G.R. No. 102342 July 3, 1992 LUZ M. ZALDIVIA, petitioner, vs. HON. ANDRES B. REYES, JR.

, in his capacity as Acting Presiding Judge of the Regional Trial Court, Fourth Judicial Region, Branch 76, San Mateo, Rizal, and PEOPLE OF THE PHILIPPINES, respondents.

CRUZ, J.: The Court is asked to determine the applicable law specifying the prescriptive period for violations of municipal ordinances. The petitioner is charged with quarrying for commercial purposes without a mayor's permit in violation of Ordinance No. 2, Series of 1988, of the Municipality of Rodriguez, in the Province of Rizal. The offense was allegedly committed on May 11, 1990. 1 The referral-complaint of the police was received by the Office of the Provincial Prosecutor of Rizal on May 30, 1990. 2 The corresponding information was filed with the Municipal Trial Court of Rodriguez on October 2, 1990. 3 The petitioner moved to quash the information on the ground that the crime had prescribed, but the motion was denied. On appeal to the Regional Trial Court of Rizal, the denial was sustained by the respondent judge. 4 In the present petition for review on certiorari, the petitioner first argues that the charge against her is governed by the following provisions of the Rule on Summary Procedure:
Sec. 1. Scope This rule shall govern the procedure in the Metropolitan Trial Courts, the Municipal Trial Courts, and the Municipal Circuit Trial Courts in the following cases: xxx xxx xxx B. Criminal Cases: 1. Violations of traffic laws, rules and regulations; 2. Violations of rental law; 3. Violations of municipal or city ordinances; 4. All other criminal cases where the penalty prescribed by law for the offenses charged does not exceed six months imprisonment, or a fine of one thousand pesos (P1,000.00), or both, irrespective of other imposable penalties, accessory or otherwise, or of the civil liability arising therefrom. . . . (Emphasis supplied.)

xxx xxx xxx Sec. 9. How commenced. The prosecution of criminal cases falling within the scope of this Rule shall be either by complaint or by information filed directly in court without need of a prior preliminary examination or preliminary investigation: Provided, however, That in Metropolitan Manila and chartered cities, such cases shall be commenced only by information; Provided, further, That when the offense cannot be prosecuted de oficio, the corresponding complaint shall be signed and sworn to before the fiscal by the offended party.

She then invokes Act. No. 3326, as amended, entitled "An Act to Establish Periods of Prescription for Violations Penalized by Special Acts and Municipal Ordinances and to Provide When Prescription Shall Begin to Run," reading as follows:
Sec. 1. Violations penalized by special acts shall, unless provided in such acts, prescribe in accordance with the following rules: . . . Violations penalized by municipal ordinances shall prescribe after two months. Sec. 2. Prescription shall begin to run from the day of the commission of the violation of the law, and if the same be not known at the time, from the discovery thereof and the institution of judicial proceedings for its investigation and punishment. The prescription shall be interrupted when proceedings are instituted against the guilty person, and shall begin to run again if the proceedings are dismissed for reasons not constituting jeopardy. Sec. 3. For the purposes of this Act, special acts shall be acts defining and penalizing violations of law not included in the Penal Code. (Emphasis supplied)

Her conclusion is that as the information was filed way beyond the two-month statutory period from the date of the alleged commission of the offense, the charge against her should have been dismissed on the ground of prescription. For its part, the prosecution contends that the prescriptive period was suspended upon the filing of the complaint against her with the Office of the Provincial Prosecutor. Agreeing with the respondent judge, the Solicitor General also invokes Section 1, Rule 110 of the 1985 Rules on Criminal Procedure, providing as follows:
Sec. 1. How Instituted For offenses not subject to the rule on summary procedure in special cases, the institution of criminal action shall be as follows: a) For offenses falling under the jurisdiction of the Regional Trial Court, by filing the complaint with the appropriate officer for the purpose of conducting the requisite preliminary investigation therein; b) For offenses falling under the jurisdiction of the Municipal Trial Courts and Municipal Circuit Trial Courts, by filing the complaint directly with the said courts, or a complaint with the fiscal's office. However, in Metropolitan Manila and other chartered cities, the complaint may be filed only with the office of the fiscal.

In all cases such institution interrupts the period of prescription of the offense charged. (Emphasis supplied.)

Emphasis is laid on the last paragraph. The respondent maintains that the filing of the complaint with the Office of the Provincial Prosecutor comes under the phrase "such institution" and that the phrase "in all cases" applies to all cases, without distinction, including those falling under the Rule on Summary Procedure. The said paragraph, according to the respondent, was an adoption of the following dictum in Francisco v. Court of Appeals: 5
In view of this diversity of precedents, and in order to provide guidance for Bench and Bar, this Court has re-examined the question and, after mature consideration, has arrived at the conclusion that the true doctrine is, and should be, the one established by the decisions holding that the filing of the complaint in the Municipal Court, even if it be merely for purposes of preliminary examination or investigation, should, and does, interrupt the period of prescription of the criminal responsibility, even if the court where the complaint or information is filed can not try the case on its merits. Several reasons buttress this conclusion: first, the text of Article 91 of the Revised Penal Code, in declaring that the period of prescription "shall be interrupted by the filing of the complaint or information" without distinguishing whether the complaint is filed in the court for preliminary examination or investigation merely, or for action on the merits. Second, even if the court where the complaint or information is filed may only proceed to investigate the case, its actuations already represent the initial step of the proceedings against the offender. Third, it is unjust to deprive the injured party of the right to obtain vindication on account of delays that are not under his control. All that the victim of the offense may do on his part to initiate the prosecution is to file the requisite complaint.

