged and determinative of the jurisdiction of the court. All
other matters are merely of form. 11 Thus, the following have been held to
be merely formal amendments, viz: (1) new allegations which relate only
to the range of the penalty that the court might impose in the event of
conviction; 12 (2) an amendment which does not charge another offense
different or distinct from that charged in the original one; 13 (3) additional
allegations which do not alter the prosecution's theory of the case so as
to cause surprise to the accused and affect the form of defense he has or
35
Rule 110. CRIMINAL PROCEDURE – FULL TEXT 22 CASES
will assume; and (4) an amendment which does not adversely affect any
substantial right of the accused, such as his right to invoke
prescription. 14
We repeat that after arraignment and during the trial, amendments are
allowed, but only as to matters of form andprovided that no prejudice is
caused to the rights of the accused. 15 The test of whether an
amendment is only of form and an accused is not prejudiced by such
amendment has been said to be whether or not a defense under the
information as it originally stood would be equally available after the
amendment is made, and whether or not any evidence the accused
might have would be equally applicable to the information in the one form
as in the other; if the answer is in the affirmative, the amendment is one
of form and not of substance. 16
Now, an objective appraisal of the amended information for murder filed
against herein petitioner will readily show that the nature of the offense
originally charged was not actually changed. Instead, an additional
allegation, that is, the supervening fact of the death of the victim was
merely supplied to aid the trial court in determining the proper penalty for
the crime. That the accused committed a felonious act with intent to kill
the victim continues to be the prosecution's theory. There is no question
that whatever defense herein petitioner may adduce under the original
information for frustrated murder equally applies to the amended
information for murder. Under the circumstances thus obtaining, it is
irremissible that the amended information for murder is, at most, an
amendment as to form which is allowed even during the trial of the case.
It consequently follows that since only a formal amendment was involved
and introduced in the second information, a preliminary investigation is
unnecessary and cannot be demanded by the accused. The filing of the
amended information without the requisite preliminary investigation does
not violate petitioner's right to be secured against hasty, malicious and
oppressive prosecutions, and to be protected from an open and public
accusation of a crime, as well as from the trouble, expenses and anxiety
of a public trial. The amended information could not conceivably have
come as a surprise to petitioner for the simple and obvious reason that it
charges essentially the same offense as that charged under the original
information. Furthermore, as we have heretofore held, if the crime
originally charged is related to the amended charge such that an inquiry
into one would elicit substantially the same facts that an inquiry into the
other would reveal, a new preliminary investigation is not necessary. 17
We find nothing irregular in the appointment by the trial court of a
counsel de oficio for herein petitioner whose counsel of record refused to
participate in the proceedings because of an alleged legal issue. Such
issue having been demonstrated herein as baseless, we apprehend his
refusal to participate in the trial as causative of or contributive to the
delay in the disposition of the case. And, finally, for as long as the
substantial rights of herein petitioner and other persons charged in court
are not prejudiced, the scheduling of cases should be left to the sound
discretion of the trial court.
WHEREFORE, it being clearly apparent that respondent judge did not
commit the errors speciously attributed to him, the extraordinary writs
prayed for are hereby DENIED and the instant petition is DISMISSED for
lack of merit.
SO ORDERED.
14. [G.R. No. 134744. January 16, 2001]
GIAN PAULO VILLAFLOR, petitioner, vs. DINDO
VIVAR y GOZON, respondent.
Criminal Procedure; Preliminary Investigation; Due Process; A component
part of due process in criminal justice, preliminary investigation is
a statutory and substantive right accorded to the accused before
trial, and to deny their claim to a preliminary investigation would
be to deprive them of the full measure of their right to due
process.—Preliminary investigation is “an inquiry or proceeding
to determine whether there is sufficient ground to engender a well-
founded belief that a crime has been committed and the
respondent is probably guilty thereof, and should be held for
trial.” A component part of due process in criminal justice,
preliminary investigation is a statutory and substantive right
accorded to the accused before trial. To deny their claim to a
preliminary investigation would be to deprive them of the full
measure of their right to due process.
Same; Same; The absence of a preliminary investigation does not impair the
validity of the information or otherwise render it defective, and
the trial court, instead of dismissing the information, should hold
in abeyance the proceedings and order the public prosecutor to
conduct a preliminary investigation.—The absence of a
preliminary investigation does not impair the validity of the
information or otherwise render it defective. Neither does it affect
the jurisdiction of the court or constitute a ground for quashing
the information. The trial court, instead of dismissing the
information, should hold in abeyance the proceedings and order
the public prosecutor to conduct a preliminary investigation.
Same; Same; Informations; Amendment of Information; Even if the
Information is amended to charge serious physical injuries instead
of the earlier charge for slight physical injuries, the accused
cannot demand a new preliminary investigation relative to the
serious physical injuries where he already had one in relation to
the charge for slight physical injuries since the change made is
only a formal amendment.—We do not agree that a preliminary
investigation was not conducted. In fact, a preliminary
investigation for slight physical injuries was made by the assistant
city prosecutor of Muntinlupa City. The said Information was,
however, amended when petitioner’s injuries turned out to be
more serious and did not heal within the period specified in the
Revised Penal Code. We believe that a new preliminary
investigation cannot be demanded by respondent. This is because
the change made by the public prosecutor was only a formal
amendment.
Same; Same; Same; Same.—The following have been held to be merely
formal amendments, viz.: (1) new allegations that relate only to the
range of the penalty that the court might impose in the event of
conviction; (2) an amendment that does not charge another offense
different or distinct from that charged in the original one; (3)
additional allegations that do not alter the prosecution’s theory of
the case so as to cause surprise to the accused and affect the form
of defense to be assumed; and (4) an amendment that does not
adversely affect any substantial right of the accused, such as the
right to invoke prescription.
Same; Same; Same; Same; An amended Information charging serious
physical injuries instead of the original charge of slight physical
injuries could not come as a surprise to the accused for the simple
and obvious reason that it charged essentially the same offense as
that under the original Information.—The filing of the Amended
Information, without a new preliminary investigation, did not
violate the right of respondent to be protected from a hasty,
malicious and oppressive prosecution; an open and public
accusation of a crime; or from the trouble, the expenses and the
anxiety of a public trial. The Amended Information could not have
come as a surprise to him for the simple and obvious reason that it
charged essentially the same offense as that under the original
Information. Moreover, if the original charge was related to the
amended one, such that an inquiry would elicit substantially the
same facts, then a new preliminary investigation was not
necessary.
Same; Same; Courts; Jurisdiction; Motion to Quash; Absence of a
preliminary investigation does not affect the jurisdiction of the
court over the case or constitute a ground for quashing the
information.—As previously stated, the absence of a preliminary
investigation does not impair the validity of the information or
otherwise render it defective. Neither does it affect the jurisdiction
of the court over the case or constitute a ground for quashing the
information.
Same; Motion to Quash; Failure of the accused to assert any ground for a
motion to quash before arraignment, either because he had not
filed the motion or had failed to allege the grounds therefor, shall
be deemed a waiver of such grounds.—We stress that the failure of
36
Rule 110. CRIMINAL PROCEDURE – FULL TEXT 22 CASES
the accused to assert any ground for a motion to quash before
arraignment, either because he had not filed the motion or had
failed to allege the grounds therefor, shall be deemed a waiver of
such grounds. In this case, he waived his right to file such motion
when he pleaded not guilty to the charge of grave threats. Villaflor
vs. Vivar, 349 SCRA 194, G.R. No. 134744 January 16, 2001
DECISION
PANGANIBAN, J.:
The absence of a preliminary investigation does not impair the validity of
an information or render it defective. Neither does it affect the jurisdiction of the
court or constitute a ground for quashing the information. Instead of dismissing
the information, the court should hold the proceedings in abeyance and order the
public prosecutor to conduct a preliminary investigation.
The Case
Before us is a Petition for Review under Rule 45 of the Rules of Court,
seeking to set aside the Orders issued by the Regional Trial Court (RTC) of
Muntinlupa City (Branch 276) in Civil Case No. 97-134.[1] Dated January 20,
1998,[2] the first Order granted the Motion to Quash the Informations and
ordered the dismissal of the two criminal cases. The second Order dated July 6,
1998, denied the Motion for Reconsideration.
The Facts
Culled from the records and the pleadings of the parties are the following
undisputed facts.
An Information[3] for slight physical injuries, docketed as Criminal Case
No. 23365, was filed against Respondent Dindo Vivar on February 7, 1997. The
case stemmed from the alleged mauling of Petitioner Gian Paulo Villaflor by
respondent around 1:00 a.m. on January 27, 1997 outside the Fat Tuesday Bar at
the Ayala Alabang Town Center, Muntinlupa City. After the severe beating he
took from respondent, petitioner decided to leave the premises together with a
friend who was in the restroom when the mauling incident took place. On his
way out, petitioner again met respondent who told him, Sa susunod gagamitin ko
na itong baril ko[4] (Next time, I will use my gun on you).
When the injuries sustained by petitioner turned out to be more serious
than they had appeared at first, an Information[5] for serious physical injuries,
docketed as Criminal Case No. 23787, was filed against respondent. [6] The
earlier charge of slight physical injuries was withdrawn.
At the same time, another Information[7] for grave threats, docketed as
Criminal Case No. 23728,[8] was filed against respondent on March 17, 1997.
On April 14, 1997, respondent posted a cash bond of P6,000 in Criminal
Case No. 23787 (for serious physical injuries).[9] Instead of filing a counter-
affidavit as required by the trial court, he filed on April 21, 1997, a Motion to
Quash the Information in Criminal Case No. 23728 (for grave threats). He
contended that the threat, having been made in connection with the charge of
serious physical injuries, should have been absorbed by the latter. Thus, he
concluded, Criminal Case No. 23728 should be dismissed, as the trial court did
not acquire jurisdiction over it.[10]
In an Order dated April 28, 1997 in Criminal Case No. 23728, the
Metropolitan Trial Court (MTC) denied the Motion to Quash, as follows:
For consideration is a motion to quash filed by accused counsel. Considering
that jurisdiction is conferred by law and the case filed is grave threats which is
within the jurisdiction of this Court and considering further that a motion to
quash is a prohibited [pleading] under the rule on summary procedure, the
motion to quash filed by accused counsel is DENIED.
WHEREFORE, the motion to quash filed by accused counsel is hereby DENIED
and let the arraignment of the accused be set on June 25, 1997 at 2:00 oclock in
the afternoon.[11]
The Motion for Reconsideration filed by respondent was denied by the
MTC on June 17, 1997.[12] Thus, he was duly arraigned in Criminal Case No.
23728 (for grave threats), and he pleaded not guilty.
On July 18, 1997, respondent filed a Petition for Certiorari with the RTC
of Muntinlupa City. This was docketed as Civil Case No. 97-134. On January
20, 1998, after the parties submitted their respective Memoranda, the RTC
issued the assailed Order which reads as follows:
The Judicial Officer appears to have acted with grave abuse of discretion
amounting to lack of jurisdiction in declaring and denying the MOTION TO
QUASH as a prohibitive motion. The same should have been treated and [should
have] proceeded under the regular rules of procedure. The MOTION TO
QUASH THE INFORMATIONS filed without preliminary investigation is
therefore granted and these cases should have been dismissed.
Let this Petition be returned to the Metropolitan Trial Court, Branch 80-
Muntinlupa City for appropriate action.[13]
The RTC, in an Order dated July 6, 1998, denied the unopposed Motion
for Reconsideration, as follows:
Submitted for resolution is the unopposed Motion for Reconsideration filed by
Private Respondent.
This Court agrees with the contention of private respondent that the Motion to
Quash filed by petitioner in the inferior court is a prohibited pleading under
Rules on Summary Procedure so that its denial is tenable. However, it would
appear that the criminal charges were filed without the preliminary investigation
having been conducted by the Prosecutors Office. Although preliminary
investigation in cases triable by inferior courts is not a matter of right, the
provision of Sec. 51 par 3(a) of Republic Act 7926 entitled An Act Converting
the Municipality of Muntinlupa Into a Highly Urbanized City To Be Known as
the City of Muntinlupa provides that the city prosecutor shall conduct
preliminary investigations of ALL crimes, even violations of city
ordinances. This Act amended the Rules on Criminal Procedure. Since this
procedure was not taken against accused, the Order dated January 20, 1998
stands.
The Motion for Reconsideration is therefore denied.[14]
Hence, this Petition.[15]
The Issues
Petitioner submits the following issues for our consideration:[16]
I
Can the court motu propio order the dismissal of the two (2) criminal cases
for serious physical injuries and grave threats on the ground that the public
prosecutor failed to conduct a preliminary investigation?
II
Should the failure of the public prosecutor to conduct a preliminary
investigation be considered a ground to quash the criminal informations
for serious physical injuries and grave threats filed against the accused-
respondent?
III
Should respondents entry of plea in the [grave] threats case and posting of
cash bond in the serious physical injuries case be considered a waiver of
his right, if any, to preliminary investigation?
The Courts Ruling
The Petition is meritorious.
First Issue: Lack of Preliminary Investigation
Preliminary investigation is an inquiry or proceeding to determine whether
there is sufficient ground to engender a well-founded belief that a crime has been
committed and the respondent is probably guilty thereof, and should be held for
trial.[17] A component part of due process in criminal justice, preliminary
investigation is a statutory and substantive right accorded to the accused before
trial. To deny their claim to a preliminary investigation would be to deprive them
of the full measure of their right to due process.[18]
37
Rule 110. CRIMINAL PROCEDURE – FULL TEXT 22 CASES
However, the absence of a preliminary investigation does not impair the
validity of the information or otherwise render it defective.[19] Neither does it
affect the jurisdiction of the court or constitute a ground for quashing the
information.[20] The trial court, instead of dismissing the information, should
hold in abeyance the proceedings and order the public prosecutor to conduct a
preliminary investigation.[21]
Hence, the RTC in this case erred when it dismissed the two criminal cases
for serious physical injuries (Criminal Case No. 23787) and grave threats
(Criminal Case No. 23728) on the ground that the public prosecutor had failed to
conduct a preliminary investigation.
Furthermore, we do not agree that a preliminary investigation was not
conducted. In fact, a preliminary investigation for slight physical injuries was
made by the assistant city prosecutor of Muntinlupa City. The said Information
was, however, amended when petitioners injuries turned out to be more serious
and did not heal within the period specified in the Revised Penal Code.
