1

ERNESTO J. SAN AGUSTIN, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent.2004 Aug 312nd
DivisionG.R. No. 158211

CALLEJO, SR., J.:

This is a petition for review on certiorari filed by Ernesto J. San Agustin of the Decision[1] of the Court of Appeals in
CA-G.R. SP No. 71925 dismissing his petition for certiorari.

The Antecedents

Luz Tan executed a notarized criminal complaint and filed the same with the National Bureau of Investigation (NBI)
charging the petitioner, the Barangay Chairman of Barangay La Huerta, Parañaque City, with serious illegal detention
alleging that the petitioner detained her husband Vicente Tan, on June 19, 2002, without lawful ground therefor.[2]

On June 25, 2002, the petitioner received a subpoena from Ferdinand M. Lavin, the Chief of the Anti-Organized Crime
Division of the NBI, requiring him to appear before said office the next day, on June 26, 2002, in order to give his
evidence in connection with said complaint and to bring with him the barangay logbook for June 19, 2002. The
petitioner complied with the subpoena and presented himself at the NBI with the barangay logbook. However, the
petitioner was placed under arrest and prevented from going back home.

On June 27, 2002, the NBI Director transmitted to the Department of Justice the findings of the NBI on its
investigation of the case:

On June 19, 2002 at around 9:00 o’clock in the morning while Victim RICARDO TAN and Witness ANTONIO
GERONIMO were selling their wares of kitchen utensils along the highway of La Huerta, Parañaque City, Victim TAN
was mistaken as a "snatcher" by two tricycle drivers, namely, ROMEO C. ALCANTARA and JOSEFINO FERRER, JR.
Victim was turned-over to Subject SAN AGUSTIN and other Subjects at the Barangay Hall of La Huerta, Parañaque
City; witness GERONIMO followed them. GERONIMO witnessed that Victim was beaten by Subjects and locked-up at
the Barangay jail so he decided to inform the wife of the Victim (Complainant) who was residing in San Pedro, Laguna.
When Complainant went to the Barangay Hall on the same day and inquired on the whereabouts of his husband, two
female clerks thereat denied having seen the Victim. Complainant was able to talk to Subject SAN AGUSTIN the
following day but he also denied having seen Victim, worst Subject SAN AGUSTIN was furious and even shouted at
them and brought out his knife. Up to date, Victim, never resurfaced nor his whereabouts located. Record at the NBI
central file of Subject SAN AGUSTIN revealed that he has several cases of homicide, murder and multiple murder.[3]

The NBI Director stated that the basis for the arrest of the petitioner was:

BASIS OF ARREST:

Subject SAN AGUSTIN was subpoenaed to appear before the NBI-AOCD to controvert allegations filed against him for
kidnapping by Ms. Luz Tan. He was enjoined to come with his Counsel and bring the logbook of the Barangay. When
Subject appeared at the NBI, he presented at once the logbook of the Barangay. It was noted at the said logbook
that there was no entry on June 19, 2002 that Victim RICARDO TAN was arrested or transmitted to any law
enforcement agency or proper authority.[4]

State Prosecutor Elizabeth L. Berdal conducted an inquest investigation on June 27, 2002 and came out with a
Resolution, on the same day, affirmed by the Assistant Chief State Prosecutor, finding probable cause against the
petitioner for serious illegal detention under Article 267 of the Revised Penal Code.[5]

On June 28, 2002, an Information was filed before the Regional Trial Court of Parañaque City, charging the petitioner
with kidnapping/serious illegal detention with no bail recommended. The case was raffled to Branch 258 of the court
and docketed as Criminal Case No. 02-0759.

On July 1, 2002, the petitioner filed a Motion to Quash the Information on the ground that he was illegally arrested
and subjected to an inquest investigation; hence, he was deprived of his right to a preliminary investigation. He also
prayed that he be released from detention and that, in the meantime, the NBI be ordered to refile the complaint
against him with
the Office of the Parañaque City Prosecutor and for the latter to conduct a preliminary investigation. On July 4, 2002,
the petitioner filed a Motion to Quash the Information, this time, on the ground that the facts alleged therein do not
constitute the felony of kidnapping/serious illegal detention. He claimed that he was a barangay chairman when the
private complainant was allegedly detained; hence, he should be charged only with arbitrary detention, the most
severe penalty for which is reclusion temporal.

The prosecution opposed the petitioner’s motion to quash the Information on the ground that when he detained the
private complainant, he acted in his private capacity and not as a barangay chairman.[6]

On July 24, 2002, the RTC issued an Order directing the City Prosecutor to conduct a reinvestigation within a non-
extendible period of forty-five (45) days.[7] Assistant City Prosecutor Antonietta Pablo Medina was assigned to
conduct the reinvestigation. The petitioner opposed the reinvestigation contending that the prosecutor should
conduct a regular preliminary investigation since the inquest investigation was void. He refused to submit a counter-
affidavit.
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On July 31, 2002, the petitioner filed a petition for certiorari with the Court of Appeals assailing the July 24, 2002
Order of the RTC. He raised in his petition the following issues:

1. Whether or not respondent Judge De Leon acted arbitrarily and in grave abuse of discretion in not granting
petitioner’s "Urgent Motion to Quash Information" dated 01 July 2002.

2. Whether or not respondent Judge De Leon acted arbitrarily and in grave abuse of discretion in not granting
petitioner’s "Urgent Motion to Quash On The Ground That The Facts Charged Do Not Constitute An Offense" dated 04
July 2002.

3. Whether or not respondent Judge De Leon acted arbitrarily and in grave abuse of discretion in not granting bail as a
matter of right in favor of the petitioner.

4. Whether or not respondent Judge Jose S. Jacinto, Jr. of the Metropolitan Trial Court of Parañaque, Branch 77, can
validly and legally proceed with the hearing of Criminal Case No. 02-2486.[8]

In the meantime, on August 27, 2002, the Assistant City Prosecutor came out with a Resolution finding
probable cause of arbitrary detention against the petitioner and recommending that the Information for arbitrary
detention and the Motion to Withdraw Information appended thereto be approved.[9] The City Prosecutor opposed
the said Resolution.
On August 28, 2002, the Assistant City Prosecutor filed with the trial court a "Motion to Withdraw
Information."[10] On August 30, 2002, the RTC issued an Order granting the motion and considered the Information
withdrawn.

On the same day, an Information was filed with the Metropolitan Trial Court (MeTC) docketed as Criminal Case No.
02-2486, charging the petitioner with arbitrary detention, viz:

That on or about the 19th day of June 2002 and subsequent thereto, in the City of Parañaque, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, being a Barangay Chairman of Brgy. La Huerta,
Parañaque City, a public officer, committing the offense in relation to office, did then and there willfully, unlawfully
and feloniously detain one RICARDO TAN, an act done as he well knew, arbitrary and without legal ground (sic).

CONTRARY TO LAW.[11]

The case was raffled to Branch 77 of the court. The petitioner posted a cash bond of P3,000.00 for his provisional
release without prejudice to the outcome of his petition in the Court of Appeals.[12]

On April 15, 2003, the Court of Appeals rendered its decision denying due course and dismissing the petition
for certiorari of the petitioner.

The petitioner filed the petition at bar contending that:

4.1 THE COURT OF APPEALS SERIOUSLY ERRED IN FINDING THAT NO GRAVE ABUSE OF DISCRETION WAS
COMMITTED BY JUDGE RAUL E. DE LEON WHEN HE DENIED PETITIONER’S "URGENT MOTION TO QUASH
INFORMATION" DATED JULY 01, 2002.

4.2. THE COURT OF APPEALS SERIOUSLY ERRED IN FINDING THAT NO GRAVE ABUSE OF DISCRETION WAS
COMMITTED BY JUDGE RAUL E. DE LEON WHEN HE DENIED PETITIONER’S "URGENT MOTION TO QUASH ON THE
GROUND THAT THE FACTS CHARGED DO NOT CONSTITUTE AN OFFENSE" DATED 04 JULY 2002.

4.3. THE COURT OF APPEALS SERIOUSLY ERRED IN FINDING THAT NO GRAVE ABUSE OF DISCRETION WAS
COMMITED BY JUDGE RAUL E. DE LEON WHEN HE DENIED PETITIONER OF HIS CONSTITUTIONALLY-GUARANTEED
RIGHT TO BAIL.

4.4. THE COURT OF APPEALS SERIOUSLY ERRED IN HOLDING THAT JUDGE JOSE S. JACINTO OF THE
METROPOLITAN TRIAL COURT OF PARAÑAQUE, BRANCH, (sic) CAN VALIDLY AND LEGALLY PROCEED WITH THE
HEARINGS IN CRIMINAL CASE NO. 02-2486.[13]

The petitioner asserts that he was illegally arrested by the NBI; hence, he was entitled to a regular preliminary
investigation, not merely to an inquest investigation. He contends that since the Information charging him with
kidnapping/serious illegal detention was filed before the Regional Trial Court without affording him a preliminary
investigation, the Information is void. The RTC, the petitioner avers, should have granted his motion to quash the
Information and ordered the NBI to refile its complaint against him with the Office of the City Prosecutor of Parañaque
for the appropriate preliminary investigation and that, in the meantime, the RTC should have ordered his release from
detention. The petitioner posits that the RTC committed a grave abuse of its discretion amounting to excess or lack of
jurisdiction in denying his motion to quash the Information and directing the City Prosecutor to conduct a
reinvestigation. On the other hand, since the Assistant City Prosecutor did not conduct a regular preliminary
investigation before filing the Information for arbitrary detention against him with the MeTC, the Information is void.
Hence, the MeTC should be ordered to quash the Information filed therein.

In its Comment to the petition, the Office of the Solicitor General (OSG) contends that the petition for certiorari
of the petitioner in the Court of Appeals and in this Court had become moot and academic by the withdrawal of the
Information from the Regional Trial Court and filing of the Information for arbitrary detention against the petitioner in
the MTC. The inquest investigation conducted by the State Prosecutor was valid because the petitioner refused to
execute a waiver under Article 125 of the Revised Penal Code. The OSG asserts that the investigation conducted by
the Assistant City Prosecutor, as directed by the RTC, was valid. The petitioner is estopped from assailing the
 3

Resolution of the Assistant City Prosecutor finding probable cause for arbitrary detention because of his failure to
submit his counter-affidavit.

The Court of Appeals ruled that the petitioner was unlawfully arrested; hence, he was entitled to preliminary
investigation and release from detention subject to his appearance during the preliminary investigation. However, the
Court of Appeals declared that the lack of preliminary investigation did not impair the validity of the Information filed
with the RTC. Moreover, the Court of Appeals declared that the petitioner had already been granted a reinvestigation
after which the Information filed with the RTC was withdrawn. Consequently, the appellate court further declared that
the petition had been mooted by the withdrawal of the Information from the RTC and the filing of another
Information in the MeTC for arbitrary detention. The appellate court also held that the RTC did not commit grave
abuse of its discretion amounting to excess or lack of jurisdiction in issuing the assailed Order. It ruled that even if
the reinvestigation conducted by the City Prosecutor is defective, the Information filed with the MeTC is valid
because under the Revised Rules of Criminal Procedure, there is no need for a preliminary investigation for crimes
cognizable by the Metropolitan Trial Court.

The petition is partially granted.

We agree with the Court of Appeals that the petitioner was unlawfully arrested without a warrant of arrest
against him for kidnapping/serious illegal detention. As correctly ruled by the Court of Appeals:

Furthermore, warrantless arrest or the detention of petitioner in the instant case does not fall within the
provision of Section 5, Rule 113, Revised Rules on Criminal Procedure, as amended, which provides:

"Sec. 5. Arrest without warrant; when lawful. " A peace officer or a private person may, without a warrant, arrest
a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to
commit an offense;

(b) When an offense has been committed and he has probable cause to believe, based on personal knowledge of
facts or circumstances, that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped while being transferred from one confinement
to another.

In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith
delivered to the nearest police station or jail and shall be proceeded against in accordance with Section 7 of Rule
112.- considering that petitioner only went to the Office of the NBI to answer the subpoena it issued which was seven
(7) days after the supposed turning over of the custody of Ricardo Tan to petitioner who was then the Barangay
Chairman of La Huerta, Parañaque City, and his locking up in the barangay jail and, thereafter, he was already
arrested and detained. Certainly, the "arresting" officers were not present within the meaning of Section 5(a) at the
time when the supposed victim, Ricardo Tan, was turned over to petitioner. Neither could the "arrest" which was
effected seven (7) days after the incident be seasonably regarded as "when the turning over and locking up in the
Barangay jail had in fact just been committed within the meaning of Section 5(b). Moreover, none of the "arresting"
officers had any "personal knowledge" of facts indicating that petitioner was the person to whom the custody of the
victim Ricardo Tan was turned over and who locked up the latter in the Barangay jail. The information upon which the
"arresting" officers acted upon had been derived from the statements made by the alleged eyewitnesses to the
incident which information did not, however, constitute personal knowledge.[14]
Consequently, the petitioner is entitled to a preliminary investigation before an Information may be filed against him
for said crime. The inquest investigation conducted by the State Prosecutor is void because under Rule 112, Section
7 of the Revised Rules on Criminal Procedure, an inquest investigation is proper only when the suspect is lawfully
arrested without a warrant:

SEC. 7. When accused lawfully arrested without warrant. - When a person is lawfully arrested without a warrant
involving an offense which requires a preliminary investigation, the complaint or information may be filed by a
prosecutor without need of such investigation provided an inquest investigation has been conducted in accordance
with existing rules. In the absence or unavailability of an inquest prosecutor, the complaint may be filed by the
offended party or a peace officer directly with the proper court on the basis of the affidavit of the offended party or
arresting officer or person.[15]

We also agree with the Court of Appeals that the absence of a preliminary investigation does not affect the jurisdiction
of the trial court but merely the regularity of the proceedings. It does not impair the validity of the Information or
otherwise render it defective.[16] Neither is it a ground to quash the Information or nullify the order of arrest issued
against him or justify the release of the accused from detention.[17] However, the trial court should suspend
proceedings and order a preliminary investigation[18] considering that the inquest investigation conducted by the
State Prosecutor is null and void.[19] In sum, then, the RTC committed grave abuse of its discretion amounting to
excess or lack of jurisdiction in ordering the City

Prosecutor to conduct a reinvestigation which is merely a review by the Prosecutor of his records and evidence instead
of a preliminary investigation as provided for in Section 3, Rule 112 of the Revised Rules on Criminal Procedure.

However, we do not agree with the ruling of the Court of Appeals that there was no need for the City Prosecutor to
conduct a preliminary investigation since the crime charged under the Information filed with the MeTC was arbitrary
detention under Article 124, paragraph 1 of the Revised Penal Code punishable by arresto mayor in its maximum
period to prision correccional in its minimum period, which has a range of four months and one day to two years and
 4

four months. Whether or not there is a need for a preliminary investigation under Section 1 in relation to Section 9 of
Rule 112 of the Revised Rules on Criminal Procedure depends upon the imposable penalty for the crime charged in the
complaint filed with the City or Provincial Prosecutor’s Office and not upon the imposable penalty for the crime found
to have been committed by the respondent after a preliminary investigation. In this case, the crime charged in the
complaint of the NBI filed in the Department of Justice was kidnapping/serious illegal detention, the imposable penalty
for which is reclusion perpetua to death.

IN LIGHT OF ALL THE FOREGOING, the petition is PARTIALLY GRANTED. The Order of the Regional Trial Court of
Parañaque City, dated July 24, 2004, ordering the City Prosecutor to conduct a reinvestigation is SET ASIDE. The
Regional Trial Court is directed to ORDER the City Prosecutor of Parañaque City to conduct a preliminary investigation
as provided for in Section 3, Rule 112 of the Revised Rules on Criminal Procedure. In the meantime, the Metropolitan
Trial Court of Parañaque City, Branch 77, is ordered to suspend the proceedings in Criminal Case No. 02-2486 pending
the outcome of said preliminary investigation.

SO ORDERED.
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MA. ROSARIO SANTOS-CONCIO, MA. SOCORRO V. VIDANES, MARILOU ALMADEN, CIPRIANO LUSPO,
MORLY STEWART NUEVA, HAROLD JAMES NUEVA, NORBERT VIDANES, FRANCISCO RIVERA, MEL
FELICIANO, and JEAN OWEN ERCIA, Petitioners, versus DEPARTMENT OF JUSTICE, HON. RAUL M.
GONZALEZ, as Secretary of the Department of Justice, NATIONAL CAPITAL REGION - NATIONAL BUREAU
OF INVESTIGATION, PANEL OF INVESTIGATING PROSECUTORS created under Department of Justice
Department Order No. 165 dated 08 March 2006, LEO B. DACERA III, as Chairman of the Panel of
Investigating Prosecutors, and DEANA P. PEREZ, MA. EMILIA L. VICTORIO, EDEN S. WAKAY-VALDES and
PETER L. ONG, as Members of the Panel of Investigating Prosecutors, the EVALUATING PANEL created
under Department of Justice Department Order No. 90 dated 08 February 2006, JOSELITA C. MENDOZA as
Chairman of the Evaluating Panel, and MERBA WAGA, RUEL LASALA and ARNOLD ROSALES, as Members of
the Evaluating Panel, Respondents.2008 Jan 292nd DivisionG.R. No. 175057

CARPIO MORALES, J.:

On challenge via petition for review on certiorari are the Court of Appeals May 24, 2006 Decision and October
10, 2006 Resolution[1] in CA-G.R. SP No. 93763 dismissing herein petitioners’ petition for certiorari and
prohibition that sought to (i) annul respondent Department of Justice (DOJ) Department Order Nos. 90[2] and 165[3]
dated February 8, 2006 and March 8, 2006, respectively, and all orders, proceedings and issuances emanating
therefrom, and (ii) prohibit the DOJ from further conducting a preliminary investigation in what has been dubbed as
the “Ultra Stampede” case.

In the days leading to February 4, 2006, people started to gather in throngs at the Philsports Arena (formerly
Ultra) in Pasig City, the publicized site of the first anniversary episode of “Wowowee,” a noontime game show aired by
ABS-CBN Broadcasting Corporation (ABS-CBN). With high hopes of winning the bonanza, hundreds queued for days
and nights near the venue to assure themselves of securing tickets for the show. Little did they know that in taking a
shot at instant fortune, a number of them would pay the ultimate wager and place their lives at stake, all in the name
of bagging the prizes in store.

Came the early morning of February 4, 2006 with thousands more swarming to the venue. Hours before the
show and minutes after the people were allowed entry through two entry points at six o’clock in the morning, the
obstinate crowd along Capt. Javier Street jostled even more just to get close to the lower rate pedestrian gate. The
mad rush of the unruly mob generated much force, triggering the horde to surge forward with such momentum that
led others to stumble and get trampled upon by the approaching waves of people right after the gate opened. This
fatal stampede claimed 71 lives, 69 of whom were women, and left hundreds wounded[4] which necessitated
emergency medical support and prompted the cancellation of the show’s episode.

The Department of Interior and Local Government (DILG), through then Secretary Angelo Reyes, immediately
created an inter-agency fact-finding team[5] to investigate the circumstances surrounding the stampede. The team
submitted its report[6] to the DOJ on February 7, 2006.

By Department Order No. 90 of February 8, 2006, respondent DOJ Secretary Raul Gonzalez (Gonzalez)
constituted a Panel (Evaluating Panel)[7] to evaluate the DILG Report and “determine whether there is sufficient basis
to proceed with the conduct of a preliminary investigation on the basis of the documents submitted.”

The Evaluating Panel later submitted to Gonzalez a February 20, 2006 Report[8] concurring with the DILG
Report but concluding that there was no sufficient basis to proceed with the conduct of a preliminary investigation in
view of the following considerations:

a) No formal complaint/s had been filed by any of the victims and/or their relatives, or any law enforcement
agency authorized to file a complaint, pursuant to Rule 110 of the Revised Rules of Criminal Procedure;

b) While it was mentioned in the Fact-Finding Report that there were 74 deaths and 687 injuries, no documents
were submitted to prove the same, e.g. death certificates, autopsy reports, medical certificates, etc.;

c) The Fact-Finding Report did not indicate the names of the persons involved and their specific participation in the
“Ultra Incident”;

d) Most of the victims did not mention, in their sworn statements, the names of the persons whom they alleged to
be responsible for the “Ultra Incident”.[9]

Respondent National Bureau of Investigation-National Capital Region (NBI-NCR), acting on the Evaluating
Panel’s referral of the case to it for further investigation, in turn submitted to the DOJ an investigation report, by a
March 8, 2006 transmittal letter (NBI-NCR Report[10]), with supporting documents recommending the conduct of
preliminary investigation for Reckless Imprudence resulting in Multiple Homicide and Multiple Physical Injuries[11]
against petitioners and seven others[12] as respondents.

Acting on the recommendation of the NBI-NCR, Gonzalez, by Department Order No. 165 of March 8, 2006,
designated a panel of state prosecutors[13] (Investigating Panel) to conduct the preliminary investigation of the case,
docketed as I.S. No. 2006-291, “NCR-NBI v. Santos-Concio, et al.,” and if warranted by the evidence, to file the
appropriate information and prosecute the same before the appropriate court. The following day or on March 9, 2006,
the Investigating Panel issued subpoenas[14] directing the therein respondents to appear at the preliminary
investigation set on March 20 and 27, 2006.

At the initial preliminary investigation, petitioners sought clarification and orally moved for the inhibition,
disqualification or desistance of the Investigating Panel from conducting the investigation.[15] The Investigating
 6

Panel did not formally resolve the motion, however, as petitioners manifested their reservation to file an appropriate
motion on the next hearing scheduled on March 27, 2006, without prejudice to other remedies.[16]

On March 23, 2006, petitioners filed a petition for certiorari and prohibition with the Court of Appeals which
issued on March 27, 2006 a Resolution[17] granting the issuance of a temporary restraining order,[18] conducted on
April 24, 2006 a hearing on the application for a writ of preliminary injunction, and subsequently promulgated the
assailed two issuances.

In the meantime, the Investigating Panel, by Resolution[19] of October 9, 2006, found probable cause to indict
the respondents-herein petitioners for Reckless Imprudence resulting in Multiple Homicide and Physical Injuries, and
recommended the conduct of a separate preliminary investigation against certain public officials.[20] Petitioners’
Motion for Reconsideration[21] of the said October 9, 2006 Resolution, filed on October 30, 2006 “with abundance of
caution,” is pending resolution, and in the present petition they additionally pray for its annulment.

In asserting their right to due process, specifically to a fair and impartial preliminary investigation, petitioners
impute reversible errors in the assailed issuances, arguing that:

Respondents have already prejudged the case, as shown by the public declarations of Respondent Secretary and the
Chief Executive, and have, therefore, lost their impartiality to conduct preliminary investigation.

Respondents have already prejudged the case as shown by the indecent haste by which the proceedings were
conducted.

The alleged complaint-affidavits filed against Petitioners were not under oath.

The supposed complaint-affidavits filed against Petitioners failed to state the acts or omissions constituting the crime.

Although Respondents may have the power to conduct criminal investigation or preliminary investigation,
Respondents do not have the power to conduct both in the same case.[22] (Emphasis and underscoring supplied)

The issues shall, for logical reasons, be resolved in reverse sequence.

On the Investigatory Power of the DOJ

In the assailed Decision, the appellate court ruled that the Department Orders were issued within the scope of
authority of the DOJ Secretary pursuant to the Administrative Code of 1987[23] bestowing general investigatory
powers upon the DOJ.

Petitioners concede that the DOJ has the power to conduct both criminal investigation and preliminary
investigation but not in their case,[24] they invoking Cojuangco, Jr. v. PCGG.[25] They posit that in Cojuangco, the
reshuffling of personnel was not considered by this Court which ruled that the entity which conducted the criminal
investigation is disqualified from conducting a preliminary investigation in the same case. They add that the DOJ
cannot circumvent the prohibition by simply creating a panel to conduct the first, and another to conduct the second.

In insisting on the arbitrariness of the two Department Orders which, so they claim, paved the way for the
DOJ’s dual role, petitioners trace the basis for the formation of the five-prosecutor Investigating Panel to the NBI-NCR
Report which was spawned by the supposed criminal investigation[26] of the Evaluating Panel the members of which
included two, albeit different, prosecutors. While petitioners do not assail the constitution of the Evaluating Panel,[27]
they claim that it did not just evaluate the DILG Report but went further and conducted its own criminal investigation
by interviewing witnesses, conducting an ocular inspection, and perusing the evidence.

Petitioners’ position does not lie. Cojuangco was borne out of a different factual milieu.

In Cojuangco, this Court prohibited the Presidential Commission on Good Government (PCGG) from conducting
a preliminary investigation of the complaints for graft and corruption since it had earlier found a prima facie case –
basis of its issuance of sequestration/freeze orders and the filing of an ill-gotten wealth case involving the same
transactions. The Court therein stated that it is “difficult to imagine how in the conduct of such preliminary
investigation the PCGG could even make a turn about and take a position contradictory to its earlier findings of a
prima facie case,” and so held that “the law enforcer who conducted the criminal investigation,

gathered the evidence and thereafter filed the complaint for the purpose of preliminary investigation cannot be
allowed to conduct the preliminary investigation of his own complaint.”[28] The present case deviates from
Cojuangco.

The measures taken by the Evaluating Panel do not partake of a criminal investigation, they having been done
in aid of evaluation in order to relate the incidents to their proper context. Petitioners’ own video footage of the ocular
inspection discloses this purpose. Evaluation for purposes of determining whether there is sufficient basis to proceed
with the conduct of a preliminary investigation entails not only reading the report or documents in isolation, but also
deems to include resorting to reasonably necessary means such as ocular inspection and physical evidence
examination. For, ultimately, any conclusion on such sufficiency or insufficiency needs to rest on some basis or
justification.

Had the Evaluating Panel carried out measures partaking of a criminal investigation, it would have gathered the
documents that it enumerated as lacking. Notatu dignum is the fact that the Evaluating Panel was dissolved functus
oficio upon rendering its report. It was the NBI, a constituent unit[29] of the DOJ, which conducted the criminal
investigation. It is thus foolhardy to inhibit the entire DOJ from conducting a preliminary investigation on the sheer
ground that the DOJ’s constituent unit conducted the criminal investigation.
 7

Moreover, the improbability of the DOJ contradicting its prior finding is hardly appreciable. It bears recalling
that the Evaluating Panel found no sufficient basis to proceed with the conduct of a preliminary investigation. Since
the Evaluating Panel’s report was not adverse to petitioners, prejudgment may not be attributed “vicariously,” so to
speak, to the rest of the state prosecutors. Partiality, if any obtains in this case, in fact weighs heavily in favor of
petitioners.

On the Alleged Defects of the Complaint

On the two succeeding issues, petitioners fault the appellate court’s dismissal of their petition despite, so they
claim, respondents’ commission of grave abuse of discretion in proceeding with the preliminary investigation given the
fatal defects in the supposed complaint.

Petitioners point out that they cannot be compelled to submit their counter-affidavits because the NBI-NCR
Report, which they advert to as the complaint-affidavit, was not under oath. While they admit that there were
affidavits attached to the NBI-NCR Report, the same, they claim, were not executed by the NBI-NCR as the purported
complainant, leaving them as “orphaned” supporting affidavits without a sworn complaint-affidavit to support.

These affidavits, petitioners further point out, nonetheless do not qualify as a complaint[30] within the scope of
Rule 110 of the Rules of Court as the allegations therein are insufficient to initiate a preliminary investigation, there
being no statement of specific and individual acts or omissions constituting reckless imprudence. They bewail the
assumptions or conclusions of law in the NBI-NCR Report as well as the bare narrations in the affidavits that lack any
imputation relating to them as the persons allegedly responsible.

IN FINE, petitioners contend that absent any act or omission ascribed to them, it is unreasonable to expect them to
confirm, deny or explain their side.

A complaint for purposes of conducting a preliminary investigation differs from a complaint for purposes of
instituting a criminal prosecution. Confusion apparently springs because two complementary procedures adopt the
usage of the same word, for lack of a better or alternative term, to refer essentially to a written charge. There should
be no confusion about the objectives, however, since, as intimated during the hearing before the appellate court,
preliminary investigation is conducted precisely to elicit further facts or evidence.[31] Being generally inquisitorial,
the preliminary investigation stage is often the only means of discovering the persons who may be reasonably
charged with a crime, to enable the preparation of a complaint or information.[32]

Consider the following pertinent provision of Rule 112 of the Revised Rules on Criminal Procedure:

SEC. 3. Procedure. – The preliminary investigation shall be conducted in the following manner:

(a) The complaint shall state the address of the respondent and shall be accompanied by the affidavits of the
complainant and his witnesses, as well as other supporting documents to establish probable cause. They shall be in
such number of copies as there are respondents, plus two (2) copies for the official file. The affidavits shall be
subscribed and sworn to before any prosecutor or government official authorized to administer oath, or, in their
absence or unavailability, before a notary public, each of whom must certify that he personally examined the affiants
and that he is satisfied that they voluntarily executed and understood their affidavits.[33] (Emphasis and underscoring
supplied)

As clearly worded, the complaint is not entirely the affidavit of the complainant, for the affidavit is treated as a
component of the complaint. The phraseology of the above-quoted rule recognizes that all necessary allegations need
not be contained in a single document. It is unlike a criminal “complaint or information” where the averments must
be contained in one document charging only one offense, non-compliance with which renders it vulnerable to a motion
to quash.[34]

The Court is not unaware of the practice of incorporating all allegations in one document denominated as
“complaint-affidavit.” It does not pronounce strict adherence to only one approach, however, for there are cases
where the extent of one’s personal knowledge may not cover the entire gamut of details material to the alleged
offense. The private offended party or relative of the deceased may not even have witnessed the fatality,[35] in
which case the peace officer or law enforcer has to rely chiefly on affidavits of witnesses. The Rules do not in fact
preclude the attachment of a referral or transmittal letter similar to that of the NBI-NCR. Thus, in Soriano v.
Casanova,[36] the Court held:

A close scrutiny of the letters transmitted by the BSP and PDIC to the DOJ shows that these were not
intended to be the complaint envisioned under the Rules. It may be clearly inferred from the tenor of the letters that
the officers merely intended to transmit the affidavits of the bank employees to the DOJ. Nowhere in the transmittal
letters is there any averment on the part of the BSP and PDIC officers of personal knowledge of the events and
transactions constitutive of the criminal violations alleged to have been made by the accused. In fact, the letters
clearly stated that what the OSI of the BSP and the LIS of the PDIC did was to respectfully transmit to the DOJ for
preliminary investigation the affidavits and personal knowledge of the acts of the petitioner. These affidavits were
subscribed under oath by the witnesses who executed them before a notary public. Since the affidavits, not the
letters transmitting

them, were intended to initiate the preliminary investigation, we hold that Section 3(a), Rule 112 of the Rules of Court
was substantially complied with.

Citing the ruling of this Court in Ebarle v. Sucaldito, the Court of Appeals correctly held that a complaint for
purposes of preliminary investigation by the fiscal need not be filed by the offended party. The rule has been that,
unless the offense subject thereof is one that cannot be prosecuted de oficio, the same may be filed, for preliminary
 8

investigation purposes, by any competent person. The crime of estafa is a public crime which can be initiated by “any
competent person.” The witnesses who executed the affidavits based on their personal knowledge of the acts
committed by the petitioner fall within the purview of “any competent person” who may institute the complaint for a
public crime. x x x[37] (Emphasis and underscoring supplied)

A preliminary investigation can thus validly proceed on the basis of an affidavit of any competent person,
without the referral document, like the NBI-NCR Report, having been sworn to by the law enforcer as the nominal
complainant. To require otherwise is a needless exercise. The cited case of Oporto, Jr. v. Judge Monserate[38] does
not appear to dent this proposition. After all, what is required is to reduce the evidence into affidavits, for while
reports and even raw information may justify the initiation of an investigation, the preliminary investigation stage can
be held only after sufficient evidence has been gathered and evaluated which may warrant the eventual prosecution of
the case in court.[39]

In the present case, there is no doubt about the existence of affidavits. The appellate court found that “certain
complaint-affidavits were already filed by some of the victims,”[40] a factual finding to which this Court, by rule,
generally defers.

A complaint for purposes of conducting preliminary investigation is not required to exhibit the attending
structure of a “complaint or information” laid down in Rule 110 (Prosecution of Offenses) which already speaks of the
“People of the Philippines” as a party,[41] an “accused” rather than a respondent,[42] and a “court” that shall
pronounce judgment.[43] If a “complaint or information” filed in court does not comply with a set of constitutive
averments, it is vulnerable to a motion to quash.[44] The filing of a motion to dismiss in lieu of a counter-affidavit is
proscribed by the rule on preliminary investigation, however.[45] The investigating officer is allowed to dismiss
outright the complaint only if it is not sufficient in form and substance or “no ground to continue with the
investigation”[46] is appreciated.

The investigating fiscal, to be sure, has discretion to determine the specificity and adequacy of averments of
the offense charged. He may dismiss the complaint forthwith if he finds it to be insufficient in form or substance or if
he otherwise finds no ground to continue with the inquiry, or proceed with the investigation if the complaint is, in his
view, in due and proper form. It certainly is not his duty to require a more particular statement of the allegations of
the complaint merely upon the respondents’ motion, and specially where after an analysis of the complaint and its
supporting statements he finds it sufficiently definite to apprise the respondents of the offenses which they are
charged. Moreover, the procedural device of a bill of particulars, as the Solicitor General points out, appears to have
reference to informations or criminal complaints filed in a competent court upon which the accused are arraigned and
required to plead, and strictly speaking has no application to complaints initiating a preliminary investigation which
cannot result in any finding of guilt, but only of probable cause.[47] (Italics and ellipses in the original omitted;
underscoring supplied)

Petitioners’ claims of vague allegations or insufficient imputations are thus matters that can be properly raised
in their counter-affidavits to negate or belie the existence of probable cause.

On the Claim of Bias and Prejudgment

On the remaining issues, petitioners charge respondents to have lost the impartiality to conduct the preliminary
investigation since they had prejudged the case, in support of which they cite the “indecent” haste in the conduct of
the proceedings. Thus, they mention the conduct of the criminal investigation within 24 working days[48] and the
issuance of subpoenas immediately following the creation of the Investigating Panel.

Petitioners likewise cite the following public declarations made by Gonzalez as expressing his conclusions that a
crime had been committed, that the show was the proximate cause, and that the show’s organizers are guilty thereof:

February 6, 2006: “[ ] should have anticipated it because one week na iyan e. The crowds started gathering since
one week before. This is simply negligence x x x on the part of the organizers.”

February 14, 2006: “I think ABS-CBN is trying to minimize its own responsibility and it’s discernible from the way by
which talk shows nila being conducted on people who talk about liabilities of others.

“The reason for this incident was the program. If there was no program, there would have been no stampede. There
would have been no people. There would have been no attempt by people to queue there for days and rush for the
nearest entry point.”

March 20, 2006: “I’ll bet everything I have that they are responsible at least on the civil aspect.”[49] (Emphasis in
the original)

Continuing, petitioners point out that long before the conclusion of any investigation, Gonzalez already ruled
out the possibility that some other cause or causes led to the tragedy or that someone else or perhaps none should be
made criminally liable; and that Gonzalez had left the preliminary investigation to a mere determination of who within
ABS-CBN are the program’s organizers who should be criminally prosecuted.

Petitioners even cite President Arroyo’s declaration in a radio interview on February 14, 2006 that “[y]ang
stampede na iyan, Jo, ay isang trahedya na pinapakita yung kakulangan at pagkapabaya… nagpabaya ng
organisasyon na nag-organize nito.”

To petitioners, the declarations admittedly[50] made by Gonzalez tainted the entire DOJ, including the
Evaluating and Investigating Panels, since the Department is subject to the direct control and supervision of Gonzalez
in his capacity as DOJ Secretary who, in turn, is an alter ego of the President.
 9

Petitioners thus fault the appellate court in not finding grave abuse of discretion on the part of the
Investigating Panel members who “refused to inhibit themselves from conducting the preliminary investigation despite
the undeniable bias and partiality publicly displayed by their superiors.”[51]

Pursuing, petitioners posit that the bias of the DOJ Secretary is the bias of the entire DOJ.[52] They thus conclude
that the DOJ, as an institution, publicly adjudged their guilt based on a pre-determined notion of supposed facts, and
urge that the Investigating Panel and the entire DOJ for that matter should inhibit from presiding and deciding over
such preliminary investigation because they, as quasi-judicial officers, do not possess the “cold neutrality of an
impartial judge.”[53]

Responding to the claim of prejudgment, respondents maintain that the above-cited statements of Gonzalez
and the President merely indicate that the incident is of such nature and magnitude as to warrant a natural inference
that it would not have happened in the ordinary course of things and that any reasonable mind would conclude that
there is a causal connection between the show’s preparations and the resultant deaths and injuries.

Petitioners’ fears are speculatory.

Speed in the conduct of proceedings by a judicial or quasi-judicial officer cannot per se be instantly attributed
to an injudicious performance of functions.[54] For one’s prompt dispatch may be another’s undue haste. The
orderly administration of justice remains as the paramount and constant consideration,[55] with particular regard of
the circumstances peculiar to each case.

The presumption of regularity[56] includes the public officer’s official actuations in all phases of work.[57]
Consistent with such presumption, it was incumbent upon petitioners to present contradictory evidence other than
a

mere tallying of days or numerical calculation.[58] This, petitioners failed to discharge. The swift completion of the
Investigating Panel’s initial task cannot be relegated as shoddy or shady without discounting the presumably regular
performance of not just one but five state prosecutors.

As for petitioners’ claim of undue haste indicating bias, proof thereof is wanting. The pace of the proceedings
is anything but a matter of acceleration. Without any objection from the parties, respondents even accorded
petitioners a preliminary investigation even when it was not required since the case involves an alleged offense where
the penalty prescribed by law is below Four Years, Two Months and One Day.[59]

Neither is there proof showing that Gonzalez exerted undue pressure on his subordinates to tailor their decision
with his public declarations and adhere to a pre-determined result. The Evaluating Panel in fact even found no
sufficient basis, it bears emphatic reiteration, to proceed with the conduct of a preliminary investigation, and one
member of the Investigating Panel even dissented to its October 9, 2006 Resolution.

To follow petitioner’s theory of institutional bias would logically mean that even the NBI had prejudged the case
in conducting a criminal investigation since it is a constituent agency of the DOJ. And if the theory is extended to the
President’s declaration, there would be no more arm of the government credible enough to conduct a criminal
investigation and a preliminary investigation.

On petitioners citation of Ladlad v. Velasco[60] where a public declaration by Gonzalez was found to evince a
“determination to file the Information even in the absence of probable cause,”[61] their attention is drawn to the
following ruling of this Court in Roberts, Jr. v. Court of Appeals:[62]

Ordinarily, the determination of probable cause is not lodged with this Court. Its duty in an appropriate case
is confined to the issue of whether the executive or judicial determination, as the case may be, of probable cause was
done without or in excess of jurisdiction or with grave abuse of discretion amounting to want of jurisdiction. This is
consistent with the general rule that criminal prosecution may not be restrained or stayed by injunction, preliminary
or final. There are, however, exceptions to this rule x x x enumerated in Brocka vs. Enrile (192 SCRA 183, 188-189
[1990]) x x x. In these exceptional cases, this Court may ultimately resolve the existence or non-existence of
probable cause by examining the records of the preliminary investigation x x x.[63] (Emphasis and underscoring
supplied)

Even assuming arguendo that petitioners’ case falls under the exceptions enumerated in Brocka, any
resolution on the existence or lack of probable cause or, specifically, any conclusion on the issue of prejudgment as
elucidated in Ladlad, is made to depend on the records of the preliminary investigation. There have been, as the
appellate court points out, no finding to speak of when the petition was filed, much less one that is subject to judicial
review due to grave abuse.[64] At that incipient stage, records were wanting if not nil since the Investigating Panel
had not yet resolved any matter brought before it, save for the issuance of subpoenas. The Court thus finds no
reversible error on the part of the appellate court in dismissing

petitioners’ petition for certiorari and prohibition and in refraining from reviewing the merits of the case until a ripe
and appropriate case is presented. Otherwise, court intervention would have been only pre-emptive and piecemeal.

Oddly enough, petitioners eventually concede that they are “not asking for a reversal of a ruling on probable
cause.”[65]

A word on the utilization by petitioners of the video footages provided by ABS-CBN. While petitioners deny wishing or
causing respondents to be biased and impartial,[66] they admit[67] that the media, ABS-CBN included, interviewed
Gonzalez in order to elicit his opinion on a matter that ABS-CBN knew was pending investigation and involving a
number of its own staff. Gonzalez’s actuations may leave much to be desired; petitioners’ are not, however, totally
 10

spotless as circumstances tend to show that they were asking for or fishing from him something that could later be
used against him to favor their cause.

A FINAL WORD. The Court takes this occasion to echo its disposition in Cruz v. Salva[68] where it censured a
fiscal for inexcusably allowing undue publicity in the conduct of preliminary investigation and appreciated the press for
wisely declining an unusual probing privilege. Agents of the law ought to recognize the buoys and bounds of prudence
in discharging what they may deem as an earnest effort to herald the government’s endeavor in solving a case.

WHEREFORE, the petition is DENIED.

Costs against petitioners.

SO ORDERED.
 11

G.R. Nos. 172070-72 June 1, 2007

VICENTE P. LADLAD, NATHANAEL S. SANTIAGO, RANDALL B. ECHANIS, and REY CLARO C. CASAMBRE,
Petitioners,
vs.
SENIOR STATE PROSECUTOR EMMANUEL Y. VELASCO, SENIOR STATE PROSECUTOR JOSELITA C.
MENDOZA, SENIOR STATE PROSECUTOR AILEEN MARIE S. GUTIERREZ, STATE PROSECUTOR IRWIN A.
MARAYA, and STATE PROSECUTOR MERBA A. WAGA, in their capacity as members of the Department of
Justice panel of prosecutors investigating I.S. Nos. 2006-225, 2006-226 and 2006-234, JUSTICE
SECRETARY RAUL M. GONZALEZ, DIRECTOR GENERAL ARTURO C. LOMIBAO, in his capacity as Chief,
Philippine National Police, P/CSUPT. RODOLFO B. MENDOZA, JR., and P/SUPT. YOLANDA G. TANIGUE,
Respondents.

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

G.R. Nos. 172074-76 June 1, 2007

LIZA L. MAZA, JOEL G. VIRADOR, SATURNINO C. OCAMPO, TEODORO A. CASIÑO, CRISPIN B. BELTRAN,
and RAFAEL V. MARIANO, Petitioners,
vs.
RAUL M. GONZALEZ, in his capacity as Secretary of the Department of Justice, JOVENCITO R. ZUÑO, in his
capacity as Chief State Prosecutor, the Panel of Investigating Prosecutors composed of EMMANUEL Y.
VELASCO, JOSELITA C. MENDOZA, AILEEN MARIE S. GUTIERREZ, IRWIN A. MARAYA and MERBA A. WAGA
(Panel), RODOLFO B. MENDOZA, in his capacity as Acting Deputy Director, Directorate for Investigation
and Detective Management (DIDM), YOLANDA G. TANIGUE, in her capacity as Acting Executive Officer of
DIDM, the DEPARTMENT OF JUSTICE (DOJ), and the PHILIPPINE NATIONAL POLICE (PNP), Respondents.

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 175013 June 1, 2007

CRISPIN B. BELTRAN, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, SECRETARY RAUL M. GONZALEZ, in his capacity as the Secretary of Justice
and overall superior of the Public Prosecutors, HONORABLE ENCARNACION JAJA G. MOYA, in her capacity
as Presiding Judge of Regional Trial Court of Makati City, Branch 146, and HONORABLE ELMO M.
ALAMEDA, in his capacity as Presiding Judge of Regional Trial Court of Makati City, Branch 150,
Respondents.

DECISION

CARPIO, J.:

The Case

These are consolidated petitions for the writs of prohibition and certiorari to enjoin petitioners’ prosecution for
Rebellion and to set aside the rulings of the Department of Justice (DOJ) and the Regional Trial Court of Makati City
(RTC Makati) on the investigation and prosecution of petitioners’ cases.

The Facts

Petitioner in G.R. No. 175013, Crispin B. Beltran (Beltran), and petitioners in G.R. Nos. 172074-76, Liza L. Maza
(Maza), Joel G. Virador (Virador), Saturnino C. Ocampo (Ocampo), Teodoro A. Casiño (Casiño), and Rafael V. Mariano
(Mariano),1 are members of the House of Representatives representing various party-list groups.2 Petitioners in G.R.
Nos. 172070-72 are private individuals. Petitioners all face charges for Rebellion under Article 134 in relation to Article
135 of the Revised Penal Code in two criminal cases pending with the RTC Makati.

G.R. No. 175013 (The Beltran Petition)

Following the issuance by President Gloria Macapagal-Arroyo of Presidential Proclamation No. 1017 on 24 February
2006 declaring a "State of National Emergency," police officers3 arrested Beltran on 25 February 2006, while he was
en route to Marilao, Bulacan, and detained him in Camp Crame, Quezon City. Beltran was arrested without a warrant
and the arresting officers did not inform Beltran of the crime for which he was arrested. On that evening, Beltran was
subjected to an inquest at the Quezon City Hall of Justice for Inciting to Sedition under Article 142 of the Revised
Penal Code based on a speech Beltran allegedly gave during a rally in Quezon City on 24 February 2006, on the
occasion of the 20th anniversary of the EDSA Revolution. The inquest was based on the joint affidavit of Beltran’s
arresting officers who claimed to have been present at the rally. The inquest prosecutor4 indicted Beltran and filed the
corresponding Information with the Metropolitan Trial Court of Quezon City (MeTC).5

The authorities brought back Beltran to Camp Crame where, on 27 February 2006, he was subjected to a second
inquest, with 1st Lt. Lawrence San Juan (San Juan), this time for Rebellion. A panel of State prosecutors6 from the
DOJ conducted this second inquest. The inquest was based on two letters, both dated 27 February 2006, of Yolanda
Tanigue (Tanigue) and of Rodolfo Mendoza (Mendoza). Tanigue is the Acting Executive Officer of the Criminal
Investigation and Detection Group (CIDG), Philippine National Police (PNP), while Mendoza is the Acting Deputy
Director of the CIDG. The letters referred to the DOJ for appropriate action the results of the CIDG’s investigation
implicating Beltran, the petitioners in G.R. Nos. 172074-76, San Juan, and several others as "leaders and promoters"
of an alleged foiled plot to overthrow the Arroyo government. The plot was supposed to be carried out jointly by
 12

members of the Communist Party of the Philippines (CPP) and the Makabayang Kawal ng Pilipinas (MKP), which have
formed a "tactical alliance."

On 27 February 2006, the DOJ panel of prosecutors issued a Resolution finding probable cause to indict Beltran and
San Juan as "leaders/promoters" of Rebellion. The panel then filed an Information with the RTC Makati. The
Information alleged that Beltran, San Juan, and other individuals "conspiring and confederating with each other, x x x,
did then and there willfully, unlawfully, and feloniously form a tactical alliance between the CPP/NPA, renamed as
Partidong Komunista ng Pilipinas (PKP) and its armed regular members as Katipunan ng Anak ng Bayan (KAB) with
the Makabayang Kawal ng Pilipinas (MKP) and thereby rise publicly and take up arms against the duly constituted
government, x x x."7 The Information, docketed as Criminal Case No. 06-452, was raffled to Branch 137 under
Presiding Judge Jenny Lind R. Aldecoa-Delorino (Judge Delorino).

Beltran moved that Branch 137 make a judicial determination of probable cause against him.8 Before the motion
could be resolved, Judge Delorino recused herself from the case which was re-raffled to Branch 146 under Judge
Encarnacion Jaja-Moya (Judge Moya).

In its Order dated 31 May 2006, Branch 146 sustained the finding of probable cause against Beltran.9 Beltran sought
reconsideration but Judge Moya also inhibited herself from the case without resolving Beltran’s motion. Judge Elmo M.
Alameda of Branch 150, to whom the case was re-raffled, issued an Order on 29 August 2006 denying Beltran’s
motion.

Hence, the petition in G.R. No. 175013 to set aside the Orders dated 31 May 2006 and 29 August 2006 and to enjoin
Beltran’s prosecution.

In his Comment to the petition, the Solicitor General claims that Beltran’s inquest for Rebellion was valid and that the
RTC Makati correctly found probable cause to try Beltran for such felony.

G.R. Nos. 172070-72 and 172074-76 (The Maza and Ladlad Petitions)

Based on Tanigue and Mendoza’s letters, the DOJ sent subpoenas to petitioners on 6 March 2006 requiring them to
appear at the DOJ Office on 13 March 2006 "to get copies of the complaint and its attachment." Prior to their receipt
of the subpoenas, petitioners had quartered themselves inside the House of Representatives building for fear of being
subjected to warrantless arrest.

During the preliminary investigation on 13 March 2006, the counsel for the CIDG presented a masked man, later
identified as Jaime Fuentes (Fuentes), who claimed to be an eyewitness against petitioners. Fuentes subscribed to his
affidavit before respondent prosecutor Emmanuel Velasco who then gave copies of the affidavit to media members
present during the proceedings. The panel of prosecutors10 gave petitioners 10 days within which to file their
counter-affidavits. Petitioners were furnished the complete copies of documents supporting the CIDG’s letters only on
17 March 2006.

Petitioners moved for the inhibition of the members of the prosecution panel for lack of impartiality and independence,
considering the political milieu under which petitioners were investigated, the statements that the President and the
Secretary of Justice made to the media regarding petitioners’ case,11 and the manner in which the prosecution panel
conducted the preliminary investigation. The DOJ panel of prosecutors denied petitioners’ motion on 22 March 2006.
Petitioners sought reconsideration and additionally prayed for the dismissal of the cases. However, the panel of
prosecutors denied petitioners’ motions on 4 April 2006.

Petitioners now seek the nullification of the DOJ Orders of 22 March 2006 and 4 April 2006.

Acting on petitioners’ prayer for the issuance of an injunctive writ, the Court issued a status quo order on 5 June
2006. Prior to this, however, the panel of prosecutors, on 21 April 2006, issued a Resolution finding probable cause to
charge petitioners and 46 others with Rebellion. The prosecutors filed the corresponding Information with Branch 57
of the RTC Makati, docketed as Criminal Case No. 06-944 (later consolidated with Criminal Case No. 06-452 in Branch
146), charging petitioners and their co-accused as "principals, masterminds, [or] heads" of a Rebellion.12
Consequently, the petitioners in G.R. Nos. 172070-72 filed a supplemental petition to enjoin the prosecution of
Criminal Case No. 06-944.

In his separate Comment to the Maza petition, the Solicitor General submits that the preliminary investigation of
petitioners was not tainted with irregularities. The Solicitor General also claims that the filing of Criminal Case No. 06-
944 has mooted the Maza petition.

The Issues

The petitions raise the following issues:

1. In G.R. No. 175013, (a) whether the inquest proceeding against Beltran for Rebellion was valid and (b) whether
there is probable cause to indict Beltran for Rebellion; and

2. In G.R. Nos. 172070-72 and 172074-76, whether respondent prosecutors should be enjoined from continuing with
the prosecution of Criminal Case No. 06-944.13

The Ruling of the Court

We find the petitions meritorious. On the Beltran Petition

The Inquest Proceeding against Beltran for Rebellion is Void.

 13

Inquest proceedings are proper only when the accused has been lawfully arrested without warrant.14 Section 5, Rule
113 of the Revised Rules of Criminal Procedure provides the instances when such warrantless arrest may be effected,
thus:

Arrest without warrant; when lawful.— A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to
commit an offense;

(b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of
facts or circumstances that the person to be arrested has committed it; and

xxxx

In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith
delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112.

The joint affidavit of Beltran’s arresting officers15 states that the officers arrested Beltran, without a warrant,16 for
Inciting to Sedition, and not for Rebellion. Thus, the inquest prosecutor could only have conducted – as he did conduct
– an inquest for Inciting to Sedition and no other. Consequently, when another group of prosecutors subjected Beltran
to a second inquest proceeding for Rebellion, they overstepped their authority rendering the second inquest void.
None of Beltran’s arresting officers saw Beltran commit, in their presence, the crime of Rebellion. Nor did they have
personal knowledge of facts and circumstances that Beltran had just committed Rebellion, sufficient to form probable
cause to believe that he had committed Rebellion. What these arresting officers alleged in their affidavit is that they
saw and heard Beltran make an allegedly seditious speech on 24 February 2006.17

Indeed, under DOJ Circular No. 61, dated 21 September 1993, the initial duty of the inquest officer is to determine if
the arrest of the detained person was made "in accordance with the provisions of paragraphs (a) and (b) of Section 5,
Rule 113."18 If the arrest was not properly effected, the inquest officer should proceed under Section 9 of Circular No.
61 which provides:

Where Arrest Not Properly Effected.— Should the Inquest Officer find that the arrest was not made in accordance with
the Rules, he shall:

a) recommend the release of the person arrested or detained;

b) note down the disposition on the referral document;

c) prepare a brief memorandum indicating the reasons for the action taken; and

d) forward the same, together with the record of the case, to the City or Provincial Prosecutor for appropriate action.

Where the recommendation for the release of the detained person is approved by the City or Provincial Prosecutor but
the evidence on hand warrant the conduct of a regular preliminary investigation, the order of release shall be served
on the officer having custody of said detainee and shall direct the said officer to serve upon the detainee the subpoena
or notice of preliminary investigation, together with the copies of the charge sheet or complaint, affidavit or sworn
statements of the complainant and his witnesses and other supporting evidence. (Emphasis supplied)

For the failure of Beltran’s panel of inquest prosecutors to comply with Section 7, Rule 112 in relation to Section 5,
Rule 113 and DOJ Circular No. 61, we declare Beltran’s inquest void.19 Beltran would have been entitled to a
preliminary investigation had he not asked the trial court to make a judicial determination of probable cause, which
effectively took the place of such proceeding.

There is No Probable Cause to Indict

Beltran for Rebellion.

Probable cause is the "existence of such facts and circumstances as would excite the belief in a reasonable mind,
acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which
he was prosecuted."20 To accord respect to the discretion granted to the prosecutor and for reasons of practicality,
this Court, as a rule, does not interfere with the prosecutor’s determination of probable cause for otherwise, courts
would be swamped with petitions to review the prosecutor’s findings in such investigations.21 However, in the few
exceptional cases where the prosecutor abused his discretion by ignoring a clear insufficiency of evidence to support a
finding of probable cause, thus denying the accused his right to substantive and procedural due process, we have not
hesitated to intervene and exercise our review power under Rule 65 to overturn the prosecutor’s findings.22 This
exception holds true here.

Rebellion under Article 134 of the Revised Penal Code is committed –

[B]y rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said
Government or its laws, the territory of the Republic of the Philippines or any part thereof, or any body of land, naval,
or other armed forces or depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or
prerogatives.

The elements of the offense are:

 14

1. That there be a (a) public uprising and (b) taking arms against the Government; and

2. That the purpose of the uprising or movement is either –

(a) to remove from the allegiance to said Government or its laws:

(1) the territory of the Philippines or any part thereof; or

(2) any body of land, naval, or other armed forces; or

(b) to deprive the Chief Executive or Congress, wholly or partially, of any of their powers and prerogatives.23

Thus, by its nature, rebellion is a crime of the masses or multitudes involving crowd action done in furtherance of a
political end.24

The evidence before the panel of prosecutors who conducted the inquest of Beltran for Rebellion consisted of the
affidavits and other documents25 attached to the CIDG letters. We have gone over these documents and find merit in
Beltran’s contention that the same are insufficient to show probable cause to indict him for Rebellion. The bulk of the
documents consists of affidavits, some of which were sworn before a notary public, executed by members of the
military and some civilians. Except for two affidavits, executed by a certain Ruel Escala (Escala), dated 20 Febuary
2006,26 and Raul Cachuela (Cachuela), dated 23 February 2006,27 none of the affidavits mentions Beltran.28 In his
affidavit, Escala recounted that in the afternoon of 20 February 2006, he saw Beltran, Ocampo, Casiño, Maza,
Mariano, Virador, and other individuals on board a vehicle which entered a chicken farm in Bucal, Padre Garcia,
Batangas and that after the passengers alighted, they were met by another individual who looked like San Juan. For
his part, Cachuela stated that he was a former member of the CPP and that (1) he attended the CPP’s "10th Plenum"
in 1992 where he saw Beltran; (2) he took part in criminal activities; and (3) the arms he and the other CPP members
used were purchased partly from contributions by Congressional members, like Beltran, who represent party-list
groups affiliated with the CPP.

The allegations in these affidavits are far from the proof needed to indict Beltran for taking part in an armed public
uprising against the government. What these documents prove, at best, is that Beltran was in Bucal, Padre Garcia,
Batangas on 20 February 2006 and that 14 years earlier, he was present during the 1992 CPP Plenum. None of the
affidavits stated that Beltran committed specific acts of promoting, maintaining, or heading a rebellion as found in the
DOJ Resolution of 27 February 2006. None of the affidavits alleged that Beltran is a leader of a rebellion. Beltran’s
alleged presence during the 1992 CPP Plenum does not automatically make him a leader of a rebellion.

In fact, Cachuela’s affidavit stated that Beltran attended the 1992 CPP Plenum as "Chairman, Kilusang Mayo Uno
(KMU)." Assuming that Beltran is a member of the CPP, which Beltran does not acknowledge, mere membership in the
CPP does not constitute rebellion.29 As for the alleged funding of the CPP’s military equipment from Beltran’s
congressional funds, Cachuela’s affidavit merely contained a general conclusion without any specific act showing such
funding. Cachuela merely alleged that "ang mga ibang mga pondo namin ay galing sa mga party list na naihalal sa
Kongreso tulad ng BAYAN MUNA – pimumunuan nila SATUR OCAMPO at CRISPIN BELTRAN, x x x."30 Such a general
conclusion does not establish probable cause.

In his Comment to Beltran’s petition, the Solicitor General points to Fuentes’ affidavit, dated 25 February 2006,31 as
basis for the finding of probable cause against Beltran as Fuentes provided details in his statement regarding meetings
Beltran and the other petitioners attended in 2005 and 2006 in which plans to overthrow violently the Arroyo
government were allegedly discussed, among others.

The claim is untenable. Fuentes’ affidavit was not part of the attachments the CIDG referred to the DOJ on 27
February 2006. Thus, the panel of inquest prosecutors did not have Fuentes’ affidavit in their possession when they
conducted the Rebellion inquest against Beltran on that day. Indeed, although this affidavit is dated 25 February
2006, the CIDG first presented it only during the preliminary investigation of the other petitioners on 13 March 2006
during which Fuentes subscribed to his statement before respondent prosecutor Velasco.

Respondent prosecutors later tried to remedy this fatal defect by motu proprio submitting to Branch 137 of the RTC
Makati Fuentes’ affidavit as part of their Comment to Beltran’s motion for judicial determination of probable cause.
Such belated submission, a tacit admission of the dearth of evidence against Beltran during the inquest, does not
improve the prosecution’s case. Assuming them to be true, what the allegations in Fuentes’ affidavit make out is a
case for Conspiracy to Commit Rebellion, punishable under Article 136 of the Revised Penal Code, not Rebellion under
Article 134. Attendance in meetings to discuss, among others, plans to bring down a government is a mere
preparatory step to commit the acts constituting Rebellion under Article 134. Even the prosecution acknowledged this,
since the felony charged in the Information against Beltran and San Juan in Criminal Case No. 06-452 is Conspiracy to
Commit Rebellion and not Rebellion. The Information merely alleged that Beltran, San Juan, and others conspired to
form a "tactical alliance" to commit Rebellion. Thus, the RTC Makati erred when it nevertheless found probable cause
to try Beltran for Rebellion based on the evidence before it.

The minutes32 of the 20 February 2006 alleged meeting in Batangas between members of MKP and CPP, including
Beltran, also do not detract from our finding.1a\^/phi1.net Nowhere in the minutes was Beltran implicated. While the
minutes state that a certain "Cris" attended the alleged meeting, there is no other evidence on record indicating that
"Cris" is Beltran. San Juan, from whom the "flash drive" containing the so-called minutes was allegedly taken, denies
knowing Beltran.

To repeat, none of the affidavits alleges that Beltran is promoting, maintaining, or heading a Rebellion. The
Information in Criminal Case No. 06-452 itself does not make such allegation. Thus, even assuming that the
Information validly charges Beltran for taking part in a Rebellion, he is entitled to bail as a matter of right since there
is no allegation in the Information that he is a leader or promoter of the Rebellion.33 However, the Information in fact
 15

merely charges Beltran for "conspiring and confederating" with others in forming a "tactical alliance" to commit
rebellion. As worded, the Information does not charge Beltran with Rebellion but with Conspiracy to Commit Rebellion,
a bailable offense.34

On the Ladlad and Maza Petitions

The Preliminary Investigation was Tainted

With Irregularities.

As in the determination of probable cause, this Court is similarly loath to enjoin the prosecution of offenses, a practice
rooted on public interest as the speedy closure of criminal investigations fosters public safety.35 However, such relief
in equity may be granted if, among others, the same is necessary (a) to prevent the use of the strong arm of the law
in an oppressive and vindictive manner36 or (b) to afford adequate protection to constitutional rights.37 The case of
the petitioners in G.R. Nos. 172070-72 and 172074-76 falls under these exceptions.

The procedure for preliminary investigation of offenses punishable by at least four years, two months and one day is
outlined in Section 3, Rule 112 of the Revised Rules of Criminal Procedure, thus:

Procedure.—The preliminary investigation shall be conducted in the following manner:

(a) The complaint shall state the address of the respondent and shall be accompanied by the affidavits of the
complainant and his witnesses, as well as other supporting documents to establish probable cause. They shall be in
such number of copies as there are respondents, plus two (2) copies for the official file. The affidavits shall be
subscribed and sworn to before any prosecutor or government official authorized to administer oath, or, in their
absence or unavailability, before a notary public, each of whom must certify that he personally examined the affiants
and that he is satisfied that they voluntarily executed and understood their affidavits.

(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss it if he finds no
ground to continue with the investigation, or issue a subpoena to the respondent attaching to it a copy of the
complaint and its supporting affidavits and documents.

The respondent shall have the right to examine the evidence submitted by the complainant which he may not have
been furnished and to copy them at his expense. If the evidence is voluminous, the complainant may be required to
specify those which he intends to present against the respondent, and these shall be made available for examination
or copying by the respondent at his expense.

Objects as evidence need not be furnished a party but shall be made available for examination, copying, or
photographing at the expense of the requesting party.

(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and documents,
the respondent shall submit his counter-affidavit and that of his witnesses and other supporting documents relied
upon for his defense. The counter-affidavits shall be subscribed and sworn to and certified as provided in paragraph
(a) of this section, with copies thereof furnished by him to the complainant. The respondent shall not be allowed to file
a motion to dismiss in lieu of a counter-affidavit.

(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten (10)
day period, the investigating officer shall resolve the complaint based on the evidence presented by the complainant.

(e) The investigating officer may set a hearing if there are facts and issues to be clarified from a party or a witness.
The parties can be present at the hearing but without the right to examine or cross-examine. They may, however,
submit to the investigating officer questions which may be asked to the party or witness concerned.

The hearing shall be held within ten (10) days from submission of the counter-affidavits and other documents or from
the expiration of the period for their submission. It shall be terminated within five (5) days.

(f) Within ten (10) days after the investigation, the investigating officer shall determine whether or not there is
sufficient ground to hold the respondent for trial. (Emphasis supplied)

Instead of following this procedure scrupulously, as what this Court had mandated in an earlier ruling, "so that the
constitutional right to liberty of a potential accused can be protected from any material damage,"38 respondent
prosecutors nonchalantly disregarded it. Respondent prosecutors failed to comply with Section 3(a) of Rule 112 which
provides that the complaint (which, with its attachment, must be of such number as there are respondents) be
accompanied by the affidavits of the complainant and his witnesses, subscribed and sworn to before any prosecutor or
government official authorized to administer oath, or, in their absence or unavailability, before a notary public.
Respondent prosecutors treated the unsubscribed letters of Tanigue and Mendoza of the CIDG, PNP as complaints39
and accepted the affidavits attached to the letters even though some of them were notarized by a notary public
without any showing that a prosecutor or qualified government official was unavailable as required by Section 3(a) of
Rule 112.

Further, Section 3(b) of Rule 112 mandates that the prosecutor, after receiving the complaint, must determine if there
are grounds to continue with the investigation. If there is none, he shall dismiss the case, otherwise he shall "issue a
subpoena to the respondents." Here, after receiving the CIDG letters, respondent prosecutors peremptorily issued
subpoenas to petitioners requiring them to appear at the DOJ office on 13 March 2006 "to secure copies of the
complaints and its attachments." During the investigation, respondent prosecutors allowed the CIDG to present a
masked Fuentes who subscribed to an affidavit before respondent prosecutor Velasco. Velasco proceeded to distribute
copies of Fuentes’ affidavit not to petitioners or their counsels but to members of the media who covered the
 16

proceedings. Respondent prosecutors then required petitioners to submit their counter-affidavits in 10 days. It was
only four days later, on 17 March 2006, that petitioners received the complete copy of the attachments to the CIDG
letters.1a\^/phi1.net

These uncontroverted facts belie respondent prosecutors’ statement in the Order of 22 March 2006 that the
preliminary investigation "was done in accordance with the Revised Rules o[f] Criminal Procedure."40 Indeed, by
peremptorily issuing the subpoenas to petitioners, tolerating the complainant’s antics during the investigation, and
distributing copies of a witness’ affidavit to members of the media knowing that petitioners have not had the
opportunity to examine the charges against them, respondent prosecutors not only trivialized the investigation but
also lent credence to petitioners’ claim that the entire proceeding was a sham.