It is important to note that this decision was promulgated on May 30, 1983, two months before the promulgation of the Rule on Summary Procedure on August 1, 1983. On the other hand, Section 1 of Rule 110 is new, having been incorporated therein with the revision of the Rules on Criminal Procedure on January 1, 1985, except for the last paragraph, which was added on October 1, 1988. That section meaningfully begins with the phrase, "for offenses not subject to the rule on summary procedure in special cases," which plainly signifies that the section does not apply to offenses which are subject to summary procedure. The phrase "in all cases" appearing in the last paragraph obviously refers to the cases covered by the Section, that is, those offenses not governed by the Rule on Summary Procedure. This interpretation conforms to the canon that words in a statute should be read in relation to and not isolation from the rest of the measure, to discover the true legislative intent. As it is clearly provided in the Rule on Summary Procedure that among the offenses it covers are violations of municipal or city ordinances, it should follow that the charge against the petitioner, which is for violation of a municipal ordinance of Rodriguez, is governed by that rule and not Section 1 of Rule 110.

Where paragraph (b) of the section does speak of "offenses falling under the jurisdiction of the Municipal Trial Courts and Municipal Circuit Trial Courts," the obvious reference is to Section 32(2) of B.P. No. 129, vesting in such courts:
(2) Exclusive original jurisdiction over all offenses punishable with imprisonment of not exceeding four years and two months, or a fine of not more than four thousand pesos, or both such fine and imprisonment, regardless of other imposable accessory or other penalties, including the civil liability arising from such offenses or predicated thereon, irrespective of kind, nature, value, or amount thereof; Provided, however, That in offenses involving damage to property through criminal negligence they shall have exclusive original jurisdiction where the imposable fine does not exceed twenty thousand pesos.

These offenses are not covered by the Rule on Summary Procedure. Under Section 9 of the Rule on Summary Procedure, "the complaint or information shall be filed directly in court without need of a prior preliminary examination or preliminary investigation." 6 Both parties agree that this provision does not prevent the prosecutor from conducting a preliminary investigation if he wants to. However, the case shall be deemed commenced only when it is filed in court, whether or not the prosecution decides to conduct a preliminary investigation. This means that the running of the prescriptive period shall be halted on the date the case is actually filed in court and not on any date before that. This interpretation is in consonance with the afore-quoted Act No. 3326 which says that the period of prescription shall be suspended "when proceedings are instituted against the guilty party." The proceedings referred to in Section 2 thereof are "judicial proceedings," contrary to the submission of the Solicitor General that they include administrative proceedings. His contention is that we must not distinguish as the law does not distinguish. As a matter of fact, it does. At any rate, the Court feels that if there be a conflict between the Rule on Summary Procedure and Section 1 of Rule 110 of the Rules on Criminal Procedure, the former should prevail as the special law. And if there be a conflict between Act. No. 3326 and Rule 110 of the Rules on Criminal Procedure, the latter must again yield because this Court, in the exercise of its rule-making power, is not allowed to "diminish, increase or modify substantive rights" under Article VIII, Section 5(5) of the Constitution. Prescription in criminal cases is a substantive right. 7 Going back to the Francisco case, we find it not irrelevant to observe that the decision would have been conformable to Section 1, Rule 110, as the offense involved was grave oral defamation punishable under the Revised Penal Code with arresto mayor in its maximum period to prision correccional in its minimum period. By contrast, the prosecution in the instant case is for violation of a municipal ordinance, for which the penalty cannot exceed six months, 8 and is thus covered by the Rule on Summary Procedure.

The Court realizes that under the above interpretation, a crime may prescribe even if the complaint is filed seasonably with the prosecutor's office if, intentionally or not, he delays the institution of the necessary judicial proceedings until it is too late. However, that possibility should not justify a misreading of the applicable rules beyond their obvious intent as reasonably deduced from their plain language. The remedy is not a distortion of the meaning of the rules but a rewording thereof to prevent the problem here sought to be corrected. Our conclusion is that the prescriptive period for the crime imputed to the petitioner commenced from its alleged commission on May 11, 1990, and ended two months thereafter, on July 11, 1990, in accordance with Section 1 of Act No. 3326. It was not interrupted by the filing of the complaint with the Office of the Provincial Prosecutor on May 30, 1990, as this was not a judicial proceeding. The judicial proceeding that could have interrupted the period was the filing of the information with the Municipal Trial Court of Rodriguez, but this was done only on October 2, 1990, after the crime had already prescribed. WHEREFORE, the petition is GRANTED, and the challenged Order dated October 2, 1991 is SET ASIDE. Criminal Case No. 90-089 in the Municipal Trial Court of Rodriguez, Rizal, is hereby DISMISSED on the ground of prescription. It is so ordered. Narvasa, C.J., Gutierrez, Jr., Paras, Feliciano, Padilla, Bidin, Grio-Aquino, Medialdea, Regalado, Davide, Jr., Romero, Nocon and Bellosillo, JJ., concur.
[G.R. No. 69863-65 : December 10, 1990.] 192 SCRA 183 LINO BROCKA, BENJAMIN CERVANTES, COSME GARCIA, RODOLFO SANTOS, VALENTINO SALIPSIP, RICARDO VEGA, ERIC MARIANO, JOSE EMMANUEL OYALES, RONNIE MATTA, ALFREDO VIAJE, RUBEN EUGENIO, REYNALDO ORTIZ, ORLANDO ORTIZ, NOEL REYES, EDUARDO IMPERIAL, NESTOR SARMIENTO, FRANCO PALISOC, VIRGILIO DE GUZMAN, ALBERTO REYES, JESSIE PINILI, ROMULO AUGUIS, DOMINADOR RESURRECION III, RONNIE LAYGO, ROSAURO ROQUE, CLARENCE SORIANO, OCTAVO DEPAWA, CARLITO LA TORRE, SEVERNO ILANO, JR., DOMINGO CAJIPE, ALAN ALEGRE, RAMON MARTINEZ, MA. GILDA HERNANDEZ, EDNA P. VILLANUEVA, DOLLY S. CANU, MELQUIADES C. ATIENZA, ELIGIO P. VERA CRUZ, ROGER C. BAGAN, ABUNDIO M. CALISTE, Petitioners, vs. JUAN PONCE ENRILE, MAJ. GENERAL FIDEL V. RAMOS, BRIG. GENERAL PEDRO BALBANERO, COL. ABAD, COL. DAWIS, SERGIO APOSTOL, P/LT, RODOLFO M. GARCIA and JUDGE RICARDO TENSUAN, Respondents. DECISION MEDIALDEA, J.: This petition was originally filed on February 13, 1985 to secure the release of petitioners on habeas corpus and to permanently enjoin the City Fiscal of Quezon City from investigating