We believe that a new preliminary investigation cannot be demanded by
respondent. This is because the change made by the public prosecutor was only a
formal amendment.[22]
The filing of the Amended Information, without a new preliminary
investigation, did not violate the right of respondent to be protected from a hasty,
malicious and oppressive prosecution; an open and public accusation of a crime;
or from the trouble, the expenses and the anxiety of a public trial. The Amended
Information could not have come as a surprise to him for the simple and obvious
reason that it charged essentially the same offense as that under the original
Information. Moreover, if the original charge was related to the amended one,
such that an inquiry would elicit substantially the same facts, then a new
preliminary investigation was not necessary.[23]
Second Issue: Motion to Quash
As previously stated, the absence of a preliminary investigation does not
impair the validity of the information or otherwise render it defective. Neither
does it affect the jurisdiction of the court over the case or constitute a ground
for quashing the information.[24]
Section 3, Rule 117 of the Revised Rules of Criminal Procedure, provides
the grounds on which an accused can move to quash the complaint or
information. These are: (a) the facts charged do not constitute an offense; (b) the
court trying the case has no jurisdiction over the offense charged (c) the court
trying the case has no jurisdiction over the person of the accused; (d) the officer
who filed the information had no authority to do so; (e) the information does not
conform substantially to the prescribed form; (f) more than one offense is
charged, except in those cases in which existing laws prescribe a single
punishment for various offenses; (g) the criminal action or liability has been
extinguished; (h) the information contains averments which, if true, would
constitute a legal excuse or justification; and (i) the accused has been previously
convicted or is in jeopardy of being convicted or acquitted of the offense
charged.[25]
Nowhere in the above-mentioned section is there any mention of a lack of
a preliminary investigation as a ground for a motion to quash. Moreover, such
motion is a prohibited pleading under Section 19 of the Revised Rules on
Summary Procedure. In the present case, the RTC therefore erred in granting
herein respondents Motion to Quash
Furthermore, we stress that the failure of the accused to assert any ground
for a motion to quash before arraignment, either because he had not filed the
motion or had failed to allege the grounds therefor, shall be deemed a waiver of
such grounds.[26] In this case, he waived his right to file such motion when he
pleaded not guilty to the charge of grave threats.
In view of the foregoing, we find no more need to resolve the other points
raised by petitioner.
WHEREFORE, the Petition is GRANTED, and the assailed Orders of the
Regional Trail Court of Muntinlupa City are REVERSED. No costs.
SO ORDERED.
15. G.R. No. L-62737 June 29, 1983
THE PEOPLE OF THE PHILIPPINES and CELSO M. GIMENEZ, Acting
City Fiscal of Mandaue City, petitioners,
vs.
JOAQUIN BORROMEO and HONORABLE TEMISTOCLES BOHOLST,
JR., City Judge of Mandaue City, respondents.
Criminal Procedure; An amendment to the information to change
the date of the commission of the offense is a mere formal
amendment and may be made even after the accused has pleaded
guilty.—As opined by the Solicitor General in his comment dated
May 9, 1982, the change of the date of the commission of the crime
from June 24, 1981 to August 28, 1981 is more formal than
substantial and would not prejudice the rights of the accused, as
the said proposed amendment would not alter the nature of the
offense of grave coercion (Arevalo vs. Nepomuceno, 63 Phil. 627). In
said Arevalo case, the amendment which was allowed was the
allegation in the information that B carried the revolver and C, the
knife, instead of C carrying the revolver and B, the knife.
Same; Same.—The difference in the dates is only about two (2)
months and five (5) days, which disparity is amply comprehended
within the allegation that the crime was committed “on or about.”
Nor will the amendment or correction cause any surprise on the
accused, who has been furnished the affidavits of prosecution
witnesses, all of which uniformly state that the date of the
commission was August 28, 1981.
Same; It is not necessary for the information to state the precise
time of the commission of the crime.—Section 10 of Rule 110 of the
Rules of Court states that “it is not necessary to state in the
complaint or information the precise time at which the offense was
committed except when time is a material ingredient of the offense,
but the act may be alleged to have been committed at any time as
near to the actual date at which date the offense was committed as
the information or complaint will permit.”
Same; Same.—The phrase “on or about” employed in the
information does not require the prosecution “to prove any precise
date but may prove any date which is not so remote as to surprise
and prejudice the defendant. In case of surprise, the Court may
allow an amendment of the information as to time and an
adjournment to the accused, if necessary, to meet the amendment”
(U.S. vs. Dichao, 27 Phil. 420, 423 [1914]).
Same; Same.—In the case of People vs. Reyes, supra, on which the
respondent Judge relies, the change sought was from 1964 to 1969,
a difference of five (5) years, which gap of five years “is so great as
to defy approximation in the commission of one and the same
offense.” This is not so in the case at bar where the difference is
only, as aforestated, two months and five days, which disparity
allows approximation as to the date of the commission of the
offense of grave coercion. People vs. Borromeo, 123 SCRA 253, No.
L-62737 June 29, 1983
MAKASIAR, J.:
The Court resolved to give due course to the petition as well as to
consider as answer the Comment of the Solicitor General and the case
submitted for decision.
Petitioners seek to set aside the order of respondent Judge dated June
30, 1982 denying the verbal motion of the City Fiscal of Mandaue City to
amend the information for grave coercion against private respondent
Joaquin Borromeo by changing the date of the commission of the crime
from "on or about the 24th day of June, 1981 " to "on or about August 28,
1981, " after the accused had been arraigned and entered a plea of not
guilty and during the testimony of the complainant, as well as the order of
July 28, 1982 denying the motion for reconsideration of the aforesaid
order.
The original information dated February 18, 1982 as well as the first
amended information dated March 19, 1982, for grave coercion alleges
that "the crime was committed on or about the 24th day of June, 1981."
The first amended information was admitted in an order dated March 24,
1982.
After the accused pleaded not guilty, at the trial on or about June 30,
1982 and during the testimony of the complainant who testified that the
38
Rule 110. CRIMINAL PROCEDURE – FULL TEXT 22 CASES
crime of grave coercion was committed on or about August 28, 1981, the
prosecution orally moved to further amend the amended information by
changing the date of the commission of the offense from June 24, 1981
to August 28,1981.
In an order dated June 30, 1982, the respondent Judge denied the verbal
motion to amend on the ground that the proposed amendment would
impair the substantial rights of the accused as guaranteed by the
Constitution, invoking the case of People vs. Hon. Reyes (G.R. No. L-
32557, Oct. 23, 1981, 108 SCRA 23). The motion for reconsideration
was likewise denied in an order dated July 28, 1982. The petition is
meritorious. The respondent Judge erred in relying on the case of People
vs. Reyes, supra.
As opined by the Solicitor General in his comment dated May 9, 1982,
the change of the date of the commission of the crime from June 24,
1981 to August 28, 1981 is more formal than substantial and would not
prejudice the rights of the accused, as the said proposed amendment
would not alter the nature of the offense of grave coercion (Arevalo vs.
Nepomuceno, 63 Phil. 627). In said Arevalo case, the amendment which
was allowed was the allegation in the information that B carried the
revolver and C, the knife, instead of C carrying the revolver and B, the
knife.
The difference in the dates is only about two (2) months and five (5)
days, which disparity is amply comprehended within the allegation that
the crime was committed "on or about." Nor will the amendment or
correction cause any surprise on the accused, who has been furnished
the affidavits of prosecution witnesses, all of which uniformly state that
the date of the commission was August 28, 1981. In U.S. vs. dela Cruz (3
Phil. 331), the amendment in the information for brigandage sought to be
made was to eliminate the words "led by one Silverio" and to substitute
therefor the words "under the command of Luciano San Miguel" after the
prosecution rested but before the presentation of the evidence of the
defense. The Supreme Court allowed the said amendment holding that it
did not prejudice in any sense the right of the accused as "it did not affect
the essence of the crime charged, but merely an accidental detail of the
same" and "it did not deprive the accused of an opportunity to produce
evidence for their defense, if they had desired, in relation to the said
amendment; ...". Consequently, the accused is not thereby denied any
opportunity to present evidence in his defense.
In the case of Vega vs. Panis (Sept. 30, 1981, 117 SCRA 269, 277), after
arraignment, the Fiscal sought to amend the information so as to include
the aggravating circumstances of dwelling and nighttime. The Court ruled
that such an amendment is a matter of form and may be allowed, stating
that:
An amendment which neither adversely affects any
substantial right of the accused (e.g. does not deprive
him of the right to invoke prescription nor affects and/or
alters the nature of the offense originally charged nor is not so remote as to surprise and prejudice the defendant. In case of
involves a change in the basic theory of the surprise, the Court may allow an amendment of the information as to time
prosecution so as to require the accused to undergo and an adjournment to the accused, if necessary, to meet the
any material change or modification in his defense) is amendment" (U.S. vs. Dichao, 27 Phil. 420, 423 [1914]).
an amendment as to matter of form."
In the case of People vs. Reyes, supra, on which the respondent Judge
In the earlier case of People vs. Joseph Casey (Feb. 24, 1981, 103 relies, the change sought was from 1964 to 1969, a difference of five (5)
SCRA 21, 31), where after arraignment the information was amended to years, which gap of five years "is so great as to defy approximation in the
include as one of the accused Ricardo Felix alias "Carding Tuwad" who commission of one and the same offense."
was then armed with a firearm, which amendment was allowed by the
Supreme Court, We ruled thus: This is not so in the case at bar where the difference is only, as
aforestated, two months and five days, which disparity allows
The test as to whether a defendant is prejudiced by the approximation as to the date of the commission of the offense of grave
amendment of an information has been said to be coercion.
whether a defense under the information, as it
originally stood would be available after the Moreover, as stressed by the Solicitor General, the error as to the date of
amendment is made, and whether any evidence the commission of the offense was discovered early and the motion to
defendant might have would be equally applicable to amend or correct the same was as immediate as to preclude any surprise
the information in the one form as in the other. A look or prejudice on the part of the accused.
into Our jurisprudence on the matter shows that an
amendment to an information introduced after the
accused has pleaded not guilty thereto, which does not WHEREFORE, THE PETITION IS HEREBY GRANTED, THE ORDERS
expose the accused to a charge which could call for a OF RESPONDENT JUDGE DATED JUNE 30,1982 AND JULY 28,1982
higher penalty, does not affect the essence of the ARE HEREBY SET ASIDE, AND THE RESPONDENT JUDGE IS
offense or cause surprise or deprive the accused of an HEREBY DIRECTED TO ADMIT THE ADDITIONAL AMENDMENT TO
THE AMENDED INFORMATION FROM "JUNE 24,1981 TO AUGUST
opportunity to meet the new averment had each been
held to be one of form and not of substance-not 28,1981. " NO COSTS.
prejudicial to the accused and, therefore, not prohibited
by Section 13, Rule 110 of the Revised Rules of Court. SO ORDERED.
Section 10 of Rule 110 of the Rules of Court states that "it is not
necessary to state in the complaint or information the precise time at
which the offense was committed except when time is a material
ingredient of the offense, but the act may be alleged to have been
committed at any time as near to the actual date at which date the
offense was committed as the information or complaint will permit."
The precise time is not an essential ingredient of the offense of grave
coercion.
In the case of People vs. Rivera (1970, 33 SCRA 746), We ruled that the 16. G.R. No. 119601 December 17, 1996
amendment of the information as to the date of the commission of the
offense from March 2, 1964 to March 2, 1965, a difference of one (1)
DANILO BUHAT, petitioner,
year or twelve (12) months, was merely a matter of form and does not vs.
prejudice the rights of the accused, reiterating the ruling in the case of
COURT OF APPEALS and the PEOPLE OF THE
U.S. vs. Ramos (1912, 23 Phil. 300) where the Fiscal was permitted to PHILIPPINES, respondents.
amend the date of the commission of the offense from June 16, 1910 to
June, 1911.
The phrase "on or about" employed in the information does riot require
HERMOSISIMA, JR., J.:p
the prosecution "to prove any precise date but may prove any date which
39
Rule 110. CRIMINAL PROCEDURE – FULL TEXT 22 CASES
Criminal Procedure; Information; Amendment; Court stated in the
Montenegro case that "all the allegation of conspiracy among all the
private respondents-accused which was not previously included in the
original information" is a substantial amendment.—Petitioner asseverates
that the inclusion of additional defendants in the information on the
ground of conspiracy "is a substantial amendment which is prohibited by
Sec. 14, Rule 110 of the 1985 Rules on Criminal Procedure, because the
allegation of conspiracy wi wi wi is a substantial amendment saddling the
[p]etitioner with the need of a new defense in order to met [sic] a different
situation at the trial [c]ourt." Petitioner cites the case of People v.
Montenegro as jurisprudential support. Indeed, we stated in the
Montenegro case that "the allegation of conspiracy among all the private
respondents-accused, which was not previously included in the original
information, is wi wi wi a substantial amendment saddling the
respondents with the need of a new defense in order to meet a different
situation in the trial court."
Same; Same; Same; Ruling is not without an exception.—This
jurisprudential rule, however, is not without an exception. And it is in the
same case of Zulueta that we highlighted the case of Regala v. Court of
First instance of Bataan as proffering a situation where an amendment
after plea resulting in the inclusion of an allegation of conspiracy and in
the indictment of some other persons in addition to the original accused,
constitutes a mere formal amendment permissible even after
arraignment. In Zulueta, we distinguished the Regala case in this wise:
"Some passages from 'Regala contra El Juez del Juzgado de Primera
Instancia de Bataan' are quoted by petitioners. Therein the accused
pleaded not guilty to an information for murder, and later the fiscal
amended the indictment by including two other persons charged with the
same offense and alleging conspiracy between the three. Five justices
held that the amendment was not substantial. But that situation differs
from the one at bar. The amendment there did not modify theory of the
prosecution that the accused had killed the deceased by a voluntary act
and deed. Here there is an innovation, or the introduction of another
alternative imputation, which, to make matters worse, is inconsistent with
the original allegations."
Same; Same; Same; In the 1983 case of People vs. Court of Appeals,
Court ruled that a post-arraignment amendment to further allege
conspiracy is only a formal amendment.—Applying our aforegoing
disquisition in the 1946 case of Regala, we likewise ruled in the 1983
case of People v. Court of Appeals that a post-arraignment amendment
to further allege conspiracy, is only a formal amendment not prejudicial to
the rights of the accused and proper even after the accused has pleaded
“not guilty" to the charge under the original information.
Same; Same; Same; The addition of the phrase "conspiring,
confederating and helping one another" does not change the nature of
petitioner's participation as principal in the killing.—The aforegoing
principle, by way of exception to the general rule, also appositely applies
in the present controversy. Petitioner undoubtedly is charged as a
principal in the killing of Ramon George Yu whom petitioner is alleged to
have stabbed while two unknown persons held the victim's arms. The
addition of the phrase, "conspiring, confederating and helping one
another" does not change the nature of petitioner's participation as
principal in the killing.