A preliminary investigation is the crucial sieve in the criminal justice system which spells for an individual the
difference between months if not years of agonizing trial and possibly jail term, on the one hand, and peace of mind
and liberty, on the other hand. Thus, we have characterized the right to a preliminary investigation as not "a mere
formal or technical right" but a "substantive" one, forming part of due process in criminal justice.41 This especially
holds true here where the offense charged is punishable by reclusion perpetua and may be non-bailable for those
accused as principals.

Contrary to the submission of the Solicitor General, respondent prosecutors’ filing of the Information against
petitioners on 21 April 2006 with Branch 57 of the RTC Makati does not moot the petitions in G.R. Nos. 172070-72
and 172074-76. Our power to enjoin prosecutions cannot be frustrated by the simple filing of the Information with the
trial court.1a\^/phi1.net

On Respondent Prosecutors’ Lack of Impartiality

We find merit in petitioners’ doubt on respondent prosecutors’ impartiality. Respondent Secretary of Justice, who
exercises supervision and control over the panel of prosecutors, stated in an interview on 13 March 2006, the day of
the preliminary investigation, that, "We [the DOJ] will just declare probable cause, then it’s up to the [C]ourt to
decide x x x."42 Petitioners raised this issue in their petition,43 but respondents never disputed the veracity of this
statement. This clearly shows pre-judgment, a determination to file the Information even in the absence of probable
cause.

A Final Word

The obvious involvement of political considerations in the actuations of respondent Secretary of Justice and
respondent prosecutors brings to mind an observation we made in another equally politically charged case. We
reiterate what we stated then, if only to emphasize the importance of maintaining the integrity of criminal
prosecutions in general and preliminary investigations in particular, thus:

[W]e cannot emphasize too strongly that prosecutors should not allow, and should avoid, giving the impression that
their noble office is being used or prostituted, wittingly or unwittingly, for political ends, or other purposes alien to, or
subversive of, the basic and fundamental objective of observing the interest of justice evenhandedly, without fear or
favor to any and all litigants alike, whether rich or poor, weak or strong, powerless or mighty. Only by strict
adherence to the established procedure may be public’s perception of the impartiality of the prosecutor be
enhanced.441a\^/phi1.net

WHEREFORE, we GRANT the petitions. In G.R. No. 175013, we SET ASIDE the Order dated 31 May 2006 of the
Regional Trial Court, Makati City, Branch 146 and the Order dated 29 August 2006 of the Regional Trial Court, Makati
City, Branch 150. In G.R. Nos. 172070-72 and 172074-76, we SET ASIDE the Orders dated 22 March 2006 and 4 April
2006 issued by respondent prosecutors. We ORDER the Regional Trial Court, Makati City, Branch 150 to DISMISS
Criminal Case Nos. 06-452 and 06-944.

SO ORDERED.
 17

TERESITA TANGHAL OKABE, Petitioner, versus HON. PEDRO DE LEON GUTIERREZ, in his capacity as
Presiding Judge of RTC, Pasay City, Branch 119; PEOPLE OF THE PHILIPPINES; and CECILIA MARUYAMA,
Respondents.2004 May 272nd DivisionG.R. No. 150185

CALLEJO, SR., J.:

Before us is a petition for review on certiorari, under Rule 45 of the Rules of Court, as amended, that part of
the Decision[1] of the Court of Appeals in CA-G.R. SP No. 60732 dismissing her petition for certiorari under Rule 65 of
the Rules of Court, as amended, for the nullification of the August 25 and 28, 2000 Orders of the respondent judge in
Criminal Case No. 00-0749.

The Antecedents

Cecilia Maruyama executed a fifteen-page affidavit-complaint[2] and filed the same with the Office of the City
Prosecutor of Pasay City, on December 29, 1999, charging Lorna Tanghal and petitioner Teresita Tanghal Okabe,
a.k.a. Shiela Okabe, with estafa. In her affidavit, Maruyama alleged, inter alia, that on December 11, 1998, she
entrusted Y11,410,000 with the peso equivalent of P3,993,500 to the petitioner, who was engaged in the business of
"door-to-door delivery" from Japan to the Philippines. It was alleged that the petitioner failed to deliver the money as
agreed upon, and, at first, denied receiving the said amount but later returned only US$1,000 through Lorna Tanghal.

During the preliminary investigation, the complainant, respondent Maruyama, submitted the affidavit of her witnesses,
namely, Hermogena Santiago, Wilma Setsu and Marilette G. Izumiya and other documentary evidence. In her
affidavit, Setsu alleged that the money which was entrusted to the petitioner for delivery to the Philippines belonged
to her and her sister Annie Hashimoto, and their mother Hermogena Sanchez-Quicho, who joined respondent
Maruyama in her complaint against petitioner Okabe and Tanghal. Respondent Maruyama, likewise, submitted a
reply[3] to the petitioner’s counter-affidavit. After the requisite preliminary investigation, 2nd Assistant City
Prosecutor Joselito J. Vibandor came out with a resolution dated March 30, 2000, finding probable cause for estafa
against the petitioner.[4] Attached to the resolution, which was submitted to the city prosecutor for approval, was the
Information[5] against the petitioner and Maruyama’s affidavit-complaint. The city prosecutor approved the
resolution and the Information dated March 30, 2000 attached thereto.[6]

On May 15, 2000, an Information against the petitioner was filed in the Regional Trial Court of Pasay City,
docketed as Criminal Case No. 00-0749. The case was raffled to Branch 119 of the court presided by Judge Pedro de
Leon Gutierrez.[7] The accusatory portion of the Information reads:

That on or about December 12, 1998 in Pasay City, Metro Manila, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused defrauded Cecilia Maruyama and Conchita Quicho, complainant
herein, in the following manner, to wit: said accused received in trust from Cecilia Maruyama the amount of Japanese
Yen 1141 (sic) with peso equivalent to P3,839,465.00 under obligation to deliver the money to Conchita Quicho at the
NAIA International Airport, Pasay City, immediately upon accused arrival from Japan, but herein accused once in
possession of the same, did, then and there willfully, unlawfully and feloniously misappropriate and convert to her
own personal benefit the said amount, and despite demands accused failed and refused to do so, to the damage and
prejudice of the complainants in the aforesaid amount.

Contrary to law.[8]

Appended to the Information was the affidavit-complaint of respondent Maruyama and the resolution of
Investigating Prosecutor Vibandor. On May 19, 2000, the trial court issued a warrant for the arrest of the petitioner
with a recommended bond of P40,000. On June 15, 2000, the petitioner posted a personal bail bond in the said
amount, duly approved by Judge Demetrio B. Macapagal, the Presiding Judge of Branch 79 of the RTC of Quezon City,
who forthwith recalled the said warrant. The approved personal bail bond of the petitioner was transmitted to the RTC
of Pasig City on June 21, 2000. Upon her request, the petitioner was furnished with a certified copy of the
Information, the resolution and the criminal complaint which formed part of the records of the said case. The
petitioner left the Philippines for Japan on June 17, 2000 without the trial court’s permission, and returned to the
Philippines on June 28, 2000. She left the Philippines anew on July 1, 2000, and returned on July 12, 2000.

On July 14, 2000, the trial court issued an Order setting the petitioner’s arraignment and pre-trial at 2:00 p.m.
of July 16, 2000. On the same day, the private prosecutor filed an urgent ex parte motion for the issuance of the hold
departure order, alleging as follows:
3. It has come to the knowledge of private complainant that there is an impending marriage within the
Philippines of either the son or daughter of the above-named accused and that the above-named accused"who has
businesses in Japan, and is presently in Japan"will soon exit Japan and enter the Philippines to precisely attend said
wedding;

4. Given [a] the bail was fixed at merely P40,000.00 and [b] the considerable financial capability of
the accused, it is a foregone conclusion that the above-named accused will, upon arrest, readily and immediately post
bond, and leave for Japan"thereby frustrating and rendering inutile the administration of criminal justice in our
country. The speed with which accused Teresita Sheila Tanghal Okabe can post bond and leave for Japan"effectively
evading arraignment and plea"thus necessitates the immediate issuance of a Hold Departure Order even before her
arrival here in the Philippines;[9]

The trial court issued an order on the same day, granting the motion of the private prosecutor for the issuance
of a hold departure order and ordering the Commission on Immigration and Deportation (CID) to hold and prevent
any attempt on the part of the petitioner to depart from the Philippines.[10] For her part, the petitioner filed on July
17, 2000 a verified motion for judicial determination of probable cause and to defer proceedings/arraignment, alleging
that the only documents appended to the Information submitted by the investigating prosecutor were respondent
 18

Maruyama’s affidavit-complaint for estafa and the resolution of the investigating prosecutor; the affidavits of the
witnesses of the complainant, the respondent’s counter-affidavit and the other evidence adduced by the parties were
not attached thereto. The petitioner further alleged that the documents submitted by the investigating prosecutor
were not enough on which the trial court could base a finding of probable cause for estafa against her. She further
averred that conformably to the rulings of this Court in Lim v. Felix[11] and Roberts, Jr. v. Court of Appeals,[12] it
behooved the investigating prosecutor to submit the following to the trial court to enable it to determine the presence
or absence of probable cause: (a) copies of the affidavits of the witnesses of the complainant; (b) the counter-
affidavit of Okabe and those of her witnesses; (c) the transcripts of stenographic notes taken during the preliminary
investigation; and, (d) other documents presented during the said investigation.

On July 19, 2000, the petitioner filed a Very Urgent Motion To Lift/Recall Hold Departure Order dated July 17, 2000
and/or allow her to regularly travel to Japan alleging, thus:

3. Accused is (sic) widow and the legitimate mother of three (3) children, two (2) of whom are still
minors, namely:

3.1. Okabe, Jeffrey-18 years old born on 13 August 1981.

3.2. Okabe, Masatoshi-14 years old and born on 16 October 1985, 3rd year High School student at
Hoshikuki, Chiba City, Matsugaoka, High School, residing at Chiba City, Chuo-Ku, Yahagi-cho, 205, Telephone No.
043-224-5804.

3.3. Okabe, Tomoki-13 years old and born on 13 March 1986, 2nd year High School student at Hoshikuki,
Chiba City, Matsugaoka, High School, residing at Chiba City, Chuo-Ku, Yahagi-cho, 205, Telephone No. 043-224-5804.

3.4. The accused has to attend the Parents Teachers Association (PTA) at the Hoshikuki High School
where her two (2) minor sons aforesaid are presently enrolled and studying because Okabe, Masatoshi’s graduation
will take place on 26 July 2000.

3.5. The two (2) minor children of the accused absolutely depend their support (basic necessities) for
foods, clothings, medicines, rentals, schooling and all other expenses for their survival to their legitimate mother who
is the accused herein.

3.6. The issuance of the hold departure order (HDO) will impair the inherent custodial rights of the
accused as the legitimate mother over these two (2) minor children which is repugnant to law.

3.7. The issuance of the hold departure order (HDO) will unduly restrict the accused to her custodial
rights and visitation over her aforesaid minor children who are permanently living in Japan.

3.8. The issuance of the hold departure order (HDO) will unduly deprived (sic) these minor children to
their right to obtain education and survival.

4. Accused’s only source of income and livelihood is door-to-door delivery from Japan to the Philippines
and vice versa which has been taking place for a very long period of time and in the process she has been constantly
departing from the Philippines on a weekly basis and arriving in Japan on the same frequency, as evidenced by xerox
copies of the pages of her Philippine Passports which are hereto attached as Annexes "A," "A-1," "A-2" up to "A-30,"
respectively. To deprive her of this only source of her livelihood to which the aforesaid two (2) minor children are
deriving their very survival in a foreign land will (sic) tantamount to oppression rather than prosecution and depriving
the said minor sons of their right to live even before trial on the merits of this case that will (sic) tantamount to the
destruction of the future of these minor children.[13]

The private prosecutor opposed the petitioner’s motions during the hearing on July 21, 2000 which was also the date
set for her arraignment. The hearing of the motions as well as the arraignment was reset to 2:00 p.m. of July 26,
2000. On the said date, the petitioner filed a manifestation objecting to her arraignment prior to the resolution of her
pending motions. She alleged that her arraignment for the crime charged should not be made a condition for the
granting of her motion to recall the hold departure order issued against her. The arraignment of the petitioner was
again reset to 2:00 p.m. of August 28, 2000, pending the resolution of her two motions. On August 25, 2000, the
petitioner filed a motion for the postponement of her arraignment alleging that, in case the trial court ruled adversely
thereon, she would refuse to enter a plea and seek relief from the appellate court. The court denied the petitioner’s
motions on the following grounds:

(a) Based on its personal examination and consideration of the Information, the affidavit-complaint of respondent
Maruyama and the resolution of the investigating prosecutor duly approved by the city prosecutor, the court found
probable cause for the petitioner’s arrest. Since the petitioner’s motion for a determination of probable cause was
made after the court had already found probable cause and issued a warrant for the petitioner’s arrest, and after the
latter filed a personal bail bond for her provisional liberty, such motion was a mere surplusage;

(b) When the petitioner posted a personal bail bond for her provisional liberty, she thereby waived her right to
question the court’s finding of the existence of probable cause for her arrest and submitted herself to the jurisdiction
of the court, more so when she filed the motion for the lifting of the hold departure order the court issued, and the
motion to defer the proceedings and her arraignment; and
 19

(c) The hold departure order issued by the trial court was in accord with Supreme Court Circular No. 39-97 dated
June 19, 1997, as well as the ruling of this Court in Manotoc, Jr. v. Court of Appeals.[14]

When the case was called for the petitioner’s arraignment at 2:00 p.m., on August 28, 2000, she refused to plead.
[15] Her counsel advised her, in open court, not to enter a plea and, with leave of court, left the courtroom. The
court then entered a not guilty plea for the petitioner.[16] It also issued an order, on the said date, setting the pre-
trial and initial presentation of the evidence of the prosecution at 8:30 a.m. of September 20, 2000.[17]

The petitioner then filed with the Court of Appeals a petition for certiorari under Rule 65 of the Rules of Court with a
plea for a writ of preliminary injunction. The case was docketed as CA-G.R. SP No. 60732. The petitioner ascribed
the following errors to the trial court:

RESPONDENT COURT GRAVELY ERRED WHEN IT ISSUED WARRANT OF ARREST DESPITE OF (SIC) LACK OF
PROBABLE CAUSE

II

RESPONDENT COURT HAS VIOLATED THE RIGHT OF THE PETITIONER TO DUE PROCESS

III

RESPONDENT COURT HAS ALREADY PRE-JUDGED THE CONVICTION OF THE PETITIONER FOR ESTAFA

IV

RESPONDENT COURT HAS EXHIBITED ITS APPARENT PARTIALITY TOWARDS THE PROSECUTION AND AGAINST THE
PETITIONER

RESPONDENT COURT GRAVELY ERRED WHEN IT DENIES (SIC) THE MOTION FOR JUDICIAL DETERMINATION OF
PROBABLE CAUSE PURSUANT TO THE DOCTRINE OF ROBERTS, JR.

VI

RESPONDENT COURT GRAVELY ERRED WHEN IT DENIES (SIC) THE LIFTING/RECALL OF THE HDO AND/OR ALLOWING
THE PETITIONER TO TRAVEL TO JAPAN REGULARLY FOR HUMANITARIAN CONSIDERATION

VII

RESPONDENT COURT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION

WHEN IT ISSUED THE QUESTIONED ORDERS-[18]

On January 31, 2001, the CA rendered a Decision[19] partially granting the petition in that the assailed order of the
trial court denying the petitioner’s motion to lift/recall the hold departure order was set aside. However, the
petitioner’s motion for reconsideration of the trial court’s decision was denied and her petition for the nullification of
the August 25, 2000 Order of the respondent judge was dismissed. The CA ruled that by posting bail and praying for
reliefs from the trial court, the petitioner waived
her right to assail the respondent judge’s finding of the existence of probable cause. The appellate court cited the
ruling of this Court in Cojuangco, Jr. v. Sandiganbayan.[20] Thus, the appellate court affirmed the assailed order of
the RTC, based on the respondent judge’s personal examination of respondent Maruyama’s affidavit-complaint, the
resolution of the investigating prosecutor and the Information approved by the city prosecutor, a finding of probable
cause was in order. However, the appellate court allowed the petitioner to travel to Japan under the following
conditions:

(1) That petitioner post a bond double the amount of her alleged monetary liability under the Information filed
against her, as recommended by the Office of the Solicitor General;

(2) That petitioner inform respondent Court of each and all of her travel itinerary prior to leaving the country;

(3) That petitioner make periodic reports with respondent Court;

(4) That petitioner furnish respondent Court with all the addresses of her possible place of residence, both here and
in Japan; and

(5) Such other reasonable conditions which respondent Court may deem appropriate under the circumstances.[21]

The appellate court did not resolve the issue of whether the trial court had prejudged the case and was partial to the
prosecution. The decretal portion of the decision of the CA reads:
 20

WHEREFORE, premises considered, the instant special civil action for certiorari is hereby PARTIALLY GRANTED
insofar as the denial of petitioner’s Motion to Lift/Recall Hold Departure Order dated 14 July, 2000 and/or Allow the
accused to Regularly Travel to Japan is concerned. In all other respect, the same is hereby DENIED.

SO ORDERED.[22]

On March 6, 2001, the petitioner filed a motion for a partial reconsideration of the decision of the CA contending that
the appellate court erred in applying the ruling of this court in Cojuangco, Jr. v. Court of Appeals[23] instead of
Section 26, Rule 114 of the Revised Rules on Criminal Procedure. The petitioner posited that the said rule, which took
effect on December 1, 2000, before the court rendered its decision, had superseded the ruling of this Court in the
Cojuangco case. However, the appellate court held that Section 26, Rule 114 of the Revised Rules on Criminal
Procedure cannot be applied retroactively, because the petitioner had posted bail on June 15, 2000 before the Revised
Rules on Criminal Procedure took effect.

Hence, the instant petition for review on certiorari for the reversal of the decision and resolution of the CA and praying
that after due proceedings, judgment be rendered in her favor, thus:

WHEREFORE, it is respectfully prayed of this Honorable Supreme Court that after due proceedings judgment be
rendered in favor of the petitioner and against the respondents as follows:

(a) GIVING DUE COURSE to the instant petition;

(b) ORDERING the REVERSAL and PARTIALLY SETTING ASIDE of the Decision promulgated on 31 January 2001
(Annex "A" hereof) of the Honorable Court of Appeals in CA-G.R. SP No. 60732 as well as its Resolution promulgated
on 27 September 2001 (Annex "B" hereof);

(c) ORDERING the DISMISSAL of Crim. Case No. 00-0749 for lack of probable cause;

(d) DECLARING the entire proceedings in Crim. Case No. 00-0749 as null and void;

(e) ORDERING the private respondents to pay the petitioners the following amount:

(i) at least P1,000,000.00 as moral damages;

(ii) at least P1,000,000.00 as exemplary damages;

(iii) at least P500,000.00 as attorney’s fees and for other expenses of litigation.

(f) ORDERING the private respondent to pay the costs of this suit.

(g) Petitioner further prays for such other reliefs just and equitable under the premises.[24]

The petitioner asserts that the CA committed the following reversible errors:

THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR WHEN IT COMPLETELY DISREGARDED THE
APPLICATION OF SECTION 26, RULE 114 OF THE REVISED RULES ON CRIMINAL PROCEDURE WHICH TOOK EFFECT
ON 01 DECEMBER 2000 WHICH IS FAVORABLE TO THE PETITIONER/ACCUSED.

II

THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR IN RULING THAT "WHATEVER INFIRMITY THERE
WAS IN THE ISSUANCE OF THE WARRANT OF ARREST, THE SAME WAS CURED WHEN PETITIONER VOLUNTARILY
SUBMITTED TO THE RESPONDENT COURT’S JURISDICTION WHEN SHE POSTED BAIL AND FILED MOTIONS SEEKING
AFFIRMATIVE RELIEF SUCH AS MOTION TO LIFT/RECALL HOLD DEPARTURE ORDER AND TO ALLOW PETITIONER TO
TRAVEL REGULARLY TO JAPAN (Last paragraph, Page 9 DECISION dated 31 January 2001)."

III

THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR WHEN IT RELIED UPON THE RULING IN THE CASE
OF COJUANGCO, JR. VS. SANDIGANBAYAN, [300 SCRA 367 (1998)] WHEN IN FACT SAID RULING IS NOW OBSOLETE
AND NO LONGER APPLICABLE.

IV

THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR IN RULING THAT RESPONDENT COURT COMPLIED
WITH THE CONSTITUTIONAL REQUIREMENTS ON THE ISSUANCE OF WARRANT OF ARREST WITHOUT PROBABLE
CAUSE, WHEN THE RESPONDENT COURT MERELY RELIED ON [THE] (i) COMPLAINT-AFFIDAVIT OF CECILIA
MARUYAMA; (ii) RESOLUTION OF THE INVESTIGATING PROSECUTOR; AND (iii) CRIMINAL INFORMATION.

THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR WHEN IT FAILED TO RULE ON THE PARTIALITY OF
THE RESPONDENT JUDGE IN HANDLING THE CASE BELOW WHICH IS VIOLATIVE OF THE PETITIONER’S RIGHT TO
DUE PROCESS.
 21

VI

THE FILING OF CRIM. CASE NO. 4297 (MTC, ANGAT, BULACAN) FOR ESTAFA ENTITLED "PEOPLE VS. SHEILA OKABE";
CIVIL CASE NO. 331-M-98 (RTC, MALOLOS, BULACAN) FOR SUM OF MONEY WITH PRELIMINARY ATTACHMENT
ENTITLED "CONCHITA SANCHEZ-QUICHO VS. SHEILA TERESITA TANGHAL OKABE"; AND CRIM. CASE NO. 00-07-19
(RTC, PASAY CITY, BRANCH 119) ENTITLED "PEOPLE VS. TERESITA TANGHAL OKABE" CONSTITUTE A VIOLATION OF
THE RULE ON NON-FORUM SHOPPING.[25]

By way of comment, the Office of the Solicitor General refuted the petitioner’s assigned errors, contending as follows:

The Court of Appeals did not commit a reversible error in not applying Section 26, Rule 114 of the Revised Rules on
Criminal Procedure.

II

The Court of Appeals did not commit a reversible error in ruling that the infirmity, if any, in the issuance by the
respondent Judge of the warrant of arrest against petitioner was cured when petitioner voluntarily submitted to the
trial court’s jurisdiction when she posted bail and filed motions seeking for affirmative reliefs from the trial court, such
as the motion to lift/recall Hold Departure Order (HDO) and to allow petitioner to travel regularly to Japan.

III

The Court of Appeals did not commit a reversible error in applying the ruling in the Cojuangco case.

IV

The Court of Appeals did not commit a reversible error in finding that respondent Judge complied with the
constitutional requirements on the issuance of a warrant of arrest.

The Court of Appeals did not commit a reversible error when it did not rule on the partiality of the respondent Judge in
handling Criminal Case No. 00-0749.

VI

The Honorable Court of Appeals did not commit a reversible error when it did not rule on petitioner’s claim of forum
shopping.[26]

The Court shall resolve the assigned errors simultaneously as they are interrelated.

The petitioner asserts that the respondent judge could not have determined the existence of probable cause for her
arrest solely on the resolution of the investigating prosecutor and the undated affidavit-complaint of respondent
Maruyama. She posits that the respondent judge should have ordered the investigating prosecutor to submit the
affidavits of the witnesses of respondent Maruyama and the latter’s documentary evidence, as well as the counter-
affidavit of the petitioner and the transcripts of the stenographic notes, if any, taken during the preliminary
investigation. The petitioner adds that the respondent judge should have personally reviewed the said documents,
conformably to the rulings of this Court in Lim v. Felix,[27] Roberts, Jr. v. Court of Appeals[28] and Ho v. People,[29]
before determining the presence or absence of probable cause. She posits that the respondent judge acted with
grave abuse of discretion amounting to excess or lack of jurisdiction in denying her motion for a determination of
probable cause, and the alternative motion for a dismissal of the case against her for lack of probable cause.

The petitioner further asserts that the appellate court erred in affirming the ruling of the respondent judge that, by
posting a personal bail bond for her provisional liability and by filing several motions for relief, she thereby voluntarily
submitted herself to the jurisdiction of the trial court and waived her right to assail the infirmities that infected the
trial court’s issuance of the warrant for her arrest. She avers that the appellate court’s reliance on the ruling of this
Court in Cojuangco, Jr. v. Sandiganbayan[30] is misplaced, and submits that the appellate court should have applied
Section 26, Rule 114 of the Revised Rules of Court retroactively, as it rendered the ruling of this Court in the
Cojuangco, Jr. case obsolete.

The Office of the Solicitor General, on the other hand, asserts that the respondent judge did not commit any grave
abuse of discretion when he found probable cause against the petitioner for estafa, and thereafter issued a warrant for
her arrest. It argues that the respondent judge personally determined the existence of probable cause independently
of the certification of the investigating prosecutor, and only after examining the Information, the resolution of the
investigating prosecutor, as well as the affidavit-complaint of the private complainant. It asserts that such documents
are sufficient on which to anchor a finding of probable cause. It insists that the appellate court correctly applied the
ruling of this Court in the Cojuangco, Jr. v. Court of Appeals case, and that the respondent judge complied with both
the requirements of the constitution and those set forth in the Rules of Court before issuing the said warrant.[31]
We agree with the contention of the petitioner that the appellate court erred in not applying Section 26, Rule
114 of the Revised Rules on Criminal Procedure, viz:

SEC. 26. Bail not a bar to objections on illegal arrest, lack of or irregular preliminary investigation. – An
application for or admission to bail shall not bar the accused from challenging the validity of his arrest or the legality
 22

of the warrant issued therefor, or from assailing the regularity or questioning the absence of a preliminary
investigation of the charge against him, provided that he raises them before entering his plea. The court shall resolve
the matter as early as practicable but not later than the start of the trial of the case.

It bears stressing that Section 26, Rule 114 of the Revised Rules on Criminal Procedure is a new one, intended
to modify previous rulings of this Court that an application for bail or the admission to bail by the accused shall be
considered as a waiver of his right to assail the warrant issued for his arrest on the legalities or irregularities thereon.
[32] The new rule has reverted to the ruling of this Court in People v. Red.[33] The new rule is curative in nature
because precisely, it was designed to supply defects and curb evils in procedural rules. Hence, the rules governing
curative statutes are applicable. Curative statutes are by their essence retroactive in application.[34] Besides,
procedural rules as a general rule operate retroactively, even without express provisions to that effect, to cases
pending at the time of their effectivity, in other words to actions yet undetermined at the time of their effectivity.[35]
Before the appellate court rendered its decision on January 31, 2001, the Revised Rules on Criminal Procedure was
already in effect. It behooved the appellate court to have applied the same in resolving the petitioner’s petition for
certiorari and her motion for partial reconsideration.

Moreover, considering the conduct of the petitioner after posting her personal bail bond, it cannot be argued that she
waived her right to question the finding of probable cause and to assail the warrant of arrest issued against her by the
respondent judge. There must be clear and convincing proof that the petitioner had an actual intention to relinquish
her right to question the existence of probable cause.[36] When the only proof of intention rests on what a party
does, his act should be so manifestly consistent with, and indicative of, an intent to voluntarily and unequivocally
relinquish the particular right that no other explanation of his conduct is possible.[37] In this case, the records show
that a warrant was issued by the respondent judge in Pasay City for the arrest of the petitioner, a resident of
Guiguinto, Bulacan. When the petitioner learned of the issuance of the said warrant, she posted a personal bail bond
to avert her arrest and secure her provisional liberty. Judge Demetrio B. Macapagal of the RTC of Quezon City
approved the bond and issued an order recalling the warrant of arrest against the petitioner. Thus, the posting of a
personal bail bond was a matter of imperative necessity to avert her incarceration; it should not be deemed as a
waiver of her right to assail her arrest. So this Court ruled in People v. Red:[38]

… The present defendants were arrested towards the end of January, 1929, on the Island and Province of
Marinduque by order of the judge of the Court of First Instance of Lucena, Tayabas, at a time when there were no
court sessions being held in Marinduque. In view of these circumstances and the number of the accused, it may
properly be held that the furnishing of the bond was prompted by the sheer necessity of not remaining in detention,
and in no way implied their waiver of any right, such as the summary examination of the case before their detention.
That they had no intention of waiving this right is clear from their motion of January 23, 1929, the same day on which
they furnished a bond, and the fact that they renewed this petition on February 23, 1929, praying for the stay of their
arrest for lack of the summary examination; the first motion being denied by the court on January 24, 1929 (G.R. No.
33708, page 8), and the second remaining undecided, but with an order to have it presented in Boac, Marinduque.

Therefore, the defendants herein cannot be said to have waived the right granted to them by section 13,
General Order No. 58, as amended by Act No. 3042.[39]

Moreover, the next day, or on June 16, 2000, the petitioner, through counsel, received certified true copies of the
Information, the resolution of the investigating prosecutor, the affidavit-complaint of the private complainant,
respondent Maruyama, and a certification from the branch clerk of court that only the Information, resolution and
affidavit-complaint formed part of the entire records of the case. The next day, June 17, 2000, the petitioner, through
counsel, filed a verified motion for judicial determination of probable cause and to defer the proceedings and her
arraignment. All the foregoing are inconsistent with a waiver of her right to assail the validity of her arrest and to
question the respondent judge’s determination of the existence of probable cause for her arrest.

Neither can the petitioner’s filing of a motion for the lifting of the hold departure order and for leave to go to
Japan be considered a waiver of her right to assail the validity of the arrest warrant issued by the respondent judge.
It bears stressing that when the petitioner filed the motion to lift the hold departure order issued against her by the
respondent judge, her motion for a determination of probable cause was still unresolved. She sought a lifting of the
hold departure order on July 14, 2000 and filed a motion for leave to go to Japan, to give the respondent judge an
opportunity to reconsider the said order, preparatory to assailing the same in the appellate court in case her motion
was denied.

The issue that now comes to fore is whether or not the respondent judge committed a grave abuse of his
discretion amounting to excess or lack of jurisdiction in issuing his August 25, 2000 Order. By grave abuse of
discretion is meant such patent and gross abuse of discretion as to amount to an evasion of positive duty or a virtual
refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in
an arbitrary and despotic manner by reasons of passion or personal hostility.[40] Hence, when the court has
jurisdiction over the case, its questioned acts, even if its findings are not correct, would at most constitute errors of
law and not abuse of discretion correctible by the extraordinary remedy of certiorari.[41]

We agree with the petitioner that before the RTC judge issues a warrant of arrest under Section 6, Rule 112 of
the Rules of Court[42] in relation to Section 2, Article III of the 1987 Constitution, the judge must make a personal
 23

determination of the existence or non-existence of probable cause for the arrest of the accused. The duty to make
such determination is personal and exclusive to the issuing judge. He cannot abdicate his duty and rely on the
certification of the investigating prosecutor that he had conducted a preliminary investigation in accordance with law
and the Rules of Court, as amended, and found probable cause for the filing of the Information.

Under Section 1, Rule 112 of the Rules on Criminal Procedure, the investigating prosecutor, in conducting a
preliminary investigation of a case cognizable by the RTC, is tasked to determine whether there is sufficient ground to
engender a well-founded belief that a crime has been committed and the respondent therein is probably guilty thereof
and should be held for trial. A preliminary investigation is for the purpose of securing the innocent against hasty,
malicious and oppressive prosecution, and to protect him from an open and public accusation of a crime, from the
trouble, expense and anxiety of a public trial.[43]

If the investigating prosecutor finds probable cause for the filing of the Information against the respondent, he
executes a certification at the bottom of the Information that from the evidence presented, there is a
reasonable ground to believe that the offense charged has been committed and that the accused is probably guilty
thereof. Such certification of the investigating prosecutor is, by itself, ineffective. It is not binding on the trial court.
Nor may the RTC rely on the said certification as basis for a finding of the existence of probable cause for the arrest of
the accused.[44]

In contrast, the task of the presiding judge when the Information is filed with the court is first and foremost to
determine the existence or non-existence of probable cause for the arrest of the accused. Probable cause is meant
such set of facts and circumstances which would lead a reasonably discreet and prudent man to believe that the
offense charged in the Information or any offense included therein has been committed by the person sought to be
arrested.[45] In determining probable cause, the average man weighs facts and circumstances without resorting to
the calibrations of the rules of evidence of which he has no technical knowledge. He relies on common sense.[46] A
finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been
committed and that it was committed by the accused. Probable cause demands more than bare suspicion, it requires
less than evidence which would justify conviction.[47]

The purpose of the mandate of the judge to first determine probable cause for the arrest of the accused is to
insulate from the very start those
falsely charged of crimes from the tribulations, expenses and anxiety of a public trial:

It must be stressed, however, that in these exceptional cases, the Court took the extraordinary step of annulling
findings of probable cause either to prevent the misuse of the strong arm of the law or to protect the orderly
administration of justice. The constitutional duty of this Court in criminal litigations is not only to acquit the innocent
after trial but to insulate, from the start, the innocent from unfounded charges. For the Court is aware of the strains
of a criminal accusation and the stresses of litigation which should not be suffered by the clearly innocent. The filing
of an unfounded criminal information in court exposes the innocent to severe distress especially when the crime is not
bailable. Even an acquittal of the innocent will not fully bleach the dark and deep stains left by a baseless accusation
for reputation once tarnished remains tarnished for a long length of time. The expense to establish innocence may
also be prohibitive and can be more punishing especially to the poor and the powerless. Innocence ought to be
enough and the business of this Court is to shield the innocent from senseless suits right from the start.[48]

In determining the existence or non-existence of probable cause for the arrest of the accused, the RTC judge
may rely on the findings and conclusions in the resolution of the investigating prosecutor finding probable cause for
the filing of the Information. After all, as the Court held in Webb v. De Leon,[49] the judge just personally reviews
the initial determination of the investigating prosecutor finding a probable cause to see if it is supported by substantial
evidence.[50] However, in determining the existence or non-existence of probable cause for the arrest of the
accused, the judge should not rely solely on the said report.[51] The judge should consider not only the report of the
investigating prosecutor but also the affidavit/affidavits and the documentary evidence of the parties, the counter-
affidavit of the accused and his witnesses, as well as the transcript of stenographic notes taken during the preliminary
investigation, if any, submitted to the court by the investigating prosecutor upon the filing of the Information.[52]
Indeed, in Ho v. People,[53] this Court held that:

Lastly, it is not required that the complete or entire records of the case during the preliminary investigation
be submitted to and examined by the judge. We do not intend to unduly burden trial courts by obliging them to
examine the complete records of every case all the time simply for the purpose of ordering the arrest of an accused.
What is required, rather, is that the judge must have sufficient supporting documents (such as the complaint,
affidavits, counter-affidavits, sworn statements of witnesses or transcripts of stenographic notes, if any) upon which
to make his independent judgment or, at the very least, upon which to verify the findings of the prosecutor as to the
existence of probable cause. The point is: he cannot rely solely and entirely on the prosecutor’s recommendation, as
Respondent Court did in this case. Although the prosecutor enjoys the legal presumption of regularity in the
performance of his official duties and functions, which in turn gives his report the presumption of accuracy, the
Constitution, we repeat, commands the judge to personally determine probable cause in the issuance of warrants of
arrest. This Court has consistently held that a judge fails in his bounden duty if he relies merely on the certification or
the report of the investigating officer.[54]

The rulings of this Court are now embedded in Section 8(a), Rule 112 of the Revised Rules on Criminal
Procedure which provides that an Information or complaint filed in court shall be supported by the affidavits and
counter-affidavits of the parties and their witnesses, together with the other supporting evidence of the resolution:

SEC. 8. Records. - (a) Records supporting the information or complaint. An information or complaint filed in
court shall be supported by the affidavits and counter-affidavits of the parties and their witnesses, together with the
other supporting evidence and the resolution on the case.
 24

If the judge is able to determine the existence or non-existence of probable cause on the basis of the records
submitted by the investigating
prosecutor, there would no longer be a need to order the elevation of the rest of the records of the case. However, if
the judge finds the records and/or evidence submitted by the investigating prosecutor to be insufficient, he may order
the dismissal of the case, or direct the investigating prosecutor either to submit more evidence or to submit the entire
records of the preliminary investigation, to enable him to discharge his duty.[55] The judge may even call the
complainant and his witness to themselves answer the court’s probing questions to determine the existence of
probable cause.[56] The rulings of this Court in Soliven v. Makasiar[57] and Lim v. Felix[58] are now embodied in
Section 6, Rule 112 of the Revised Rules on Criminal Procedure, with modifications, viz:

SEC. 6. When warrant of arrest may issue. " (a) By the Regional Trial Court. " Within ten (10) days from the
filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its
supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable
cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has
already been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or when
the complaint or information was filed pursuant to section 7 of this Rule. In case of doubt on the existence of
probable cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice
and the issue must be resolved by the court within thirty (30) days from the filing of the complaint of information.

In this case, the investigating prosecutor submitted to the respondent judge only his resolution after his
preliminary investigation of the case and the affidavit-complaint of the private complainant, and failed to include the
affidavits of the witnesses of the private complainant, and the latter’s reply
affidavit, the counter-affidavit of the petitioner, as well as the evidence adduced by the private complainant as
required by case law, and now by Section 8(a), Rule 112 of the Revised Rules on Criminal Procedure. The aforecited
affidavits, more specifically the fax message of Lorna Tanghal and the document signed by her covering the amount of
US$1,000, are of vital importance, as they would enable the respondent judge to properly determine the existence or
non-existence of probable cause.
First. When respondent Maruyama handed the money to the petitioner, she did not require the latter to sign a
document acknowledging receipt of the amount. The petitioner avers that it is incredible that Maruyama would
entrust P3,993,500 in Japanese Yen to her without even requiring her to sign a receipt therefor, especially since
respondent Maruyama was not even the owner of the money;

Second. The affidavit of Hermogena Santiago, a witness of the respondent, is unreliable, because it is based
on information relayed to her by Lorna Tanghal that she (Tanghal) saw the petitioner carrying a Louis Vuitton bag
while on board a Mitsubishi L300 van with the petitioner. It appears that Tanghal failed to submit any counter-
affidavit to the investigating prosecutor;

Third. The affidavit of Marilette G. Izumiya, another witness of the respondent, is also unreliable, as it was
based on information relayed to her by Thelma Barbiran, who used to work for the petitioner as a housemaid, that she
(Barbiran) had in her possession a fax message from Lorna Tanghal, implicating the petitioner in the crime charged.
Barbiran did not execute any affidavit;

Fourth. There is no indication in the resolution of the investigating prosecutor that the petitioner received the
fax message of Lorna Tanghal;

Fifth. The private complainant claims that the petitioner tried to reimburse the P3,993,500 by remitting
US$1,000 to her. However, the latter admitted in her affidavit-complaint that the document evidencing the
remittance was signed by Lorna Tanghal, not by the petitioner. The petitioner claimed that Lorna Tanghal had to
remit US$1,000 to respondent Maruyama because the latter made it appear to Tanghal that the police authorities
were about to arrest the petitioner, and Tanghal was impelled to give the amount to respondent Maruyama to avert
her arrest and incarceration;

Sixth. In her counter-affidavit, the petitioner alleged that respondent Maruyama had no case against her
because the crime charged in the latter’s affidavit-complaint was the same as that filed against her in the Metropolitan
Trial Court of Bulacan, which was withdrawn by the complainant herself;

Seventh. The investigating prosecutor stated in his resolution that the private complainant established the
element of deceit. However, the crime charged against the petitioner as alleged in the Information is estafa with
abuse of confidence.

In sum, then, we find and so declare that the respondent judge committed a grave abuse of his discretion
amounting to excess or lack of jurisdiction in finding probable cause for the petitioner’s arrest in the absence of copies
of the affidavits of the witnesses of the private complainant and her reply affidavit, the counter-affidavit of the
petitioner, and the evidence adduced during the preliminary investigation before the investigating prosecutor.

In view of the foregoing disquisitions, there is no more need to resolve the other issues raised by the
petitioner.

IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The assailed decision of the Court of Appeals is
REVERSED and SET ASIDE. The assailed Orders dated August 25 and 28, 2000 and the Warrant of Arrest issued by
the respondent judge in Criminal Case No. 00-0749 are SET ASIDE. The records are REMANDED to the Regional Trial
Court of Pasay City, Branch 119. The respondent judge is hereby DIRECTED to determine the existence or non-
existence of probable cause for the arrest of the petitioner based on the complete records, as required under Section
8(a), Rule 112 of the Revised Rules on Criminal Procedure.

SO ORDERED.
 25

[2007V216] BERNADETTE L. ADASA, PETITIONER, VERSUS CECILLE S. ABALOS, RESPONDENT.2007 Feb

193rd DivisionG.R. No. 168617D E C I S I O N

CHICO-NAZARIO, J.:

This Petition for Review under Rule 45 of the Rules of Court, filed by petitioner Bernadette L. Adasa, seeks to nullify
and set aside the 21 July 2004 Decision[1] and 10 June 2005 Resolution[2] of the Court of Appeals in CA-G.R. SP No.
76396 which nullified the Resolutions of the Department of Justice (DOJ). The Resolutions of the DOJ reversed and
set aside the Resolution of the Office of the City Prosecutor of Iligan City, which found on reinvestigation probable
cause against petitioner, and directed the Office of the City Prosecutor of Iligan City to withdraw the information for
Estafa against petitioner.

The instant case emanated from the two complaints-affidavits filed by respondent Cecille S. Abalos on 18 January
2001 before the Office of the City Prosecutor of Iligan City, against petitioner for Estafa.

Respondent alleged in the complaints-affidavits that petitioner, through deceit, received and encashed two checks
issued in the name of respondent without respondent’s knowledge and consent and that despite repeated demands by
the latter, petitioner failed and refused to pay the proceeds of the checks.

On 23 March 2001, petitioner filed a counter-affidavit admitting that she received and encashed the two checks issued
in favor of respondent.

In her Supplemental Affidavit filed on 29 March 2001, petitioner, however, recanted and alleged instead that it was a
certain Bebie Correa who received the two checks which are the subject matter of the complaints and encashed the
same; and that said Bebie Correa left the country after misappropriating the proceeds of the checks.

On 25 April 2001, a resolution was issued by the Office of the City Prosecutor of Iligan City finding probable cause
against petitioner and ordering the filing of two separate Informations for Estafa Thru Falsification of Commercial
Document by a Private Individual, under Article 315 in relation to Articles 171 and 172 of the Revised Penal Code, as
amended.

Consequently, two separate criminal cases were filed against petitioner docketed as Criminal Cases No. 8781 and No.
8782, raffled to Branches 4 and 5, Regional Trial Court of Iligan City, respectively.

This instant petition pertains only to Criminal Case No. 8782.

On 8 June 2001, upon motion of the petitioner, the trial court in Criminal Case No. 8782 issued an order directing the
Office of the City Prosecutor of Iligan City to conduct a reinvestigation.

After conducting the reinvestigation, the Office of the City Prosecutor of Iligan City issued a resolution dated 30
August 2001, affirming the finding of probable cause against petitioner.

Meanwhile, during her arraignment on 1 October 2001 in Criminal Case No. 8782, petitioner entered an unconditional
plea of not guilty.[3]

Dissatisfied with the finding of the Office of the City Prosecutor of Iligan City, petitioner filed a Petition for Review
before the DOJ on 15 October 2001.

In a Resolution dated 11 July 2002, the DOJ reversed and set aside the 30 August 2001 resolution of the Office of the
City Prosecutor of Iligan City and directed the said office to withdraw the Information for Estafa against petitioner.

The said DOJ resolution prompted the Office of the City Prosecutor of Iligan City to file a “Motion to Withdraw
Information” on 25 July 2002.

On 26 July 2002, respondent filed a motion for reconsideration of said resolution of the DOJ arguing that the DOJ
should have dismissed outright the petition for review since Section 7 of DOJ Circular No. 70 mandates that when an
accused has already been arraigned and the aggrieved party files a petition for review before the DOJ, the Secretary
of Justice cannot, and should not take cognizance of the petition, or even give due course thereto, but instead deny it
outright. Respondent claimed Section 12 thereof mentions arraignment as one of the grounds for the dismissal of the
petition for review before the DOJ.

In a resolution dated 30 January 2003, the DOJ denied the Motion for Reconsideration opining that under Section 12,
in relation to Section 7, of DOJ Circular No. 70, the Secretary of Justice is not precluded from entertaining any appeal
taken to him even where the accused has already been arraigned in court. This is due to the permissive language
“may” utilized in Section 12 whereby the Secretary has the discretion to entertain an appealed resolution
notwithstanding the fact that the accused has been arraigned.

Meanwhile, on 27 February 2003, the trial court issued an order granting petitioner’s “Motion to Withdraw
Information” and dismissing Criminal Case No. 8782. No action was taken by respondent or any party of the case
from the said order of dismissal.

Aggrieved by the resolution of the DOJ, respondent filed a Petition for Certiorari before the Court of Appeals.
Respondent raised the following issues before the appellate court:
 26

1. Whether or not the Department of Justice gravely abused its discretion in giving due course to petitioner’s petition
for review despite its having been filed after the latter had already been arraigned;

2. Whether or not there is probable cause that the crime of estafa has been committed and that petitioner is probably
guilty thereof;

3. Whether or not the petition before the Court of Appeals has been rendered moot and academic by the order of the
Regional Trial Court dismissing Criminal Case No. 8782.

The Court of Appeals in a Decision dated 21 July 2004 granted respondent’s petition and reversed the Resolutions of
the DOJ dated 11 July 2002 and 30 January 2003.

In resolving the first issue, the Court of Appeals, relying heavily on Section 7 of DOJ Circular No. 70 which states “[i]f
an information has been filed in court pursuant to the appealed resolution, the petition shall not be given due course if
the accused had already been arraigned,” ruled that since petitioner was arraigned before she filed the petition for
review with the DOJ, it was imperative for the DOJ to dismiss such petition. It added that when petitioner pleaded to
the charge, she was deemed to have waived her right to reinvestigation and right to question any irregularity that
surrounds it.

Anent the second issue, the Court of Appeals declared that the existence of probable cause or the lack of it, cannot be
dealt with by it since factual issues are not proper subjects of a Petition for Certiorari.

In disposing of the last issue, the Court of Appeals held that the order of the trial court dismissing the subject criminal
case pursuant to the assailed resolutions of the DOJ did not render the petition moot and academic. It said that since
the trial court’s order relied solely on the resolutions of the DOJ, said order is void as it violated the rule which enjoins
the trial court to assess the evidence presented before it in a motion to dismiss and not to rely solely on the
prosecutor’s averment that the Secretary of Justice had recommended the dismissal of the case.

Dissatisfied by the Court of Appeals’ ruling, petitioner filed a Motion for Reconsideration setting forth the following
grounds:

1. that the over-all language of Sections 7 and 12 of Department Circular No. 70 is permissive and directory such that
the Secretary of Justice may entertain an appeal despite the fact that the accused had been arraigned;

2. that the contemporaneous construction by the Secretary of Justice should be given great weight and respect;

3. that Section 7 of the Circular applies only to resolutions rendered pursuant to a preliminary investigation, not on a
reinvestigation;

4. that the trial court’s order of dismissal of the criminal case has rendered the instant petition moot and academic;

5. that her arraignment was null and void it being conducted despite her protestations; and

6. that despite her being arraigned, the supposed waiver of her right to preliminary investigation has been nullified or
recalled by virtue of the trial court’s order of reinvestigation.[4]

The Court of Appeals stood firm by its decision. This time, however, it tried to construe Section 7 side by side with
Section 12 of DOJ Circular No. 70 and attempted to reconcile these two provisions. According to the appellate court,
the phrase “shall not” in paragraph two, first sentence of Section 7 of subject circular, to wit:

If an information has been filed in court pursuant to the appealed resolution, the petition shall not be given due
course if the accused had already been arraigned. x x x. ( mphasis supplied.)

employed in the circular denotes a positive prohibition. Applying the principle in statutory construction - that when a
statute or provision contains words of positive prohibition, such as “shall not,” “cannot,” or “ought not” or which is
couched in negative terms importing that the act shall not be done otherwise than designated, that statute or
provision is mandatory, thus rendering the provision mandatory – it opined that the subject provision simply means
that the Secretary of Justice has no other course of action but to deny or dismiss a petition before him when
arraignment of an accused had already taken place prior to the filing of the petition for review.

On the other hand, reading Section 12 of the same circular which reads:

The Secretary may reverse, affirm or modify the appealed resolution. He may, motu proprio or upon motion,
dismiss the petition for review on any of the following grounds:

xxxx

(e) That the accused had already been arraigned when the appeal was taken; x x x.

the Court of Appeals opined that the permissive word “may” in Section 12 would seem to imply that the Secretary of
Justice has discretion to entertain an appeal notwithstanding the fact that the accused has been arraigned. This
provision should not be treated separately, but should be read in relation to Section 7. The two provisions, taken
together, simply meant that when an accused was already arraigned when the aggrieved party files a petition for
review, the Secretary of Justice cannot, and should not take cognizance of the petition, or even give due course
thereto, but instead dismiss or deny it outright. The appellate court added that the word “may” in Section 12 should
be read as “shall” or “must” since such construction is absolutely necessary to give effect to the apparent intention of
the rule as gathered from the context.
 27

As to the contemporaneous construction of the Secretary of Justice, the Court of Appeals stated that the same should
not be given weight since it was erroneous.

Anent petitioner’s argument that Section 7 of the questioned circular applies only to original resolutions that brought
about the filing of the corresponding informations in court, but not to resolutions rendered pursuant to a motion for
reinvestigation, the appellate court simply brushed aside such contention as having no basis in the circular
questioned.

It also rejected petitioner’s protestation that her arraignment was forced upon her since she failed to present any
evidence to substantiate the same.

It is petitioner’s contention that despite her being arraigned, the supposed waiver of her right to preliminary
investigation has been nullified by virtue of the trial court’s order or reinvestigation. On this score, the Court of
Appeals rebuffed such argument stating that there was no “supposed waiver of preliminary investigation” to speak of
for the reason that petitioner had actually undergone preliminary investigation.

Petitioner remained unconvinced with the explanations of the Court of Appeals.

Hence, the instant petition.

Again, petitioner contends that the DOJ can give due course to an appeal or petition for review despite its having been
filed after the accused had already been arraigned. It asserts that the fact of arraignment of an accused before the
filing of an appeal or petition for review before the DOJ “is not at all relevant” as the DOJ can still take cognizance of
the appeal or Petition for Review before it. In support of this contention, petitioner set her sights on the ruling of this
Court in Crespo v. Mogul,[5] to wit:

The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the
case as to its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court.
Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already
in Court he cannot impose his opinion on the trial court. The Court is the best and sole judge on what to do with the
case before it. The determination of the case is within its exclusive jurisdiction and competence. A motion to dismiss
the case filed by the fiscal should be addressed to the Court who has the option to grant or deny the same. It does
not matter if this is done before or after the arraignment of the accused or that the motion was filed after a
reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the investigation.
( mphasis supplied.)

To bolster her position, petitioner cites Roberts v. Court of Appeals,[6] which stated:

There is nothing in Crespo vs. Mogul which bars the DOJ from taking cognizance of an appeal, by way of a petition for
review, by an accused in a criminal case from an unfavorable ruling of the investigating prosecutor. It merely advised
the DOJ to, “as far as practicable, refrain from entertaining a petition for review or appeal from the action of the fiscal,
when the complaint or information has already been filed in Court. x x x. ( mphasis supplied.)

Petitioner likewise invokes Marcelo v. Court of Appeals[7] where this Court declared:

Nothing in the said ruling forecloses the power or authority of the Secretary of Justice to review resolutions of his
subordinates in criminal cases. The Secretary of Justice is only enjoined to refrain as far as practicable from
entertaining a petition for review or appeal from the action of the prosecutor once a complaint or information is filed in
court. In any case, the grant of a motion to dismiss, which the prosecution may file after the Secretary of Justice
reverses an appealed resolution, is subject to the discretion of the court.

The Court is unconvinced.

A cursory reading of Crespo v. Mogul reveals that the ruling therein does not concern the issue of an appeal or
petition for review before the DOJ after arraignment. Verily, the pronouncement therein has to do with the filing of a
motion to dismiss and the court’s discretion to deny or grant the same. As correctly pointed out by respondent, the
emphasized portion in the Crespo ruling is a parcel of the entire paragraph which relates to the duty and jurisdiction
of the trial court to determine for itself whether or not to dismiss a case before it, and which states that such duty
comes into play regardless of whether such motion is filed before or after arraignment and upon whose instructions.
The allusion to the Secretary of Justice as reviewing the records of investigation and giving instructions for the filing of
a motion to dismiss in the cited ruling does not take into consideration of whether the appeal or petition before the
Secretary of Justice was filed after arraignment. Significantly, in the Crespo case, the accused had not yet been
arraigned when the appeal or petition for review was filed before the DOJ. Undoubtedly, petitioner’s reliance on the
said case is misplaced.

Also unavailing is petitioner’s invocation of the cases of Roberts v. Court of Appeals and Marcelo v. Court of Appeals.
As in Crespo v. Mogul, neither Roberts v. Court of Appeals nor Marcelo v. Court of Appeals took into account of
whether the appeal or petition before the Secretary of Justice was filed after arraignment. Just like in the Crespo
case, the accused in both Roberts v. Court of Appeals and Marcelo v. Court of Appeals had not yet been arraigned
when the appeal or petition for review was filed before the DOJ.

Moreover, petitioner asserts that the Court of Appeals’ interpretation of the provisions of DOJ Circular No. 70 violated
three basic rules in statutory construction. First, the rule that the provision that appears last in the order of position
in the rule or regulation must prevail. Second, the rule that the contemporaneous construction of a statute or
regulation by the officers who enforce it should be given weight. Third, petitioner lifted a portion from Agpalo’s
Statutory Construction[8] where the word “shall” had been construed as a permissive, and not a mandatory language.
 28

The all too-familiar rule in statutory construction, in this case, an administrative rule[9] of procedure, is that when a
statute or rule is clear and unambiguous, interpretation need not be resorted to.[10] Since Section 7 of the subject
circular clearly and categorically directs the DOJ to dismiss outright an appeal or a petition for review filed after
arraignment, no resort to interpretation is necessary.

Petitioner’s reliance to the statutory principle that “the last in order of position in the rule or regulation must prevail”
is not applicable. In addition to the fact that Section 7 of DOJ Circular No. 70 needs no construction, the cited
principle cannot apply because, as correctly observed by the Court of Appeals, there is no irreconcilable conflict
between Section 7 and Section 12 of DOJ Circular No. 70. Section 7 of the circular provides:

SECTION 7. Action on the petition. – The Secretary of Justice may dismiss the petition outright if he finds the same to
be patently without merit or manifestly intended for delay, or when the issues raised therein are too unsubstantial to
require consideration. If an information has been filed in court pursuant to the appealed resolution, the petition shall
not be given due course if the accused had already been arraigned. Any arraignment made after the filing of the
petition shall not bar the Secretary of Justice from exercising his power of review. ( talics supplied.)

On the other hand, Section 12 of the same circular states:

SECTION 12. Disposition of the Appeal. – The Secretary may reverse, affirm or modify the appealed resolution. He
may, motu proprio or upon motion, dismiss the petition for review on any of the following grounds:

(a) That the petition was filed beyond the period prescribed in Section 3 hereof;

(b) That the procedure or any of the requirements herein provided has not been complied with;

(c) That there is no showing of any reversible error;

(d) That the appealed resolution is interlocutory in nature, except when it suspends the proceedings based on the
alleged existence of a prejudicial question;

(e) That the accused had already been arraigned when the appeal was taken;

(f) That the offense has already prescribed; and

(g) That other legal or factual grounds exist to warrant a dismissal. ( mphases supplied.)

It is noteworthy that the principle cited by petitioner reveals that, to find application, the same presupposes that “one
part of the statute cannot be reconciled or harmonized with another part without nullifying one in favor of the other.”
In the instant case, however, Section 7 is neither contradictory nor irreconcilable with Section 12. As can be seen
above, Section 7 pertains to the action on the petition that the DOJ must take, while Section 12 enumerates the
options the DOJ has with regard to the disposition of a petition for review or of an appeal.

As aptly observed by respondent, Section 7 specifically applies to a situation on what the DOJ must do when
confronted with an appeal or a petition for review that is either clearly without merit, manifestly intended to delay, or
filed after an accused has already been arraigned, i.e., he may dismiss it outright if it is patently without merit or
manifestly intended to delay, or, if it was filed after the acccused has already been arraigned, the Secretary shall not
give it due course.

Section 12 applies generally to the disposition of an appeal. Under said section, the DOJ may take any of four actions
when disposing an appeal, namely:

1. reverse the appealed resolution;

2. modify the appealed resolution;

3. affirm the appealed resolution;

4. dismiss the appeal altogether, depending on the circumstances and incidents attendant thereto.

As to the dismissal of a petition for review or an appeal, the grounds are provided for in Section 12 and, consequently,
the DOJ must evaluate the pertinent circumstances and the facts of the case in order to determine which ground or
grounds shall apply.

Thus, when an accused has already been arraigned, the DOJ must not give the appeal or petition for review due
course and must dismiss the same. This is bolstered by the fact that arraignment of the accused prior to the filing of
the appeal or petition for review is set forth as one of the grounds for its dismissal. Therefore, in such instance, the
DOJ, noting that the arraignment of an accused prior to the filing of an appeal or petition for review is a ground for
dismissal under Section 12, must go back to Section 7 and act upon as mandated therein. In other words, the DOJ
must not give due course to, and must necessarily dismiss, the appeal.
Likewise, petitioner’s reliance on the principle of contemporary construction, i.e., the DOJ is not precluded from
entertaining appeals where the accused had already been arraigned, because it exercises discretionary power, and
because it promulgated itself the circular in question, is unpersuasive. As aptly ratiocinated by the Court of Appeals:

True indeed is the principle that a contemporaneous interpretation or construction by the officers charged with the
enforcement of the rules and regulations it promulgated is entitled to great weight by the court in the latter’s
 29

construction of such rules and regulations. That does not, however, make such a construction necessarily controlling
or binding. For equally settled is the rule that courts may disregard contemporaneous construction in instances where
the law or rule construed possesses no ambiguity, where the construction is clearly erroneous, where strong reason to
the contrary exists, and where the court has previously given the statute a different interpretation.

If through misapprehension of law or a rule an executive or administrative officer called upon to implement it has
erroneously applied or executed it, the error may be corrected when the true construction is ascertained. If a
contemporaneous construction is found to be erroneous, the same must be declared null and void. Such principle
should be as it is applied in the case at bar.[11]

Petitioner’s posture on a supposed exception to the mandatory import of the word “shall” is misplaced. It is
petitioner’s view that the language of Section 12 is permissive and therefore the mandate in Section 7 has been
transformed into a matter within the discretion of the DOJ. To support this stance, petitioner cites a portion of
Agpalo’s Statutory Construction which reads:

For instance, the word “shall” in Section 2 of Republic Act 304 which states that “banks or other financial institutions
owned or controlled by the Government shall, subject to availability of funds xxx, accept at a discount at not more
than two per centum for ten years such (backpay) certificate” implies not a mandatory, but a discretionary, meaning
because of the phrase “subject to availability of funds.” Similarly, the word “shall” in the provision to the effect that a
corporation violating the corporation law “shall, upon such violation being proved, be dissolved by quo warranto
proceedings” has been construed as “may.”[12]

After a judicious scrutiny of the cited passage, it becomes apparent that the same is not applicable to the provision in
question. In the cited passage, the word “shall” departed from its mandatory import connotation because it was
connected to certain provisos/conditions: “subject to the availability of funds” and “upon such violation being
proved.” No such proviso/condition, however, can be found in Section 7 of the subject circular. Hence, the word
“shall” retains its mandatory import.

At this juncture, the Court of Appeals’ disquisition in this matter is enlightening:

Indeed, if the intent of Department Circular No. 70 were to give the Secretary of Justice a discretionary power to
dismiss or to entertain a petition for review despite its being outrightly dismissible, such as when the accused has
already been arraigned, or where the crime the accused is being charged with has already prescribed, or there is no
reversible error that has been committed, or that there are legal or factual grounds warranting dismissal, the result
would not only be incongruous but also irrational and even unjust. For then, the action of the Secretary of Justice of
giving due course to the petition would serve no purpose and would only allow a great waste of time. Moreover, to
give the second sentence of Section 12 in relation to its paragraph (e) a directory application would not only subvert
the avowed objectives of the Circular, that is, for the expeditious and efficient administration of justice, but would also
render its other mandatory provisions - Sections 3, 5, 6 and 7, nugatory.[13]

In her steadfast effort to champion her case, petitioner contends that the issue as to whether the DOJ rightfully
entertained the instant case, despite the arraignment of the accused prior to its filing, has been rendered moot and
academic with the order of dismissal by the trial court dated 27 February 2003. Such contention deserves scant
consideration.

It must be stressed that the trial court dismissed the case precisely because of the Resolutions of the DOJ after it had,
in grave abuse of its discretion, took cognizance of the petition for review filed by petitioner. Having been rendered in
grave abuse of its discretion, the Resolutions of the DOJ are void. As the order of dismissal of the trial court was
made pursuant to the void Resolutions of the DOJ, said order was likewise void. The rule in this jurisdiction is that a
void judgment is a complete nullity and without legal effect, and that all proceedings or actions founded thereon are
themselves regarded as invalid and ineffective for any purpose.[14] That respondent did not file a motion for
reconsideration or appeal from the dismissal order of the trial court is of no moment. Since the dismissal was void,
there was nothing for respondent to oppose.

Petitioner further asserts that Section 7 of DOJ Circular No. 70 applies only to appeals from original resolution of the
City Prosecutor and does not apply in the instant case where an appeal is interposed by petitioner from the Resolution
of the City Prosecutor denying her motion for reinvestigation. This claim is baseless.

A reading of Section 7 discloses that there is no qualification given by the same provision to limit its application to
appeals from original resolutions and not to resolutions on reinvestigation. Hence, the rule stating that “when the law
does not distinguish, we must not distinguish”[15] finds application in this regard.

Petitioner asserts that her arraignment was null and void as the same was improvidently conducted. Again, this
contention is without merit. Records reveal that petitioner’s arraignment was without any restriction, condition or
reservation.[16] In fact she was assisted by her counsels Atty. Arthur Abudiente and Atty. Maglinao when she
pleaded to the charge.[17]

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

Lastly, while there is authority[19] permitting the Court to make its own determination of probable cause, such,
however, cannot be made applicable in the instant case. As earlier stated, the arraignment of petitioner constitutes a
 30

waiver of her right to preliminary investigation or reinvestigation. Such waiver is tantamount to a finding of probable
cause. For this reason, there is no need for the Court to determine the existence or non-existence of probable cause.

Besides, under Rule 45 of the Rules of Court, only questions of law may be raised in, and be subject of, a petition for
review on certiorari since this Court is not a trier of facts. This being the case, this Court cannot review the evidence
adduced by the parties before the prosecutor on the issue of the absence or presence of probable cause.[20]

WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals dated 21 July 2004 and its Resolution
dated 10 June 2005 in CA-G.R. SP No. 76396 are AFFIRMED. Costs against petitioner.

SO ORDERED.
 31

[2005V1252] OFFICE OF THE OMBUDSMAN, Petitioner, versus MARY ANN T. CASTRO, Respondent.2005
Oct 201st DivisionG.R. No. 164678D E C I S I O N

YNARES-SANTIAGO, J.:

This petition for review on certiorari under Rule 45 of the Rules of Court assails the July 23, 2004 Decision[1]
of the Court of Appeals in CA-G.R. SP No. 77646 which annulled and set aside the October 17, 2002 Decision[2] of the
Ombudsman in OMB-V-A-02-0124-C. The Ombudsman found respondent Asst. City Prosecutor Mary Ann T. Castro
guilty of Conduct Prejudicial to the Best Interest of the Service.

The antecedent facts show that on June 19, 2001, a complaint for violation of Social Security Act of 1997 was
filed by Charito C. Ocampo against spouses Salvador and Ethel Gonzales of Audionet Trading, before the Office of the
City Prosecutor. After preliminary investigation, Asst. City Prosecutor Victor C. Laborte recommended in a resolution
dated August 7, 2001, the filing of an information against the spouses Gonzales for non-remittance of premiums to
the Social Security System (SSS). On September 28, 2001, an information was filed in court.

On October 10, 2001, spouses Gonzales filed a Motion for Reconsideration of the August 7, 2001 resolution before the
Office of the City Prosecutor without leave of court. On November 7, 2001, respondent Asst. City Prosecutor Mary
Ann T. Castro filed a Comment on the motion for reconsideration and recommended the dismissal of the complaint.

Ocampo alleged that the filing of a comment by Castro after the information has been filed in court is irregular. She
claimed that once an information has been filed in court, the investigating prosecutor or the Secretary of Justice
should no longer entertain a motion for reinvestigation or a motion for reconsideration. Hence, she filed an
administrative complaint[3] against Castro charging her with conduct prejudicial to the best interest of the service.

Respondent Castro claimed that on October 30, 2001, Asst. City Prosecutor Oscar Capacio, Chief of the Review and
Reconsideration Section, Office of the City Prosecutor, ordered her to reinvestigate the case filed against the spouses
Gonzales. After evaluation of the records and the documentary evidence, she was convinced that there was no basis
for the complaint hence she recommended its dismissal. She submitted her comment and recommendation to
Capacio for review, then to City Prosecutor Jose Pedrosa, for approval.

She maintained that pursuant to Section 56 of the Manual for Prosecutors, a motion for reconsideration is part of due
process in preliminary investigation. She alleged that depriving the accused of this right would be a denial of the right
to a full preliminary investigation preparatory to the filing of the information. The court may therefore not proceed
with the arraignment and trial pending resolution of the motion for reconsideration. She claimed that leave of court is
not necessary for the filing of the comment as it was still part of the preliminary investigation over which the Office of
the City Prosecutor exercises jurisdiction.