charges of "Inciting to Sedition" against petitioners Lino Brocka, Benjamin Cervantes, Cosme Garcia and Rodolfo Santos, (hereafter Brocka, et al.). On learning that the corresponding informations for this offense has been filed by the City Fiscal against them on February 11, 1985, a supplemental petition was filed on February 19, 1985 (p. 51, Rollo) to implead the Presiding Judge, 1 and to enjoin the prosecution of Criminal Cases Nos. Q38023, Q-38024 and Q-38025 (p. 349, Rollo) and the issuance of warrants for their arrests, including their arraignment. Since then President Ferdinand E. Marcos had ordered the provisional release of Brocka, et al., the issue on habeas corpus has become moot and academic (p. 396, Rollo). We shall thus focus on the question of whether or not the prosecution of the criminal cases for Inciting to Sedition may lawfully be enjoined.
:-cralaw

Petitioners were arrested on January 28, 1985 by elements of the Northern Police District following the forcible and violent dispersal of a demonstration held in sympathy with the jeepney strike called by the Alliance of Concerned Transport Organization (ACTO). Thereafter, they were charged with Illegal Assembly in Criminal Cases Nos. 37783, 37787 and 37788 with Branch 108, Regional Trial Court, NCJR, Quezon City. 2 Except for Brocka, et al. who were charged as leaders of the offense of Illegal Assembly and for whom no bail was recommended, the other petitioners were released on bail of P3,000.00 each. Brocka, et al.'s provisional release was ordered only upon an urgent petition for bail for which daily hearings from February 1-7, 1985 were held. However, despite service of the order of release on February 9, 1985, Brocka, et al. remained in detention, respondents having invoked a Preventive Detention Action (PDA) allegedly issued against them on January 28, 1985 (p. 6, Rollo). Neither the original, duplicate original nor certified true copy of the PDA was ever shown to them (p. 367, Rollo). Brocka, et al. were subsequently charged on February 11, 1985 with Inciting to Sedition, docketed as Criminal Cases Nos. Q-38023, Q-38024 and Q-38025 (p. 349, Rollo), without prior notice to their counsel (p. 7, Rollo). The original informations filed recommended no bail (p. 349, Rollo). The circumstances surrounding the hasty filing of this second offense are cited by Brocka, et al. (quoting from a separate petition filed on their behalf in G.R. Nos. 69848-50 entitled "Sedfrey A. Ordoez vs. Col. Julian Arzaga, et al."), as follows: "x x x "6. The sham' character of the inquest examination concocted by all respondents is starkly bizarre when we consider that as early as 10:30 A.M. today, February 11, 1985, Benjamin Cervantes was able to contact undersigned petitioner by phone informing counsel that said Benjamin Cervantes and the 4 other persons who are the subjects of this petition will be brought before the Quezon City Fiscal at 2:30 for undisclosed reasons: subsequently, another phone call was received by petitioning counsel informing him that the appearance of Benjamin Cervantes et al. was to be at 2:00 P.M. When petitioning counsel arrived in the office of Assistant City Fiscal Arturo Tugonon, the complainants' affidavits had not yet been received by any of the panel of three assistant city fiscals, although the five persons under detention were already in the office of said assistant fiscal as early as 2:00 P.M. It was only at 3:00 when a representative of the military arrived bringing with him alleged statements of complainants against Lino Broka (sic) et al. for alleged inciting to sedition, whereupon undersigned counsel asked respondent Colonel Agapito Abad 'who ordered the detained persons to be brought to the office of Assistant Fiscal Arturo Tugonon since there were no charges on file;' and said Colonel Agapito Abad said aloud: 'I only received a telephone call from Colonel Arzaga about 11:00 A.M. to bring the detained persons today I am only the custodian.' At 3:15, petitioning counsel inquired from the Records Custodian when the charges against Lino Broka (sic) had been officially received and he was informed that the said charges were never coursed through the Records Office.