Same; Same; Same; Amendment to insert in the information the real
name of the accused involves merely a matter of form.—In the second
place, the amendment to replace the name, "John Doe" with the name of
Renato Buhat who was found by the Secretary of Justice to be one of the
two persons who held the arms of the victim while petitioner was stabbing
him, is only a formal amendment and one that does not prejudice any of
the accused's rights. Such amendment to insert in the information the
real name of the accused involves merely a matter of form as it does not,
in any way, deprive any of the accused of a fair opportunity to present a
defense; neither is the nature of the offense charged affected or altered
since the revelation of accused's real name does not change the theory
of the prosecution nor does it introduce any new and material fact. In
fact, it is to be expected that the information has to be amended as the
unknown participants in the crime became known to the public
prosecutor.
Same; Same; Same; Amendment of the information so as to change
charge from homicide to murder may be made even if it may result in
altering the nature of the charge so long as it can be done without
prejudice to the rights of the accused.—In the case of Dimalibot v.
Salcedo, we ruled that the amendment of the information so as to change
the crime charged from homicide to murder, may be made "even if it may
result in altering the nature of the charge so long as it can be done
without prejudice to the rights of the accused." In that case, several
accused were originally charged with homicide, but before they were
arraigned, an amended information for murder was filed. Understandably
raised before us was the issue of the propriety and legality of the afore-
described amendment, and we ruled, thus: "x wi wi it is undisputed that
the herein accused were not yet arraigned before the competent court
when the complaint for homicide was amended so as to charge the crime
of murder. wi wi wi the amendment could therefore be made even as to
substance in order that the proper charge may be made. wi wi wi The
change may also be made even if it may result in altering the nature of
the charge solong as it can be done without prejudice to the rights of the
defendant"
Same; Same; Same; The question as to whether the changing of the
crime charged from homicide to the more serious offense of murder is a
substantial amendment proscribed after the accused had pleaded "not
guilty" to the crime of homicide was categorically answered in the
affirmative in the case of Dionaldo v. Dacuycuy.—Thus, at the outset, the
main consideration should be whether or not the accused had already
made his plea under the original information, for this is the index of
prejudice to, and the violation of, the rights of the accused. The question
as to whether the changing of the crime charged from homicide to the
more serious offense of murder is a substantial amendment proscribed
after the accused had pleaded "not guilty" to the crime of homicide was, it
should be noted, categorically answered in the affirmative by us in the
case of Dionaldo v. Dacuycuy, for then we ruled: "x wi wi the provision
which is relevant to the problem is Rule 110, Sec. 13 [now Sec. 14 under
the 1985 Rules on Criminal Procedure] of the Rules of Court which
stipulates: 'x wi wi The information or complaint may be amended, in
substance or form, without leave of court, at any time before the
defendant pleads; and thereafter and during the trial as to all matters of
form, by leave and at the discretion of the court, when the same can be
done without prejudice to the rights of the defendant, x x x xxx xx
xxxx xxx x x x." To amend the information so as to change the
crime charged for homicide to the more serious offense of murder after
the petitioner had pleaded not guilty to the former is indubitably
proscribed by the first paragraph of the above-quoted provision. For
certainly a change from homicide to murder is not a matter of form; it is
one of substance with very serious consequences."
Same; Same; Same; In amending a criminal information, what is primarily
guarded against is the impairment of the accused's right to intelligently
know the nature of the charge against him.—In the matter of amending a
criminal information, what is primarily guarded against is the impairment
of the accused's right to intelligently know the nature of the charge
against him. This right has been guaranteed the accused under all
Philippine Constitutions and incorporated in Section 1(b), Rule 115, of
the 1985 Rules on Criminal Procedure. Buhat vs. Court of Appeals, 265
SCRA 701, G.R. No. 119601 December 17, 1996
Delicate and sensitive is the issue in this case, which is, whether or not
the upgrading of the crime charged from homicide to the more serious
offense of murder is such a substantial amendment that it is proscribed if
made after the accused had pleaded "not guilty" to the crime of homicide,
displaying as alleged by the defense, inordinate prejudice to the rights of
the defendant.
On March 25, 1993, an information for HOMICIDE 1 was filed in the
Regional Trial Court (RTC) 2 against petitioner Danny Buhat, "John Doe"
and "Richard Doe". The information alleged that on October 16, 1992,
petitioner Danilo Buhat, armed with a knife, unlawfully attacked and killed
one Ramon George Yu while the said two unknown assailants held his
arms, "using superior strength, inflicting . . . mortal wounds which were . .
. the direct . . . cause of his death" 3 .
Even before petitioner could be arraigned, the prosecution moved for the
deferment of the arraignment on the ground that the private complainant
in the case, one Betty Yu, moved for the reconsideration of the resolution
of the City Prosecutor which ordered the filing of the aforementioned
information for homicide. Petitioner however, invoking his right to a
speedy trial, opposed the motion. Thus, petitioner was arraigned on June
9, 1993 and, since petitioner pleaded "not guilty", trial ensued.
On February 3, 1994, then Secretary of Justice Franklin M. Drilon, finding
Betty Yu's appeal meritorious, ordered the City Prosecutor of Roxas City
40
Rule 110. CRIMINAL PROCEDURE – FULL TEXT 22 CASES
"to amend the information by upgrading the offense charged to MURDER
and implead therein additional accused Herminia Altavas, Osmeña
Altavas and Renato Buhat". 4
On March 10, 1994, the Assistant City Prosecutor filed a motion for leave
to amend information. The amendment as proposed was opposed by the
petitioner.
The amended information read:
The undersigned assistant City Prosecutor accuses
DANNY BUHAT, of Capricho II, Barangay V, Roxas
City, Philippines, HERMIÑIA ALTAVAS AND OSMEÑA
ALTAVAS both resident of Punta Tabuc, Roxas City,
Philippines, of the crime of Murder, committed as
follows:
That on or about the 16th day of October, 1992, in the
City of Roxas, Philippines, the above-named accused,
Danny Buhat armed with a knife, conspiring,
confederating and helping one another, did and then
and there willfully, unlawfully and feloniously [sic]
without justifiable motive and with intent to kill, attack,
stab and injure one RAMON GEORGE YU, while the
two other accused held the arms of the latter, thus
using superior strength, 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 Ramon George Yu in such amount as
maybe [sic] awarded to them by the court under the
provisions of the Civil Code of the Philippines.
CONTRARY TO LAW. 5
The prosecution had by then already presented at least two witnesses.
In an order, 6 dated June 2, 1994, the RTC denied the motion for leave to
amend information. The denial was premised on (1) an invocation of the
trial court's discretion in disregarding the opinion of the Secretary of
Justice as allegedly held in Crespo vs. Mogul 7 and (2) a conclusion
reached by the trial court that the resolution of the inquest prosecutor is
more persuasive than that of the Secretary of Justice, the former having
actually conducted the preliminary investigation "where he was able to
observe the demeanor of those he investigated" 8 .
The Solicitor General promptly elevated the matter to the Court of
Appeals. He filed a petition for certiorari 9assailing the aforecited order
denying the motion for leave to amend information. Finding the proposed
amendment as non-prejudicial to petitioner's rights, respondent court
granted the petition for certiorari in a decision, dated March 28, 1995, the
decretal portion of which reads:
THE FOREGOING CONSIDERED, herein petition is
hereby granted: the Order dated June 2, 1994 is set
aside and annulled; amendment of the Information
from homicide to murder, and including as additional
accused Herminia Altavas and Osmeña Altavas is
allowed; and finally, the writ of preliminary injunction
we issued on January 30, 1995 is made permanent by
prohibiting the public respondent from hearing
aforementioned criminal case under the original
information. 10
Hence this petition raising the sole issue of whether or not the questioned
amendment to the information is procedurally infirm.
The petition lacks merit.
The additional allegation of conspiracy is only a formal
amendment, petitioner's participation as principal not having
been affected by such amendment.
Petitioner asseverates that the inclusion of additional defendants in the
information on the ground of conspiracy "is a substantial amendment
which is prohibited by Sec. 14, Rule 110 of the 1985 Rules on Criminal
Procedure, because the allegation of conspiracy . . . is a substantial
amendment saddling the [p]etitioner with the need of a new defense in
order to met [sic] a different situation at the trial [c]ourt" 11
Petitioner cites the case of People v. Montenegro12 as jurisprudential
support. Indeed, we stated in the Montenegrocase that "the allegation of
conspiracy among all the private respondents-accused, which was not
previously included in the original information, is . . . a substantial
amendment saddling the respondents with the need of a new defense in
order to meet a different situation in the trial court" 13. And to explain the
new defense theory as a bar to a substantial amendment after plea, we
cited the case of People v. Zulueta 14 where we elucidated, thus:
Surely the preparations made by herein accused to
face the original charges will have to be radically
modified to meet the new situation. For undoubtedly
the allegation of conspiracy enables the prosecution to
attribute and ascribe to the accused Zulueta all the
acts, knowledge, admissions and even omissions of his
co-conspirator Angel Llanes in furtherance of the
conspiracy. The amendment thereby widens the
battlefront to allow the use by the prosecution of newly
discovered weapons, to the evident discomfiture of the
opposite camp. Thus it would seem inequitable to
sanction the tactical movement at this stage of the
controversy, bearing in mind that the accused is only
guaranteed two-days' preparation for trial. Needless to
emphasize, as in criminal cases the liberty, even the
life, of the accused is at stake, it is always wise and
proper that he be fully apprised of the charges, to avoid
any possible surprise that may lead to injustice. The
prosecution has too many facilities to covet the added
advantage of meeting unprepared adversaries.
This jurisprudential rule, however, is not without an exception. And it is in
the same case of Zulueta that we highlighted the case of Regala v. Court
of First Instance of Bataan 15 as proffering a situation where an
amendment after plea resulting in the inclusion of an allegation of
conspiracy and in the indictment of some other persons in addition to the
original accused, constitutes a mere formal amendment permissible even
after arraignment. In Zulueta, we distinguished the Regala case in this
wise:
Some passages from "Regala contra El Juez del
Juzgado de Primera Instancia de Bataan" are quoted
by petitioners. Therein the accused pleaded not guilty
to an information for murder, and later the fiscal
amended the indictment by including two other persons
charged with the same offense and alleging conspiracy
between the three. Five justices held that the
amendment was not substantial. But that situation
differs from the one at bar. The amendment there did
not modify theory of the prosecution that the accused
had killed the deceased by a voluntary act and deed.
Here there is an innovation, or the introduction of
another alternative imputation, which, to make matters
worse, is inconsistent with the original allegations. 16
Applying our aforegoing disquisition in the 1946 case of Regala, we
likewise ruled in the 1983 case of People v.Court of Appeals 17 that a
post-arraignment amendment to further allege conspiracy, is only a
formal amendment not prejudicial to the rights of the accused and proper
even after the accused has pleaded "not guilty" to the charge under the
original information. We held in said case of People v. Court of Appeals:
. . . The trial Judge should have allowed the
amendment . . . considering that the amendments
sought were only formal. As aptly stated by the
Solicitor General in his memorandum, "there was no
change in the prosecution's theory that respondent
Ruiz willfully, unlawfully and feloniously attacked,
assaulted and shot with a gun Ernesto and Rogelio
Bello . . . . The amendments would not have been
prejudicial to him because his participation as principal
in the crime charged with respondent Ruiz in the
original informations, could not be prejudiced by the
proposed amendments."
41
Rule 110. CRIMINAL PROCEDURE – FULL TEXT 22 CASES
In a case (Regala vs. CFI, 77 Phil. 684), the defendant
was charged with murder. After plea, the fiscal
presented an amended information wherein two other
persons were included as co-accused. There was
further allegation that the accused and his co-
defendants had conspired and confederated together
and mutually aided one another to commit the offense
charged. The amended information was admitted . . . .
xxx xxx xxx
Otherwise stated, the amendments . . . would not have
prejudiced Ruiz whose participation as principal in the
crimes charged did not change. When the incident was
investigated by the fiscal's office, the respondents were
Ruiz, Padilla and Ongchenco. The fiscal did not include
Padilla and Ongchenco in the two informations
because of "insufficiency of evidence." It was only later
when Francisco Pagcalinawan testified at the
reinvestigation that the participation of Padilla and
Ongchenco surfaced and, as a consequence, there
was the need for the information of the informations . . .
. thus:
The aforegoing principle, by way of exception to the general rule, also
appositely applies in the present controversy.
Petitioner undoubtedly is charged as a principal in the killing of Ramon
George Yu whom petitioner is alleged to have stabbed while two
unknown persons held the victim's arms. The addition of the phrase,
"conspiring, confederating and helping one another" does not change the
nature of petitioner's participation as principal in the killing.
Whether under the original or the amended information, petitioner would
have to defend himself as the People makes a case against him and
secures for public protection the punishment of petitioner for stabbing to
death, using superior strength, a fellow citizen in whose health and safety
society as a whole is interested. Petitioner, thus, has no tenable basis to
decry the amendment in question.
Furthermore, neither may the amendment in question be struck down on
the ground that Herminia Altavas, Osmeña Altavas and Renato Buhat
would be placed in double jeopardy by virtue of said amendment. In the
first place, no first jeopardy can be spoken of insofar as the Altavases are
concerned since the first information did not precisely include them as
accused therein. In the second place, the amendment to replace the
name, "John Doe" with the name of Renato Buhat who was found by the
Secretary of Justice to be one of the two persons who held the arms of
the victim while petitioner was stabbing him, 18 is only a formal
amendment and one that does not prejudice any of the accused's rights.