On April 4, 2003, the Ombudsman rendered a Decision finding Castro guilty of conduct prejudicial to the best
interest of the service. The dispositive portion of which reads:

Wherefore, premises considered, it is hereby deemed that respondent Asst. City Prosecutor Mary Ann Castro is guilty
of Conduct Prejudicial To The Best Interest of The Service, and is hereby meted the penalty of SUSPENSION FOR SIX
MONTHS WITHOUT PAY.

The administrative complaint against prosecutor Jesus Feliciano is hereby Dismissed.

SO DECIDED.[4]

The Ombudsman found that when the motion for reconsideration was filed, the Office of the City Prosecutor no
longer has jurisdiction over the complaint considering that an information has been filed in court. Hence, the filing of
a comment thereon without leave of court was not proper, moreso because it effectively resolved the merits of the
motion for reconsideration without prior court approval.

The Ombudsman noted that although the accused has the right to file a motion for reconsideration, Castro should
have verified the status of the case before recommending its dismissal, which was done beyond the scope of her
authority in view of the prior filing of the information in court.

Upon denial of her motion for reconsideration,[5] Castro appealed to the Court of Appeals which annulled the decision
of the Ombudsman, thus:

WHEREFORE, finding merit in the Petition, the same is hereby GRANTED and the Ombudsman (Visayas)
Decision dated October 17, 2002 and Order dated June 5, 200[3] are hereby ANNULLED AND SET ASIDE. Without
costs.

SO ORDERED.[6]

The Court of Appeals held that the Regional or City Prosecutor may exercise the power and authority of their
superior, the Secretary of Justice, to review resolutions of their subordinate in criminal cases despite an information
filed in court. The act of filing does not foreclose the authority of the City Prosecutor, in behalf of the Secretary of
Justice, to review the previously approved resolution of Laborte.[7] Moreover, since Castro’s comment and
recommendation was reviewed by Capacio and approved by Pedrosa, the same is presumed to have been performed
in the regular performance of her duties.[8]
 32

The appellate court likewise observed that the filing of the comment without prior leave of court has been
clarified by the trial judge. The latter disregarded Ocampo’s claim that she was not notified of the filing of the
comment or given the chance to oppose the same considering that her counsel was properly served with a copy of the
motion to withdraw information based on the motion for reconsideration and the comment earlier filed. Ocampo and
her counsel were aware of the pending motion to withdraw the information based on the comment submitted by
Castro as the same was heard on October 7, 2002. The trial judge was convinced that there was no basis for the
complaint, hence, it was ordered dismissed.[9]

The Court of Appeals noted that Castro’s actuations did not amount to gross misconduct. The Office of the
Solicitor General (OSG) admitted that there was no particular law that Castro violated.[10]

Hence, the Ombudsman filed this petition on the sole issue of whether or not Castro usurped the jurisdiction of
the trial court in filing the Comment and recommending the dismissal of the criminal case filed in court.

The petition lacks merit.

Petitioner avers that Castro disregarded the basic rule that once the case is filed in court, leave of court must be
secured prior to taking any action on a motion for reconsideration filed by the accused with the Office of the City
Prosecutor. Thus, it is the intentional disregard of this established jurisprudence on jurisdiction and the doctrinal laws
on delineation of authority that made her administratively liable for conduct prejudicial to the best interest of the
service.[11]

Respondent Castro claims that she has not violated any law, rule or regulation that would warrant any
administrative sanction. She maintains that she was following the order of her superior to reinvestigate the case.
Therefore, there was no reason for her to be suspended by the Ombudsman.[12]

She asserts that she is being discriminated and singled out by the Ombudsman who should also have
investigated her superiors who ordered the reinvestigation and approved her recommendation, and the Secretary of
Justice who gave his imprimatur to the dismissal of the case. Notably, even the trial judge approved its dismissal.[13]

Upon review, we find that Castro’s conduct in resolving the motion for reconsideration is not prejudicial to the
best interest of the service.

We note that it was Laborte who initially handled the case; found probable cause that spouses Gonzales
violated the SSS law; and recommended that an information be filed against them. Capacio, as Chief of the Review
and Reconsideration Section, assigned the case to Castro after a motion for reconsideration was filed with the Office of
the City Prosecutor. By virtue of her functions, Castro has the discretion to uphold, modify or reverse the findings and
conclusion of Laborte. Consequently, it was not unusual that, upon review of the evidence presented, her
observations would be diverse from that of Laborte’s.

Besides, a motion for reconsideration of the resolution of the preliminary investigation conducted by the city
prosecutor is allowed. Section 3 of the Department of Justice Circular No. 70 reads:

SEC. 3. Period of appeal. – The appeal shall be taken within fifteen (15) days from receipt of the resolution, or of the
denial of the motion for reconsideration/reinvestigation if one has been filed within fifteen (15) days from receipt of
the assailed decision. Only one motion for reconsideration shall be allowed.

Likewise, the filing of a motion for reconsideration is consistent with the principle of due process and allowed under
Section 56 of the Manual for Prosecutors.[14] In the subject case, the information was filed in court on September
28, 2001. However, the spouses Gonzales received a copy of the unfavorable recommendation of Laborte only on
October 1, 2001.[15] Thus, they filed on October 10, 2001 a motion for reconsideration which was the appropriate
and available remedy for them.

In Sales v. Sandiganbayan,[16] we held that the denial of the opportunity to file a motion for reconsideration is
tantamount to a denial of due process, thus:

The filing of a motion for reconsideration is an integral part of the preliminary investigation proper. There is no
dispute that the Information was filed without first affording petitioner-accused his right to file a motion for
reconsideration. The denial thereof is tantamount to a denial of the right itself to a preliminary investigation. This
fact alone already renders preliminary investigation conducted in this case incomplete. The inevitable conclusion is
that the petitioner was not only effectively denied the opportunity to file a motion for reconsideration of the
Ombudsman’s final resolution but also deprived of his right to a full preliminary investigation preparatory to the filing
of the information against him.[17]

In the instant case, the information was filed before the spouses Gonzales could file a motion to reconsider the
adverse recommendation of Laborte. The filing of the information deprived them of the right to a full-blown
preliminary investigation.

We find that Castro did not usurp the jurisdiction of the trial court as the comment was only recommendatory in
nature. The judge was not deprived of the authority to make a personal evaluation of the evidence before him and to
act accordingly. In fact, spouses Gonzales moved for the dismissal of the case not before the Office of the City
Prosecutor but before the trial court where the information was filed. This Court in Roberts, Jr. v. Court of Appeals,
[18] stated:
 33

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.

We are aware of our ruling in Crespo v. Mogul[19] that discourages the Secretary of Justice from entertaining any
appeal from the action of the fiscal once the case is filed in court to avoid a situation whereby the opinion of the
Secretary of Justice who reviewed the action of the fiscal may be disregarded by the trial court. However, the
comment filed by Castro was only recommendatory. As such, it could either be adopted or disregarded by the trial
judge who has full discretion and jurisdiction over the case. Castro’s participation in the case was in compliance with
the orders from her superiors. If at all, she was only performing her duty as a reviewing officer.

WHEREFORE, the petition is DENIED. The July 23, 2004 Decision of the Court of Appeals in CA-G.R. SP No.
77646 is AFFIRMED.

SO ORDERED.
 34

[2004V1195] MARIALEN C. CORPUZ and ANTONIO H. ROMAN, SR., Petitioners, versus THE
SANDIGANBAYAN (Special Fourth Division) and THE PEOPLE OF THE PHILIPPINES, Respondents.2004
Nov 112nd DivisionG.R. No. 162214D E C I S I O N

CALLEJO, SR., J.:

This is a petition for certiorari for the nullification of the February 4, 2002 Resolution of the Sandiganbayan
(Division of Five Members)[1] setting aside the verbal Order of Justice Narciso S. Nario, the Chairman of its Fourth
Division, ordering the dismissal of Criminal Cases Nos. 25911-25915; 25917-25939; 25983-26016; and its December
12, 2003 Resolution denying the motions for reconsideration of the petitioners and the other accused in said cases,[2]
as well as their petition for mandamus to compel the Sandiganbayan to dismiss the said cases.

The Antecedents

After the termination of the requisite preliminary investigation in OMB Cases Nos. 0-99-2188 to 2205, the Office of the
Ombudsman issued a Resolution on July 27, 2000 finding probable cause against petitioners Antonio H. Roman, Sr.
and Marialen C. Corpuz, the President and Vice-President of FILSYN Corporation, respectively, and several others. On
April 10, 2000, the petitioners, the Undersecretary of Finance Antonio P. Belicena, and the officers of the Petron
Corporation, were charged with violation of Section 3(e) of Republic Act No. 3019, involving the so-called “tax credit
scam” in an Information docketed as Criminal Case No. 25922 which reads:

The undersigned Ombudsman Prosecutors, Office of the Ombudsman, hereby accuse ANTONIO P. BELICENA,
ULDARICO P. ANDUTAN, JR., MONICO V. JACOB, CELSO L. LEGARDA, ABDULAZIZ F. AL-KHAYYAL, APOLINARIO G.
REYES, REYNALDO V. CAMPOS, RAFAEL S. DIAZ, JR., ANTONIO H. ROMAN, SR., AND MARIALEN C. CORPUZ, of
violation of Section 3(e) of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt
Practices Act, committed as follows:

That, during the period from 13 May 1994 to 09 June 1997, or for sometime prior or subsequent thereto, in
the City of Manila, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the aforementioned
first two (2) accused Antonio P. Belicena and Uldarico P. Andutan, Jr., both public officers, being then the Assistant
Secretary/Administrator, and Deputy Executive Director, respectively, of the One Stop Shop Inter-Agency Tax Credit
& Duty Drawback Center, Department of Finance, Manila, while in the performance of their official functions and acting
with evident bad faith and manifest partiality, conspiring and confederating with each other, together with accused
Monico V. Jacob, Celso L. Legarda, Abdulaziz F. Al-Khayyal, Apolinario G. Reyes, Reynaldo V. Campos and Rafael S.
Diaz, Jr., all officials of Petron Corporation, and Antonio H. Roman, Sr. and Marialen C. Corpuz, both officers of Filsyn
Corporation, did then and there, willfully, unlawfully and (sic) recommend and criminally approve the transfer of the
following Tax Credit Certificates purportedly issued to Filsyn Corp., to wit:

TCC No. Amount

0159 P 713,213.00
0164 1,399,912.00
0205 1,313,576.00
1106 1,128,118.00
1010 2,268,599.00
1029 956,662.00
1030 2,243,517.00
1165 1,282,215.00
1180 1,399,950.00
1189 1,884,327.00
1204 702,105.00
1208 563,121.00
1245 562,551.00
1496 1,826,342.00
1497 2,453,521.00
1498 731,196.00
1499 418,534.00
1564 1,431,912.00
1592 2,006,920.00
1633 784,148.00
1634 1,213,080.00
1667 1,649,799.00
1732 119,795.00
1756 2,663,711.00
1798 2,436,946.00
1805 602,212.00
2160 2,375,949.00
19762 948,215.00
19763 2,011,753.00
2205 3,701,703.00
2219 4,792,190.00
2253 441,461.00
2273 1,081,349.00
2274 1,237,078.00
 35

2308 1,805,291.00
2309 1,044,837.00
2331 1,474,537.00
2420 1,807,435.00
2421 1,351,385.00
2422 687,520.00
2423 1,508,715.00
2424 501,893.00
2430 1,609,726.00
2436 901,146.00
2463 1,016,673.00
2465 337,001.00
2482 1,960,916.00
2583 593,876.00
2587 1,588,883.00
2602 1,770,638.00
2727 1,487,893.00
2728 1,402,612.00
2755 1,499,909.00
2762 1,163,789.00
2763 1,854,245.00
3113 1,079,770.00
3131 99,578.00
3164 459,986.00
3202 3,699,103.00
3204 1,225,135.00
3288 408,000.00
3289 7,228,572.00
3291 2,844,774.00
3530 374,272.00
3549 1,658,172.00
3550 613,410.00
3416 653,750.00
3653 370,500.00
3670 805,480.00
3708 2,899,693.00
3909 1,867,139.00
3910 1,509,529.00
4009 2,308,264.00
4035 2,790,331.00
4042 6,326,431.00
4147 5,317,781.00
4299 3,336,559.00
4557 4,987,214.00
______________
Total P131,547,043.00
===========

from Filsyn Corporation, represented by accused Antonio H. Roman, Sr. and Marialen C. Corpuz, unto and in favor of
Petron Corp., represented by accused Monico V. Jacob, Cesar L. Legarda, Abdulaziz F. Al-Khayyal, Apolinario G.
Reyes, Reynaldo V. Campos or Rafael S. Diaz, Jr., without legal basis and proper/required documentation, thereby
causing undue injury and damage to the government in the aforestated amount and at the same time giving
unwarranted benefit, preference or advantage to the said private firms.

CONTRARY TO LAW.[3]

Aside from the aforestated case, sixty-one (61) similar Informations were filed by the Office of the
Ombudsman against some fifty (50) public officials and private individuals relating to the issuance of tax credit
certificates.

The accused Monico V. Jacob and Celso Legarda were arraigned and pleaded not guilty.[4]

As narrated by the petitioners, the following events transpired in the Sandiganbayan/Office of the Ombudsman:

4.2 Criminal Case No. 25922, along with other cases involving allegedly anomalous TCC transfers, namely,
Criminal Cases Nos. 25911-25915, 25917-25921, 25923-25939, and 25983-26016 were raffled to the Fourth Division
of the Sandiganbayan.

4.3 On 17 April 2000, petitioners filed with the Office of the Ombudsman a “Very Urgent Motion for Leave to File
Motion for Reconsideration or Reinvestigation” dated 16 April 2000, with an attached “Motion for Reconsideration or
Reinvestigation (Re: Resolution dated 27 March 2000)” dated 17 April 2000, through which they sought reversal of
the Office of the Ombudsman’s 27 March 2000 “Resolution” which directed the filing of the “Information” in Criminal
Case No. 25922. A copy of petitioners’ “Very Urgent Motion for Leave to File Motion for Reconsideration or
Reinvestigation” dated 16 April 2000, with their “Motion for Reconsideration or Reinvestigation (Re: Resolution dated
27
 36

4.4 March 2000)” dated 17 April 2000 attached to it as its Annex “1”, is attached to this “Petition”, and made an
integral part of it, as its Annex “D.”

4.5 On 28 April 2000, the Fourth Division of the Sandiganbayan issued an “Order” granting petitioners, among
other movants, leave to file their respective motions for reinvestigation or reconsideration, and gave the Prosecution
sixty (60) days to resolve the said motions.

4.6 The sixty (60) day deadline given the Prosecution to complete its reinvestigations and report its findings in
relation to such reinvestigations passed without the Prosecution resolving petitioners’ Motion for Reconsideration or
Reinvestigation (Re: Resolution dated 27 March 2000)” dated 17 April 2000.

4.7 The Prosecution’s failure to resolve the motions for reconsideration filed by petitioners and the other accused
in Criminal Cases Nos. 25911-25939 and 25983-26016 dragged on into the middle of 2001.

4.8 At the hearing of Criminal Cases Nos. 25911-25939 and 25983-26016 held on 1 June 2001, the Prosecution
was specifically warned by the court that should it fail to resolve the accused’s pending motions for reconsideration, it
was possible that Criminal Cases Nos. 25911-25939 and 25983-26016 would be dismissed.

4.9 The court’s warning notwithstanding, the Prosecution, in a “Manifestation” dated 21 June 2001, again sought
cancellation of the arraignment and pre-trial conference in Criminal Cases Nos. 25911-25939 and 25983-26016 set on
2 July 2001, but the court denied that request in a “Resolution” dated 26 June 2001, in which the court again
reminded the Prosecution that Criminal Cases Nos. 25911-25939 and 25983-26016 had been pending for more than a
year and that further delay caused by it would not be countenanced.

4.10 Despite the court’s warning, the Prosecution still failed to resolve the pending motions for reinvestigation by the
time of the scheduled arraignment and pre-trial conference set on 2 July 2001, prompting the court to issue an order
which gave the Prosecution an additional ten (10) days to resolve the motions, and reset the scheduled arraignment
and pre-trial conference to 17 July 2001.

4.11 Despite the lapse of the ten (10) day additional period given it, the Prosecution again failed to complete, and
submit the results of, its reinvestigation, and instead filed a “Manifestation” requesting the cancellation and resetting
of the arraignment and pre-trial conference set on 17 July 2001.

4.12 In an “Order” dated 17 July 2001, the court directed the Prosecution to complete its reinvestigation, and submit
the results of that reinvestigation to the court, by 16 August 2001, and granted the Prosecution’s request for a
resetting by canceling the scheduled arraignment and pre-trial conference and setting it on 20 August 2001.

4.13 On 16 August 2001, the Prosecution again failed to report completion of the reinvestigation process, but only
filed an “Omnibus Motion” in which it informed the court only that the prosecutor concerned had already made a
recommendation to the Office of the Special Prosecutor. There being no resolution of the pending motions for
reinvestigation yet, the Prosecution sought yet another cancellation of the scheduled arraignment and pre-trial
conference on 20 August 2001.

4.14 The Prosecution repeated its request for deferment of the scheduled arraignment and pre-trial conference at
the scheduled hearing on 20 August 2001, but this time, the request was denied by Justice Nario, who issued an oral
order dismissing the case on account of the long delay associated with the Prosecution’s resolution of the motions for
reinvestigation filed by accused.

4.15 However, since Justice Nario and the other (2) regular members of the Fourth Division of the Sandiganbayan
could not reach unanimity on upholding Justice Nario’s dismissal of Criminal Cases Nos. 25911-25939 and 25983-
26016, a Special Fourth Division composed of five (5) members of the Honorable Sandiganbayan was constituted
pursuant to Section 1(b) of Rule XVIII of the 1984 Revised Rules of the Sandiganbayan.

4.16 On 4 February 2002, a bare majority of respondent court,[5] overruling dissents by Justice Nario and Justice
Raoul Victorino, issued its first questioned “Resolution” dated 4 February 2002, the dispositive portion of which set
aside the order of dismissal issued by Justice Nario in open court at the hearing of 20 August 2001 in the following
manner:

“WHEREFORE, the dismissal of these cases orally ordered in open court by the Chairman of the Fourth Division during
its court session held on August 20, 2001, and reiterated in his subsequent ponencia, is hereby set aside. xxx.”

4.17 Petitioners filed their “Motion for Reconsideration” dated 11 February 2002 from the questioned “Resolution”
dated 4 February 2002 on 18 February 2002. A copy of petitioners’ “Motion for Reconsideration” dated 11 February
2002 is attached to this “Petition”, and made an integral part of it, as its Annex “E.”[6]

Several of the other accused also filed similar motions for reconsideration and/or motions to quash/dismiss which the
prosecution opposed.[7]

On December 12, 2003, the Sandiganbayan, by unanimous vote, issued a Resolution denying all the motions
respectively filed by the accused, including the petitioners:

WHEREFORE, for lack of merit, the court issues an Omnibus Resolution denying all the above described motions for
reconsideration.

This disposition renders moot and academic the resolution of the court dated May 6, 2002 penned by Justice Narciso
S. Nario, which deferred action on the Manifestation of the prosecution considering that there is no need for the court
 37

to act on the same, as the Manifestation was filed merely for the court’s information on the action taken by the Office
of the Special Prosecutor on the various motions for reconsideration filed by the accused in these cases.

SO ORDERED.[8]

Only the petitioners filed their petition for certiorari and mandamus assailing the February 4, 2002 and the December
12, 2003 Resolutions of the Sandiganbayan, asserting that the graft court committed a grave abuse of its discretion
amounting to excess or lack of jurisdiction in issuing the same.[9]

In its Comment on the petition, the Office of the Ombudsman, through the Office of the Special Prosecutor,
avers that the delay in the submission to the Sandiganbayan of its report on its reinvestigation was caused by the
pendency of the other cases of equal, if not of more importance, not to mention the filing of twenty-two (22) other
motions for reconsideration and/or reinvestigation by the other accused in the said cases.[10] It asserts that the
more than one-year delay is not capricious, much less, intolerably capricious. It also contends that the oral dismissal
of the cases by Justice Narciso S. Nario was too drastic, as it deprived the respondent of its right to prosecute the
cases and prove the guilt of the petitioners beyond reasonable doubt for the crimes charged.

The Ruling of the Court

The petition is denied due course.

For a petition for certiorari to be granted, it must set out and demonstrate, plainly and distinctly, all the facts
essential to establish a right to a writ.[11] The petitioners must allege in their petition and establish facts to show
that any other existing remedy is not speedy or adequate[12] and that (a) the writ is directed against a tribunal,
board or officer exercising judicial or quasi-judicial functions; (b) such tribunal, board or officer has acted without or in
excess of jurisdiction, or with grave abuse of discretion amounting to excess or lack of jurisdiction; and, (c) there is
no appeal or any plain, speedy and adequate remedy in the ordinary course of law.[13]

The public respondent acts without jurisdiction if it does not have the legal power to determine the case; there
is excess of jurisdiction where the respondent, being clothed with the power to determine the case, oversteps its
authority as determined by law. There is grave abuse of discretion where the public respondent acts in a capricious,
whimsical, arbitrary or despotic manner in the exercise of its judgment as to be said to be equivalent to lack of
jurisdiction.[14] Mere abuse of discretion is not enough.

In a petition for certiorari, the jurisdiction of the court is narrow in scope. It is limited to resolving only errors
of jurisdiction. It is not to stray
at will and resolve questions or issues beyond its competence such as errors of judgment. Errors of judgment of the
trial court are to be resolved by the appellate court in the appeal or via a petition for review on certiorari in this Court
under Rule 45 of the Rules of Court. Certiorari will issue only to correct errors of jurisdiction. It is not a remedy to
correct errors of judgment.[15] An error of judgment is one in which the court may commit in the exercise of its
jurisdiction, and which error is reversible only by an appeal. As long as the court acts within its jurisdiction, any
alleged errors committed in the exercise of its discretion will amount to nothing more than mere errors of judgment,
correctible by an appeal or a petition for review under Rule 45 of the Rules of Court.[16] An error of jurisdiction is
one where the act complained of was issued by the court without or in excess of jurisdiction and which error is
correctible only by the extraordinary writ of certiorari.[17]

Generally, the performance of an official act or duty which necessarily involves the exercise of discretion or
judgment cannot be compelled by mandamus. However, a writ of mandamus may issue where there is grave abuse
of discretion, manifest injustice, or palpable excess of authority.[18]

In this case, we find and so rule that the Sandiganbayan did not commit grave abuse of discretion amounting to
excess or lack of jurisdiction in issuing the assailed resolutions. We also held that the petitioners are not entitled to a
writ of mandamus.

The Verbal Order of Dismissal

By Justice Nario Is A Nullity

In the unanimous Resolution of December 12, 2003, the Sandiganbayan ruled as follows:

In the cases at bar, the dismissal made in open court by the Chairman, which was not reduced in writing, is
not a valid dismissal or termination of the cases. This is because the Chairman cannot unilaterally dismiss the same
without the approval or consent of the other members of the Division. The Sandiganbayan is a collegiate court and
under its internal rules prevailing at the time (Rule XVIII, Section 1(b) of the 1984 Revised Rules of the
Sandiganbayan, which is now Section 1(b), Rule VIII of the 2002 Revised Internal Rules of the Sandiganbayan), an
order, resolution or judgment, in order to be valid – that is to say, in order to be considered as an official action of the
Court itself – must bear the unanimous approval of the members of the division, or in case of lack thereof, by the
majority vote of the members of a special division of five.[19]

We agree with the foregoing ratiocination. Section 1, Rule 120 of the Revised Rules of Criminal Procedure, mandates
that a judgment must be written in the official language, personally and directly prepared by the judge and signed by
him and shall contain clearly and distinctly a statement of the facts and the law upon which it is based. The rule
applies to a final order dismissing a criminal case grounded on the violation of the rights of the accused to a speedy
trial.[20] A verbal judgment or order of dismissal is a violation of the provision; hence, such order is, in
contemplation of law, not in esse, therefore, ineffective. Justice Nario failed to issue a written resolution dismissing
the criminal cases for failure of the prosecution to submit its report on the reinvestigation of the cases within the
sixty-day period fixed by the graft court. Moreover, the verbal order was rejected by majority vote of the members of
 38

the Sandiganbayan Special Division. In fine, there has been no valid and effective order of dismissal of the cases.
The Sandiganbayan cannot then be faulted for issuing the assailed resolutions.

Neither are the petitioners entitled to a writ of mandamus to compel the Sandiganbayan to reinstate the cases,
considering that the verbal order of Justice Nario as aforestated does not exist at all in contemplation of law.

In Criminal Cases, the Accused Is Entitled To a Speedy Disposition of the Cases against Him

No less than Section 16, Article III of the 1987 Constitution provides that all persons shall have the right to a speedy
disposition of their cases before all judicial, quasi-judicial or administrative bodies. The “judicial bodies” envisaged in
the said provision include the Office of the Ombudsman and the Office of the Special Prosecutor.

Rule 115, Section 1(h) of the Revised Rules of Criminal Procedure further provides that the accused has the right to
have a speedy, impartial and public trial. The said rule requires that the arraignment of the accused should be held
within thirty (30) days from the date the court acquired jurisdiction over the person of the accused, unless a shorter
period is provided by special law or unless excusable delays as provided in Rule 119, Section 10 of the Rules are
attendant.[21] Such rights to due process, speedy trial and disposition of the case were first articulated as early as
1297 in England: “To none will we see, to none will we deny or delay right or justice.”[22]

It cannot be overstressed that the accused in all criminal prosecutions are entitled to due process as much as the
prosecution. In Tatad v. Sandiganbayan,[23] we held that substantial adherence to the requirements of the law
governing the conduct of preliminary investigation, including substantial compliance with the time limitation
prescribed by the law for the resolution of the case by the prosecutor, is part of the procedural due process
constitutionally guaranteed by the fundamental law. This ruling clearly applies to reinvestigations authorized by the
trial courts, including the Sandiganbayan.

The right of the accused to a speedy trial and to a speedy disposition of the case against him was designed to prevent
the oppression of the citizen by holding criminal prosecution suspended over him for an indefinite time, and to prevent
delays in the administration of justice by mandating the courts to proceed with reasonable dispatch in the trial of
criminal cases.[24] Such right to a speedy trial and a speedy disposition of a case is violated only when the
proceeding is attended by vexatious, capricious and oppressive delays. The inquiry as to whether or not an accused
has been denied such right is not susceptible by precise qualification. The concept of a speedy disposition is a relative
term and must necessarily be a flexible concept.[25]

While justice is administered with dispatch, the essential ingredient is orderly, expeditious and not mere speed.[26]
It cannot be definitely said how long is too long in a system where justice is supposed to be swift, but deliberate. It is
consistent with delays and depends upon circumstances. It secures rights to the accused, but it does not preclude the
rights of public justice.[27] Also, it must be borne in mind that the rights given to the accused by the Constitution
and the Rules of Court are shields, not weapons; hence, courts are to give meaning to that intent.[28]

A balancing test of applying societal interests and the rights of the accused necessarily compels the court to approach
speedy trial cases on an ad hoc basis.[29]

In determining whether the accused has been deprived of his right to a speedy disposition of the case and to a speedy
trial, four factors must be considered: (a) length of delay; (b) the reason for the delay; (c) the defendant’s assertion
of his right; and (d) prejudice to the defendant. Prejudice should be assessed in the light of the interest of the
defendant that the speedy trial was designed to protect, namely: to prevent oppressive pre-trial incarceration; to
minimize anxiety and concerns of the accused to trial; and to limit the possibility that his defense will be impaired. Of
these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the
fairness of the entire system. There is also prejudice if the defense witnesses are unable to recall accurately the
events of the distant past.[30] Even if the accused is not imprisoned prior to trial, he is still disadvantaged by
restraints on his liberty and by living under a cloud of anxiety, suspicion and often, hostility.[31] His financial
resources may be drained, his association is curtailed, and he is subjected to public obloquy.[32]

Delay is a two-edge sword. It is the government that bears the burden of proving its case beyond reasonable doubt.
The passage of time may make it difficult or impossible for the government to carry its burden.[33] The Constitution
and the Rules do not require impossibilities or extraordinary efforts, diligence or exertion from courts or the
prosecutor, nor contemplate that such right shall deprive the State of a reasonable opportunity of fairly prosecuting
criminals.[34] As held in Williams v. United States,[35] for the government to sustain its right to try the accused
despite a delay, it must show two things: (a) that the accused suffered no serious prejudice beyond that which ensued
from the ordinary and inevitable delay; and (b) that there was no more delay than is reasonably attributable to the
ordinary processes of justice.

Closely related to the length of delay is the reason or justification of the State for such delay. Different weights
should be assigned to different reasons or justifications invoked by the State. For instance, a deliberate attempt to
delay the trial in order to hamper or prejudice the defense should be weighted heavily against the State. Also, it is
improper for the prosecutor to intentionally delay to gain some tactical advantage over the defendant or to harass or
prejudice him.[36] On the other hand, the heavy case load of the prosecution or a missing witness should be
weighted less heavily against the State. Corollarily, Section 4, Rule 119 of the Revised Rules of Criminal Procedure
enumerates the factors for granting a continuance.[37]

The Delay in the Arraignment And The Trial of the Petitioners was Caused By Them, the Other Accused
and the Ombudsman/ Special Prosecutor

In its February 4, 2002 Resolution, the Sandiganbayan overruled the verbal Order of Justice Nario for the
following reasons:
 39

In the present case, (1) there is already a delay of the trial for more than one year now; (2) but it is not shown that
the delay is vexatious, capricious and oppressive; (3) it may be that, as stated in the herein dissented Resolution, “at
the hearings conducted in these cases, the defense orally, openly and consistently asked for the dismissal of these
cases;” however, these oral manifestations were more of “knee-jerk reactions” of the defense counsel in those
hearings everytime the prosecution requested for postponement than anything else as said defense counsel did not
seriously pursue the dismissal of these cases, such as by reducing their “request” in a formal written motion to
dismiss and/or insisting that the court formally rule on their request for dismissal and go on certiorari if denied; and
(4) considering the nature and importance of the cases, if there is any prejudice that may have resulted as a
consequence of the series of postponements, it would be more against the government than against any of the
accused; however, be that as it may, none of the herein accused has come out to claim having been thus prejudiced.
[38]

The records show that the failure of the petitioners and the other accused to be arraigned and the case against
them tried was caused by (1) the filing of their motion for reconsideration and/or reinvestigation which was granted
by the Sandiganbayan; and (2) the failure of the Ombudsman/Special Prosecutor to terminate his reinvestigation and
submit his report thereon within the sixty-day period fixed by the graft court.

The Ombudsman/Special Prosecutor filed the Informations on April 10, 2000 even before the lapse of the
five-day period within which to file a motion for reconsideration or the reinvestigation thereof as provided in
Administrative Order No. 15 of the Ombudsman.[39] This impelled the petitioners to file on April 17, 2000 a very
urgent motion for leave to file a motion for reconsideration of the said resolution finding probable cause against them
or the reinvestigation thereof, on the ground that there was no factual and legal basis for their indictment for violation
of Section 3(e) of Rep. Act No. 3019.

On April 28, 2000, the Sandiganbayan issued a Resolution granting the motion of the petitioners and gave the
prosecutor a period of sixty (60) days from notice within which to conduct a reinvestigation of the case. However,
aside from the petitioners, the other accused filed 23 separate motions for reconsideration/reinvestigation in Criminal
Cases Nos. 25911-25939 and 25983-26016.

The arraignment of the accused including the petitioners and the pre-trial of the cases had to be suspended by
the Sandiganbayan until after the Ombudsman/Special Prosecutor had completed the consolidated reinvestigation of
the cases and submitted his consolidated report to the graft court. However, the Prosecutor failed to terminate his
reinvestigation of the cases within the period given him, which impelled the Sandiganbayan, over the verbal
objections of the petitioners, to repeatedly reset the arraignment of the petitioners and that of the other accused.
Thereafter, Justice Nario verbally dismissed the cases on August 20, 2001, despite the “Omnibus Motion” of the
Prosecution on August 16, 2001 informing the Sandiganbayan that he had already submitted his recommendation on
his reinvestigation to the Office of the Special Prosecutor for the latter’s consideration and approval.

The Petitioners were Burdened to Prove the Factual and Legal Basis For Motion Nolle Prosequi; The
Prosecutor was Burdened To Prove a Valid Justification For Non-Compliance with The Order of the
Sandiganbayan And the Motion for Continuance

Prefatorily, we find it unfair for the majority members of the Sandiganbayan to brand the verbal motions nolle
prosequi of the petitioners as a mere “knee-jerk reaction/action” to the Prosecutor’s repeated motions for
continuance. Although the petitioners failed to file written motions for the dismissal of the cases, their verbal motions
should not be brushed aside as trivial. Ideally, the petitioners should file formal motions for the dismissal of the
cases. However, they are not precluded from orally moving for the dismissal of the said cases. In McCandles v.
District Court,[40] the appellate court held that the proper method of making demands for speedy trial is by motions
filed in the case or made in open court. A demand therefor must be made in court. The Sandiganbayan would have
acted beyond its authority if it had dismissed the case against the accused simply because the prosecutor had gone to
sleep at the switch while the defendant and his counsel rested in silence.[41] The accused must not be rewarded by
the dismissal of the case and the State and society punished by the neglect of the prosecutor unless the accused
himself calls the attention of the court to the matter.[42]

Under Section 9, Rule 119 of the Revised Rules of Criminal Procedure, the petitioners had the burden of
proving the factual basis for their motions for the dismissal of the Informations on the ground of a denial of their right
to a speedy trial and to a speedy disposition of the cases against them. They were burdened to prove that such delay
caused by the Prosecutor was vexatious, capricious or whimsical. On the other hand, the Prosecutor was burdened to
present evidence to establish that the delay in the submission of his report on the reinvestigation of the cases was
reasonably attributed to the ordinary process of justice, and that the accused suffered no serious prejudice beyond
that which ensued after an inevitable and ordinary delay.

Indubitably, there was an undue and inordinate delay in the reinvestigation of the cases by the
Ombudsman/Special Prosecutor, and, consequently, the submission of his report thereon. Despite the lapse of more
than one year, he failed to comply with the Orders of the Sandiganbayan. It bears stressing that a reinvestigation is
summary in nature, and merely involves a reexamination and re-evaluation of the evidence already submitted by the
complainant and the accused, as well as the initial finding of probable cause which led to the filing of the Informations
after the requisite preliminary investigation. Undeniably, the Ombudsman/Special Prosecutor is saddled with “cases of
equal, if not of more importance” than the cases against the petitioners. However, this is not a valid justification for
an inordinate delay of one (1) year in the termination of the reinvestigation of the cases. The Prosecutor should have
expedited the reinvestigation not only because he was ordered by the Sandiganbayan to submit a report within sixty
(60) days, but also because he is bound to do so under the Constitution, and under Section 13 of Rep. Act No. 6770:

The Ombudsman and his deputies, as protectors of the people, shall act promptly on complaints filed in any
form or manner against public officials or employees of the Government, or any subdivision, agency or instrumentality
 40

thereof, including government-owned or controlled corporations, and shall, in appropriate cases, notify the
complainants of the action taken and the results thereof. (Section 12, Article XI of the 1987 Constitution)

The Ombudsman and his deputies, as protectors of the people, shall act promptly on complaints filed in any
form or manner against public officials or employees of the Government, or any subdivision, agency or instrumentality
thereof, including government-owned or controlled corporations, and enforce their administrative, civil and criminal
liability in every case where the evidence warrants in order to promote efficient service by the government to the
people. (Section 13, Republic Act No. 6770)

In Hodges v. United States,[43] it was emphasized that the government, and for that matter, the trial court, is
not without responsibility for the expeditious trial for criminal cases. The burden for trial promptness does not solely
rest upon the defense. The right to a speedy trial is not to be honored only for the vigilant and the knowledgeable.
[44] In De Vera v. Layague,[45] we also held that:

The constitutional mandate to promptly dispose of cases does not only refer to the decision of cases on their
merits, but also to the resolution of motions and other interlocutory matters, as the constitutional provisions explicitly
mention “cases” and “matters.” Therefore, respondent judge must not be excused for his delay in resolving the
incident in Civil Case No. 17,215.

The Dismissal of the Information Was Too Drastic

We note that the Prosecutor informed the Sandiganbayan on August 16, 2001 that he had already submitted his
recommendation on the reinvestigation of the cases to the Special Prosecutor, and requested for continuance anew.
The graft court again obliged, and reset the arraignment of the accused to August 20, 2001, only to be informed by
the Prosecutor that his recommendation had not yet been acted upon by the Special Prosecutor/Ombudsman. The
unexplained delay by the Ombudsman/Special Prosecutor of his compliance with the Sandiganbayan’s directive brings
to mind the trite and distressing observation of this Court in Abardo v. Sandiganbayan:[46]

Clearly, the delay in this case disregarded the Ombudsman’s duty, as mandated by the Constitution and Republic Act
No. 6770, to enforce the criminal liability of government officers or employees in every case

where the evidence warrants in order to promote efficient service to the people. The fact that up to this time no trial
has been set, apparently due to the inability of the Ombudsman to complete the reinvestigation is a distressing
indictment of the criminal justice system, particularly its investigative and prosecutory pillars.

The Sandiganbayan, for its part, is not free of blame. In resolving the motions for reconsideration of the
petitioners and the other accused, it should have required the Ombudsman/Special Prosecutor, under pain of
contempt, to explain and justify the inordinate delay in the submission of the report on the reinvestigation. The
Sandiganbayan failed to do so. The graft court was content to issue mere orders denying the motions for
reconsideration of the petitioners and the other accused.

The Court is wont to stress that the State, through the Sandiganbayan and the Ombudsman/Special
Prosecutor, has the duty of insuring that the criminal justice system is consistent with due process and the
constitutional rights of the accused. Society has a particular interest in bringing swift prosecutions and society’s
representatives are the ones who should protect that interest.[47] It has been held that the right to a prompt inquiry
into criminal charges is fundamental and the duty of the charging authority is to provide a prompt disposition of the
case.[48]

Prescinding from the foregoing, we agree with the Sandiganbayan that the dismissal of the cases was
precipitate and unwarranted. The State should not be prejudiced and deprived of its right to prosecute the cases
simply because of the ineptitude or nonchalance of the Ombudsman/Special Prosecutor.

Under Section 9, Rule 119 of the Revised Rules of Criminal Procedure, the trial court may dismiss a criminal
case on a motion nolle prosequi if the accused is not brought to trial within the prescribed time and is deprived of his
right to a speedy trial or disposition of the case on account of unreasonable or capricious delay caused by the
prosecution.[49] En contrario, the accused is not entitled to a dismissal where such delay was caused by proceedings
or motions instituted by him.[50] But it must be understood that an overzealous or precipitate dismissal of a case
may enable the defendant, who may be guilty, to go free without having been tried, thereby infringing the societal
interest in trying people accused of crimes rather than granting them immunization because of legal error.[51] Not
too long ago, we emphasized that:

…[T]he State, like any other litigant, is entitled to its day in court, and to a reasonable opportunity to present its case.
A hasty dismissal such as the one in question, instead of unclogging dockets, has actually increased the workload of
the justice system as a whole and caused uncalled-for delays in the final resolution of this and other cases.
Unwittingly, the precipitate action of the respondent court, instead of easing the burden of the accused, merely
prolonged the litigation and ironically enough, unnecessarily delayed the case – in the process, causing the very evil it
apparently sought to avoid. Such action does not inspire public confidence in the administration of justice.[52]

There can be no denying the fact that the petitioners, as well as the other accused, was prejudiced by the
delay in the reinvestigation of the cases and the submission by the Ombudsman/Special Prosecutor of his report
thereon. So was the State. We have balanced the societal interest involved in the cases and the need to give
substance to the petitioners’ constitutional rights and their quest for justice, and we are convinced that the dismissal
of the cases is too drastic a remedy to be accorded to the petitioners. The cloud of suspicion may still linger over the
heads of the petitioners by the precipitate dismissal of the cases. We repeat -- the cases involve the so-called tax
credit certificates scam and hundreds of millions of pesos allegedly perpetrated by government officials in connivance
with private individuals. The People has yet to prove the guilt of the petitioners of the crimes charged beyond
reasonable doubt. We agree with the ruling of the Sandiganbayan that before resorting to the extreme sanction of
 41

depriving the petitioner a chance to prove its case by dismissing the cases, the Ombudsman/Special Prosecutor should
be ordered by the Sandiganbayan under pain of contempt, to explain the delay in the submission of his report on his
reinvestigation.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED DUE COURSE.

SO ORDERED.
 42

[2004V964] LIGAYA V. SANTOS, Petitioner, versus DOMINGO I. ORDA, JR., Respondent.2004 Sept 12nd
DivisionG.R. No. 158236D E C I S I O N

CALLEJO, SR., J.:

This is a petition for review on certiorari of the Decision[1] of the Court of Appeals in CA-G.R. SP No. 72962 granting
the petition for certiorari filed by Domingo I. Orda, Jr. and nullifying the Orders[2] of the Regional Trial Court of
Parañaque City, Branch 258 dated July 5, 2002 and July 23, 2002 in People v. Ligaya V. Santos, et al., for murder,
docketed as Criminal Cases Nos. 01-0921 and 01-0425.

The Antecedents

On January 17, 2001, Dale B. Orda, a college student and son of respondent, Assistant City Prosecutor of Manila
Domingo Orda, Jr., was shot by a male person on a motorcycle at the corner of Ayala Boulevard and San Marcelino
Street, Manila. Dale was then seated at the passenger’s seat at the back of their car, while his father was at the
wheel. Fortunately, Dale survived the shooting.[3]

At about 6:20 p.m. on April 2, 2001, another son of the respondent, Francis Orda, a twenty-year-old senior
engineering student of the Mapua Institute of Technology, was shot to death at Saudi Arabia Street corner Sierra
Leone Street, Better Living Subdivision, Barangay Don Bosco, Parañaque City. Gina Azarcon, a helper at the Bakers
Brew Coffee Shop at the corner of Saudi Arabia and Somalia Streets, Barangay Don Bosco, gave a sworn statement to
the police investigators on April 1, 2001, declaring that three male persons perpetrated the crime, two of whom shot
the victim inside his car.[4]

On April 7, 2001, Azarcon gave a supplemental affidavit pointing to and identifying Rolly Tonion and Jhunrey Soriano
as two of the assailants.[5] An Information was filed in the RTC of Parañaque City, docketed as Criminal Case No. 01-
0425 on April 18, 2001, charging Rolly Tonion alias “Komang” and Jhunrey Soriano with murder for the killing of
Francis Orda.[6]

The accused filed a petition for bail. The prosecution presented Gina Azarcon as its witness in opposition to the
petition.

On June 7, 2001, Ernesto M. Regala and his son, Dennis C. Regala, a barangay tanod of Barangay 659, Arroceros,
Ermita, Manila, executed separate affidavits before the Assistant City Prosecutor of Parañaque City. Ernesto narrated
that at about 10:00 p.m. on April 1, 2001, he sent his son, Dennis, to deliver collections from the public toilet at
Arroceros to Barangay Chairman Ligaya Santos. When Dennis had not yet arrived by 11:00 p.m., he decided to fetch
his son. While they were in Santos’ office, Dennis and Ernesto heard Santos saying, “Gusto ko malinis na trabaho at
walang bulilyaso, baka makaligtas na naman si Orda.” They saw Santos give a gun to Rolly Tonion, who was then
with Edna Cortez, a certain Nognog, Ronnie Ybañez, and another male companion. Dennis then gave Ernesto’s
collection amounting to P400 to Santos. At 11:00 p.m. on April 2, 2001, Cortez told Ernesto that the son of the
assistant city prosecutor was ambushed at the Better Living Subdivision, and that the latter was fortunate because the
bullet intended for him hit his son instead.[7] For his part, Dennis alleged that at 9:00 a.m. on April 3, 2001, Tonion
asked him to return the gun to Santos for him, but that he refused to do so. On April 15, 2001, Santos asked him to
monitor the activities of the respondent and his son at the store owned by the latter, located at the LRT Station at
Arroceros.

The respondent executed an affidavit-complaint dated June 7, 2001 and filed the same in the Office of the City
Prosecutor of Parañaque City, charging Santos, Cortez and Ybañez with murder for the death of his son Francis.[8]
The case was docketed as I.S. No. 01-F-2052.

In her counter-affidavit, Santos denied the charge and claimed that the affidavits executed by Ernesto and Dennis
were all lies. She averred that she was in their house in Cavite City on April 1, 2001 and returned to Manila only in
the early morning of April 2, 2001. Her alibi was corroborated by the affidavits of Anthony Alejado, Marianito Fuentes,
Normita Samonte, and Lilian Lemery. She also denied Dennis’ claims that she asked him to monitor the activities of
the respondent and his son on April 15, 2001. She alleged that the respondent filed the charge and other baseless
charges against her to enable him to gain control over Plaza Lawton where his store was located.

Cortez also denied the charge. She claimed in her affidavit that Santos was not in her office on April 1, 2001, it being
a Sunday. She alleged that the affidavits of Dennis and Ernesto were lies.

On July 31, 2001, the investigating prosecutor issued a Resolution finding probable cause against Santos and Cortez
for murder.[9] An Information for murder was, thereafter, filed on August 29, 2001 against Santos and Cortez,
docketed as Criminal Case No. 01-0921.[10]

On August 30, 2001, Azarcon executed an affidavit implicating Barangay Kagawad Christopher Castillo, his brother
Girlie Castillo, and Robert Bunda for the killing of Francis. On the same day, the respondent executed an affidavit-
complaint charging them for the same crime.[11] On September 7, 2001, the trial court issued an Order requiring the
prosecutor to submit additional evidence against Cortez.[12] Sabino M. Frias, thereafter, executed an affidavit on
September 18, 2001, implicating Santos, Cortez, the Castillo brothers, Bunda, and Pedro Jimenez, the driver of
Santos, in the killing of Francis.[13]

Meanwhile, Santos, Cortez, and Ybañez filed a petition for review of the resolution of the prosecutor in I.S. No. 01-F-
2052 in the Department of Justice (DOJ).[14] On their motion, the trial court suspended the proceedings against
Santos and Cortez and the issuance of warrants for their arrest. However, on September 12, 2001, Azarcon executed
an affidavit recanting her statement against the Castillo brothers and Bunda.[15]
 43

In the meantime, during the hearing on October 23, 2001, the prosecution terminated the presentation of its
testimonial evidence in Criminal Case No. 01-0425 on the accused Tonion and Soriano’s petition for bail and offered
its documentary evidence. The accused presented Azarcon as their first witness to prove their innocence of the crime
charged.

On November 12, 2001, the public prosecutor issued a Resolution in I.S. No. 01-H-3410 finding probable cause for
murder against the Castillo brothers and Bunda. On November 28, 2001, the public prosecutor filed a motion to
amend information and to admit amended information against them as additional accused.[16] The accused,
thereafter, filed a petition for review of the resolution of the public prosecutor before the DOJ on January 7, 2002.[17]
They also filed a motion to suspend proceedings and the issuance of warrants of arrest in Criminal Cases Nos. 01-
0425 and 01-0921 and a motion to admit newly discovered evidence, namely, Azarcon’s affidavit of recantation.[18]
The public prosecutor opposed the motion and filed a motion to admit second amended information with Pedro
Jimenez as additional accused.[19] On February 5, 2002, the trial court issued an Order denying the motion of the
accused Castillo brothers and Bunda and ordering the issuance of warrants for the arrest of Santos and Cortez.[20]
The court then issued the said warrants based on its finding of probable cause against them[21] for lack of probable
cause to recall the warrants of arrest, and to examine the witnesses. The court, however, denied the motion on the
ground that it had not yet acquired jurisdiction over their persons and it had not yet received any resolution from the
Secretary of Justice on their petition for review. On February 20, 2002, the trial court issued an Order denying the
petition for bail by Tonion and Soriano,[22] ruling that the evidence of guilt was strong. In the meantime, Ernesto
and Dennis recanted their affidavits.[23]

During the trial on April 23, 2002 in Criminal Case No. 01-0425, accused Tonion and Soriano presented Dennis as
their witness.[24]

On April 26, 2002, the trial court issued an Order admitting the second amended Information against the Castillo
brothers, Bunda, and Jimenez and ordering the issuance of warrants for their arrest.[25] On April 29, 2002, the said
warrants were issued by the court.

On June 11, 2002, Secretary of Justice Hernando B. Perez issued a Joint Resolution reversing the assailed resolution
of the public prosecutor and directing the latter to withdraw the Informations against Santos, Cortez, Bunda, the
Castillo brothers, and Jimenez. The Secretary of Justice found Azarcon, Frias, Dennis, and Ernesto incredible
witnesses because of their recantations, to wit:

WHEREFORE, the petition is GRANTED and the assailed resolutions are hereby REVERSED AND SET ASIDE. The City
Prosecutor of Parañaque City is hereby directed to cause the withdrawal of the criminal Informations for murder filed
before the Regional Trial Court, Branch 258, Parañaque City, against respondents LIGAYA SANTOS, EDNA CORTEZ
and RONNIE YBAÑEZ (I.S. No. 01-F-2052) and against respondents CHRISTOPHER and GIRLIE CASTILLO and ROBERT
BUNDA (I.S. No. 01-H-3410) and to report to this Department the action taken within ten (10) days from receipt
hereof.

SO ORDERED.[26]

On June 27, 2002, the respondent filed a motion for reconsideration thereof. However, the public prosecutor filed a
motion to withdraw the Informations in the two cases on June 20, 2002 in compliance with the joint resolution of the
Secretary of Justice. On July 2, 2002, the respondent filed a comment/opposition to the motion to withdraw the
Informations filed by the public prosecutor, contending:

I- THAT COMPLAINANT HEREBY ADOPTS ITS POSITION RAISED IN ITS MOTION FOR RECONSIDERATION FILED
WITH THE DEPARTMENT OF JUSTICE (COPY ATTACHED AS ANNEX “A”). HENCE, THE DETERMINATION OF THE
INSTANT MOTION IS STILL PREMATURE ESPECIALLY SO THAT ALL THE ACCUSED-MOVANTS ARE STILL AT LARGE,
EVADING SERVICE OF ARREST WARRANT, IN WHICH CASE THEY ARE NOT ENTITLED TO ANY RELIEF;

II- THAT THE LATE (SIC) FINDINGS OF NO PROBABLE CAUSE FOR THE ACCUSED BY THE DEPARTMENT OF JUSTICE
IS NOT BINDING;

III- THAT THE HONORABLE COURT HAS JUDICIOUSLY AND SOUNDLY ADJUDGED THE EXISTENCE OF PROBABLE
CAUSE; and,

IV- THAT TO GIVE DUE COURSE TO THE INSTANT MOTION WOULD ONLY CREATE CHAOS AND INJUSTICE.[27]

Pending resolution of the motion for reconsideration, the trial court issued an Order on July 5, 2002 granting the
motion of the public prosecutor to withdraw the Informations in the interest of justice and equity.[28] The trial court
ruled that such withdrawal would not prevent the refiling of the Informations against the accused who would not be
able to invoke double jeopardy, considering that the court had not yet acquired jurisdiction over their persons. The
private complainant filed a motion for reconsideration of the order which was not opposed by the public prosecutor.
Nonetheless, on July 23, 2002, the trial court issued an Order denying the motion on the ground that it could not
order the refiling of the Informations if the DOJ and the public prosecutor refused to do so.[29]

The respondent forthwith filed a petition for certiorari with the Court of Appeals (CA) assailing the orders of the trial
court.

On March 19, 2003, the CA rendered a Decision granting the petition. The appellate court ruled that the trial court
abused its discretion in granting the withdrawal of the Informations without making an independent evaluation on the
merits of the case. Santos filed a motion for reconsideration of the decision and a supplement to the said motion,
which was opposed by the respondent. On May 6, 2003, Santos and Cortez were arrested based on the warrants
issued by the trial court. On May 22, 2003, the CA issued a resolution denying the said motion for reconsideration for
lack of merit.
 44

Santos filed a petition for review on certiorari with this Court contending as follows:

A.) THE COURT OF APPEALS ERRED GRAVELY AND ACTED ARBITRARILY IN NULLIFYING THE ORDER OF THE TRIAL
COURT GRANTING THE PROSECUTION’S MOTION TO WITHDRAW THE INFORMATIONS IN CRIMINAL CASES NOS. 01-
0921 AND 01-0425 PURSUANT TO DOJ JOINT RESOLUTION DATED 11 JUNE 2002.

B.) THE COURT OF APPEALS COMMITTED GRAVE ERROR IN DIRECTLY REINSTATING THE CRIMINAL COMPLAINTS,
INCLUDING THE WARRANTS OF ARREST, WITHOUT AFFORDING THE TRIAL COURT THE OPPORTUNITY TO EXERCISE
ITS JUDICIAL PREROGATIVE OF DETERMINING WHETHER TO PURSUE OR DISMISS THE COMPLAINTS PURSUANT TO
ITS OWN EVALUATION OF THE CASE AND EVIDENCE IN LIGHT OF THE DOJ JOINT RESOLUTION FINDING LACK OF
PROBABLE CAUSE.[30]

The threshold issue is whether or not the trial court committed grave abuse of its discretion amounting to excess or
lack of jurisdiction in granting the public prosecutor’s motion to withdraw the Informations and in lifting the warrant of
arrest against the petitioner on the Secretary of Justice’s finding that there was no probable cause for the filing of the
said Informations.

The petitioner avers that the trial court did not abuse its judicial discretion when it granted the motion of the public
prosecutor to withdraw the two Informations as ordered by the Secretary of Justice in his Joint Resolution on the
finding that there was no probable cause against the accused therein to be charged with murder. The petitioner
asserts that, by allowing the withdrawal of the Informations without an independent assessment of the merit of the
evidence and without prejudice to the refiling thereof, the court did not thereby order the dismissal of the cases for
insufficiency of evidence. The petitioner posits that, after all, the trial court had not yet acquired complete criminal
jurisdiction to resolve the cases because it had not yet acquired jurisdiction over the persons of all the accused. The
petitioner argues that the CA erred in relying on the rulings of this Court in Crespo v. Mogul[31] and Perez v. Hagonoy
Rural Bank, Inc.[32] because the said cases involve the withdrawal of the Informations and the dismissal of the cases
for insufficiency of evidence. In contrast, the public prosecutor filed a motion merely to withdraw the Informations
and not to dismiss the cases due to insufficiency of evidence.

In its comment on the petition, the Office of the Solicitor General (OSG) avers that the decision of the CA is in
conformity with the rulings of this Court in Balgos, Jr. v. Sandiganbayan,[33] Dee v. Court of Appeals,[34] Roberts, Jr.
v. Court of Appeals,[35] Ledesma v. Court of Appeals,[36] Jalandoni v. Drilon[37] and Solar Team Entertainment, Inc.
v. How.[38] The OSG asserts that the rulings of this Court apply whether the motion filed by the public prosecutor
was for the withdrawal of the Informations due to lack of probable cause or insufficiency of evidence. The OSG avers
that the trial court had acquired jurisdiction over the persons of all the accused, either by their respective arrests or
by the filing of pleadings before the court praying for affirmative reliefs.

In her reply to the comment of the OSG, the petitioner insisted that she did not submit herself to the jurisdiction of
the trial court by filing her motion to quash the Informations for lack of probable cause and to examine the witnesses
before the issuance of the warrant of arrest against her. As the trial court itself held, it had not yet acquired
jurisdiction over her person.

In nullifying the assailed orders of the trial court, the appellate court ratiocinated as follows:

To support these assigned errors, petitioner contends that the respondent Judge committed grave abuse of discretion
when he granted the Motion to Withdraw Informations filed by his trial prosecutor based on the Joint Resolution of the
Department of Justice and in denying petitioner’s motion for reconsideration.

We resolve to grant this petition considering that this contention is impressed with merit.

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 which 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 (Crespo
v. Mogul, 151 SCRA 462).

However, if the trial court has failed to make an independent finding of the merits of the case or make an independent
evaluation or assessment of the merits of the case, but merely anchored the dismissal of the case on the revised
position of the prosecution, the trial court has relinquished the discretion he was duty-bound to exercise because, in
effect, it is the prosecution through the Department of Justice which decides what to do and that the trial court was
reduced into a mere rubber stamp, in violation of the ruling in Crespo vs. Mogul (Martinez vs. Court of Appeals, 237
SCRA 576, 577), which is the situation obtaining in this case considering that the dismissal of the criminal cases
against private respondents was based solely on [the] recommendation of the Secretary of Justice because the
reliance of public respondent Judge was based solely on the prosecutor’s averment that the Secretary of Justice had
recommended the dismissal of the case against private respondent which is an abdication of the trial court’s duty and
jurisdiction to determine a prima facie case, in blatant violation of the court’s pronouncement in Crespo vs. Mogul
(Perez vs. Hagonoy Rural Bank, 327 SCRA 588).

Moreover, public respondent having already issued the warrants of arrest on private respondents which, in effect,
means that a probable cause exists in those criminal cases, it was an error to dismiss those cases without making an
independent evaluation especially that the bases of the probable cause are the same evidence which mere made the
bases of the Joint Resolution dated June 11, 2002 of the Secretary of Justice.
 45

Consequently, the dismissal order dated July 5, 2002 having been issued upon an erroneous exercise of judicial
discretion, the same must have to be set aside.[39]

We agree with the appellate court.

In Crespo v. Mogul,[40] the Court held that once a criminal complaint or information is filed in court, any disposition
of the case or dismissal or acquittal or conviction of the accused rests within the exclusive jurisdiction, competence,
and discretion of the trial court. The trial court is the best and sole judge on what to do with the case before it. A
motion to dismiss the case filed by the public prosecutor should be addressed to the court who has the option to grant
or deny the same. Contrary to the contention of the petitioner, the rule applies to a motion to withdraw the
Information or to dismiss the case even before or after arraignment of the accused.[41] 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 or the private
complainant to due process of law.[42] When the trial court grants a motion of the public prosecutor to dismiss the
case, or to quash the Information, or to withdraw the Information in compliance with the directive of the Secretary of
Justice, or to deny the said motion, it does so not out of subservience to or defiance of the directive of the Secretary
of Justice but in sound exercise of its judicial prerogative.[43]

In resolving a motion to dismiss the case or to withdraw the Information filed by the public prosecutor on his own
initiative or pursuant to the directive of the Secretary of Justice, either for insufficiency of evidence in the possession
of the prosecutor or for lack of probable cause, the trial court should not rely solely and merely on the findings of the
public prosecutor or the Secretary of Justice that no crime was committed or that the evidence in the possession of
the public prosecutor is insufficient to support a judgment of conviction of the accused. As the Court emphasized in
Martinez v. Court of Appeals,[44] the trial court must make an independent evaluation or assessment of the merits of
the case and the evidence on record of the prosecution:

Secondly, the dismissal was based merely on the findings of the Acting Secretary of Justice that no libel was
committed. The trial judge did not make an independent evaluation or assessment of the merits of the case.
Reliance was placed solely on the conclusion of the prosecution that “there is no sufficient evidence against the said
accused to ascertain the allegation in the information” and on the supposed lack of objection to the motion to dismiss,
this last premise being, however, questionable, the prosecution having failed, as observed, to give private
complainant a copy of the motion to dismiss.

In other words, the grant of the motion to dismiss was based upon considerations other than the judge’s own personal
individual conviction that there was no case against the accused. 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 by 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 v.
Mogul.

The dismissal order having been issued in violation of private complainant’s right to due process as well as upon an
erroneous exercise of judicial discretion, the Court of Appeals did not err in setting aside said dismissal order and
remanding the case to the trial court for arraignment of petitioner as accused therein and for further proceedings.

Indeed, it bears stressing that the trial court is not bound to adopt the resolution of the Secretary of Justice since it is
mandated to independently evaluate or assess the merits of the case and it may either agree or disagree with the
recommendation of the Secretary of Justice. Reliance alone on the resolution of the Secretary of Justice would be an
abdication of the trial court’s duty and jurisdiction to determine a prima facie case.[45]

The trial court may make an independent assessment of the merits of the case based on the affidavits and counter-
affidavits, documents, or evidence appended to the Information; the records of the public prosecutor which the court
may order the latter to produce before the court;[46] or any evidence already adduced before the court by the
accused at the time the motion is filed by the public prosecutor.

In this case, the trial court failed to make an independent assessment of the merits of the cases and the evidence on
record or in the possession of the public prosecutor. In granting the motion of the public prosecutor to withdraw the
Informations, the trial court relied solely on the joint resolution of the Secretary of Justice, as gleaned from its
assailed order:

For resolution is the Motion to Withdraw Criminal Informations filed on June 21, 2002 by the Office of the City
Prosecutor, this jurisdiction, to which a Comment/Opposition thereto was filed by private complainant Domingo I.
Orda, Jr. on July 2, 2002.

It appears that the motion is in compliance with the Joint Resolution of the Department of Justice (DOJ) promulgated
on June 11, 2002 directing said Office to cause the withdrawal of the criminal informations for murder against the
accused, Ligaya V. Santos, Edna Cortez, and Ronnie Ybañez, in Crim. Case No. 01-0921 (I.S. No. 01-F-2052) and
against Christopher Castillo, Girlie Castillo, and Robert Bunda in Crim. Case No. 01-0425 (I.S. No. 01-H-3410), copy
of which was received by this Court on June 19, 2002.
 46

The Court, after going over the Comment/Opposition filed by the private complainant, vis-à-vis the Joint Motion for
Reconsideration of the Resolution of the DOJ, is of the firm belief and honest opinion and so holds that meanwhile that
the Motion for Reconsideration of the private complainant is pending before the DOJ, justice and equity dictates that
this Court has to give due course to the Motion to Withdraw the Criminal Informations, specially so that warrants for
the arrest of all the accused have been issued. No injustice, prejudice, or damage will be suffered by the private
complainant considering that if ever his Motion for Reconsideration will be granted by the DOJ, said criminal
informations may be refiled and the principle of double jeopardy cannot be invoked by all the accused as the Court
has not yet acquired jurisdiction over the persons. Upon the other hand, the warrants of arrest will serve as swords of
damocles hanging over the heads of the accused if the Court will rule otherwise.[47]

In granting the public prosecutor’s motion, the trial court abdicated its judicial power and acted as a mere surrogate
of the Secretary of Justice.

Worse, as gleaned from the above order, the trial court knew that the Joint Resolution of the Secretary of Justice had
not yet become final and executory because the respondent, the private complainant, had filed a timely motion for the
reconsideration thereof which had not yet been resolved by the Secretary of Justice. It behooved the trial court to
wait for the resolution of the Secretary of Justice on the motion for reconsideration of the respondent before resolving
the motion of the public prosecutor to withdraw the Informations. In fine, the trial court acted with inordinate haste.

Had the trial court bothered to review its records before issuing its assailed order, it would have recalled that aside
from the affidavits of Azarcon, Ernesto and Dennis, there was also the affidavit of Frias implicating the petitioner and
the other accused to the killing of Francis and that it even gave credence to the testimony and affidavit of Azarcon
when it denied Tonion and Soriano’s petition for bail. Moreover, the trial court found probable cause against the
petitioner and issued a warrant for her arrest despite the pendency of her petition for review in the Department of
Justice, only to make a complete volte face because of the Joint Resolution of the Secretary of Justice.

The bare fact that the trial court had issued warrants of arrest against Santos, Cortez, the Castillo brothers, and
Bunda, who were the petitioners in the Department of Justice, did not warrant an outright grant of the public
prosecutor’s motion to withdraw the Informations. The court had already acquired jurisdiction over the cases when
the Informations were filed; hence, it had jurisdiction to resolve the motion of the public prosecutor, one way or the
other, on its merits. While it may be true that the accused could be incarcerated, as warrants of arrest had already
been issued against them pending the resolution of the respondent’s motion for reconsideration, the
same does not justify ignoring the rules and running roughshod over the rights of the respondent. Justice and equity
is not for the accused alone; the State and the private complainant are entitled thereto, as well. Moreover, the
petitioner had submitted herself to the jurisdiction of the court when she filed her motion to examine the witnesses,
and suspend the proceedings and the issuance of a warrant for her arrest.

The trial court committed another travesty when it denied the motion for reconsideration of its July 5, 2002 Order, on
its ratiocination that -

In today’s hearing on the Motion for Reconsideration, considering that the Public Prosecutor informed the Court that
their office will no longer file any opposition thereto, the said Motion for Reconsideration is denied considering that the
filing and the withdrawal of an Information is purely an executive function and the Court cannot order the refiling if
the Department of Justice or the Public Prosecutor’s Office refuses to do so. …[48]

This is so because the July 5, 2002 Order of the court had not yet become final and executory when the private
complainant filed her motion for reconsideration of the said order.[49] Until and unless the July 5, 2002 Order shall
have become final and executory, the Informations filed with the court were not yet considered withdrawn. On the
other hand, if the trial court had granted the motion for reconsideration of the respondent and set aside its July 5,
2002 Order, there would no longer be a need to refile the Informations.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED DUE COURSE. The assailed Decision of the Court of
Appeals is AFFIRMED.

SO ORDERED.
 47

[2008V671] SPS. CAROLINA and REYNALDO JOSE Petitioners, versus SPS. LAUREANO and PURITA
SUAREZ, Respondents.2008 Jun 302nd DivisionG.R. No. 176795D E C I S I O N

Tinga, J.:

Petitioners filed this case assailing the Decision[1] of the Court of Appeals in CA-G.R. CEB SP No. 00397 dated
17 August 2006 which affirmed the Orders[2] of the Regional Trial Court (RTC) of Cebu City, Branch 19 restraining
Branches 2 and 5 of the Municipal Trial Court in Cities (MTCC) of Cebu City from proceeding with the criminal cases for
violation of Batas Pambansa Bilang 22 (B.P. Blg. 22) filed against respondent Purita Suarez.