"7. Under the facts narrated above, respondents have conspired to use the strong arm of the law and hatched the nefarious scheme to deprive Lino Broka (sic) et al. the right to bail because the utterances allegedly constituting inciting to sedition under Article 142 of the Revised Penal Code are, except for varying nuances, almost verbatim the same utterances which are the subject of Criminal Cases No. 37783, 37787 and 37788 and for which said detained persons are entitled to be released on bail as a matter of constitutional right. Among the utterances allegedly made by the accused and which the respondents claimed to be violative of Article 142 of the Revised Penal Code are: 'Makiisa sa mga drivers, "Makiisa sa aming layunin, "Digmaang bayan ang sagot sa kahirapan,' Itigil ang pakikialam ng imperyalismo sa Pilipinas,' 'Rollback ng presyo ng langis sa 95 Centavos.' (See Annex B) "8. That when petitioning counsel and other members of the defense panel requested that they be given 7 days within which said counsel may confer with their clients the detained persons named above, the panel of assistant fiscals demanded that said detained persons should sign a 'waiver' of their rights under Article 125 of the Revised Penal Code as a condition for the grant of said request, which is a harassing requirement considering that Lino Broka (sic) et al. were already under the detention, albeit illegally, and they could not have waived the right under Rule 125 which they did not enjoy at the time the ruling was made by the panel of assistant city fiscals." (pp. 4-6, Rollo in G.R. 69848-50). They were released provisionally on February 14, 1985, on orders of then President F. E. Marcos. The circumstances of their release are narrated in Our resolution dated January 26, 1985, as quoted in the Solicitor General's Manifestation as follows: "G.R. Nos. 69848-50 (Sedfrey A. Ordoez, Petitioner, vs. Col. Julian Arzaga, et al., Respondents). Petitioner Sedfrey A. Ordoez filed this petition for habeas corpus in behalf of Lino Brocka, Benjamin Cervantes, Cosme Garcia, Alexander Luzano, and Rodolfo Santos, who were all detained under a Preventive Detention Action (PDA) issued by then President Ferdinand E. Marcos on January 28, 1985. They were charged in three separate informations of the crime of illegal assembly under Art. 146, paragraph 3 of the Revised Penal Code, as amended by PD 1834. On February 7, 1985, the Honorable Miriam Defensor Santiago, Regional Trial Judge of Quezon City, issued a resolution in the above criminal cases, directing the release of the five accused on bail of P6,000.00 for each of them, and from which resolution the respondent fiscals took no appeal. Immediately thereafter, the accused filed their respective bail bonds. This notwithstanding, they continued to be held in detention by order of the respondent colonels; and on February 11, 1985, these same accused were 'reinvestigated,' this time on charges of 'inciting to sedition' ** under Art. 142 of the Revised Penal Code, following which corresponding cases were filed. The respondents complied with Our resolution requiring them, inter alia, to make a RETURN of the writ of habeas corpus. In their RETURN, it appeared that all the accused had already been released, four of them on February 15, 1985 and one February 8, 1985. The petitioner, nevertheless, argued that the petition has not become moot and academic because the accused continue to be in the custody of the law under an invalid charge of inciting to sedition." (p. 395, Rollo). Hence, this petition. Brocka, et al. contend that respondents' manifest bad faith and/or harassment are sufficient bases for enjoining their criminal prosecution, aside from the fact that the second offense of inciting to sedition is illegal, since it is premised on one and the same act of attending and participating in the ACTO jeepney strike. They maintain that while there may be a complex crime from a single act (Art. 48, RTC), the law does not allow the splitting of a single act into two offenses and filing two informations therefor, further, that they will be placed in double jeopardy.

The primary issue here is the legality of enjoining the criminal prosecution of a case, since the two other issues raised by Brocka, et al. are matters of defense against the sedition charge. We rule in favor of Brocka, et al. and enjoin their criminal prosecution for the second offense of inciting to sedition. Indeed, the general rule is that criminal prosecution may not be restrained or stayed by injunction, preliminary or final. There are however exceptions, among which are: "a. To afford adequate protection to the constitutional rights of the accused (Hernandez vs. Albano, et al., L-19272, January 25, 1967, 19 SCRA 95); "b. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions (Dimayuga, et al. vs. Fernandez, 43 Phil. 304; Hernandez vs. Albano, supra; Fortun vs. Labang, et al., L-38383, May 27, 1981, 104 SCRA 607); "c. When there is a pre-judicial question which is sub judice (De Leon vs. Mabanag, 70 Phil. 202); "d. When the acts of the officer are without or in excess of authority (Planas vs. Gil, 67 Phil. 62); "e. Where the prosecution is under an invalid law, ordinance or regulation (Young vs. Rafferty, 33 Phil. 556; Yu Cong Eng vs. Trinidad, 47 Phil. 385, 389); "f. When double jeopardy is clearly apparent (Sangalang vs. People and Avendia, 109 Phil. 1140); "g. Where the court has no jurisdiction over the offense (Lopez vs. City Judge, L-25795, October 29, 1966, 18 SCRA 616); "h. Where it is a case of persecution rather than prosecution (Rustia vs. Ocampo, CA-G.R. No. 4760, March 25, 1960); "i. Where the charges are manifestly false and motivated by the lust for vengeance (Recto vs. Castelo, 18 L.J. [1953], cited in Raoa vs. Alvendia, CA-G.R. No. 30720-R, October 8, 1962; Cf, Guingona, et al vs. City Fiscal, L-60033, April 4, 1984, 128 SCRA 577); and "j. When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied (Salonga vs. Pao, et al., L-59524, February 18, 1985, 134 SCRA 438). "7. Preliminary injunction has been issued by the Supreme Court to prevent the threatened unlawful arrest of petitioners (Rodriguez vs. Castelo, L-6374, August 1, 1958)." (cited in Regalado, Remedial Law Compendium, p. 188, 1988 Ed.) In the petition before Us, Brocka, et al. have cited the circumstances to show that the criminal proceedings had become a case of persecution, having been undertaken by state officials in bad faith.
: nad

Respondents, on the other hand, had invoked a PDA in refusing Brocka, et al.'s release from detention (before their release on orders of then Pres. Marcos). This PDA was, however, issued on January 28, 1985, but was invoked only on February 9, 1985 (upon receipt of the trial court's order of release). Under the guidelines issued, PDAs shall be invoked within 24 hours (in Metro Manila) or 48 hours (outside Metro Manila). (Ilagan v. Enrile, G.R. No. 70748, October 28, 1985, 139 SCRA 349). Noteworthy also is Brocka, et al.'s claim that, despite subpoenas for its production, the prosecution merely presented a purported xerox copy of the invoked PDA (par. 4, Counter-Rejoinder, p. 367, Rollo).