Such amendment to insert in the information the real name of the
accused involves merely a matter of form as it does not, in any way,
deprive any of the accused of a fair opportunity to present a defense;
neither is the nature of the offense charged affected or altered since the
revelation of accused's real name does not change the theory of the
prosecution nor does it introduce any new and material fact. 19 In fact, it
is to be expected that the information has to be amended as the
unknown participants in the crime became known to the public
prosecutor. 20
"Abuse of superior strength" having already been alleged in the
original information charging homicide, the amendment of the
name of the crime to murder, constitutes a mere formal
amendment permissible even after arraignment
In the case of Dimalibot v. Salcedo, 21 we ruled that the amendment of
the information so as to change the crime charged from homicide to
murder, may be made "even if it may result in altering the nature of the
charge so long as it can be done without prejudice to the rights of the
accused." In that case, several accused were originally charged with
homicide, but before they were arraigned, an amended information for
murder was filed. Understandably raised before us was the issue of the
propriety and legality of the afore-described amendment, and we ruled,
. . . it is undisputed that the herein accused were not
yet arraigned before the competent court when the
complaint for homicide was amended so as to charge
the crime of murder. . . . the amendment could
therefore be made even as to substance in order that
the proper charge may be made. . . . The change may
also be made even if it may result in altering the nature
of the charge so long as it can be done without
prejudice to the rights of the defendant. 22
Thus, at the outset, the main consideration should be whether or not the
accused had already made his plea under the original information, for
this is the index of prejudice to, and the violation of, the rights of the
accused. The question as to whether the changing of the crime charged
from homicide to the more serious offense of murder is a substantial
amendment proscribed after the accused had pleaded "not guilty" to the
crime of homicide was, it should be noted, categorically answered in the
affirmative by us in the case of Dionaldo v. Dacuycuy, 23 for then we
ruled:
. . . the provision which is relevant to the problem is
Rule 110, Sec. 13 [now Sec. 14 under the 1985 Rules
on Criminal Procedure] of the Rules of Court which
stipulates:
. . . The information or complaint may be amended, in
substance or form, without leave of court, at any time
before the defendant pleads; and thereafter and during
the trial as to all matters of form, by leave and at the
discretion of the court, when the same can be done
without prejudice to the rights of the defendant.
xxx xxx xxx
To amend the information so as to change the crime
charged for homicide to the more serious offense of
murder after the petitioner had pleaded not guilty to the
former is indubitably proscribed by the first paragraph
of the above-clouted provision. For certainly a change
from homicide to murder is not a matter of form; it is
one of substance with very serious consequences. 24
Indeed, petitioner forcefully and strongly submits that, in the light of this
ruling, we are allegedly obliged to grant his prayer for the reversal of the
assailed decision of respondent Court of Appeals and the affirmance of
the trial court's ruling that the post-arraignment amendment sought by the
People is prohibited under Section 14, Rule 110, of the 1985 Rules on
Criminal Procedure, the same being a substantial amendment prejudicial
to the rights of the accused.
The cited ruling, however, differs from the case at bench because the
facts herein sustain a contrary holding. As pointed out by the Court of
Appeals:
. . . the original Information, while only mentioning
homicide, alleged:
Danny Buhat, John Doe and Richard Doe as the
accused; [sic] of Danny Buhat stabbing the deceased
Ramon while his two other companions were holding
the arms of Ramon, thus, "the Information already
alleged superior strength"; and inflicting mortal wounds
which led to the death of Ramon.
Superior strength qualifies the offense to murder
(Article 248).
xxx xxx xxx
Before us, the Information already alleged superior
strength, and the additional allegation that the
deceased was stabbed by Buhat while the arms of the
former were being held by the two other accused,
referring to John Doe and Richard Doe. . .
xxx xxx xxx
42
Rule 110. CRIMINAL PROCEDURE – FULL TEXT 22 CASES
If the killing is characterized as having been committed
by superior strength, then to repeat, there is murder . . .
Also the case of Dacuycuy was mentioned, as a
justification for not allowing change of designation from
homicide to murder, but then the body of the
Information in the Dacuycuy ruling did not allege
averments which qualifies [sic] the offense of murder.
The case before us instead is different in that the
Information already alleges that Buhat attacked the
deceased while his two other companions held him by
the arms, "using superior strength." . . . We would even
express the possibility that if supported by evidence,
Buhat and the Altavases could still be penalized for
murder even without changing the designation from
homicide to murder, precisely because of
aforementioned allegations. The proposed change of
the word from homicide to murder, to us, is not a
substantial change that should be prohibited. 25
In the matter of amending a criminal information, what is primarily
guarded against is the impairment of the accused's right to intelligently
know the nature of the charge against him. This right has been
guaranteed the accused under all Philippine Constitutions 26 and
incorporated in Section 1 (b), Rule 115, of the 1985 Rules on Criminal
Procedure 27.
In a criminal case, due process requires that, among others, the
accusation be indue form, and that notice thereof and an opportunity to
answer the charge be given the accused; 28 hence, the constitutional and
reglementary guarantees as to accused's right "to be informed of the
nature and cause of the accusation against him." An accused should be
given the necessary data as to why he is being proceeded against and
not be left in the unenviable state of speculating why he is made the
object of a prosecution, 29 it being the fact that, in criminal cases, the
liberty, even the life, of the accused is at stake. It is always wise and
proper that the accused be fully apprised of the charge against him in
order to avoid any possible surprise that may lead to injustice. 30
In order to sufficiently inform the accused of the charge against him, a
written accusation, in the form of a criminal information indicting the
accused and subscribed by the fiscal, must first be filed in court. 31 Such
information must state, among others, the name of the accused, the
designation of the offense by the statute, and the acts or omissions
complained of as constituting the offense. 32 Evidently, the important end
to be accomplished is to describe the act with sufficient certainty in order
that the accused may be apprised of the nature of the charge against
him. 33 In the event, however, that the appellation of the crime charged as
determined by the public prosecutor, does not exactly correspond to the
actual crime constituted by the criminal acts described in the information
to have been committed by the accused, what controls is the description
of the said criminal acts and not the technical name of the crime supplied
by the public prosecutor. As this court, through Justice Moreland's
authoritative disquisition, has held:
. . . Notwithstanding apparent contradiction between
caption and body, . . . the characterization of the crime
by the fiscal in the caption of the information is
immaterial and purposeless . . . the facts stated in the
body of the pleading must determine the crime of which
the defendant
stands charged and for which he must be tried. The
establishment of this doctrine . . . is thoroughly in
accord with common sense and with the requirements
of plain justice. . . . Procedure in criminal actions
should always be so framed as to insure to each
criminal that retributive punishment which ought swiftly
and surely to visit him who willfully and maliciously
violates the penal laws of society. We believe that a
doctrine which does not produce such a result is
illogical and unsound and works irreparable injury to
the community in which it prevails.
From a legal point of view, and in a very real sense, it
is of no concern to the accused what is the technical
name of the crime of which he stands charged. It in no
way aids him in a defense on the merits. . . . That to
which his attention should be directed, and in which he,
above all things else, should be most interested, are
the facts alleged. The real question is not did he
commit a crime given in the law some technical and
specific name, but did he perform the acts alleged in
the body of the information in the matter therein set
forth. If he did, it is of no consequence to him, either as
a matter of procedure or of substantive right, how the
law denominates the crime which those acts constitute.
The designation of the crime by name in the caption of
the information from the facts alleged in the body of
that pleading is a conclusion of law made by the fiscal .
. . For his full and complete defense he need not know
the name of the crime at all. It is of no consequence
whatever for the protection of his substantial rights.
The real and important question to him is, "Did you
perform the acts alleged in the manner alleged?" not,
"Did you commit a crime named murder?" If he
performed the acts alleged, in the manner stated, the
law determines what the name of the crime is and fixes
the penalty therefor. It is the province of the court alone
to say what the crime is or what it is named. If accused
performed the acts alleged in the manner alleged, then
he ought to be punished and punished adequately,
whatever may be the name of the crime which those
acts constitute.
The plea of not guilty ought always to raise a question
of fact and not of law. The characterization of the crime
is a conclusion of law on the part of the fiscal. The
denial by the accused that he committed that specific
crime so characterized raises no real question. No
issue can be raised by the assertion of a conclusion of
law by one party and a denial of such conclusion by the
other. The issues raised by the pleadings in criminal
actions . . . are primarily and really issues of fact and
not of law. . . . .
. . . Issues are not made by asserting and denying
names. They are framed by the allegation and denial of
facts. . . . To quibble about names is to lose sight of
realities. To permit an accused to stand by and watch
the fiscal while he guesses as to the name which ought
to be applied to the crime of which he charges the
accused, and then take advantage [sic] of the guess if
it happens to be wrong, while the acts or omissions
upon which that guess was made and which are the
real and only foundation of the charge against him are
clearly and fully stated in the information, is to change
the battle ground in criminal cases from issues to
guesses and from fact to fancy. It changes lawyers into
dialecticians and law into metaphysics — that fertile
field of delusion propagated by language. 34 [Emphasis
ours]
In other words, the real nature of the criminal charge is
determined not from the caption or preamble of the information
nor from the specification of the provision of the law alleged to
have been violated, they being conclusions of law which in no
way affect the legal aspects of the information, but from the
actual recital of facts as alleged in the body of the information. 35
Petitioner in the case at bench maintains that, having already pleaded
"not guilty" to the crime of homicide, the amendment of the crime charged
in the information from homicide to murder is a substantial amendment
prejudicial to his right to be informed of the nature of the accusation
against him. He utterly fails to dispute, however, that the original
information did allege that petitioner stabbed his victim "using superior
strength". And this particular allegation qualifies a killing to murder,
regardless of how such a killing is technically designated in the
information filed by the public prosecutor.
Our ruling in the case of People v. Resayaga36 is clearly apropos:
The appellant maintains that the Information filed in this
case is only for Homicide. . . .
43
Rule 110. CRIMINAL PROCEDURE – FULL TEXT 22 CASES
The contention is without merit. Reliance is placed
mainly upon the designation of the offense given to it
by the fiscal. . . . In the instant case, the information
specifically alleges that "the said accused conspiring,
confederating together and mutually helping one
another, with intent to kill and taking advantage of
superior strength, did then and there willfully, unlawfully
and feloniously attack, assault and stab with ice picks
one Paulo Balane . . ." Since the killing is characterized
as having been committed by "taking advantage of
superior strength," a circumstance which qualifies a
killing to murder, the information sufficiently charged
the commission of murder. 3 7
On another aspect, we find merit in the manifestation of the Solicitor
General to the effect that the respondent Court of Appeals erroneously
supposed that petitioner and Renato Buhat are one and the same
person, hence the non-inclusion of Renato Buhat as additional accused
in its order allowing the amendment of the information. 38 We also agree
with the observation of the Solicitor General that the amended
information filed in this case still fails to embody the correct identity of all
of the persons found to be indictable in the Resolution of the Secretary of
Justice. Explained the Solicitor General:
In its Decision under review, the Court of Appeals
erroneously supposed that Danny Buhat and Renato
Buhat are one and the same person (CA Decision, 1st
par.). This, however, is not correct because Danny
Buhat and Renato Buhat are, in fact, brothers.
Moreover, it was not Osmeña Altavas and his wife
Herminia Altavas who held the arms of the victim while
Danny Buhat stabbed him. According to the Resolution
of the Secretary of Justice, which is requoted
hereunder:
The evidence on hand clearly shows that while
Osmeña Altavas was continuously hitting Ramon
Yu with his fists, his wife Herminia aided him by
hitting the victim with a chair. It was also during this
time that Danny Buhat and two (2) unidentified
persons appeared and joined spouses Osmeña and
Herminia. One of the unidentified persons was later
identified as Renato Buhat. Renato Buhat and the
other unidentified person held the arms of Ramon
Yu while Danny Buhat stabbed Ramon Yu twice on
the chest which resulted in his death. The restraint
on the person of Ramon Yu before he was stabbed
was described by eyewitness Susan Labrador
during the continuation of the preliminary
investigation of the instant case on December 2,
1992.
The Amended Information to be filed in this case must, WHEREFORE, the petition is DISMISSED for lack of merit. The City
therefore, reflect the above facts set forth in the Prosecutor of Roxas City is HEREBY ORDERED to file the correct
aforesaid Resolution of the Secretary of Justice — Amended Information fully in accordance with the findings of fact set forth
which was the result of the preliminary investigation(as in the Resolution of the Secretary of Justice, dated February 3, 1994, and
reviewed by the Secretary of Justice) conducted in this in disregard of the finding of the Court of Appeals in its Decision, dated
case. Strangely enough, however, the Amended March 28, 1995, in CA-G.R. SP No. 35554 to the effect that "Danny
Information (Annex "C") that was subsequently filed Buhat and Renato Buhat are one and the same person."
before the Roxas City RTC in this case by Assistant
City Prosecutor Alvin D. Calvez of Roxas City does not SO ORDERED.
reflect the above facts set forth in the aforesaid
Resolution of the Secretary of Justice. Said Amended
Information in effect alleges that Osmeña and Herminia
Altavas were the ones who held the arms of the victim
while Danny Buhat stabbed him, whereas, according to 17. G.R. No. L-30146 February 24, 1981
the Resolution of the Secretary of Justice abovecited, it
was Renato Buhat and another unidentified person THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
who held the arms of the victim while Danny Buhat vs.
stabbed him. According to the said Resolution of the JOSEPH CASEY alias "Burl" and RICARDO FELIX alias "CARDING
Secretary of Justice, the participation of Osmeña TUWAD", defendants-appellants.
Altavas in the crime was that of hitting the victim with
his fists, while . . . the participation of Herminia Altavas
in the crime was that of hitting the victim with a chair.
GUERRERO, J.:
Verily, the statement of facts in the Information or
Automatic review of the judgment of the Circuit Criminal Court in Criminal
Amended Information must conform with the findings of
Case No. CCC-VI -6 Rizal (1 7857), imposing upon Joseph Casey alias
fact in the preliminary investigation (in this case, as
"Burl" and Ricardo Felix alias "Carding Tuwad" the capital punishment for
reviewed by the Secretary of Justice) so as to make it
the death of Alfredo Valdez. The dispositive portion thereof, states:
jibe with the evidence . . . to be presented at the trial. . .
..
WHEREFORE, the Court finds the accused, Joseph
Casey alias "Buri" and Ricardo Felix alias "Carding
The Decision of the Court of Appeals in this case
Tuwad", GUILTY, beyond reasonable doubt, of the
(which merely resolved affirmatively the legal issues of
commission of the crime of Murder, under Article No.
whether or not the offense charged in the Information
248 of the Revised Penal Code, as charged in an
could be upgraded to Murder and additional accused
Information, and hereby sentences them to suffer the
could be included in said Information) should not be
PENALTY OF DEATH, with accessory penalties as
made the basis of the Amended Information herein as
prescribed by law; to indemnify the heirs of the
the said Decision does not constitute the preliminary
deceased, Alfredo Valdez, in the amount of TWELVE
investigation conducted in this case. Such Amended
THOUSAND (P12,000) PESOS, jointly and severally;
Information should be based on the findings of fact set
and to pay the costs.
forth in the Resolution of the Secretary of Justice, as
above quoted and
requoted. 39 [Emphasis theirs] On May 22, 1968, Assistant Fiscal Herminio I. Benito filed an Information
for Murder against accused-appellant Joseph Casey alias "Burl", alleging:
The Solicitor General prays for at least the remanding of this case to
respondent Court of Appeals for the correction of the error abovecited That on or about the 31st day of March, 1968, in the
and for the ordering of the filing of the correct Amended Information by municipality of San Juan, province of Rizal, a place
the City Prosecutor of Roxas City. Considering, however, that further within the jurisdiction of this Honorable Court, the
delay of the trial of this case is repugnant to our inveterate desire for above- named accused, being then armed with a knife,
speedy justice and that the full and complete disposition of this case together with one Ricardo Felix alias "Carding Tuwad"
virtually serves this end, we see it to be within our jurisdiction and who is then armed with a firearm and who was (sic) still
authority to order the correct amended information to be filed in this case at large, and the two of them conspiring and
without the need to remand the same to respondent appellate court. confederating together and mutually helping and aiding
44
Rule 110. CRIMINAL PROCEDURE – FULL TEXT 22 CASES
one another, with intent to kill, evident premeditation
and treachery and taking advantage of superior
strength, did, then and there wilfully, unlawfully and
feloniously attack, assault and shoot and stab with the
said firearm and knife one Alfredo Valdez, thereby
inflicting upon the latter fatal wounds which directly
caused his death.