The facts of the case follow.

Respondents, spouses Laureano and Purita Suarez, had availed of petitioner Carolina Jose’s (Carolina) offer to
lend money at the daily interest rate of 1% to 2%. However, Carolina and her husband, petitioner Reynaldo Jose,
later on increased the interest to 5% per day, which respondents were forced to accept because they allegedly had no
other option left. It then became a practice that petitioners would give the loaned money to Purita and the latter
would deposit the same in her and her husband’s account to cover the maturing postdated checks they had previously
issued in payment of their other loans. Purita would then issue checks in favor of petitioners in payment of the
amount borrowed from them with the agreed 5% daily interest.

On 7 May 2004, respondents filed a Complaint[3] against petitioners seeking the declaration of “nullity of interest of
5% per day, fixing of interest, recovery of interest payments”[4] and the issuance of a writ of preliminary injunction,
alleging that the interest rate of 5% a day is iniquitous, contrary to morals, done under vitiated consent and imposed
using undue influence by taking improper advantage of their financial distress. They claimed that due to serious
liquidity problems, they were forced to rely on borrowings from banks and individual lenders, including petitioners,
and that they had to scramble for funds to cover the maturing postdated checks they issued to cover their other
borrowings. In their prayer, respondents stated:

WHEREFORE, it is prayed that upon the filing of the instant case and in accordance with the 1997 Rules on Civil
Procedure[,] a writ of preliminary injunction or at least a temporary restraining order be issued restraining defendant
from enforcing the checks as listed in Annex “E” including the filing of criminal cases for violation of B.P. [Blg.] 22 and
restraining defendants from entering plaintiffs’ store and premises to get cash sales and other items against plaintiffs
will [sic] under such terms and conditions as this Court may affix.[5]

Thereafter, at the instance of Carolina, several cases for violation of B.P. Blg. 22[6] were filed against
respondent Purita before the MTCC of Cebu City, Branches 2 and 5. Purita, in turn filed motions to suspend the
criminal proceedings on the ground of prejudicial question, on the theory that the checks subject of the B.P. Blg. 22
cases are void for being contra bonos mores or for having been issued in payment of the iniquitous and
unconscionable interest imposed by petitioners. The motions were denied.[7]

Respondents thereafter filed before the RTC a “Motion for Writ of Preliminary Injunction with Temporary
Restraining Order”[8] seeking to restrain the MTCCs from further proceeding with the B.P. Blg. 22 cases on the
ground of prejudicial question. Petitioners opposed the motion. Nevertheless, the RTC through its 20 December 2004
Order[9] issued a writ of preliminary injunction, thereby enjoining the MTCCs from proceeding with the cases against
Purita. Petitioners sought reconsideration of the order but their motion was denied due course in the RTC’s 3
February 2005 Order.[10]

Petitioners elevated the case to the Court of Appeals[11] and questioned the propriety of the RTC’s issuance of
a preliminary injunction based on a prejudicial question. The appellate court stated that respondents had sought to
annul the checks for being void pursuant to Article 1422 of the Civil Code which provides that “a contract which is the
direct result of a previous illegal contract, is also void and inexistent.” Accordingly, the appellate court concluded that
if the checks subject of the criminal cases were later on declared null and void, then said checks could not be made
the bases of criminal prosecutions under B.P. Blg. 22. In other words, the outcome of the determination of the
validity of the said checks is determinative of guilt or innocence of Purita in the criminal case.[12]

The appellate court also observed that respondents’ resort to an application for preliminary injunction could
not be considered as forum shopping since it is the only remedy available to them considering the express proscription
of filing a petition for certiorari against interlocutory orders issued in cases under B.P. Blg. 22 which are governed by
the rules on summary procedure.[13]

Before us, petitioners submit that because under Section 6, Rule 111 of the Rules on Criminal Procedure a petition to
suspend proceedings on the ground of prejudicial question should be filed in the same criminal action, the RTC has no
jurisdiction to issue the writ of preliminary injunction as it is not the court where the B.P. Blg. 22 cases were filed.
Moreover, they argue that respondents are guilty of forum shopping because after the denial of their motion to
suspend the proceedings before Branches 2 and 5 of the MTCC, they resorted to the filing of a motion for preliminary
injunction before the RTC also on the ground of prejudicial question; therefore, they succeeded in getting the relief in
one forum (RTC) which they had failed to obtain in the first forum (MTCCs). Likewise, petitioners claim that the Court
of Appeals erred in holding that the civil case poses a prejudicial question to the B.P. Blg. 22 cases, thus resulting in
the erroneous suspension of the proceedings the latter cases. Finally, petitioners posit that the RTC erred in issuing
the preliminary injunction because respondents have no clear and unmistakable right to its issuance.[14]

Respondents, for their part, state that the possibility of a ruling in the civil case to the effect that the subject
checks are contra bonos mores and hence null and void constitutes a prejudicial question in the B.P. Blg. 22 cases.
Thus, proceeding with the trial in the criminal cases without awaiting the outcome of the civil case is fraught with
mischievous consequences.[15] They cite the case of Medel v. Court of Appeals,[16] wherein the Court nullified the
interest rate of 5.5% per month for being contra bonos mores under Article 1306 of the Civil Code, and recomputed
 48

the interest due at the rate of 1% per month.[17] Thus, if their loans are computed at 1% per month, it would mean
that the checks subject of the B.P. Blg. 22 cases are not only fully paid but are also in fact overpaid. They also invoke
the case of Danao v. Court of Appeals[18] wherein the Court allegedly ruled that there is no violation of B.P. Blg. 22
if the dishonored checks have been paid.[19] They claim that since the 5% interest per day was not contained in any
written agreement, per Article 1956[20] of the Civil Code, petitioners are bound to return the total interest they
collected from respondents. Respondents point out that they incorporated in their complaint an application for
preliminary injunction and temporary restraining order to restrain Carolina from enforcing the interest and from filing
criminal cases for violation of B.P. Blg. 22. Quoting the RTC, respondents explain:

Since there was no proof at that time that plaintiff sustain or are about to sustain damages or prejudice if the
acts complained of are not enjoined, the application was not acted upon by the Court. When the attention of the
Court was invited by the plaintiffs of the refusal of the MTC, Branches 2 and 5, to suspend the criminal proceedings
despite being appraised of the pendency of this case, the Court has to act accordingly.[21]

Respondents maintain that they are not guilty of forum shopping because after the denial by the MTCCs of
their motion to suspend proceedings, their only available remedy was the filing of an application for preliminary
injunction in the existing civil case filed earlier than the B.P. Blg. 22 cases. In any case, respondents argue that the
rule on forum shopping is not intended to deprive a party to a case of a legitimate remedy.[22] Finally, they
claim that the case falls under the exceptions to the rule that the prosecution of criminal cases may not be enjoined
by a writ of injunction, considering that in this case there is a prejudicial question which is sub judice, and that there
is persecution rather than prosecution.[23]

The case hinges on the determination of whether there exists a prejudicial question which necessitates the
suspension of the proceedings in the MTCCs.

We find that there is none and thus we resolve to grant the petition.

A prejudicial question generally comes into play in a situation where a civil action and a criminal action are both
pending and there exists in the former an issue which must be preemptively resolved before the latter may proceed,
because howsoever the issue raised in the civil action is resolved would be determinative juris et de jure of the guilt or
innocence of the accused in the criminal case. The rationale behind the principle of prejudicial question is to avoid two
conflicting decisions. It has two essential elements: (i) the civil action involves an issue similar or intimately related
to the issue raised in the criminal action; and (ii) the resolution of such issue determines whether or not the
criminal action may proceed.[24]

Now the prejudicial question posed by respondents is simply this: whether the daily interest rate of 5% is void,
such that the checks issued by respondents to cover said interest are likewise void for being contra bonos mores, and
thus the cases for B.P. Blg. 22 will no longer prosper.

The prejudicial question theory advanced by respondents must fail.

In the first place, the validity or invalidity of the interest rate is not determinative of the guilt of respondents in
the criminal cases. The Court has consistently declared that the cause or reason for the issuance of a check is
inconsequential in determining criminal culpability under B.P. Blg. 22.[25] In several instances, we have held that
what the law punishes is the issuance of a bouncing check and not the purpose for which it was issued or the terms
and conditions relating to its issuance; and that the mere act of issuing a worthless check is malum prohibitum
provided the other elements of the offense are properly proved.[26]

The nature and policy of B.P. Blg. 22 were aptly enunciated by the Court in Meriz v. People,[27] when it stated:

x x x. [B.P. Blg.] 22 does not appear to concern itself with what might actually be envisioned by the parties, its
primordial intention being to instead ensure the stability and commercial value of checks as being virtual substitutes
for currency. It is a policy that can easily be eroded if one has yet to determine the reason for which checks are
issued, or the terms and conditions for their issuance, before an appropriate application of the legislative enactment
can be made. The gravamen of the offense under [B.P. Blg.] 22 is the act of making or issuing a worthless check or a
check that is dishonored upon presentment for payment. The act effectively declares the offense to be one of malum
prohibitum. The only valid query then is whether the law has been breached, i.e., by the mere act of issuing a bad
check, without so much regard as to the criminal intent of the issuer.[28]

Thus, whether or not the interest rate imposed by petitioners is eventually declared void for being contra bonos mores
will not affect the outcome of the B.P. Blg. 22 cases because what will ultimately be penalized is the mere issuance of
bouncing checks. In fact, the primordial question posed before the court hearing the B.P. Blg. 22 cases is whether the
law has been breached, that is, if a bouncing check has been issued.

The issue has in fact been correctly addressed by the MTCCs when respondents’ motion to suspend the
criminal proceedings was denied upon the finding that there exists no prejudicial question which could be the basis
for the suspension of the proceedings. The reason for the denial of the motion is that the “cases can very well proceed
for the prosecution of the accused in order to determine her criminal propensity … as a consequence of the issuance of
several checks which subsequently … bounced” for “what the law punishes is the issuance and/or drawing of a check
and upon presentment for deposit or encashment, it was dishonored due to insufficient funds [or] account closed.”
[29]

There being no prejudicial question, the RTC and, consequently, the Court of Appeals gravely erred when they
allowed the suspension of the proceedings in the B.P. Blg. 22 cases.

Now, on to other matters.

 49

We find that respondents are guilty of forum shopping. There is forum shopping when a party seeks to obtain
remedies in an action in one court, which had already been solicited, and in other courts and other proceedings in
other tribunals. Forum shopping is the act of one party against another, when an adverse judgment has been
rendered in one forum, of seeking another and possibly favorable opinion in another forum other than by appeal or by
special civil action of certiorari; or the institution of two or more acts or proceedings grounded on the same cause on
the supposition that one or the other court would make a favorable disposition.[30]

Respondents filed their motions to suspend proceedings in the MTCCs hearing the B.P. Blg. 22 cases but
unfortunately, the same were denied. Failing to get the relief they wanted, respondents sought before the RTC, the
suspension of the criminal proceedings which was granted. Respondents tried to extricate themselves from the
charge of forum shopping by explaining that after the denial of their motions to suspend, their only remedy was the
application for preliminary injunction in the civil case—a relief which they had already asked for in their complaint and
which was also initially not granted to them. Any which way the situation is viewed, respondents’ acts constituted
forum shopping since they sought a possibly favorable opinion from one court after another had issued an order
unfavorable to them.

The Court notes that three cases, namely, Ras v. Rasul,[31] Medel v. CA[32] and Danao v. Court of
Appeals[33]—finding no application to the instant case—were mentioned by the RTC, the Court of Appeals and by
respondents themselves in support of their position.

Ras v. Rasul cropped up in the order of the RTC which was quoted with approval by the Court of Appeals.
According to the RTC, the ruling in the said case allegedly “can be squarely applied in this case which nullified and set
aside the conviction in a criminal case because of a prejudicial question.”[34] We do not agree. The Ras case involves
a petition for nullification of a deed of sale on the ground of forgery. While the civil case was pending, an information
for estafa was filed against the respondent in the civil case. The Court ruled that there were prejudicial questions
considering that the defense against the charge of forgery in the civil case is based on the very same facts which
would be determinative of the guilt or innocence of the respondent in the estafa case. The instant case is different
from Ras inasmuch as the determination of whether the 5% daily interest is contra bonos mores and therefore void,
or that the total amount loaned from petitioners has been sufficiently paid, will not affect the guilt or innocence of
Purita because the material question in the B.P. Blg. 22 cases is whether Purita had issued a bad check, regardless of
the purpose or condition of its issuance.

Medel v. CA is the case upon which respondents anchor their claim that the interest due on their loans is only
1% per month and thus they have already overpaid their obligation to petitioners. In Medel, the Court declared that
the rate of 5.5% interest per month on a P500,000.00 loan is iniquitous, unconscionable and hence contrary to
morals, and must equitably be reduced to 12% per annum. While the Medel case made a finding that the stipulated
interest rate is excessive and thus may be equitably reduced by the courts, we do not see how a reduction of the
interest rate, should there be any, or a subsequent declaration that the amount due has been fully paid, will have an
effect on the determination of whether or not Purita had in fact issued bouncing checks.

Meanwhile, respondents misunderstood our ruling in Danao v. Court of Appeals, which they claim to have ruled
that there could be no violation of B.P. Blg. 22 if the dishonored checks have been paid. In Danao, the accused was
convicted by the trial court for having issued two checks which eventually bounced. The Court found that there was
no proof of receipt by the accused of any notice of nonpayment of the checks, and thus there was no way of
determining when the five-day period prescribed in Section 2 of B.P. Blg. 22 would start and end. Thus, the
presumption or prima facie evidence of knowledge of the insufficiency of funds or credit at the time of the issuance of
the checks did not arise. While there was a finding that the accused had already paid her obligations prior to receipt
of the complainant’s demand letter,[35] there was no declaration from the Court that such payment exonerated
accused from liability for having issued bouncing checks. Instead, accused was acquitted due to insufficiency of
evidence, and not because she had paid the amount covered by the dishonored checks[36] or that the obligation was
deemed paid.

WHEREFORE, the petition is GRANTED. The impugned Decision of the Court of Appeals dated 17 August
2006 and its Resolution dated 27 February 2007, in CA-G.R. CEB-SP No. 00397, are SET ASIDE. The preliminary
injunction issued by the Regional Trial Court of Cebu City, Branch 19 in its Order dated 20 December 2004 in Civil
Case No. CEB-30278 enjoining the proceedings in the criminal cases for violation of B.P. Blg. 22 is LIFTED AND SET
ASIDE and the MTCC of Cebu City, Branches 2 and 5 are ORDERED to proceed with dispatch with the arraignment
and trial in the B.P. Blg. 22 cases pending before them.

SO ORDERED.
 50

[2008V361] JOSELITO RANIERO J. DAAN, Petitioner, versus THE HON. SANDIGANBAYAN (Fourth
Division), Respondent.2008 Mar 283rd DivisionG.R. No. 163972-77D E C I S I O N

AUSTRIA-MARTINEZ, J.:

Joselito Raniero J. Daan (petitioner), one of the accused in Criminal Cases Nos. 24167-24170, 24195-24196,
[1] questions the denial by the Sandiganbayan of his plea bargaining proposal.

The antecedents facts are laid down by Sandiganbayan in its Resolution dated March 25, 2004, as follows:

Said accused,[2] together with accused Benedicto E. Kuizon, were charged before this Court for three
counts of malversation of public funds involving the sums of P3,293.00, P1,869.00, and P13,528.00, respectively,
which they purportedly tried to conceal by falsifying the time book and payrolls for given period making it appear that
some laborers worked on the construction of the new municipal hall building of Bato, Leyte and collected their
respective salaries thereon when, in truth and in fact, they did not. Thus, in addition to the charge for malversation,
the accused were also indicted before this Court for three counts of falsification of public document by a public officer
or employee.

In the falsification cases, the accused offered to withdraw their plea of “not guilty” and substitute the same
with a plea of “guilty”, provided, the mitigating circumstances of confession or plea of guilt and voluntary surrender
will be appreciated in their favor. In the alternative, if such proposal is not acceptable, said accused proposed instead
to substitute their plea of “not guilty” to the crime of falsification of public document by a public officer or employee
with a plea of “guilty”, but to the lesser crime of falsification of a public document by a private individual. On the
other hand, in the malversation cases, the accused offered to substitute their plea of “not guilty” thereto with a plea of
“guilty”, but to the lesser crime of failure of an accountable officer to render accounts.

Insofar as the falsification cases are concerned, the prosecution found as acceptable the proposal of the
accused to plead “guilty” to the lesser crime of falsification of public document by a private individual. The
prosecution explained:

“With respect to the falsification cases earlier mentioned, it appears that the act of the accused in pleading guilty for a
lesser offense of falsification by a private individual defined and penalized under Article 172 of the Revised Penal code
will strengthen our cases against the principal accused, Municipal Mayor Benedicto Kuizon, who appears to be the
master mind of these criminal acts.”

Insofar as the malversation cases are concerned, the prosecution was likewise amenable to the offer of
said accused to plead “guilty” to the lesser crime of failure of an accountable officer to render accounts because:

“x x x JOSELITO RANIERO J. DAAN has already restituted the total amount of P18,860.00 as per official receipt issued
by the provincial government of Leyte dated February 26, 2002. In short, the damage caused to the government has
already been restituted x x x.[3]

The Sandiganbayan, in the herein assailed Resolution,[4] dated March 25, 2004, denied petitioner’s Motion
to Plea Bargain, despite favorable recommendation by the prosecution, on the main ground that no cogent reason was
presented to justify its approval.[5]

The Sandiganbayan likewise denied petitioner's Motion for Reconsideration in a Resolution dated May 31,
2004.

This compelled petitioner to file the present case for certiorari and prohibition with prayer for the issuance of
a temporary restraining order and/ or writ of preliminary injunction under Rule 65 of the Rules of Court.

Petitioner argues that the Sandiganbayan committed grave abuse of discretion in denying his plea bargaining
offer on the following grounds: first, petitioner is not an accountable officer and he merely affixed his signature on the
payrolls on a “routinary basis,” negating any criminal intent; and that the amount involved is only P18,860.00, which
he already restituted.[6]

The petition is meritorious.

Plea bargaining in criminal cases is a process whereby the accused and the prosecution work out a mutually
satisfactory disposition of the case subject to court approval. It usually involves the defendant's pleading guilty to a
lesser offense or to only one or some of the counts of a multi-count indictment in return for a lighter sentence than
that for the graver charge.[7]

Plea bargaining is authorized under Section 2, Rule 116 of the Revised Rules of Criminal Procedure, to wit:

SEC. 2. Plea of guilty to a lesser offense. — At arraignment, the accused, with the consent of the offended
party and the prosecutor, may be allowed by the trial court to plead guilty to a lesser offense which is necessarily
included in the offense charged. After arraignment but before trial, the accused may still be allowed to plead guilty to
said lesser offense after withdrawing his plea of not guilty. No amendment of the complaint or information is
necessary. (sec. 4, cir. 38-98)

Ordinarily, plea bargaining is made during the pre-trial stage of the proceedings. Sections 1 and 2, Rule 118 of the
Rules of Court, require plea bargaining to be considered by the trial court at the pre-trial conference,[8] viz:
 51

SEC. 1. Pre-trial; mandatory in criminal cases. – In all criminal cases cognizable by the Sandiganbayan,
Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court and Municipal Circuit
Trial Court, the court shall, after arraignment and within thirty (30) days from the date the court acquires jurisdiction
over the person of the accused, unless a shorter period is provided for in special laws or circulars of the Supreme
Court, order a pre-trial conference to consider the following:

(a) plea bargaining;

(b) stipulation of facts;

(c) marking for identification of evidence of the parties;

(d) waiver of objections to admissibility of evidence;

(e) modification of the order of trial if the accused admits the charge but interposes a lawful defense; and

(f) such matters as will promote a fair and expeditious trial of the criminal and civil aspects of the case.

SEC. 2. Pre-trial agreement. – All agreements or admissions made or entered during the pre-trial conference shall be
reduced in writing and signed by the accused and counsel, otherwise, they cannot be used against the accused. The
agreements covering the matters referred to in section 1 of this Rule shall be approved by the court. mphasis
supplied)

But it may also be made during the trial proper and even after the prosecution has finished presenting its
evidence and rested its case. Thus, the Court has held that it is immaterial that plea bargaining was not made during
the pre-trial stage or that it was made only after the prosecution already presented several witnesses.[9]

Section 2, Rule 116 of the Rules of Court presents the basic requisites upon which plea bargaining may be
made, i.e., that it should be with the consent of the offended party and the prosecutor,[10] and that the plea of guilt
should be to a lesser offense which is necessarily included in the offense charged. The rules however use word may in
the second sentence of Section 2, denoting an exercise of discretion upon the trial court on whether to allow the
accused to make such plea.[11] Trial courts are exhorted to keep in mind that a plea of guilty for a lighter offense
than that actually charged is not supposed to be allowed as a matter of bargaining or compromise for the convenience
of the accused.[12]

In People of the Philippines v. Villarama,[13] the Court ruled that the acceptance of an offer to plead guilty to
a lesser offense is not demandable by the accused as a matter of right but is a matter that is addressed entirely to the
sound discretion of the trial court,[14] viz:

x x x In such situation, jurisprudence has provided the trial court and the Office of the Prosecutor with a
yardstick within which their discretion may be properly exercised. Thus, in People v. Kayanan (L-39355, May 31,
1978, 83 SCRA 437, 450), We held that the rules allow such a plea only when the prosecution does not have sufficient
evidence to establish the guilt of the crime charged. In his concurring opinion in People v. Parohinog (G.R. No. L-
47462, February 28, 1980, 96 SCRA 373, 377), then Justice Antonio Barredo explained clearly and tersely the
rationale or the law:

x x x (A)fter the prosecution had already rested, the only basis on which the fiscal and the court could
rightfully act in allowing the appellant to change his former plea of not guilty to murder to guilty to the lesser crime of
homicide could be nothing more nothing less than the evidence already in the record. The reason for this being that
Section 4 of Rule 118 (now Section 2, Rule 116) under which a plea for a lesser offense is allowed was not and could
not have been intended as a procedure for compromise, much less bargaining.[15] mphasis supplied)

However, Villarama involved plea bargaining after the prosecution had already rested its case.

As regards plea bargaining during the pre-trial stage, as in the present case, the trial court's exercise of its
discretion should neither be arbitrary nor should it amount to a capricious and whimsical exercise of discretion. Grave
abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction
or, in other words, where the power is exercised in an arbitrary manner by reason of passion, prejudice, or personal
hostility; and it must be so patent or gross as to amount to an evasion of a positive duty or to a virtual refusal to
perform the duty enjoined by law, or to act at all in contemplation of law.[16]

In the present case, the Sandiganbayan rejected petitioner's plea offer on the ground that petitioner and the
prosecution failed to demonstrate that the proposal would redound to the benefit of the public. The Sandiganbayan
believes that approving the proposal would “only serve to trivialize the seriousness of the charges against them and
send the wrong signal to potential grafters in public office that the penalties they are likely to face would be lighter
than what their criminal acts would have merited or that the economic benefits they are likely to derive from their
criminal activities far outweigh the risks they face in committing them; thus, setting to naught the deterrent value of
the laws intended to curb graft and corruption in government.”[17]

Apparently, the Sandiganbayan has proffered valid reasons in rejecting petitioner's plea offer. However,
subsequent events and higher interests of justice and fair play dictate that petitioner's plea offer should be accepted.
The present case calls for the judicious exercise of this Court's equity jurisdiction -

Equity as the complement of legal jurisdiction seeks to reach and do complete justice where courts of law, through the
inflexibility of their rules and want of power to adapt their judgments to the special circumstances of cases, are
incompetent so to do. Equity regards the spirit of and not the letter, the intent and not the form, the substance
rather than the circumstance, as it is variously expressed by different courts.[18]
 52

and of its power of control and supervision over the proceedings of lower courts,[19] in order to afford equal justice to
petitioner.

In People of the Philippines v. Estrada,[20] the Sandiganbayan, in its Resolution dated March 14, 2007,
approved the Plea Bargaining Agreement entered into by the prosecution and one of the accused, Charlie “Atong”
Ang. The agreement provided that the accused undertakes to assist in the prosecution of the case and promises to
return the amount of P25,000,000.00. In approving the Plea Bargaining Agreement, the Sandiganbayan took into
consideration the timeliness of the plea bargaining and whether the agreement complied with the requirements of
Section 2, Rule 116 of the Rules of Court. The Sandigabayan noted that the accused had already withdrawn his
earlier plea of “not guilty”; and that the prosecution consented to the plea of guilt to a lesser offense; and the lesser
offense, which is Corruption of Public Officials in relation to Indirect Bribery, is necessarily included in the offense
charged, which is Plunder.[21]

The Court sees no reason why the standards applied by the Sandiganbayan to Estrada should not be applied
to the present case. Records show that there was a favorable recommendation by the Office of the Special Prosecutor
to approve petitioner's motion to plea bargain. Thus, in its Memorandum dated August 16, 2002, the Office of the
Special Prosecutor rationalized:

In the cases at bar, there is no dispute that JOSELITO RANIERO J. DAAN has already restituted the total
amount of P18,860.00 as per official receipt issued by the provincial government of Leyte dated February 26, 2002.
In short, the damage caused to the government has already been restituted by the accused.

There is also no dispute that accused DAAN voluntarily surrendered in the instant cases. Moreover, the
accused is also willing to plead guilty to a lesser offense which to our mind, merits consideration.

With respect to the falsification cases earlier mentioned, it appears that the act of the accused in pleading
guilty for a lesser offense of falsification by private individual defined and penalized under Article 172 of the Revised
Penal Code will strengthen our cases against the principal accused, the Municipal Mayor Benedicto Kuizon, who
appears to be the master mind of these criminal acts. After all, the movants herein JOSELITO RANIERO J. DAAN was
merely designated as draftsman detailed as foreman/timekeeper of the Municipality of Bato, Leyte.[22]

Moreover, the lesser offenses of Falsification by Private Individuals and Failure to Render Account by an Accountable
Officer are necessarily included in the crimes of Falsification of Public Documents and Malversation of Public Funds,
respectively, with which petitioner was originally charged.

Under Article 171, paragraph 4 of the Revised Penal Code, for the crime of Falsification of Public Documents
through an untruthful narration of facts to be established, the following elements must concur: (a) the offender makes
in a document untruthful statements in a narration of facts; (b) the offender has a legal obligation to disclose the
truth of the facts narrated; (c) the facts narrated by the offender are absolutely false; and (d) the perversion of truth
in the narration of facts was made with the wrongful intent of injuring a third person.[23]

On the other hand, Falsification by Private Individuals penalized under Article 172, paragraph 1 of the Revised
Penal Code has the following elements: (a) the offender is a private individual or a public officer or employee who did
not take advantage of his official position; (b) the offender committed any of the acts of falsification enumerated
under Article 171 of the Revised Penal Code; and (c) the falsification was committed in a public or official or
commercial document.[24]

As regards the crime of Malversation of Public Funds defined and penalized under Article 217 of the Revised
Penal Code, with which petitioner was also charged, the elements are as follows: (a) the offender is a public officer;
(b) he has custody or control of funds or property by reason of the duties of his office; (c) the funds or property
involved are public funds or property for which he is accountable; and (d) he has appropriated, taken or
misappropriated, or has consented to, or through abandonment or negligence permitted, the taking by another person
of such funds or property.[25] Article 217 also provides that the failure of the public officer to have duly forthcoming
such public funds or property, upon demand by a duly authorized officer, “shall be prima facie evidence that he has
put such missing funds or property to personal use.” In this regard, it has been ruled that once such presumption is
rebutted, then it is completely destroyed; in fact, the presumption is never deemed to have existed at all.[26]

Meanwhile, under Article 218 of the Revised Penal Code, Failure to Render Account by an Accountable Officer,
the lesser offense which petitioner seeks to plead guilty of, the following elements must concur: (a) the offender is a
public officer; (b) the offender must be an accountable officer for public funds or property; (c) the offender is
required by law or regulation to render accounts to the COA or to a provincial auditor; and (d) the offender fails to
render an account for a period of two months after such accounts should be rendered.[27]

Section 5, Rule 120 of the Rules of Court states when an offense includes or is included in the other, to wit:

SEC. 5. When an offense includes or is included in another. — An offense charged necessarily includes the
offense proved when some of the essential elements or ingredients of the former, as alleged in the complaint or
information, constitute the latter. And an offense charged is necessarily included in the offense proved, when the
essential ingredients of the former constitute or form part of those constituting the latter.

An offense may be said to necessarily include another when some of the essential elements or ingredients of
the former as alleged in the complaint or information constitute the latter. And vice versa, an offense may be said to
be necessarily included in another when the essential ingredients of the former constitute or form part of those
constituting the latter.[28]
 53

In this case, the allegations in the Informations filed against petitioner are sufficient to hold petitioner liable
for the lesser offenses. Thus, in the charge for Falsification of Public Documents, petitioner may plead guilty to the
lesser offense of Falsification by Private Individuals inasmuch as it does not appear that petitioner took advantage of
his official position in allegedly falsifying the timebook and payroll of the Municipality of Bato, Leyte. In the same
vein, with regard to the crime of Malversation of Public Funds, while the Informations contain allegations which make
out a case for Malversation against petitioner, nevertheless, absent the element of conversion, theoretically, petitioner
may still be held liable for Failure to Render Account by an Accountable Officer if it is shown that the failure to render
account was in violation of a law or regulation that requires him to render such an accounting within the prescribed
period.

Given, therefore, that some of the essential elements of offenses charged in this case likewise constitute the
lesser offenses, then petitioner may plead guilty to such lesser offenses.

Finally, as propounded by petitioner, indeed, he is not an accountable officer in that the nature of his duty as
foreman/timekeeper does not permit or require possession or custody of local government funds,[29] not to mention
that petitioner has already restituted the amount of P18,860.00 involved in this case. Unlike Estrada which involves a
crime punishable by reclusion perpetua to death,[30] and a whopping P25,000,000.00 taken from the public coffers,
this case tremendously pales in comparison.

Under the peculiar circumstances of the present case, where gross inequity will result in a discriminatory
dispensation of justice, the Court will not hesitate to intervene in order to equalize the imbalance.

WHEREFORE, the petition is GRANTED. The Resolutions dated March 25, 2004 and May 31, 2004 are SET
ASIDE. The Sandiganbayan is hereby ORDERED to grant petitioner's Motion to Plea Bargain. Let records of this case
be REMANDED to the Sandiganbayan for further proceedings in accordance with this Decision.

SO ORDERED.
 54

[2004V839E] ALFREDO T. ROMUALDEZ, Petitioner, versus The Honorable SANDIGANBAYAN (Fifth

Division) and the PEOPLE of the PHILIPPINES, Respondents.2004 Jul 29En BancG.R. No.
152259DECISION

PANGANIBAN, J.:

epetitive motions to invalidate or summarily terminate a criminal indictment prior to plea and trial, however they may
be named or identified -- whether as a motion to quash or motion to
__________________

* On leave.

dismiss or by any other nomenclature -- delay the administration of justice and unduly burden the court system.
Grounds not included in the first of such repetitive motions are generally deemed waived and can no longer be used
as bases of similar motions subsequently filed.

Section 5 of the Anti-Graft Law is constitutional. It penalizes certain presidential relatives who “intervene,
directly or indirectly, in any business, transaction, contract or application with the Government.” This provision is not
vague or “impermissibly broad,” because it can easily be understood with the use of simple statutory construction.
Neither may the constitutionality of a criminal statute such as this be challenged on the basis of the “overbreadth” and
the “void-for-vagueness” doctrines, which apply only to free-speech cases.

The Case

Before us is a Petition for Certiorari[1] under Rule 65 of the Rules of Court, seeking to set aside the November 20,
2001[2] and the March 1, 2002[3] Resolutions of the Sandiganbayan in Criminal Case No. 13736. The first Resolution
disposed thus:

“WHEREFORE, for lack of merit, the Motion to Dismiss is hereby DENIED. The arraignment of the accused and the
pre-trial of the case shall proceed as scheduled.”[4]

The second Resolution denied reconsideration.

The Facts

The facts of the case are narrated by the Sandiganbayan as follows:

“[The People of the Philippines], through the Presidential Commission on Good Government (PCGG), filed on July 12,
1989 an information before [the anti-graft court] charging the accused [with] violation of Section 5, Republic Act No.
3019,[5] as amended. The Information reads:

‘That on or about and during the period from July 16, 1975 to July 29, 1975, in Metro Manila, Philippines, and within
the jurisdiction of [the Sandiganbayan], said [petitioner], brother-in-law of Ferdinand E. Marcos, former President of
the Philippines, and therefore, related to the latter by affinity within the third civil degree, did then and there
wil[l]fully and unlawfully, and with evident bad faith, for the purpose of promoting his self-interested [sic] and/or that
of others, intervene directly or indirectly, in a contract between the National Shipyard and Steel Corporation
(NASSCO), a government-owned and controlled corporation and the Bataan Shipyard and Engineering Company
(BASECO), a private corporation, the majority stocks of which is owned by former President Ferdinand E. Marcos,
whereby the NASSCO sold, transferred and conveyed to the BASECO its ownership and all its titles and interests over
all equipment and facilities including structures, buildings, shops, quarters, houses, plants and expendable and semi-
expendable assets, located at the Engineer Island known as the Engineer Island Shops including some of its
equipment and machineries from Jose Panganiban, Camarines Norte needed by BASECO in its shipbuilding and ship
repair program for the amount of P5,000,000.00.

‘Contrary to law.’

“On December 27, 1996, the accused filed his first ‘MOTION TO DISMISS AND TO DEFER ARRAIGNMENT’ claiming
that no valid preliminary investigation was conducted in the instant case. He asserts that if a preliminary
investigation could be said to have been conducted, the same was null and void having been undertaken by a biased
and partial investigative body.

“On January 9, 1997, [the Sandiganbayan], through the First Division, issued an order giving the accused fifteen days
to file a Motion for Reinvestigation with the Office of the Special Prosecutor.

“[Petitioner] questioned said order before the Supreme Court via a petition for Certiorari and Prohibition with prayer
for temporary restraining order. On January 21, 1998, the Supreme Court dismissed the petition for failure to show
that [the Sandiganbayan] committed grave abuse of discretion in issuing the assailed order.

“On November 9, 1998, the [petitioner] filed with the Office of the Special Prosecutor a Motion to Quash.

“On September 22, 1999, x x x Special Prosecution Officer (SPO) III Victorio U. Tabanguil, manifested that the
prosecution had already concluded the reinvestigation of the case. He recommended the dismissal of the instant
case. Both the Deputy Special Prosecutor and the Special Prosecutor approved the recommendation. However,
Ombudsman Aniano A. Desierto disagreed and directed the prosecutors to let the [petitioner] present his evidence in
Court.
 55

“Subsequently, [petitioner] filed on October 8, 1999 his second ‘MOTION TO QUASH AND TO DEFER ARRAIGNMENT’.

“On February 9, 2000, the [Sandiganbayan] denied the motion for lack of merit.

“On June 19, 2001, [the] accused filed a ‘MOTION FOR LEAVE TO FILE MOTION TO DISMISS’. On June 29, 2001, the
[Sandiganbayan] admitted the motion and admitted the attached (third) Motion to Dismiss.

“The [Motion to Dismiss] raise[d] the following grounds:

‘I. THE CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW OF [PETITIONER] WAS VIOLATED DURING THE
PRELIMINARY INVESTIGATION STAGE IN THE FOLLOWING WAYS:

‘A. NO VALID PRELIMINARY INVESTIGATION WAS CONDUCTED IN THE INSTANT CASE; AND

‘B. THE PRELIMINARY INVESTIGA- TION WAS CONDUCTED BY A BIASED AND PARTIAL INVESTIGATOR

‘II. THE CONSTITUTIONAL RIGHT OF [PETITIONER] TO BE INFORMED OF THE NATURE AND CAUSE OF THE
ACCUSATION AGAINST HIM WAS VIOLATED

‘III. PURSUANT TO ARTICLE VII, SECTION 17 OF THE 1973 CONSTITUTION, [PETITIONER] IS IMMUNE FROM
CRIMINAL PROSECUTION

‘IV. THE CRIMINAL ACTION OR LIABILITY HAS BEEN EXTINGUISHED BY PRESCRIPTION’”[6]

Ruling of the Sandiganbayan

The Sandiganbayan explained that all the grounds invoked by petitioner, except the third one, had already
been raised by him and passed upon in its previous Resolutions.[7] In resolving the third ground, the anti-graft court
pointed out that Section 17 of the 1973 Constitution became effective only in 1981 when the basic law was amended.
Since his alleged illegal intervention had been committed on or about 1975, the amended provision was inapplicable
to him.[8]

In denying the Motion for Reconsideration filed by petitioner, the Sandiganbayan passed upon the other
grounds he had raised. It ruled that his right to a preliminary investigation was not violated, because he had been
granted a reinvestigation.[9] It further held that his right to be informed of the nature and cause of the accusation
was not trampled upon, either, inasmuch as the Information had set forth the essential elements of the offense
charged.[10]

Hence, this Petition.[11]

The Issues

In his Memorandum, petitioner assigns the following errors for our consideration:

“Whether or not the Honorable Sandiganbayan erred and gravely abused its discretion amounting to lack of, or in
excess of jurisdiction –

I. In not dismissing and/or quashing Criminal Case No. 13736 despite clear and incontrovertible evidence that:

A. Section 5 of Republic Act No. 3019 is unconstitutional because its vagueness violates the due process
right of an individual to be informed of the nature and the cause of the accusation against him;
B. Section 5 of Republic Act No. 3019 is unconstitutional because it violates the due process right of an
individual to be presumed innocent until the contrary is proved;
C. The constitutional right of petitioner x x x to be informed of the nature and the cause of the accusation
against him was violated;
D. The constitutional right to due process of law of petitioner x x x was violated during the preliminary
investigation stage in the following ways:

[i] No valid preliminary investigation was con-ducted for Criminal Case No. 13736; and
[ii] The preliminary investi-gation was conducted by a biased and partial investigator.

E. The criminal action or liability has been extinguished by prescription; and

F. Pursuant to Article VII, Section 17 of the 1973 Constitution, petitioner x x x is immune from criminal
prosecution.

And

II. In light of the foregoing, in denying petitioner[’s] x x x right to equal protection of the laws.”[12]

Simply stated, the issues are as follows: (1) whether Section 5 of Republic Act 3019 is unconstitutional; (2)
whether the Information is vague; (3) whether there was a valid preliminary investigation; (4) whether the criminal
action or liability has been extinguished by prescription; and (5) whether petitioner is immune from criminal
prosecution under then Section 17 of Article VII of the 1973 Constitution.
 56

The Court’s Ruling

The Petition has no merit.

First Issue:

Constitutionality of Section 5, Republic Act 3019

Petitioner challenged the constitutionality of Section 5 of RA 3019 for the first time in the Sandiganbayan through a
Supplemental Motion to Dismiss. Attached to his December 7, 2001 Motion for Reconsideration of the Order denying
his Motion to Dismiss was this Supplemental Motion which was, in effect, his third motion to quash.[13] We note that
the Petition for Certiorari before us challenges the denial of his original, not his Supplemental, Motion to Dismiss.

Upon the denial of his original Motion to Quash on February 9, 2000, petitioner could have filed a motion for
reconsideration of the denial. Had reconsideration been turned down, the next proper remedy would have been either
(1) a petition for certiorari[14] -- if there was grave abuse of discretion -- which should be filed within 60 days from
notice of the assailed order;[15] or (2) to proceed to trial without prejudice to his right, if final judgment is rendered
against him, to raise the same questions before the proper appellate court.[16] But instead of availing himself of
these remedies, he filed a “Motion to Dismiss” on June 19, 2001.

Impropriety of Repetitive Motions

There is no substantial distinction between a “motion to quash” and a “motion to dismiss.” Both pray for an identical
relief, which is the dismissal of the case. Such motions are employed to raise preliminary objections, so as to avoid
the necessity of proceeding to trial. A motion to quash is generally used in criminal proceedings to annul a defective
indictment. A motion to dismiss, the nomenclature ordinarily used in civil proceedings, is aimed at summarily
defeating a complaint. Thus, our Rules of Court use the term “motion to quash” in criminal,[17] and “motion to
dismiss” in civil, proceedings.[18]

In the present case, however, both the “Motion to Quash” and the “Motion to Dismiss” are anchored on basically the
same grounds and pray for the same relief. The hairsplitting distinction posited by petitioner does not really make a
difference.

By filing a Motion to Dismiss, petitioner submitted in effect a prohibited second motion to quash. A party is not
permitted to raise issues, whether similar or different, by installment. The Rules abhor repetitive motions. Otherwise,
there would be no end to preliminary objections, and trial would never commence. A second motion to quash delays
the administration of justice and unduly burdens the courts. Moreover, Rule 117 provides that grounds not raised in
the first motion to quash are generally deemed waived.[19] Petitioner’s “Motion to Dismiss” violates this rule.

Constitutionality of the Challenged Provision

If only for the foregoing procedural lapses, the Petition deserves to be dismissed outright. However, given the
importance of this case in curtailing graft and corruption, the Court will nevertheless address the other issues on their
merit. Petitioner challenges the validity of Section 5 of Republic Act 3019, a penal statute, on the ground that the act
constituting the offense is allegedly vague and “impermissibly broad.”

It is best to stress at the outset that the overbreadth[20] and the vagueness[21] doctrines have special
application only to free-speech cases. They are not appropriate for testing the validity of penal statutes. Mr. Justice
Vicente V. Mendoza explained the reason as follows:

“A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible
‘chilling effect’ upon protected speech. The theory is that ‘[w]hen statutes regulate or proscribe speech and no readily
apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the
transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on
overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could
not be regulated by a statute drawn with narrow specificity.’ The possible harm to society in permitting some
unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others may be
deterred and perceived grievances left to fester because of possible inhibitory effects of overly broad statutes.

This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting
from their very existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented
from enacting laws against socially harmful conduct. In the area of criminal law, the law cannot take chances as in
the area of free speech.

xxx xxx xxx

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing
“on their faces” statutes in free speech cases or, as they are called in American law, First Amendment cases. They
cannot be made to do service when what is involved is a criminal statute. With respect to such statute, the
established rule is that ‘one to whom application of a statute is constitutional will not be heard to attack the statute on
the ground that impliedly it might also be taken as applying to other persons or other situations in which its
application might be unconstitutional.’ As has been pointed out, ‘vagueness challenges in the First Amendment
context, like overbreadth challenges typically produce facial invalidation, while statutes found vague as a matter of
due process typically are invalidated [only] ‘as applied’ to a particular defendant.’”[22] underscoring supplied)
 57

“To this date, the Court has not declared any penal law unconstitutional on the ground of ambiguity.”[23]
While mentioned in passing in some cases, the void-for-vagueness concept has yet to find direct application in our
jurisdiction. In Yu Cong Eng v. Trinidad,[24] the Bookkeeping Act was found unconstitutional because it violated the
equal protection clause, not because it was vague. Adiong v. Comelec[25] decreed as void a mere Comelec
Resolution, not a statute. Finally, Santiago v. Comelec[26] held that a portion of RA 6735 was unconstitutional
because of undue delegation of legislative powers, not because of vagueness.

Indeed, an “on-its-face” invalidation of criminal statutes would result in a mass acquittal of parties whose cases
may not have even reached the courts. Such invalidation would constitute a departure from the usual requirement of
“actual case and controversy” and permit decisions to be made in a sterile abstract context having no factual
concreteness. In Younger v. Harris, this evil was aptly pointed out by the U.S. Supreme Court in these words:[27]

“[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies
before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of the
relative remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the
speculative and amorphous nature of the required line-by-line analysis of detailed statutes, x x x ordinarily results in a
kind of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided.”

For this reason, generally disfavored is an on-its-face invalidation of statutes, described as a “manifestly strong
medicine” to be employed “sparingly and only as a last resort.” In determining the constitutionality of a statute,
therefore, its provisions that have allegedly been violated must be examined in the light of the conduct with which the
defendant has been charged.[28]

As conduct -- not speech -- is its object, the challenged provision must be examined only “as applied” to the
defendant, herein petitioner, and should not be declared unconstitutional for overbreadth or vagueness.

The questioned provision reads as follows:

“Section 5. Prohibition on certain relatives. — It shall be unlawful for the spouse or for any relative, by consanguinity
or affinity, within the third civil degree, of the President of the Philippines, the Vice-President of the Philippines, the
President of the Senate, or the Speaker of the House of Representatives, to intervene, directly or indirectly, in any
business, transaction, contract or application with the Government: Provided, That this section shall not apply to any
person who, prior to the assumption of office of any of the above officials to whom he is related, has been already
dealing with the Government along the same line of business, nor to any transaction, contract or application already
existing or pending at the time of such assumption of public office, nor to any application filed by him the approval of
which is not discretionary on the part of the official or officials concerned but depends upon compliance with requisites
provided by law, or rules or regulations issued pursuant to law, nor to any act lawfully performed in an official
capacity or in the exercise of a profession.”

Petitioner also claims that the phrase “to intervene directly or indirectly, in any business, transaction, contract or
application with the Government” is vague and violates his right to be informed of the cause and nature of the
accusation against him.[29] He further complains that the provision does not specify what acts are punishable under
the term intervene, and thus transgresses his right to be presumed innocent.[30] We disagree.

Every statute is presumed valid.[31] On the party challenging its validity weighs heavily the onerous task of
rebutting this presumption.[32] Any reasonable doubt about the validity of the law should be resolved in favor of its
constitutionality.[33] To doubt is to sustain, as tersely put by Justice George Malcolm. In Garcia v. Executive
Secretary,[34] the rationale for the presumption of constitutionality was explained by this Court thus:

“The policy of the courts is to avoid ruling on constitutional questions and to presume that the acts of the political
departments are valid in the absence of a clear and unmistakable showing to the contrary. To doubt is to sustain.
This presumption is based on the doctrine of separation of powers which enjoins upon each department a becoming
respect for the acts of the other departments. The theory is that as the joint act of Congress and the President of the
Philippines, a law has been carefully studied and determined to be in accordance with the fundamental law before it
was finally enacted.”[35]

In the instant case, petitioner has miserably failed to overcome such presumption. This Court has previously laid
down the test for determining whether a statute is vague, as follows:

“x x x [A] statute establishing a criminal offense must define the offense with sufficient definiteness that persons of
ordinary intelligence can understand what conduct is prohibited by the statute. It can only be invoked against that
species of legislation that is utterly vague on its face, i.e., that which cannot be clarified either by a saving clause or
by construction.

“A statute or act may be said to be vague when it lacks comprehensible standards that men of common intelligence
must necessarily guess at its meaning and differ in its application. In such instance, the statute is repugnant to the
Constitution in two (2) respects - it violates due process for failure to accord persons, especially the parties targeted
by it, fair notice of what conduct to avoid; and, it leaves law enforcers unbridled discretion in carrying out its
provisions and becomes an arbitrary flexing of the Government muscle.[36] But the doctrine does not apply as
against legislations that are merely couched in imprecise language but which nonetheless specify a standard though
defectively phrased; or to those that are apparently ambiguous yet fairly applicable to certain types of activities. The
first may be ‘saved’ by proper construction, while no challenge may be mounted as against the second whenever
directed against such activities.[37] With more reason, the doctrine cannot be invoked where the assailed statute is
clear and free from ambiguity, as in this case.
 58

“The test in determining whether a criminal statute is void for uncertainty is whether the language conveys a
sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice.[38]
It must be stressed, however, that the ‘vagueness’ doctrine merely requires a reasonable degree of certainty for the
statute to be upheld - not absolute precision or mathematical exactitude, as petitioner seems to suggest. Flexibility,
rather than meticulous specificity, is permissible as long as the metes and bounds of the statute are clearly
delineated. An act will not be held invalid merely because it might have been more explicit in its wordings or detailed
in its provisions, especially where, because of the nature of the act, it would be impossible to provide all the details in
advance as in all other statutes.”[39]

A simpler test was decreed in Dans v. People,[40] in which the Court said that there was nothing vague about a penal
law that adequately answered the basic query “What is the violation?”[41] Anything beyond -- the hows and the whys
-- are evidentiary matters that the law itself cannot possibly disclose, in view of the uniqueness of every case.[42]

The question “What is the violation?” is sufficiently answered by Section 5 of RA 3019, as follows:

1. The offender is a spouse or any relative by consanguinity or affinity within the third civil degree of the President
of the Philippines, the Vice-President of the Philippines, the President of the Senate, or the Speaker of the House of
Representatives; and

2. The offender intervened directly or indirectly in any business, transaction, contract or application with the
government.

Applicability of Statutory Construction

As to petitioner’s claim that the term intervene is vague, this Court agrees with the Office of the Solicitor
General that the word can easily be understood through simple statutory construction. The absence of a statutory
definition of a term used in a statute will not render the law “void for vagueness,” if the meaning can be determined
through the judicial function of construction.[43] Elementary is the principle that words should be construed in their
ordinary and usual meaning.

“x x x. A statute is not rendered uncertain and void merely because general terms are used therein, or because of the
employment of terms without defining them;[44] much less do we have to define every word we use. Besides, there
is no positive constitutional or statutory command requiring the legislature to define each and every word in an
enactment. Congress is not restricted in the form of expression of its will, and its inability to so define the words
employed in a statute will not necessarily result in the vagueness or ambiguity of the law so long as the legislative will
is clear, or at least, can be gathered from the whole act x x x.

“x x x [I]t is a well-settled principle of legal hermeneutics that words of a statute will be interpreted in their natural,
plain and ordinary acceptation and signification,[45] unless it is evident that the legislature intended a technical or
special legal meaning to those words.[46] The intention of the lawmakers - who are, ordinarily, untrained philologists
and lexicographers - to use statutory phraseology in such a manner is always presumed.”[47]

The term intervene should therefore be understood in its ordinary acceptation, which is to “to come between.”[48]
Criminally liable is anyone covered in the enumeration of Section 5 of RA 3019 -- any person who intervenes in any
manner in any business, transaction, contract or application with the government. As we have explained, it is
impossible for the law to provide in advance details of how such acts of intervention could be performed. But the
courts may pass upon those details once trial is concluded. Thus, the alleged vagueness of intervene is not a ground
to quash the information prior
to the commencement of the trial.

In sum, the Court holds that the challenged provision is not vague, and that in any event, the “overbreath” and “void
for vagueness” doctrines are not applicable to this case.

Second Issue:

Allegedly Vague Information

Other than arguing on the alleged intrinsic vagueness of intervene, petitioner further contends that the
Information itself is also unconstitutionally vague, because it does not specify the acts of intervention that he
supposedly performed.[49] Again, we disagree.

When allegations in the information are vague or indefinite, the remedy of the accused is not a motion to
quash, but a motion for a bill of particulars.[50] The pertinent provision in the Rules of Court is Section 9 of Rule 116,
which we quote:

“Section 9. Bill of particulars. -- The accused may, before arraignment, move for a bill of particulars to enable him
properly to plead and prepare for trial. The motion shall specify the alleged defects of the complaint or information
and the details desired.”

The rule merely requires the information to describe the offense with sufficient particularity as to apprise the
accused of what they are being charged with and to enable the court to pronounce judgment. [51] The particularity
must be such that persons of ordinary intelligence may immediately know what is meant by the information.[52]

While it is fundamental that every element of the offense must be alleged in the information,[53] matters of evidence
-- as distinguished from the facts essential to the nature of the offense -- need not be averred.[54] Whatever facts
 59

and circumstances must necessarily be alleged are to be determined by reference to the definition and the essential
elements of the specific crimes.[55]

In the instant case, a cursory reading of the Information shows that the elements of a violation of Section 5 of RA
3019 have been stated sufficiently. Likewise, the allegations describe the offense committed by petitioner with such
particularity as to enable him to prepare an intelligent defense. Details of the acts he committed are evidentiary
matters that need not be alleged in the Information.

Third Issue:

Preliminary Investigation

Clearly, petitioner already brought the issue of lack of preliminary investigation when he questioned before this
Court in GR No. 128317 the Sandiganbayan’s Order giving him 15 days to file a Motion for Reinvestigation with the
Office of the Special Prosecutor.[56] Citing Cojuangco v. Presidential Commission on Good Government,[57] he
undauntedly averred that he was deprived of his right to a preliminary investigation, because the PCGG acted both as
complainant and as investigator.[58]

In the case cited above, this Court declared that while PCGG had the power to conduct a preliminary investigation, the
latter could not do so with the “cold neutrality of an impartial judge” in cases in which it was the agency that had
gathered evidence and subsequently filed the complaint.[59] On that basis, this Court nullified the preliminary
investigation conducted by PCGG and directed the transmittal of the records to the Ombudsman for appropriate
action.

It is readily apparent that Cojuangco does not support the quashal of the Information against herein petitioner.
True, the PCGG initiated the present Complaint against him; hence, it could not properly conduct the preliminary
investigation. However, he was accorded his rights -- the Sandiganbayan suspended the trial and afforded him a
reinvestigation by the Ombudsman. The procedure outlined in Cojuangco was thus followed.

The Sandiganbayan’s actions are in accord also with Raro v. Sandiganbayan,[60] which held that the failure to
conduct a valid preliminary investigation would not warrant the quashal of an information. If the information has
already been filed, the proper procedure is for the Sandiganbayan to hold the trial in abeyance while the preliminary
investigation is being conducted or completed.[61]

Fourth Issue:

Prescription

The issue of prescription was the principal basis of the Motion to Quash filed by petitioner with the Sandiganbayan on
October 8, 1999.[62] Such issue should be disregarded at this stage, since he failed to challenge its ruling debunking
his Motion within the 60-day period for the filing of a petition for certiorari. A party may not circumvent this rule by
filing a subsequent motion that raises the same issue and the same arguments.

Furthermore, it is easy to see why this argument being raised by petitioner is utterly unmeritorious. He points
out that according to the Information, the offense was committed “during the period from July 16, 1975 to July 29,
1975.” He argues that when the Information was filed on July 12, 1989,[63] prescription had already set in, because
the prescriptive period for a violation of Republic Act No. 3019 is only ten (10) years from the time the offense was
allegedly committed. The increase of this prescriptive period to fifteen (15) years took effect only on March 16, 1982,
upon the enactment of Batas Pambansa Blg. 195.[64]

Act No. 3326, as amended,[65] governs the prescription of offenses penalized by special laws. Its pertinent
provision reads:

“Sec. 2. Prescription shall begin to run from the day of the commission of the violation of the law, and if the same
not be known at the time, from the discovery thereof and the institution of judicial proceedings for its investigation
and punishment.

“The prescription shall be interrupted when proceedings are instituted against the guilty person, and shall begin to
run again if the proceedings are dismissed for reasons not constituting jeopardy.”

Consistent with the provision quoted above, this Court has previously reckoned the prescriptive period of cases
involving RA 3019 (committed prior to the February 1986 EDSA Revolution) from the discovery of the violation.[66]
In Republic v. Desierto, the Court explained:

“This issue confronted this Court anew, albeit in a larger scale, in Presidential Ad Hoc Fact-Finding Committee on
Behest Loans v. Desierto. In the said recent case, the Board of Directors of the Philippine Seeds, Inc. and
Development Bank of the Philippines were charged with violation of paragraphs (e) and (g) of Section 3 of RA No.
3019, by the Presidential Ad Hoc Fact-Finding Committee on Behest Loans, created by then President Fidel V. Ramos
to investigate and to recover the so-called ‘Behest Loans’, where the Philippine Government guaranteed several
foreign loans to corporations and entities connected with the former President Marcos. x x x In holding that the case
had not yet prescribed, this Court ruled that:

‘In the present case, it was well-nigh impossible for the State, the aggrieved party, to have known the
violations of RA No. 3019 at the time the questioned transactions were made because, as alleged, the public officials
concerned connived or conspired with the ‘beneficiaries of the loans.’ Thus, we agree with the COMMITTEE that the
prescriptive period for the offenses with which the respondents in OMB-0-96-0968 were charged should be computed
from the discovery of the commission thereof and not from the day of such commission.
 60

xxx xxx xxx

‘People v. Duque is more in point, and what was stated there stands reiteration: In the nature of things, acts
made criminal by special laws are frequently not immoral or obviously criminal in themselves; for this reason, the
applicable statute requires that if the violation of the special law is not known at the time, the prescription begins to
run only from the discovery thereof, i.e., discovery of the unlawful nature of the constitutive act or acts.’ (Italics
supplied)

“There are striking parallelisms between the said Behest Loans Case and the present one which lead us to apply the
ruling of the former to the latter. First, both cases arose out of seemingly innocent business transactions; second,
both were ‘discovered’ only after the government created bodies to investigate these anomalous transactions; third,
both involve prosecutions for violations of RA No. 3019; and, fourth, in both cases, it was sufficiently raised in the
pleadings that the respondents conspired and connived with one another in order to keep the alleged violations hidden
from public scrutiny.

“This Court’s pronouncement in the case of Domingo v. Sandiganbayan is quite relevant and instructive as to the date
when the discovery of the offense should be reckoned, thus:

‘In the present case, it was well-nigh impossible for the government, the aggrieved party, to have known the
violations committed at the time the questioned transactions were made because both parties to the transactions
were allegedly in conspiracy to perpetuate fraud against the government. The alleged anomalous transactions could
only have been discovered after the February 1986 Revolution when one of the original respondents, then President
Ferdinand Marcos, was ousted from office. Prior to said date, no person would have dared to question the legality or
propriety of those transactions. Hence, the counting of the prescriptive period would commence from the date of
discovery of the offense, which could have been between February 1986 after the EDSA Revolution and 26 May 1987
when the initiatory complaint was filed.’”[67]

The above pronouncement is squarely applicable to the present case. The general rule that prescription shall begin to
run from the day of the commission of the crime cannot apply to the present case. It is not legally prudent to charge
the State, the aggrieved party, with knowledge of the violation of RA 3019 at the time the alleged intervention was
made. The accused is the late President Ferdinand E. Marcos’ brother-in-law. He was charged with intervening in a
sale involving a private corporation, the majority stocks of which was allegedly owned by President Marcos.

Prior to February 1986, no person was expected to have seriously dared question the legality of the sale or would
even have thought of investigating petitioner’s alleged involvement in the transaction. It was only after the
creation[68] of PCGG[69] and its exhaustive investigations that the alleged crime was discovered. This led to the
initiation on November 29, 1988 of a Complaint against former President Marcos and petitioner for violation of the
Anti-Graft and Corrupt Practices Act. Consequently, the filing of the Information on July 12, 1989 was well within the
prescriptive period of ten years from the discovery of the offense.

Fifth Issue

Immunity from Prosecution

Petitioner argues that he enjoys derivative immunity, because he allegedly served as a high-ranking naval officer --
specifically, as naval aide-de-camp -- of former President Marcos.[70] He relies on Section 17 of Article VII of the
1973 Constitution, as amended, which we quote:

“The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever shall lie for official acts
done by him or by others pursuant to his specific orders during his tenure.

“x x x xxx x x x”

As the Sandiganbayan aptly pointed out, the above provision is not applicable to petitioner because the immunity
amendment became effective only in 1981 while the alleged crime happened in 1975.

In Estrada v. Desierto,[71] this Court exhaustively traced the origin of executive immunity in order to determine the
extent of its applicability. We explained therein that executive immunity applied only during the incumbency of a
President. It could not be used to shield a non-sitting President from prosecution for alleged criminal acts done while
sitting in office. The reasoning of petitioner must therefore fail, since he derives his immunity from one who is no
longer sitting as President. Verily, the felonious acts of public officials and their close relatives “are not acts of the
State, and the officer who acts illegally is not acting as such but stands on the same footing as any other trespasser.”

In sum, petitioner utterly fails to show that the Sandiganbayan gravely abused its discretion in issuing the assailed
Resolutions.[72] On the contrary, it acted prudently, in accordance with law and jurisprudence.

WHEREFORE, the Petition is DISMISSED, and the questioned Resolutions of the Sandiganbayan AFFIRMED.
Costs against petitioner.

SO ORDERED.
 61

[2000V711E] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROBERTO ESTRADA, accused-
appellant.2000 Jun 19En BancG.R. No. 130487D E C I S I O N

PUNO, J.:

This is an automatic review of the death penalty imposed on accused-appellant by the Regional Trial Court, Branch 44,
Dagupan City in Criminal Case No. 94-00860-D.1 [The decision was penned by Judge Crispin C. Laron.] We nullify the
proceedings in the court a quo and remand the case for proper disposition.

In an Information dated December 29, 1994, accused-appellant Roberto Estrada y Lopez was charged with the crime
of murder for the killing of one Rogelio P. Mararac, a security guard. The Information reads:

"That on or about the 27th day of December 1994 in the City of Dagupan, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, ROBERTO ESTRADA Y LOPEZ, being then armed with a butcher’s knife,
with intent to kill one ROGELIO P. MARARAC with treachery and committed in a holy place of worship, did then and
there, wilfully, unlawfully and criminally, attack, assault and use personal violence upon the latter by stabbing him,
hitting him on vital parts of his body with the said weapon, thereby causing his death shortly thereafter due to
"Cardiorespiratory Arrest, Massive Intrathoracic Hemorrhage, Stab Wound"as per Autopsy Report and Certificate of
Death both issued by Dr. Tomas G. Cornel, Assistant City Health Officer, this City, to the damage and prejudice of the
legal heirs of said deceased ROGELIO P. MARARAC in the amount of not less than FIFTY THOUSAND PESOS
(P50,000.00), Philippine currency, and other consequential damages.

Contrary to Article 248 of the Revised Penal Code.

Dagupan City, Philippines, December 29, 1994.- 2 [Records, p. 1.]

At the arraignment on January 6, 1995, accused-appellant’s counsel, the Public Attorney’s Office, filed an "Urgent
Motion to Suspend Arraignment and to Commit Accused to Psychiatric Ward at Baguio General Hospital." It was
alleged that accused-appellant could not properly and intelligently enter a plea because he was suffering from a
mental defect; that before the commission of the crime, he was confined at the psychiatric ward of the Baguio General
Hospital in Baguio City. He prayed for the suspension of his arraignment and the issuance of an order confining him
at the said hospital.3 [Id., pp. 13-14.]

The motion was opposed by the City Prosecutor. The trial court, motu proprio, propounded several questions on
accused-appellant. Finding that the questions were understood and answered by him "intelligently," the court denied
the motion that same day.4 [Id., p. 16. ]

The arraignment proceeded and a plea of not guilty was entered by the court on accused-appellant’s behalf.5 [Id., p.
19.]

The prosecution presented four (4) witnesses, namely: (1) Dr. Tomas Cornel, the Assistant Health Officer of Dagupan
City who issued the death certificate and conducted the autopsy on the victim; (2) Crisanto Santillan, an eyewitness
to the incident; (3) SPO1 Conrado Francisco, one of the policemen who apprehended accused-appellant; and (4)
Rosalinda Sobremonte, the victim’s sister. The prosecution established the following facts:

In the morning of December 27, 1994, at the St. John’s Cathedral, Dagupan City, the sacrament of confirmation was
being performed by the Roman Catholic Bishop of Dagupan City on the children of Dagupan. The cathedral was filled
with more than a thousand people. At 11:00 A.M., nearing the close of the rites, the Bishop went down the altar to
give his final blessing to the children in the front rows. While the Bishop was giving his blessing, a man from the
crowd went up and walked towards the center of the altar. He stopped beside the Bishop’s chair, turned around and,
in full view of the Catholic faithful, sat on the Bishop’s chair. The man was accused-appellant. Crisanto Santillan, who
was assisting the Bishop at the rites, saw accused-appellant. Santillan approached accused-appellant and requested
him to vacate the Bishop’s chair. Gripping the chair’s armrest, accused-appellant replied in Pangasinese: "No matter
what will happen, I will not move out!" Hearing this, Santillan moved away.6 [TSN of January 19, 1995, pp. 4-5.]

Some of the churchgoers summoned Rogelio Mararac, the security guard at the cathedral. Mararac went near
accused-appellant and told him to vacate the Bishop’s chair. Accused-appellant stared intensely at the guard. Mararac
grabbed his nightstick and used it to tap accused-appellant’s hand on the armrest. Appellant did not budge. Again,
Mararac tapped the latter’s hand. Still no reaction. Mararac was about to strike again when suddenly accused-
appellant drew a knife from his back, lunged at Mararac and stabbed him, hitting him below his left throat. Mararac
fell. Accused-appellant went over the victim and tried to stab him again but Mararac parried his thrust. Accused-
appellant looked up and around him. He got up, went to the microphone and shouted: "Anggapuy nayan dia!" (No
one can beat me here!). He returned to the Bishop’s chair and sat on it again. Mararac, wounded and bleeding,
slowly dragged himself down the altar.7 [Id., pp. 6-10; Exhibit "E," Records, pp. 6-7.]

Meanwhile, SPO1 Conrado Francisco, who was directing traffic outside, received a report of a commotion inside the
cathedral. Rushing to the cathedral, SPO1 Francisco saw a man, accused-appellant, with red stains on his shirt and a
knife in one hand sitting on a chair at the center of the altar. He ran to accused-appellant and advised him to drop
the knife. Accused-appellant obeyed. He dropped the knife and raised his hands. Thereupon, Chief Inspector Wendy
Rosario, Deputy Police Chief, Dagupan City, who was attending the confirmation rites at the Cathedral, went near
accused-appellant to pick up the knife. Suddenly, accused-appellant embraced Chief Inspector Rosario and the two
wrestled with each other. Chief Inspector Rosario was able to subdue accused-appellant. The police came and when
 62

they frisked appellant, they found a leather scabbard tucked around his waist.8 [TSN of January 20, 1995, pp. 3-13;
Exhibit "G," Records, p. 5.] He was brought to the police station and placed in jail.

