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RULE 110

COLMENARES VS. VILLAR


It must be remembered that the jurisdiction of the court over a case is determined by the allegations of the complaint or information. Here, the complaint filed with the municipal court of La Castellana recited that on 22 December 1966 the accused, Francisco Colmenares, was found in possession of two unlicensed firearms in the municipality of La Castellana. That allegation makes the filing of the case in the La Castellana municipal court proper. Under the Rules, criminal actions shall be instituted and tried in the court of the municipality or province wherein the offense was committed or any one of the essential ingredients thereof took place. That the firearms were confiscated from him by the La Carlota policemen within the territorial boundaries of that municipality would not sustain the motion for quashal of the complaint in this case nor affect the merits thereof. It is not altogether improbable that the offense of unlawful possession of firearms could have been committed in La Castellana, as stated in the complaint, and also in La Carlota, as manifested by the appellant. For, being malum prohibitum, the crime is consummated by the very fact of its performance; by the firearms being possessed or held by the accused without proper authorization therefor. The place where the said firearms were finally confiscated and taken away from the accused is immaterial; it could not have added anything to the nature of the unlawful act completed and consummated earlier. Thus, for purposes of the proceeding instituted in the La Castellana municipal court, it is sufficient that, according to the prosecution, the accused was in possession of the unlicensed firearms while he was in La Castellana.

To determine the correct venue, the vital point is the allegation of the situs of the offense charged in the complaint or information, and that is satisfied in this case.

COMMISSIONER OF INTERNAL REVENUE VS. CA


As a general rule, criminal prosecutions cannot be enjoined: However, there are recognized exceptions which, as summarized in Brocka v. Enrile are: a. To afford adequate protection to the constitutional rights of the accused (Hernandez vs. Albano, et al., L-19272, January 25, 1967, 19 SCRA 95); b. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions (Dimayuga, et al. vs. Fernandez, 43 Phil. 304; Hernandez vs. Albano, supra; Fortun vs. Labang, et al., L-38383, May 27, 1981, 104 SCRA 607); c. When there is a prejudicial question which is sub judice (De Leon vs. Mabanag, 70 Phil. 202); d. When the acts of the officer are without or in excess of authority (Planas vs. Gil, 67 Phil. 62); e. Where the prosecution is under an invalid law, ordinance or regulation (Young vs. Rafferty, 33 Phil. 556; Yu Cong Eng vs. Trinidad, 47 Phil. 385, 389); f. When double jeopardy is clearly apparent (Sangalang vs. People and Alvendia, 109 Phil. 1140); g. Where the court had no jurisdiction over the offense (Lopez vs. City Judge, L-25795, October 29, 1966, 18 SCRA 616); h. Where it is a case of persecution rather than prosecution (Rustia vs. Ocampo, CA-G.R. No. 4760, March 25, 1960); i. Where the charges are manifestly false and motivated by the lust for vengeance (Recto vs. Castelo, 18 L.J., cited in Rano vs. Alvenia, CA-G.R. No. 30720-R, October 8, 1962; Cf. Guingona, et al. vs. City Fiscal, L-60033, April 4, 1984, 128 SCRA 577); and

j. When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied (Salonga vs. Pano, et al., L-59524, February 18, 1985, 134 SCRA 438). In issuing the questioned orders granting the issuance of a writ of preliminary injunction, the trial court believed that said orders were warranted to afford private respondents adequate protection of their constitutional rights, particularly in reference to presumption of innocence, due process and equal protection of the laws. The trial court also found merit in private respondents contention that preliminary injunction should be issued to avoid oppression and because the acts of the state prosecutors were without or in excess of authority and for the reason that there was a prejudicial question. Indeed, the purpose of a preliminary injunction is to secure the innocent against hasty, malicious and oppressive prosecution and to protect him from an open and public accusation of crime, from the trouble, expense and anxiety of a public trial and also to protect the state from useless and expensive trials. In Borja v. Moreno, it was held that the act of the investigator in proceeding with the hearing without first acting on respondents motion to dismiss is a manifest disregard of the requirement of due process. Implicit in the opinion

if upon the examination of the complaint, it was clear that there was no ground to continue with the inquiry, the investigating prosecutor was duty bound to dismiss the case. On this point, the trial
of the trial court and the Court of Appeals is that, court stressed that the prosecutors conducting the preliminary investigation should have allowed the production of the Daily Manufacturers Sworn Statements submitted by Fortune without which there was no valid basis for the allegation that private respondents wilfully attempted to evade payment of the correct taxes. The prosecutors should also have produced the Daily Manufacturers Sworn Statements by other cigarette companies, as sought by private respondents, to show that these companies which had paid the ad valorem taxes on the same basis and in the same manner as Fortune were not similarly criminally charged. But the investigating prosecutors denied private respondents motion, thus, indicating that only Fortune was singled out for prosecution. The trial court and the Court of Appeals maintained that at that stage of the preliminary investigation, where the complaint and the accompanying affidavits and supporting documents did not show any violation of the Tax Code providing

penal sanctions, the prosecutors should have dismissed the complaint outright because of total lack of evidence, instead of requiring private respondents to submit their counter affidavits under Section 3(b) of Rule 112

CRESPO VS. MOGUL


It is a cardinal principle that any criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of the fiscal. 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 follow 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. 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. It cannot be controlled by the complainant. 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. 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 facie case. It is through the conduct of a preliminary investigation that the fiscal determines the

existence of a prima 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. 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. 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 reinvestigate 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.

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 may be 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 case filed in Court or otherwise, that an information be filed in Court.
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. 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 submitted himself to the Court or was duly arrested, the Court thereby acquired jurisdiction over the person of the accused. 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

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
the criminal action against the accused in Court.

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.
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. 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. 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

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 therefore 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 been filed in Court. The matter should be left entirely for the determination of the Court.

DURAN VS. TAN


SEC. 14. Place where actions is to be instituted. (a) In all criminal prosecutions the actions shall be

instituted and tried in the court of the municipality or province wherein the offense was committed or any one of the essential ingredients thereof took place.
From the foregoing provisions and in accordance with settled jurisprudence, the commission of an offense is triable only in the courts of the place where the offense was allegedly committed. In the instant case, the offense charged was fully committed in the City of Manila where the automobile was allegedly stolen from its parking place in Port Area. The fact that said automobile was later found in Rizal City is not essential ingredient of the crime but a mere circumstance which could add nothing to the nature of the offense or to its consummation. Hence, this circumstance cannot be made determinative of the jurisdiction of the trial court over the criminal action. In the case of People vs. Mercado (65 Phil., 665, 666) the defendant had stolen an animal in Gapan, Nueva Ecija, and had later taken it to Candaba, Pampanga, where it was found, and this Court held that the fact that the animal was taken to Pampanga did not give the court of that province concurrent jurisdiction to try the case because the consummation of the theft was completed when the animal was taking from the owner in Nueva Ecija, and its taking to Pampanga added nothing to the nature or consummation of the offense. The American rule that larceny is a continuing offense does not apply to theft because "carrying away" which is one of the characteristics of larceny is not an essential ingredient of theft, as stated by this Court in the in the Mercado case. if, as maintained by some members of the court, every moment's continuance of the thief's possession is a new taking and aspiration, then criminal action would never prescribe against a thief in possession of the stolen thing.