Contrary to law. 1
On June 24, 1968, upon arraignment, said accused pleaded not guilty to
the crime charged in the said complaint. Then, sometime in September,
1968, accused ' appellant Ricardo Felix alias "Carding Tuwad" was
arrested. Accordingly, an Amended Information was filed by the same
fiscal to include Ricardo Felix as an accused, stating as follows:
That on or about the 31st day of March, 1968, in the
municipality of San Juan, province of Rizal, a place
within the jurisdiction of this Honorable Court, the
above named accused Joseph Casey alias "Burl" being
then armed with a knife, together with the accused
Ricardo Felix alias "Carding Tuwad" who was then
armed with a firearm, and the two of them conspiring
and confederating together and mutually helping and
aiding one another, with intent to kill, evident
premeditation and treachery and taking advantage of
superior strength, did, then and there wilfully,
unlawfully and feloniously attack, assault and shoot
and stab with the said firearm and knife one Alfredo
Valdez, thereby inflicting upon the latter fatal wounds
which directly caused his death.
Contrary to law. 2 hypochondriac region of abdomen, 11.0 cm. from anterior median
On October 15, 1968, accused Ricardo Felix entered the plea of not
guilty upon being arraigned and trial was accordingly had.
Mercedes Palomo, 28, resident of 242 Mahinhin Street, San Juan, Rizal,
testified that on March 31, 1968, at around three o'clock in the afternoon,
while in the house of her aunt, she heard a shot coming from the pool
room located near her aunt's place. She then looked towards the
direction of the pool room and saw three men coming out, one of them
being pursued by the two others. She recognized the man being pursued
as Alfredo Valdez alias "G.I." She, however, did not know the names of
the pursuers but described one of them as a short man, with curly black
hair and black complexion while the other as having a fair complexion.
When asked as to whether she can Identify them, she answered in the
affirmative and pointed to Joseph Casey and Ricardo Felix. 3
Continuing her testimony, she said that she saw the one with curly hair
overtake and stab the victim several times, while in the meantime,
Ricardo Felix stood nearby holding a gun which he later fired once at the
victim. 4
Jose Rivera, 57 years old, a policeman, was presented by the
prosecution to testify on the investigation he conducted before Judge
Alfredo M. Gorgonio on April 1, 1968 involving the accused Joseph
Casey. He submitted in evidence the extrajudicial statement of the said
accused, contained in a two page sworn statement wherein said accused
narrated having a rendezvous with the accused Ricardo Felix and with
another person named Rudy at Cubao Rotonda, Quezon City at about
nine o'clock in the morning of March 31, 1968 and thereafter proceeding
to Barrio Halo-Halo, San Juan, Rizal at about three o'clock in the
afternoon, where the incident happened. 5
Patrolman Honorio Carritero, 46 years old, also a policeman, testified that
in the afternoon of March 31, 1968. he was awakened by noise that
somebody was stabbed and shot. Upon going out to investigate, he saw
the victim lying down near the toilet with stab wounds but still alive,
hovering between life and death. He then called for a jeep and brought
him to a hospital. 6
Finally, Dr. Mariano B. Cueva, 32 years of age, a physician, was
presented to testify on the Necropsy Report No. 58-425 of Alfredo
Valdez, herein quoted as follows:
Marked paleness of lips, nailbeds, and integument.
Abrasion, 1.5 x 0.7 cm., right scapular region of back, 12.0 cm.
from posterior median line.
Stab wounds: (1) 1.1 cm. long, spindle shape, located at left
line, level of 8th intercostal space; long axis is oriented
horizontally, medial extremity sharp, lateral extremity contused,
edges clean-cut and slightly gaping, with bevelled lower border;
attract is directed backward upward medially, entering abdominal
cavity and perforating along its track the greater momentum,
body of stomach, body of pancreas, and partly severing the
abdominal aorta at the level of 12th thoracic vertebra;
approximate depth, 10.0 cms.
(2) 1.1 cm. long, spindle shape, located at umbilical region of
abdomen, 2.3. cm. to the left of anterior median line, 6.0 cm.
above the level of navel; long axis oriented horizontally, medial
extremity sharp, lateral extremity contused, edges clean- cut and
gaping, with bevelled lower border; track is directed backward
upward and medially, entering abdominal cavity and perforating
along its track the greater momentum, pylorus of stomach and
body of pancreas; approximate depth, 10.0 cms.
(3) 1.0 cm. long, spindle shape, located at left infra scapular
region of the back, 8.5 cm. from posterior median line, level of 9th
rib; long axis is oriented slightly downward and laterally, lateral
extremity sharp, medial extremity contused, edges clean-cut and
gaping with bevelled upper border; track is directed downward
slightly forward and medially taking a deep intra-muscular route
at left posterior lumbar region to a depth of 9.0 cm.
(4) 1.2 cm. long, slightly curvilinear in shape, located at right
posterior lumbar region, 8.0 cm. from posterior lumbar region, 8.0
cm. from posterior median line, 12.0 cm. above iliac crest
convexity of wound is directed upward, medial extremity sharp,
lateral extremity contused, edges clean-cut and gaping, with
bevelled upper border; track is directed downward slightly
forward and laterally, taking a subcutaneous route at right lateral
lumbar region to a depth of 6.5 cm.
Hemoperitoneum — 840 cc.
Hematomas, retroperitoneal, severe, bilateral.
Heart and its big vessels, almost empty of blood.
Brain and other visceral organs, markedly pale.
Stomach, filled with dark fluid and clotted blood
about 800 cc. 7
Case of Death: Hemorrhage, severe, secondary to
stab wounds of abdomen.
On the other hand, the evidence for the defense consisted of the
testimonies of the two accused. Joseph Casey, when called to testify on
his behalf, admitted having stabbed the victim, Alfredo Valdez but alleged
that he did so in self-defense. His version of the incident was that on
March 31, 1968, he went to the house of Ricardo Felix but was told that
he was not in. So he proceeded to the pool room, located around two or
three meters away from the residence of Ricardo Felix. At the start, he
simply witnessed those playing pool and when they were through, he
himself played. While playing, he accidentally bumped the victim with the
pool cue (tako). He accordingly asked for apoloy but the victim simply
ignored him and left the place immediately. 8
When he was through playing, he went out and saw the victim waiting for
him outside, accompanied by six or seven persons holding pieces of
wood. As the place had no other exit, he proceeded on his way together
with one person named "Rody." While passing by, the victim suddenly
drew a "balisong" and lunged it on him. But he was able to parry the
thrust. He then took hold of the victim's right hand and grappled with him.
In the process, he successfully wrested the knife from him. He then used
45
Rule 110. CRIMINAL PROCEDURE – FULL TEXT 22 CASES
the weapon against him, hitting him about two or three times. While he
was contending with the victim, the latter's companions joined in and hit
him with pieces of wood, inflicting "gasgas" or abrasions on his back. 9
The other accused, Ricardo Felix, testified that he did not see Joseph
Casey on March 31, 1968. Likewise, he said that he knew the victim,
Alfredo Valdez; that he last saw him alive in a store on the same day that
he was killed when he was about to leave for Manila; and that he learned
that he was dead when he returned home. 10
On the basis of the aforesaid evidence, the court a quo rendered the
aforementioned judgment of conviction. It found that two aggravating
circumstances attended the commission of the crime, namely: employing
or taking advantage of superior strength and evident premeditation, one
of which qualified the killing to murder. Hence, this automatic review.
The able counsel de oficio for the accused-appellant raised the following
assignments of errors in a well-prepared brief:
FIRST ASSIGNMENT OF ERROR
The Court a quo erred in illegally trying appellant
Casey on the amended information without
arraignment, and in finding him guilty after such illegal
trial.
SECOND ASSIGNMENT OF ERROR
The Court a quo erred in holding that the appellants
acted with evident premeditation and abuse of superior
strength, and in qualifying the crane committed as
aggravated murder.
THIRD ASSIGNMENT OF ERROR
The Court a quo erred in holding that the appellants
had forged a conspiracy to kill the victim, Alfredo
Valdez.
FOURTH ASSIGNMENT OF ERROR
The Court a quo erred in holding that both appellants
were liable for the death of Alfredo Valdez; if any crime
had been committed at all, the only person responsible
therefore was appellant Casey, and, at that, only for
homicide, instead of murder.
FIFTH ASSIGNMENT OF ERROR
The Court a quo erred in discounting appellant Casey's
defense that he acted in legitimate self-defense.
SIXTH ASSIGNMENT OF ERROR
The Court a quo erred in discounting the defense of
alibi interposed by appellant Felix.
SEVENTH ASSIGNMENT OF ERROR
The Court a quo erred in not acquitting both
appellants. 11
We do not find merit in the first assignment of error. The lack of
arraignment under the amended information is objected to by accused-
appellant Joseph Casey allegedly on the ground that there is a violation
of his constitutional right to be informed of the charge against him. There
can be a violation of such right, however, only when the amendment
pertains to matters of substance. In the case at bar, the alterations
introduced in the information refer to the inclusion of accused appellant
Ricardo Felix to the same charge of murder. They do not change the
nature of the crime against accused-appellant Casey. Conspiracy,
evident premeditation, treachery and taking advantage of superior
strength are similarly alleged in both informations. No extenuating
circumstance is likewise alleged in both. Thus the amendment of the
information as far as accused-appellant Casey is concerned is one of
form and not of substance as it is not prejudicial to his rights.
The test as to whether a defendant is prejudiced by the amendment of an
information has been said to be whether a defense under the information
as it originally stood would be available after the amendment is made,
and whether any evidence defendant might have would be equally
applicable to the information in the one form as in the other. 12A look into
Our jurisprudence on the matter shows that an amendment to an
information introduced after the accused has pleaded not guilty thereto,
which does not change the nature of the crime alleged therein, does not
expose the accused to a charge which could call for a higher penalty,
does not affect the essence of the offense or cause surprise or deprive
the accused of an opportunity to meet the new averment had each been
held to be one of form and not of substance — not prejudicial to the
accused and, therefore, not prohibited by Section 13, Rule 110 of the
Revised Rules of Court. 13
We, however, find the second assignment of error of accused- appellants
meritorious. The lower court erred in its findings and conclusions, herein
quoted below, that the aggravating circumstances of evident
premeditation and abuse of superior strength attended the commission of
the crime:
In the morning of March 31, 1968, from the evidence on the
record, the two (2) accused, Joseph Casey and Ricardo Felix,
had rendezvous in Cubao, Quezon City, and planned to kill the
victim, Alfredo Valdez. (Evident premeditation and conspiracy)
There was superior strength that was used because the victim,
Alfredo Valdez, was alone, being pursued by the two accused,
who were both armed. The two accused did not waste time in
planning the killing of the victim on March 31, 1968. They clung to
their determination of killing the victim. From 9:00 o'clock in the
morning, they had the firm conviction and strong determination of
killing the victim up to the time of the execution of their evil
motive. (People vs. Caushi, G. R. No. L16495) 14
Indeed, accused-appellant Joseph Casey gave an extrajudicial sworn
statement that he met accused-appellant Ricardo Felix and another
person named Rudy in Cubao, Quezon City on that fateful day. However,
there is no showing that this meeting was purposely arranged to plan the
killing of the victim. In fact, the following questions and answers in the
said sworn statement show that there was no preconceived design to kill
the victim:
7. T— Sino ang sinasabi mong binaril at sinaksak mo?
S — Hindi ko po kilala dahil noon ko po lamang nakita ang
nasabing tao.
8. T— Maari mo bang isalaysay ang buong pangyayari?
S — Kami po ay nagkita nila Carding Tuwad at isang
nagngangalang Rody sa Cubao, Quezon City, ng mga alas 9:00
ng umaga, Marzo 31, 1968, at kami ay nag-inuman. Matapos
kaming mag-inuman, ng mga mag-aalas 3:00 ng hapon ng araw
ding iyon, nagyaya po si Carding doon sa kanila sa Barrio Halo-
Halo, San Juan, Rizal, at sa paglalakad namin doon sa daang
Mahinhin, San Juan, Rizal, nakita ni Carding ang isang lalaki, at
ang ginawa ay nilapitan niya. Ng makita ng lalaki si Carding,
tumakbo po, at ang ginawa ni Carding ay kanyang hinabol. 15
The subsequent portions of the said sworn statement further militate
against the existence of evident premeditation. Thus, when accused-
appellant Casey was asked why Ricardo Felix shot the victim, he
answered: "Noon pong nakasakay na kami sa jeep, tinanong ko siya
kung bakit nangyari ang away na yaon at ang sabi ni Carding ay. DATI
KO NANG NAKAENKWENTRO YAONG TAO" (Question No. 28). And
when asked why he stabbed the victim, he replied: Dahilan kasama ko
po si Carding kaya ko po nasaksak ang tao. Hindi ko kusang kagustuhan
na saksakin ang tao kung hindi dahil sa nakasama ko si Carding.
(Question No. 29)
46
Rule 110. CRIMINAL PROCEDURE – FULL TEXT 22 CASES
There is evident premeditation when the killing had been carefully
planned by the offender or when he had previously prepared the means
which he had considered adequate to carry it out, when he had prepared
beforehand the means suitable for carrying it into execution, when he has
had sufficient time to consider and accept the final consequences, and
when there had been a concerted plan. 16 It has also been held that to
appreciate the circumstances of evident premeditation, it is necessary to
establish the following; (1) the time when the offender determined to
commit the crime; (2) the act manifestly indicating that the culprit has
clung to his determination; and (3) a sufficient lapse of time between the
determination and execution to snow him to reflect upon the
consequences of his act and to allow his conscience to overcome the
resolution of his will had he desired to hearken to its warning. 17
From the answers of accused-appellant Casey in said sworn statement, it
can be gleaned that the killing was not a preconceived plan. It was not
preceded by any reflection or deep thought. It was just a spontaneous
decision reached when the victim started to run away upon being
approached by accused-appellant Ricardo Felix. Evident premeditation
cannot, thus, be considered in this case. The Solicitor General himself
agrees with the defense that this circumstance has not been duly proved
(People's Brief, p. 8). Hence, the crime committed is simple homicide
(Article 249, Revised Penal Code).