In the meantime, Mararac, the security guard, was brought to the hospital where he expired a few minutes upon
arrival. He died of "cardio-respiratory arrest, massive, intra-thoracic hemorrhage, stab wound."9 [Exhibit "B,"
Records, p. 36.] He was found to have sustained two (2) stab wounds: one just below the left throat and the other on
the left arm. The autopsy reported the following findings:

EXTERNAL FINDINGS

1. Stab wound, along the parasternal line, level of the 2nd intercostal space, left, 1 ½" x 1 ½" penetrating. The edge
of one side of the wound is sharp and pointed.

2. Stab wound, antero-lateral aspect, distal 3rd, arm, left, ½" x ¼" x ½". The edge of one side of the wound is sharp
and pointed.

INTERNAL FINDINGS

Massive intrathoracic, left, hemorrhage with perforation of the upper and lower lobe of the left lung. The left
pulmonary blood vessel was severely cut."10 [Exhibit "A," Records, p. 35.]

After the prosecution rested its case, accused-appellant, with leave of court, filed a "Demurrer to Evidence." He
claimed that the prosecution failed to prove the crime of murder because there was no evidence of the qualifying
circumstance of treachery; that there was unlawful aggression by the victim when he tapped accused-appellant’s hand
with his nightstick; and that accused-appellant did not have sufficient ability to calculate his defensive acts because he
was of unsound mind.11 [Records, pp. 45-48.]

The "Demurrer to Evidence" was opposed by the public prosecutor. He alleged that the accused "pretended to be
weak, tame and of unsound mind;" that after he made the first stab, he "furiously continued stabbing and slashing the
victim to finish him off undeterred by the fact that he was in a holy place where a religious ceremony was being
conducted;" and the plea of unsound mind had already been ruled upon by the trial court in its order of January 6,
1995.12 [Id., pp. 51-52.]

On February 21, 1995, a letter was sent by Inspector Wilfredo F. Valdez, Jail Warden of Dagupan City to the trial
court. Inspector Valdez requested the court to allow accused-appellant, who was confined at the city jail, to be
treated at the Baguio General Hospital to determine whether he should remain in jail or be transferred to some other
institution. The other prisoners were allegedly not comfortable with appellant because he had been exhibiting unusual
behavior. He tried to climb up the jail roof so he could escape and see his family.13 [Id., p. 49.]

As ordered by the trial court, the public prosecutor filed a Comment to the jail warden’s letter. He reiterated that the
mental condition of accused-appellant to stand trial had already been determined; unless a competent government
agency certifies otherwise, the trial should proceed; and the city jail warden was not the proper person to determine
whether accused-appellant was mentally ill or not.14 [Id., p. 56.]

In an order dated August 21, 1995, the trial court denied the "Demurrer to Evidence".15 [Id., pp. 62-63.] Accused-
appellant moved for reconsideration.

While the motion for reconsideration was pending, on February 26, 1996, counsel for accused-appellant filed a "Motion
to Confine Accused for Physical, Mental and Psychiatric Examination." Appellant’s counsel informed the court that
accused-appellant had been exhibiting abnormal behavior for the past weeks; he would shout at the top of his voice
and cause panic among the jail inmates and personnel; that appellant had not been eating and sleeping; that his co-
inmates had been complaining of not getting enough sleep for fear of being attacked by him while asleep; that once,
while they were sleeping, appellant took out all his personal effects and waste matter and burned them inside the cell
which again caused panic among the inmates. Appellant’s counsel prayed that his client be confined at the National
Center for Mental Health in Manila or at the Baguio General Hospital.16 [Id., pp. 92-93.] Attached to the motion were
two (2) letters. One, dated February 19, 1996, was from Inspector Pedrito Llopis, Jail Warden, Dagupan City,
addressed to the trial court judge informing him of appellant’s irrational behavior and seeking the issuance of a court
order for the immediate psychiatric and mental examination of accused-appellant.17 [Exhibit "16," Records, pp. 95
and 96.] The second letter, dated February 21, 1996, was addressed to Inspector Llopis from the Bukang Liwayway
Association, an association of inmates in the Dagupan City Jail. The letter, signed by the president, secretary and
adviser of said association, informed the jail warden of appellant’s unusual behavior and requested that immediate
action be taken against him to avoid future violent incidents in the jail.18 [Exhibit "15," Records, p. 94.]

On September 18, 1996, the trial court denied reconsideration of the order denying the "Demurrer to Evidence." The
court ordered accused-appellant to present his evidence on October 15, 1996.19 [Records, p. 75.19

Accused-appellant did not take the witness stand. Instead, his counsel presented the testimony of Dr. Maria Soledad
Gawidan,20 [TSN of November 26, 1996, pp. 2-28.20 a resident physician in the Department of Psychiatry at the
Baguio General Hospital, and accused-appellant’s medical and clinical records at the said hospital.21 [Exhibits "1" to
"14," Records, pp. 50, 107-128.21 Dr. Gawidan testified that appellant had been confined at the BGH from February
18, 1993 to February 22, 1993 and that he suffered from "Schizophrenic Psychosis, Paranoid Type schizophrenia,
paranoid, chronic, paranoid type;"22 [Exhibit "1," Records, p. 50.22 and after four (4) days of confinement, he was
discharged in improved physical and mental condition.23 [TSN of November 26, 1996.] The medical and clinical
records consisted of the following: (1) letter of Dr. Alfredo Sy, Municipal Health Officer, Calasiao, Pangasinan to Dr.
Jesus del Prado, Director, BGH referring accused-appellant for admission and treatment after a relapse of his violent
behavior;"24 [Exhibit "2," Records, p. 107.] (2) the clinical cover sheet of appellant at the BGH;25 [Exhibit "3,"
Records, p. 113.] (3) the consent slip of appellant’s wife voluntarily entrusting appellant to the BGH;26 [Exhibit "4,"
 63

Records, p. 114.] (4) the Patient’s Record;27 [Exhibit "5," Records, p. 115;] (5) the Consent for Discharge signed by
appellant’s wife;28 [Exhibit "6," Records, p. 116.] (6) the Summary and Discharges of appellant;29 [Exhibits "7" and
"14," Records, pp. 117 and 128.29 (7) appellant’s clinical case history;30 [Exhibit "8," Records, pp. 118-119.30 (8)
the admitting notes;31 [Exhibit "9," Records, pp. 120-121.31 (9) Physician’s Order Form;32 [Exhibit "10," Records,
pp. 122-123.] (10) the Treatment Form/ medication sheet;33 [Exhibit "11," Records, p. 123.] and (11) Nurses’
Notes.34 [Exhibits "12" and "13," Records, pp. 124-127.]

The trial court rendered a decision on June 23, 1997. It upheld the prosecution evidence and found accused-appellant
guilty of the crime charged and thereby sentenced him to death, viz:

WHEREFORE, the court finds accused Roberto Estrada y Lopez guilty beyond reasonable doubt of the crime of Murder
and in view of the presence of the aggravating circumstance of cruelty which is not offset by any mitigating
circumstance, the accused is sentenced to suffer the Death Penalty and to indemnify the heirs of the deceased in the
amount of P50,000.00.

The accused is ordered to pay the sum of P18,870.00 representing actual expenses and P100,000.00 as moral
damages.

SO ORDERED."35 [Records, p. 204.]

In this appeal, accused-appellant assigns the following errors:

I
"THE LOWER COURT ERRED IN FINDING ACCUSED-APPELLANT GUILTY OF THE CRIME CHARGED, DESPITE CLEAR
AND CONVINCING EVIDENCE ON RECORD, SUPPORTING HIS PLEA OF INSANITY.

II
THE LOWER COURT LIKEWISE ERRED IN HOLDING THAT THE STABBING TO DEATH OF ROGELIO MARARAC WAS
ATTENDED WITH TREACHERY AND AGGRAVATED BY CRUELTY, GRANTING ARGUENDO THAT ACCUSED-APPELLANT’S
PLEA OF INSANITY CANNOT BE CONSIDERED AN EXEMPTING CIRCUMSTANCE."36 [Brief for Accused-Appellant, p. 1,
Rollo, p. 36. ]

The basic principle in our criminal law is that a person is criminally liable for a felony committed by him.37 [Article 4,
Revised Penal Code.] Under the classical theory on which our penal code is mainly based, the basis of criminal liability
is human free will.38 [Reyes, Revised Penal Code, Bk. I, pp. 37-38 [1981 ed.]. ] Man is essentially a moral creature
with an absolutely free will to choose between good and evil.39 [V. Francisco, The Revised Penal Code, Bk. I, p. 4
[1958].] When he commits a felonious or criminal act (delito doloso), the act is presumed to have been done
voluntarily,40 [Please see Guevara’s Commentaries on the Revised Penal Code, 5th ed., pp. 5-6 [1957].] i.e., with
freedom, intelligence and intent.41 [Article 3, Revised Penal Code; see also Reyes, supra, at 39-40; People v.
Renegado, 57 SCRA 275, 286 [1974]; United States v. Ah Chong, 15 Phil. 488, 495 [1910].] Man, therefore, should
be adjudged or held accountable for wrongful acts so long as free will appears unimpaired.42 [Francisco, supra. ]

In the absence of evidence to the contrary, the law presumes that every person is of sound mind43 [Article 800, Civil
Code.] and that all acts are voluntary.44 [United States v. Gloria, 3 Phil. 333, 335; also cited in Guevara, 5th ed., p.
6; see also Francisco, supra, at 32. ] The moral and legal presumption under our law is that freedom and intelligence
constitute the normal condition of a person.45 [People v. Sia Teb Ban, 54 Phil. 52 [1929]; see People v. Renegado,
supra.] This presumption, however, may be overthrown by other factors; and one of these is insanity which exempts
the actor from criminal liability.46 [People v. Renegado, supra. ]

The Revised Penal Code in Article 12 (1) provides:

"ART. 12. Circumstances which exempt from criminal liability."The following are exempt from criminal liability:

1. An imbecile or an insane person, unless the latter has acted during a lucid interval.

"When the imbecile or an insane person has committed an act which the law defines as a felony (delito), the court
shall order his confinement in one of the hospitals or asylums established for persons thus afflicted, which he shall not
be permitted to leave without first obtaining the permission of the same court."

An insane person is exempt from criminal liability unless he has acted during a lucid interval. If the court therefore
finds the accused insane when the alleged crime was committed, he shall be acquitted but the court shall order his
confinement in a hospital or asylum for treatment until he may be released without danger. An acquittal of the
accused does not result in his outright release, but rather in a verdict which is followed by commitment of the accused
to a mental institution.47 [See People v. Austria, 260 SCRA 106, 121 [1996]; People v. Bonoan, 64 Phil. 87, 100
[1937]; United States v. Guendia, 37 Phil. 345-346 [1917].]

In the eyes of the law, insanity exists when there is a complete deprivation of intelligence in committing the act. Mere
abnormality of the mental faculties will not exclude imputability.48 [People v. Ambal, 100 SCRA 325, 333 [1980];
People v. Renegado, supra; People v. Cruz, 109 Phil. 288, 292 [1960]; People v. Formigones, 87 Phil. 658, 661
[1950] quoting Guevara’s Commentaries on the Revised Penal Code, 4th ed., pp. 42-43 citing the Decisions of the
Supreme Court of Spain interpreting Article 8, par. 1 of the old Penal Code of Spain.] The accused must be "so insane
as to be incapable of entertaining a criminal intent."49 [People v. Torres, 3 CAR 9 (2s) 43, cited in Padilla, Criminal
Law, Bk. I, pp. 340-341 [1987].] He must be deprived of reason and act without the least discernment because there
is a complete absence of the power to discern or a total deprivation of freedom of the will.50 [People v. Renegado,
supra, at 286; People v. Puno, 105 SCRA 151, 158-159 [1981]; People v. Formigones, supra, at 661. ]
 64

Since the presumption is always in favor of sanity, he who invokes insanity as an exempting circumstance must prove
it by clear and positive evidence.51 [People v. Renegado, supra, at 286; People v. Puno, supra, at 158.] nd the
evidence on this point must refer to the time preceding the act under prosecution or to the very moment of its
execution.52 [People v. Austria, 260 SCRA 106, 117 [1996]; People v. Puno, supra, at 158; United States v. Guevara,
27 Phil. 547, 550 [1914]. ]

To ascertain a person’s mental condition at the time of the act, it is permissible to receive evidence of the condition of
his mind within a reasonable period both before and after that time.53 [People v. Fausto, 113 Phil. 841, 845 [1961];
People v. Bonoan, 64 Phil. 87, 91 [1937] citing Wharton, Criminal Evidence, p. 684. ] irect testimony is not
required.54 [Id. ] either are specific acts of derangement essential to establish insanity as a defense.55 [People v.
Bonoan, supra, at 93-94. ] ircumstantial evidence, if clear and convincing, suffices; for the unfathomable mind can
only be known by overt acts. A person’s thoughts, motives, and emotions may be evaluated only by outward acts to
determine whether these conform to the practice of people of sound mind.56 [People v. Bonoan, supra, at 93; People
v. Austria, 260 Phil. 106, 117 [1996].

In the case at bar, there is no direct proof that accused-appellant was afflicted with insanity at the time he killed
Mararac. The absence of direct proof, nevertheless, does not entirely discount the probability that appellant was not of
sound mind at that time. From the affidavit of Crisanto Santillan57 [Exhibit "E," Records, pp. 6-7. ] attached to the
Information, there are certain circumstances that should have placed the trial court on notice that appellant may not
have been in full possession of his mental faculties when he attacked Mararac. It was highly unusual for a sane person
to go up to the altar and sit on the Bishop’s chair while the Bishop was administering the Holy Sacrament of
Confirmation to children in a jampacked cathedral. It goes against normal and ordinary behavior for appellant, without
sufficient provocation from the security guard, to stab the latter at the altar, during sacramental rites and in front of
all the Catholic faithful to witness. Appellant did not flee, or at least attempt to flee after the stabbing. He
nonchalantly approached the microphone and, over the public address system, uttered words to the faithful which no
rational person would have made. He then returned to the Bishop’s chair and sat there as if nothing happened.

Accused-appellant’s history of mental illness was brought to the court’s attention on the day of the arraignment.
Counsel for accused-appellant moved for suspension of the arraignment on the ground that his client could not
properly and intelligently enter a plea due to his mental condition. The Motion for Suspension is authorized under
Section 12, Rule 116 of the 1985 Rules on Criminal Procedure which provides:

"Sec. 12. Suspension of arraignment."The arraignment shall be suspended, if at the time thereof:

(a) The accused appears to be suffering from an unsound mental condition which effectively renders him unable to
fully understand the charge against him and to plead intelligently thereto. In such case, the court shall order his
mental examination and, if necessary, his confinement for such purpose.

(b) x x x.

The arraignment of an accused shall be suspended if at the time thereof he appears to be suffering from an unsound
mental condition of such nature as to render him unable to fully understand the charge against him and to plead
intelligently thereto. Under these circumstances, the court must suspend the proceedings and order the mental
examination of the accused, and if confinement be necessary for examination, order such confinement and
examination. If the accused is not in full possession of his mental faculties at the time he is informed at the
arraignment of the nature and cause of the accusation against him, the process is itself a felo de se, for he can neither
comprehend the full import of the charge nor can he give an intelligent plea thereto.58 [Pamaran, The 1985 Rules on
Criminal Procedure Annotated, p. 322 [1998].] he question of suspending the arraignment lies within the discretion of
the trial court.59 [In the landmark case of United States v. Guendia, 37 Phil. 337, 345 [1917], it was declared that:

"x x x [W]hen a judge of first instance is informed or discovers that an accused person is apparently in a present
condition of insanity or imbecility, it is within his discretion to investigate the matter, and if it be found that by reason
of any such affliction the accused could not, with the aid of his counsel, make a proper defense, it is the duty of the
court to suspend the proceedings and commit the accused to a proper place of detention until his faculties are
recovered. If, however, such investigation is considered unnecessary, and the trial proceeds, the court will acquit the
accused if he be found exempt from criminal responsibility by reason of imbecility or lunacy. In such case an order
for his commitment to an asylum should be made pursuant to the provisions of paragraph 2 of article 8 (1) of the
Penal Code [now par. 2, Article 12 (1)]."]And the test to determine whether the proceedings will be suspended
depends on the question of whether the accused, even with the assistance of counsel, would have a fair trial. This rule
was laid down as early as 1917, thus:

"In passing on the question of the propriety of suspending the proceedings against an accused person on the ground
of present insanity, the judges should bear in mind that not every aberration of the mind or exhibition of mental
deficiency is sufficient to justify such suspension. The test is to be found in the question whether the accused would
have a fair trial, with the assistance which the law secures or gives; and it is obvious that under a system of
procedure like ours where every accused person has legal counsel, it is not necessary to be so particular as it used to
be in England where the accused had no advocate but himself."60 [United States v. Guendia, 37 Phil. 337, 345
[1917]; also cited in Francisco, Criminal Procedure, p. 330 [1996] and Herrera, Remedial Law, vol. 4, pp. 384-385
[1992]. ] In the American jurisdiction, the issue of the accused’s "present insanity" or insanity at the time of the court
proceedings is separate and distinct from his criminal responsibility at the time of commission of the act. The defense
of insanity in a criminal trial concerns the defendant’s mental condition at the time of the crime’s commission.
"Present insanity" is commonly referred to as "competency to stand trial "61 [Pizzi, "Competency to Stand Trial in
Federal Courts: Conceptual and Constitutional Problems," 45 Univ.of Chicago Law Review 21-22 [1977]. The term
"present insanity" was used in the case of Youtsey v. United States, 97 F. 937 [1899] to distinguish it from insanity at
the time of commission of the offense. ] and relates to the appropriateness of conducting the criminal proceeding in
light of the defendant’s present inability to participate meaningfully and effectively.62 [21 Am Jur 2d, Criminal Law,
Sec. 97 [1981 ed.]; LaFave and Scott, Criminal Law, p. 333, 2d ed. [1986]; del Carmen, Criminal Procedure, Law and
 65

Practice, pp. 395-396, 3rd ed. [1995]; Ferdico, Criminal Procedure for the Criminal Justice Professional, pp. 55-56,
7th ed. [1999]. ] In competency cases, the accused may have been sane or insane during the commission of the
offense which relates to a determination of his guilt. However, if he is found incompetent to stand trial, the trial is
simply postponed until such time as he may be found competent. Incompetency to stand trial is not a defense; it
merely postpones the trial.63 [Id.]

In determining a defendant’s competency to stand trial, the test is whether he has the capacity to comprehend his
position, understand the nature and object of the proceedings against him, to conduct his defense in a rational
manner, and to cooperate, communicate with, and assist his counsel to the end that any available defense may be
interposed.64 [21 Am Jur 2d, "Criminal Law," Sec. 96; see list of cases therein; see also Raymond and Hall, California
Criminal Law and Procedure, p. 230 [1999]. ] This test is prescribed by state law but it exists generally as a statutory
recognition of the rule at common law.65 [Id; see also LaFave and Scott, supra, at 333; Weihofen, Mental Disorder as
a Criminal Defense, 430 [1954]. Long before legislation on competency to stand trial, the case of Youtsey v. United
States, 97 F. 937 [1899] recognized that a federal court had the same wide discretion established by the common law
when the question of present insanity was presented - United States v. Sermon, 228 F. Supp. 972, 982 [1964]. ]
Thus:

"[I]t is not enough for the x x x judge to find that the defendant [is] oriented to time and place, and [has] some
recollection of events, but that the test must be whether he has sufficient present ability to consult with his lawyer
with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of
the proceedings against him."66 [Dusky v. United States, 362 US 402, 4 L ed 2d 824, 825, 80 S Ct 788 [1960]. This
is commonly referred to as the "Dusky standard" - LaFave and Scott, supra, at 334-335, Note 26.]

There are two distinct matters to be determined under this test: (1) whether the defendant is sufficiently coherent to
provide his counsel with information necessary or relevant to constructing a defense; and (2) whether he is able to
comprehend the significance of the trial and his relation to it.67 [LaFave and Scott, supra.; see also Notes:
"Incompetency to Stand Trial," 81 Harvard Law Review, 454, 459 [Dec. 1967].] The first requisite is the relation
between the defendant and his counsel such that the defendant must be able to confer coherently with his counsel.
The second is the relation of the defendant vis-a-vis the court proceedings, i.e., that he must have a rational as well
as a factual understanding of the proceedings.68 [LaFave and Scott, supra, at 334. ]

The rule barring trial or sentence of an insane person is for the protection of the accused, rather than of the public.69
[State v. Swails, 223 La 751, 66 So. 2d 796, 799 [1953]. ] It has been held that it is inhuman to require an accused
disabled by act of God to make a just defense for his life or liberty.70 [In re Buchanan, 129 Cal. 360, 61 P. 1120,
1121 [1900]; State v. Swails, supra; see also Weihofen, Mental Disorder as a Criminal Defense, p. 429 [1954].] To
put a legally incompetent person on trial or to convict and sentence him is a violation of the constitutional rights to a
fair trial71 [Pate v. Robinson, 383 US 375, 15 L ed 2d 815, 822, 86 S Ct 836 [1966].] and due process of law;72 [21
Am Jur 2d, Criminal Law, Sec. 95 [198 ed.]; Youtsey v. United States, 97 Fed. 937, 940-946 [CA6 1899]; Drope v.
Missouri, 420 U.S. 162, 43 L ed 2d 103, 113-114, 95 S Ct 896 [1975]; Pate v. Robinson, 383 U.S. 815, 15 L ed 2d
815, 822, 86 S Ct 836 [1966]; see also Weihofen, supra, at 429-430. ] and this has several reasons underlying it.73
[Notes: "Incompetency to Stand Trial," 81 Harv. L. Rev. 454 [1967].] For one, the accuracy of the proceedings may
not be assured, as an incompetent defendant who cannot comprehend the proceedings may not appreciate what
information is relevant to the proof of his innocence. Moreover, he is not in a position to exercise many of the rights
afforded a defendant in a criminal case, e.g., the right to effectively consult with counsel, the right to testify in his
own behalf, and the right to confront opposing witnesses, which rights are safeguards for the accuracy of the trial
result. Second, the fairness of the proceedings may be questioned, as there are certain basic decisions in the course
of a criminal proceeding which a defendant is expected to make for himself, and one of these is his plea. Third, the
dignity of the proceedings may be disrupted, for an incompetent defendant is likely to conduct himself in the
courtroom in a manner which may destroy the decorum of the court. Even if the defendant remains passive, his lack
of comprehension fundamentally impairs the functioning of the trial process. A criminal proceeding is essentially an
adversarial proceeding. If the defendant is not a conscious and intelligent participant, the adjudication loses its
character as a reasoned interaction between an individual and his community and becomes an invective against an
insensible object. Fourth, it is important that the defendant knows why he is being punished, a comprehension which
is greatly dependent upon his understanding of what occurs at trial. An incompetent defendant may not realize the
moral reprehensibility of his conduct. The societal goal of institutionalized retribution may be frustrated when the force
of the state is brought to bear against one who cannot comprehend its significance.74 [Id., at 457-459; see also
LaFave and Scott, supra, at 334-335. ]

The determination of whether a sanity investigation or hearing should be ordered rests generally in the discretion of
the trial court.75 [21 Am Jur 2d, "Criminal Law," Sec. 103 [1981 ed.].] Mere allegation of insanity is insufficient.
There must be evidence or circumstances that raise a "reasonable doubt" 76 [The term "reasonable doubt" was used
in Drope v. Missouri, supra, at 118; see also LaFave and Scott, supra, Note 34, at 335-336.] or a "bona fide doubt"
77 [In Pate v. Robinson, supra, at 822, the court used the term "bona fide doubt" as to defendant’s competence; see
also LaFave and Scott, supra, Note 34, at 335-336.] as to defendant’s competence to stand trial. Among the factors a
judge may consider is evidence of the defendant’s irrational behavior, history of mental illness or behavioral
abnormalities, previous confinement for mental disturbance, demeanor of the defendant, and psychiatric or even lay
testimony bearing on the issue of competency in a particular case.78 [21 Am Jur 2d, "Criminal Law," Sec. 104 [1981
ed.]; Drope v. Missouri, supra, at 118; Pate v. Robinson, supra, at 822.]

In the case at bar, when accused-appellant moved for suspension of the arraignment on the ground of accused’s
mental condition, the trial court denied the motion after finding that the questions propounded on appellant were
intelligently answered by him. The court declared::

xxx

It should be noted that when this case was called, the Presiding Judge asked questions on the accused, and he
(accused) answered intelligently. As a matter of fact, when asked where he was born, he answered, in Tayug.
 66

The accused could answer intelligently. He could understand the questions asked of him.

WHEREFORE, for lack of merit, the Urgent Motion to Suspend Arraignment and to Commit Accused to Psychiatric Ward
at Baguio General Hospital, is hereby DENIED.

SO ORDERED."79 [Order dated January 6, 1995, Records, p. 16. ]

The fact that accused-appellant was able to answer the questions asked by the trial court is not conclusive evidence
that he was competent enough to stand trial and assist in his defense. Section 12, Rule 116 speaks of an unsound
mental condition that "effectively renders [the accused] unable to fully understand the charge against him and to
plead intelligently thereto." It is not clear whether accused-appellant was of such sound mind as to fully understand
the charge against him. It is also not certain whether his plea was made intelligently. The plea of "not guilty" was not
made by accused-appellant but by the trial court "because of his refusal to plead."80 [See Second Order of January
6, 1995, Records, p. 19.]

The trial court took it solely upon itself to determine the sanity of accused-appellant. The trial judge is not a
psychiatrist or psychologist or some other expert equipped with the specialized knowledge of determining the state of
a person’s mental health. To determine the accused-appellant’s competency to stand trial, the court, in the instant
case, should have at least ordered the examination of accused-appellant, especially in the light of the latter’s history
of mental illness.

If the medical history was not enough to create a reasonable doubt in the judge’s mind of accused-appellant’s
competency to stand trial, subsequent events should have done so. One month after the prosecution rested its case,
the Jail Warden of Dagupan City wrote the trial judge informing him of accused-appellant’s unusual behavior and
requesting that he be examined at the hospital to determine whether he should remain in jail or be placed in some
other institution. The trial judge ignored this letter. One year later, accused-appellant’s counsel filed a "Motion to
Confine Accused for Physical, Mental and Psychiatric Examination." Attached to this motion was a second letter by the
new Jail Warden of Dagupan City accompanied by a letter-complaint of the members of the Bukang Liwayway
Association of the city jail. Despite the two (2) attached letters,81 [The two (2) attached letters were submitted as
part of appellant’s evidence and were admitted by the trial court without objection from the public prosecutor --
Exhibits "15" and "16," Records, pp. 94-96.] the judge ignored the "Motion to Confine Accused for Physical, Mental
and Psychiatric Examination." The records are barren of any order disposing of the said motion. The trial court instead
ordered accused-appellant to present his evidence.82 [Order dated September 18, 1996, Records, p. 75. ]

Dr. Gawidan testified that the illness of accused-appellant, i.e., schizophrenia, paranoid type, is a "lifetime illness" and
that this requires maintenance medication to avoid relapses.83 [TSN of November 26, 1996, p. 27. In People v.
Austria, 260 SCRA 106, 116-117 [1996], "schizophrenia" was defined as a "chronic mental disorder," and that a
"paranoid type of schizophrenia" was characterized by unpleasant emotional aggressiveness and delusions of
persecution by the patient" quoting Encyclopedia and Dictionary of Medicine and Nursing, Miller-Keane, p. 860 and
Noyes’ Modern Clinical Psychiatry, 7th ed., pp. 380-381.] After accused-appellant was discharged on February 22,
1993, he never returned to the hospital, not even for a check-up.84 [Id. ]

Accused-appellant did not take the witness stand. His counsel manifested that accused-appellant was waiving the
right to testify in his own behalf because he was "suffering from mental illness."85 [See Order dated May 5, 1997,
Records, p. 184. ] This manifestation was made in open court more than two (2) years after the crime, and still, the
claim of mental illness was ignored by the trial court. And despite all the overwhelming indications of accused-
appellant’s state of mind, the judge persisted in his personal assessment and never even considered subjecting
accused-appellant to a medical examination. To top it all, the judge found appellant guilty and sentenced him to
death!

Section 12, Rule 116 of the 1985 Rules on Criminal Procedure speaks of a "mental examination."86 [The rule on
suspension of arraignment for mental examination of the accused’s mental condition first appeared in the 1985 Rules
on Criminal Procedure. The 1917 case of U.S. v. Guendia did not mention "mental examination."] The human mind is
an entity, and understanding it is not purely an intellectual process but depends to a large degree upon emotional and
psychological appreciation.87 [Notes: "Incompetency to Stand Trial," 81 Harv. L. Rev. 454, 470 [1967].] Thus, an
intelligent determination of an accused’s capacity for rational understanding ought to rest on a deeper and more
comprehensive diagnosis of his mental condition than laymen can make through observation of his overt behavior.
Once a medical or psychiatric diagnosis is made, then can the legal question of incompetency be determined by the
trial court. By this time, the accused’s abilities may be measured against the specific demands a trial will make upon
him.88 [Id; Gunther v. United States, 215 F. 2d 493, 496-497 (D.C. Cir. 1954)"While expert psychiatric judgment is
relevant to determine a defendant’s competence to stand trial, it is not controlling. Resolution of this issue requires
not only a clinical psychiatric judgment but also a judgment based upon a knowledge of criminal trial proceedings that
is peculiarly within the competence of the trial judge; see also United States v. Sermon, 228 F. Supp. 972, 976-977
( W.D. Mo. 1964).]

If the mental examination on accused-appellant had been promptly and properly made, it may have served a dual
purpose89 [See Pizzi, "Competency to Stand Trial in Federal Courts: Conceptual and Constitutional Problems, 45 Univ.
of Chicago L. Rev. 21, 38, Note 84 [1977]"dual purpose examinations are the customary practice in the U.S.] by
determining both his competency to stand trial and his sanity at the time of the offense. In some Philippine cases, the
medical and clinical findings of insanity made immediately after the commission of the crime served as one of the
bases for the acquittal of the accused.90 [People v. Austria, 260 SCRA 106 [1996]"the medical examination was
conducted 1 ½ years after the crime’s commission; People v. Bonoan, 64 Phil. 82 [1937]"the examinations were
conducted 1 to 6 months after the crime; People vs. Bascos, 44 Phil. 204 [1922] --the medical exam was conducted
immediately after commission of the crime.] The crime in the instant case was committed way back in December
1994, almost six (6) years ago. At this late hour, a medical finding alone may make it impossible for us to evaluate
appellant’s mental condition at the time of the crime’s commission for him to avail of the exempting circumstance of
 67

insanity.91 [See People v. Balondo, 30 SCRA 155, 160 [1969]. ] Nonetheless, under the present circumstances,
accused-appellant’s competence to stand trial must be properly ascertained to enable him to participate in his trial
meaningfully.

By depriving appellant of a mental examination, the trial court effectively deprived appellant of a fair trial. The trial
court’s negligence was a violation of the basic requirements of due process; and for this reason, the proceedings
before the said court must be nullified. In People v. Serafica,92 [29 SCRA 123 [1969].] we ordered that the joint
decision of the trial court be vacated and the cases remanded to the court a quo for proper proceeding. The accused,
who was charged with two (2) counts of murder and one (1) count of frustrated murder, entered a plea of "guilty" to
all three charges and was sentenced to death. We found that the accused’s plea was not an unconditional admission of
guilt because he was "not in full possession of his mental faculties when he killed the victim;" and thereby ordered
that he be subjected to the necessary medical examination to determine his degree of insanity at the time of
commission of the crime.93 [Id., at 129.]

IN VIEW WHEREOF, the decision of the Regional Trial Court, Branch 44, Dagupan City in Criminal Case No. 94-00860-
D convicting accused-appellant Roberto Estrada and sentencing him to death is vacated and the case is remanded to
the court a quo for the conduct of a proper mental examination on accused-appellant, a determination of his
competency to stand trial, and for further proceedings.

SO ORDERED.
 68

A.M. No. MTJ-99-1231 March 17, 2004

ANTONIO GAMAS and FLORENCIO SOBRIO, complainants,

vs.
JUDGE ORLANDO A. OCO, in his capacity as presiding judge of Municipal Trial Court, Polomolok, South
Cotabato and PNP SPO4 WILLIE ADULACION in his capacity as public prosecutor of MTC-Polomolok, South
Cotabato, respondents.

DECISION

CARPIO, J.:

The Case

This is a complaint for grave misconduct and gross ignorance of the law filed by complainants Antonio Gamas and
Florencio Sobrio ("complainants") against Judge Orlando A. Oco ("respondent judge"), former1 Presiding Judge of the
Municipal Trial Court, Polomolok, South Cotabato ("MTC Polomolok") and SPO4 Willie Adulacion ("respondent
Adulacion"), a "police prosecutor" in the MTC Polomolok.

The Facts

In their Complaint ("Complaint") and supporting affidavits, complainants allege that they are the accused in a case for
theft2 which, at the time material to this case, was pending in the sala of respondent judge. As respondent judge had
issued warrants for their arrest, complainants on 3 October 1996 went to the MTC Polomolok to post bail.
Complainants allege that respondent Adulacion enticed them to plead guilty to the charge, apply for probation, and
thus avoid imprisonment.

Respondent Adulacion, who had allegedly prepared a draft decision embodying his suggestion, conferred with
respondent judge, and handed the draft decision to respondent judge. After reading the document, respondent judge
signed it, told complainants "O, plead guilty man kamo" ("O, you're pleading guilty"), and handed the document to a
clerk. Respondent judge told the clerk to read the contents of the decision to complainants and to instruct them on
what to do. The clerk read the contents of the document to complainants and asked them to sign it. Complainants
signed the document upon respondent Adulacion's assurance that once the police apprehend the rest of the accused,3
the police will revive the case and respondent Adulacion will present complainants as "star witnesses." Complainants
later found out that what they signed was an Order4 ("3 October 1996 Order") finding them guilty of theft and
sentencing them each to imprisonment for six (6) months and one (1) day.

Finding the proceedings highly irregular, complainants sought the assistance of a lawyer. Upon motion of
complainants' counsel, respondent judge vacated the 3 October 1996 Order, ostensibly on the ground that
complainants had entered improvident guilty pleas. Respondent judge scheduled complainants' re-arraignment on 2
February 1997.

In the present complaint, complainants contend that respondent judge is administratively liable for rendering
judgment against them without the benefit of an arraignment and in violation of their right to be represented by
counsel.5

In his Answer ("Answer"), respondent judge denied complainants' allegations regarding the alleged procedural
irregularities in the issuance of the 3 October 1996 Order. According to respondent judge, the following transpired in
his sala on 3 October 1996:

2. On [the] session day [of October 3, 1996,] prosecutor Willie Adulacion with two men who turned out to be
complainants, Antonio Gamas and Florencio Sobrio approached me. It was Adulacion who talked. He stated that these
two have long pending warrants of arrest and they cannot afford to file P10,000.00 bail. They were charged of theft of
corn worth P4,500.00. x x x They were caught with two others who are their relatives hauling 3 or 4 tricycle loads of
corn cabs [sic]. Adulacion said that Gamas and Sobrio asked him to propose to the judge that Sobrio and Gamas
would plead guilty, but be meted the most minimum penalty, allowed probation and after which they be released [on]
their own recognizance because they cannot file their bailbonds.

3. Their predicament at that moment if I cannot attend to them immediately was that Mr. Adulacion [would] have to
lock them in jail because they surrendered. Gamas and Sobrio were lucky that instant because there was a lull in my
proceedings so they were able to see me.

4. As soon as Adulacion ha[d] articulated his piece of talk, in the hearing distance of Gamas and Sobrio because we
were face to face[,] I asked them if what Adulacion said was true and they replied yes.

5. That instant I knew that Sobrio and Gamas wanted things done instantly so they will not be locked in jail so I
ordered for the records from my staff. I read thoroughly while the three waited across the table, seated.

6. I gathered from my readings that [the] tricycle drivers with their tricycles were apprehended in flagrante delicto
carrying corn cabs [sic] right in the corn field of Dole. I asked why there were released with the tricycles inspite of this
apprehension but I did not get satisfactory answer from any of the 3. x x x

7. For me to instantly respond to their plea that they be allowed to plead guilty, meted the minimum sentence,
allowed probation and pending probation they be released on recognizance, they will solve their very immediate
 69

problem of being locked in jail because they had surrendered to Adulacion and they had no ready bails. Knowing the
course of action they wanted, I begun discoursing on their rights as accused. I told them of their right to counsel, to
be given free of charge if they cannot afford to solicit services of one, to confront the witnesses and cross examine
and because they had voluntarily articulated the desire to plead guilty, I estimated to them the probable penalty. I
also told them that they have [a] right to apply for probation but pending action they may be required to file
bailbonds but they begged that they be allowed to plead guilty but released pending probation proceedings.

8. After the discourse I read from them that they would like to really plead guilty and wanted instant action so that
they will not be in jail. As called for by the situation I arraigned them. I read to them in the dialect they understand
the accusation and informed them [of] the nature of the evidence arrayed but they pleaded guilty, always begging
that they be sentenced with the most minimum penalty, allowed probation and released immediately in their
recognizance.

xxx

11. [Thus], there was arraignment and that their plea of guilt was voluntary.

12. I wrote the decision in long hand in their very presence then handed it to the typist who typed it; then I read
silently what the typist typed and satisfied that what I wrote was correctly typed I signed [the 3 October 1996 Order],
then required my court interpreter to read the whole decision in the language they know. I looked while the
interpreter was reading. They looked satisfied that what the interpreter was reading corresponded with what they
proposed and what we discussed. After the reading, Gamas and Sobrio signed the decision.

13. It was I who wrote that decision, Mr. Adulacion cannot write that.

14. So it is clear that before deciding I arraigned Gamas and Sobrio upon their demand for instant solution to their
predicament. Before arraignment I counselled them of their rights and I even warned them the exact penalty I will
give them. There was no lawyer in attendance but the lawyer was their problem. I heard them saying that since they
were caught carrying the corn, a lawyer would not have much use, moreover they expressed they have no money to
pay for a lawyer. I argued that I can give them a PAO lawyer but they insisted they plead guilty so that all will get
done without jailing them that instant.6

Respondent judge claims that complainants assailed the validity of the 3 October 1996 Order to avoid serving their
sentences as they had allegedly violated the terms of their probation by failing to report to their probation officer.
Respondent judge maintains that there was no irregularity in the issuance of the 3 October 1996 Order. Respondent
judge adds that he decided to set aside his ruling merely out of compassion for complainants.7

We referred this matter to the Executive Judge of the Regional Trial Court of Polomolok, South Cotabato ("RTC
Polomolok") for investigation, report and recommendation.

The Investigating Judge's Findings

On 7 December 2000, Executive Judge Eddie Roxas ("Executive Judge Roxas") of RTC Polomolok submitted his Report
("Report"), finding respondent judge liable for simple neglect of duty and recommending the imposition of P10,000
fine on the latter. The Report reads in pertinent parts:

The basic issues to be resolved in this case x x x are as follows:

1. Whether or not complainants waived their right to counsel;

2. Whether or not complainants were properly arraigned; and

3. Whether or not the Order dated October 3, 1996 was prepared by Prosecutor Adulacion.

To resolve the first issue, it is noteworthy to state that in all criminal prosecution[s], the accused shall be entitled to
be present and defend in person and by counsel at every stage of the proceedings, that is from the arraignment to the
promulgation of the judgment (Sec. 1(c), Rule 115, Rules of Court). In relation to such statutory right of the accused,
the Court has been given the correlative duty to inform the accused of his right to counsel as expressly provided
under Section 6 of Rule 116 of the Rules of Court. The right to be assisted by counsel is deemed so important that it
has become a constitutional right and it is so implemented that under our rules of procedure it is not enough for the
court to apprise an accused of his right to have an attorney, but it is essential that the court should assign one de
oficio [counsel] for him if he so desires and he is poor, or grant him a reasonable time to procure an attorney of his
own.

xxx

In the case under investigation, it is clear that the herein complainants were not assisted by counsel when they were
allegedly arraigned by the Respondent Judge. Nowhere in the records of the case [was it shown] that the said
complainants were indeed assisted by their own counsel of choice, or a counsel de oficio from the time they were
allegedly arraigned up to the promulgation of their sentence. x x x

[S]uch fact has been admitted by the Respondent Judge, however, he alleged that the right to counsel had already
been waived by the complainants after they were apprised of the said right.

While it is true that the complainants were informed of their right to have counsel, however, it is not enough that said
complainants be simply informed of their right to counsel; they should also be asked whether they want to avail
 70

themselves of one and should be told that they can hire a counsel of their own choice if they desire to have one, or
that one can be provided to them at their own request.

xxx

[I]t is x x clear from the investigation conducted that the herein complainants did not satisfactorily waived their right
to counsel, for although they were mechanically informed and inadequately explained of the same, it's not a guaranty
that they have voluntarily, knowingly and intelligently waived such right. One cannot waive a right if in the first place
he does not know and understand such right. In that instance, there is no valid waiver to speak of.

xxx

With regard to the second issue, the undersigned Investigating Judge cannot be persuaded that on the very basic
procedure alone, involving just the mechanical process of arraignment outlined in Section 1 of Rule 116 of the Rules
of Court, there was the necessary degree of compliance by the Respondent Judge. Other considerations reveal how
flawed the supposed arraignment actually was. For instance, there is no showing that the complainants were afforded
with counsel, nor furnished a copy of the Amended Complaint with the list of witnesses against them in order that
they may duly prepare and comply with their responsibilities.

xxx

Not frequently indeed, an accused pleads guilty in the hope of a lenient treatment, or upon a bad advice or promises
of the authorities or parties of a lighter penalty should he admit guilt or express "remorse." It is the duty of the Judge,
like the herein Respondent Judge, to see to it that he does not labor under these mistaken impression. Failure or
omission on the part of the Respondent Judge to exercise caution against the demands of sheer speed in disposing of
cases, whether voluntarily or involuntarily, should not only be censured but also condemned. [A] Court cannot,
therefore, hold liberty and life forfeit, no matter how despicable the offender when effective protection for his basic
rights were denied because of poverty or ignorance.

For failure of the Respondent Judge to strictly follow and observe the mandatory provisions of Rule 116 of the Rules of
Court, it can therefore be gainfully said that the herein complainants were not properly arraigned last October 3,
1996.

Anent the last issue, the complainants failed to adduce sufficient evidence that it was indeed Police Prosecutor Willie
Adulacion who prepared the Order dated 3 October 1996. The Respondent Judge adequately proved that it was he
who wrote the subject Order duly substantiated and corroborated by the testimonies of the other witnesses. Such
proof has never been controverted by the complainants. Thus, the complainants claim that it was Police Prosecutor
Willie Adulacion who prepared the subject Order is without merit for [utter] lack of basis in truth and in fact.8

On 31 January 2001, we referred the Report to the Office of the Court Administrator ("OCA") for evaluation, report
and recommendation.

The OCA's Evaluation and Recommendation

In its Memorandum dated 11 May 2001, the OCA, while agreeing with the findings of Executive Judge Roxas, finds
respondent judge liable not for mere simple neglect of duty but for gross ignorance of the law. Accordingly, the OCA
recommends that respondent judge be fined P20,000. The OCA explains:

[R]espondent judge showed his ignorance not only of the scope of his authority to arraign the complainants but also
of the procedure to follow in conducting an arraignment. Moreover, respondent failed to properly apprise complainants
of their right to counsel and to provide them with counsel de oficio particularly during the arraignment, if they do not
have a counsel by reason of their poverty. This is a fundamental constitutional precept which respondent Judge is
expected to know. Where, as in this case, the law involved is simple and elementary, lack of conversance therewith
constitutes gross ignorance of the law.9

The Ruling of the Court

The Court finds the recommendation of the OCA well-taken.

Respondent Judge Failed to Properly Apprise

Complainants of their Right to Counsel

The Constitution mandates that "[I]n all criminal prosecutions, the accused shall x x x enjoy the right to be heard by
himself and counsel."10 Indeed, the accused has a right to representation by counsel from the custodial investigation
all the way up to the appellate proceedings.11 At the arraignment stage, Section 6 of Rule 116 of the Revised Rules of
Criminal Procedure provides:

SEC. 6. Duty of court to inform accused of his right to counsel. — Before arraignment, the court shall inform the
accused of his right to counsel and ask him if he desires to have one. Unless the accused is allowed to defend himself
in person or has employed counsel of his choice, the court must assign a counsel de oficio to defend him. (Emphasis
supplied)

Section 6 of Rule 116 means that:

[W]hen a defendant appears [at the arraignment] without [an] attorney, the court has four important duties to
comply with: 1 – It must inform the defendant that it is his right to have [an] attorney before being arraigned; 2 –
After giving him such information the court must ask him if he desires the aid of attorney; 3 – If he desires and is
 71

unable to employ attorney, the court must assign [an] attorney de oficio to defend him; and 4 – If the accused
desires to procure an attorney of his own the court must grant him a reasonable time therefor.12

Compliance with these four duties is mandatory.13 The only instance when the court can arraign an accused without
the benefit of counsel is if the accused waives such right and the court, finding the accused capable, allows him to
represent himself in person. However, to be a valid waiver, the accused must make the waiver voluntarily, knowingly,
and intelligently.14 In determining whether the accused can make a valid waiver, the court must take into account all
the relevant circumstances, including the educational attainment of the accused. In the present case, however,
respondent judge contends that complainants waived their right to counsel and insisted on their immediate
arraignment.

After reviewing the records and taking into account the circumstances obtaining in this case, we find that respondent
judge did not properly apprise complainants of their right to counsel prior to their arraignment. Consequently, there
was no basis for complainants' alleged waiver of such right.

In his Answer, respondent judge does not deny that when he "arraigned" complainants, no lawyer assisted the
complainants. However, respondent judge asserted that the attendance of a "lawyer was their (complainants')
problem." Respondent judge stated that before arraigning complainants, he gave a "discourse [of] their rights as
accused." Respondent judge also stated that since the police caught complainants in flagrante delicto, complainants
told him "a lawyer would not have much use." Respondent judge further stated that complainants "expressed that
they have no money to pay for a lawyer." Respondent judge informed complainants "he can give them a PAO lawyer"
if they so desired. However, respondent judge did not appoint a PAO lawyer despite being informed by complainants
that they could not afford a lawyer.

These do not amount to compliance with Section 6 of Rule 116. Respondent judge has the duty to insure that there is
no violation of the constitutional right of the accused to counsel. Respondent judge is grossly mistaken in saying that
securing a "lawyer was their (complainants') problem." Once the accused informs the judge that he cannot afford a
lawyer and the court has not allowed the accused to represent himself, or the accused is incapable of representing
himself, the judge has the duty to appoint a counsel de oficio to give meaning and substance to the constitutional
right of the accused to counsel.

Respondent judge knew that complainants are mere tricycle drivers. Respondent judge could not have expected
complainants to be conversant with the rules on criminal procedure.15 Respondent judge should not only have
followed Section 6 of Rule 116 to the letter, but should also have ascertained that complainants understood the import
of the proceedings. Respondent judge should not have proceeded with complainants' arraignment until he had
ascertained that complainants' waiver of their right to counsel was made voluntarily, knowingly, and intelligently and
that they were capable of representing themselves. As well observed by Executive Judge Roxas:

[Respondent judge] is not only duty-bound to tell the complainants the right to which they are entitled, he must also
explain their effects in practical terms, and in a language the complainants fairly understand. In other words, the right
of the complainants to be informed of their right to have a counsel implies a correlative obligation on the part of the
Respondent Judge to explain and contemplates an effective communication that results in understanding what is
conveyed. Since the right to be informed implies comprehension, the degree of explanation required will necessarily
vary, depending upon the education, intelligence and other relevant personal circumstances of the complainants.
Suffice it to say that a simpler and more lucid explanation is needed when the subject is unlettered as in this
particular case. Short of this, there is a denial of the right as it cannot truly be said that the herein complainants have
been informed of their rights to counsel.16 (Emphasis supplied)

The unfortunate but expected result of respondent judge's failure to comply strictly with Section 6 of Rule 116
surfaced during the investigation of this case. Complainants uniformly testified that they were unaware of the
meaning and consequence of their guilty pleas. Thus, complainant Gamas testified:

[ATTY. OCO]:

Q You did not want to plead guilty, of course?

[ANTONIO GAMAS]:

A At that time we do not know what plead guilty is. It is only now that I am aware.

xxx

Q When you arrived there at the office of Adulacion, what did Adulacion tell you, if he told you anything?

A He said that since you have no cashbond, you just pleaded guilty since you loaded stolen items.

Q So what was your reaction when Adulacion told you that?

A We were dumbfounded.

Q So you have no reaction at all when Adulacion told that you will plead guilty because you don't have cashbond?

A Nothing, because it was only lately that I came to know the meaning of plead guilty.

xxx

Q You did not understand the word "plead guilty?"

 72

A I do not know what is plead guilty.

Q You did not ask Adulacion, "what is that all about, Sir?"

A I did not ask anymore, because he also added that he will give us lighter sentence.

Q So because of that promise of Adulacion, you conformed with his suggestion that you will plead guilty?

A Because he said we are supposed to be star witnesses and he will apprehend the three others, so we pleaded
guilty.

Q The fact that you pleaded guilty, you were in conformity to the suggestion of Willie Adulacion?

A We cannot do anything at that time, we were dumbfounded.17 (Emphasis supplied)

Complainant Sobrio similarly testified:

[ATTY. OCO]:

Q What was the story that transpired between you and Adulacion?

[FLORENCIO SOBRIO]:

A Since we don't have any cashbond, we will plead guilty.

COURT:

xxx

Q So what was your answer if there was an answer?

A I said, "What is plead guilty, I don't understand that?"

Q Did Willie Adulacion explain to you what is plead guilty after you inquired from him?

A No.

Q After you asked him, what was the answer of Adulacion when you asked him what is that plead guilty?

A He said that we apply for probation so that he can help us.

Q He did not explain to you that by pleading guilty is admitting the charge against you?

A No.18 (Emphasis supplied)

These testimonies underscore the need for trial court judges to comply strictly with Section 6 of Rule 116. That the
accused, like complainants, insist on their arraignment without representation is no reason for a judge to accede
readily to their wishes. A judge has the duty to protect the accused in their rights, even against their wishes, when it
is clear, as in this case, that they are not in a position to validly exercise or waive those rights. As we had occasion to
observe:

[E]ven the most intelligent or educated man may have no skill in the science of the law, particularly in the rules of
procedure, and, without counsel, he may be convicted not because he is guilty but because he does not know how to
establish his innocence. And this can happen more easily to persons who are ignorant or uneducated. It is for this
reason that the right to be assisted by counsel is deemed so important that it has become a constitutional right and it
is so implemented that under our rules of procedure it is not enough for the Court to apprise an accused of his right to
have an attorney, it is not enough to ask him whether he desires the aid of an attorney, but it is essential that the
court should assign one de oficio for him if he so desires and he is poor or grant him a reasonable time to procure an
attorney of his own.19 (Emphasis supplied)

Indeed, by subsequently vacating his 3 October 1996 Order, respondent judge tacitly admits that complainants were
in no position to represent themselves during their arraignment, causing them to enter guilty pleas improvidently.

Respondent Judge's Arraignment of Complainants Highly Irregular

Section 1(a), Rule 116 of the Revised Rules of Criminal Procedure states:

Arraignment and plea; how made. – The accused must be arraigned before the court where the complaint or
information was filed or assigned for trial. The arraignment shall be made in open court by the judge or clerk by
furnishing the accused with a copy of the complaint or information, reading the same in the language or dialect known
to him, and asking him whether he pleads guilty or not guilty. The prosecution may call at the trial witnesses other
than those named in the complaint or information.

We have explained the rationale, requirements, and compliance of this rule in this manner:
 73

[S]ection 1(a) of Rule 116 requires that the arraignment should be made in open court by the judge himself or by the
clerk of court [1] furnishing the accused a copy of the complaint or information with the list of witnesses stated
therein, then [2] reading the same in the language or dialect that is known to him, and [3] asking him what his plea is
to the charge. The requirement that the reading be made in a language or dialect that the accused understands and
knows is a mandatory requirement, just as the whole of said Section 1 should be strictly followed by trial courts. This
the law affords the accused by way of implementation of the all-important constitutional mandate regarding the right
of an accused to be informed of the precise nature of the accusation leveled at him and is, therefore, really an avenue
for him to be able to hoist the necessary defense in rebuttal thereof. It is an integral aspect of the due process clause
under the Constitution.20

We subscribe to Executive Judge Roxas' finding that respondent judge similarly failed to comply with the requirements
of Section 1(a) of Rule 116. Complainants deny respondent judge's claim that he arraigned complainants by
"read[ing] to them [the information] in the dialect they understand and inform[ing] them [of] the nature of the
evidence arrayed [against them].21 However, there is no disputing that respondent judge failed to furnish
complainants a copy of the information with the list of the witnesses.

The procedural steps laid down in Section 1(a) of Rule 116 are not empty rituals that a judge can take lightly. Each
step constitutes an integral part of that crucial stage in criminal litigation "where the issues are joined x x x and
without which the proceedings cannot advance further."22 Respondent judge may have genuinely desired to spare
complainants the travails of being detained in jail, thus the rush in arraigning them, accepting their guilty pleas,
imposing a light sentence, and granting them probation. While well-intentioned, such conduct unjustifiably short-
circuited the mandatory arraignment procedure in Section 1(a) of Rule 116.

Respondent Judge's Acts and Omissions

Constitute Gross Ignorance of the Law

The rule is that when the law is so elementary, not to know it or to act as if one does not know it constitutes gross
ignorance of the law.23 The provisions of the Constitution on the right of the accused to counsel, and of the Revised
Rules on Criminal Procedure on the requirements for the arraignment of an accused, are basic. Every judge should
know the fundamental substantive and procedural requirements on arraignment and right to counsel.

By holding complainants' arraignment in the manner he conducted it, respondent judge is liable for this administrative
transgression. It may very well be that respondent judge knew the substantive and procedural rules in question. What
renders him liable is that he acted as if he did not.

On the Appropriate Imposable Penalty

Under Section 11(A), in relation to Section 8(8), of Rule 140 of the Rules of Court, as amended by A.M. No. 01-8-10-
SC, gross ignorance of the law or procedure is punishable by:

1. Dismissal from the service, forfeiture of all or part of the benefits as the Court may determine, and disqualification
from reinstatement or appointment to any public office, including government-owned or controlled corporations.
Provided, however, that the forfeiture of benefits shall in no case include accrued leave credits;

2. Suspension from the office without salary and other benefits for more than three (3) but not exceeding six (6)
months; or

3. A fine of more than P20,000.00 but not exceeding P40,000.00.

This schedule of penalties under A.M. No. 01-8-10-SC, which took effect on 1 October 2001, does not apply
retroactively.24 Accordingly, we sustain the OCA's recommendation that respondent judge be required to pay a fine of
P20,000, a penalty we have meted in similar administrative cases involving gross ignorance of the law.25

The Court has no Jurisdiction Over Respondent Adulacion

We refrain from passing upon the complaint against respondent Adulacion, as he is neither a member of the Bar26 nor
a judiciary employee. This Court's administrative jurisdiction extends only to members of the bar and over all courts
and their personnel.27 However, the dismissal is without prejudice to any action complainants may wish to file against
respondent Adulacion before the appropriate body.

WHEREFORE, we find respondent Orlando A. Oco, former Presiding Judge of the Municipal Trial Court, Polomolok,
South Cotabato, GUILTY of gross ignorance of the law. Accordingly, we FINE respondent Orlando A. Oco P20,000, to
be taken from his withheld retirement benefits. The complaint against respondent Willie Adulacion is DISMISSED.

SO ORDERED.
 74

[2000V1156E] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PEDRO SASAN BARIQUIT, CRISTITUTO
SASAN BARIQUIT, BASELINO LASCUÑA REPE, EMEGDIO LASCUÑA, JR., accused-appellant.2000 Oct 2En
BancG.R. No. 122733D E C I S I O N

PER CURIAM:

In many ways - three times to be exact-the prosecution in the instant case, through the testimony of state witness
Rogelio Lascuña, shatters the long-time aphorism that blood is thicker than water.

On appeal via automatic review is the decision [1] of the Regional Trial Court of Cebu City, Branch 18, in Criminal
Case No. CBU-35462, dated 30 June 1995, as modified by its order [2] dated 20 July 1995, finding accused-appellants
Pedro Bariquit, Cristituto Bariquit, and Emegdio Lascuña guilty of the special complex crime of Robbery with Homicide
and sentencing them to suffer the penalty of death.

In its order dated 20 July 1995, modifying its decision dated 30 June 1995, the trial court, while likewise finding co-
accused Baselino Repe guilty of the crime charged, Nonetheless appreciated the privileged mitigating circumstance of
minority on Repe’s favor, sentenced him to a reduced penalty of imprisonment of from six (6) years and one(1) day of
prision mayor, as minimum, to twelve (12) years and one (1) day of reclusion temporal, as maximum, and redeemed
him from the clutches of the supreme penalty of death. At the time of the commission of the crime, accused Repe
was seventeen years old.

The antecedent facts and proceedings in the instant case unfold.

On 28 February 1994, Assistant Provincial Prosecutor Adolfo Alcoseba filed a motion to drop accused Rogelio Lascuña
and Baselino Repe to be utilized as state witnesses, prompting the relatives of the deceased spouses Simon and
Corazon Hermida to file a vehement opposition, to which comment thereto was filed by the prosecution.

On 28 June 1994, Baselino Repe and brothers Pedro and Cristituto Bariquit, and brothers Emegdio and Rogelio
Lascuña, were charged, in a Second Amended Information, [3] with Robbery with Homicide, the accusatory portion of
which reads:

That on or about the 8th day of February 1994 at around 2:00 o' clock dawn, more or less, in the Municipality of
Naga, Province of Cebu, Philippines and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating and mutually helping one another, by means of violence against and intimidation upon
persons, with intent to gain, did then and there willfully, unlawfully and feloniously take, steal and carry away without
the consent of the owner thereof one (1) gold necklace and Three Thousand Pesos (P3,000.00) cash, Philippine
Currency, and one (1) blanket which were placed by the owner Spouses Simon Hermida and Corazon Manabat
Hermida on their wooden trunk, to the damage and prejudice of the said owner spouses Simon Hermida and Corazon
Manabat Hermida of said items and the cash aforestated; that by reason or on occasion of the said robbery and for
the apparent purpose of enabling the said accused to take, steal and carry away the aforestated personal belongings
of spouses Simon Hermida and Corazon Manabat Hermida, the herein accused, in pursuance of their conspiracy,
armed with bladed weapons, did then and there willfully, unlawfully and feloniously attack, assault, hack and stab the
spouses Simon Hermida and Corazon Manabat Hermida and inflicting upon them several injuries which caused the
said victims' death.

CONTRARY TO LAW."

In an order dated 14 July 1994, the trial court resolved to drop and discharge Rogelio Lascuña as "party-accused" in
Criminal Case No. CBU-35462, for the purpose of utilizing him as state witness.

Upon arraignment, accused-appellant Pedro Bariquit entered a plea of guilty while accused-appellants Cristituto
Bariquit, Emegdio Lascuña, Jr. and accused Baselino Repe, pleaded not guilty to the charge.

In the course of trial, however, accused-appellant Pedro Bariquit withdrew his earlier plea of guilty and, upon being
re-arraigned, entered anew a plea of not guilty.

In handing down the judgment of conviction, the trial court appreciated the presence of conspiracy and relied on facts
culled from the collective testimony of state witness Rogelio Lascuña and other prosecution witnesses namely: SPO3
Lino Tapao, PO1 Avelino Selloria, PO1 Kenneth Abella, PO1 Joel Faciolan, Dr. Florencio Ubas, and Emelia Hermida
Mangila. Further, the trial court considered the testimony of co-accused Baselino Repe for the purpose of establishing
the element of robbery in this special complex crime.

Records of the case reveal that state witness Rogelio Lascuña and all the accused-appellants are bound by close
kinship; thus, Rogelio and Emegdio Lascuña are brothers. In the same manner, Pedro and Cristituto Bariquit are
brothers. Moreover, Rogelio and Emegdio are nephews of Pedro and Cristituto. Baselino Repe, too, is a relative of
Rogelio. [4]

Notwithstanding kinship and in utter disregard of blood ties, state witness Rogelio Lascuña, who at the time of the
commission of the crime, was 14 years old, [5] recounted on the stand the details and circumstances which led to the
death of spouses Simon and Corazon Hermida in the hands of accused-appellants.

Around midnight of 07 February 1994, Rogelio was at their house situated in Pandan, Naga, Cebu when his uncle
Cristituto arrived thereat looking for Rogelio's older brother Emegdio. Rogelio told Cristituto that Emegdio and Pedro
were in the upper area gathering coconuts. [6] Cristituto requested Rogelio to accompany him there. [7] Upon
reaching the upper hill together with Cristituto, Rogelio saw Pedro, Emegdio and Baselino standing, not anymore
engaged in gathering coconuts. [8]
 75

Emegdio then asked his brother Rogelio if the latter would participate in executing a plan to rob a certain couple.
Rogelio refused and verbally manifested to Cristituto his intention to just go home. Cristituto and Emegdio told
Rogelio not to go home, fearing that Rogelio might reveal their devious plan to consummate the robbery.

On direct examination, Rogelio, likewise, testified that Pedro and Emegdio [9] threatened to kill Baselino in case the
latter would not participate in the robbery. According to Rogelio, Cristituto who was then armed with a bolo, even
held Baselino so as to prevent him from running away. [10]

On foot - Pedro, Emegdio, Cristituto, Baselino, and Rogelio trekked toward the house of Simon and Corazon Hermida
situated in Batwan, Cantaw-an, Naga, Cebu. Upon arrival at the vicinity of the Hermida's house around 1:00 AM of 08
February 1994, the group of five saw three persons engaged in a drinking spree inside the Hermida residence. The
interior of the house was illuminated by a fluorescent lamp while its exterior was lighted by a bulb. Notwithstanding
ample lumination, Rogelio testified that the three persons inside the Hermida's house were unknown to him; he did
not recognize them.
Accused-appellants, together with Rogelio, then waited near a mango tree which stood about 30 meters away from
the house. [11] Around 2:00 AM, the three persons drinking inside the house left. Thereafter, Pedro instructed
Rogelio to stay at a pig pen located 15-20 meters away from the Hermida house after-which, Pedro walked toward the
house [12] closely followed by Emegdio, Cristituto and Baselino.

Upon reaching the house, Pedro called Simon on the pretext that he would buy Kulafu and cigarettes. [13] However,
Simon told Pedro that only cigarettes were available; Pedro retorted that he would just buy cigarettes after which
Simon handed the cigarettes to Pedro.

Pedro then requested Simon for a light prompting the latter to open the door and accede to Pedro's request. Once
inside the house - and as soon as Simon lit Pedro's cigarette - Pedro suddenly pulled out his knife and lunged it on
Simon's neck. [14] While Simon was already lying prostrate on the floor, [15] Emegdio followed suit and hacked
Simon once on the neck with a bolo. Pedro then stabbed Simon's wife, Corazon, who tried to fight back. Corazon
managed "to pull a knife beside the wall," stabbing Pedro on his left palm. [16] However, Pedro stabbed Corazon
again which, eventually, caused the latter's death.

At the time of the stabbing, Cristituto stayed outside the house, [17] holding Baselino, with his left hand and a bolo
with his right hand. After witnessing the killing, Rogelio scampered toward his house and arrived thereat around 3:00
PM.

To bolster its case, the prosecution presented the testimony of Dr. Florencio Ubas, Medical Health Officer of Naga,
Cebu, who conducted and prepared the autopsy report of the deceased spouses Simon and Corazon Hermida.
According to Dr. Ubas, Corazon sustained thirteen (13) fatal wounds inflicted by a sharp-edged instrument [18] and a
sharp-pointed instrument, [19] while Simon sustained five (5) wounds.

On the stand, Dr. Ubas testified that almost all of the wounds inflicted on Corazon were fatal, since they caused loss
of blood. Further, Dr. Ubas explained that Simon's cause of death was similarly loss of blood due to hack wounds "at
the region of the neck [20] inflicted by a sharp-edged instrument. As a result of these fatal wounds, Simon's "major
vessels" as well as the victim's vital organs were injured, [21] causing his death.
As to the element of robbery, co-accused Baselino Repe, although denying participation in the commission of the
crime, narrated on the witness stand how the other accused-appellants stole the spouses' wooden trunk which
contained money, necklace and blanket. Accused Baselino also corroborated with Rogelio Lascuña's eyewitness
account of the killing of the Hermida spouses.

As to the robbery, accused Baselino testified that Pedro, after stabbing Corazon several times, went down the house.
[22] Emegdio then requested Cristituto to help carry the wooden trunk. [23] According to Baselino, as all of these
events transpired, Pedro guarded him with watchful eyes and grabbed his left hand. [24]

Subsequently, Cristituto and Emegdio brought the wooden trunk to the bushes. With Pedro's assistance, Cristituto
and Emegdio opened said trunk which contained money, necklace and a blanket. [25] Baselino was then ordered to sit
down beside the accused-appellants. [26] Thereafter, Pedro, Emegdio and Cristituto brought the money and necklace
to the house of Emegdio with Pedro holding Baselino by the hand. At Emegdio's house, Emegdio told the other
accused-appellants that they would divide the loot among themselves. Pedro, Emegdio and Cristituto then placed the
loot on the floor.

Around 5:00 AM, Baselino, by jumping downstairs, managed to escape and fled home. [27] In the same morning,
Pedro and Emegdio dropped by Baselino's house and tried to offer the necklace and part of the money to Baselino;
however, Baselino refused, prompting Pedro and Emegdio to just leave the money and necklace on the floor of
Baselino's house. [28] Before leaving the house, Pedro and Emegdio threatened to kill Baselino in case he squeals
about the robbery and the killing.