GANCHERO VS. BELLOSILLO


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 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. The continued existence of the first marriage is without definite locus.

GONZALES VS. SERRANO


Since the City Fiscal is entitled to use his judgment and a measure of discretion in the appreciation of the evidence presented to him, it is clear that the exercise of such judgment and discretion, under the facts and circumstances already adverted, may not be controlled by mandamus.

GONZALEZ BULACAN

VS.

CFI

OF

Under the American system the prosecution of public offenses is reserved to the representative of the Government to such an extent that the individual citizen can not bring an action for that purpose. He is protected by his right to bring a personal action for the damage which the commission of a crime may occasion him. As to him the crime is but the source of a civil obligation. General Orders, No. 58, series of 1900, which has established the principles and rules of criminal procedure peculiar to that system of legislation, as a concession to the period of transition from one system of legislation to another, has compromised only with the private penal action of the injured party, but with that of the latter alone not with the action which under the former law on the subject of criminal procedure might be brought by any citizen who might desire to aid the action of the Government.

It was necessary to maintain the private penal action of the injured party himself, in consequence of the continued operation of the Penal Code, for two reasons:

First, because, on principle, the declaration of


the criminal liability carries with it the declaration of the resulting civil obligation;

Second,

because there are crimes which can not be prosecuted other than at the formal instance of the person injured.
For this reason, under the heading "rights of the person injured by the offense," section 107 was drawn, according to which, "the privilege now secured by law to the person claiming to be injured by the commission of an offense to take part in the prosecution of the offense and recover damages for the injury sustained by reason of the same

shall not be abridged by the provisions of this order . . . . It is evident that the special and accentuated inclusion of the right of the person injured, not recognized in the general principles which form the basis of this procedural system, is the most express exclusion of any other right, such as that arising from the popular penal action, not recognized in the American system. . . .

In this latter case the position occupied by the offended party is subordinate to that of the fiscal because, as the fiscal alone is authorized to represent the public prosecution, or the People of the Philippine Islands, in the prosecution of offenders, and to control the proceeding, and as it is discretionary with him to institute and prosecute a criminal proceeding, being at liberty to commence it or not or to refrain from prosecuting it or not, depending upon whether or not there is, in his opinion, sufficient evidence to establish the guilt of the accused beyond a reasonable doubt, except when the case is pending in the Court of First Instance, the continuation of the offended party's intervention depends upon the continuation of the proceeding. Consequently, if the fiscal desists from pressing the charge or asks the competent Court of First Instance in which the case is pending for the dismissal thereof, and said court grants the petition, the intervention of the person injured by the commission of the offense ceases by virtue of the principle that the accessory

Consequently, as the offended party is not entitled to represent the People of the Philippine Islands in the prosecution of a public offense, or to control the proceeding once it is commenced, and as his right to intervene therein is subject to the fiscal's right of control, it can be stated that an order of dismissal decreed upon petition of the fiscal himself deprives the offended party of his right to appeal from
follows the principal.

an order overruling a complaint or information, which right belongs exclusively to the fiscal by virtue of the provisions of section 44 of General Orders, No. 58. To permit a person injured by the commission of an offense to appeal from an order dismissing a criminal case issued by a Court of First Instance upon petition of the fiscal, would be tantamount to giving said offended party the direction and control of a criminal proceeding in violation of the provisions

IZON VS. PEOPLE


The charge merely designated the offense as one for: "ROBBERY WITH VIOLENCE AGAINST PERSON." The facts alleged in the information make out a case of "carnapping". This offense is defined in section 2 of Republic Act No. 6539 as 'the taking, with intent to gain, of a motor vehicle belonging to another without the latter's consent, or by means of violence against or

The information clearly specified that what was taken and carried away was "one (1) motorized tricycle." Herein petitioners cannot claim that they were misled by the information into pleading guilty. It is not necessary for the protection of the substantial right of the accused, nor the effective preparation of his defense, that he
intimidation of persons, or by using force upon things

be informed of the technical name of the crime of which he stands charged. He must look to the facts alleged

LLANTO VS. DIMAPORO


By section 3, Rule 65 of the Rules of Court, mandamus will issue if the performance of an act is one "which the law specifically enjoins as a duty resulting from an office, trust or station". Mandamus compels performance of a ministerial duty. That duty must be clear and specific. But mandamus is not meant to control or review the normal exercise of judgment or discretion. which is the case here. The respondent board, therefore, cannot be compelled to restore petitioner's item in the budget.

MANUEL VS. PANO


From the purely procedural perspective, there is much to fault about the information. The two Chinese clients who were impleaded with the petitioner were charged with absolutely nothing, prompting the respondent judge to peremptorily dismiss the information as to them. Worse, the information imputed to the remaining accused two different offenses, to wit, writing the allegedly libelous letter and causing the publication of the allegedly libelous news report. This was not allowed under Rule 110, Section 12, of the Rules of Court, providing that "a complaint or information must charge but one offense, except only in those cases in which existing laws prescribe a single punishment for various offenses." If libelous the letter and the news report constituted separate offenses that should have been charged in separate informations. (However, not having been raised in the motion to quash, that ground was deemed waived under Rule 15, Section 8, of the Rules of Court.) We are convinced that the information against the petitioner should never have been filed at all and that the respondent judge committed grave abuse of discretion in denying the motion to quash the information on the ground that the allegation petitions therein did not constitute an offense.

OGBURN VS. CA

The factual findings and conclusions of the Ombudsman, although entitled to respect, should not be allowed to take precedence over the findings of the prosecuting officers who had personally conducted the preliminary investigation. The determination of whether or not an information must be lodged with the courts lies within the exclusive realm of the prosecution, free from the influence or intervention of the courts or quasi-judicial bodies

PEOPLE VS. BORROMEO


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

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 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) year or twelve (12) months, was merely a matter of form and does not prejudice the rights of the accused, reiterating the ruling in the case of U.S. vs. Ramos

(1912, 23 Phil. 300) where the Fiscal was permitted to 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 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]).

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."

PEOPLE VS. BUGTONG


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.

PEOPLE VS. CA
The trial Judge should have allowed the amendment in Criminal Cases Nos. 4747 and 4748 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 wilfully, 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." 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, following which the fiscal sought the discharge of the two other co-defendants in order to utilize them as prosecution witnesses. The court granted the discharge. His appeal having been denied as well as his motion for reconsideration of the denial of the appeal, defendant filed a petition for a writ of certiorari. It was alleged that the admission of the amendment was an abuse of discretion

PEOPLE VS. ILARDE


It must be borne in mind, however, that this legal requirement was imposed "out of consideration for the aggrieved party who might prefer to suffer the outrage in silence rather than go through the scandal of a public trial." Thus, the law leaves it to the option of the aggrieved spouse to seek judicial redress for the affront committed by the erring spouse. And this, to our mind, should be the overriding consideration in determining the issue of whether or not the condition precedent prescribed by said Article 344 has been complied with. For needless to state, this Court should be guided by the spirit, rather than the letter, of the law. Undoubtedly, the complaint-affidavit filed by Santibaez contains all the elements of a valid complaint, as "it states the names of the defendants, the designation of the offense by the statute, the acts or omission complained of as constituting the offense; the name of the offended party, the approximate time of the commission of the offense, and the place wherein the offense was committed.