There are indeed two accused-appellants in this case charged with the
murder of not one victim but superiority in number does not necessarily
mean superiority in strength. It is necessary to show that the aggressors
"cooperated in such a way as to secure advantage from their superiority
in strength." 18 In the case of U.S. vs.. Devela, et al., 19there were two
accused who were armed with a bolo and a dagger. But the
circumstance of abuse of superiority was not taken into consideration
because the mere fact, according to this Court, of there being a
superiority of number is not sufficient to bring the case within this
provision. There must be proof of the relative physical strength of the
aggressors and the assaulted party; 20 or proof that the accused
simultaneously assaulted the deceased. 21As likewise held in People vs.
Trumata and Baligasa, 22 the mere fact that the two accused may have
inflicted fatal wounds on the deceased with their respective bolos does
not justify a finding that advantage was taken of superior strength in the
absence of proof showing that they cooperated in such a way as to
secure advantage from their superiority of strength.
Thus, in the face of the evidence on record showing that although the
victim was pursued by both of the accused-appellants 23 and that he was
unarmed 24 while the accused-appellants were both armed, one with a
gun and the other with a long pointed weapon, 25 since it is also duly
proved that it was only accused-appellant Casey who assaulted and
inflicted stab wounds on him as the other accused-appellant merely
stood nearby toying with his gun, abuse of superiority cannot be said to
have attended the commission of the crime.
The third essential issue to be resolved is whether or not there is
conspiracy between the two accused in the commission of the crime.
Conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it. 26 This
agreement need not be in writing or be expressly manifested. 27 It is
sufficient that there is a mutual implied understanding between the
malefactors as shown by their concerted action towards the fulfillment of
the same objective. In People v. Cadag, 28 it was held: "Conspiracy to
exist does not require an agreement for an appreciable period prior to the
occurrence; from the legal viewpoint, conspiracy exists if, at the time of
the commission of the offense, the accused had the same purpose and
were united in its execution." To the same effect is the ruling in other
cases decided by this Court. 29
Pursuant to this uniform and consistent jurisprudence on the existence of
conspiracy by the mere proof of community of design and purpose on the
part of the accused, We hold that conspiracy exists in this case, True
enough that there is no direct showing that the accused had conspired
together, but their acts and the attendant circumstances disclose that
common motive that would make accused Ricardo Felix as a co-principal
with the actual slayer, Joseph Casey. Without doubt, he performed overt
acts in furtherance of the conspiracy. In People vs. Peralta, 30 it was held
that such overt act may consist in actively participating in the actual
commission of the crime, in lending moral assistance to his co-
conspirators by being present at the scene of the crime, or in exerting
moral ascendancy over the rest of the conspirators as to move them to
executing the conspiracy. In the case at bar, Ricardo Felix's overt acts
consist in instigating the pursuit of the deceased, in firing a shot at him
and in giving Joseph Casey encouragement by his armed presence while
the latter inflicted the fatal wounds on the deceased.
From the extrajudicial confession of the accused-appellant Joseph
Casey, it can also be inferred that Ricardo Felix was the moving factor of
the evil act perpetrated by the former against the victim. While it was
Joseph Casey who inflicted the mortal wounds that caused the death of
the victim, he did so out of his perverted sense of friendship or
companionship with Ricardo Felix.
Hence, it would be incongruous to acquit Ricardo Felix and put all the
blame of the killing on Joseph Casey when it was the latter who merely
joined the former in his criminal resolution. The fact that he did nothing
but toyed with his gun when Joseph Casey successively stabbed the
victim means that he concurred with the wife of Casey to do away with
the victim. For this reason, he should also be held accountable,
notwithstanding the fact that his shot did not hit the victim and that the
cause of death of the victim is the stab wounds inflicted by Casey.
In People vs. Peralta, 31 it was held that the moment it is established that
the malefactors conspired and confederated in the commission of the
felony proved, collective liability of the accused conspirators attaches by
reason of the conspiracy, and the court shall not speculate nor even
investigate as to the actual degree of participation of each of the
perpetrators present at the scene of the crime.
The above discussion also disposes of the fourth assignment of error of
accused-appellants. So We proceed with the fifth assignment of error.
We find that the respondent court correctly disregarded Joseph Casey's
claim of self-defense. Besides being unworthy of credence, said claim is
uncorroborated and contrary to the testimony of the eyewitness,
Mercedes Palomo.
The fact that the victim sustained four stab wounds while the accused
complained merely of abrasions on his back indicates the falsity of the
claim. The accused failed to present a medical certificate for the bruises
he allegedly sustained. He likewise failed to present anybody to attest to
the truth of his allegations. There is no clear and convincing evidence
that the elements of self-defense are present. On the other hand, the
prosecution had not only one but several eyewitnesses to the crime as
shown by the different affidavits attached to the records of the case.
Although only one of the eyewitnesses was presented in court, her lone
testimony on what actually transpired, negating the claim of self-defense,
is more credible than the version of Joseph Casey. Evidence, to be
believed, must not only proceed from the mouth of a credible witness, but
it must be credible in itself. Human perception can be warped by the
impact the events and testimony colored by the unconscious workings of
the mind. No better test has yet been found to measure the value of a
witness' testimony than its conformity to the knowledge and common
experience of mankind. 32
We likewise find that respondent court correctly denied the defense of
alibi of Ricardo Felix. Alibi, in order to be given full faith and credit must
be clearly established and must not leave any room for doubt as to its
plausibility and verity. 33 In the case at bar, said accused-appellant failed
to show clearly and convincingly that he was at some other place about
the time of the alleged crime. He merely said that he was at home and
that he went to Manila. 34 As pointed out by the Solicitor General, he did
not even specify the exact place at Manila where he had gone and the
purpose for going there. Then, while said defense was corroborated by
Joseph Casey, the latter's testimony lacks that character of
trustworthiness since it is very apparent that he was merely attempting to
assume full and exclusive responsibility for the crime. Finally, said
defense is unavailing when there is positive Identification. Prosecution
witness, Mercedes Palomo, gave distinct attributes of Ricardo Felix in her
sworn statement that leave no iota of doubt that he was one of the
perpetrators of the crime.
WHEREFORE, the judgment of the trial court under automatic review is
MODIFIED in that the accused-appellants Joseph Casey and Ricardo
Felix are found guilty beyond reasonable doubt of the crime of homicide
without any attending circumstances and should be sentenced
to reclusion temporal in its medium period. But applying the
Indeterminate Sentence Law, each of the accused is sentenced to an
indeterminate penalty of ten (10) years of prision mayor, as minimum, to
seventeen (17) years and four (4) months of reclusion temporal, as
maximum. The accused are likewise sentenced to indemnify the heirs of
47
Rule 110. CRIMINAL PROCEDURE – FULL TEXT 22 CASES
the deceased Alfredo Valdez in the amount of TWELVE THOUSAND
PESOS (P12,000.00) jointly and severally, and to pay the costs.
SO ORDERED.
Five (5) ID plates yellow gold seeking to amend the original information by: (1) changing the offense
charged from "Robbery" to "Robbery in an Uninhabited Place," (2)
Four (4) ID plates yellow gold alleging conspiracy among all the accused, and (3) deleting all items,
articles and jewelries alleged to have been stolen in the original
Information and substituting them with a different set of items valued at
Six (6) bracelets lock yellow gold P71,336.80 2 to wit:

One (1) anniversary pendant yellow gold

18. G.R. No. L-45772 March 25, 1988
Four (4) pcs. of I.D. Plates
Three (3) heart shape with assorted birthstones 14 Karat yellow gold P 24.00 each
PEOPLE OF THE PHILIPPINES, petitioner, Thirteen (13) pcs. of I.D.
vs. Plates KYG P 26.40 each
Hon. EDUARDO MONTENEGRO, Presiding Judge, Branch IV-B, CFI One (1) lady's (ring) white gold setting
Five (5) pcs. of anniversary
Rizal, Quezon City; ANTONIO CIMARRA, ULPIANO VILLAR, BAYANI Pendant 14 KYG P 17.00 each
CATINDIG, and AVELINO DE LEON, respondents. One (1) white gold ring mounting 18 karats Three (3) pcs. of pendant w/
birthstones 14 KYG P 16.00 each
One (1) white gold ring mounting 18 karats Two (2) pcs. of Signet plain
PADILLA, J.: 14 Karat yello gold rings P 204.00 each
Four (4) pcs. of lady's bracelet,
One (1) yellow gold stud
14 KYG oval shape P 30.00 each
This is a petition for certiorari with preliminary injunction and/or
Four (4) pcs. of necklace 14 KYG P 140.00 each
restraining order, to set aside the order of the respondent court, dated 10 One (1) lady's white gold ring setting One (1) set of ring & earrings
February 1977, denying petitioner's Motion to Admit Amended
mounting w/ 23 brills 14 KYG
Information and the order, dated 22 February 1977, of the same court,
One (1) white gold ring mounting Two (2) pcs. of ladies I.D.
denying the Motion for Reconsideration of said earlier order.
bracelet 14 KYG P 120.00 each
Nine (9) pcs. of diamond design
On 21 March 1977, the court issued a temporary restraining order One (1) pc. white gold earring mounting
earrings 14 KYG P 32.00 each
enjoining respondent court from proceeding to hear and decide the case Five (5) pcs. of Sput-nik cross
until further orders from the Court. Twelve (12) pcs. of semi-precious stone bands with 4 KYG P 99.00 each
one broken One (1) pc. of ladies ring
The facts of the case are as follows: mounting 14 KYG P 290.00
Two (2) Ivory bracelets One (1) pc. of lady's sole diamond ring,
about .40ct w/ yellow gold
On 20 September 1976, the City Fiscal of Quezon City, thru Assistant ring mounting, and one pair
Fiscal Virginia G, Valdez, filed an Information for "Roberry" before the One (1) Silver bracelets of earrings white gold solo
Court of First Instance of Rizal, Branch IV-B, Quezon City, docketed as diamond about .25ct w/ black
Criminal Case No. Q-6821, against Antonio Cimarra, Ulpiano Villar, One (1) yellow ring gold with blue stone onyx P 2,000.00
Bayani Catindig and Avelino de Leon. Said accused (now private One (1) pc. lady's bracelet 14 KYG P 1,500.00
respondents) were all members of the police force of Quezon City and One (1) pc. chain 24KYG necklace
were charged as accessories-after-the-fact in the robbery committed by Two (2) wedding gold rings yellow
w/ small diamond P 1,500.00
the minor Ricardo Cabaloza, who had already pleaded guilty and had One (1) pc. Lapiz Lazuli ring 14 KYG P 1,000.00
been convicted in Criminal Case No. QF-76-051 before the Juvenile and One (1) Minolta pocket size camera One (1) pc. Lapiz Lazuli 18 KYG P 1,000.00
Domestic Relations Court of Quezon City. Ricardo Cabaloza was One (1) pc. Lady's ring w/ 2 Jade stone,
convicted for the robbery of the same items, articles and jewelries One (1) pink handbag white gold w/ small
belonging to Ding Velayo, Inc. valued at P 75,591.40 and enumerated in diamonds and one pc.
the original information 1 against herein private respondents as: lady's ring white gold,
One (1) bunch keys
14 K w/ 2 small diamonds
One (1) Arminius revolver, cal. 22 with six ammo SN- w/ one Jade P 2,000.00
165928 Upon arraignment on 25 October 1976, all of the accused (now private Six (6) pcs. of fancy chains and bracelets P 40.00 each
respondents) entered a plea of "not guilty" to the charge filed against One (1) pair of yellow gold earrings w/
them. Accordingly, trial on the merits was scheduled by the respondent pearl for children P 70.00
One (1) gold men's ring 'signet' court. However, before the trial could proceed, the prosecuting fiscal filed One (1) pc. yellow gold ring w/ blue
a Motion to Admit Amended Information, dated 28 December 1976, sapphire for children P 150.00
48
Rule 110. CRIMINAL PROCEDURE – FULL TEXT 22 CASES
One (1) brown envelope, containing 2 charged from "Robbery" punishable under Article 209 to "Robbery in an WHEREFORE, the petition is DISMISSED. The orders of the respondent
pairs of 1/g loop earrings, Uninhabited Place" punishable under Art. 302 of the Revised Penal court, dated 10 February 1977 and 22 February 1977 are AFFIRMED.
14 karat P 780.00 Code, thereby exposing the private respondents-accused to a higher The temporary restraining order issued on 21 March 1977 is LIFTED.
Cash money (inside the said envelope) P 555.00 penalty as compared to the penalty imposable for the offense charged in
One (1) pc. silver bracelet P 50.00 the original information to which the accused had already entered a plea This decision is immediately executory.
One (1) pc. bronze bracelet P 30.00 of "not guilty" during their arraignment.
One (1) pc. ring blue stone YG P 250.00
One (1) pc. Lapiz Lazuli band P 100.00 SO ORDERED.
Moreover, the change in the items, articles and jewelries allegedly stolen
One (1) pc. Coral band P 30.00 into entirely different articles from those originally complained of, affects
One (1) pc. ring w/ diamond stone, the essense of the imputed crime, and would deprive the accused of the
14 KWG mounting P 250.00 opportunity to meet all the allegations in the amended information, in the
Two (2) pcs. of 14 YG part bracelet P 200.00 preparation of their defenses to the charge filed against them. It will be
Three (3) pcs. of men's ring 14 KYG P 1,500.00 observed that private respondents were accused as accessories-after- 19. G.R. No. L-27825 June 30, 1970
One (1) pc. pendant 14 KYG P 2,000.00 the-fact of the minor Ricardo Cabaloza who had already been convicted
One (1) pc. loose diamond about of robbery of the items listed in the original information. To charge them
4.50 karats antigo P 27,000.00 THE PEOPLE OF THE PHILIPPINES, petitioner,
now as accessories-after-the-fact for a crime different from that vs.
One (1) pc. loose diamond about committed by the principal, would be manifestly incongruous as to be
2.05 carats each antigo cut P 20,000.00 GERARDO RIVERA and the HONORABLE JUDGE LORENZO
allowed by the Court. RELOVA, in his capacity as presiding judge of the Court of First
One (1) pc. Cannon camera w/
black case P 1,200.00 Instance of Batangas, First Branch, respondents.