On the stand, Baselino claimed that he never touched the money offered by Pedro and Emegdio. He asservated his
innocence and categorically denied any participation in the commission of the crime. According to Baselino, his
presence at the crime scene was against his free will, inasmuch as the other accused-appellants were steadfast in
their threats to end his life if he were to divulge the crime and fail to participate, or join them in the execution thereof.

Similarly, the prosecution, in order to strengthen its bid for conviction, utilized the testimony of the police officers who
responded to and investigated the robbery-killing. Thus, SPO3 Lino Tapao testified that around 7:30 AM of 08
February 1994, Feliciano Reponte, the Barangay Captain of Cantau-an, Naga, Cebu, reported to the police the death
of the spouses Simon and Corazon Hermida. As a result, SPO3 Tapao responded to the alarm and proceeded to the
Hermida house, accompanied by P03 Boy Celoria, Dr. Florencio Ubas, Barangay Captain Feliciano Reponte and several
Barangay Tanods. [29]
 76

Upon arrival at the Hermida house, the police laid eyes on the bloodied bodies of Simon and Corazon Hermida
sprawled on the floor of the upper part of the victims' residence. [30] Further, the police recovered from the crime
scene an "electrical switch" and "bark of tree", both stained with blood. Moreover, inside a culvert at Pandan, the
police recovered a blanket. [31]

At the scene of the crime, the police interviewed relatives of the victims [32] and, from them, elicited information that
the possible assailants were accused-appellants Pedro Bariquit, Emegdio Lascuña, Cristituto Bariquit and accused
Baselino Repe. [33] Acting on such information, the police conducted a "hot pursuit" operation and proceeded to
Umlang where barangay tanods met Pedro, who eluded arrest.

Eventually, Pedro was arrested at Sitio Nangka, Tuyan, Cebu. From his possession, cash amounting to P480.50 [34]
and Japanese wartime money were recovered by the police. According to SPO3 Tapao, Pedro, upon his arrest, told
police that his hand was injured when Corazon resisted and stabbed him in the process. [35]

SPO3 Tapao further testified that Emegdio and Baselino were jointly arrested on 08 February 1994 at Sitio, Isabela,
Pangdan, Cebu. During investigation, Emegdio admitted that "they were together, but they were not the one(s) who
killed (the spouses)." [36]

Emegdio pointed to Pedro and Cristituto as the killers of Simon and Corazon Hermida. [37] Based on such
information, Emegdio and Baselino were brought to the police station for further investigation. [38] Thereafter, at the
police headquarters, Emegdio admitted that Rogelio was also one of their companions. [39] As a consequence, the
police returned to Isabela, Pandan, where they saw Rogelio and invited him to the police station for questioning. [40]

According to SPO3 Tapao, the police recovered P480.50 from Pedro; gold necklace and P800.00 from Baselino; [41]
and P800.00 from Emegdio. [42]
On direct examination, SPO1 Avelino Selloria testified to the effect that he recovered a knife from Baselino and that
the latter admitted that said knife was the weapon Baselino brought during the incident. [43] Notwithstanding,
Baselino claimed he had no participation in the commission of the crime. Further, Baselino allegedly told SPO1
Selloria that the money recovered from the former was Baselino's share of the proceeds of the crime.
According to SPO1 Selloria, he recovered P800.00 from Emegdio; [44] Emegdio allegedly got the P800.00 from the
"upper portion of his house", turned over said amount to Selloria and admitted that said cash was his share. [45]

Upon the arrest of Baselino and Emegdio, the police immediately commenced investigation of the two accused by
propounding questions regarding the commission of the crime even while they were still walking along the highway,
on their way to the police station. [46] (emphasis ours)
According to SPO1 Selloria, SPO4 Marcelino Perez, Jr. conducted further questioning of the accused "in the
investigation room" of the Police Station, to wit: [47]

"Q: Who conducted then the custodial investigation of this case?

A: SPO4 Marcelino Perez, Jr.

Q: Where was the accused investigated?

A: At the investigation room.

Q: And where was this investigation room located?

A: Inside the police station, in a certain room.

Q: When the accused were investigated, were you present?

A: We were there but we did not listen to the investigation.

Q: But you could see the accused being investigated?

A: No sir. That time, there were many people looking but the investigation room was closed in order that people will
not disturb the investigation.

Q: At the time when the accused was investigated, was there any lawyer who assisted him at the time of the
investigation?

Atty. Flores: Immaterial and irrelevant, Your Honor because as a matter of fact, Your Honor, also, Your Honor,
another ground is that witness was not around, he did not see whether there was a lawyer or not.

COURT: No. The ground for that is not correct, because the testimony witness stated (sic) he drive away some of the
onlookers.
Atty. Dela Victoria: He was not listening.

Court: Yes, he was not listening.

Atty. Dela Victoria: It was your theory that there was actually an investigation conducted?

COURT: There was an investigation, according to him, by an investigator and you asked him whether he was present
during that investigation. He said he was present, only he did not hear and see the investigation because the door
was closed, and you asked him whether at the time of the investigation, accused was assisted by a lawyer during that
custodial investigation.

(to witness):

Q: You did not see any lawyer there to assist the accused during investigation?
A: I did not notice.
 77

Q: You mean to say there was a lawyer but you did not notice?
A: I don't know whether there was lawyer at that time the investigation was conducted." (emphasis ours)

At the trial, the prosecution likewise presented PO1 Kenneth Abella and PO1 Joel Faciolan, who corroborated the
testimonies of SPO3 Lino Tapao and SPO1 Avelino Selloria.

As to the aspect of civil liability, Emelia Hermida Mangila, daughter of the deceased spouses, took the witness stand to
prove the funeral and burial expenses incurred as a result of the death of her parents, [48] which totaled P70,000.00.
The prosecution submitted in evidence a receipt issued by the Holy Spirit Funeral Home [49] covering said expenses.

On the other hand, the accused-appellants - with the exception of accused Baselino Repe who maintained that he had
no participation in the commission of the crime - raised the twin defenses of alibi and denial. Thus, accused-appellant
Emegdio Lascuña testified that around 2:00 AM of 08 February 1994, he was sleeping in his parents' house at Isabela,
Naga, Cebu, together with his siblings George and Estela, and his grandmother. On the stand, Emegdio admitted that
he and the deceased spouses were neighbors inasmuch as Simon and Corazon lived "just a kilometer away from
Emegdio's house. [50]

Emegdio added that he only acquired knowledge of the commission of the crime from his neighbor's aunt, Conchita
Tam-isan, who informed him thereof around 7:00 AM of 08 February 1994. Further, Emegdio declared that the travel
time from his house to the Hermida residence is approximately twenty (20) minutes. [51]

In the same manner, Cristituto Bariquit claimed innocence of the charge by interposing the defense of alibi. Cristituto
alleged that at the time of the commission of the crime, he was cooking rice in the house of his parents-in-law in Sitio
Isabela, [52] in preparation for his carpentry work for the day. He also testified that he witnessed the simultaneous
arrest of Baselino and Emegdio by the police on 08 February 1994.

For his defense, Pedro Bariquit, a former farm worker of the Hermida spouses, [53] relied similarly on alibi to
substantiate his claim that at the time of the commission of the crime, he was asleep with his wife and three children
in their house from 8:00 PM of 07 February to 08 February 1994. [54] Pedro testified that it would take an hour, by
foot, for a person to reach the Hermida residence from his house. He, too, is unaware of any reason on the part of
Rogelio to implicate him to the robbery-killing. [55]

On direct examination, Pedro admitted that the police recovered the amount of P600.00 from his possession.
Nonetheless, he denied knowing the owner of said amount, claiming that when Emegdio brought the money to his
house and gave it to his wife, he was not present. [56]

At the time of Pedro's arrest, he had a wound on his "knuckle and palm" which he allegedly sustained in an accident
with his "tri-sikad" on 07 February 1995.

Thus, on cross-examination: [57]

"Q: What cause (sic) that wound, stone or a knife when you stumbled?
A: Certain sharp object, it so happened when I stumbled, I accidentally placed my hand left palm on it (sic).

Q: And it penetrated your palm front and back?

Atty. Dela Victoria: Already answered.

COURT: For emphasis witness may witness.

Witness: Yes it penetrated in the other side (sic)."

Unlike the other accused-appellants, accused Baselino Repe negotiated a different road in his bid for acquittal. Thus,
while Pedro, Emegdio and Cristituto relied on alibi and denial, Baselino admitted, on the stand, his presence at the
crime scene, narrated the harrowing details of the robbery-killing, yet, denied participation in the execution thereof.

Hence, Baselino, in the course of trial, labored to establish that he was not part of the conspiracy and was only
coerced to join accused-appellants for fear of his life. According to Baselino, he was left with no choice inasmuch as
the other accused-appellants-the actual authors of the crime-threatened to kill him and, in fact, employed physical
force so that he would not leave the group and squeal about the crime.

On 30 June 1995, the RTC of Cebu City, Branch 18, in appreciating the presence of conspiracy, convicted accused-
appellants Pedro Bariquit, Emegdio Lascuña, Cristituto Bariquit and accused Baselino Repe of the special complex
crime of robbery with homicide and, accordingly, sentenced them to death.

On 20 July 1995, however, the trial court modified its decision as to the penalty imposed on accused Repe,
considering that he was a minor at the time of the commission of the crime. Repe opted not to appeal his conviction;
the conviction of the other accused-appellants, however, was elevated to this High Court via automatic review as a
consequence of the death penalty involved.

In the appellant's brief, [58] the following errors were ascribed to the trial court, to wit:

1. The trial court erred in giving weight and credit to the testimony of state witness Rogelio Lascuña despite lack of
corroboration in its material points.

2. The trial court erred in convicting accused-appellants despite failure of the prosecution to prove their guilt beyond
reasonable doubt.
 78

We find the guilty verdict of the trial court, as to accused-appellants Pedro Bariquit, Cristituto Bariquit and Emegdio
Lascuña, in order.
As to the first assigned error, accused-appellants in effect assail the propriety of the discharge of Rogelio Lascuña as
state witness on the ground that Rogelio's testimony was not corroborated in its material points, allegedly in violation
of Section 9, Rule 119 of the 1985 Rules on Criminal Procedure, which enumerates the requisites of a proper
discharge, to wit:

"a) There is absolute necessity for the testimony of the accused whose discharge is requested;

"b) There is no other direct evidence available for the proper prosecution of the offense committed, except the
testimony of said accused;

"c) The testimony of said accused can be substantially corroborated in its material points;

"d) Said accused does not appear to be the most guilty;

"e) Said accused has not at anytime been convicted of any offense involving moral turpitude." (emphasis ours)

On this score, we are of the firm view that the testimony of state witness Rogelio Lascuña was, in its material points,
substantially corroborated by the testimony of accused-appellant Baselino Repe, and the findings of Dr. Valentin Ubas,
who conducted and prepared the autopsy report of the victim spouses, and who testified thereon in the course of trial.
Verily, corroborative evidence refers to additional evidence of a different kind and character tending to prove the
same point. [59]

Notably, the respective testimonies of Baselino Repe and Dr. Ubas lends material corroboration to the eyewitness
account of Rogelio Lascuña, specifically as to the killing of the spouses Simon and Corazon. During trial, both Rogelio
and Baselino positively identified Pedro and Emegdio as the assailants who stabbed and hacked the victim spouses
with a knife and bolo on that fateful early morning of 08 February 1994. The witnesses also depicted how the
conspiracy was hatched and carried out, with accused-appellant Cristituto directly participating therein. Moreover, Dr.
Ubas testified that Simon and Corazon died as a result of several stab and hack wounds, inflicted by sharp-pointed
and sharp-edged instruments, on different parts of their bodies.

Beyond this, long-settled is the rule that the discharge of a defendant, in order that he may be called to testify against
his co-defendants, is within the sound discretion of the court; [60] the discharge of an accused in order that he may
be utilized as a state witness is expressly left to the sound discretion of the court. [61]

Indeed, the Court has the exclusive responsibility to see that the conditions prescribed by the rule exist. [62] For the
law seeks to regulate the manner of enforcement of the regulations in the sound discretion of the court. The grant of
discretion in cases of this kind under this provision was not a grant of arbitrary discretion to the trial courts, but such
is to be exercised with due regard to the correct administration of justice.

Under these circumstances, the trial court, in ordering the discharge of Rogelio Lascuña as state witness, merely
exercised its discretion in a manner consistent with the law and prevailing jurisprudence.

Even so, this Court has time and again declared that even if the discharged witness should lack some of the
qualifications enumerated by Section 9, Rule 119 of the Rules of Court, his testimony will not, for that reason alone,
be discarded or disregarded. In the discharge of a co-defendant, the court may reasonably be expected to err; but
such error in discharging an accused has been held not to be a reversible one. This is upon the principle that such
error of the court does not affect the competency and the quality of the testimony of the discharged defendant. [63]

Stated differently, the improper discharge, of an accused will not render inadmissible his testimony nor detract from
his competency as a witness. [64] (emphasis ours)

Once the discharge is ordered, any future development showing that any, or all, of the five conditions have not been
actually fulfilled, may not affect the legal consequences of the discharge, [65] and the admissibility and credibility of
his testimony if otherwise admissible and credible. [66] Any witting or unwitting error of the prosecution in asking for
the discharge, and of the court granting the petition, no question of jurisdiction being involved, cannot deprive the
discharged accused of the acquittal provided by the Rules, [67] and of the constitutional guarantee against double
jeopardy. [68]
As to the second assigned error, accused-appellants aver that the prosecution failed to establish their guilt beyond
reasonable doubt. In support thereof, accused-appellants question the admissibility of the testimonies of the police
officers who propounded questions and conducted the custodial investigation without apprising them of their
constitutional rights. Moreover, accused-appellants argue that certain physical evidence such as the blanket,
passbook, bolo, knife, necklace, Japanese money, wallet and cash are likewise inadmissible in evidence, inasmuch as
the same were recovered and obtained by the police as a result of accused-appellants' uncounselled admission.

After an exhaustive perusal of the records, we find inadmissible the uncounselled extra-judicial admission of accused-
appellants, as well as the testimonies of the police officers pertaining thereto, for having been obtained in clear
violation of accused-appellants' rights enshrined in the Constitution.

Section 12, Article III of the Constitution explicitly provides:

1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to
remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot
afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in
the presence of counsel.
 79

XXX XXX XXX

3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence
against him.

XXX

Verily, the mantle of protection under this constitutional provision covers the period from the time a person is taken
into custody for investigation of his possible participation in the commission of a crime, or from the time he is singled
out as a suspect in the commission of the crime, although not yet in custody. [69] Courts are not allowed to
distinguish between preliminary questioning and custodial investigation proper when applying the exclusionary rule.
Any information or admission given by a person while in custody - which may appear harmless or innocuous at the
time without the competent assistance of an independent counsel - should be struck down as inadmissible. [70]

It bears stressing that the rights under Section 12 are accorded to "any person under investigation for the commission
of an offense." An investigation begins when it is no longer a general inquiry into an unsolved crime but starts to focus
on a particular person as suspect, i.e., when the police investigator starts interrogating or exacting a confession from
the suspect in connection with an alleged offense. [71]

Thus, in People vs. Bolanos, [72] we considered inadmissible the verbal extra-judicial admission of accused-appellant
Ramon Bolanos on the ground that he, "being already under custodial investigation while on board the police patrol
jeep on the way to the Police Station where formal investigation may have been conducted, should have been
informed of his constitutional rights under Article, Section 12 of the 1987 Constitution.

In the recent case of People vs. Bravo, [73] where we applied the exclusionary rule, this Court, speaking through
Madame Justice Minerva Gonzaga-Reyes, aptly observed:

The accused was under arrest for the rape and killing of Juanita Antolin and any statement allegedly made by him
pertaining to his possible complicity in the crime without prior notification of his constitutional rights is inadmissible in
evidence. The policeman's apparent attempt to circumvent the rule by insisting that admission was made during an
`informal talk' prior to custodial investigation proper is not tenable."

Analogously in the present case, the police authorities, upon the arrest of Emegdio and Baselino, immediately asked
questions and conducted custodial investigation of said accused-appellants regarding their participation in the
commission of the crime, even while they were still walking along the highway on their way to the police station.
Records reveal that no counsel was present to assist Emegdio and Baselino during the interrogation nor was accused-
appellants informed of their rights under the Constitution.

During trial, SPO1 Avelino Selloria testified:

"Q: Along the way, as you said, you have conducted investigation on Repe. What questions did you ask Mr. Repe?
A: We asked both Repe and Emegdio as to who were their companions.

"Q: That was all you asked both of them? That was the only question you asked them?
A: We asked them who were their companions and where were they.

"Court:

"Q: And what was their answer?

"A: They mentioned, as their companions, Pedro Bariquit, Cristituto Bariquit and Roel Lascuña and they further
informed me they had come here already to Tuyan. Pedro and Roel were in Tuyan. They informed me that and (sic)
Roel was just in Isabela, Pangdan.

XXX XXX XXX

"Q: So aside from these 2 questions, no other questions were asked on Emegdio Lascuña and Baselino Repe?
"A: Yes sir.

"Q: What (was) their answer?

"A: We asked them why they robbed and killed.

"COURT:

"Q: What was their answer?

"A: They said they had planned the robbery.

"ATTY. SARINO:

"Q: Who said that?

"A: Emegdio.

"Q: It was only Emegdio who said that?

"A :Because it was him whom I asked, because we were walking along the road." (emphasis ours)

Moreover, on cross-examination, SPO1 Selloria stated: [74]

"A: From the area where we arrested them, we asked questions along the way.
 80

"Q: When you asked questions, the accused were already under your custody?
"A: Yes, sir. We were walking along.

"Q: Therefore, when under custody, that person is under custodial investigation?
"Atty. Flores: He is asking for opinion.

"COURT: Reform.

"Atty. Dela Victoria:

Q: What were the questions you asked to the accused?

"A: We asked whether they were the ones who robbed the couple, Simon Hermida and Corazon Hermida." (emphasis
ours)

To our mind, the interrogation conducted by the police on accused-appellants Emegdio and Baselino falls under the
term "custodial investigation" pursuant to prevailing jurisprudence and the provisions of Republic Act 7438. It may
not be amiss to observe that under R.A. 7438, the requisites of a "custodial investigation" are applicable even to a
person not formally arrested but merely "invited for questioning. [75]

In the case before us, it is of no moment that the questioning was done along the highway while Baselino and
Emegdio were being led by the police to the station. To put it differently, the place of interrogation is not at all a
reliable barometer to determine the existence or absence of Custodial investigation. Of striking material significance is
and the fact that the tone and manner of questioning by the police, as gleaned from the records, reveal that they
already presumed accused-appellants as the perpetrators of the crime and singled them out as the despicable authors
thereof.
Under these circumstances, the police authorities should have properly apprised them of their constitutionally-
protected rights, without which such uncounselled admissions or any other evidence obtained as a result thereof, or
proceeding therefrom - the putrid source - are deemed likewise inadmissible in evidence against the accused-
appellants.

In this jurisdiction, the burden to prove that an accused waived his rights to remain silent and the right to counsel
before making a confession under custodial investigation rests with the prosecution. It is also the burden-of the
prosecution to show that the evidence derived from confession is not tainted as "fruit of the poisonous tree." The
burden has to be discharged by clear and convincing evidence. [76]

In the instant case, the police officers were remiss in performing such duty and the prosecution equally failed to
discharge such burden. The records, indeed, are bereft of any finding that the police labored to properly apprise
accused-appellants of their rights. Further, no counsel was present when Emegdio and Baselino answered the
questions propounded to them by the police, both along the highway and at the police station.

In view of these constitutional infirmities attendant to the interrogation, we consider the extrajudicial admissions of
accused-appellants and the testimonies of the police officers in relation thereto inadmissible.

For, even if the confession contains a grain of truth, but it was made without the assistance of counsel, it becomes
inadmissible in evidence, regardless of the absence of coercion or even if it had been voluntarily given. [77]

Applying the exclusionary rule, we also declare inadmissible the money and necklace recovered from accused-
appellants for being tainted as "fruits of the poisonous tree." Clearly, the records show that such evidence were
derived or recovered from a polluted source, to wit, the accused-appellants' uncounselled admissions.

In People vs. Alicando, [78] this Court explicated the principle, to wit:

" We have not only constitutional ized the Miranda warnings in our jurisdiction. We also have adopted the libertarian
exclusionary rule known as the "fruit of the poisonous tree", a phrase minted by Mr. Justice Felix Frankfurter in the
celebrated case of Nardone vs. United States. [79] According to this rule, once the primary source (the 'tree') is
shown to have been unlawfully obtained, any secondary or derivative evidence (the 'fruit') derived from it is also
inadmissible. Stated otherwise, illegally seized evidence is obtained as a direct result of the illegal act, whereas the
fruit of the poisonous tree' is the indirect result of the same illegal act. The fruit of the poisonous tree' is at least once
removed from the illegally seized evidence but it is equally inadmissible. The rule is based on the principle that
evidence illegally obtained by the State should not be used to gain other evidence because the originally illegally
obtained evidence taints all evidence subsequently obtained."

Notwithstanding the inadmissibility of the uncounselled confessions and certain pieces of object evidence such as the
necklace and money, we still hold that the prosecution clearly proved the guilt of accused-appellants Pedro Bariquit,
Cristituto Bariquit and Emegdio Lascuña, beyond reasonable doubt. It is well to note that the eyewitness account of
Rogelio Lascuña, coupled with the testimony of accused Baselino Repe and further corroborated by the testimony and
findings of Dr. Valentin Ubas, suffice to convict accused-appellants of the crime charged.

In the instant case, the prosecution, through the testimony of state witness Rogelio Lascuña, as corroborated by the
recollection of Baselino Repe on the witness stand, indubitably established the presence of conspiracy among the
accused-appellants Pedro, Cristituto and Emegdio in the commission of the crime. Clearly, the acts of Pedro, Emegdio
and Cristituto before, during and after the commission of the crime confirm that the accused-appellants-- animated by
a joint purpose and corrupt design, that is to rob the Hermida spouses-acted in unison and concerted effort in the
execution of the planned robbery.
 81

Evidently, the meeting at the upper hill area, the hatching of the planned robbery, the stabbing, hacking and killing of
the Hermida spouses, the threats directed against Baselino Repe, the asportation of the wooden trunk containing the
valuables and the division of the loot -- taken collectively -- substantiate and lend a formidable factual basis to the
trial court's finding of conspiracy among Pedro, Emegdio and Cristituto. Crystalline is the rule that where conspiracy
is established, the precise modality or extent of participation of each individual conspirator becomes secondary and
the act of one is the act of all. The degree of actual participation in the commission of the crime is immaterial. [80]

Consequently, accused-appellants' defense of alibi must fail in view of the positive identification of Pedro, Emegdio
and Cristituto as the perpetrators of the crime. Alibi is one of the weakest defenses an accused can invoke, and the
courts have always looked upon it with caution, if not suspicion, not only because it is inherently unreliable, but
likewise because it is easy to fabricate. [81] To prosper, alibi must strictly meet the requirements of time and place.
[82] Thus, the accused must establish by clear and convincing evidence that he was so far away that it was not
possible for him to have been physically present at the locus criminis or its immediate vicinity at the time the crime
was committed.

Again, the accused-appellants miserably failed to discharge this burden. On the stand, Emegdio testified that his
house is merely twenty minutes away from the Hermida residence. [83] In the same vein, Pedro testified that a
person coming from his house could reach, by foot, the Hermida residence in about an hour.

To our mind, the short distances and negligible time between accused-appellants' residences and the place of the
commission of the crime negate their defense of alibi. Beyond this, alibi is unavailing in light of the positive
identification by credible witnesses who narrated the details of the killing and the robbery.

This Court affords ample weight and credence to the testimonies of state witnesses Rogelio Lascuña and Baselino
Repe. In doing so, we are not unmindful of the principle that the testimony of a co-accused turned state witness
should be received with great caution and should be carefully scrutinized. [84] Hence, we treated with circumspection
the gleaming fact that Rogelio Lascuña is a blood relative of accused-appellants. The records show that state witness
Rogelio Lascuña and accused-appellant Emegdio are brothers.

To be sure, this circumstance has not escaped our focus and attention, thus the rationale for the greater weight and
credibility accorded to Rogelio's narration. Human experience and common knowledge taught us that no brother
would ever thrust his own flesh and blood down the pit of death, fully cognizant of the irreversible repercussions of his
in-court testimony, were he not impelled by the strongest urge to speak the language of truth. Only a man cursed
with a depraved mind and a perverted heart could perpetrate such falsehood.

The trial court, in believing the version of facts as recollected by Rogelio Lascuña, found the state witness to have
spoken only one language-that of truth. Absent any clear showing that Rogelio was actuated by ill-motive and selfish
ends, and fortified by the fact that Rogelio is a close relative of accused-appellants, this Court a fortiori finds his
narration truthful and unblemished by falsehood.

Many times beyond numbering, we have enunciated the rule that to sustain a conviction for the crime of robbery with
homicide, it is imperative that the robbery itself be proven conclusively as any other essential element of a crime.
[85]

To this end, the prosecution clearly established that the purpose of the accused-appellants in killing the victim
spouses was to ensure the success of their previous devious plan-to rob Simon and Corazon Hermida. Thus, while it
may be true that the "homicide" preceded the taking of the victims' valuables, the killing of the spouses was
nonetheless perpetrated for the aim of eliminating an obstacle, removing an opposition to the robbery and doing away
with witnesses. Accordingly, the death of the victims arose by reason, or on occasion, of the robbery; the pieces of
evidence adduced and presented by the prosecution divulge a direct relation and intimate connection between the
asportation of the Hermida's valuables and their brutal death in the hands of the accused-appellants.

Hence, the conviction of accused-appellants Pedro Bariquit, Cristituto Bariquit and Emegdio Lascuña stands. As to the
aggravating circumstances, we hold that the trial court erred in appreciating the presence of treachery and band in
the commission of the felony.

In the present case, the accused-appellants were charged with, tried, and convicted for the crime of robbery with
homicide. In our jurisdiction, this special complex crime is primarily classified as a crime against property and not
against persons, homicide being a mere incident of the robbery with the latter being the main purpose and object of
the criminal. [86]

Under Article 14 of the Revised Penal Code, treachery is applicable only to crimes against persons. [87] Accordingly,
inasmuch as robbery with homicide is a crime against property and not against persons, treachery cannot be validly
considered in the present case.

Further, the aggravating circumstance of band may not be appreciated in the commission of the crime. Jurisprudence
is consistent that band is deemed aggravating whenever more than three armed malefactors shall have acted
together in the commission of the offense. [88] (emphasis ours)
In view of the fact that only three accused-appellants- Pedro Bariquit, Cristituto Bariquit and Emegdio Lascuña-
conspired and participated in the robbery-killing, band was not attendant in the commission of the felony.

Nevertheless, this Court considers the attendance of fraud, dwelling and evident premeditation in the commission of
the offense.

Fraud consists of insidious words or machinations used to induce the victim to act in a manner which would enable the
offender to carry out his design. [89] Hence, in a decided case where the defendants, upon the pretext of wanting to
buy a bottle of wine, induced the victim to go down to the lower story of his dwelling where the wine was stored,
 82

entered it when the door was opened to him, and there commenced the assault which ended in his death, [90] this
Court appreciated the aggravating circumstance of fraud. [91]

In the case before us, accused-appellants managed to enter the house of the victims-spouses by employing insidious
words and machinations, specifically by feigning to buy Kulafu and cigarettes from Simon. Pedro even requested
Simon to light his cigarette so that the latter would open the door and pave the way for the accused-appellants' entry
into the house.

Likewise, dwelling is deemed aggravating in the instant case where the crime was perpetrated in the house where the
Hermida Spouses lived, and without any provocation from the victims Simon and Corazon. [92]

Similarly, evident premeditation attended the commission of the felony. For evident premeditation to aggravate a
crime, there must be proof, as clear as the evidence of the crime itself, of the following elements: (1) the time when
the offender determined to commit the crime; (2) an act manifestly indicating that he clung to his determination; and
(3) sufficient lapse of time, between determination and execution, to allow himself to reflect upon the consequences
of his act [93] and to allow his conscience to overcome the resolution of his will had he desired to harken to its
warnings. [94]
The prosecution in the present case established by clear and convincing evidence, as to how and when the planned
robbery was hatched. As borne by the records, accused-appellants met at the upper hill area around 12:00 AM of 08
February 1994, where the planned robbery was agreed upon and visualized. Thereafter, accused-appellants, armed
with bladed weapons, trekked from the place of assemblage toward the victims' residence and, upon arrival at the
vicinity thereof, waited under a mango tree for approximately an hour before finally proceeding to the house to
consummate the robbery-killing.

Clearly, the lapse of two hours-from 12:00 AM to 2:00 AM-suffice to satisfy the third requisite and allow accused-
appellants to meditate and reflect upon the consequences of their criminal acts.

Thus, in one case, [95] we held that there was evident premeditation where two hours passed from the time the
accused clung to his determination to kill the victim, up to the actual perpetration of the crime. Moreover, evident
premeditation can be presumed where conspiracy is directly established [96], as in the instant case.

By way of civil indemnity, we affirm the trial court's award of P100,000.00 for the deaths of Simon and Corazon
Hermida. Further, we hold accused-appellants liable to pay the amount of P50,000.00 as moral damages pursuant to
Articles 2219(1) and 2206(3) of the Civil Code.

Considering that the crime was committed with the presence of three aggravating circumstances, [97] the amount of
P20,000.00 is also awarded as exemplary damages. Likewise, we grant an award of P70,000.00 as actual damages
representing the funeral and burial expenses incurred as a result of the death of Simon and Corazon Hermida,
inasmuch as the evidence on record supports such award. [98]

Four Justices of the Court have continued to maintain the unconstitutionality of Republic Act No. 7659 insofar as it
prescribes the death penalty; nevertheless, they submit to the ruling of the majority to the effect that the law is
constitutional and that the death penalty can be lawfully imposed in the case at bar.

Nonetheless, as to accused Baselino Repe, we hold that the prosecution failed to prove his guilt beyond reasonable
doubt and that the trial, court gravely erred in convicting Repe of the crime charged considering that the lower court
overlooked circumstances and misappreciated certain material facts, which, if weighed and treated with deeper
circumspection, would lead to Repe’s acquittal.

At this point, it bears emphasis that the basis of Repels conviction is riveted on the trial court's conclusion, albeit
erroneous, that accused Repe conspired and cooperated with the other accused-appellants in the commission of the
crime.

Certainly, a painstaking review and appraisal of the evidence disclose that, contrary to the trial court's findings, Repe
was not part of the conspiracy; the prosecution was remiss in establishing Repe’s overt acts clearly showing his
intention and participation in the criminal design. Needless to say, evidence of intentional participation is
indispensable. [99]

To this end, overt acts of the accused may consist of active participation in the actual commission of the crime itself,
or it may consist of moral assistance to his co-conspirators by being present at the time of the commission of the
crime, or by exerting moral ascendancy over the other co-conspirators by moving them to execute or implement the
conspiracy. [100]

On the contrary, Repe did not actively participate in the commission of the crime; Repe did not extend any moral
assistance to the other accused-appellants, as in fact, from the time of inception of the plan up to its execution, he
strongly refused to assent and join the malefactors or profit from the fruits of the crime. Moreover, Repe did not
exercise moral ascendancy over the accused-appellants, as he was even the one coerced and threatened to be
present at the crime scene, for fear of his own life.

By itself, mere presence at the scene of the crime at the time of its commission is not sufficient to establish
conspiracy. [101]

Likewise, the records are clear that the threats directed against Repe by the three accused-appellants-his relatives at
that were real and present. Accused-appellants Pedro, Emegdio and Cristituto were all armed with bladed weapons
and persistently and aggressively showed their resolve to harm and kill Repe if the latter would not participate or join
them at the scene of the crime; the chance for escape was hence-nil. Pitted against Pedro, Emegdio and Cristituto-
Repe was clearly no match.
 83

Stated differently, the compulsion exerted was of such nature and character as to leave him no genuine opportunity
for self-defense in equal combat or for escape. [102]

Even state witness Rogelio Lascuña testified that the accused-appellants hurled serious threats and employed physical
force against Repe. [103] Similarly, the records are bereft of any showing that Repe agreed with Pedro, Emegdio and
Cristituto to join the robbery, nor that Repe acted in a manner manifesting commonality of design and purpose. [104]
The fact that Repe and Emegdio were arrested together around 3:00 PM of 08 February 1994 does not militate against
Repe’s bid for acquittal inasmuch as the records reveal that it was Emegdio who approached and visited Repe in his
house to ask the latter for a "young coconut. [105] All told, without evidence-clear and convincing at that-as to how
accused Repe participated in the perpetration of the crime, conspiracy cannot be appreciated against him. [106]

Undoubtedly, a verdict of conviction must hinge itself on the strength of the prosecution's evidence, definitely not on
the weakness or impotency of the evidence for the defense. As the evidence for the prosecution fell short of the
quantum of proof required to prove Repe’s guilt beyond the peradventure of doubt, this Court is then duty-bound to
pronounce Repels acquittal and strike down the judgment of conviction upon him.

WHEREFORE, in view of the foregoing, accused Baselino Repe is hereby ACQUITTED on grounds of reasonable doubt
and ordered released immediately, unless he is being detained for some other legal cause.

As to the accused-appellants Pedro Bariquit, Cristituto Bariquit and Emegdio Lascuña, this Court finds them guilty of
the special complex crime of Robbery with Homicide and hereby sentences each of them to suffer the supreme
penalty of death.

In addition, accused-appellants Pedro Bariquit, Cristituto Bariquit and Emegdio Lascuña are ordered to pay jointly and
severally the heirs of Simon and Corazon Hermida the amount of P100,00.00 as civil indemnity; P50,000.00 as moral
damages; P20,000.00 as exemplary damages; and P70,000.00 as actual damages.

Pursuant to Section 25 of Republic Act No. 7659, amending Article 83 of the Revised Penal Code, upon finality of this
decision, let the records of this case be forwarded to the Office of the President for possible exercise of the pardoning
power.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena,
Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.

\---!e-library! 6.0 Philippines Copyright © 2000 by Sony Valdez---/

([2000V1156E] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PEDRO SASAN BARIQUIT, CRISTITUTO SASAN
BARIQUIT, BASELINO LASCUÑA REPE, EMEGDIO LASCUÑA, JR., accused-appellant., G.R. No. 122733, 2000 Oct 2, En
Banc)
 84

[A.M. OCA No. 03-1800-RTJ. November 26, 2004]

Chief State Prosecutor JOVENCITO R. ZUÑO, complainant, vs. Judge ALEJADRINO C. CABEBE, Regional
Trial Court, Branch 18, Batac, Ilocos Norte, respondent.

DECISION

SANDOVAL-GUTIERREZ, J.:

The instant administrative case stemmed from the sworn complaint[1] dated January 15, 2003 of Chief State
Prosecutor Jovencito R. Zuño of the Department of Justice, against Judge Alejandrino C. Cabebe,[2] then Presiding
Judge, Regional Trial Court, Branch 18, Batac, Ilocos Norte. The charges are knowingly rendering an unjust
judgment, gross ignorance of the law and partiality.

In his complaint, Chief State Prosecutor Zuño alleged that Criminal Case No. 3950-18 for illegal possession of
prohibited or regulated drugs was filed with the Regional Trial Court, Branch 18, Batac, Ilocos Norte against Rey
Daquep Arcangel, Victorino Gamet Malabed, William Roxas Villanueva, all police officers, Jocelyn Malabed Manuel and
Pelagio Valencia Manuel. Upon arraignment, all the accused, assisted by their counsel de parte, pleaded not guilty to
the crime charged. On March 14, 2001, the prosecution filed with this Court a petition for change of venue but was
denied in a Resolution dated August 13, 2001.[3] On October 8, 2001, the accused filed a motion for reconsideration.
[4] In the meantime, the proceedings before respondent’s court were suspended.

On May 6, 2002, the accused filed a motion to dismiss invoking as ground the right of the accused to a speedy trial.
On November 5, 2002, respondent judge motu propio issued an Order[5] granting bail to the accused, fixing the bail
for each at P70,000.00 in cash or property bond at P120,000.00, except for accused Evelyn Manuel whose bail was
fixed at P20,000.00 in cash. Respondent judge issued the Order without the accused’s application or motion for bail.

The prosecution then filed a motion for reconsideration.[6] Instead of acting thereon, respondent judge issued an
order inhibiting himself from further proceeding with the case, realizing that what he did was patently irregular.
Complainant thus prays that respondent judge be dismissed from the service with forfeiture of all benefits and be
disbarred from the practice of law.

In his comment,[7] respondent denied the charges. While admitting that he issued the Order dated November 5,
2002 granting bail to the accused without any hearing, “the same was premised on the constitutional right of the
accused to a speedy trial.” There was delay in the proceedings due to complainant’s frequent absences and failure of
the witnesses for the prosecution to appear in court, resulting in the cancellation of the hearings. The prosecution did
not object to the grant of bail to the accused.[8] He added that the administrative complaint filed against him is
purely harassment. It is not the appropriate remedy to question his alleged erroneous Order. Accordingly, and
considering his forty (40) years of government service, he prays that the administrative complaint be dismissed.

On March 26, 2003, respondent judge compulsorily retired.

In his Report dated July 7, 2003, Deputy Court Administrator Jose P. Perez found respondent judge liable for gross
ignorance of the law and recommended that a fine of P20,000.00 be imposed upon him, with a stern warning that a
repetition of the same or similar offense will be dealt with more severely.

In our Resolution[9] dated August 25, 2003, we directed that the complaint be re-docketed as a regular
administrative matter and required the parties to manifest whether they are submitting the case for resolution on the
basis of the pleadings filed. Both parties submitted the required manifestations that they are submitting the case for
decision on the basis of the records.

In Docena-Caspe vs. Judge Arnulfo O. Bugtas,[10] we held that jurisprudence is replete with decisions on the
procedural necessity of a hearing, whether summary or otherwise, relative to the grant of bail, especially in cases
involving offenses punishable by death, reclusion perpetua, or life imprisonment, where bail is a matter of discretion.
Under the present Rules, a hearing is mandatory in granting bail whether it is a matter of right or discretion.[11] It
must be stressed that the grant or the denial of bail in cases where bail is a matter of discretion, hinges on the issue
of whether or not the evidence of guilt of the accused is strong, and the determination of whether or not the evidence
is strong is a matter of judicial discretion which remains with the judge. In order for the latter to properly exercise his
discretion, he must first conduct a hearing to determine whether the evidence of guilt is strong.[12] In fact, even in
cases where there is no petition for bail, a hearing should still be held.[13]

There is no question that respondent judge granted bail to the accused without conducting a hearing, in violation of
Sections 8 and 18, Rule 114 of the Revised Rules of Criminal Procedure, quoted as follows:

“Sec. 8. Burden of proof in bail application. – At the hearing of an application for bail filed by a person who is in
custody for the commission of an offense punishable by death, reclusion perpetua, or life imprisonment, the
prosecution has the burden of showing that evidence of guilt is strong. The evidence presented during the bail
hearing shall be considered automatically reproduced at the trial but, upon motion of either party, the court may recall
any witness for additional examination unless the latter is dead, outside the Philippines, or otherwise unable to
testify.”

“Sec. 18. Notice of application to prosecutor. – In the application for bail under section 8 of this Rule, the court must
give reasonable notice of the hearing to the prosecutor or require him to submit his recommendation. (18a)”

In Cortes vs. Catral,[14] we laid down the following rules outlining the duties of the judge in case an application for
bail is filed:
 85

1. In all cases whether bail is a matter of right or discretion, notify the prosecutor of the hearing of the application
for bail or require him to submit his recommendation (Section 18, Rule 114 of the Revised Rules of Criminal
Procedure);

2. Where bail is a matter of discretion, conduct a hearing of the application for bail regardless of whether or not
the prosecution refuses to present evidence to show that the guilt of the accused is strong for the purpose of enabling
the court to exercise its sound discretion (Section 7 and 8, id.);

3. Decide whether the guilt of the accused is strong based on the summary of evidence of the prosecution;

4. If the guilt of the accused is not strong, discharge the accused upon the approval of the bail bond (Section 19,
id.); otherwise the petition should be denied.

Based on the above-cited procedure, after the hearing, the court’s order granting or refusing bail must contain a
summary of the evidence of the prosecution and based thereon, the judge should formulate his own conclusion as to
whether the evidence so presented is strong enough to indicate the guilt of the accused.[15]

Respondent judge did not follow the above Rules and procedure enumerated in Cortes.[16] He did not conduct a
hearing before he granted bail to the accused, thus depriving the prosecution of an opportunity to interpose objections
to the grant of bail. Irrespective of his opinion on the strength or weakness of evidence to prove the guilt of the
accused, he should have conducted a hearing and thereafter made a summary of the evidence of the prosecution.
The importance of a bail hearing and a summary of evidence cannot be downplayed, these are considered aspects of
procedural due process for both the prosecution and the defense; its absence will invalidate the grant or denial of bail.
[17]

Neither did respondent require the prosecution to submit its recommendation on whether or not bail should be
granted.

He maintains that the prosecution did not object to the grant of bail to the accused, hence, he cannot be held
administratively liable for not conducting a hearing.

In Santos vs. Ofilada,[18] we held that the failure to raise or the absence of an objection on the part of the
prosecution in an application for bail does not dispense with the requirement of a bail hearing. Thus –

“Even the alleged failure of the prosecution to interpose an objection to the granting of bail to the accused will not
justify such grant without hearing. This Court has uniformly ruled that even if the prosecution refuses to adduce
evidence or fails to interpose any objection to the motion for bail, it is still mandatory for the court to conduct a
hearing or ask searching and clarificatory questions from which it may infer the strength of the evidence of guilt, or
lack of it, against the accused. Where the prosecutor refuses to adduce evidence in opposition to the application to
grant and fix bail, the court may ask the prosecution such questions as would ascertain the strength of the State’s
evidence or judge the adequacy of the amount of bail. Irrespective of respondent judge’s opinion that the evidence of
guilt against the accused is not strong, the law and settled jurisprudence demand that a hearing be conducted before
bail may be fixed for the temporary release of the accused, if bail is at all justified.

Thus, although the provincial prosecutor had interposed no objection to the grant of bail to the accused, the
respondent judge therein should nevertheless have set the petition for bail for hearing and diligently ascertain from
the prosecution whether the latter was not in fact contesting the bail application. In addition, a hearing was also
necessary for the court to take into consideration the guidelines set forth in the then Section, 6, Rule 114 of the 1985
Rules of Criminal Procedure for the fixing of the amount of the bail, Only after respondent judge had satisfied himself
that these requirements have been met could he then proceed to rule on whether or not to grant bail.”

Clearly, therefore, respondent judge cannot seek refuge on the alleged absence of objection on the part of the
prosecution to the grant of bail to the accused.

Respondent judge contends that the accused were entitled to their right to a speedy trial, hence, he granted bail
without a hearing. He blames the prosecution for the delay.

Respondent’s contention is bereft of merit. There is no indication in the records of the criminal case that the
prosecution has intentionally delayed the trial of the case. Even assuming there was delay, this does not justify the
grant of bail without a hearing. This is utter disregard of the Rules. The requirement of a bail hearing has been
incessantly stressed by this Court. In the same vein, the Code of Judicial Conduct enjoins judges to be conversant
with the law and the Rules and maintain professional competence; and by the very nature of his office, should be
circumspect in the performance of his duties. He must render justice without resorting to shortcuts clearly uncalled
for. Obviously, respondent failed to live up to these standards.

It bears reiterating that respondent is being charged with knowingly rendering unjust judgment, gross ignorance of
the law and partiality. We ruled that in order to be held liable for knowingly rendering an unjust judgment or order,
respondent judge must have acted in bad faith, with malice or in willful disregard of the right of a litigant.[19] A
perusal of the records, specifically the assailed Order, hardly shows that any of these incidents has been proven.

On the charge of gross ignorance of the law, suffice it to say that to constitute such infraction, it is not enough that
the subject decision, order or actuation of the judge in the performance of his official duties is contrary to existing law
and jurisprudence but, most importantly, he must be moved by bad faith, fraud, dishonesty or corruption. [20] In
Guillermo vs. Judge Reyes, Jr.[21] we categorically held that “good faith and absence of malice, corrupt motives or
improper considerations are sufficient defenses in which a judge charged with ignorance of the law can find refuge.” In
Villanueva-Fabella vs. Lee,[22] we ruled that “a judge may not be held administratively accountable for every
erroneous order he renders. For liability to attach for ignorance of the law, the assailed order of a judge must not
 86

only be erroneous; more important, it must be motivated by bad faith, dishonesty, hatred or some other similar
motive.” Complainant, having failed to present positive evidence to show that respondent judge was so motivated in
granting bail without hearing, can not be held guilty of gross ignorance of the law.

As to the charge of partiality, we find no evidence to sustain the same. It is merely based on complainant’s
speculation. Mere suspicion that a judge is partial is not enough. There should be clear and convincing evidence to
prove this charge. The only exception to the rule is when the error is so gross and patent as to produce an ineluctable
inference of bad faith and malice,[23] which are not present here.

We thus find respondent judge guilty of violation of Supreme Court Rules, specifically Rule 114 of the Revised Rules of
Criminal Procedure on the grant of bail. This administrative offense is considered a less serious charge, punishable
under Section 9(4) and Section 11(B-2), Rule 140 of the same Rules, thus:

“Sec. 9. Less Serious Charges. – Less serious charges include:

x x x

“4. Violation of Supreme Court Rules, directives, and circulars;

x x x

“Sec. 11. Sanctions. – x x x

“B. If the respondent is guilty of a less serious charge, any of the following sanctions shall be imposed:

1. Suspension from office without salary and other benefits for not less than one (1) nor more than three (3)
months; or

2. A fine of more than P10,000.00 but not exceeding P20,000.00.”

WHEREFORE, respondent Judge Alejandrino C. Cabebe, now retired, is found guilty of violation of Supreme Court
Rules and is hereby fined in the sum of Twenty Thousand Pesos (P20,000.00), the same to be deducted from his
retirement benefits.

SO ORDERED.
 87

[2000V1200] RENE S. ONG, MAGDALENO B. ALBARRACIN, JR., PETRONIO C. AALIWIN and J. O. NERIT,
petitioners, vs. PEOPLE OF THE PHILIPPINES and COURT OF APPEALS, respondents.2000 Oct 93rd
DivisionG.R. No. 140904D E C I S I O N

MELO, J.:

Before us is a petition for certiorari and prohibition with prayer for issuance of a writ of preliminary injunction, wherein
petitioners, accused before the Metropolitan Trial Court (MeTC) of Makati City, charge said court with having
committed grave abuse of discretion when it denied their demurrer to evidence.

The facts of the case are as follows:

On February 8, 1993, Zeny Alfonso purchased a paper bag-making machine for P362,000.00 from the Solid Cement
Corporation. When she went to the corporation’s Antipolo plant, however, no machine could be given to her, it
appearing that the machine sold had been earlier mortgaged to a creditor, who, unfortunately, refused to release the
mortgage. Herein petitioners offered to return the money paid by Mrs. Alfonso but she refused and instead filed a
criminal complaint with the City Prosecutor of Makati.

The City Prosecutor dismissed the complaint on the ground that liability, if any, would be civil and not criminal in
nature. This dismissal was, however, reversed by the Department of Justice.

On October 18, 1994, an Information for estafa and other deceit based on Article 318 of the Revised Penal Code was
filed with the MeTC of Makati City. After pre-trial, the prosecution presented as its sole witness complainant Zeny
Alfonso. The prosecution then formally offered its documentary evidence and rested its case. The admissibility of
these documents was questioned by petitioners.

The disputed documents are alleged photo copies of (1) the approval of the sale of the paper bag-making machine
supposedly signed by petitioners; (2) an official receipt of Solid Cement Corporation evidencing payment of
P362,000.00; (3) a plant gate pass from one J.P. Valencia dated February 16, 1993 for entry into the Antipolo
compound and pull-out of the machine; (4) a letter from one Atty. Maximino Robles demanding delivery of the
machine to the complainant; (5) a letter of Solid Cement’s Rene S. Ong offering to return P362,000.00 plus interest;
(6) a letter from Atty. Robles informing Solid Cement of complainant’s refusal to accept the refund of the
P362,000.00; (7) a memorandum from five officers or employees of Solid Cement Corporation recommending the sale
of the paper bag-making-machine; (8) another gate-pass dated December 3, 1992 from one Ramon Enriquez allowing
the pull out of the machine; (9) a letter from one Lorenzo P. Ligot thanking Solid Cement, through one Peter Aaliwin,
for the former’s grant of a right of first refusal; and (10) a copy of the resolution dated July 26, 1993 of the Provincial
Prosecutor’s Office of Rizal. The defense objected to the admission of these pieces of evidence, claiming that the
same were only unauthenticated photocopies of the originals.

On July 12, 1996, petitioners filed a motion for leave to file demurrer to evidence, attaching thereto their demurrer.
In their pleading, petitioners stressed that all the above-mentioned documents being uncertified photocopies bearing
unidentified or unauthenticated signatures are inadmissible in evidence. Without ruling on the motion for leave to file
demurrer, the MeTC, on August 19, 1996, held:

WHEREFORE, the instant demurrer is hereby denied and the motion to hold departure order of all accused Granted.
Let a copy of this Order be sent to the Commissioner of Bureau of Immigration and Deportation for proper disposition
and implementation against the accused RENE ONG, MAGDALENO ALBARRACIN, JR., PETRONIO C. AALIWIN and J.O.
NERIT of Solid Cement Corporation, No. 168 Salcedo Street, 3rd Floor, Golden Rock Building, Makati City.

(pp. 113-114, Rollo.)

In its Order denying the demurrer to evidence, MeTC Judge Felicidad Y. Navarro-Quiambao summarized private
complainant’s testimony as follows:

The prosecutor presented the private complainant Zeny Alfonso who testified that on February 8, 1993, she was
awarded by the accused the sale of a Paper Bag Making Machine including its spare parts. On February 16, 1993, she
paid in full the purchase price of the machine including the charges for its freight to Cebu in the amount of
P362,000.00 and as a consequence of said payment she was issued a Plant Gate Pass for the pull out of shipment of
the machine to Cebu; that the following day, she proceeded to the plant site of the Solid Cement Corporation in
Antipolo where she was told that accused Rene S. Ong has ordered to stop and discontinue with the shipment of the
machine; that on the same day, she rushed to see Mr. Ong in Makati and she was told to wait for a week; that on
March 1, 1993, she went again to Mr. Ong who informed her to go back to the plant site for final arrangement
regarding the shipment of the paper bag machine so she proceeded to the plant only to be told that the machine
cannot be released on order of Mr. Ong; that upon the demand of her lawyer to the Solid Corporation for its
compliance with their obligation under the transaction, Mr. Ong offered a compromise which was turned down by her.

(pp. 112-113, Rollo.)

The MeTC, in fact, found that there was a prima facie case against petitioners on the basis of the documents
submitted by the prosecution, stating:

The Court noted from the documentary evidence on record that the machine subject of the transaction between the
complainant and the accused is mortgaged to another creditor, who, incidentally, refused to release the mortgage on
said subject machine. Indeed, this strongly suggest (sic) the existence of a prima facie case that would warrant a trial
on the merits. Accordingly, the motion for hold departure order is hereby Granted.
 88

(p. 113, Rollo.)

Acting on a petition for certiorari and prohibition filed by the accused, the Regional Trial Court of Makati, per Judge
Teofilo Guadiz, Jr., reversed the above ruling in its order dated May 19, 1997, disposing:

WHEREFORE, in view of the foregoing, the petition is hereby granted. The Order dated August 19, 1996 denying the
Demurrer to Evidence and the Order dated September 18, 1996, insofar as it declares the existence of cause to hold
the petitioners for further trial, are hereby set aside and declared null and void. The respondent judge is hereby
ordered to dismiss Criminal Case No. 157290 entitled People of the Philippines v. Rene Ong, et al.

(p. 159, Rollo.)

The Guadiz resolution was raised to the Court of Appeals by the People. On April 8, 1999, the 13th Division thereof
(Mabutas [P], Aquino, and Rivera, JJ.) rendered a reversal decision, the dispositive portion of which reads:

WHEREFORE, premises considered, the petition is hereby GRANTED – and the assailed resolution (dated May 19,
1997) and order (dated October 16, 1997) of the respondent judge SET ASIDE. The writ of preliminary injunction
issued by this Court on June 5, 1998 is made permanent. The private respondents herein are given the option to
either present their evidence (in Criminal Case No. 157290 which is reinstated) before the trial court below
(Metropolitan Trial Court) or to submit the case for decision based solely on the prosecutor’s evidence.

(p. 71, Rollo.)

Petitioners submit that the Court of Appeals acted contrary to law and jurisprudence and committed grave abuse of
discretion in:

1) finding that appeal and not certiorari was the remedy that should have been availed of by petitioners;

2) finding that RTC Judge Teofilo Guadiz, Jr. erred in evaluating the prosecution's evidence for sufficiency and
inadmissibility;

3) not finding that the RTC resolution dated May 19, 1997 was an acquittal and not applying double jeopardy in
their favor;

The petition is meritorious.

In setting aside the regional trial court’s decision which ordered the MeTC to dismiss the criminal case filed against
petitioners, the Court of Appeals held that petitioners, after the denial by the MeTC of their demurrer to evidence,
should not have filed a petition for certiorari with the regional trial court. In its words:

As pointed out, the Supreme Court, in the case of Joseph v. Villaluz (89 SCRA 324), held that it would not annul an
interlocutory order denying a motion to dismiss in a criminal case. Appeal is the proper remedy of the petitioners in
order to have the findings of fact reviewed by a superior court (Manalo v. Mariano, 69 SCRA 80). Such ruling was a
reiteration of an earlier one in People v. Romero (22 Phil. 565) wherein the Highest Tribunal stressed that the
question of whether or not the evidence by the prosecution is sufficient to convince the court that the accused is guilty
beyond reasonable doubt of the crime charged, rests entirely within the sound judgment of the trial court. The error,
if any is committed by the denial of the demurrer to evidence, can only be corrected by appeal (Cruz v. People, 144
SCRA 677).

Similarly, the Supreme Court held in People v. Court of Appeals (119 SCRA 162) that it has been the long settled rule
that certiorari does not lie to challenge the trial court’s interlocutory order denying the accused’s motion to dismiss.
“The appellate courts will not review in such special civil action the prosecution's evidence and decide in advance that
such evidence has or has not yet established the guilt of the accused beyond reasonable doubt. The orderly
procedure prescribed by the Rules of Court is for the accused to present his evidence after which the trial court, on its
own assessment of the evidence submitted by both the prosecution and defense, will then properly render its
judgment of acquittal or conviction. If the verdict is one of acquittal, the case ends there. But if it is one of
conviction, then appeal is the proper recourse (Cruz v. People, supra).

(pp. 64-65, Rollo.)

In other words, the position of the Court of Appeals is to the effect that after the denial of their demurrer to evidence,
petitioners instead of filing a petition for certiorari with the regional trial court, should have presented their evidence
and in case of an adverse decision, appealed the same to the regional trial court.

Likewise, the Court of Appeals brushed aside petitioners’ invocation of their right against double jeopardy, stating that
the order of the regional trial court dismissing the criminal case filed against petitioners did not amount to their
acquittal. Held thus the appellate court:

As aptly posited by the petitioner (The People) the requisites that must concur for legal jeopardy to attach are: (a) a
valid complaint or information; (b) a court of competent jurisdiction; (c) the accused has pleaded to the charge; and
(d) the accused has been convicted or acquitted, or the case dismissed or terminated without the express consent of
the accused (People v. Gines, 197 SCRA 481, De la Rosa v. Court of Appeals, 253 SCRA 499). The fourth requisite is
lacking, because respondent court’s resolution of May 19, 1997 is a “fruit” emerging from a grave abuse of discretion
– thus it cannot ripen to an acquittal of the private respondents, whose demurrer to evidence had been denied by the
trial court below. It is true that an accused is presumed innocent until his guilt is shown beyond reasonable doubt.
However, after the prosecution has adduced evidence, the constitutional presumption of innocence must yield to what
has been so amply and persuasively demonstrated (People v. Andal, 70 SCRA 30). The respondent judge could not
 89

decide in the special civil action before him whether or not the evidence adduced by the prosecution had established
beyond reasonable doubt the guilt of petitioners (private respondents herein), because factual matters are not proper
for consideration in proceedings brought either as an original action for certiorari or as an appeal by certiorari (Insular
Bank of Asia and America v. Court of Appeals, 228 SCRA 420; Navarro v. Commission on Elections, 228 SCRA 596).
It is, therefore, incumbent on the part of the accused (private respondents herein) to neutralize the evidence of the
State in order to maintain the presumption of their innocence of the crime of which they were charged. If convicted,
appeal will be their (private respondents’) proper remedy to have the findings of fact by the trial judge reviewed by a
superior court (Manalo v. Mariano, et al., 69 SCRA 80).

Indeed, the rule generally prevailing is that “certiorari does not lie to review a trial court’s interlocutory order denying
a motion to dismiss (or to acquit), which is equivalent to a demurrer to evidence, filed after the prosecution had
presented its evidence and rested its case. An order denying a demurrer to evidence is interlocutory. It is not
appealable. Neither can it be the subject of a petition for certiorari (Tadeo v. People, 300 SCRA 744 [1998]).”

However, Tadeo itself states that “[f]rom such denial (of the demurrer to evidence), appeal in due time is the proper
remedy, not certiorari, in the absence of grave abuse of discretion or excess of jurisdiction, or an oppressive exercise
of judicial authority.”

Consequently, if the denial of the demurrer to evidence is attended by grave abuse of discretion, the denial may be
assailed through a petition for certiorari. This exception was explicitly recognized by the Court in Cruz v. People (303
SCRA 533 [1999]), where we stated that:

The general rule that the extraordinary writ of certiorari is not available to challenge (the denial of the demurrer to
evidence) may be subject to exceptions. When the assailed interlocutory orders are patently erroneous or issued with
grave abuse of discretion, the remedy of certiorari lies.

Likewise, in Gutib v. Court of Appeals (312 SCRA 365 [1999]), we declared that “the rule is not absolute and admits
of an exception. Thus where, as in the instant case, the denial of the motion to dismiss by the trial court was tainted
with grave abuse of discretion amounting to lack or excess of jurisdiction, the aggrieved party may assail the order of
denial on certiorari.”

The present case presents one such exception warranting the resort to the remedy of certiorari, the trial court judge
having committed grave abuse of discretion amounting to lack or excess of jurisdiction in denying petitioners’
demurrer to evidence. A demurrer to evidence is an objection by one of the parties in an action, to the effect that the
evidence which his adversary produced is insufficient in point of law, whether true or not, to make out a case or
sustain the issue. The party demurring challenges the sufficiency of the whole evidence to sustain a verdict. The
court, in passing upon the sufficiency of the evidence raised in a demurrer, is merely required to ascertain whether
there is competent or sufficient evidence to sustain the indictment or to support a verdict of guilt (Gutib v. CA,
supra).

In the instant case, there is no competent and sufficient evidence to sustain the indictment or to support a verdict of
guilt against petitioners. As pointed out by petitioners, all documentary evidence submitted by the private
complainant were uncertified photocopies of certain documents, the signatures on which were either unidentified or
unauthenticated.

Section 20, Rule 132 of the Revised Rules of Court provides that “before any private document offered as authentic is
received in evidence, its due execution and authenticity must be proved either:

(a) by anyone who saw the document executed or written; or

(b) by evidence of the genuineness of the signature or handwriting of the maker.

Thus, prior to the admission in evidence of a private writing, the identity and authenticity of the document sought to
be presented must first be reasonably established. Where there is no proof as to the authenticity of the executor’s
signature appearing in a private document, such private document should be excluded (Paz v. Santiago, 47 Phil 334
[1925]).

The documentary evidence submitted by the complaining witness are private instruments, being instruments executed
by private persons without the intervention of a public notary or of other persons legally authorized, by which
document some disposition or agreement is proved, evidenced, or set forth (U.S. v. Orera, 11 Phil. 596 [1907]).

Being private instruments, their due and valid execution and their genuineness and authenticity must first be
established, either by the testimony of any one who saw the writing executed or by evidence of the genuineness of
the handwriting of the maker hereof.

A painstaking perusal of the testimony of the prosecution’s sole witness reveals, however, that the due execution and
authenticity of these documents were never proved. In fact, the prosecution took no effort to prove the due execution
and authenticity of these documents during the presentation of their sole witness. Absent such proof, these
documents are incompetent as evidence. It is elementary that this Court cannot rightly appreciate firsthand the
genuineness of an unverified and unidentified document; much less, accord it evidentiary value (People v. Sumalpong,
284 SCRA 464 [1998]). In People v. Gamiao (240 SCRA 254 [1995]), we declared, “[p]arenthetically, appellant failed
to present in evidence the originals or the xerox copies of the documents hereinbefore discussed. The requirements
for the admission of such secondary evidence in court were not satisfied. The Rules of Court provide that private
documents require proof of their due execution and authentication before they can be received in evidence. When
there is no such proof, the substitutionary documents may be excluded.”
 90

Moreover, the documents submitted are mere photocopies of the originals. Thus, they are secondary evidence and as
such are not admissible unless there is ample proof of the loss of the originals (Section 3, Rule 130, Revised Rules of
Court). However, the loss of the originals have not been proved by the prosecution, neither have they shown that the
original is a public record in the custody of a public office or is recorded in a public office, nor that the same is in the
custody or under the control of petitioners.

The due execution and authenticity of the documentary evidence presented not having been proved, and since these
are mere photocopies, the loss of the originals of which was not previously established, the same are clearly
inadmissible in evidence. Being incompetent evidence, the only evidence the prosecution could rely on to prove
petitioners’ guilt would be the sole testimony of the private complainant. Unsupported by any other evidence, said
testimony is insufficient to sustain a finding of culpability.

Sufficient evidence for purposes of frustrating a demurrer thereto is such evidence in character, weight or amount as
will legally justify the judicial or official action demanded according to the circumstances. To be considered sufficient,
therefore, the evidence must prove: (a) the commission of the crime, and (b) the precise degree of participation
therein by the accused. In the instant case, the prosecution miserably failed to establish by sufficient evidence the
existence of the crime of estafa and other deceit.

Aside from complainant’s testimony, the only evidence of petitioners’ supposed complicity in the alleged offense is the
photocopy of the approval of the sale of the paper bag-making machine, said document containing the names of
petitioners Ong, Nerit, Aaliwin, and Albarracin. As stated earlier, however, said document is inadmissible in evidence.
Thus, there is no evidence as to their participation in the crime. In fact, among the petitioners, private complainant
had personal contact only with Ong, whom she met only after the alleged approval of the sale of the machine. Having
met Ong after the sale, Ong could not have misrepresented anything to complainant to induce her to part with her
money. As to the others, not having had personal dealings with private complainant, it boggles one’s mind to even
entertain the speculation that they could have misrepresented anything to the latter.

With our ruling that the documentary evidence submitted by the prosecution is inadmissible in evidence, the
prosecution’s evidence against petitioners is grossly and patently insufficient to support a finding of guilt. Withal, it
was grave abuse of discretion for the MeTC to consider that there was a prima facie case against petitioners
warranting a trial on the merits given the paucity of evidence against petitioners.

Had said court been more punctilious and thorough in its study and preparation of the case, it could have fully
appreciated the weakness of the state evidence against petitioners, and that it was useless, not to say a waste of time
and money, but most of all unfair to the accused, to proceed with the tedious process of trial and direct petitioners to
adduce evidence in their defense, since it was obvious from the beginning that petitioners could not be convicted of
the crime charged.

In ruling against petitioners, the appellate court also held that petitioners could not avail of their constitutional right
against double jeopardy, allegedly because the regional trial court’s reversal of the MeTC denial of their demurrer to
evidence is a “fruit” emerging from grave abuse of discretion. It declared that Judge Guadiz could not decide in the
special civil action filed before him whether or not the evidence adduced by the prosecution had established beyond
reasonable doubt the guilt of petitioners, factual matters not being proper for consideration in certiorari proceedings.

It is true that the prerogative writ of certiorari does not lie to correct every controversial interlocutory order but is
confined merely to questions of jurisdiction. Its function is to keep an inferior court within its jurisdiction and to
relieve persons from arbitrary acts, meaning acts which courts or judges have no power or authority in law to
perform. It is not designed to correct procedural errors or the court’s erroneous findings and conclusions (De Vera v.
Pineda, 213 SCRA 434 [1992]).

However, certiorari can be properly resorted to where the factual findings complained of are not supported by the
evidence on record (Congregation of the Religious of the Virgin Mary v. CA, 291 SCRA 385 [1998]). As earlier
observed, with the inadmissibility of the prosecution’s documentary evidence, the trial court’s finding of a prima facie
case against petitioners is glaringly unsupported by the sole testimony of private complainant, hence the RTC
resolution reversing the MeTC’s denial of the demurrer to evidence cannot be said to be the “fruit” of grave abuse of
discretion. Since the factual findings of the MeTC are devoid of support in the evidence on record, it was proper for
the RTC to review said findings. Moreover, in order to determine whether or not there was grave abuse of discretion
in denying the demurrer to evidence, the RTC had to inquire into the admissibility and sufficiency of the documentary
and testimonial evidence submitted by the prosecution.

With the grant by the RTC of the demurrer to evidence, the same constituted a valid acquittal and any further
prosecution of petitioners on the same charge would expose them to being put twice in jeopardy for the same offense.
A dismissal of a criminal case by the grant of a demurrer to evidence is not appealable as the accused would thereby
be placed in double jeopardy (See Regalado, Remedial Law Compendium, p. 441).