What is more, said complaint-affidavit was attached to the information as an integral part thereof, and duly filed with the court. As held in Fernandez vs. Lantin, the filing in court of which

affidavit or sworn statement of the offended party, if it contains all the allegations required of a criminal complaint under Section 5, Rule 110 of the Rules of Court, constitutes sufficient compliance of the law.

PEOPLE VS. OLARTE


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.

PEOPLE VS. PAILANO


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, willfully, unlawfully and feloniously have carnal knowledge of the complainant, Anita Ibaez, 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. 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, 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, 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, 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.

PEOPLE VS. REGALA


But the appellant cannot be convicted of the complex crime of homicide with assault upon an agent of a person in authority because the information filed against appellant did not allege the essential elements of assault that the accused then knew that, before or at the time of the assault, the victim was an agent of a person in authority. (People of the Philippines vs. Rodil, L-35156; Nov. 20, 1981;
People vs. CFI of Quezon, Branch V, 68 SCRA 305, Nov. 28, 1975). The information in this case barely alleged that the accused "... with deliberate intent to kill, with evident premeditation and treachery and taking advantage of nighttime, did then and there wilfully, unlawfully and feloniously attack and stab with a knife (cuchillo) one Sgt. Juan Desilos Jr., a member of the Philippine Constabulary while he was then in the performance of his official duty thereby inflicting upon the latter serious stab wounds at the midepigastric region penetrating abdominal cavity and perforating cardial and cardiac region which injury directly caused his instantaneous death," which is similar to the information in the aforesaid Rodil case "appellant 'attack and stab PC Lt. Guillermo Masana while the latter was in the performance of his official duties, ..." in which We ruled that "[S]uch an allegation cannot be an adequate substitute for the essential averment to justify a conviction of the complex crime, which necessarily requires the imposition of the maximum period of the penalty prescribed for the graver offense ... " Furthermore, as in the Rodil case, the subject information cannot be cured or validated by the doctrine enunciated in People vs. Balbar (21 SCRA 1119, Nov. 29, 1967), because unlike in the latter case, there are no allegations of facts from which it can be implied that

the accused then knew that, before or at the time of the assault, the victim was an agent of a person in authority. Moreover, the fact that the crime of assault was established by the evidence of the prosecution without any objection on the part of the accused cannot likewise cure the aforestated defect in the information so as to validly convict the accused thereof; because to do so would be convicting the accused of a crime not properly alleged in the body of the information in violation of his constitutional right to be informed of the nature and cause of the accusation against him.

PEOPLE VS. REYES


Under Section 13, Rule 110, Rules of Court, the complaint or information in a criminal case where the accused had been arraigned and had pleaded, as in this case, may be amended only as to all matters of form when the same can be done without prejudice to the substantial rights of the accused. In the present case, private respondent Francisco Estrella was investigated for an offense allegedly committed in August of 1964. Then, he was charged for an offense allegedly committed in August of 1969. He pleaded not guilty to the latter charge. Now petitioner desires to put him on trial for the alleged 1964 offense. This cannot legally be done.

The petitioner's argument that the time or date of the commission of the offense is not a material ingredient of the crime of qualified theft cannot be given much weight in this case because the disparity of time between the years 1964 and 1969 is so great as to defy approximation in the commission of one and the same

offense. While it has been held that except when time is a material
ingredient of an offense, the precise time of commission need not be stated in the information, this Court stated that this does not mean that the prosecuting officer may be careless about fixing the date of the alleged crime, or that he may omit the date altogether, or that he may make the allegation so indefinite as to amount to the same thing. The prosecution is given the chance to allege an approximation of time of the commission of the offense and the precise date need not be stated but it does not mean that it can prove any date remote or far removed from the given approximate date so as to surprise and prejudice the accused.

PEOPLE VS. SUNPONGCO


Article 344 of the Revised Penal Code and Rule 110 section 5 (formerly section 4 of the Revised Rules of Court) of the 1985 Rules on Criminal Procedure require that the offenses of abduction and rape and other offenses which cannot be prosecuted de oficio shall not be prosecuted except upon complaint filed by the Offended

Compliance with this is a jurisdictional and not merely a formal requirement.


party. The Rules of Court further provides that evidence which has not been formally offered shall not be considered by the court. [Rule 132, section 35].

Applying these rules to the case at bar it is admitted that the sworn complaint of Juanita Angeles was not formally offered in evidence by the prosecution, This failure to adhere to the rules however is not fatal and did not oust the court of its jurisdiction to hear and decide the case. Jurisprudence reveals that if the complaint in a case which cannot be prosecuted de oficio is forwarded to the trial court as part of the records of the preliminary investigation of the case, the court can take judicial notice of the same without the necessity of its formal introduction as evidence for the prosecution

PEOPLE VS. TANADA


... 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 the 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. (Samilin v. CFI of Pangasinan, 57 Phil. 298, 304) In the case at bar, the offended woman and her mother have negated such preference by filing the complaint adverted to above ... Accordingly, the procedure taken by the offended party in the instant case of filing first a complaint before the Office of the City Fiscal, which complaint was adopted by the fiscal and attached to and made part of the corresponding information filed after investigation, sufficiently complies with the requirement of Article 344 of the Penal Code and Section 4, Rule 110 of the Rules of Court in accordance with our pronouncement in the Valdepeas case. Further, it was the proper procedure, and it remains so, pursuant to the Charter of Cebu City.

PEOPLE VS. YUSAY


The facts proven show that the accused took and stole two pawn tickets issued to bearer, without the consent of Leonor Gil de Lazaro, and using the numbers of said tickets, but without presenting them, and misrepresenting himself to be the owner of the jewels mentioned in said pawn tickets, succeeded in redeeming them from the pawnshop in which they were

pledged. If the pawn tickets were taken and stolen and not the jewels, which were voluntarily delivered to the accused by the pawnshop, although through false statements of the accused, said delivery cannot be qualified as theft under the provisions of the Penal Code now in force. And as it was not proved that the jewels were taken without the consent of the pawnshop in which they were pledged, nor of the owner, the accused cannot be convicted under said information in which he is charged with the crime of theft of said jewels, because to do so would be infringing upon the constitutional right of the accused "to demand the nature and cause of the accusation against him." (Sec. 3. Jones Law.)

On account of the discrepancy between the facts alleged in the information and those proven at the trial, said information must be dismissed and the accused acquitted, and another information should be filed in accordance with the facts proven.

REGALA VS. CFI OF BATAAN


An amendment of conspiracy in an information is one of form and not of substance. The change refers only to the form of commission of the crime and not to the substance of the crime itself.
However, Pamaran has a different opinion on this one that conspiracy is a substantial amendment because a defendant has to demonstrate as well that the acts of his co-accused are not imputable to him, which renders his defense all the more difficult.