The foregoing circumstances were not disputed by the Solicitor General's office. In fact they found petitioner's plight "deplorable" (par. 51, Manifestation, p. 396, Rollo). The hasty filing of the second offense, premised on a spurious and inoperational PDA, certainly betrays respondent's bad faith and malicious intent to pursue criminal charges against Brocka, et al. We have expressed Our view in the Ilagan case that "individuals against whom PDAs have been issued should be furnished with the original, and the duplicate original, and a certified true copy issued by the official having official custody of the PDA, at the time of the apprehension" (supra, p. 369). We do not begrudge the zeal that may characterize a public official's prosecution of criminal offenders. We, however, believe that this should not be a license to run roughshod over a citizen's basic constitutional lights, such as due process, or manipulate the law to suit dictatorial tendencies. We are impelled to point out a citizen's helplessness against the awesome powers of a dictatorship. Thus, while We agree with the Solicitor General's observation and/or manifestation that Brocka, et al. should have filed a motion to quash the information, We, however, believe that such a course of action would have been a futile move, considering the circumstances then prevailing. Thus, the tenacious invocation of a spurious and inoperational PDA and the sham and hasty preliminary investigation were clear signals that the prosecutors intended to keep Brocka, et al. in detention until the second offense of "Inciting to Sedition" could be facilitated and justified without need of issuing a warrant of arrest anew. As a matter of fact the corresponding informations for this second offense were hastily filed on February 11, 1985, or two days after Brocka, et al.'s release from detention was ordered by the trial judge on February 9, 1985. Constitutional rights must be upheld at all costs, for this gesture is the true sign of democracy. These may not be set aside to satisfy perceived illusory visions of national grandeur.
: na d

In the case of J. Salonga v. Cruz Pao, We point out: "Infinitely more important than conventional adherence to general rules of criminal procedure is respect for the citizen's right to be free not only from arbitrary arrest and punishment but also from unwarranted and vexatious prosecution . . ." (G.R. No. L-59524, February 18, 1985, 134 SCRA 438-at p. 448). We, therefore, rule that where there is manifest bad faith criminal charges, as in the instant case where Brocka, et provisional release until such time that charges were filed, investigation was hastily conducted, charges that are filed enjoined. that accompanies the filing of al. were barred from enjoying and where a sham preliminary as a result should lawfully be

ACCORDINGLY, the petition is hereby GRANTED. The trial court is PERMANENTLY ENJOINED from proceeding in any manner with the cases subject of the petition. No costs. SO ORDERED. Fernan C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Gancayco, Padilla, Bidin, Sarmiento, Grio-Aquino and Regalado, JJ., concur. Feliciano, J., is on leave.

July 31, 1984

G.R. No. L-32849 QUIRICO A. ABELA, petitioner, vs. HONORABLE CESARIO C. GOLEZ, Judge, Court of First Instance of Capiz, Branch I, and AGUSTIN ALMALBIS respondents.

RELOVA, J.: Relova, J.: Direct appeal by City Fiscal Quirico A. Abela, of Roxas City, from a decision dated August 27, 1970 of then Court of First Instance Judge Cesario C. Golez, compelling him to file the proper action for estafa arising from the bouncing check Exhibit B. Without pronouncement as to costs. (p. 41, Rollo) On December 28, 1968, private respondent Agustin Almalbis filed with the Office of the City Fiscal of Roxas City a complaint for estafa against one Virginia Anisco. After conducting a preliminary investigation, herein petitioner Quirico A. Abela dismissed the complaint for lack of merit. Thereafter, private respondent Almalbis commenced the action for mandamus in the Court of First Instance of Roxas City against herein petitioner Quirico A. Abela. In due course said court rendered the above-mentioned decision. Hence, this appeal. The findings of the petitioner are contained in his Order, from which we quote: It appeared from the testimony of the complainant, that sometime in 1967, the complainant entered into a business arrangement with the respondent, Virginia P. Anisco. The former, who is both owner and operator of several fishing boats and fishponds, sends fish by the tons to the respondent to be sold at the Manila Divisoria Market. From the proceeds of such sales, which were entirely supervised and controlled by the respondent, respondent got four per cent (4%) commission from the gross proceeds plus whatever expenses she has advanced as expenses in the process. Respondent in turn has the obligation to remit the balance of the proceeds to the complainant. This business arrangement had continued for sometime at a more or less irregular interval of two weeks to the satisfaction of both parties, until the respondent later became late and irregular in her remittances of the balance of the proceeds due the complainant. Remittances of the net proceeds were mostly done by respondent by sending her personal checks and later, when respondent had been late in her remittances, complainant proposed that respondent give him a check book, each and every check of which is presigned in blank. The blanks corresponding to the amount and the payee to be filled in later by the complainant as the value of the shipment is determined after each sale. This was done and the business again continued under the above arrangement. Then Checks Nos. 378389 dated September 16, 1968, 392377 dated October 20, 1968, 392379 dated October 29, 1968, 392380 dated October 30, 1968, and 392381 dated October 30, 1968 drawn on the Prudential Bank and Trust Company of