One (1) pc. Yashika camera w/ The allegation of conspiracy among all the private respondents-accused,
lens cover P 1,300.00 which was not previously included in the original information, is likewise a Criminal procedure; Information; Amendment; Change of wrong date of
One (1) pc. Cannon camera w/ substantial amendment saddling the respondents with the need of a new commission of offense charged is formal amendment.—An amendment of the
black case P 1,100.00 defense in order to meet a different situation in the trial court. In People information merely to state the true and actual year of commission of the offense
v. Zulueta, 5 it was held that: charged on March 2, 1964 rather than March 2, 1965 as inadvertently alleged
through oversight in the information is a matter of form which does not
Private respondents opposed the admission of the Amended Information. prejudice or impair the rights of the accused,
The respondent court resolved to deny the proposed amendments Surely the preparations made by herein accused to
contained in the Amended Information in the previously referred to order face the original charges will have to be radically
Same; Same; Same; Same; Reason.—The amendment which sought the
dated 10 February 1977. Petitioner moved for reconsideration of the modified to meet the new situation. For undoubtedly
correction of an obviously typographical or clerical error in the last digit of the
aforesaid order but the respondent court, on 22 February 1977, denied the allegation of conspiracy enables the prosecution to
year alleged (from 1965 to 1964, the month and day being left exactly the same)
said motion; hence, this petition. attribute and ascribe to the accused Zulueta all the
did not affect the nature and essence of the crime as originally charged. Neither
acts, knowledge, admissions and even omissions of his
did it involve any change in the basic theory of the prosecution so as to cause
co-conspirator Angel Llanes in furtherance of the
Amendment of an information under Sec. 14, Rule 110 of the 1985 Rules surprise to accused and require him to effect any material change or modification
conspiracy. The amendment thereby widens the
on Criminal Procedure (formerly, Section 13, Rule 110 of the old Rules in his defense.
battlefront to allow the use by the prosecution of newly
on Criminal Procedure) may be made at any time before the accused discovered weapons, to the evident discomfiture of the
enters a plea to the charge. Thereafter and during the trial, amendments Same; Same; Same; Amendment to conform to evidence presented on true and
opposite camp. Thus it would seem inequitable to
to the information may also be allowed, as to matters of form, provided actual date of commission of offense.—Where the accused failed to opportunely
sanction the tactical movement at this stage of the
that no prejudice is caused to the rights of the accused. The test as to and timely make an objection to the testimony of the complainant at the opening
controversy, bearing in mind that the accused is only
when the rights of an accused are prejudiced by the amendment of a day of trial that the crime charged was committed in March, 1964 instead of
guaranteed two-days' preparation for trial. Needless to
complaint or information is when a defense under the complaint or March, 1965, as alleged in the information, the prosecution is entitled to effect
emphasize, as in criminal cases, the liberty, even the
information, as it originally stood, would no longer be available after the the amendment to make the information conformable to the testimony presented.
life, of the accused is at stake, it is always wise and
amendment is made, and when any evidence the accused might have, People vs. Rivera, 33 SCRA 746, No. L-27825 June 30, 1970
proper that he be fully apprised of the charges, to avoid
would be inapplicable to the complaint or information as amended. 3 any possible surprise that may lead to injustice. The
prosecution has too many facilities to covet the added TEEHANKEE, J.:
On the other hand, an amendment which merely states with additional advantage of meeting unprepared adversaries.
precision something which is already contained in the original Original action for a writ of certiorari and mandamus, against respondent
information, and which, therefore, adds nothing essential for conviction To allow at this stage the proposed amendment alleging conspiracy Court's order denying the prosecution's petition to amend the original
for the crime charged is an amendment to form that can be made at among all the accused, will make all of the latter liable not only for their information for grave threats against respondent-accused so as to allege
anytime. 4 own individual transgressions or acts but also for the acts of their co- the true and actual date of commission of the offense on March 2, 1964,
conspirators. rather than March 2, 1965 as inadvertently alleged in the original
The proposed amendments in the amended information, in the instant information.
case, are clearly substantial and have the effect of changing the crime
49
Rule 110. CRIMINAL PROCEDURE – FULL TEXT 22 CASES
On June 20, 1966 the original information was filed with respondent court
against respondent Rivera as accused, charging him for grave threats,
alleged by the prosecution to have been committed as follows:
That on or about the 2nd day of March, 1965, in the
Municipality of Batangas, Province of Batangas,
Philippines, and within the Jurisdiction of this
Honorable Court, the above-named accused,
motivated by personal resentment which he
entertained against one Ricardo Rivera, did then and
there wilfully, unlawfully, feloniously, and, in a letter,
seriously threatened to kidnap the wife and the
daughter of said Ricardo Rivera if the latter would not
give him P25,000.00, the accused thus threatening to
inflict upon the persons of the wife and daughter of
Ricardo Rivera of a wrong amounting to a crime, that
is, to kidnap them, although the said accused failed to
attain his purpose.1
Upon arraignment held on August 24, 1966, respondent entered a "not
guilty" plea. Trial was set by respondent court, with the prosecution
initially presenting the complainant as a witness on February 22, 1967,
who testified that the incident complained of occurred in March, 1964,
(not March, 1965 as alleged in the original information).
On March 9, 1967, the prosecution filed a formal petition for admission of
its amended information, the sole amendment consisting of changing the
year of commission of the offense from March 2, 1965 to March 2, 1964
on the grounds of clerical error and of having the information conform to
the evidence in its possession with respect to the year of commission of
the crime charged.
Respondent court, on respondent's opposition, denied on April 12, 1967
admission of the amended information ruling that it was unfair to
respondent and concerned material facts constituting the offense and
would consequently be prejudicial to the substantial rights of respondent-
accused. It denied the prosecution's motion for reconsideration and reset
the continuation of the trial on August 2, 1967 and other dates thereafter,
unless the matter was elevated to this Court.
Upon the prosecution's resort to this Court, we issued a writ of
preliminary injunction restraining respondent court, until further orders,
from continuing with the trial of the case.
The clear issue, then, is whether or not under Rule 110, section 13 of the
Rules of Court,2 the amendment sought after respondent-accused's plea
and during the trial, is merely formal and may be permitted without
prejudice to the rights of respondent-accused.
We hold that the amendment sought by the prosecution merely to state
the true and actual year of commission of the offense charged on March
2, 1964 rather than March 2, 1965 as inadvertently alleged through
oversight in the information is a matter of form which does not prejudice
or impair the rights of respondent-accused.
1. The rule consistently applied by the Court is that after the accused's
plea is entered, amendments that touch upon matters of substance are
not permitted and the information or complaint may be amended only as
to formal matters by leave and at the trial court's discretion, when the
same can be done without prejudice to the rights of the accused. Thus,
an amendment which neither adversely affects any substantial right of
the accused (e.g. does not deprive him of the right to invoke
prescription3 nor affects and/or alters the nature of the offense originally
charged nor involves a change in the basic theory of the prosecution so
as to require the accused to undergo any material change or modification
in his defense) is an amendment as to a matter of form.4
2. Here, all the elements of the crime of grave threats as defined in
Article 282 of the Revised Penal Code and penalized by paragraph 1
thereof were duly alleged in the original information, viz., (1) that
respondent-accused threatened complainant with the infliction of a wrong
on the latter's wife and daughter (2) that such wrong amounted to a
crime, the threat being to kidnap them and (3) the threat was made in a
letter (which calls for imposition of the maximum penalty). The
amendment which sought the correction of an obviously typographical or
clerical error in the last digit of the year alleged (from 1965 to 1964, the
month and day being left exactly the same) did not affect the nature and
essence of the crime as originally charged. Neither did it involve any
change in the basic theory of the prosecution so as to cause surprise to
respondent and require him to effect any material change or modification
in his defense.
Any evidence respondent might have would be equally applicable to the
information in the original form as in the amended form. It is obvious from
the stated facts, and respondent makes no contrary assertion, that no
defense of prescription of the offense is available to respondent whether
the original information alleging the commission of the offense on March
2, 1965 stands or the same is amended to allege one year earlier, 1964,
as the date of commission of the crime charged. As in U.S. vs.
Ramos,5 therefore, where the Court held that "no error was committed by
permitting the fiscal to amend the date of the year of the complaint, by
striking out the last word (1911) and substituting in lieu thereof '1910' (the
crime having been committed on June 16, 1910 and not in June, 1911),"
the amendment here would cause no impairment of prejudice to the
rights of respondent-accused.
3. Respondent Court erroneously relied on time cases of People vs.
Opemia 6 and Wong vs. Yatco 7 to rule that the amendment would
impair the substantial rights of respondent-accused as "he must have
been caught by surprise upon being confronted by evidence tending to
prove a similar offense committed in 1964." Both cases involved
amendments of substance and not merely of form, which respondent
court failed to appreciate properly. In Opemia, in an appeal from the trial
court's order of dismissal, where the proposed amendment would have
changed the date of the commission of the offense from 1947 to 1952,
the Court upheld the trial court's exercise of its discretion in disallowing
the amendment on the ground that "(T)he difference in date could not be
attributed to a clerical error, because the possibility of such an error is
ruled out by the fact that the difference is not only in the year but also in
the month and in the last two digits of the year." In any event, the Court
pointed out, the trial court's dismissal order rendered at the conclusion of
the trial on the ground of variance between allegation and proof, really
amounted to an acquittal, which could no longer be appealed by the
prosecution without placing the accused in double jeopardy. In Wong, the
State was allowed by the trial court "to amend the information (for
violation of Com. Act No. 104) by stating that the offense was committed
between January 2, 1955 and March 17, 1955 (and not from May 3, 1954
to October 11, 1954, as originally charged) on an original information
dated December 28, 1954." The Court, on certiorari, set aside the
amendment as one of substance, "especially as the offense charged was
not yet punishable (for lack of publication) on December 28, 1954, when
the original information was filed "and that while it was true that after the
information was filed, the law had become effective, "the law can have no
retroactive effect ...and the proper course was not to amend the previous
information but to file another one."
4. A further decisive factor in the case at bar is that the pleadings before
us fail to show that respondent-accused had opportunely and timely
made any objection to the testimony of the complainant at the opening
day of trial that the threat was made against him in March, 1964 by
reason of the same being at variance with the allegations of the
information that the crime charged was committed in March, 1965. The
testimony of the complainant is already in the record without objection
from respondent-accused, and the prosecution is therefore entitled to
effect the amendment to make the information conformable to the
testimony presented and the documentary evidence in its possession. 8
5. When the prosecution moved for admission of the amendment,
respondent-accused, aside from asserting general grounds of impairment
of his substantial rights, (above shown to be untenable) opposed the
amendment on the ground that "(I)t is not true that the difference in date
was due to clerical error, because a preliminary investigation was
conducted by the Provincial Fiscal and all the documentary evidence
showing the date the offense was allegedly committed, were submitted to
him." 9 On respondent's own premises, therefore, since the documentary
evidence showing the date the offense of grave threats was allegedly
committed by him was submitted at preliminary investigation and the
original information duly alleged that the threat made by him was
documented, i.e. "in a letter," he could in no way claim unfairness or
prejudice through the amendment, for he was duly apprised from the
beginning — and through the testimony of the complainant admitted at
the trial without objection on his part — that he was being charged and
tried for the crime of grave threats allegedly committed by him on March
2, 1964 and not in March, 1965, i.e., that he was being charged for only
one crime of grave threats committed on March 2, 1964, (inadvertently
50
Rule 110. CRIMINAL PROCEDURE – FULL TEXT 22 CASES
originally alleged to have been committed in March, 1965) rather than the
prosecution confronting him "with evidence tending to prove a similar
offense committed in 1964," aside from another committed in 1965, as
baselessly speculated by respondent court.
The Court, in U.S. vs. Bungaoil, 10 where the information alleged that the
therein accused stole a cow in February, 1915, whereas the evidence at
the trial established that it was stolen seven years, earlier in 1908,
pointed out through the late Justice Moreland that "a variance between
the allegations of the information and the evidence of the prosecution
with respect to the time when the crime was committed would not result
in an acquittal of the accused; but if the accused interposed timely
objection to such variance and showed that it was prejudicial to his
interests in that it deceived him and prevented him from having a fair
opportunity to defend himself, the trial court might grant an adjournment
for such time as would enable the defendant to meet the change in date
which was the cause of his surprise," and that the accused must take
advantage of the variance "some time during the trial by appropriate
objection and satisfy the trial court that he had been prejudiced by reason
thereof" so that the trial court may "take such measures (as an
adjournment) as would give the defendant an opportunity to produce
such witnesses or evidence as the variance ... made necessary." 11
Respondent court therefore committed a grave abuse of discretion in
denying the amendment of the information, and the writ prayed for should
be granted. A note of advertence is due, however, to the prosecution
service that it is preferable that they exercise greater care in the
preparation of the information and checking the allegations
thereof before filing, to avoid similar clerical errors and oversights which
lead only to unnecessary delays of the trial, as well as errors of
substance which would be beyond amendment and result in a
miscarriage of justice.
ACCORDINGLY, the writ of certiorari and mandamus prayed for is
hereby granted. Respondent court's order of April 12, 1967 is set aside
and it is directed to permit the amended information dated March 7, 1967
as presented by the prosecution. With costs against respondent-
accused. So ordered.
20. G.R. No. L-26340 June 30, 1969
JESUS GANCHERO, petitioner,
vs.
HON. ANACLETO BELLOSILLO in his capacity as Judge of CFI of
Iloilo, etc., respondents.
Criminal procedure; Bigamy; Prosecution of offense; Jurisdiction;
Territorial jurisdiction in a bigamy case where the first and second
marriages occurred in two provinces; Case at bar.—The rule is that
where crimes "committed partly in one province and partly in
another, that is to say, where some acts material and essential to
the crime, and requisite to its consummation, occur in one province
and some in another, they are triable in either province" (U.S. v.
Santiago, 27 Phil. 411). This means that to make the offense triable
in more than one province the acts perpetrated in any of them must
be impelled by the same criminal purpose or aim.
In the case at bar, the first marriage took place in Iloilo, while the
second marriage was contracted or entered into in Davao. It is self-
evident that the place where the first marriage was celebrated is
immaterial to the criminal act, intent and responsibility of the
accused, What is essential is that the first marriage be not legally
terminated, actually or by legal presumption, when the subsequent
wedlock takes place; and it is upon the celebration of that
subsequent marriage that bigamy is committed, not before. Since
the second marriage of the accused occurred in Davao, outside the
territorial jurisdiction of the respondent court and in all criminal
prosecutions the action must be instituted and tried in the
municipality or province where the offense or any of its essential
ingredients was committed, the Court of First Instance of Iloilo is
devoid of jurisdiction to take cognizance of the crime charged.