ROBERTS JR. VS. CA


There is nothing in Crespo vs. Mogul which bars the DOJ from taking cognizance of an appeal, by way of a petition for review, by an accused in a criminal case from an unfavorable ruling of the investigating prosecutor. It merely advised the DOJ to, "as far as practicable, refrain from entertaining a petition for review or appeal from the

action of the fiscal, when the complaint or information has already been filed in Court."
Crespo could not have intended otherwise without doing violence to, or repealing, the last paragraph of Section 4, Rule 112 of the Rules of Court 54 which recognizes the authority of the Secretary of Justice to reverse the resolution of the provincial or city prosecutor or chief state prosecutor upon petition by a proper party. The real and ultimate test of the independence and integrity of his court is not the filing of the aforementioned motions at that stage of the proceedings but the filing of a motion to dismiss or to withdraw the information on the basis of a resolution of the petition for review reversing the Joint Resolution of the investigating prosecutor. Before that time, the following pronouncement in Crespo did not yet truly become relevant or applicable:

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.
However, once a motion to dismiss or withdraw the information is filed the trial judge may grant or deny it, not out of subservience to the Secretary of Justice, but in faithful exercise of judicial prerogative. This Court pertinently stated so in Martinez vs. Court of Appeals: Whether to approve or disapprove the stand taken by the prosecution is not the exercise of discretion required in cases like this. The trial judge must himself be convinced that there was indeed no sufficient evidence against the accused, and this conclusion can be arrived at only after an assessment of the evidence in the possession of the prosecution. What was imperatively required was the trial judge's own assessment of such evidence, it not being sufficient for the valid and proper exercise of judicial discretion merely to accept the prosecution's word for its supposed insufficiency. As aptly observed the Office of the Solicitor General, in failing to make an independent finding of the merits of the case and merely anchoring the dismissal on the revised position of the prosecution, the trial judge relinquished the discretion he was duty bound to exercise. In effect, it was the prosecution, through the Department of Justice which decided what to do and not the court which was reduced to a mere rubber stamp in violation of the ruling in Crespo vs. Mogul. In criminal prosecutions, the determination of probable cause may either be an executive or a judicial prerogative. In People vs. Inting, 73 this Court aptly stated:

And third, Judges and Prosecutors alike should distinguish the preliminary inquiry which determines probable cause for the issuance of a warrant of arrest from a preliminary investigation proper which ascertains whether the offender should be held for trial or released. Even if the two inquiries are conducted in the course of one and the same proceeding, there should be no confusion about the objectives. The determination of probable cause for the warrant of arrest is made by the Judge. The preliminary investigation proper whether or not there is reasonable ground to believe that the accused is guilty of the offense charged and, therefore, whether or not he should be subjected to the expense, rigors and embarrassment of trial is the function of the Prosecutor.

SALCEDO VS. NOBLES-BANS


However, as opined by the Solicitor General in his Comment, the requirement in Section 9 "... that in Metropolitan Manila and chartered cities, such cases shall be commenced only by Information ...", is not a jurisdictional requirement but a procedural rule. It prescribes the manner of commencing a criminal case covered by the Rule, as indicated in its very title. It designates the specific pleading to be filed in Court to commence a criminal case. This is so for jurisdiction is and may be conferred only by law.

The Rule on Summary Procedure in Special Cases, by its very title, does not determine jurisdiction of the Courts therein covered. Neither can it affect said jurisdiction because the same is governed by the Judiciary Reorganization Act of 1980 (BP Blg. 129) which defines the jurisdiction of the lower Court, 2 although it could be unavoidable that the question of jurisdiction of a Court taking cognizance of a particular case could be involved. Considering that the filing of an Information is not a jurisdictional requirement, respondent Judge erred in sustaining the Motions to Dismiss the two cases at bar and in declaring the contested Orders of the Municipal Trial Judge null and void. The proper procedure should have been, without dismissing the cases, to have referred them to the City Fiscal for the filing of the corresponding Informations if the evidence so warranted.

However, pursuant to our constitutional supervision over all Courts, as a matter of policy, we direct the Municipal Trial Court in the City of Olongapo, whenever a criminal case covered by the Rule is initiated by complaint, to refer the same to the City Fiscal for the filing of the corresponding Information, and not to dismiss the case. That
would be in keeping with the spirit in which the Rule on Summary Procedure was conceived, and would help ensure the attainment of the expected benefits from the reorganization of the judicial system.

SAMILIN VS. PANGASINAN

CFI

OF

Moreover, it is patent that the provision requiring that the proceedings must be initiated upon complaint filed by the offended party or her relatives, was enacted out of consideration for the offended party and her family who might prefer to suffer the outrage in silence rather than go through with the

It would be an insult to the Legislature to hold that article 344 was


scandal of a public trial.

enacted with the intention seducers and rapists.

of

favoring

The argument of the petitioner is that this is a jurisdictional requirement; that said requirement favors the petitioner; that, therefore, under article 22 of the Revised Penal Code, said requirement must be given a retroactive effect and relate back to the complaint filed in this case. As said complaint was not signed or filed by the aggrieved party (in this case a girl of 12 years), or her parents, grand-parents or guardian, the court was then and is now without jurisdiction to proceed with this prosecution. This contention is wrong.

SANTIAGO VS. VASQUEZ


It has been held that where 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 submitted himself to the court or was duly arrested, the court thereby acquires jurisdiction over the person of the accused. The voluntary appearance of the accused, whereby the court acquires jurisdiction over his person, is accomplished either by his pleading to the merits (such as by filing a motion to quash or other pleadings requiring the exercise of the court's jurisdiction thereover, appearing for arraignment, entering trial) or by filing bail. On the matter of bail, since the same is intended to obtain the provisional liberty of the accused, as a rule the same cannot be posted before custody of the accused has been acquired by the judicial authorities either by his arrest or voluntary surrender.

The original and special civil action filed with this Court is, for all intents and purposes, an invocation for the exercise of its supervisory powers over the lower courts. It does not have the effect of divesting the inferior courts of jurisdiction validly acquired over the case pending before them. It is elementary that the mere pendency of a special civil action for certiorari, commenced in relation to a case pending before a lower court, does not even interrupt the course of the latter when there is no writ of injunction restraining it. The inevitable conclusion