Manila as prepared and filled in by the complainant were all dishonored for lack of funds, when presented for payments by the complainant through the Roxas City Branch of the Philippine National Bank. The foregoing is the summary of the testimony of complainant, Agustin Almalbis. and with the submission of his aforementioned exhibits, rested his case. Respondent failed to appear on the dates scheduled for her turn and was considered to have waived her rights to present evidence in her defense. THE ISSUE The question is, has the respondent committed Estafa by giving, presigned blank checks to the complainant which were later dishonored by the bank for lack of funds, as defined under Art. 315 paragraph 2-d of the Revised Penal Code. xxx xxx xxx There is a deceit when one is misled, either by guile or trickery or by other means, to believe to be true what is really false. When, therefore, the parties agreed to the arrangement, that the respondent give a check book, all the individual checks contained therein already signed by the respondent as drawer in blank, leaving the complainant to fill in the payee and the amount to be drawn later after the amount is determined after the sale of each shipment of fish consigned to the respondents such arrangement can only be considered as an agreement for business convenience between those concerned and no more. Certainly, deceit can not be attributed to the respondent if the checks from the aforesaid check book under the control of the complainant, prepared and filled in by him as to the date, the payee and amount, turned out to be dishonored as it did due to lack of funds for the simple reason, that except for presigning the checks the respondent had no hand in the preparation of the same thereby giving her no chance to determine the sufficiency of her original bank deposit or the necessary amount for replenishment of such deposit. xxx xxx xxx Considering, further, the element mentioned herein before, that the check dishonored must have been issued in payment of an obligation contracted at the same time without which the transaction would not have been consummated as held in the case of People vs. Obieta et al. (CA-52 O.G. 065224), the inapplicability of the penal provision relied upon by the complainant becomes glaringly clear. That act of the respondent in signing the checks in blank, delivering the same to the complainant to be filled in later by the latter as to the date indicating the date of the issuance, the name of the payee and the amount to be drawn, in payment for the costs of future shipments of fish to be sold

at the Manila Market, can never be interpreted or considered as checks issued in the payment of an obligation contracted at, the same time even by the wildest stretch of imagination. The law contemplates, as ruled in the case of People vs. Obieta aforecited, of one uninterrupted transaction. The consummation of the transaction and the issuance must be concurrent. (pp. 17, 20, 21, 22, Rollo) The Honorable Judge Golez overruled petitioner, saying: The first check so issued is PBTC (Prudential Bank and Trust Company) Check AD No. 378389, dated September 16, 1968, payable to the order of Mr. Agustin Almalbis in the amount of P6,000.00 and signed by Virginia P. Anisco (Exhibit B). The second check issued was PBTC Check AD No. 392377, dated October 20, 1968, payable to the order of Cash in the amount of P3,637.05 and signed by Virginia P. Anisco. (Exhibit C). The third check issued was PBTC Check No. 392379, dated October 29, 1968, payable to the order of Agustin Almalbis in the amount of P3,426.85 and signed by Virginia P. Anisco. (Exhibit D). The fourth and fifth checks issued were PBTC Check AD No. 392381, and PBTC Check AD No. 392380, both dated October 30, 1968, in the amount of P1,360.50 and P3,000.00, respectively, both payable to Cash both signed by Virginia P. Anisco. (Exhibits E and F). It also appears that Virginia P. Anisco, the respondent mentioned in the aforementioned lettercomplaint Exhibit A, was handling the sales of the fish which the petitioner in Roxas City was shipping from time to time to Manila where the said fish was sold by Virginia P. Anisco in the Divisoria Market for which service Anisco was paid by Almalbis a commission of 4% on the gross proceeds of the sales. According to Almalbis it was their agreement that Anisco would remit to him here in Roxas City the net proceeds of the sales of fish made by Anisco in Manila after deducting her commission and other incidental expenses therefrom. The five checks Exhibits B, C, D, E and F adverted to elsewhere above represented the net proceeds realized from the sales made by Virginia P. Anisco of the fish of Agustin Almalbis. The petitioner Agustin Almalbis further narrated that the PBTC Check AD No. 378389, dated September 16, 1968 (Exhibit B), was hand-carried by Amador Anisco, from Manila to Roxas City where Amador delivered the said check Exhibit B to the said petitioner. Then Almalbis indorsed the check Exhibit B to the Philippine National Bank, Roxas City Branch, where it was accepted for deposit only. Later on the check Exhibit E was returned to Almalbis, dishonored by the Prudential Bank and Trust Company against which it had been drawn, for lack of funds. When the check Exhibit B had found its way back to Almalbis, the latter left for Manila to inquire from Virginia why the said check bounced back. Virginia begged of him to give her a little more time to get sufficient funds for The said check Exhibit B. But the funds never came.