Lastly, it has been said that a wide breadth of discretion is granted a court of justice in certiorari proceedings. The
cases in which certiorari will issue cannot be defined, because to do so would be to destroy its comprehensiveness and
usefulness. So wide is the discretion of the court that authority is not wanting to show that certiorari is more
discretionary than either prohibition or mandamus. In the exercise of our superintending control over other courts,
we are to be guided by all the circumstances of each particular case “as the ends of justice may require.” So it is that
the writ will be granted where necessary to prevent a substantial wrong or to do substantial justice (Gutib v. CA,
supra).

The case at bar presents one such instance calling for this appropriate remedy. As discussed elsewhere, petitioners
have satisfactorily demonstrated in their demurrer that the prosecution failed to prove the crime charged against
them, hence, there remains no reason to hold them for trial. Indeed, an accused is always presumed innocent until
the contrary is proved. Parenthetically, petitioners have the right to be protected against hasty, malicious, and
 91

oppressive prosecution; to be secure from an open and public accusation of a crime; and, from the trouble, expenses
and anxiety of a public trial. Similarly situated is the State, which must be shielded at all times from useless and
expensive litigations that only contribute to the clogging of court dockets and take a heavy toll on its limited time and
meager resources.

WHEREFORE, premises considered, the petition is GRANTED. The decision of the Court of Appeals dated April 8, 1999
setting aside the Regional Trial Court’s resolution dated May 19, 1997, as well as respondent appellate court’s
Resolution dated November 16, 1999 denying reconsideration of its decision, are REVERSED and SET ASIDE. The
dismissal of Criminal Case No. 157290 entitled “People of the Philippines v. Rene S. Ong, et al. is AFFIRMED, without
prejudice to the filing of an appropriate civil action.

SO ORDERED.

Vitug, Panganiban, Purisima, and Gonzaga-Reyes, JJ., concur.

\---!e-library! 6.0 Philippines Copyright © 2000 by Sony Valdez---/

([2000V1200] RENE S. ONG, MAGDALENO B. ALBARRACIN, JR., PETRONIO C. AALIWIN and J. O. NERIT, petitioners,
vs. PEOPLE OF THE PHILIPPINES and COURT OF APPEALS, respondents., G.R. No. 140904, 2000 Oct 9, 3rd Division)
 92

[2005V1216] RODOLFO G. VALENCIA, Petitioner, versus THE SANDIGANBAYAN, Respondent.2005 Oct

171st DivisionG.R. No. 165996D E C I S I O N

YNARES-SANTIAGO, J.:

This petition for certiorari under Rule 65 of the Rules of Court assails the June 14, 2004 Order[1] of respondent
Sandiganbayan in Criminal Case No. 25160, which denied petitioner’s motion for leave to file demurrer to evidence
and set the case for presentation of evidence for the prosecution; as well as its July 28, 2004 Resolution[2] denying
petitioner’s motion for reconsideration.

The undisputed facts show that on February 10, 1999, petitioner Rodolfo G. Valencia, then governor of Oriental
Mindoro was charged before the Sandiganbayan with violation of Section 3(e) of Republic Act (RA) No. 3019, the Anti-
graft and Corrupt Practices Act. The information filed against petitioner reads:

That on or about December 1, 1992, or sometime prior or subsequent thereto in the Province of Oriental
Mindoro, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a public officer,
being then the Governor of the Province of Oriental Mindoro, while in the performance of his official functions,
committing the offense in relation to his office, and taking advantage of his official position, acting with manifest
partiality, evident bad faith or gross inexcusable negligence, did then and there wilfully, unlawfully and criminally
cause undue injury to the Province of Oriental Mindoro, and at the same time give unwarranted benefits, advantage or
preference to one CRESENTE UMBAO, a candidate who ran and lost in the 1992 election, by then and there
appointing said Cresente Umbao as Sangguniang Bayan member of Pola, Oriental Mindoro, within the prohibitive
period of one (1) year after an election, in flagrant violation of Sec. 6, Art IX B of the Constitution, to the damage and
prejudice of the Province of Oriental Mindoro and to the government as a whole.[3]

Upon arraignment on April 13, 1999, petitioner pleaded not guilty.[4]

On March 24, 2003, the parties submitted a Joint Stipulation of Facts, to wit:

1. Mr. Rodolfo G. Valencia, had been the Governor of the Province of Oriental Mindoro, for having won in
the gobernatorial race in the May 1992 local and provincial election;

2. During the 1992 election, Mr. Cresente Umbao of Pola, Oriental, Mindoro also ran for the position of
councilor in the Municipality of Pola, Oriental Mindoro but he lost;

3. On October 17, 1992, Councilor Antonio Mercene, Jr. of Pola, Oriental, Mindoro died thus creating a
permanent vacancy in the membership position of Sanguniang Bayan of Pola, Oriental Mindoro.

4. On December 1, 1992 then Governor Rodolfo G. Valencia of Oriental, Mindoro, appointed Cresente
Umbao to the position of a councilor in the Municipal Council of Pola, Oriental Mindoro on the vacancy left by the death
of Councilor Mercene.

CONTENTION/ISSUES

The Prosecution contends that this appointment is in violation of Sec. 3(e) of R.A. 3019 as it gives among
other, unwarranted benefit to Mr. Cresente Umbao who is disqualified to be appointed within a period of one year
after having lost in May 1992 local election for councilor, while the accused, then Governor Rodolfo Valencia,
maintains that the appointment of Lumbao was in the performance of his duty and that it was made in good faith
pursuant to Sec. 45, Chapter 2, Title 2, of the Local Government Code (R.A. 7160).

The Parties reserve their rights to present documentary evidences as the need arise during the trial.

WHEREFORE, premises considered, the parties respectfully prays that this stipulation of facts be well taken by
the Honorable Sandiganbayan for pre-trial purposes.[5]

On March 26, 2003, the Sandiganbayan directed the parties to sign the Joint Stipulation of Facts, thus –

The Court orders both counsels and the accused to sign each and every page of the Joint Stipulation of Facts.
Thereafter, let a pre-trial order be issued on the bases of the agreement of both parties as embodied in this Joint
Stipulation of Facts.[6]

The Joint Stipulation of Facts however remained unsigned by petitioner. Only the signature of the Special Prosecutor
and petitioner’s counsel appear on the last page thereof.

On January 12, 2004, Prosecutor Danilo F. Salindong rested the case based on the Joint Stipulation of Facts and
waived the presentation of testimonial or documentary evidence for the prosecution.[7]

Thereafter, petitioner filed on January 19, 2004 a Motion for Leave to File Demurrer to Evidence because the
prosecution failed to present, mark or offer evidence that would substantiate the charge against him. Petitioner
asserted that the Joint Stipulation of Facts is inadmissible because it lacks his signature. Even if the same be
admitted, the information is dismissable for failure of the prosecution to submit evidence to establish the injury
caused to the government and the presence of manifest partiality, evident bad faith or gross inexcusable negligence in
the appointment of Cresente Umbao, which are among the essential elements of the crime of violation of Section 3(e)
of RA No. 3019.[8]
 93

The prosecution, now represented by Prosecutor Agnes B. Autencio-Daquis, filed an Opposition/Comment alleging that
petitioner’s Motion for Leave to File Demurrer to Evidence is premature because the prosecution has yet to formally
offer the Joint Stipulation of Facts.[9]

On February 20, 2004, the Sandiganbayan reiterated its March 26, 2003 Resolution directing petitioner and counsels
to sign the Joint Stipulation of Facts.[10] Petitioner filed a Manifestation with Motion for Reconsideration[11] claiming
that his former counsel was not authorized to enter into any agreement and that he came to know of the existence of
said stipulations only on January 12, 2004.

On March 11, 2004, the Sandiganbayan issued a Pre-trial Order[12] embodying the Joint Stipulation of Facts.

Considering petitioner’s refusal to acknowledge the Joint Stipulation of Facts or to sign the Pre-trial Order, the
Sandiganbayan issued the assailed June 14, 2004 Order recalling the Pre-trial Order; denying the motion for leave to
file demurrer; and setting the case for presentation of the prosecution’s evidence, thus –

This afternoon is supposed to be the initial presentation of the defense evidence. Prosecutor Danilo F. Salindong,
former handling prosecutor of this case, rested his case on the basis of the Pre-Trial Order issued by this Court.
However, accused Rodolfo Valencia refused to sign the pre-trial order as per his motion for reconsideration, to which
Prosecutor Agnes Autencio Daquis commented that since the accused refused to sign the pre-trial order, that the
same be abrogated and that trial on the merits ensued. Consequently, the Pre-Trial Order issued by this Court on
March 11, 2004 is hereby recalled and set aside. In view of the refusal of the accused to enter into any stipulation of
facts, let this case be scheduled for trial on the merits. The presentation of prosecution’s evidence is hereby
scheduled on August 31 and September 1, 2004 at 2:00 o’clock in the afternoon. The demurrer to evidence filed by
the accused is therefore considered premature and is hereby stricken out of the records.[13]

Petitioner’s motion for reconsideration was denied on July 28, 2004, as follows:

The “Motion for Reconsideration (of June 14, 2004 Order)” dated June 29, 2004 filed by accused, thru counsels which
met vigorous opposition from the prosecution’s Comment/Opposition dated July 16, 2004 is denied for lack of merit.
As clearly stated in the Order of June 14, 2004, the case for the prosecution was re-opened because of the refusal of
accused to sign the pre-trial order on the basis of which the prosecution rested its case. Justice and fairness demand
the re-opening of the evidence for the prosecution because of the unwarranted act of the accused in refusing to sign
the pre-trial order.[14]

Hence, the instant petition contending that the Sandiganbayan gravely abused its discretion in issuing the assailed
June 14, 2004 Order and July 28, 2004 Resolution.

Meanwhile, there being no temporary restraining order nor preliminary injunction issued by this Court, the prosecution
proceeded with the presentation of its evidence.[15]

The issues for resolution are (1) was petitioner’s Motion for Leave to File Demurrer to Evidence premature? (2) may
the prosecution be allowed to present evidence after it orally manifested its intention to rest its case? (3) was
petitioner denied his right to speedy trial?

Section 23, Rule 119 of the Rules of Court, provides:

SEC. 23. Demurrer to evidence. – After the prosecution rests its case, the court may dismiss the action on the ground
of insufficiency of evidence (1) on its own initiative after giving the prosecution the opportunity to be heard or (2)
upon demurrer to evidence filed by the accused with or without leave of court.

Corollarily, Section 34, Rule 132 of the Rules of Court states:

SEC. 34. Offer of evidence. – The court shall consider no evidence which has not been formally offered. The purpose
for which the evidence is offered must be specified.

A demurrer to evidence tests the sufficiency or insufficiency of the prosecution’s evidence. As such, a demurrer to
evidence or a motion for leave to file the same must be filed after the prosecution rests its case. But before an
evidence may be admitted, the rules require that the same be formally offered, otherwise, it cannot be considered by
the court. A prior formal offer of evidence concludes the case for the prosecution and determines the timeliness of the
filing of a demurrer to evidence.

As held in Aquino v. Sison,[16] the motion to dismiss for insufficiency of evidence filed by the accused after the
conclusion of the cross-examination of the witness for the prosecution, is premature because the latter is still in the
process of presenting evidence. The chemistry report relied upon by the court in granting the motion to dismiss was
disregarded because it was not properly identified or formally offered as evidence. Verily, until such time that the
prosecution closed its evidence, the defense cannot be considered to have seasonably filed a demurrer to evidence or
a motion for leave to file the same.

In the present case, petitioner’s motion for leave to file demurrer to evidence is premature because the prosecution
had yet to formally rest its case. When the motion was filed on January 19, 2004, the latter had not yet marked nor
formally offered the Joint Stipulation of Facts as evidence. It is inconsequential that petitioner received by mail on
January 27, 2004, a motion and formal offer of evidence dated January 20, 2004 from Prosecutor Salindong,[17]
because, as aptly observed by the Office of the Ombudsman, the records of the Sandiganbayan bear no such motion
or formal offer of evidence filed by the prosecution. The motion and formal offer found in the records are those
attached as Annex “B”[18] to petitioner’s Manifestation with Motion for Reconsideration[19] and not copies filed by the
prosecution. Under Section 12, Rule 13 of the Rules of Court, the filing of a pleading or paper shall be proved by its
existence in the case records. The absence of the motion to rest the case in the records of the Sandiganbayan and
 94

the failure to offer the Joint Stipulation of Facts prove that the prosecution did not formally rest or conclude the
presentation of its evidence, rendering petitioner’s motion for leave to file demurrer to evidence, premature.

At any rate, had the prosecution actually filed said motion and formally offered the evidence before the
Sandiganbayan, the motion for leave to file demurrer to evidence still suffers prematurity because it was filed on
January 19, 2004, or one day before the date of the motion and offer, i.e., January 20, 2004. In fact, even petitioner
admitted in his motion for leave to file demurrer to evidence that the prosecution failed to mark and offer any
evidence against him.[20]

Anent the second issue, we find that the trial court did not abuse its discretion in granting the prosecution’s request to
present additional evidence. Admission of additional evidence is addressed to the sound discretion of the trial court.
Considerable latitude is allowed and such discretion will not be disturbed absent a finding that the accused was denied
due process of law. As early as the 1907 case of United States v. Cinco,[21] the Court has consistently upheld such
prerogative of the trial court, thus –

... The judges of the Courts of First Instance are judges of both fact and law, and after hearing all the evidence
adduced by the attorneys, if the court is not satisfied, we see no reason why he should not be permitted to call
additional witnesses for the purpose of satisfying his mind upon any questions presented during the trial of the case.

Indeed, in the furtherance of justice, the court may grant the parties the opportunity to adduce additional evidence
bearing upon the main issue in question.[22] Thus, in Hon. Vega, etc., et al. v. Hon. Panis, etc., et al.,[23] the Court
sustained the order of the trial court allowing the prosecution to present additional evidence after it had offered its
evidence and rested its case and after the defense filed a motion to dismiss. It was stressed therein that while the
prosecution had rested, the trial was not yet terminated and the case was still under the control and jurisdiction of the
court. Hence, in the exercise of its discretion, the trial court may receive additional evidence.

We also held in People v. Januario,[24] that strict observance of the order of trial or trial procedure outlined in
Rule 119 of the Rules of Court depends upon the circumstance obtaining in each case at the discretion of the trial
judge. Citing United States v. Alviar,[25] the Court explained –

… The orderly course of proceedings requires, however, that the prosecution shall go forward and should present all of
its proof in the first instance; but it is competent for the judge, according to the nature of the case, to allow a party
who had closed his case to introduce further evidence in rebuttal. This rule, however, depends upon the particular
circumstances of each particular case and falls within the sound discretion of the judge, to be exercised or not as he
may think proper.

Hence, the court may allow the prosecutor, even after he has rested his case or after the defense moved for
dismissal, to present involuntarily omitted evidence.…[26]

It must be emphasized that the primary consideration in allowing the reopening of a case is for the accused to
have his day in court and the opportunity to present counter evidence. Thus –

… As a rule, the matter of reopening of a case for reception of further evidence after either prosecution or defense has
rested its case is within the discretion of the trial court. However, a concession to a reopening must not prejudice the
accused or deny him the opportunity to introduce counter evidence.

… In U.S. vs. Base, we held that a trial court is not in error, if it opts to reopen the proceedings of a case, even after
both sides had rested and the case submitted for decision, by the calling of additional witnesses or recalling of
witnesses so as to satisfy the judge’s mind with reference to particular facts involved in the case. A judge cannot be
faulted should he require a material witness to complete his testimony, which is what happened in this case. It is but
proper that the judge’s mind be satisfied on any and all questions presented during the trial, in order to serve the
cause of justice.

Appellant’s claim that the trial court’s concession to “reopen” the case unduly prejudiced him is not well taken. We
note that appellant had every opportunity to present his evidence to support his case or to refute the prosecution’s
evidence point-by-point, after the prosecution had rested its case. In short, appellant was never deprived of his day in
court. A day in court is the touchstone of the right to due process in criminal justice. Thus, we are unable to hold that
a grave abuse of discretion was committed by the trial court when it ordered the so-called “reopening” in order to
complete the testimony of a prosecution witness.[27]

In the case at bar, petitioner cannot claim denial of due process because he will have the opportunity to
contest the evidence adduced against him and to prove his defenses after the prosecution concludes the presentation
of its evidence. Moreover, the order of the trial court granting the reception of additional evidence for the prosecution
is not technically a “reopening” of the case inasmuch as the latter had yet to formally rest its case. A motion to
reopen presupposes that either or both parties have formally offered and closed their evidence.[28] If the Court
sanctions the admission of additional evidence after the case had been submitted for resolution but before judgment,
with more reason therefore that we should sustain the introduction of additional evidence in the present case because
the prosecution had not yet concluded the presentation of its evidence. The State is also entitled to due process in
criminal cases, that is, a fair opportunity to prosecute and convict. The Court has always accorded this right to the
prosecution, and where the right had been denied, had promptly annulled the offending court action.[29]

Furthermore, the haphazard manner by which Prosecutor Salindong handled the case for the State will not pass
unnoticed by the Court. It is the duty of the public prosecutor to bring the criminal proceedings for the punishment of
the guilty. Concomitant with this is the duty to pursue the prosecution of a criminal action and to represent the public
interest.[30] With these standards, we thus find Prosecutor Salindong remiss in the performance of his
responsibilities. He gravely abused his discretion by resting the case without adducing evidence for the State and
 95

without ensuring that petitioner had signed the Joint Stipulation of Facts before it was submitted to the
Sandiganbayan. As a result, the prosecution was denied due process.

In light of the foregoing, the Sandiganbayan was therefore correct in allowing the State to adduce additional
evidence. The State should not be prejudiced and deprived of its right to prosecute cases simply because of the
ineptitude or nonchalance of the Special Prosecutor.[31] A contrary ruling would result in a void proceedings.

In Merciales v. Court of Appeals,[32] the Court annulled the acquittal of the accused based on the demurrer to
evidence filed by the defense. It was held that the prosecutor’s failure to present sufficient evidence to convict the
accused and the indifference displayed by the trial court in not requiring the prosecutor to present additional evidence
resulted in the denial of the State’s right to due process warranting the reversal of the judgment of acquittal on the
ground of absence of jurisdiction. Thus –

... [T]he public prosecutor knew that he had not presented sufficient evidence to convict the accused.... he
deliberately failed to present an available witness and thereby allowed the court to declare that the prosecution has
rested its case.... he was remiss in his duty to protect the interest of the offended parties.... [and] was guilty of
blatant error and abuse of discretion, thereby causing prejudice to the offended party…

.…

By refusing to comply with the trial court’s order to present evidence, the public prosecutor grossly violated the
above-quoted rule. Moreover, the public prosecutor violated his bounden duty to protect the interest of the offended
party.... After the trial court denied his motion to discharge Nuada as a state witness, he should have proceeded to
complete the evidence of the prosecution by other means. Instead, he willfully and deliberately refused to present an
available witness, i.e., the NBI Agent who was present in court on that date and time. The public prosecutor was
duty-bound to exhaust all available proofs to establish the guilt of the accused and bring them to justice for their
offense against the injured party.

Likewise guilty for serious nonfeasance was the trial court. Notwithstanding its knowledge that the evidence for the
prosecution was insufficient to convict, especially after the public prosecutor tenaciously insisted on utilizing Nuada as
state witness, the trial court passively watched as the public prosecutor bungled the case. The trial court was well
aware of the nature of the testimonies of the seven prosecution witnesses that have so far been presented. Given this
circumstance, the trial court, motu proprio, should have called additional witnesses for the purpose of questioning
them himself in order to satisfy his mind with reference to particular facts or issues involved in the case.

Based on the foregoing, it is evident that petitioner was deprived of her day in court. Indeed, it is not only the State,
but more so the offended party, that is entitled to due process in criminal cases. Inasmuch as the acquittal of the
accused by the court a quo was done without regard to due process of law, the same is null and void. It is as if there
was no acquittal at all, and the same cannot constitute a claim for double jeopardy.

In the same vein, the right to speedy trial cannot be successfully invoked where to sustain the same would
result in a clear denial of due process to the prosecution. While justice is administered with dispatch, the essential
ingredient is orderly, expeditious and not mere speed. It cannot be definitely said how long is too long in a system
where justice is supposed to be swift, but deliberate. It is consistent with delays and depends upon circumstances. It
secures rights to the accused, but it does not preclude the rights of public justice. Also, it must be borne in mind that
the rights given to the accused by the Constitution and the Rules of Court are shields, not weapons; hence, courts are
to give meaning to that intent.[33]

As significant as the right of an accused to a speedy trial is the right of the State to prosecute people who violate its
penal laws.[34] The right to a speedy trial is deemed violated only when the proceeding is attended by vexatious,
capricious and oppressive delays.[35] In the instant case, allowing the prosecution to present additional evidence, is a
lawful exercise of due process and is certainly not intended to vex or oppress the petitioner. In the balancing test
used to determine whether an accused had been denied speedy disposition of cases, the scales tilt in favor of allowing
the prosecution to adduce further evidence. Slowly but surely, justice and due process would be afforded to the
prosecution and to petitioner as well who would have the chance to present counter evidence. On the other hand, to
erroneously put premium on the right to speedy trial in the instant case and deny the prosecution’s prayer to adduce
additional evidence would logically result in the dismissal of the case for the State. There is no difference between an
order outrightly dismissing the case and an order allowing the eventual dismissal thereof. Both would set a dangerous
precedent which enables the accused, who may be guilty, to go free without having been validly tried, thereby
infringing the interest of the society.

Neither can petitioner capitalize on the pendency of his case since 1998. Note that the 1994 anonymous
complaint[36] against petitioner was indorsed for investigation by the Office of the Ombudsman to the National
Bureau of Investigation which submitted its findings in 1995. On March 15, 1996, the Ombudsman for Luzon
recommended the filing of a complaint for violation of Section 3(e) of RA No. 3019,[37] followed by another
recommendation from the Graft Investigation Officer on July 14, 1998 for the institution of an Information against
petitioner.[38] After Ombudsman Aniano Desierto’s approval of said resolution on February 5, 1999,[39] the Special
Prosecutor filed the Information on February 10, 1999. The arraignment on April 13, 1999, was followed by seven (7)
requests of petitioner to travel abroad, all of which were granted by the Sandiganbayan.[40] On June 28, 2002, the
latter directed the counsels to submit a Joint Stipulation of Facts, which was presented on March 24, 2003.[41]
Considering the difficulty of obtaining a quorum in the Sandiganbayan due to the retirement of the Justices, the
presentation of the prosecution’s evidence scheduled on May 19 & 20 and July 8 & 9, 2003, were moved to September
8 & 9[42] and November 10 & 11, 2003. On the latter dates, however, the prosecution witnesses failed to appear,
prompting the Special Prosecutor to manifest his intention to rest the case on January 12, 2004.

All this time, however, petitioner never invoked his right to speedy trial. In Guerrero v. CA,[43] it was held that
failure to seasonably raise the right to speedy trial precludes the accused from relying thereon as a ground to dismiss
 96

the case. He is deemed to have slept on his rights by not asserting the right to speedy disposition at the earliest
possible opportunity. The Court explained its ruling in this wise:

In the case before us, the petitioner merely sat and waited after the case was submitted for resolution in 1979. It
was only in 1989 when the case below was re-raffled from the RTC of Caloocan City to the RTC of Navotas-Malabon
and only after respondent trial judge of the latter court ordered on March 14, 1990 the parties to follow-up and
complete the transcript of stenographic notes that matters started to get moving towards a resolution of the case.
More importantly, it was only after the new trial judge reset the retaking of the testimonies to November 9, 1990
because of petitioner’s absence during the original setting on October 24, 1990 that the accused suddenly became
zealous of safeguarding his right to speedy trial and disposition.
.…

… It is fair to assume that he would have just continued to sleep on his right – a situation amounting to laches – had
the respondent judge not taken the initiative of determining the non-completion of the records and of ordering the
remedy precisely so he could dispose of the case. The matter could have taken a different dimension if during all
those ten years between 1979 when accused filed his memorandum and 1989 when the case was re-raffled, the
accused showed signs of asserting his right which was granted him in 1987 when the new constitution took effect, or
at least made some overt act (like a motion for early disposition or a motion to compel the stenographer to transcribe
notes) that he was not waiving it. As it is, his silence would have to be interpreted as a waiver of such right.

In Dela Peña v. Sandiganbayan,[44] the Court denied a petition seeking to quash the Information holding that the
silence of the accused amounted to laches. In the said case, the investigatory process was set in motion on August
14, 1992 and the Information was filed on May 6, 1997. After the arraignment was set sometime in December 1999,
the accused filed a motion to quash on December 21, 1999, based on the violation of his right to due process and
prompt disposition of cases. In sustaining the Sandiganbayan’s denial of the motion to quash, the Court ratiocinated
that:

Moreover, it is worthy to note that it was only on 21 December 1999, after the case was set for arraignment, that
petitioners raised the issue of the delay in the conduct of the preliminary investigation. As stated by them in their
Motion to Quash/Dismiss, “[o]ther than the counter-affidavits, [they] did nothing.” Also, in their petition, they
averred: “Aside from the motion for extension of time to file counter-affidavits, petitioners in the present case did not
file nor send any letter-queries addressed to the Office of the Ombudsman for Mindanao which conducted the
preliminary investigation.” They slept on their right – a situation amounting to laches. The matter could have taken a
different dimension if during all those four years, they showed signs of asserting their right to a speedy disposition of
their cases or at least made some overt acts, like filing a motion for early resolution, to show that they were not
waiving that right. Their silence may, therefore be interpreted as a waiver of such right. As aptly stated in Alvizo, the
petitioner therein was “insensitive to the implications and contingencies” of the projected criminal prosecution posed
against him “by not taking any step whatsoever to accelerate the disposition of the matter, which inaction conduces to
the perception that the supervening delay seems to have been without his objection, [and] hence impliedly with his
acquiescence.

The foregoing doctrines were reiterated in Bernat v. Sandiganbayan,[45] where the claim of denial of the right
to a speedy disposition of his criminal case was brushed aside by the Court considering that the accused waited eight
years before complaining of the delay in the disposal of his case.

The rule as consistently applied in this jurisdiction is that objections to the sluggish disposition of the case must be
positively invoked by the accused and a demand therefor must be openly made. The Court ruled in Corpuz v.
Sandiganbayan,[46] that dismissal of a case is not justified simply because the prosecutor had gone to sleep at the
switch while the defendant and his counsel rested in silence. The accused must not be rewarded by the dismissal of
the case and the State and society punished by the neglect of the prosecutor unless the accused himself calls the
attention of the court on the matter.

We see no reason to deviate from the jurisprudential holdings and treat the instant case differently. Petitioner never
contested the prosecutorial proceedings nor timely challenged the pendency of the case after arraignment. It was
only in the Motion for Reconsideration of the June 14, 2004 order denying the demurrer to evidence and setting the
case for reception of additional evidence for the prosecution, that petitioner insisted on his right to speedy trial.
Under Section 9, Rule 119 of the Rules of Court, failure of the accused to move for dismissal prior to trial constitutes a
waiver of his right to speedy trial. His failure therefore to timely question the delay in the disposition of the case
amounted to an implied acceptance of such delay and a waiver of the right to question the same. Like any other right
conferred by the Constitution or statute, except when otherwise expressly so provided, the speedy trial right may be
waived when not positively asserted. Thus, if there was a delay in the disposition of the case, petitioner is not entirely
without blame.[47]

Then too, while petitioner is free to acknowledge or reject the Joint Stipulation of Facts, the trial court cannot be said
to have abused its discretion in ordering petitioner to sign the same considering that said stipulation was not yet
formally offered by the prosecution. At that stage, said document cannot yet be considered “officially” an evidence for
the prosecution. The refusal therefore of petitioner to affix his signature in the said stipulation or in the Pre-trial Order
embodying the same is sufficient justification for the trial court to recall the latter and in the exercise of its sound
discretion, set the case for presentation of the prosecution’s evidence.

Finally, if petitioner disagrees with the denial of his motion for leave to file demurrer to evidence, his remedy is
not to file a petition for certiorari but to proceed with the presentation of his evidence and to appeal any adverse
decision that may be rendered by the trial court. The last sentence of Section 23, Rule 119 of the Rules of Court,
provides that “the order denying a motion for leave of court to file demurrer to evidence or the demurrer itself shall
not be reviewable by appeal or certiorari before judgment.”
 97

WHEREFORE, the petition is DISMISSED. The June 14, 2004 Order of respondent Sandiganbayan in Criminal
Case No. 25160 which denied petitioner’s motion for leave to file demurrer to evidence and set the case for
presentation of evidence for the prosecution; as well its July 28, 2004 Resolution denying petitioner’s motion for
reconsideration are AFFIRMED.

The instant case is REMANDED to the Sandiganbayan for further proceedings.

SO ORDERED.
 98

[2005V973] MARY HELEN ESTRADA, Petitioner, versus PEOPLE OF THE PHILIPPINES and HON.
BONIFACIO SANZ MACEDA, Respondents.2005 Aug 252nd DivisionG.R. No. 162371D E C I S I O N

AUSTRIA-MARTINEZ, J.:

This resolves the petition for review on certiorari seeking the reversal of the Decision[1] of the Court of Appeals
(CA) promulgated on October 28, 2003, and the CA Resolution dated February 23, 2004, denying petitioner’s motion
for reconsideration; together with the letter of petitioner dated January 18, 2005 which was treated by the Court as a
petition for habeas corpus alleging that the Decision dated July 2, 1997 of the Regional Trial Court (RTC) of Las Piñas
City, Branch 275, imposed upon petitioner an erroneous and excessive penalty.

The present case has its origin in a criminal case filed against petitioner. An Information charging petitioner
with estafa was filed with the RTC of Las Piñas City. In view of the fact that petitioner jumped bail, the RTC issued an
Order dated May 14, 1997, considering petitioner to have waived her right to present evidence. Thus, the RTC
rendered judgment based only on prosecution evidence and made the following conclusions:

…Junimar Bermundo applied for employment in Japan with the accused. Accused collected money from Junimar and
his wife in the total amount of P68,700.00.

These payments were all evidenced by various receipts bearing different dates. …

Junimar and his wife were able to pay the accused by using the money they obtained from a loan with the Luzon
Development Bank using their parcel of land located at Pangao, Lipa City as collateral (Exh. “L”).

After making the necessary payments, the accused told Junimar to proceed to the Japanese Embassy to claim the
plane tickets in December 1993, but when they went to the Japanese Embassy, they were told that nothing was filed
with their office. Junimar then informed the accused what happened and the latter accompanied him the second time
to the Japanese Embassy. It was only at that time that accused filed the necessary documents. …Accused told them
that if they would use the name of her daughter, the processing of their papers would be faster because her daughter
performs outside the country.

However, in the early part of 1994, the Japanese Embassy wrote a letter to Junimar requiring them to submit
documents but the accused failed to produce these documents. Junimar then decided to abandon his plan of going to
Japan and just get the money from the accused. Accused, however, failed to return the money despite receipt of a
demand letter the witness made (Exh. “I” & “J”, tsn, Sept. 5, 1995, pp. 2-9).

Under the established facts, accused indeed deceived Junimar Bermundo and Rosalie Bermundo by means of false
pretenses and fraudulent misrepresentations which induced the Bermundos to deliver to the accused their (sic)
amount of P68,700.00 which amount accused applied and used for her own benefit to the damage and prejudice of
Junimar and Rosalie Bermundo.

WHEREFORE, IN VIEW OF ALL THE FOREGOING, judgment is rendered finding accused GUILTY beyond reasonable
doubt as charged which is punished under Article 315, par. 2 (a), and applying the Indeterminate Sentence Law,
accused MARY HELEN ESTRADA is hereby sentenced to suffer an indeterminate prison term of TWELVE (12) YEARS of
prision mayor maximum as minimum to TWENTY-FOUR (24) YEARS as maximum; to pay back the sum of P68,700.00
to Junimar Bermundo and Rosalie Bermundo; and to pay the costs. [2]

In a petition for certiorari and/or mandamus filed with the CA, petitioner assailed the decision of the RTC, alleging the
same to be null and void for having been rendered in violation of petitioner’s constitutional rights.

The proceedings that transpired in the trial court are accurately set forth in the Decision of the CA dated October 28,
2003, as follows:

On October 24, 1994, Asst. Provincial Prosecutor Danilo Uy filed an Information for estafa against petitioner
Mary Helen B. Estrada docketed as Criminal Case No. 94-6230…

On January 23, 1995, petitioner signed an undertaking that in case of her failure to appear during the trial
despite due notice, her absence would constitute as an express waiver of her right to be present during trial and
promulgation of judgment and the lower court would then proceed with the hearing in absentia.

During the hearing on May 30, 1996, Atty. Ma. Nenette Quicho, counsel for petitioner, failed to appear. On
motion of the private prosecutor, the lower court directed Atty. Ma. Nenette Quicho to explain in writing within ten
(10) days from notice why she should not be cited for contempt.

After the presentation of evidence for the prosecution on March 31, 1997, the lower court scheduled the
reception of evidence for the petitioner on May 14, 1997. Counsel for petitioner failed to explain her absence in the
previous hearing. She was found guilty of contempt of court and was sentenced to suffer the penalty of one (1) day
imprisonment.

On May 14, 1997, in view of the fact that petitioner jumped bail, the lower court considered her to have
waived the presentation of her evidence and declared the case submitted for decision.
 99

On June 13, 1997, a Notice of Appearance with Motion for Presentation of Evidence for the Defense was filed
by Atty. Herenio E. Martinez, as collaborating counsel for petitioner. He argued among others, that the fact that
despite trial in absentia and accused’s (petitioner) failure to surrender, still petitioner could present her evidence in
support of her defense because there were other witnesses who would testify for her. Hence, she prayed that the
scheduled date for promulgation of decision (June 18, 1997) be cancelled and she be allowed to present her evidence.

However, the subject decision was promulgated on July 2, 1997, convicting petitioner of the crime charged.

The Decision was entered in the Docket Book on September 3, 1997.

On December 1, 1999, petitioner moved for reconsideration and/or new trial stating that her constitutional
rights to be heard and to counsel were violated for the following reasons:

(1) counsel for petitioner was not served a copy of the Order dated March 31, 1997 citing her for contempt
of court;

(2) counsel for petitioner was not served any copy of the Order dated May 14, 1997 declaring petitioner to
have waived her right to present evidence and set the date of promulgation of decision on June 18, 1994 (sic) at 2:00
p.m.;

(3) the order dated July 18, 1997 denying the motion for reception of petitioner’s evidence was not
furnished counsel for petitioner and it came after the judgment of conviction; and

(4) the penalty imposed was beyond that allowed by law.

On March 6, 2000 the motion for reconsideration was denied for lack of merit.

On April 5, 2000 petitioner filed her notice of appeal but was denied due course in an Order dated April 5, 2000.[3]

It also appears from the records that on September 13, 1999, petitioner was arrested and detained at the Las Piñas
Police Station.[4] This was a little over two years after the judgment of conviction against her had been entered in
the criminal docket book on September 3, 1997, and prior to the filing of a motion for reconsideration and/or new trial
with the trial court on December 1, 1999.

Petitioner’s appeal was denied due course by the trial court in its Order dated April 5, 2000 for having been filed
beyond the reglementary period.[5] She then filed the aforementioned petition for certiorari and/or mandamus with
the CA, alleging that: the RTC judge violated petitioner’s constitutional right to due process by depriving petitioner of
the right to be assisted by counsel during the proceedings and failing to notify petitioner of the scheduled presentation
of defense evidence; the RTC judge imposed upon petitioner a penalty which was not authorized under the law for
which petitioner had been charged; the RTC judge acted with grave abuse of discretion amounting to lack or excess of
jurisdiction when he denied petitioner’s motion for reconsideration of the decision and/or motion for new trial; neither
petitioner nor her counsel has officially received a copy of the RTC decision, hence, the same has not yet become final
and executory at the time petitioner filed her motion for reconsideration and/or new trial; the RTC judge acted with
grave abuse of discretion amounting to lack or excess of jurisdiction when he denied due course to petitioner’s appeal
because petitioner filed her notice of appeal well within the fifteen day period within which to appeal, thus, it was the
mandatory duty of the RTC judge to approve the notice of appeal.

On October 28, 2003, the CA promulgated its decision denying the petition for certiorari. The CA held that there was
no grave abuse of discretion committed by the RTC judge as his actions were anchored on Section 14 (2), Article III of
the 1987 Constitution which states that “after arraignment, trial may proceed notwithstanding the absence of the
accused provided that he has been duly notified and his failure to appear is unjustifiable,” and on Section 1(c), Rule
115 of the Rules of Court which provides that “[t]he absence of the accused without justifiable cause at the trial of
which he had notice shall be considered a waiver of his right to be present thereat.” The CA further held that “[t]he
deprivation of her right to present evidence in her defense shall be deemed to include the non-admission of the
testimonies of the other witnesses other than the petitioner herself. This must be so because the deprivation of her
opportunity to present evidence due to unreasonable absences on the scheduled hearings is primarily intended to
safeguard the orderly administration of justice.” Thus, the CA concluded that the trial court’s action was well within
its jurisdiction.

The CA did not dwell on the propriety of the penalty imposed on petitioner although petitioner raised it as one of the
issues in the petition. In her motion for reconsideration of the CA Decision, petitioner called the CA’s attention to this
fact, and also pointed out that although petitioner, by failing to appear at several trial dates, may be deemed to have
waived her right to be present during the proceedings, such waiver does not include a waiver of her right to present
evidence. On February 23, 2004, the CA issued a resolution denying the motion for reconsideration for lack of merit.

Hence, petitioner filed the present petition for review on certiorari.

Previously, however, petitioner had filed an administrative case (A.M. OCA IPI No. 00-1002-RTJ) against Judge
Bonifacio Sanz Maceda of the RTC of Las Piñas City, Branch 275 for gross ignorance of the law. In a Resolution dated
August 13, 2001, the Court dismissed said administrative complaint but issued a stern reminder to respondent judge
to be more cautious in computing the appropriate penalty in the future to avoid injustice.

In connection with said administrative case, petitioner, who is presently detained at the Correctional Institution for
Women, sent a letter dated January 18, 2005, wherein she emphasized that although the Court’s Resolution of August
13, 2001 issued such stern warning to respondent judge, the same resolution did not give any relief for the injustice
she is now suffering due to the erroneous penalty imposed on her. Thus, in said administrative case, the Court issued
a Resolution dated March 9, 2005, resolving to treat petitioner’s letter as a petition for habeas corpus and ordered the
 100

Office of the Solicitor General to comment on said letter-petition. Thereafter, the Office of the Solicitor General filed
its Comment where it was manifested that there is a pending petition for review on certiorari with the Court which
turned out to be the herein petition under consideration, involving the issue of the penalty imposed on petitioner.

Thus, in a Resolution dated July 5, 2005, the Court resolved to consolidate the letter/petition for habeas corpus with
the instant petition for review on certiorari.
Petitioner alleges that the CA erred in deciding the case in a way not in accord with law or jurisprudence and departed
from the usual course of judicial proceedings. In support of said allegations, petitioner reiterated her arguments that
the trial court denied her the constitutional right to be heard and to be assisted by counsel by failing to furnish her
counsel copies of the order setting the date for reception of defense evidence on May 14, 1997, and the order
considering petitioner to have waived her right to present evidence in her defense; that the decision of the trial court
was null and void for imposing a penalty not authorized by law; that inasmuch as the decision was null and void, the
trial court acted with grave abuse of discretion in denying petitioner’s motion for reconsideration and/or new trial on
the ground that the assailed decision had become final; and that the CA utterly failed to resolve petitioner’s
submission that the trial court’s decision was null and void by virtue of the excessive penalty imposed.

At the outset, the undisputed fact that petitioner jumped bail while trial was pending should be emphasized. In fact, it
appears that from the beginning, the address she furnished the trial court was incorrect. The trial court’s process
server, Nap Manguserra, made a note on the subpoena he was trying to serve on petitioner, that “per ocular
inspection made, said address is a vacant lot ? subject person is unknown to her neighbors.”[6] From such fact alone,
petitioner’s arguments regarding the validity of the proceedings and promulgation of judgment in absentia for being in
violation of her constitutional right to due process are doomed to fail.

The holding of trial in absentia is authorized under Section 14 (2), Article III of the 1987 Constitution which provides
that “after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly
notified and his failure to appear is unjustifiable.” In fact, in People vs. Tabag,[7] the Court even admonished the trial
court for failing to proceed with the trial of some accused who escaped from preventive detention, to wit:

Finally, the trial court also erred in not proceeding with the case against Laureño Awod and Artemio Awod after their
successful escape on 19 October 1989 while in preventive detention. They had already been arraigned. Therefore,
pursuant to the last sentence of paragraph (2), Section 14, Article III of the Constitution, trial against them should
continue and upon its termination, judgment should be rendered against them notwithstanding their absence unless,
of course, both accused have died and the fact of such death is sufficiently established. Conformably with our
decision in People v. Salas, their escape should have been considered a waiver of their right to be present at their
trial, and the inability of the court to notify them of the subsequent hearings did not prevent it from continuing with
their trial. They were to be deemed to have received notice. The same fact of their escape made their failure to
appear unjustified because they have, by escaping, placed themselves beyond the pale and protection of the law.
This being so, then pursuant to Gimenez v. Nazareno, the trial against the fugitives, just like those of the others,
should have been brought to its ultimate conclusion. Thereafter, the trial court had the duty to rule on the evidence
presented by the prosecution against all the accused and to render its judgment accordingly. It should not wait for
the fugitives’ re-appearance or re-arrest. They were deemed to have waived their right to present evidence on their
own behalf and to confront and cross-examine the witnesses who testified against them.

It is obvious that the trial court forgot our rulings in Salas and Nazareno. We thus take this opportunity to admonish
trial judges to abandon any cavalier stance against accused who escaped after arraignment, thereby allowing the
latter to make a mockery of our laws and the judicial process. Judges must always keep in mind Salas and Nazareno
and apply without hesitation the principles therein laid down, otherwise they would court disciplinary action.[8]
mphasis supplied)

From the foregoing pronouncement, it is quite clear that all of petitioner’s protestations that she was denied due
process because neither she nor her counsel received notices of the trial court’s orders are all to naught, as by the
mere fact that she jumped bail and could no longer be found, petitioner is considered to have waived her right to be
present at the trial, and she and her counsel were to be deemed to have received notice.

Moreover, in the earlier case of People vs. Magpalao[9], the Court already ruled that:

. . . once an accused escapes from prison or confinement or jumps bail or flees to a foreign country, he loses his
standing in court and unless he surrenders or submits to the jurisdiction of the court he is deemed to have waived any
right to seek relief from the court.[10]

Nevertheless, in this case, records reveal that the trial court sent out notices to petitioner and her counsel. In a
Resolution dated September 30, 2002, the CA required the Office of the Solicitor General to submit proof of service on
petitioner and her counsel of the RTC’s Order dated March 31, 1997 setting the date for reception of evidence on May
14, 1997; the Order dated May 14, 1997 considering petitioner to have waived her right to present evidence in her
defense in view of the fact that she has jumped bail; and the RTC Decision dated July 2, 1997. On December 20,
2002, the Office of the Solicitor General, submitted such proof of service. Thus, in its Decision promulgated on
October 28, 2003, the CA made the factual finding that petitioner and her counsel were indeed duly served with
copies of the assailed RTC orders and decision at the addresses they submitted to the trial court. Factual findings of
the CA are conclusive on the parties and not reviewable by this Court.[11] As held in Morandarte vs. Court of
Appeals,[12] “inquiry upon the veracity of the CA’s factual findings and conclusion is not the function of the Supreme
Court for the Court is not a trier of facts.”

With the finding that petitioner and her counsel were duly notified of the hearing dates for reception of defense
evidence and the decision of the trial court, in addition to the undisputed fact that petitioner jumped bail when trial of
her case was pending, petitioner’s arguments that the RTC Decision was null and void for having been rendered in
violation of petitioner’s constitutional right to due process, i.e., the right to be heard and be assisted by counsel, must
also fail.
 101

Due process is satisfied when the parties are afforded a fair and reasonable opportunity to explain their respective
sides of the controversy.[13]

In the present case, petitioner was afforded such opportunity. The trial court set a hearing on May 14, 1997 for
reception of defense evidence, notice of which was duly sent to the addresses on record of petitioner and her counsel,
respectively. When they failed to appear at the May 14, 1997 hearing, they later alleged that they were not notified
of said setting. Petitioner’s counsel never notified the court of any change in her address, while petitioner gave a
wrong address from the very beginning, eventually jumped bail and evaded court processes. Clearly, therefore,
petitioner and her counsel were given all the opportunities to be heard. They cannot now complain of alleged violation
of petitioner’s right to due process when it was by their own fault that they lost the opportunity to present evidence.

The Court likewise upholds the validity of the promulgation in absentia of the RTC judgment and the RTC’s Order
dated April 5, 2000 denying due course to petitioner’s notice of appeal for being filed beyond the reglementary period.
Section 6, Rule 120 of the 1985 Rules on Criminal Procedure, the Rule applicable in this case since promulgation was
held before the effectivity of The Revised Rules of Criminal Procedure, provides:

Section 6. Promulgation of judgment --The judgment is promulgated by reading the same in the presence of the
accused and any judge of the court in which it was rendered. However, if the conviction is for a light offense, the
judgment may be pronounced in the presence of his counsel or representative. When the judge is absent or outside
of the province or city, the judgment may be promulgated by the clerk of court.

If the accused is confined or detained in another province or city, the judgment may be promulgated by the executive
judge of the Regional Trial Court having jurisdiction over the place of confinement or detention upon request of the
court that rendered the judgment. The court promulgating the judgment shall have authority to accept the notice of
appeal and to approve the bail bond pending appeal.

The proper clerk of court shall give notice to the accused personally or through his bondsman or warden and counsel,
requiring him to be present at the promulgation of the decision. In case the accused fails to appear thereat the
promulgation shall consist in the recording of the judgment in the criminal docket and a copy thereof shall be served
upon the accused or counsel. If the judgment is for conviction and the accused’s failure to appear was without
justifiable cause, the court shall further order the arrest of the accused, who may appeal within fifteen (15) days from
notice of the decision to him or his counsel. talics supplied)

Clearly, promulgation of judgment in absentia is allowed under the Rules. Hence, in Pascua vs. Court of Appeals,[14]
it was held that such promulgation is valid provided the following essential elements are present: (a) that the
judgment be recorded in the criminal docket; and (b) that a copy thereof be served upon the accused or counsel. The
factual circumstances in said case are analogous to the case at bar.

In Pascua, the promulgation of judgment in said case was set on May 5, 1998. When the case was first called on that
date, petitioner was not present although her counsel of record was in court. The case was set for second call. After
the lapse of two hours, the accused still had not appeared, thus, the dispositive portion of the decision was read in
open court. Afterwards, counsel for the accused received a copy of the decision, and upon motion of the prosecution,
the trial court ordered the issuance of a warrant of arrest and forfeiture of accused’s cash bond. No motion for
reconsideration or notice of appeal was filed by the accused within 15 days from May 5, 1998. On June 8, 1998,
accused, without discharging her counsel of record, filed through another lawyer a notice of change of address,
together with an omnibus motion to lift warrant of arrest and confiscation of bail bond, and also to set anew the
promulgation of the decision, alleging that the accused failed to appear at the scheduled promulgation because notices
for said schedule were sent to her former address, hence she was not able to receive any notice. Said motion was
denied by the trial court. The matter was brought to this Court where the accused argued that there was no valid
promulgation because she was not properly notified of the date thereof. The Court held thus:

Let us examine the validity of the May 5, 1998 promulgation which took place in the case at bar. The dispositive
portion of the decision convicting petitioner was read in open court, after which the public prosecutor, the defense
counsel Atty. Marcelino Arias, and private complainant Lucita Lopez, acknowledged receipt of their respective copies of
the decision by affixing their signatures at the back of the original of the decision on file with the record of the case.
Atty. Arias failed to file a notice of appeal within fifteen days from receipt of the decision. Is it proper to rule that the
period within which to file an appeal has lapsed?

In Florendo v. Court of Appeals (239 SCRA 325 [1994]), the facts are parallel to those of the instant case. We held –

In the case at bench, a copy of the judgment was served to the counsel of petitioner on June 15, 1992; therefore, he
had only up to June 30, 1992 within which to appeal. The notice of appeal filed on July 6, 1992 was clearly out of
time.

It is presumed that official duties are regularly performed and that the proceedings are made of record. This serves
as a substantial compliance with the procedural requirement of the recording of the judgment in the criminal docket of
the court. At any rate, petitioner does not question non-compliance of the requirement of the recording of the
judgment in the criminal docket.

(At p. 329.)

Petitioner's first argument is devoid of merit. In the first place, her non-receipt of the notice of promulgation was due
to her own failure to immediately file a notice of change of address with the trial court, which she clearly admitted.
Besides, promulgation could be properly done even in her absence, subject to the service of a copy of the decision
upon her or her counsel and the recording of the judgment in the criminal docket.
 102

In the present case, therefore, since the records bear out the fact that copies of the decision were sent by registered
mail to the given addresses of petitioner and her counsel, Atty. Herenio Martinez, and there is no question that the
judgment was indeed recorded in the criminal docket of the court, the promulgation was valid. The significance of
recording the decision in the criminal docket of the court was explained in Pascua, thus:

What is the significance of the recording of the judgment with the criminal docket of the court? By analogy, let us
apply the principles of civil law on registration.

…Simply stated, registration is made for the purpose of notification (Paras, Civil Code of the Philippines, Vol. II, 1989
ed., p. 653, citing Bautista vs. Dy Bun Chin, 49 O.G. 179 [1952]).

…Its purpose is to give notice thereof to all persons. …

Applying the above-mentioned principles to the instant case, we are prompted to further examine the provisions on
promulgation in absentia.

As held in Florendo vs. Court of Appeals (supra), the rules allow promulgation of judgment in absentia to obviate the
situation where juridical process could be subverted by the accused jumping bail. But the Rules also provide
measures to make promulgation in absentia a formal and solemn act so that the absent accused, wherever he may
be, can be notified of the judgment rendered against him. As discussed earlier, the sentence imposed by the trial
court cannot be served in the absence of the accused. Hence, all means of notification must be done to let the absent
accused know of the judgment of the court. And the means provided by the Rules are: (1) the act of giving notice to
all persons or the act of recording or registering the judgment in the criminal docket (which Section 6 incidentally
mentions first showing its importance); and (2) the act of serving a copy thereof upon the accused (at his last known
address) or his counsel. In a scenario where the whereabouts of the accused are unknown (as when he is at large),
the recording satisfies the requirement of notifying the accused of the decision wherever he may be.

From the foregoing, petitioner is deemed notified of the decision upon its recording in the criminal docket on
September 3, 1997 and she only had fifteen (15) days therefrom within which to file an appeal. Evidently, the notice
of appeal filed only on April 5, 2000 was filed out of time.

However, the Court cannot close its eyes to the fact that the penalty imposed by the trial court on petitioner was
indeed erroneous. The dispositive portion of the RTC’s Decision reads thus:

WHEREFORE, IN VIEW OF ALL THE FOREGOING, judgment is rendered finding accused GUILTY beyond reasonable
doubt as charged which is punished under Article 315, par. 2 (a), and applying the Indeterminate Sentence Law,
accused MARY HELEN ESTRADA is hereby sentenced to suffer an indeterminate prison term of TWELVE (12) YEARS of
prision mayor maximum as minimum to TWENTY-FOUR (24) YEARS as maximum; to pay back the sum of P68,700.00
to Junimar Bermundo and Rosalie Bermundo; and to pay the costs.

Art. 315 of the Revised Penal Code provides that the penalty of prision correccional in its maximum period to prision
mayor in its minimum period shall be imposed if the amount of the fraud is over P12,000.00 but not over P22,000.00;
if the amount of fraud exceeds P22,000.00, the penalty provided for shall be imposed in its maximum period, adding
one year for each additional P10,000.00, but the total penalty which may be imposed shall not exceed twenty years.

Thus, in this case, since the amount of fraud, which is P68,700.00, exceeds P22,000.00, the penalty should be
imposed in the maximum period. The range of the penalty provided for by law is composed of only two periods, thus,
to get the maximum period of the imposable penalty, the total number of years included in the two periods should be
divided into three. A computation produces the following results: the minimum period is 4 years, 2 months and 1
day to 5 years, 5 months and 10 days; the medium period is 5 years, 5 months and 11 days to 6 years, 8 months and
20 days; and the maximum period is 6 years, 8 months and 21 days to 8 years.[15]

The amount defrauded being in excess of P22,000.00, the penalty imposed should be the maximum period or 6 years,
8 months, and 21 days to 8 years of prision mayor. However, Art. 315 also provides that an additional one year shall
be imposed for each additional P10,000.00 amount of the fraud. Since the total amount of the fraud in this case is
P68,700.00 (P68,700.00 – P22,000.00 = P46,700.00), an additional four (4) years of penalty should be imposed.
Thus, the correct imposable maximum penalty is anywhere between 10 years, 8 months and 21 days and 12 years of
prision mayor in its maximum period.

Applying the Indeterminate Sentence Law, the minimum penalty that should have been imposed by the RTC should be
within the range of the penalty next lower to that prescribed by Article 315 of the Revised Penal Code for the crime
committed. Thus, in this case, the minimum penalty should be anywhere between 6 months, and 1 day of prision
correccional in its minimum period and 4 years and 2 months of prision correccional in its medium period.

In Rigor vs. The Superintendent, New Bilibid Prison,[16] this Court found it to be in the interest of justice to correct
the penalty imposed by the trial court so as to conform to the penalty prescribed by law despite the fact that the
judgment had already become final and executory for therein petitioner’s failure to take an appeal. Therein, the Court
expounded thus:

However, the Court noted a palpable error in the Joint Decision of the trial court that must be rectified in order to
avoid its repetition. The trial court erroneously included an additional one day on the maximum period of arresto
mayor imposed on petitioner, which is incorrect, as it is outside the range of said penalty. …
…

In line with the ruling of the Court in People vs. Barro, Sr., to wit:
 103

“However, where the penalty imposed on the co-accused who did not appeal was a nullity because it was never
authorized by law, that penalty imposed on the accused who did not appeal can be corrected to make it conform to
the penalty prescribed by law, the reason being that, said penalty can never become final and executory and it is
within the duty and inherent power of the Court to have it conformable with law.”

the error of the trial court in the present case can be corrected to make it conform to the penalty prescribed by law as
it is within the Court’s duty and inherent power. …Thus, the correction to be made by this Court is meant only for the
penalty imposed against petitioner to be in accordance with law and nothing else. …[17]

Thus, pursuant to the foregoing ruling, the Court likewise sees it befitting in this case to modify the penalty imposed
on petitioner. It must be noted, though, that in the afore-quoted case, the Court also pointed out that the petition for
habeas corpus cannot be granted if the accused has only served the minimum of his sentence because he must serve
his sentence up to its maximum term.[18]

WHEREFORE, the letter/petition for habeas corpus are DENIED. The petition for review on certiorari is PARTLY
GRANTED insofar only as the penalty is concerned. In the interest of justice, the sentence of petitioner in Criminal
Case No. 94-6230 is MODIFIED as follows: Applying the Indeterminate Sentence Law and there being no mitigating
or aggravating circumstance, petitioner is sentenced to suffer an indeterminate prison term of two (2) years of prision
correccional as MINIMUM to eleven (11) years of prision mayor as MAXIMUM.

SO ORDERED.
 104

[2000V1385] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PATERNO VITANCUR y BALINO,
accused-appellant.2000 Nov 222nd DivisionG.R. No. 128872D E C I S I O N

MENDOZA, J.:

This is an appeal from the decision[1] of the Regional Trial Court, Branch 9, Malolos, Bulacan, finding accused-
appellant Paterno Vitancur y Balino guilty beyond reasonable doubt of rape committed against Evelyn Adalla and
sentencing him to suffer the penalty of reclusion perpetua plus accessory penalties and to pay private complainant
P30,000.00 as moral damages.

The information against accused-appellant reads as follows:

That on or about the 6th day of February 1995, in the municipality of San Rafael, province of Bulacan, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused armed with a bladed weapon did then and
there willfully, unlawfully and feloniously, by means of force, intimidation and with lewd designs, have carnal
knowledge of the offended party Evelyn Adalla against her will and without her consent.

CONTRARY TO LAW.[2]

Accused-appellant pleaded not guilty to the charge and so trial was held.

The facts of the case are as follows:

Complainant Evelyn Adalla, 25 years old, married with two children, was employed as a factory worker at the Tryco
Pharmaceuticals Corporation (Tryco), in Brgy. San Roque, San Rafael, Bulacan. The company is engaged in the
manufacture and marketing of veterinary and animal health products. Complainant was assigned to the company’s re-
packing section.

On February 6, 1995, there was no work at Tryco because there was a birthday celebration of its owner. Evelyn was
placed in charge of the kitchen, serving food and drinks to the guests. At around 7 p.m., after she was through with
her chores, she went to the basketball court to watch the basketball game in which her husband Virgilio Adalla, Jr.
(Virgilio) played. After a while, Virgilio pulled out of the game as his team was already leading by 15 points and asked
complainant to get his bag, which contained his clothes, from the second floor of the warehouse. He told her to bring
the bag to the kitchen so that he could take a shower in the bathroom there.

Evelyn did as bidden. She proceeded to the warehouse.[3] As she entered the warehouse, she saw accused-appellant
emerge from behind a pile of cardboard boxes on the ground floor. Accused-appellant, then 29 years old and married,
was also employed at the repacking section of the company. Complainant asked him why he was there. But instead of
replying, accused-appellant grabbed her by her right arm with his left hand and pulled her towards him. Then, with his
right hand, he pointed a bladed weapon at her neck and threatened to kill her if she resisted his advances.
Complainant noticed that he smelled of liquor. Accused-appellant dragged her to a dark place behind the pile of boxes.
Then he embraced her and kissed her and fondled her private parts. Evelyn tried to resist but she was boxed in the
stomach. The blow sent her to the floor. She heard accused-appellant unzip his fly. Accused-appellant then forcibly
removed her pants and panties. Accused-appellant went on top of her and separated her legs as he inserted his penis
in her vagina. Accused-appellant again held the bladed weapon and poked it at her. Accused-appellant then made
coital movements, all the while threatening complainant with harm if she made an outcry, until he ejaculated. Evelyn
no longer resisted as she was afraid he might make good his threat. Besides, shouting for help would not do because
of the noise outside. After he was through, accused-appellant stood up and warned complainant not to report the
incident to anybody or else he would kill her and her husband. He threw her pants and panties at her and ordered her
to dress up. Afterwards, accused-appellant left the warehouse.[4]

As soon as accused-appellant had left, Evelyn went out of the warehouse and ran towards the rest house. Her
husband Virgilio, who had been looking for her, noticed her hair to be disheveled and her shirt torn at the buttonhole.
Evelyn ran towards him and embraced him. When asked, Evelyn narrated between sobs what had happened. Virgilio
seethed with anger and was about to go after accused-appellant, but he was stopped by complainant because
accused-appellant had a bladed weapon.[5]

The matter was reported to Xavier Marlon Rivera (Marlon), the son of the owner of Tryco, who ordered the security
guards to stop and apprehend accused-appellant.[6]

Accused-appellant was taken into custody by the security guards. Marlon said he then went to the main gate where he
found accused-appellant nervously asking “Patawarin ninyo ako.” (“Forgive me.”)[7]

Accused-appellant was brought to the police station where he was detained. The incident was recorded in the police
blotter. Evelyn and Virgilio were investigated. The investigation, however, was not completed because Evelyn was still
in a state of shock and could not narrate what happened to her. They were advised to return the following day for the
continuation of the investigation. Virgilio then took Evelyn to a hospital in Baliuag, Bulacan for examination, but she
was not given one because the doctors in the said hospital did not want to testify in court.[8]

In the morning of February 7, 1995, Virgilio and Evelyn returned to the police station. They were referred to Camp
Olivas, San Fernando, Pampanga, where Evelyn was examined by Dr. Edgardo O. Gueco of the Philippine National
Police.[9] Dr. Gueco prepared a medico-legal report which contained the following findings:

GENERAL AND EXTRA-GENITAL:

Physical Built: Regular built
Mental Status: Coherent female subject
Breast: Hemispherical in shape with dark brown areolae and nipples from which no secretion could be pressed out.
 105

Abdomen: Flat and firm.

Physical Injuries: No external signs of recent application of any form of trauma.
GENITAL:
Pubic Hair: Moderate growth
Labia Majora: Full, convex and slightly gaping.
Labia Minora: Dark brown and hypertrophied.
Hymen: Reveals curunculae myrtiformis
External Vaginal Orifice: Offers moderate resistance to the introduction of the examining index finger.
Vaginal Canal: Narrow with flattened rugosities.
Cervix: Normal in shape and consistency.
Peri-Urethral and Vaginal Smears: Positive for the presence of spermatozoa.

REMARKS: Subject is in non-virgin state physically.

Findings compatible to a recent sexual intercourse.[10]

Evelyn and Virgilio then returned to the police station in San Rafael, Bulacan and gave their sworn statements.[11]
Accused-appellant denied the charges against him. He claimed he and Evelyn had been lovers since 1992. According
to him, he courted Evelyn and, although she was already married, Evelyn fell in love with him. He narrated how one
evening, when her husband was away, Evelyn invited accused-appellant over to the conjugal residence. When
accused-appellant arrived in the house, Evelyn allegedly embraced and kissed him, and they made love. From then
on, they had been having their trysts at the conjugal residence of complainant and her husband whenever the latter
was away, usually between 8 to 9 p.m. Accused-appellant testified that after Evelyn had her second child, they would
have sex whenever they worked overtime at the company. Evelyn allegedly told him that her love for her husband
had faded because the latter’s organ was small.

On February 6, 1995, at around 7 p.m., accused-appellant said he was in front of the rest house when Evelyn signaled
to him to meet her inside the warehouse. Accused-appellant proceeded to their place of assignation. He said he asked
Evelyn if she was not afraid of having sex with him when her husband was around, but Evelyn kissed him and took off
her blouse. Accused-appellant, therefore, undressed, and they had sexual intercourse, which lasted about five
minutes. Then, Evelyn left.

As he was leaving the place, he met Virgilio but they did not greet each other. Then, he heard Virgilio confronting
Evelyn, asking her where she had been. Evelyn told Virgilio that she was just at the rest house. Virgilio did not believe
her and said that he searched for her in the rest house, but she was not there. Virgilio accused Evelyn of having come
from a rendezvous with someone else. For this reason, the two had an altercation. As Virgilio dragged Evelyn towards
the second floor of the warehouse, accused-appellant took the chance to get out and returned to the rest house.[12]
A co-worker, Cristopher Absalon, later told him that Evelyn wanted to see him at the kitchen.[13] When he went to
meet Evelyn, she told him that she had admitted to Virgilio their relationship. After a while, he saw Virgilio talking to
Marlon.[14]

Accused-appellant said he was then apprehended by the security guards of Tryco. Marlon came and asked him to go
with him to the police. When he asked him if he had done anything wrong, Marlon boxed and slapped him causing him
to fall on his knees. Then, Marlon tied accused-appellant’s hands and took him to the police station.[15]

On November 12, 1996, the trial court rendered its decision finding accused-appellant guilty of rape. The dispositive
portion of the its decision reads:

WHEREFORE, in the light of the evidence adduced and the laws/jurisprudence applicable thereon, judgment is hereby
rendered finding accused PATERNO VITANCUR y BALINO guilty beyond reasonable doubt of the crime of rape as
charged in the Information and sentencing him to suffer the imprisonment of reclusion perpetua, plus the accessory
penalties prescribed by law, and to indemnify private complainant EVELYN R. ADALLA in the amount of P30,000.00 as
moral damages. Costs de oficio.

SO ORDERED.[16]

Accused-appellant appealed, assigning the following errors as having been allegedly committed by the trial court :

I. THE COURT ERRED, IN ORDERING THE TRIAL OF THE CASE, WITH HASTE, BY APPOINTING A COUNSEL DE OFICIO
TO REPRESENT THE ACCUSED IN THE INITIAL TRIAL DESPITE THAT THE COURT HAS KNOWLEDGE THAT ACCUSED IS
REPRESENTED BY COUNSEL DE PARTE ON SAID HEARING.

II. THE COURT ERRED IN APPRECIATING FAVORABLY THE PROSECUTION EVIDENCE WITHOUT SCRUTINIZING WITH
UTMOST CAUTION THE TESTIMONY OF THE COMPLAINANT AND HER WITNESSES DESPITE INCONSISTENCIES YET
DENYING THE INTRINSIC VALUE OF THE DEFENSE EVIDENCE SUPPORTING HIS ACQUITTAL.[17]

The assignments of errors will be dealt with in the order they are presented.

First. Accused-appellant claims that the trial court hastily appointed a counsel de oficio to represent him, without his
consent, during the initial trial on account of his counsel’s absence. He argues that this is in violation of Art. 14 of the
International Covenant of Civil and Political Rights to give him legal protection considering that he was charged with a
heinous crime.[18]

This argument is untenable. Accused-appellant’s counsel was duly notified of the initial presentation of the prosecution
evidence. However, without any prior notice to the trial court or any motion for the cancellation of the said hearing, he
failed to appear at the trial. It appears that in its desire to prevent any delay in the proceedings, the trial court
appointed a counsel de oficio for accused-appellant. The latter proceeded to trial without making any comment or
objection. He must therefore be deemed to have consented as to the temporary representation by said counsel, which
 106

was only for the purpose of the direct examination of private complainant. Contrary to accused-appellant’s claim, the
appointment of a counsel de oficio in his favor was very much in line with the trial court’s duty to provide him the
legal protection under the law he invoked, in view of the fact that his counsel de parte, despite due notice of the trial,
failed to appear. Besides, such action by the trial court did not prejudice his defense considering that he was able to
lengthily cross-examine private complainant.