is that for as long as no writ of injunction or restraining order is issued in the special civil action for certiorari, no impediment exists and there is nothing to prevent the lower court from exercising its jurisdiction and proceeding with the case pending before it. And, even if such injunctive writ or order is issued, the lower court nevertheless continues to retain its jurisdiction over the principal action. For the guidance of the bench and the bar, we elucidate that such policy includes the matter of petitions or motions involving hold departure orders of the trial or lower courts. Parties with pending cases therein should apply for permission to leave the country from the very same courts which, in the first instance, are in the best position to pass upon such applications and to impose the appropriate conditions therefor since they are conversant with the facts of the cases and the ramifications or implications thereof. Where, as in the present case, a hold departure order has been issued ex parte or motu propio by said court, the party concerned must first exhaust the appropriate remedies therein, through a motion for reconsideration or other proper submissions, or by the filing of the requisite application for travel abroad. Only where all the conditions and requirements for the issuance of the extraordinary writs of certiorari, prohibition or mandamus indubitably obtain against a disposition of the lower courts may our power of supervision over said tribunals be invoked through the appropriate petition assailing on jurisdictional or clearly valid grounds their actuations therein. Therefore, while a court may be expressly granted the incidental powers necessary to effectuate its jurisdiction, a grant of jurisdiction, in the absence of prohibitive legislation, implies the necessary and usual incidental powers essential to effectuate it, and, subject to existing laws and constitutional provisions, every regularly constituted court has the power to do all things that are reasonably necessary for the administration of justice within the scope of its jurisdiction. Hence, demands, matters, or questions ancillary or incidental to, or growing out of, the main action, and coming within the above principles, may be taken cognizance of by the court and determined, since such jurisdiction is in aid of its authority over the principal matter, even though the court may thus be called on to consider and decide matters which, as original causes of action, would not be within its cognizance. Furthermore, a court has the inherent power to make interlocutory orders necessary to protect its jurisdiction. Such being the case, with more reason may a party litigant be subjected to proper coercive measures where he

disobeys a proper order, or commits a fraud on the court or the opposing party, the result of which is that the jurisdiction of the court would be ineffectual. What ought to be done depends upon the particular circumstances.

TAN JR. VS. GALLARDO


There is no question that since a criminal offense is an outrage to the sovereignty of the State, it is but natural that the representatives of the State should direct and control the prosecution. As stressed in Suarez v. Platon, et
al., the prosecuting officer "is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigorindeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." Thus, it was stressed in People v. Esquivel, et al., that there is an absolute necessity for prosecuting attorneys to lay "before the court the pertinent facts at their disposal with methodical and meticulous attention, clarifying contradictions and filling up gaps and loopholes in their evidence, to the end that the court's mind may not be tortured by doubts, that the innocent may not suffer and the guilty not escape unpunished. Obvious to all, this is the prosecution's prime duty to the court, to the accused, and to the state." It is for the purpose of realizing the afore-mentioned objectives that the prosecution of offenses is placed under the direction, control, and responsibility of the prosecuting officer.

The role of the private prosecutors, upon the other hand, is to represent the offended parties, with respect to the civil action for the recovery of the civil liability arising from the offense. 'This civil action is deemed instituted

with the criminal action, unless the offended party either expressly waives the civil action or reserves to institute it separately. Thus, "an offended party may intervene in the proceedings, personally or by attorney, especially in case of offenses which can not be prosecuted except at the instance of the offended party. The only exception to this is when the offended
party waives his right to civil action or expressly reserves his right to institute it after the termination of the case, in which case he lost his right to intervene upon the theory that he is deemed to have lost his interest in its

And in any event, whether an offended party intervenes in the prosecution of a criminal action, his intervention must always be subject to the direction and control of the prosecuting official. " As explained in Herrero v.
prosecution. Diaz, supra, the "intervention of the offended party or his attorney is authorized by section 15 of Rule 106 of the Rules of Court, subject to the provisions of section 4 of the same Rule that all criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of the Fiscal."

Therefore, although the private prosecutors may be permitted to intervene, they are not in control of the case, and their interests are subordinate to those of the People of the Philippines represented by the fiscal. The right which the procedural law reserves to the injured party is that of intervening in the prosecution for the sole purpose of enforcing the civil liability for the criminal action and not of demanding punishment of the accused.
Consequently, where from the nature of the offense, or where the law defining and punishing the offense charged does not provide for an indemnity, the offended party may not intervene in the prosecution of the offense.

It is evident, therefore, that since the Solicitor General alone is authorized to represent the State or the People of the Philippines the interest of the private prosecutors is subordinate to that of the State and they cannot be allowed to take a stand inconsistent with that of the Solicitor General, for that would be tantamount to giving the latter the direction and control of the criminal proceedings, contrary to the provisions of law and the settled rules on the matter. It is undisputed that the sole purpose of courts of justice is to enforce the laws uniformly and impartially without regard to persons or their circumstances or the opinions of men. A judge, according to Justice Castro, now Chief Justice of this Court, should strive to be at all times "wholly free, disinterested, impartial and independent. Elementary due process requires a hearing before an impartial and disinterested tribunal. A judge has both the duty of rendering a just decision and the duty, of doing it in a manner completely free from suspicion as to its fairness and as to his integrity. Thus, it has always been stressed that judges should not only be impartial but should also appear impartial. For "impartiality is not a technical conception, It is a state of mind" and, consequently, the "appearance of impartiality is an essential manifestation of its reality. It must be obvious, therefore, that while judges should possess proficiency in law in order that they can competently construe and enforce the law, it is more important that they should act and behave in such a manner that the parties before them should have confidence in their impartiality.

US VS. BARRETTO
But under the definition of the crime of falsification of a private document as set forth in article 304 of the Penal Code, the offense is consummated at the time when and at the place where the document is falsified to the prejudice of or with the intent to prejudice a third person, and this whether the falsified document is or is not put to the improper or illegal use for which it was intended.

It is evident, therefore, that the place where the crime is committed is the place where the document is actually falsified, and that the improper or illegal use of the document thereafter is in no wise a material or essential element of the crime of falsification of a private document; and even if it were otherwise, the charge that the crime was committed in a specific place would seem to be

a sufficient allegation that all of the acts necessary to its consummation were in fact done at the place indicated.
Subsection 5 of section 6 of General Orders No. 58 expressly provides that a complaint or information is sufficient if it shows "The names of the persons against who, or against whose property, the offense was committed, if known." From this express provision of the statute it may fairly be inferred that where the name of such person is unknown, an information should not be deemed insufficient because of a failure to set forth his name therein.

US VS. CANET
Without considering or deciding whether the facts alleged sufficiently charge the commission of the crime of perjury in the city of Manila, we hold that the complaint sets forth facts which, if proven, are sufficient to sustain a finding that the defendant committed the crime of perjury within the jurisdiction of the Court of First Instance of Iloilo, in that in a judicial proceeding pending in that court, "the defendant did deliberately, maliciously and criminal swear to and present in the Court of First Instance of Iloilo the said false affidavit," such affidavit being known to him to be false, and being intended by him to mislead the court, It is immaterial where the affidavit was subscribed and sworn, so long as it appears from the information that the defendant, by means of such affidavit, "swore to" and knowingly submitted false evidence material to a point at issue in a judicial proceeding

The gist of the offense charged is not the making of the affidavit in Manila, but the intentional giving of false evidence in the Court of First Instance of Iloilo Province by means of such affidavit.
pending in the Court of First Instance of Iloilo Province. It is easy to conceive of a case where a person, interested in the outcome of a judicial proceeding pending in one of the courts of these Islands, with the deliberate purpose of influencing the course of law in his favor, might go to a foreign country, and there before a judge of a proper court of record, subscribe and swear to an affidavit setting forth facts known to him to be false, but perfectly suited for the purpose he has in view, and then cause such affidavit to be filed with court in which the case is pending. He could thus accomplish his purpose with absolute impunity, if it should be held that it is not perjury in this jurisdiction to submit under oath false evidence

material to a point in issue in a judicial proceeding by means of an affidavit, such as was done by the defendant in the case at bar.