Meanwhile, and upon the plea of Virginia, the petitioner continued to make shipments of fish to her, and as part of this new understanding, Virginia agreed to sign, as she signed, checks in blank which she delivered to petitioner who was to fill the blanks therein with the amount and date corresponding to the sales of fish made by Virginia and reported by her by telegram to said petitioner. By virtue of this arrangement the checks Exhibits C, D, E and F were made out by Almalbis himself by filling up the pre-signed blank checks provided him by Virginia. But the said checks Exhibits C, D, E and F also bounced back for lack of funds or for the reason of Exceeds Arrangements (Exhibit D-5 and E-5). Almalbis declared that he placed all of the foregoing facts at the disposal of the respondent City Fiscal Quirico Abela who conducted the preliminary investigation on his within mentioned letter-complaint of 26th December 1968. xxx xxx xxx The instant petition is also a two-fold action, firstly, for certiorari upon the ground that the respondent Fiscal gravely abused his discretion in dismissing the within mentioned complaint with the result that the petitioner herein has been deprived of his right as the aggrieved party in a criminal transaction-and, secondly, for mandamus to compel the said respondent to bring the corresponding criminal action. The second phase of the action, i.e., mandamus, depends entirely upon the success or failure of the first phase of the action, i.e., certiorari, in the sense that should it be found that the respondent herein did gravely abuse his discretion in dismissing petitioners complaint mandamus would lie to rectify his error. (Bonilla, et al., vs. Sec. of Agriculture & Natural Resources, L-20083, April 27, 1967). In the given state of facts such as spelled out elsewhere above the right of the petitioner, with specific reference to the check Exhibit B, cannot be said to be dubious, uncertain or nebulous, but in fact well- defined, clear and certain, not at all found within the sphere of speculation or probability, but is firmly secured within the realm of certainty, and this condition should entitle the petitioner herein to a relief for official inaction obtainable through the extraordinary remedy of mandamus. (See the following cases: Aquino v. General Manager, GSIS, L-24859, Jan. 31, 1968; Aprueba et al. v. Ganzon, et al., L-20867, Sept. 3, 1966; Kwok Kam Lien v. Vivo, L22354, Mar. 31, 1965; Alzate v. Aldana L-18085, May 1963; Villamor, et al. v. Lacson, et al., L15945, Nov. 28, 1964; People v. Orais, 65 Phil. 744, 747.) While as already shown the discretion of the court will not ordinarily be controlled by mandamus, it is not universally true that the writ will not issue to control such discretion or to require a judicial tribunal to act in a particular way. Where the discretion of the court can be legally exercised in only one way, mandamus will lie to compel the court to exercise it; and in some cases has been employed to correct the errors of inferior tribunals and to prevent a failure of justice or irreparable injury where there is a clear right, and there is an absence of any adequate remedy, as for instance where no appeal lies, or where the remedy by appeal is inadequate. It may also be employed to prevent an abuse of discretion or to correct an arbitrary action which does not amount to the exercise of discretion. (Corpus Juris, sec. 85, pp. 608-609, as quoted in People v. Orais, supra)

So that where the fiscal filed an information for homicide over the insistence of the aggrieved party that the crime committed was murder as shown by the declaration of witnesses disclosing the presence of qualifying circumstances the Supreme Court ruled that his failure to file the proper information rendered the Fiscal subject to the writ of mandamus. (Bernabe v. Bolinas, et al., L-22000, Nov. 29, 1966.) (pp. 33, 35, 39, 4 1, Rollo) There is merit in the appeal. The public prosecutor is entitled to use his judgment and discretion in the appreciation of evidence presented to him and, in the exercise thereof, he may not be controlled by mandamus. Whether an information should be filed in court is a matter address to the sound discretion of the fiscal according to whether the evidence is in his opinion sufficient to establish the guilt of the accused beyond a reasonable doubt. Otherwise stated, the fiscal can not be compelled to act in a distinct manner whether to prosecute or not to prosecute and, instead, is allowed to stand on his opinion and conviction, reserving only to the Secretary, in any appropriate case when the latter believes public interest impels that a different course of action should be taken, to temporarily relieve the fiscal of the duty to act by designating somebody else to take his place solely and only for the purpose of such particular case. Under Sections 1679 and 1689 of the Revised Administrative Code, in any instance where a provincial or city fiscal fails, refuses or is unable, for any reason, to investigate or prosecute a case and, in the opinion of the Secretary of Justice it is advisable in the public interest to take a different course of action, the Secretary may either appoint as acting provincial or city fiscal, to handle the investigation or prosecution exclusively and only for such case, any practicing attorney or some competent officer of the Department of Justice or office of any city or provincial fiscal, with complete authority to act therein in all respects as if he were the provincial or city fiscal himself, or appoint any lawyer in the government service or not in the government service, temporarily to assist such city or provincial fiscal in the discharge of his duties, with the same complete authority to act independently of and for such city or provincial fiscal, provided that no such appointment may be made without first hearing the fiscal concerned and never after the corresponding information has already been filed with the court by the corresponding city or provincial fiscal without the conformity of the latter, except when it can be patently shown to the court having cognizance of the case that said fiscal is intent on prejudicing the interest of justice. The same sphere of authority is true with the prosecutor directed and authorized under Section 3 of Republic Act 3783, as amended and/or inserted by Republic Act 5184. (Estrella vs. Orendain Jr., 37 SCRA 640) However, the matter of instituting an information should be distinguished from a motion by the fiscal for the dismissal of a case already filed in court. The judge may properly deny the motion where, judging from the record of the preliminary investigation, there appears to be sufficient evidence to sustain the prosecution. This is, as it should be, because the case is already in court and, therefore, within its discretion and control. But then, the question may be asked: What are the remedies of the offended party or complainant when the prosecuting officer refuses or fails to file an information or to prosecute the criminal action? As stated above, [i]n case the provincial fiscal should fail or refuse to act even when there is sufficient evidence on which action may be taken, the offended party may take up the matter with the Secretary of Justice who may then take such measures as may be necessary in the