Second. Accused-appellant contends that the public prosecutor should not have been allowed to ask further questions
on direct from private complainant after he had terminated his examination-in-chief because he had no prior leave
from the court to do so.[19] This is not correct. The records will show that the public prosecutor did ask for permission
to continue his direct examination of private complainant and the trial court granted him permission to do so.[20]

Accused-appellant also points out the following: (1) there were no signs of the use of force on private complainant;
(2) the bladed weapon which complainant claimed accused-appellant used in committing the crime was not presented
in court; (3) there were inconsistencies regarding the place and the time private complainant was requested by her
husband to get his belongings; (4) aside from private complainant and her husband, no other person testified having
seen complainant with disheveled hair and a torn shirt; (5) that complainant stopped her husband from pursuing
accused-appellant after the crime because the latter was armed is incredible considering her husband’s position in the
company; and (6) that accused-appellant smelled of liquor was a self-serving statement since it was not corroborated.

We find these allegations to be without merit. To begin with, it should be remembered that in rape it is usually only
the victim who can attest to its occurrence.[21] That is why courts subject the testimony of alleged victims to strict
scrutiny before relying on it for conviction of the accused.

In the case at bar, complainant described how accused-appellant, armed with a bladed weapon, threatened to kill her
if she would not give in to his sexual demand. She was boxed in the stomach when she tried to resist. Although she
did not see what the weapon exactly was, she knew it was a bladed weapon because it was pointed at her neck. After
the despicable incident, her husband, who had been looking for her, saw her hair disheveled and her shirt torn at the
button hole. Accused-appellant said no one except her husband saw her condition. But if as accused-appellant claims,
he and complainant had a tryst at the warehouse, it must really be that when her husband saw complainant’s hair was
dishevelled and her shirt partly torn, it was because that there were no facilities in the warehouse where she could
have primmed up before rejoining her husband outside.

Indeed, from her sworn statement before the police up to the time she testified in court, complainant remained
steadfast in her claim that she was raped. She positively identified accused-appellant as the rapist. She held on to her
testimony despite rigorous cross-examination by the defense counsel. She denied having an affair with accused-
appellant. She explained that accused-appellant could have gotten pictures (Exhs. 6 and 7) of her and her second
child from her husband who brought the pictures to the workplace to show to their co-workers in the factory.[22] The
trial court found complainant to be truthful and credible in her testimony, as shown by the spontaneity with which she
answered questions propounded to her.[23] We have no reason to disregard the trial court’s evaluation of the
credibility of complainant and other witnesses for the prosecution.

The fact that private complainant bore no evidence of any force used against her person is of no moment. The
absence of any external sign of physical injury does not necessarily negate the occurrence of rape, proof of injury not
being an essential element of the crime.[24] Complainant was threatened with harm. She was found to have sexual
intercourse with accused-appellant through fear. Furthermore, there is medical authority to the effect that when force
is applied to the stomach, no marks of violence may be detected.[25]

On the other hand, the medico-legal report contains a finding of the presence of spermatozoa in complainant’s
genitals confirming recent sexual intercourse. According to Dr. Gueco, sperm cells only have a life span of 48 hours
inside the vaginal tract and private complainant was examined on the day following the crime.[26] The presence of
spermatozoa in the complainant’s private organ affirms the charge much more than words or anger alone can.[27]
After all, complainant said the last time she had sexual intercourse with her husband was on February 1, 1995.[28]

The fact that the weapon with which complainant claimed she was intimidated by accused-appellant could not be
presented in court could not impeach private complainant’s credibility as the weapon is not essential to the
prosecution of rape cases.[29] What is important is that because of force and intimidation, private complainant was
made to submit to the will of accused-appellant. As stated in People v. Maglente,[30] the test is whether the threat or
intimidation produces in the mind of a reasonable person fear that if she resists or does not yield to the desires of the
accused, the threat will be carried out.

The alleged inconsistencies as to the time and place complainant was asked by her husband to get his belongings
from the warehouse are more apparent than real. A perusal of the transcript of stenographic notes will show that
complainant was asked by her husband at 5 p.m. on February 6, 1995 to get his bag from the warehouse. At that
time, she was still in the kitchen. At around 7 p.m., when she went out to watch the game, her husband, who had
pulled out of the game, asked her for his bag. Complainant then went to the warehouse, about 80 to 100 meters
away, where accused-appellant was. There is thus no inconsistency in the testimony of complainant.

At any rate, the alleged inconsistencies do not relate to material points. They do not detract from the fact that private
complainant was raped by accused-appellant, as she claimed.

Indeed, the testimony of private complainant deserves full faith and credit. No decent woman, especially one who is
married, would, in her right mind, fabricate a story that could sully her reputation and bring shame and disgrace to
herself and her family unless she is motivated by a desire to seek justice for a wrong committed against her.[31]
On the other hand, accused-appellant’s claim that he and private complainant were paramours has no evidence to
support it. No love letters, pictures, or other mementos of a relationship were presented to show that accused-
appellant and complainant were indeed lovers.[32]
 107

Accused-appellant presented a letter from a former co-worker at Tryco, Charina Magracia, to prove that he had sexual
relations with private complainant. The letter was written to accused-appellant in jail. It reads:

Paring Patty

Bago ang lahat kamosta ka rin dyan kong kami naman ganon pa rin. Patty alam namin ang hirap na dinanas mo dyan
lalo na sa pamilya mo. Alam namin na hindi toto-ong ni-rape mo yong Baba-e, dahil lang sa haka haka namin, lalo na
ako ang tagal ko ng hindi kayo nakasama sa Tryco, iwan ko yong iba. At saka ngayon mo lang nasabi na malibog
yong Baba-e na may nangyari na. Bakit no-on hindi mo naisip lahat yan. Kong sabagay huli na ang lahat. Patty alam
kong lahat ang naranasan mo dyan sa lo-ob hindi kaya ganon 2x lang napakahirap. Piro pasinsya ka na sa akin kong
ako lang mag-isa hindi ko kaya. Sinabe ko naman kay Tiya Aning hindi ko kaya kong ako lang mag isa. At saka huwag
mo na akong isama hindi ko na alam ang mga nangyayari sa inyo. Isang taon na akong nawala sa Tryco. Pinabasa ko
sa 3 yong sulat ni Maring Eden. Ang sagot kaya mo raw pasukan dapat kaya mo rin daw na labasan. Si Maring Yolly
naman. Wala daw siyang alam. At si Ate Elma naman wala din daw siyang alam. Ako naman sa haka haka lang. At
alam na alam ni Bulaw na kahit sa haka (2x) lang nasasabi ko sa kanya ang naramdaman ko at haka (2x) ko sa
inyong dalawa ni Evelyn. Iwan ko lang kong naniniwala siya sa akon kong nasabi sa iyo. Tama yong sinabe mo na
walang impusibli sa Diyos kaya ipanalangin na lang namin na makalabas ka dyan. Dahil talagang wala kaming itulong
lalo na ako. Sana maintindihan mo kami. Lugar nila ito. May pamilya kami. Save nga kayo eh kami paano na. Huwag
mo ng isipen na makapunta pa kami dyan. Wala na nga silang trabaho piro wala ng isip na bumisita sa iyo. Ayaw din
niya syempre madamay sana maintindihan mo naman kami. Kasama ka namin sa aming panalangin, Kahit nga sa
simbahan pinapabanggit ka ni Madam. Hanggang do-on lang nga talaga. Siguro lahat alam lahat ng mga kasamahan
natin no-on na kahit sa pahalata-an lang na may relasyon kayo. Piro my gusto bang tumistigo wala kahit isa. Kahit
nga taga dito eh walang lakas loob. Kami pa. Isipin mo naman yon. Sana naman ma-intindihan mo kami. Huwag ka
na raw sumulat dito na may pangalan pa na nababanggit tulad no-ong 3 dahil wala daw silang alam. Itong sinulat ko
hindi kay sarili ko lang ito. Ito rin ang sinabi nilang 3. Pasinsya ka na sa sulat ko magulo ang isip ko. Salamat.

Bulaw hindi mo ako masisi di ba lahat sinabe ko sa iyo. Hindi ako plastic sayo toto-ong tao ako. Hindi mo lang ako
pinakinggan. Kamosta nalang kayong mag-ina.[33]

(Charina)

The letter proves nothing. It is based simply on the writer’s conjectures (haka-haka) and could very well have been
solicited by accused-appellant.

Nor does Cristopher Absalon’s testimony have any probative value. His testimony showed that he was merely forced
to testify for the defense. Apparently, this witness, being jobless, agreed to testify because he had been allowed by
the brother of accused-appellant to stay with him in the latter’s residence.[34] Accused-appellant’s claim that
complainant’s husband tried to prevent Absalon from testifying is not true. What complainant’s husband did was
simply to advise him (Christopher Absalon) that if he did not want to testify, he need not talk about anything and just
state that he did not know a thing about the incident. Thus, Virgilio S. Adalla’s note to Absalon reads:[35]

CRIS,

NAKAUSAP KO NA SI BOSS JINGGOY.[36] SABI NIYA MAGUSAP-USAP DAW TAYO SA SUSUNOD NA LINGGO SA
KANILA. (OCT. 1). SAMANTALA, KUNG AYAW MO RAW TUMISTIGO HUWAG KA NA LANG MAGSALITA NG KUNG ANO
MAN. SABIHIN MO WALA KANG ALAM KAHIT ANO.

INUMAN? SA LINGGO NA LANG.

ANO O.K.??
SABADO NG GABI
PUMUSLIT KA DIYAN
KASI AALIS TAYO
LINGGO NG UMAGA VSA

We have reviewed the records of this case, and we find no reason to overturn the trial court’s evaluation of the
evidence. Findings of fact of trial courts are entitled to great respect and are binding on us in the absence of showing
of bias, partiality, or grave abuse of discretion on the part of the presiding judge, who had the advantage of observing
the demeanor of the witnesses.[37]

However, the award of moral damages should be increased from P30,000.00 to P50,000.00 in line with our recent
rulings. Such amount is automatically granted in rape cases without need of proof for it is assumed that the victim has
suffered moral injuries entitling her to such an award.[38]

In addition, complainant should be paid civil indemnity. Moral damages are separate and distinct from the civil
indemnity. In accordance with current rulings, accused-appellant should be ordered to pay the private complainant
the amount of P50,000.00 by way of civil indemnity.

WHEREFORE, the decision appealed from is AFFIRMED with the MODIFICATION that accused-appellant Paterno
Vitancur y Balino is ORDERED to pay complainant Evelyn Adalla the amounts of P50,000.00 as civil indemnity, plus
P50,000.00 as moral damages.

SO ORDERED.
 108

[2005V1042] JOEL P. LIBUIT, Petitioner, versus PEOPLE OF THE PHILIPPINES, Respondent.2005 Sep
131st DivisionG.R. No. 154363D E C I S I O N

QUISUMBING, J.:

Before us is the petition for review on certiorari filed by Joel P. Libuit, seeking to reverse and set aside the
Decision[1] dated March 11, 2002, of the Court of Appeals in CA-G.R. CR No. 22766. The assailed decision affirmed
the petitioner’s conviction by the Regional Trial Court of Lipa City, Branch 85, for estafa as defined and penalized
under Article 315 1(b) of the Revised Penal Code.[2]

The Amended Information filed against the petitioner reads as follows:

That during the period from May 1993 to August 31, 1994, at Lipa City, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused wilfully, unlawfully and feloniously committed the crime of estafa in the
manner, to wit: sometime in May 1993, Domingo del Mundo delivered and brought his car, described as follows: Make
& Type – Chevy 2dr. HT: Plate No. EDD-725, Motor No. 18R-9597750, Chassis No. 1Y17H4W151340 valued at
P60,000.00, to the motor shop located at Brgy. Sico, Lipa City, and owned and/or operated by Joel Libuit and Julius
Libuit for repair of its damaged parts, which car was received by Jose Bautista, then mechanic in the said motor shop,
but accused Joel Libuit, once in possession of the said car, and far from complying with his obl[i]gation or duty to
make the appropriate repairs and to return or deliver the said car as properly repaired to Domingo del Mundo, with
intent to defraud and with abuse of confidence, wilfully, unlawfully and feloniously misappropriated, converted and/or
misapplied the said car to his own personal use and benefit and despite repeated demands to return the said car to
the owner thereof, accused refused and failed to do so, to the damage and prejudice of Domingo del Mundo, owner of
the said car, in the amount of P60,000.00, Philippine Currency.

Contrary to law.[3]

On arraignment, the petitioner, assisted by counsel, pleaded not guilty.

It appears from the prosecution evidence that sometime in May 1993, the private complainant, Domingo del
Mundo, brought his car for repair at the Paeng Motorworks operated by the petitioner. The car was received by Jose
Bautista, a mechanic, in the presence of the petitioner who assured the private complainant that it would be safe in
his motor shop.

When private complainant del Mundo returned to the motor shop in January 1994, he saw his car by the roadside
while the engine was inside the shop. Bautista explained that the engine was pulled out because it also needed
repairs. Nevertheless, the petitioner and Bautista assured him that they would finish the repair work and deliver the
car to del Mundo’s house after two weeks. However, the petitioner failed to deliver the car to the owner. Private
complainant gave him another two weeks to finish the repairs. Thereafter, the private complainant returned to the
motor shop and found that his car was already missing. He reported the matter to the police, who discovered that the
petitioner had sold the car’s differential and cylinder head, while the engine could no longer be found.

The petitioner (Libuit) testified on direct examination. However, his defense counsel, Atty. Glenn P. Mendoza of De
Jesus Linatoc and Associates, withdrew from the case after his initial cross-examination.[4] On motion of the
petitioner, the continuation of his cross-examination was reset to give him time to engage the services of another
counsel.[5] The petitioner eventually secured the services of Atty. Jose Dimayuga.

At the subsequent hearings on October 13, 1997, and November 26, 1997, Atty. Dimayuga failed to appear despite
notices. On motion of the prosecution, the trial court issued an Order dated November 26, 1997,[6] striking from the
records the petitioner’s direct testimony and declaring the case submitted for decision on the basis of the evidence
already on record.

After further proceedings, the trial court rendered judgment on January 27, 1999, finding herein petitioner guilty
beyond reasonable doubt of the crime of estafa. The dispositive portion of the RTC decision reads:

WHEREFORE, the foregoing premises considered, judgment is hereby rendered finding the accused JOEL LIBUIT guilty
beyond reasonable doubt of the crime of Estafa, as the same is defined and penalized under Article 315 1(b) of the
Revised Penal Code, and, with the application of the Indeterminate Sentence Law, the Court sentences him to suffer
the penalty of imprisonment ranging from Eight (8) years and Eight (8) months of Prision Mayor as minimum to
Fourteen (14) years and Ten (10) months of Reclusion Temporal as maximum. The accused is moreover ordered to
pay Domingo del Mundo the amount of P60,000.00 representing the value of the car, plus costs of suit.

SO ORDERED.[7]

On appeal, the Court of Appeals affirmed in toto the decision of the trial court. The appellate court gave credence to
the trial court’s findings that the elements of the crime of estafa with abuse of confidence were present. The private
complainant’s car was received at the motor shop operated by the petitioner who was under the obligation to repair
and deliver it to the private complainant’s house. Although it was Bautista, the petitioner’s mechanic, who personally
received the car, the fact remained that the petitioner was then present and even assured the private complainant
that the car would be safe in his motor shop. Like the trial court, the Court of Appeals ruled that the private
complainant would not have returned to the petitioner’s motor shop after the two-week extension were it not precisely
to demand for the return of his car.

The Court of Appeals likewise held that the trial court never deprived the petitioner of his right to counsel as he was
represented by a counsel de parte, Atty. Glenn P. Mendoza. When said counsel withdrew, the trial court allowed the
 109

resetting of the petitioner’s cross-examination to give him time to engage the services of another counsel. It ordered
the striking of his testimony from the records only after his new counsel failed to appear at the subsequent hearings.

Before us, the petitioner raises now the following issues:

WHETHER THE COURT OF APPEALS GRAVELY ERRED WHEN IT DID NOT CONSIDER THAT THE PROSECUTION FAILED
TO PROVE THAT THE SUBJECT VEHICLE WAS ENTRUSTED TO THE PETITIONER-ACCUSED.

II

WHETHER THE COURT OF APPEALS GRAVELY ERRED WHEN IT AFFIRMED THE TRIAL COURT’S FINDING OF GUILT
AGAINST THE PETITIONER-ACCUSED DESPITE THE ABSENCE OF FORMAL DEMAND FOR THE PETITIONER-ACCUSED
TO FULFILL THE TRUST OR TO RETURN THE THING RECEIVED.

III

WHETHER THE COURT OF APPEALS GRAVELY ERRED WHEN IT RULED THAT THE TRIAL COURT NEVER DEPRIVED THE
PETITIONER-ACCUSED OF HIS CONSTITUTIONAL RIGHT TO COUNSEL.[8]

Simply put: the issues for our resolution are: (1) Was there sufficient evidence to sustain the petitioner’s conviction?
(2) Was petitioner deprived of his right to counsel?

Petitioner argues on the first issue, that the Court of Appeals committed a reversible error in convicting him without
sufficient evidence of his guilt. He contends that the trial court gravely misapprehended the facts in finding that the
elements of estafa with abuse of confidence, under Article 315 1(b) of the Revised Penal Code, were present. He
stresses that the car was not entrusted to him and that he had no duty to deliver it to the private complainant. He
adds that the private complainant did not demand for the return of his car.

The elements of estafa under Article 315 1(b) of the Revised Penal Code are as follows: (1) that money, goods, or
other personal properties are received by the offender in trust, or on commission, or for administration, or under any
other obligation involving the duty to make delivery of, or to return, the same; (2) that there is a misappropriation or
conversion of such money or property by the offender or denial on his part of such receipt; (3) that such
misappropriation or conversion or denial is to the prejudice of another; and, (4) that there is a demand made by the
offended party on the offender.[9]

Based on the evidence, we entertain no doubt that petitioner operated the Paeng Motorworks. Private complainant
Domingo del Mundo categorically identified the petitioner as the owner.[10] There is no denying that Jose Bautista, to
whom the car was entrusted, was a mechanic in petitioner’s shop. Petitioner could not disclaim responsibility for the
return of the car simply because it was his mechanic who received it. In fact, when the car was left with Bautista, the
petitioner was present, and petitioner even assured the private complainant that it would be safe in his motor shop.
[11]

Even if we give credence to petitioner’s allegation that at the time the car was left, it was Bautista who operated the
motor shop by virtue of a verbal lease with his mother, he is still liable for estafa. As alleged by the petitioner
himself, Bautista abandoned the motor shop on October 1993. Yet, he never denied the fact that when the private
complainant returned to the motor shop in January 1994, the car and its engine were still there. By then, the
petitioner should have been put on notice as to the car’s ownership. Notwithstanding this information, however,
petitioner still sold its differential and cylinder head.

On the issue of demand, it is our view that demand was properly made when the private complainant returned to the
motor shop after giving the petitioner a two-week extension to complete the car’s repair. When the private
complainant went to the motor shop on January 1994, the petitioner promised to deliver the car after two weeks.
When he failed in his promise, petitioner was given by the private complainant another two-week extension. It was
only when the car was still not delivered to the private complainant, that he went back to the motor shop again, and
finally discovered that his car was missing there.

Given the circumstances on record, we find the petitioner’s acts inexcusable and his testimony on the witness stand
unconvincing. Petitioner’s allegations now are nothing but a rehash of arguments he unsuccessfully raised before the
trial court and the Court of Appeals. It must be stressed that except for the petitioner’s claim that he was deprived of
his constitutional right to counsel, all the grounds raised by him now involve factual issues already passed upon twice
below, and are inappropriate in a petition for review under Rule 45, which allows only questions of law to be raised.

Factual findings and conclusions of the trial court and the Court of Appeals are entitled to great weight and respect,
and will not be disturbed on review by us, in the absence of any clear showing that the lower courts overlooked
certain facts or circumstances which would substantially affect the disposition of the case. The jurisdiction of this
Court over cases elevated from the Court of Appeals is limited to reviewing or revising errors of law ascribed to the
Court of Appeals. The factual findings of the appellate court generally are conclusive, and carry even more weight
when said court affirms the findings of the trial court, absent any showing that the findings are totally devoid of
support in the record or that they are so glaringly erroneous as to constitute grave abuse of discretion.[12]

Now, in this case, the only question of law properly raised is whether the petitioner was deprived of his constitutional
right to counsel. In his Reply,[13] petitioner contends that the trial court should have appointed a counsel de oficio
when his counsel consistently failed to appear for his cross-examination.
 110

The duty of the court to appoint a counsel de oficio for the accused who has no counsel of choice and desires to
employ the services of one is mandatory only at the time of arraignment. No such duty exists where the accused has
proceeded to arraignment and then trial with a counsel of his own choice. Worth noting, when the time for the
presentation of evidence for the defense arrived, and the defendant appeared by himself alone, the absence of his
counsel was inexcusable.[14]

In the present case, since the petitioner was represented by counsel de parte at the arraignment and trial, the trial
court could not be deemed duty-bound to appoint a counsel de oficio for the continuation of his cross-examination.
Indeed, after his initial cross-examination, the trial court granted the petitioner’s motion to postpone, giving him
sufficient time to engage the services of another counsel. The failure of Atty. Jose Dimayuga, his newly hired lawyer,
to appear at the subsequent hearings without reason was sufficient legal basis for the trial court to order the striking
from the records of his direct testimony, and thereafter render judgment upon the evidence already presented. In
fact, the repeated failure to appear of defendant’s counsel at the trial may even be taken as a deliberate attempt to
delay the court’s proceedings.

At the most, the appointment of a counsel de oficio in a situation like the present case would be discretionary with the
trial court, which discretion will not be interfered with in the absence of grave abuse.[15] This Court is convinced that
the trial court had been liberal in granting postponements asked by the petitioner himself. We think that such
liberality removes any doubt that its order was tainted with grave abuse of discretion.

WHEREFORE, the instant petition is DENIED. The decision dated March 11, 2002, of the Court of Appeals
upholding the decision of the Regional Trial Court of Lipa City, Branch 85, in Criminal Case No. 972-94 is hereby
affirmed.

No pronouncement as to costs.

SO ORDERED.
 111

[2007V919] LEODEGARIO BAYANI, Petitioner, versus PEOPLE OF THE PHILIPPINES, Respondent.2007

Aug 143rd DivisionG.R. No. 155619D E C I S I O N

AUSTRIA-MARTINEZ, J.:

Leodegario Bayani (petitioner) was charged with Violation of Batas Pambansa Blg. 22 in an Information, to wit:

That on or about the 20th day of August 1992, in the Municipality of Candelaria, Province of Quezon,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused did then and there willfully,
unlawfully and feloniously issue and make out Check No. 054924 dated August 26, 1992, in the amount of TEN
THOUSAND PESOS (P10,000.00) Philippine Currency, drawn against the PS Bank, Candelaria Branch, Candelaria,
Quezon, payable to “Cash” and give the said check to one Dolores Evangelista in exchange for cash although the said
accused knew fully well at the time of issuance of said check that he did not have sufficient funds in or credit with the
drawee bank for payment, the same was dishonored and refused payment for the reason that the drawer thereof, the
herein accused, had no sufficient funds therein, and that despite due notice said accused failed to deposit the
necessary amount to cover said check, or to pay in full the amount of said check, to the damage and prejudice of said
Dolores Evangelista in the aforesaid amount.

Contrary to law.[1]

After trial, petitioner was convicted by the Regional Trial Court (RTC) of Lucena City, Branch 55, in a Decision
rendered on November 20, 1995, the dispositive portion of which reads:

WHEREFORE, in view of the foregoing considerations, this Court finds the accused Leodegario S. Bayani,
GUILTY beyond reasonable doubt of violating Section 1, Batas Pambansa Blg. 22, and hereby sentences him to suffer
one (1) year imprisonment and a fine of Five Thousand (P5,000.00) Pesos, with subsidiary imprisonment in case of
insolvency. He shall likewise pay the complaining witness, Dolores Evangelista, the sum of P10,000.00, the value of
Check No. 054924 he issued and drew against PS Bank, Candelaria Branch, which was subsequently dishonored by
the said drawee bank for insufficiency of funds.

The accused Leodegario Bayani is further ordered to pay Dolores Evangelista the amount of P5,000.00
representing attorney's fees. He shall also pay double the cost of this suit.

SO ORDERED.[2]

In convicting petitioner, the trial court made the following findings of facts:

1. That the Philippine Savings Bank, Candelaria Branch, has issued to the accused check booklet (Exh. “C”)
on December 12, 1991, with the Check No. 054924 as one of those included in said booklet of checks;

2. That the said Check No. 054924 dated August 26, 1992, was drawn and issued payable to Cash in the
amount of P10,000.00; said drawn check was made to apply to the account of the accused, Leodegario S. Bayani
whose name appears therein in bold print at the upper portion of the said check;

3. That said Check No. 054924, is a post-dated check, was subsequently dishonored by the drawee bank, PS
Bank, Candelaria Branch, for insufficiency of funds;

4. That the checking account of the accused Leodegario S. Bayani with PS Bank, Candelaria Branch, was
closed on September 1, 1992 (Exh. “B-3”), which at the time had only remaining deposit in the amount of P2,414.96
(Exh. “B-4”).[3]

The trial court also made the following findings:

The check in question is postdated, issued and drawn on August 20, 1992, and dated August 26, 1992. It
was presented to complaining witness, Dolores Evangelista, for encashment by Alicia Rubia whom the former knows.
After the check was deposited with the bank, it was returned to Evangelista for insufficiency of funds (Exh. “A-5”).
Thereafter, she pursued the following events to demand payment of the value of the check:

xxxx

After the confrontation at the office of Atty. Emmanuel Velasco, Evangelista has had another confrontation with the
accused Bayani and Alicia Rubia at Candelaria municipal building before Brgy. Captain Nestor Baera, but again the
accused and Rubia pointed to each other for the settlement of the amount involved in the check in question.

Of these two (2) confrontations Evangelista had with the accused Bayani and Alicia Rubia, including the chances to
have met or known the complaining witness Evangelista since 1977 up to the filing of the instant case in the Municipal
Trial Court of Candelaria, all what the accused Leodegario Bayani could say were flat denials of having talked with, or
otherwise met Evangelista, regarding the latter’s claim of payment of the value of Check No. 054924, admittedly from
the check booklet of the said accused Bayani issued by PS Bank, Candelaria Branch.[4]

On appeal, the Court of Appeals (CA)[5] affirmed in toto the trial court’s decision. The CA’s Decision dated
January 30, 2002 provides for the following dispositive portion:

WHEREFORE, and it appearing from the circumstances of both the offense and the offender which does not
indicate good faith or a clear mistake of fact in accordance with the Administrative Circular No. 13-2001, the judgment
appealed from is AFFIRMED in toto, with costs.
 112

SO ORDERED.[6]

Thus, herein petition for review on certiorari under Rule 45, Rules of Court, with the following assignment of
errors:

THE COURT OF APPEALS, WITH DUE RESPECT, ERRED IN REFUSING TO ACQUIT THE ACCUSED DESPITE THE
CONVICTION OF THE TRIAL COURT IS UTTERLY BASED ON HEARSAY EVIDENCE;

THE COURT OF APPEALS ERRED IN CONVICTING THE ACCUSED DESPITE THE CONSIDERATION FOR THE ISSUANCE
OF THE CHECK WAS NOT DULY ESTABLISHED;

THE TRIAL COURT AND THE COURT OF APPEALS ERRED WHEN THEY CONVICTED THE ACCUSED BASED ON THE
WEAKNESS OF THE LATTER'S EVIDENCE AND NOT ON THE STRENGTH OF PROSECUTION'S EVIDENCE;

THE TRIAL COURT AND THE COURT OF APPEALED (sic) ERRED IN CONVICTING THE ACCUSED SOLELY ON THE BASES
OF PRESUMPTIONS.[7]

On the other hand, the Office of the Solicitor General (OSG), representing respondent, argues that: (1)
petitioner’s denial of his liability for Check No. 05492 cannot overcome the primordial fact that his signature appears
on the face of such check; (2) want of consideration is a personal defense and is not available against a holder in due
course; and (3) the constitutional presumption of innocence was overcome by the requisite quantum of proof.[8]

Well-settled is the rule that the factual findings and conclusions of the trial court and the CA are entitled to
great weight and respect, and will not be disturbed on appeal in the absence of any clear showing that the trial court
overlooked certain facts or circumstances which would substantially affect the disposition of the case. Jurisdiction of
this Court over cases elevated from the CA is limited to reviewing or revising errors of law ascribed to the CA, whose
factual findings are conclusive and carry even more weight when said court affirms the findings of the trial court,
absent any showing that the findings are totally devoid of support in the record or that they are so glaringly erroneous
as to constitute serious abuse of discretion.[9]

The Court sustains the CA in affirming petitioner’s conviction by the RTC.

Petitioner denies having issued the check subject of this case. He argues that the evidence pinpointing him as
the signatory on the check is merely hearsay.

Section 36 of Rule 130 of the Rules of Court provides for the rule on hearsay evidence, to wit:

Sec. 36. Testimony generally confined to personal knowledge; hearsay excluded. - A witness can testify only to those
facts which he knows of his personal knowledge; that is, which are derived from his own perception, except as
otherwise provided in these rules.

Under the above rule, any evidence — whether oral or documentary — is hearsay if its probative value is not
based on the personal knowledge of the witness, but on that of some other person who is not on the witness stand.
Hence, information that is relayed to the former by the latter before it reaches the court is considered hearsay.[10]

In the present case, complainant Evangelista testified that she was approached by Alicia Rubia who told her
that she was requested by petitioner to have the check exchanged for cash, as he needed money badly.[11]
Obviously, Evangelista’s testimony is hearsay since she had no personal knowledge of the fact that petitioner indeed
requested Rubia to have the check exchanged for cash, as she was not personally present when petitioner supposedly
made this request. What she testified to, therefore, was a matter that was not derived from her own perception but
from Rubia’s.

However, petitioner is barred from questioning the admission of Evangelista’s testimony even if the same is
hearsay. Section 34, Rule 132 of the Rules of Court requires that the trial court shall not consider any evidence which
has not been finally offered. Section 35 of the same Rule provides that as regards the testimony of a witness, the
offer must be made at the time the witness is asked to testify. And under Section 36 of the same Rule, objection to a
question propounded in the course of the oral examination of a witness shall be made as soon as the ground therefor
becomes reasonably apparent.

Thus, it has been held that “in failing to object to the testimony on the ground that it was hearsay, the evidence
offered may be admitted.”[12] Since no objection to the admissibility of Evangelista’s testimony was timely made –
from the time her testimony was offered[13] and up to the time her direct examination was conducted[14] – then
petitioner has effectively waived[15] any objection to the admissibility thereof and his belated attempts to have her
testimony excluded for being hearsay has no ground to stand on.

While Evangelista’s statement may be admitted in evidence, it does not necessarily follow that the same should
be given evidentiary weight. Admissibility of evidence should not be equated with weight of evidence.[16] In this
regard, it has been held that although hearsay evidence may be admitted because of lack of objection by the adverse
party’s counsel, it is nonetheless without probative value,[17] unless the proponent can show that the evidence falls
within the exception to the hearsay evidence rule.[18]

In this case, Evangelista’s testimony may be considered as an independently relevant statement, an exception
to the hearsay rule, the purpose of which is merely to establish the fact that the statement was made or the tenor of
such statement. Independent of the truth or the falsity of the statement, the fact that it has been made is relevant.
[19] When Evangelista said that Rubia told her that it was petitioner who requested that the check be exchanged for
 113

cash, Evangelista was only testifying that Rubia told her of such request. It does not establish the truth or veracity of
Rubia’s statement since it is merely hearsay, as Rubia was not presented in court to attest to such utterance. On this
score, evidence regarding the making of such independently relevant statement is not secondary but primary,
because the statement itself may (a) constitute a fact in issue or (2) be circumstantially relevant as to the existence
of that fact.[20] Indeed, independent of its truth or falsehood, Evangelista’s statement is relevant to the issues of
petitioner’s falsehood, his authorship of the check in question and consequently, his culpability of the offense charged.

In any event, petitioner’s conviction did not rest solely on Evangelista’s testimony. There are other pieces of
evidence on record that established his guilt, to wit: the subject check was included in the booklet of checks issued
by the PSBank to petitioner; the subject check was made to apply to the account of petitioner whose name appears
on the upper portion of the said check; and most telling is that petitioner never categorically denied that the signature
appearing on the check was his. What petitioner claimed was that the signature on the check was similar to his
signature, although there were “differences,” viz.:

Q: I am showing to you a certain document purpurting (sic) to be PSB Check No. 054924, will you please look at
this particular document and tell this Honorable Court if this particular check is one of those issued to you by the
Philippine Saving’s Bank?

A: Yes, sir.

Q: Now, there appears a signature above a line located at the bottom of the said check which appears to be
Leodegario Bayani, please tell this Honorable Court if you know this particular signature?

A: Although it is similar to my signature I could not tell if this is my signature, sir.

Q: Please explain to this Honorable Court why is it so?

A: Because there are some differences, sir.

Q: Please tell this Honorable Court the particular differences you are referring to?

A: At the middle of the signature I usually put my middle initial and also the beginning of my family name is
almost connected with each other, sir.[21]

Neither did petitioner claim that the signature was a forgery. Had he done so, then a forensic examination of
the signature in appearing on the check and his signature would have been made in order to determine the
genuineness or authenticity of the signature appearing on the check.

All these pieces of evidence, taken together, inevitably support the finding of petitioner’s guilt beyond
reasonable doubt of the offense charged.

Petitioner also argues that he cannot be convicted due to the prosecution’s failure to prove that the subject
check was issued to apply on account or for value.

The elements of the offense penalized by Batas Pambansa Blg. 22 are:

(1) the making, drawing, and issuance of any check to apply for account or for value;

(2) the knowledge of the maker, drawer, or issuer that at the time of issue there are no sufficient funds in or
credit with the drawee bank for the payment of such check in full upon its presentment; and

(3) the subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit or dishonor for
the same reason had not the drawer, without any valid cause, ordered the bank to stop payment.[22]

As regards the first element, it is presumed, upon issuance of the checks and in the absence of evidence to the
contrary, that the same was issued for valuable consideration.[23] Under the Negotiable Instruments Law, it is
presumed that every party to an instrument acquired the same for a consideration or for value.[24] In alleging that
there was no consideration for the subject check, it devolved upon petitioner to present convincing evidence to
overthrow the presumption and prove that the check was issued without consideration.

Valuable consideration may consist either of some right, interest, profit or benefit accruing to the party who
makes the contract; or some forbearance, detriment, loss of some responsibility to act; or labor or service given,
suffered or undertaken by the other side. It is an obligation to do or not to do, in favor of the party who makes the
contract, such as the maker or indorser.[25] It was shown in this case that the check was issued and exchanged for
cash. This was the valuable consideration for which the check was issued.

At any rate, what the law punishes is the mere act of issuing a bouncing check, not the purpose for which it
was issued or the terms and conditions relating to its issuance. The law does not make any distinction on whether the
checks within its contemplation are issued in payment of an obligation or to merely guarantee the obligation. The
thrust of the law is to prohibit the making of worthless checks and putting them in circulation.[26]
 114

Thus, the Court cannot sustain petitioner’s stance that the prosecution failed to prove his guilt. As ruled in Lee
v. Court of Appeals:

Proof beyond reasonable doubt does not mean absolute certainty. Suffice it to say the law requires only moral
certainty or that degree of proof which produces conviction in a prejudiced mind.[27]

After going over the evidence presented by the prosecution and the defense in this case, the Court finds
no reason to overturn the judgment of conviction rendered by the RTC, as affirmed by the CA, as the prosecution
sufficiently proved petitioner's guilt beyond reasonable doubt.

WHEREFORE, the petition is DENIED.

SO ORDERED.
 115

[2000V1536] MARILYN C. PASCUA, petitioner, vs. HON. COURT OF APPEALS, THE PEOPLE OF THE
PHILIPPINES, respondents.2000 Dec 143rd DivisionG.R. No. 140243D E C I S I O N

MELO, J.:

What constitutes a valid promulgation in absentia? In case of such promulgation, when does the accused's right to
appeal accrue?

Before us is a petition that calls for a ruling on the aforestated issues, particularly seeking the reversal of the decision
of the Court of Appeals dated June 17, 1999 and its order dated September 28, 1999 denying reconsideration. The
Court of Appeals dismissed the petition for certiorari under Rule 65 filed by petitioner which questioned the legality of
the orders dated June 22, 1998 and October 8, 1998 issued by Branch 153 of the Regional Trial Court of the National
Capital Judicial Region stationed in Pasig City.

The antecedent facts may be briefly chronicled as follows:

Petitioner was charged under 26 Informations for violation of Batas Pambansa Blg. 22. The Informations alleged that
in 1989, petitioner issued 26 Philippine National Bank (PNB) checks to apply on account or for value in favor of Lucita
Lopez with the knowledge that at the time of issue, petitioner did not have sufficient funds in or credit with the
drawee bank for the payment of the face value of the checks in full. Upon presentment of the subject checks, they
were dishonored by the drawee bank for having been drawn against insufficient funds and against a closed account.

After trial, a judgment of conviction was rendered on February 17, 1998, disposing:

WHEREFORE, the Court finds the accused, MARILYN C. PASCUA, GUILTY beyond reasonable doubt of twenty six (26)
counts of Violation of Batas Pambansa Bilang 22, and hereby sentences her to suffer ONE (1) YEAR imprisonment in
each case and to pay the private complainant, LUCITA LOPEZ in the sum of SIX HUNDRED FIVE THOUSAND PESOS
(P605,000.00), Philippine Currency without subsidiary imprisonment in case of insolvency.

SO ORDERED.
(p. 41, Rollo.)

The judgment was initially scheduled for promulgation on March 31, 1998. However, considering that the presiding
judge was on leave, the promulgation was reset to May 5, 1998.

When the case was called on May 5, 1998, Public Prosecutor Rogelio C. Sescon and defense counsel Atty. Marcelino
Arias appeared and manifested their readiness for the promulgation of judgment, although the latter intimated that
petitioner would be late. Hence, the case was set for second call. After the lapse of two hours, petitioner still had not
appeared. The trial court again asked the public prosecutor and the defense counsel if they were ready for the
promulgation of judgment. Both responded in the affirmative. The dispositive portion of the decision was thus read in
open court. Afterwards, the public prosecutor, the defense counsel, and private complainant Lucita Lopez,
acknowledged receipt of their respective copies of the subject decision by signing at the back of the original copy of
the decision on file with the record of the case.

Forthwith, the public prosecutor moved for the forfeiture of the cash bond posted by petitioner as well as for the
issuance of a warrant for her arrest. Acting on the motion, the trial court issued, also on May 5, 1998, the following
order:

When this case was called for the promulgation of judgment, the accused failed to appear despite due notice. Upon
motion of the Public Prosecutor, that the cash bond posted for her provisional liberty be forfeited in favor of the
government, being well-taken, the same is hereby granted. Likewise, let a warrant of arrest be issued against her.

SO ORDERED.

(p. 42, Rollo.)

No motion for reconsideration or notice of appeal was filed by petitioner within 15 days from May 5, 1998.

On June 8, 1998, a notice of change of address was filed by petitioner with the trial court, sent through a private
messengerial firm. On the same date, without terminating the services of her counsel of record, Atty. Marcelino Arias,
the one who received the copy of the judgment of conviction, petitioner, assisted by another counsel, Atty. Rolando
Bernardo, filed an urgent omnibus motion to lift warrant of arrest and confiscation of bail bond, as well as to set anew
the promulgation of the subject decision on the following allegations: that petitioner failed to appear before the trial
court on the scheduled date of promulgation (May 5, 1998) because she failed to get the notices sent to her former
address at No. 21 La Felonila St., Quezon City; that she had no intention of evading the processes of the trial court;
that in February 1998, she transferred residence to Olongapo City by reason of an ejectment case filed against her by
her landlord concerning her former residence in Quezon City; and that due to the abrupt dislocation of their family life
as a result of the transfer of their residence to Olongapo City, there were important matters that she overlooked such
as the filing of a notice of change of address to inform the trial court of her new place of residence.

The motion was set for hearing on June 11, 1998 but on said date, neither petitioner nor assisting counsel was
present. On June 22, 1998, petitioner filed a notice of appeal. The Office of the City Prosecutor of Pasig filed its
comment on the motion for reconsideration arguing that: the promulgation of the subject decision was made by the
trial court on May 5, 1998 in the presence of the accused's (herein petitioner's) counsel; that the subject decision is
already final and executory, there having been no appeal interposed by the accused within the reglementary period;
that there is no such thing as repromulgation of a decision; that before the accused could ask for relief from the trial
 116

court, she, being a convict, should submit herself first to the lawful order thereof, that is, to surrender to the police
authorities.

On June 22, 1998, the trial court issued an order denying petitioner's urgent omnibus motion and notice of appeal for
lack of merit, mentioning that its February 17, 1998 decision had already become final and executory. Petitioner
moved for reconsideration, this time assisted by another lawyer, Atty. Romulo San Juan. The motion was set for
hearing on July 8, 1998 but on said hearing date, neither petitioner nor Atty. San Juan appeared. Instead, Atty.
Porfirio Bautista appeared as collaborating counsel of Atty. San Juan. When asked if he knew petitioner's counsel of
record, Atty. Bautista could not answer.

On July 17, 1998, Attys. San Juan and Bautista as counsel for petitioner, filed a motion for inhibition of the presiding
judge. The motion was set for hearing on July 28, 1998. Once again, petitioner failed to appear although Atty.
Bautista did. On October 8, 1998, the trial court denied petitioner's motion for reconsideration and inhibition.

On December 14, 1998, petitioner filed a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure with
the Court of Appeals praying for the nullification of the June 22, 1998 and October 8, 1998 orders of the trial court.
At first, the Court of Appeals issued a resolution dated December 29, 1998 dismissing the petition for certiorari, for
failure to contain an explanation why the respondent therein was not personally served a copy of the petition.
However, upon reconsideration, said petition was reinstated.

After an exchange of pleadings, on June 17, 1999, the Court of Appeals issued the decision assailed herein. Petitioner
moved for reconsideration, but to no avail.

Hence, the instant petition on the basis of the following grounds: (1) that petitioner was not properly notified of the
date of promulgation and therefore, there was no valid promulgation; hence petitioner's period to appeal has not
commenced; (2) that the promulgation in absentia of the judgment against petitioner was not made in the manner set
out in the last paragraph of Section 6, Rule 120 of the 1985 Rules on Criminal Procedure which then provided that
promulgation in absentia shall consist in the recording of the judgment in the criminal docket and a copy thereof shall
be served upon the accused or counsel; (3) that the decision of the trial court is contrary to applicable laws and that it
disregarded factual evidence and instead resorted to make a conclusion based on conjectures, presumptions, and
misapprehension of facts.

The resolution of the instant petition is dependent on the proper interpretation of Section 6, Rule 120 of the 1985
Rules on Criminal Procedure, which provides:

Section 6. Promulgation of judgment—The judgment is promulgated by reading the same in the presence of the
accused and any judge of the court in which it was rendered. However, if the conviction is for a light offense, the
judgment may be pronounced in the presence of his counsel or representative. When the judge is absent or outside
of the province or city, the judgment may be promulgated by the clerk of court.

If the accused is confined or detained in another province or city, the judgment may be promulgated by the executive
judge of the Regional Trial Court having jurisdiction over the place of confinement or detention upon request of the
court that rendered the judgment. The court promulgating the judgment shall have authority to accept the notice of
appeal and to approve the bail bond pending appeal.

The proper clerk of court shall give notice to the accused personally or through his bondsman or warden and counsel,
requiring him to be present at the promulgation of the decision. In case the accused fails to appear thereat the
promulgation shall consist in the recording of the judgment in the criminal docket and a copy thereof shall be served
upon the accused or counsel. If the judgment is for conviction and the accused's failure to appear was without
justifiable cause, the court shall further order the arrest of the accused, who may appeal within fifteen (15) days from
notice of the decision to him or his counsel.

Incidentally, Section 6, Rule 120 of the Revised Rules of Criminal Procedure which took effect December 1, 2000 adds
more requirements but retains the essence of the former Section 6, to wit:

Section 6. Promulgation of judgment. -The judgment is promulgated by reading it in the presence of the accused and
any judge of the court in which it was rendered. However, if the conviction is for a light offense the judgment may be
pronounced in the presence of his counsel or representative. When the judge is absent or outside the province or
city, the judgment may be promulgated by the clerk of court.

If the accused is confined or detained in another province or city the judgment may be promulgated by the executive
judge of the Regional Trial Court having jurisdiction over the place of confinement or detention upon request of the
court which rendered the judgment. The court promulgating the judgment shall have authority to accept the notice of
appeal and to approve the bail bond pending appeal; provided, that if the decision of the trial court convicting the
accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed and
resolved by the appellate court.

The proper clerk of court shall give notice to the accused personally or through his bondsman or warden and counsel,
requiring him to be present at the promulgation of the decision. If the accused was tried in absentia because he
jumped bail or escaped from prison, the notice to him shall be served at his last known address.

In case the accused fails to appear at the scheduled date of promulgation of judgment despite notice, the
promulgation shall be made by recording the judgment in the criminal docket and serving him a copy thereof at his
last known address or thru his counsel.

If the judgment is for conviction and the failure of the accused to appear was without justifiable cause, he shall lose
the remedies available in these Rules against the judgment and the court shall order his arrest. Within fifteen (15)
 117

days from promulgation of judgment however, the accused may surrender and file a motion for leave of court to avail
of these remedies. He shall state the reasons for his absence at the scheduled promulgation and if he proves that his
absence was for a justifiable cause, he shall be allowed to avail of said remedies within fifteen (15) days from notice.
talics supplied)
Promulgation of judgment is an official proclamation or announcement of the decision of the court (Jacinto, Sr.,
Commentaries and Jurisprudence on the Revised Rules of Court [Criminal Procedure], 1994 ed., p. 521). In a criminal
case, promulgation of the decision cannot take place until after the clerk receives it and enters it into the criminal
docket. It follows that when the judge mails a decision through the clerk of court, it is not promulgated on the date of
mailing but after the clerk of court enters the same in the criminal docket (Ibid., citing People v. Court of Appeals, 52
O.G. 5825 [1956]).

According to the first paragraph of Section 6 of the aforesaid Rule (of both the 1985 and 2000 versions), the presence
in person of the accused at the promulgation of judgment is mandatory in all cases except where the conviction is for
a light offense, in which case the accused may appear through counsel or representative. Under the third paragraph
of the former and present Section 6, any accused, regardless of the gravity of the offense charged against him, must
be given notice of the promulgation of judgment and the requirement of his presence. He must appear in person or in
the case of one facing a conviction for a light offense, through counsel or representative. The present Section 6 adds
that if the accused was tried in absentia because he jumped bail or escaped from prison, notice of promulgation shall
be served at his last known address.

Significantly, both versions of said section set forth the rules that become operative if the accused fails to appear at
the promulgation despite due notice: (a) promulgation shall consist in the recording of the judgment in the criminal
docket and a copy thereof shall be served upon the accused at his last known address or through his counsel; and (b)
if the judgment is for conviction, and the accused's failure to appear was without justifiable cause, the court shall
further order the arrest of the accused.

Here lies the difference in the two versions of the section. The old rule automatically gives the accused 15 days from
notice (of the decision) to him or his counsel within which to appeal. In the new rule, the accused who failed to
appear without justifiable cause shall lose the remedies available in the Rules against the judgment. However, within
15 days from promulgation of judgment, the accused may surrender and file a motion for leave of court to avail of
these remedies. He shall state in his motion the reasons for his absence at the scheduled promulgation and if he
proves that his absence was for a justifiable cause, he shall be allowed to avail of said remedies within 15 days from
notice.

It thus appears that the judgment in a criminal case must be promulgated in the presence of the accused, except
where it is for a light offense, in which case it may be pronounced in the presence of his counsel or representative
(Dimson v. Elepaño, 99 Phil. 733 [1956]), and except where the judgment is for acquittal, in which case the presence
of the accused is not necessary (Cea, etc., et al. v. Cinco, et al., 96 Phil. 31 [1954]). Notably, one of the conditions of
the bail given for the provisional liberty of an accused in a criminal case is that he shall surrender himself (or the
bondsman shall surrender the accused) for execution of the final judgment (Section 2[d], Rule 114, Revised Rules of
Criminal Procedure). Thus, it follows that it is the responsibility of the accused to make himself available to the court
upon promulgation of a judgment of conviction, and such presence is secured by his bail bond. This amplifies the
need for the presence of the accused during the promulgation of a judgment of conviction, especially if it is for a grave
offense. Obviously, a judgment of conviction cannot be executed . . . and the sentence meted to the accused cannot
be served . . . without his presence. Besides, where there is no promulgation of the judgment, the right to appeal
does not accrue (People v. ]aranilla, 55 SCRA 565 [1974]).

Jurisprudence further dictates that the absence of counsel during the promulgation will not result in a violation of any
substantial right of the accused, and will not affect the validity of the promulgation of the judgment (Bernardo v.
Abeto, CA-G. R. No. 6076, 31 January 1940; Gonzales v. Judge, 186 SCRA 101 [1990]).

In the vintage case of Cea, etc., et al. v. Cinco, et al (supra), the Court citing U. S. v. Beecham, (28 Phil. 258 [1914]),
stated the reasons for requiring the attendance of the accused in case of conviction for a grave or less grave offense,
to wit:
...The common law required, when any corporal punishment was to be inflicted on the defendant, that he should be
personally present before the court at the time of pronouncing the sentence. (1 Chitty's Crim. Law [5th Am. ed.],
693, 696.) Reasons given for this are, that the defendant may be identified by the court as the real party adjudged to
be punished (Holt, 399); that the defendant may have a chance to plead or move in arrest of judgment (King vs.
Speke, 3 Salk., 358); that he may have an opportunity to say what he can say why judgment should not be given
against him (2 Hale's Pleas of the Crown, 401, 402); and that the example of the defendants, who have been guilty of
misdemeanors of a gross and public kind, being brought up for the animadversion of the court and the open
denunciation of punishment, may tend to deter others from the commission of similar offenses (Chitty's Crim. Law
[5th ed.], 693, 696) ***."

Nevertheless, as mentioned above, regardless of the gravity of the offense, promulgation of judgment in absentia is
allowed under the Rules. The only essential elements for its validity are: (a) that the judgment be recorded in the
criminal docket; and (b) that a copy thereof shall be served upon the accused or counsel.

Let us examine the validity of the May 5, 1998 promulgation which took place in the case at bar. The dispositive
portion of the decision convicting petitioner was read in open court, after which the public prosecutor, the defense
counsel Atty. Marcelino Arias, and private complainant Lucita Lopez, acknowledged receipt of their respective copies of
the decision by affixing their signatures at the back of the original of the decision on file with the record of the case.
Atty. Arias failed to file a notice of appeal within fifteen days from receipt of the decision. Is it proper to rule that the
period within which to file an appeal has lapsed?

In Florendo v. Court of Appeals (239 SCRA 325 [1994]), the facts are parallel to those of the instant case. We held -
 118

In the case at bench, a copy of the judgment was served to the counsel of petitioner on June 15, 1992; therefore, he
had only up to June 30, 1992 within which to appeal. The notice of appeal filed on July 6, 1992 was clearly out of
time.

It is presumed that official duties are regularly performed and that the proceedings are made of record. This serves
as a substantial compliance with the procedural requirement of the recording of the judgment in the criminal docket of
the court. At any rate, petitioner does not question non-compliance of the requirement of the recording of the
judgment in the criminal docket.

(At p. 329.)

Petitioner's first argument is devoid of merit. In the first place, her non- receipt of the notice of promulgation was due
to her own failure to immediately file a notice of change of address with the trial court, which she clearly admitted.
Besides, promulgation could be properly done even in her absence, subject to the service of a copy of the decision
upon her or her counsel and the recording of the judgment in the criminal docket.

However, in line with petitioner's second argument, petitioner has presented evidence sufficient to controvert the
presumption of regularity of performance of official duty as regards the procedural requirement of the recording of the
judgment in the criminal docket of the court. Attached to the petition is a piece of evidence that cannot be ignored by
this Court—a certification dated October 26, 1998 signed by the Clerk of Court of the Regional Trial Court of Pasig,
which reads:

TO WHOM IT MAY CONCERN:

THIS IS TO CERTIFY that this Office has not yet been furnished, as of this date, with copies of the decisions in
Criminal Cases Nos. 85283-306 and 86064-65, entitled People of the Philippines versus Marilyn C. Pascua, which were
assigned to Branch 153 of this Court.

This certification is issued upon request of Romulo D. San Juan and Porfirio Bautista, both counsels for the accused.

City of Pasig, October 26, 1998, 1:30 p.m.

(Sgd.) GREGORIO P. SUBONG, JR.

Administrative Officer I In-Charge
Criminal Cases Unit

(Sgd.) GRACE S. BELVIS

Clerk of Court
(p. 61, Record.)

We take judicial notice of said certification and hold that in view thereof, we cannot presume substantial compliance
with the requirement of recording a judgment in the criminal docket. And in the absence of such compliance, there
can be no valid promulgation. Without the same, the February 17, 1998 decision could not attain finality and become
executory. This means that the 15-day period within which to interpose an appeal did not even commence.
What is the significance of the recording of the judgment with the criminal docket of the court? By analogy, let us
apply the principles of civil law on registration.

To register is to record or annotate. American and Spanish authorities are unanimous on the meaning of the term "to
register" as "to enter in a register; to record formally and distinctly; to enroll; to enter in a list" (Po Sun Tun vs. Prize
and Provincial Government of Leyte, 54 Phil. 192 [1929]). In general, registration refers to any entry made in the
books of the registry, including both registration in its ordinary and strict sense, and cancellation, annotation, and
even the marginal notes. In strict acceptation, it pertains to the entry made in the registry which records solemnly
and permanently the right of ownership and other real rights (Ibid.). Simply stated, registration is made for the
purpose of notification (Paras, Civil Code of the Philippines, Vol. II, 1989 ed., p. 653, citing Bautista vs. Dy Bun Chin,
49 O.G. 179 [1952]).

Registration is a mere ministerial act by which a deed, contract, or instrument is sought to be inscribed in the records
of the Office of the Register of Deeds and annotated at the back of the certificate of title covering the land subject of
the deed, contract, or instrument. Being a ministerial act, it must be performed in any case and, if it is not done, it
may be ordered performed by a court of justice (Cruz, The Law of Public Officers, 1997 ed., p. 102). In fact, the
public officer having this ministerial duty has no choice but to perform the specific action which is the particular duty
imposed by law. Its purpose is to give notice thereof to all persons. It operates as a notice of the deed, contract, or
instrument to others, but neither adds to its validity nor converts an invalid instrument into a valid one between the
parties. If the purpose of registration is merely to give notice, then questions regarding the effects or invalidity of
instruments are expected to be decided after, not before, registration. It must follow as a necessary consequence
that registration must first be allowed, and validity or effect of the instruments litigated afterwards (Seron vs. Hon.
Rodriguez, etc., and Seron, 110 Phil.. 548 [1960]; Gurbax Singh Pabla & Co., et al. vs. Reyes, et al., 92 Phil. 177
[1952]; Register of Deeds of Manila vs. Tinoco Vda. De Cruz, 95 Phil. 818 [1954]; Samanilla vs. Cajucom, et al., 107
Phil. 432 [1960]).

Applying the above-mentioned principles to the instant case, we are prompted to further examine the provisions on
promulgation in absentia.

As held in Florendo vs. Court of Appeals (supra), the rules allow promulgation of judgment in absentia to obviate the
situation where juridical process could be subverted by the accused jumping bail. But the Rules also provide
measures to make promulgation in absentia a formal and solemn act so that the absent accused, wherever he may
be, can be notified of the judgment rendered against him. As discussed earlier, the sentence imposed by the trial
 119

court cannot be served in the absence of the accused. Hence, all means of notification must be done to let the absent
accused know of the judgment of the court. And the means provided by the Rules are: (1) the act of giving notice to
all persons or the act of recording or registering the judgment in the criminal docket (which Section 6 incidentally
mentions first showing its importance; and (2) the act of serving a copy thereof upon the accused (at his last known
address) or his counsel. In a scenario where the whereabouts of the accused are unknown (as when he is at large),
the recording satisfies the requirement of notifying the accused of the decision wherever he may be.

Thus, on May 5, 1998, although the second kind of notification was satisfied when defense counsel Atty. Arias
received a copy of the February 17, 1998 decision, the solemn and operative act of recording was not done, making
the promulgation in absentia invalid. This being so, the period to appeal did not begin to run.

The next matter we have to consider is the effect of the service of a copy of the judgment upon petitioner, who admits
having received a copy thereof on June 17, 1998. Did the 15-day period to appeal begin to run on said date of
receipt?

We rule in the negative. Petitioner's later receipt of the copy of the decision does not in any way cure an invalid
promulgation. And even if said decision be recorded in the criminal docket later, such piece-meal compliance with the
Rules will still not validate the May 5, 1998 promulgation which was invalid at the time it was conducted. The express
mention in the provision of both requirements for a valid promulgation in absentia clearly means that they indeed
must concur.

Finally, as regards the third argument, we agree with the Solicitor General that matters of sufficiency of evidence may
not be passed upon in the herein proceedings. The instant petition assails the Court of Appeals' decision dated June
17, 1999 and its order dated September 28, 1999 both of which concern the orders of the trial court dated June 22,
1998 and October 8, 1998, in essence ruling that petitioner's notice of appeal dated June 19, 1998 was filed out of
time. The petition is not directed against February 17, 1998 decision of the trial court which convicted petitioner on
26 counts of violation of Batas Pambansa Blg. 22. Hence, this is not the proper time to rule on the merits of Criminal
Cases No. 85283-306/86064-65. There is, rather, a need to remand the matter to the trial court for proper
promulgation of its decision. Significantly, it is not what petitioner describes as "repromulgation" since promulgation
was not validly made, and hence, as if not conducted. The requisites of the remedy of appeal shall then apply from
that point.

WHEREFORE, the instant petition is hereby GRANTED. The June 17, 1999 decision and the September 28, 1999 order
of the Court of Appeals are hereby set aside. The instant case is hereby remanded to the trial court for proper
promulgation of its decision in accordance with Section 6, Rule 120 of the Revised Rules of Criminal Procedure.

SO ORDERED.

Vitug, Panganiban, and Gonzaga-Reyes, JJ.,concur.

\---!e-library! 6.0 Philippines Copyright © 2000 by Sony Valdez---/

([2000V1536] MARILYN C. PASCUA, petitioner, vs. HON. COURT OF APPEALS, THE PEOPLE OF THE PHILIPPINES,
respondents., G.R. No. 140243, 2000 Dec 14, 3rd Division)

/---!e-library! 6.0 Philippines Copyright © 2000 by Sony Valdez---\

 120

[2006V1156] PEOPLE OF THE PHILIPPINES, Petitioner, versus COURT OF APPEALS (15TH Division) and
WILFRED N. CHIOK, Respondents.2006 Sep 272nd DivisionG.R. No. 140285D E C I S I O N

SANDOVAL-GUTIERREZ, J.:

Before us is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended,
assailing the Resolution[1] dated September 20, 1999 of the Court of Appeals in CA-G.R. SP No. 53340, entitled
“Wilfred N. Chiok, petitioner, v. Hon. Marietta Legazpi, People of the Philippines, and Rufina Chua, respondents.”

The factual antecedents as borne by the records are:

Sometime in 1989, Rufina Chua met respondent Wilfred Chiok. He represented himself as a licensed stockbroker and
an expert in the stock market. He then encouraged Rufina to invest her money in stocks, requesting her to designate
him as her stockbroker. On respondent’s prodding, she agreed.

For several years, respondent acted as Rufina’s stockbroker. She made a profit out of their transactions, prompting
her to trust respondent in handling her stock investments.

In 1995, respondent encouraged Rufina to purchase shares in bulk as this will increase her earning. Hence, in June
1995, she entrusted to him the amount of P9,563,900.00 for the purpose of buying shares of stocks in bulk. She
deposited the amount of P7,100,000.00 in respondent’s account. With respect to the remaining P2,463,900.00, she
personally gave it to him. Thereupon, he told her to wait for one week. A week elapsed, but she did not hear from
him. Upon her inquiry, he advised her to wait for another week, but still there was no news from him. Finally, when
she was able to contact him, he admitted that he spent the money. At any rate, he issued two checks as payment
but when she deposited them in the drawee bank, they were dishonored for insufficient funds.

In a letter dated October 25, 1995, Rufina demanded payment from respondent, but this remained unheeded.

Upon inquiry, Rufina came to know that respondent was not a licensed stockbroker but only a telephone clerk at
Bernard Securities, Inc. Immediately, she caused the filing of an information for estafa against him with the Regional
Trial Court, Branch 165, Pasig City, docketed therein as Criminal Case No. 109927.

During the arraignment, respondent, assisted by his counsel de parte, pleaded not guilty and posted bail. Trial
ensued.

Respondent denied the charge against him. He testified that he was not an employee of Bernard Securities, Inc.; that
he buys and sells U.S. dollars and that Rufina used to buy dollars from him; that what actually existed between them
was an unregistered partnership; and that he received the amount of P9,563,900.00 as her investment in their
partnership.

After the presentation of the parties’ evidence, the trial court set the promulgation of judgment on January 26, 1999.
However, respondent and his counsel failed to appear on said date. The promulgation was re-set to February 1,
1999.

On February 1, 1999, the trial court rendered a Decision convicting respondent of estafa and sentencing him to suffer
twelve (12) years of prision mayor, as minimum, to twenty (20) years of reclusion temporal, as maximum. During
the promulgation of the judgment, respondent and his counsel failed to appear despite notice. Consequently, the
prosecution filed a Motion for Cancellation of Bail on the ground that there is an indication that respondent might flee
or commit another crime.

On May 28, 1999, the trial court issued an Omnibus Order granting the prosecution’s motion, thus:

WHEREFORE, the bail of the accused is cancelled. The accused is given five (5) days from receipt of this order within
which to surrender before this Court, otherwise his arrest will be ordered.

SO ORDERED.

On June 18, 1999, respondent interposed an appeal from the Decision of the trial court to the Court of Appeals,
docketed therein as CA-G.R. CR No. 23309.

The following day or on June 19, 1999, respondent filed with the Court of Appeals a Special Civil Action for Certiorari
with Very Urgent Application for a Temporary Restraining Order (TRO) and/or Injunction assailing the trial court’s May
28, 1999 Omnibus Order canceling his bail. The petition was docketed as CA-G.R. SP No. 53340.

Meanwhile, or on June 25, 1999, the trial court issued a warrant of arrest against respondent for the reason that “he
has not surrendered despite the lapse of the given period (five days) as provided in the Omnibus Order dated May 28,
1999.” The said warrant was returned unserved because he could not be found at his given address.

Going back to CA-G.R. SP No. 53340, the Court of Appeals issued a TRO enjoining the implementation of the trial
court’s Omnibus Order.

Subsequently, in a Resolution dated September 20, 1999, the appellate court issued a writ of preliminary injunction
enjoining the arrest of respondent, holding that the latter should not be deprived of his liberty pending resolution of
his appeal as the offense for which he was convicted is a non-capital offense; and that the probability of flight by
respondent during the pendency of his appeal is merely conjectural.
 121

Hence, the present petition for review on certiorari. The People of the Philippines, petitioner, contends that the Court
of Appeals committed a grave abuse of discretion in issuing the writ of preliminary injunction enjoining the arrest of
respondent.

Respondent, on the other hand, maintains that the appellate court committed no grave abuse of discretion when it
issued the assailed Resolution of September 20, 1999.

The sole issue here is whether the Court of Appeals erred when it rendered its assailed Resolution of September 20,
1999 directing the issuance of a writ of preliminary injunction enjoining the arrest of respondent.

The trial court correctly cancelled respondent’s bail because of his failure to appear during the promulgation of
judgment despite notice. He violated the condition of his bail that he must appear before the proper court whenever
so required by that court or the Rules.[2] Simply stated, he jumped bail. As such, his arrest, as ordered by the trial
court, is proper.[3] This is in accordance with Section 6, Rule 120 of the Revised Rules on Criminal Procedure which
provides in part, thus:

SEC. 6. Promulgation of judgment. – The judgment is promulgated by reading it in the presence of the accused and
any judge of the court in which it was rendered. x x x

The proper clerk of court shall give notice to the accused personally or through his bondsman or warden and counsel,
requiring him to be present at the promulgation of the decision. x x x

If the judgment is for conviction and the failure of the accused to appear was without justifiable cause, he shall lose
the remedies available in these rules against the judgment and the court shall order his arrest. Within fifteen (15)
days from promulgation of judgment, however, the accused may surrender and file a motion for leave of court to avail
of these remedies. He shall state the reasons for his absence at the scheduled promulgation and if he proves that his
absence was for a justifiable cause, he shall be allowed to avail of said remedies within fifteen (15) days from notice.
nderscoring supplied)

The last paragraph of Section 6 quoted above authorizes the promulgation of judgment in absentia in view of
respondent’s failure to appear despite notice. It bears stressing that the rule authorizing promulgation in absentia
is intended to obviate the situation where the judicial process could be subverted by the accused jumping bail to
frustrate the promulgation of judgment.[4]

Here, respondent tried in vain to subvert the judicial process by not appearing during the promulgation of judgment.
Thus, he lost his remedies against the judgment. In fact, he cannot challenge successfully the cancellation of his bail
by the trial court. The Court of Appeals certainly erred in enjoining the arrest of respondent. Its declaration that
respondent might flee or commit another crime is conjectural utterly lacks merit. Respondent already demonstrated
that he is a fugitive from justice.

WHEREFORE, we GRANT the instant petition. The challenged Resolution of the Court of Appeals in CA-G.R. SP No.
53340 directing the issuance of a writ of preliminary injunction enjoining the arrest of respondent is REVERSED.

SO ORDERED.