US VS. HORCA
We therefore find that the defendant Eustaquio Horca is guilty of the crime of bribery, an offense not included in the crime charged in the complaint. The case is accordingly dismissed, and it is ordered that a new complaint charging the crime of bribery be filed, with the costs of this action de oficio. So ordered.

VALDEPENAS VS. PEOPLE


Upon the other hand, it is well settled that jurisdiction over the subject matter of an action in this case the crime of abduction with consent is and may be conferred only by law; that jurisdiction over a given crime, not vested by law upon a particular court, may not be conferred thereto by the parties involve in the offense; and that, under an information for forcible abduction, the accused may be convicted of abduction with consent. It is true that, pursuant to the third paragraph of Article 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, grandparents, or guardian, nor, in any case, if the offender has been expressly pardoned by the abovenamed persons, as the case may be. 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 culprits. The complaint required in said Article 344 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."

RULE 111
YONAHA VS. CA
The statutory basis for an employer's subsidiary liability is found in Article 103 of the Revised Penal Code. This Court has since sanctioned the enforcement of this subsidiary liability in the same criminal proceedings in which the employee is adjudged guilty, on the thesis that it really is a part

But, execution against the employer must not issue as just a matter of course, and it behooves the court, as a measure of due process to the employer, to determine and resolve a priori, in a hearing set for the purpose, the legal applicability and propriety of the employer's liability. The requirement is mandatory
of, and merely an incident in, the execution process of the judgment. even when it appears prima facie that execution against the convicted employee cannot be satisfied. The court must convince itself that the convicted employee is in truth in the employ of the employer; that the latter is engaged in an industry of some kind; that the employee has committed the crime to which civil liability attaches while in the performance of his duties as such; and that execution against the employee is unsuccessful by reason of insolvency. The assumption that, since petitioner in this case did not aver any exculpatory facts in her "motion to stay and recall," as well as in her motion for reconsideration, which could save her from liability; a hearing would be a futile and a sheer rigmarole is unacceptable. The employer must be given his full day in court.

To repeat, the subsidiary liability of an employer under Article 103 of the Revised Penal Code requires (a) the existence of an employer-employee relationship; (b) that the employer is engaged in some kind of industry; (c) that the employee is adjudged guilty of the wrongful act and

found to have committed the offense in the discharge of his duties (not necessarily any offense he commits "while" in the discharge of such duties); and (d) that said employee is insolvent. The judgment of conviction of the employee, of course, concludes the employer and the subsidiary liability may be enforced in the same criminal case, but to afford the employer due process, the court should hear and decide that liability on the basis of the conditions required therefore by law.

PADILLA VS. CA
Section 1 of Rule 111 of the Rules of Court states the fundamental proposition that when a criminal action is instituted, the civil action for recovery of civil liability arising from the offense charged is impliedly instituted with it. There is no implied institution when the offended party expressly waives the civil action or reserves his right to institute it separately. (Morte Sr. v. Alvizo, Jr., 101 SCRA 221).
The extinction of the civil action by reason of acquittal in the criminal case refers exclusively to civil liability ex delicto founded on Article 100 of the Revised Penal Code. (Elcano v. Hill, 77 SCRA 98; Virata v. Ochoa, 81 SCRA 472). In other words, the civil liability which is also extinguished upon acquittal of the accused is the civil liability arising from the act as a crime. As easily as 1942, the Supreme Court speaking through Justice Jorge Bocobo in Barredo v. Garcia, et al. 73 Phil. 607 laid down the rule that the same punishable act or omission can create two kinds of civil liabilities

There is the civil liability arising from the act as a crime and the liability arising from the same act as a quasiagainst the accused and, where provided by law, his employer.

delict. Either one of these two types of civil liability may be enforced against the accused, However, the offended party cannot recover damages under both types of liability. For instance, in cases of criminal negligence or crimes due to reckless imprudence, Article 2177 of the Civil Code provides:
Responsibility for fault or negligence under the preceding article is entirely separate and distinct from the civil liability arising from negligence under the Penal Code. But the plaintiff cannot recover damages twice for the same act or omission of the defendant.

The judgment of acquittal extinguishes the liability of the accused for damages only when it includes a declaration that the facts from which the civil might arise did not exist. Thus, the civil liability is not extinguished by acquittal where the acquittal is based on reasonable doubt (PNB v. Catipon, 98 Phil. 286) as only
preponderance of evidence is required in civil cases; where the court expressly declares that the liability of the accused is not criminal but only civil in nature (De Guzman v. Alvia, 96 Phil. 558; People v. Pantig, supra) as, for instance, in the felonies of estafa, theft, and malicious mischief committed by certain relatives who thereby incur only civil liability (See Art. 332, Revised Penal Code); and, where the civil liability does not arise from or is not based upon the criminal act of which the accused was acquitted (Castro v. Collector of Internal Revenue, 4 SCRA 1093; See Regalado, Remedial Law Compendium, 1983 ed., p. 623). Article 29 of the Civil Code also provides that: When the accused in a criminal prosecution is acquitted on the ground that his guilt has not been proved beyond reasonable doubt, a civil action for damages for the same act or omission may be instituted. Such action requires only a preponderance of evidence. Upon motion of the defendant, the court may require the plaintiff to file a bond to answer for damages in case the complaint should be found to be malicious. If in a criminal case the judgment of acquittal is based upon reasonable doubt, the court shall so declare. In the absence of

any declaration to that effect, it may be inferred from the text of the decision whether or not the acquittal is due to that ground. More recently, we held that the acquittal of the defendant in the criminal case would not constitute an obstacle to the filing of a civil case based on the same acts which led to the criminal prosecution:

There appear to be no sound reasons to require a separate civil action to still be filed considering that the facts to be proved in the civil case have already been established in the criminal proceedings where the accused was acquitted. Due process has been accorded the
accused. He was, in fact, exonerated of the criminal charged. The constitutional presumption of innocence called for more vigilant efforts on the part of prosecuting attorneys and defense counsel, a keener awareness by all witnesses of the serious implications of perjury, and a more studied consideration by the judge of the entire records and of applicable statutes and precedents. To require a separate civil action simply because the accused was acquitted would mean needless clogging of court dockets and unnecessary duplication of litigation with all its attendant loss of time, effort, and money on the part of all concerned. If the Court finds the evidence sufficient to sustain the civil action but inadequate to justify a conviction in the criminal action, may it render judgment acquitting the accused on reasonable doubt, but hold him civilly liable nonetheless? An affirmative answer to this question would be consistent with the doctrine that the two are distinct and separate actions, and win (a) dispense with the reinstituting of the same civil action, or one based on quasi-delict or other independent civil action, and of presenting the same evidence: (b) save the injured party unnecessary expenses in the prosecution of the civil action or enable him to take advantage of the free services of the fiscal; and (c) otherwise resolve the unsettling implications of permitting the reinstitution of a separate civil action whether based on delict, or quasi-delict, or other independent civil actions. We see no need to amend Article 29 of the Civil Code in order to allow a court to grant damages despite a judgment of acquittal based on reasonable doubt. What Article 29 clearly and expressly provides is a remedy for