Ganchero vs. Bellosillo, 28 SCRA 673, No. L-26340 June 30,
1969REYES, J.B.L., J.:
Petition for a writ of certiorari quash and set aside, for lack of jurisdiction,
an order of respondent Judge of the Court of First Instance of Iloilo, in its
Case No. 11189, denying a motion to quash and dismiss an information
for bigamy, and directing the trial to proceed.
Petitioner Jesus Ganchero was charged in the said Court of First
Instance, presided over by respondent Judge, Hon. Anacleto Bellosillo,
with the crime of bigamy committed, according to the information, 1 in the
following manner:
That on or about the period covered from 6 June 1963 to 6
February 1965, inclusive, in the City of Iloilo, Philippines, and
within the jurisdiction of this Court, said accused entered into a
contract of marriage with Erlinda Soquatoso before the
Municipal Judge of the City of Iloilo and while the said marriage
was still existing and valid said accused, with bad faith and
fraudulent intent, did then and there willfully, unlawfully and
criminally contracted (sic) a second marriage with Alita
Aranjuez, his second wife, before the Parish Priest of Sto. Niño
Church, Mabini, Davao, knowing fully well that his first marriage
to his first wife, Erlinda Soquatoso, who is still living contracted
on such a date at the City of Iloilo has not been legally
dissolved, but existing.
CONTRARY TO LAW.
The accused moved to dismiss the charge, "on the ground that this Court
hasno jurisdiction over the same, inasmuch as the venue of action is
improperlylaid" (Petition Annex B). Counsel for the accused argued that
on the face ofthe information of the crime of bigamy was committed in the
province of Davao, where the second marriage took place, and that the
Court of First Instance of Iloilo has no jurisdiction to try the accused,
because in criminal proceedings improper venue is lack of jurisdiction.
The Judge below denied the motion to dismiss, and also the subsequent
plea for reconsideration filed by the accused. In view of the court's
adamant stand, the accused resorted to this Court.
The answer avers that the crime charged is triable in Iloilo, because one
ofthe essential ingridients of the crime, the prior marriage of the accused,
had taken place in Iloilo. This the accused disputes.1awphil.nêt
The writ must be granted. The rule laid down by this Court is that where
crimes "committed partly in one province and partly in onother, that is
tosay, where some acts material and essential to the crime, and requisite
toits consummation, occur in one province and some in another, are
triable ineither province." 2 This means that to make the offense triable in
more thanone province the acts perpetrated in any one of them must be
impelled by thesame criminal purpose or aim. In Peo. vs.
Zapata and Bondoc, 88 Phil. 691,this Court stated:
The notion of concept of continuous crime has its origin in the
juridicial fiction favorable to the law transgressors and in many a
case against the interest of society (Cuello Calon, Derecho
Penal, Vol. II, p. 521). For it toexist there should be plurality of
acts performed separately during a periodof time; unity of penal
provision infringed upon or violated; and unity ofcriminal intent
or purpose, which means that two or more violations of thesame
penal provision are united in one and the same intent leading to
the perpetration of the same criminal purposes or aim (Ibid.,
page 520). — — — — — — — — — — —
Bigamy being defined by Article 349 as the contracting "of a second or
subsequent marriage before the former marriage has been legally
dissolved, or before the absent spouse has been declared presumptively
dead by means of a judgment rendered in the proper proceeding," it is
self-evident that the place where the first marriage was celebrated is
immaterial to the criminal act, intent and responsibility of the accused.
What is essential is that thefirst marriage be not legally terminated,
actually or by legal presumption, when the subsequent wedlock takes
place; and it is upon the celebration of that subsequent marriage that
bigamy is committed, not before. The continued existence of the first
marriage is without definite locus.
To hold with the trial court that the celebration of the first marriage was
an essential ingredient of the bigamy is to assume that when the
petitionermarried his first wife he did so with intent already to marry his
51
Rule 110. CRIMINAL PROCEDURE – FULL TEXT 22 CASES
second consort; and there is nothing on record to warrant such
assumption.
Since the second marriage of the accused occurred in Davao, outside
the territorial jurisdiction of the respondent court, and in all criminal
prosecutions the action must be instituted and tried in the municipality or
province where the offense or any of its essential ingredients was
committed, 3 the Court of First Instance for the Province of Iloilo is devoid
of jurisdiction to take cognizance of the crime charged.
WHEREFORE, the writ prayed for is granted, the order denying the
quashing of the information is set aside, and the case ordered dismissed.
The preliminary injunction heretofore issued is made permanent. No
costs.
21. G.R. No. L-28519 February 17, 1968
RICARDO PARULAN, petitioner,
vs.
DIRECTOR OF PRISONS, respondent.
Jurisdiction; Crimes, persistent and continuing, defined; Evasion of
service or sentence.—Rule 110, section 14, of the Revised Rules of
Court provides that in all criminal prosecutions the action shall be
instituted and tried in the court of the municipality or province where the
offense was committed or any of the essential ingredients thereof took
place. In transitory or continuing offenses some acts material and
essential to the crime occur, in one province and some in another, in
which case, the rule is settled that the court of either province where any
of the essential ingredients of the crime took place has jurisdiction to try
the case. There are, however, crimes which although all the elements
thereof for its consummation may have occurred in a single place, yet by
reason of the very nature of the offense committed, the violation of the
law is deemed to be continuing. Of the first class, the crime of estafa or
malversation, and abduction, may be mentioned and as belonging to the
second class are the crimes of kidnapping and illegal detention where the
deprivation of liberty is persistent and continuing from one place to
another and libel where the libelous matter is published or circulated from
one province to another. To this latter class may also be included the
crime of evasion of service of sentence, when the prisoner in his attempt
to evade the service of sentence imposed upon him by the courts and
thus defeat the purpose of the law, moves from one place to another; for,
in this case, the act of the escaped prisoner is a continuous or series of
acts set afoot by a single impulse and operated by an unintermittent
force, however long it may be, It may not be validly said that after the
convict shall have escaped from the place of his confinement the crime is
fully consummated, for as long as he continues to evade the service of
his sentence he is deemed to continue committing the crime, and may be
arrested without warrant, at any place where he may be found.
Same; Evasion of service of sentence; Arrest, without a warrant, principle
applied.—Rule 113 of the Revised Rules of Court may be invoked in
support of this conclusion; for, under Section 6(c) thereof one of the
instances when a person may be validly arrested without warrant is
where he has escaped from confinement. Undoubtedly, this right of
arrest without a warrant is founded on the principle that at the time of the
arrest, the escapee is in the continuous act of committing a crime—
evading the service of his sentence. Parulan vs. Director of Prisons, 22
SCRA 638, No. L-28519 February 17, 1968
RESOLUTION
ANGELES, J.:
On petition for a writ of habeas corpus, filed by Ricardo Parulan,
directed to the Director of the Bureau of Prisons, praying that the latter be
ordered "to release immediately and without delay the body of the
petitioner from unlawful and illegal confinement", anchoring the relief
prayed for on certain allegations in the petition, to the effect that
petitioner's confinement in the state penitentiary at Muntinglupa, Rizal,
under the administrative and supervisory control of the respondent
Director of Prisons, is illegal, for the reason that the sentence of
conviction imposed upon said petitioner for the crime of evasion of
service of sentence, penalized under Article 157 of the Revised Penal
Code, was rendered by a court without jurisdiction over his person and of
the offense with which he was charged.
It appears that the petitioner, as alleged in the petition, was
confined in the state penitentiary at Muntinglupa, Rizal, serving a
sentence of life imprisonment which, however, was commuted to twenty
(20) years by the President of the Philippines. In October, 1964, he was
transferred to the military barracks of Fort Bonifacio (formerly Fort Wm.
McKinley) situated at Makati, Rizal, under the custody of the Stockade
Officer of the said military barracks. In that month of October, 1964, while
still serving his prison term as aforesaid, he effected his escape from his
confinement. Petitioner was recaptured in the City of Manila. Prosecuted
for the crime of evasion of service of sentence, penalized under Article
157 of the Revised Penal Code, before the Court of First Instance of
Manila, after due trial, petitioner was found guilty of the offense charged
and sentenced accordingly with the imposable penalty prescribed by law,
on August 3, 1966.
Assuming the correctness of the facts as alleged in the petition,
and on the basis thereof, we shall proceed to discuss the merits of the
case regarding the validity and legality of the decision sentencing the
petitioner to a prison term for the crime of evasion of sentence.
Settled is the rule that for deprivation of any fundamental or
constitutional rights, lack of jurisdiction of the court to impose the
sentence, or excessive penalty affords grounds for relief by habeas
corpus.
The issue, therefore, as posed in the petition is: Was the Court of
First Instance of Manila with jurisdiction to try and decide the case and to
impose the sentence upon the petitioner, for the offense with which he
was charged — evasion of service of sentence?
Section 14, Rule 110 of the Revised Rules of Court provides:
Place where action is to be instituted. — (a) In all criminal
prosecutions the action shall be instituted and tried in the court
of the municipality of province where the offense was committed
or any of the essential ingredients thereof took place.
There are crimes which are called transitory or continuing offenses
because some acts material and essential to the crime occur in one
province and some in another, in which case, the rule is settled that the
court of either province where any of the essential ingredients of the
crime took place has — jurisdiction to try the case.1 As Gomez Orbaneja
opines —
Que habiendo en el delito continuado tantos resultados
como hechos independientes en sentido natural, el principio del
resultado no basta para fijar el forum delicti commisi, y ha de
aceptarse que el delito se comete en cualquiera de los lugares
donde se produzca uno de pesos plurales resultados.2
There are, however, crimes which although all the elements
thereof for its consummation may have occurred in a single place, yet by
reason of the very nature of the offense committed, the violation of the
law is deemed to be continuing. Of the first class, the crime of estafa or
malversation3 and abduction 4 may be mentioned; and as belonging to
the second class are the crimes of kidnapping and illegal detention where
the deprivation of liberty is persistent and continuing from one place to
another 5 and libel where the libelous matter is published or circulated
from one province to another. 6 To this latter class may also be included
the crime of evasion of service of sentence, when the prisoner in his
attempt to evade the service of the sentence imposed upon him by the
courts and thus defeat the purpose of the law, moves from one place to
another; for, in this case, the act of the escaped prisoner is a continuous
or series of acts, set on foot by a single impulse and operated by an
unintermittent force, however long it may be. It may not be validly said
that after the convict shall have escaped from the place of his
confinement the crime is fully consummated, for, as long as he continues
to evade the service of his sentence, he is deemed to continue
committing the crime, and may be arrested without warrant, at any place
where he may be found. Rule 113 of the Revised Rules of Court may be
invoked in support of this conclusion, for, under section 6[c] thereof, one
of the instances when a person may be arrested without warrant is where
he has escaped from confinement. 7Undoubtedly, this right of arrest
without a warrant is founded on the principle that at the time of the arrest,
the escapee is in the continuous act of committing a crime — evading the
service of his sentence.
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Rule 110. CRIMINAL PROCEDURE – FULL TEXT 22 CASES
WHEREFORE, the writ is denied. Without costs.
22. G.R. No. L-35377-78 July 31, 1975
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
CAMILO PILOTIN, VINCENT CRISOLOGO, ISIDRO PUGAL and
ERNING ABANO, defendants-appellants.
Constitutional law; Supreme Court; Power to order a change of
venue or place of trial to avoid a miscarriage of justice; Case at
bar.—Section 5(4), Article X of the Constitution expressly empowers
the Supreme Court to “order a change of venue or place of trial to
avoid a miscarriage of justice”. In the case at bar, what is involved
is not merely a miscarriage of justice but the personal safety of the
accused. It would be absurd to compel him to undergo trial in a
place where his life would be imperilled.
Same; Same; Same; Hostile sentiment against the accused at place
of trial a justification for transfer of venue.—Present hostile
sentiment against the accused at the place of trial is a justification
for transfer of venue.
Same; Same; Same; Change of venue involves change of place of
hearing and transfer of expediente of case; Case at bar.—The
change of venue involves not merely the change of the place of
hearing but also the transfer of the expediente of Criminal Case No.
3949 to another court. According to the accused’s motion, the
alleged evidence against him is in the custody of the authorities at
Camp Crame, Quezon City. The transfer of Criminal Case No. 3949
to the City Court of Quezon City and the holding of the trial at Camp
Crame appear to be the most convenient arrangement. People vs.
Pilotin, 65 SCRA 635, Nos. L-35377-78 July 31, 1975
RESOLUTION
AQUINO, J.:
Vincent Crisologo through counsel filed a verified motion praying for the
transfer to the New Bilibid Prisons or, alternatively, to Camps Crame,
Aguinaldo or Olivas, of the place of trial of Criminal Case No. 3949 of the
municipal court of Vigan, Ilocos Sur, wherein he, as sole defendant, is
charged with illegal possession of firearms and ammunitions.
As justificatory ground, he alleged that his life would be in jeopardy if he
were to be confined in the Vigan municipal jail during the trial because
there are many political enemies of the Crisologo family in that vicinity;
some of the adherents of the Crisologos had in fact been murdered in
Ilocos Sur, and his father, Congressman Floro Crisologo, was shot to
death while hearing mass at the Vigan cathedral.
Bluntly, he affirmed that inside that jail he would be a sitting duck for a
gunwielder or grenade-thrower who wants to assassinate him. He could
even be lynched or shot to death on the specious pretext that he was
trying to escape.
Asked to comment on the motion, the Provincial Fiscal of Ilocos Sur
signified his conformity to the transfer of the venue of the trial to the New
Bilibid Prisons.
Section 5(4), Article X of the Constitution expressly empowers this Court
to "order a change of venue or place of trial to avoid a miscarriage of
justice". Here, what is involved is not merely a miscarriage of justice but
the personal safety of movant Crisologo, the accused. It would be absurd
to compel him to undergo trial in a place where his life would be
imperilled.
Present hostile sentiment against the accused at the place of trial is a
justification for transfer of venue (See State vs. Siers, 136 S. E. 503, 103,
W. Va. 30; 22 C.J.S. 310).1äwphï1.ñët
We find Crisologo's motion to be meritorious. The change of venue
involves not merely the change of the place of hearing but also the
transfer of the expediente of Criminal Case No. 3949 to another court.
According to Crisologo's motion, the alleged evidence against him is in
the custody of the authorities at Camp Crame, Quezon City. The transfer
of Criminal Case No. 3949 to the City Court of Quezon City and the
holding of the trial at Camp Crame appear to be the most convenient
arrangement.
WHEREFORE, the municipal court of Vigan is directed to transfer the
record of Criminal Case No. 3949 to the City Court of Quezon City where
it should be re-docketed and raffled to any Judge thereof. The case may
be tried at Camp Crame. The usual precautions and security measures
should be adopted in bringing defendant Crisologo to Camp Crame on
the occasion of the hearing.
SO ORDERED.
53