the plaintiff in case the defendant has been acquitted in a criminal prosecution on the ground that his guilt has not been proved beyond reasonable doubt. It merely emphasizes that a civil action for damages is not precluded by an acquittal for the same criminal act or omission. The Civil Code provision does not state that the remedy can be availed of only in a separate civil action. A separate civil case may be filed but there is no statement that such separate filing is the only and exclusive permissible mode of recovering damages. There is nothing contrary to the Civil Code provision in the rendition of a judgment of acquittal and a judgment awarding damages in the same criminal action. The two can stand side by side. A judgment of acquittal operates to extinguish the criminal liability. It does not, however, extinguish the civil liability unless there is clear showing that the act from which civil liability might arise did not exist. A different conclusion would be attributing to the Civil Code a trivial requirement, a provision which imposes an uncalled for burden before one who has already been the victim of a condemnable, yet non-criminal, act may be accorded the justice which he seeks. We further note the rationale behind Art. 29 of the Civil Code in arriving at the intent of the legislator that they could not possibly have intended to make it more difficult for the aggrieved party to recover just compensation by making a separate civil action mandatory and exclusive: The old rule that the acquittal of the accused in a criminal case also releases him from civil liability is one of the most serious flaws in the Philippine legal system. It has given rise to numberless instances of miscarriage of justice, where the acquittal was due to a reasonable doubt in the mind of the court as to the guilt of the accused. The reasoning followed is that inasmuch as the civil responsibility is derived from the the criminal offense, when the latter is not proved, civil liability cannot be demanded. This is one of those cases where confused thinking leads to unfortunate and deplorable consequences. Such reasoning fails to draw a clear line of demarcation between criminal liability and civil responsibility, and to determine the logical result of the distinction. The two liabilities are separate and distinct from each other. One affects the social order and the other, private rights. One is for the punishment or correction of the offender while the

other is for reparation of damages suffered by the aggrieved party... it is just and proper that, for the purposes of the imprisonment of or fine upon the accused, the offense should be proved beyond reasonable doubt. But for the purpose of indemnifying the complaining party, why should the offense also be proved beyond reasonable doubt? Is not the invasion or violation of every private right to be proved only by preponderance of evidence? Is the right of the aggrieved person any less private because the wrongful act is also punishable by the criminal law? (Code Commission, pp. 45-46).

A separate civil action may be warranted where additional facts have to be established or more evidence must be adduced or where the criminal case has been fully terminated and a separate complaint would be just as efficacious or even more expedient than a timely remand to the trial court where the criminal action was decided for further hearings on the civil aspects of the case. The offended party may, of course, choose to file a separate action. These do not exist in this case. Considering moreover the delays suffered by the case in the trial, appellate, and review stages, it would be unjust to the complainants in this case to require at this time a separate civil action to be filed.

RULE 112
GO VS. CA
It is clear too that Section 7 of Rule 112, which provides: Sec. 7 When accused lawfully arrested without warrant. When a person is lawfully arrested without a warrant for an offense

Regional Trial Court the complaint or information may be filed by the offended party, peace officer or fiscal without a preliminary investigation having been first conducted, on the basis of the affidavit of the offended party or arresting office or person
cognizable by the

However, before the filing of such complaint or information, the person arrested may ask for a preliminary investigation by a proper officer in accordance with this Rule, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as amended, with the assistance of a lawyer and in case of non-availability of a lawyer, a responsible person of his choice. Notwithstanding such waiver, he may apply for bail as provided in the corresponding rule and the investigation must be terminated within fifteen (15) days from its inception. If the case has been filed in court without a preliminary investigation having been first conducted, the accused may within five (5) days from the time he learns of the filing of the information, ask for a preliminary investigation with the same right to adduce evidence in his favor in the manner prescribed in this Rule. (Emphasis supplied)
is also not applicable. Indeed, petitioner was not arrested at all. When he walked into San Juan Police Station, accompanied by two (2)

lawyers, he in fact placed himself at the disposal of the police authorities. He did not state that he was "surrendering" himself, in all probability to avoid the implication he was admitting that he had slain Eldon Maguan or that he was otherwise guilty of a crime. When the police filed a complaint for frustrated homicide with the Prosecutor, the latter should have immediately scheduled a preliminary investigation to determine whether there was probable cause for charging petitioner in court for the killing of Eldon Maguan. Instead, as noted earlier, the Prosecutor proceed under the erroneous supposition that Section 7 of Rule 112 was applicable and required petitioner to waive the provisions of Article 125 of the Revised Penal Code as a condition for carrying out a preliminary investigation. This was substantive error, for petitioner was entitled to a preliminary investigation and that right should have been accorded him without any conditions. Moreover, since petitioner had not been arrested, with or without a warrant, he was also entitled to be released forthwith subject only to his appearing at the preliminary investigation.

The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima facie case exists to 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.
Nonetheless, since petitioner in his omnibus motion was asking for preliminary investigation and not for a re-investigation (Crespo v. Mogul involved a re-investigation), and since the Prosecutor himself did file with the trial court, on the 5th day after filing the information for murder, a motion for leave to conduct preliminary investigation (attaching to his motion a copy of petitioner's omnibus motion), we conclude that petitioner's omnibus motion was in effect filed with the trial court. What was crystal clear was that petitioner did ask for a preliminary investigation on the very day that the information was filed without such preliminary investigation, and that the trial court was five (5) days later apprised of the desire of the petitioner for such preliminary investigation. Finally, the trial court did in fact grant the Prosecutor's prayer for leave to conduct preliminary investigation. Thus, even on the (mistaken) supposition apparently made by the Prosecutor that Section 7 of Rule 112 of the Revised Court was applicable, the 5-day reglementary period in Section 7, Rule 112 must be held to have been substantially complied with. We believe and so hold that petitioner did not waive his right to a preliminary investigation. While that right is statutory rather than constitutional in its fundament, since it has in fact been established by statute, it is a component part of due process in criminal justice.
21

The right to have a preliminary investigation

conducted before being bound over to trial for a criminal offense and hence formally at risk of incarceration or some other penalty, is not a mere formal or technical right; it is a substantive right. The accused in a criminal trial is inevitably
exposed to prolonged anxiety, aggravation, humiliation, not to speak of expense; the right to an opportunity to avoid a process painful to any one save, perhaps, to hardened criminals, is a valuable right. To deny petitioner's claim to a preliminary investigation would be to deprive him the full measure of his right to due process. The question may be raised whether petitioner still retains his right to a preliminary investigation in the instant case considering that he was already arraigned on 23 August 1991. The rule is that the right to preliminary investigation is waived when the accused fails to invoke it before or at the time of entering a plea at arraignment. 22 In the instant case, petitioner Go had vigorously insisted on his right to preliminary investigation before his arraignment. At the time of his arraignment, petitioner was already before the Court of Appeals on certiorari, prohibition and mandamus precisely asking for a preliminary investigation before being forced to stand trial. Again, in the circumstances of this case, we do not believe that by posting bail petitioner had waived his right to preliminary investigation. In People v. Selfaison, 23 we did hold that appellants there had waived their right to preliminary investigation because immediately after their arrest, they filed bail and proceeded to trial "without previously claiming that they did not have the benefit of a preliminary investigation." 24 In the instant case, petitioner Go asked for release on recognizance or on bail and for preliminary investigation in one omnibus motion. He had thus claimed his right to preliminary investigation before respondent Judge approved the cash bond posted by petitioner and ordered his release on 12 July 1991. Accordingly, we cannot reasonably imply waiver of preliminary investigation on the part of petitioner. In fact, when the Prosecutor filed a motion in court asking for leave to conduct preliminary investigation, he clearly if impliedly recognized that petitioner's claim to preliminary investigation was a legitimate one.

Turning first to the matter of preliminary investigation, we consider that petitioner remains entitled to a preliminary

investigation although trial on the merits has already began. Trial on the merits should be suspended or held in abeyance and a preliminary investigation forthwith accorded to petitioner. It is true that the Prosecutor
26

might, in view of the evidence that he may at this time have on hand, conclude that probable cause exists; upon the other hand, the Prosecutor conceivably could reach the conclusion that the evidence on hand does not warrant a finding of probable cause. In any event, the constitutional point is that petitioner was not accorded what he was entitled to by way of procedural due process. 27 Petitioner was forced to undergo arraignment and literally pushed to trial without preliminary investigation, with extraordinary haste, to the applause from the audience that filled the courtroom. If he submitted to arraignment at trial, petitioner did so "kicking and screaming," in a manner of speaking . During the proceedings held before the trial court on 23 August 1991, the date set for arraignment of petitioner, and just before arraignment, counsel made very clear petitioner's vigorous protest and objection to the arraignment precisely because of the denial of preliminary investigation. 28 So energetic and determined were petitioner's counsel's protests and objections that an obviously angered court and prosecutor dared him to withdraw or walkout, promising to replace him with counsel de oficio. During the trial, before the prosecution called its first witness, petitioner through counsel once again reiterated his objection to going to trial without preliminary investigation: petitioner's counsel made of record his "continuing objection." 29 Petitioner had promptly gone to the appellate court on certiorari and prohibition to challenge the lawfulness of the procedure he was being forced to undergo and the lawfulness of his detention. 30 If he did not walk out on the trial, and if he cross-examined the prosecution's witnesses, it was because he was extremely loath to be represented by counsel de oficio selected by the trial judge, and to run the risk of being held to have waived also his right to use what is frequently the only test of truth in the judicial process.

SANCHEZ VS. DEMETRIOU


Section 3, Paragraph (d), Rule 112 of the Rules of Court, provides that if the respondent cannot be subpoenaed or, if subpoenaed, does not submit

counter-affidavits, the investigating officer shall base his resolution on the evidence presented by the complainant. Just as the accused may renounce the right to be present at the preliminary investigation , so may he waive the right to present counter-affidavits or any other evidence in his defense. At any rate, it is settled that the absence of a preliminary investigation does not impair the validity of the information or otherwise render the same defective and neither does it affect the jurisdiction of the court over the case or constitute a ground for quashing the information.
If no preliminary investigation has been held, or if it is flawed, the trial court may, on motion of the accused, order an investigation or reinvestigation and hold the proceedings in the criminal case in abeyance. 7 In the case at bar, however, the respondent judge saw no reason or need for such a step. Finding no arbitrariness in her factual conclusions, we shall defer to her judgment. Jurisdiction of the Ombudsman Invoking the case of Deloso v. Domingo, 8 the petitioner submits that the proceedings conducted by the Department of Justice are null and void because it had no jurisdiction over the case. His claim is that it is the Office of the Ombudsman that is vested with the power to conduct the investigation of all cases involving public officers like him, as the municipal mayor of Calauan, Laguna.

The Ombudsman is indeed empowered under Section 15, paragraph (1) of R.A. 6770 to investigate and prosecute, any illegal act or omission of any public official. However, as we held only two years ago in the case of Aguinaldo v. Domagas, 9 this authority "is not an exclusive

authority but rather a shared or concurrent authority in respect of the offense charged." In fact, other investigatory agencies, of the government such as the Department of Justice, in connection with the charge of sedition, and the Presidential Commission on Good Government, in ill-gotten wealth cases, may conduct the investigation,

CASTILLO VS. VILLALUZ


Judges of Regional Trial Courts (formerly Courts of First Instance) no longer have authority to conduct preliminary investigations. That authority, at one time reposed in them under Sections 13, 14 and 16, Rule 112 of the Rules of Court of 1964, 1 was removed from them by the 1985 Rules on Criminal Procedure, effective on January 1, 1985, 2 which deleted all provisions granting that power to said Judges. We had occasion to point this out in Salta v. Court of Appeals, 143 SCRA 228, and to stress as well certain other

(1) that the conduct of a preliminary investigation is "not a judicial function ... (but) part of the prosecution's job, a function of the executive," (2) that wherever "there are enough fiscals or prosecutors to conduct preliminary investigations, courts are counseled to leave this job which is essentially executive to them," and the fact "that a certain power is granted does not necessarily mean that it should be indiscriminately exercised."
basic propositions, namely:

This is not to say, however, that somewhere along the line RTC Judges also lost the power to make a preliminary examination for the purpose of determining whether probable cause exists to justify the issuance of a warrant of arrest (or

search warrant). Such a power indeed, it is as much a duty as it is a power has been and remains vested in every judge by the provision in the Bill of Rights in the 1935, the 1973 and the present (1987) Constitutions securing the people against unreasonable searches and seizures, 4 thereby placing it beyond the competence of mere Court rule or statute to revoke. The distinction must,
therefore, be made clear while an RTC Judge may no longer conduct preliminary investigations to ascertain whether there is sufficient ground for the filing of a criminal complaint or information, 5 he retains the authority, when such a pleading is filed with his court, to determine whether there is probable cause justifying the issuance of a warrant of arrest. 6 It might be added that this distinction accords, rather than conflicts, with the rationale of Salta because both law and rule, in restricting to judges the authority to order arrest, recognize that function to be judicial in nature. 7 It is the fiscal who is given by law "direction and control" of all criminal actions. 16 It is he who initiates all prosecutions in the name of the People of the Philippines, by information or complaint, against all persons who appear to be responsible for the offense involved. 17 It is he (or other public prosecutor), therefore, who is primarily responsible for ascertaining through a preliminary inquiry or proceeding "whether there is reasonable ground to believe that an offense has been committed and the accused is probably guilty thereof." 18 That function, to repeat, is not judicial but executive. When a preliminary investigation is conducted by a judge, the judge performs a non-judicial function, as an exception to his usual judicial duties

"(s)hould the provincial or city fiscal disagree with the findings of the investigating judge on the existence of probable cause, the fiscal's ruling shall prevail."

Be it noted, however, that once the fiscal files an information with the Court and the Court thereby acquires jurisdiction over the case, the case may not be dismissed at the fiscal's instance except only by consent of the Court, which may grant or withhold it in its discretion.

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