interest of justice under Section 1679 of the Revised Administrative Code. (Pagan vs. Pasicolan, 103 Phil. 1143). He may also file with the proper authorities or courts criminal and administrative charges against the prosecuting officer. As held in Bagatua vs. Revilla, 104 Phil. 393, [w]hile it is the duty of the fiscal or the City Attorney, as prosecuting officer, to prosecute persons who, according to the evidence received from the complainant; are shown to be guilty of a crime, said officer is likewise bound by his oath of office to protect innocent persons from groundless, false or malicious prosecution. The prosecuting officer would be committing a serious dereliction of duty if he files the information based upon a complaint, where he is not convinced that the sufficiency and strength of the evidence would warrant the filing of the action in court against the accused. This duty of the prosecuting officer involves discretion, hence, it cannot be controlled by mandamus unless there has been a grave abuse thereof which is not shown in the case at bar. Or, he may file a civil action for damages under Article 27 of the New Civil Code. WHEREFORE, the decision, dated August 27, 1970, of respondent judge is hereby SET ASIDE. SO ORDERED. Concepcion, Jr., Guerrero, Abad Santos, Melencio-Herrera, Plana, Gutierrez, Jr., De la Fuente and Cuevas, JJ., concur. Makasiar, J., concurs in the result. Fernando, C.J., Escolin, Teehankee, JJ., took no part. Separate Opinions AQUINO, J., concurring: I concur. As a general rule, mandamus does not lie to compel the fiscal to file an information because that duty involves the exercise of discretion and judgment. It is not ministerial (Gonzales vs. Serrano, L-25791, September 23, 1968, 25 SCRA 64; Vda. de Bagatua vs. Revilla, 104 Phil. 392; Gonzales vs. Court of First Instance of Bulacan, 63 Phil. 846; People vs. Natoza 100 Phil. 533, 536; Alberto vs. De la Cruz, L-31839, June 30, 1980, 98 SCRA 406; Aquino vs. Mariano, L-30485, May 31, 1984). It is not fair to compel the fiscal to prosecute a person whose guilt may not, in his opinion, be established with the evidence submitted to him (People vs. Santos, L-25413, October 31, 1969,30 SCRA 100). But if the fiscal acts with grave abuse of discretion in not prosecuting the accused, he may be compelled by mandamus to file the proper information. For example, it is grave abuse of discretion on the fiscals part to file an information for homicide only when the evidence presented before him warrants the firing of a murder charge

because the killing was treacherous. He may be compelled by mandamus to file a charge for murder (Bernabe vs. Bolinas, Jr., L-22000, November 29,1966. 18 SCRA 812). Against the unjust action or inaction of a fiscal, the remedy is an appeal to the Minister of Justice who has control of fiscals, or to file an administrative charge against him. (Presidential Decree No. 1275, Reorganizing the Prosecution Staff; Circular No. 36 dated July 1, 1980, Ministry of Justice; Estrella vs. Orendain Jr., L-19611, February 27, 1971, 37 SCRA 640; Noblejas vs. Salas, L-31788, September 15, 1975, 67 SCRA 47; Caeg vs. Abad Santos, L-40044, March 10, 1975, 63 SCRA 96; Pangan vs. Pasicolan, 103 Phil. 1143 unpublished.) Separate Opinions AQUINO, J., concurring: I concur. As a general rule, mandamus does not lie to compel the fiscal to file an information because that duty involves the exercise of discretion and judgment. It is not ministerial (Gonzales vs. Serrano, L-25791, September 23, 1968, 25 SCRA 64; Vda. de Bagatua vs. Revilla, 104 Phil. 392; Gonzales vs. Court of First Instance of Bulacan, 63 Phil. 846; People vs. Natoza 100 Phil. 533, 536; Alberto vs. De la Cruz, L-31839, June 30, 1980, 98 SCRA 406; Aquino vs. Mariano, L-30485, May 31, 1984). It is not fair to compel the fiscal to prosecute a person whose guilt may not, in his opinion, be established with the evidence submitted to him (People vs. Santos, L-25413, October 31, 1969,30 SCRA 100). But if the fiscal acts with grave abuse of discretion in not prosecuting the accused, he may be compelled by mandamus to file the proper information. For example, it is grave abuse of discretion on the fiscals part to file an information for homicide only when the evidence presented before him warrants the firing of a murder charge because the killing was treacherous. He may be compelled by mandamus to file a charge for murder (Bernabe vs. Bolinas, Jr., L-22000, November 29,1966. 18 SCRA 812). Against the unjust action or inaction of a fiscal, the remedy is an appeal to the Minister of Justice who has control of fiscals, or to file an administrative charge against him. (Presidential Decree No. 1275, Reorganizing the Prosecution Staff; Circular No. 36 dated July 1, 1980, Ministry of Justice; Estrella vs. Orendain Jr., L-19611, February 27, 1971, 37 SCRA 640; Noblejas vs. Salas, L-31788, September 15, 1975, 67 SCRA 47; Caeg vs. Abad Santos, L-40044, March 10, 1975, 63 SCRA 96; Pangan vs. Pasicolan, 103 Phil. 1143 unpublished.) G.R. No. L-39962 March 3, 1977 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RICARDO BERIALES, BENEDICTO CUSTODIO and PABLITO CUSTODIO, accusedappellants.

RESOLUTION

CONCEPCION JR., J.:t.hqw The Court's attention has been called to the fact that the decision in this case has been interpreted in prosecution circles in such manner as may cause the obstruction of the administration of justice. Hence, a clarification and a restatement of some of the principles therein involved are in order. In this case, which involved a prosecution in the Court of First Instance, the Court ruled, inter alia, that the fiscal's duty to direct and control the prosecution of criminal cases requires that he must be present during the proceedings; and that evidence presented by the private prosecutor at a hearing, at which neither the fiscal nor his assistant or duly authorized special counsel was officially present, cannot be considered as evidence for the People of the Philippines. This pronouncement, as can be clearly deduced therefrom, applies to the trial and prosecution of criminal cases before the Courts of First Instance, Criminal Circuit Courts, and City Courts (which are provided by law with their own City Fiscals) only, and not to the municipal courts. The procedure in the trial of criminal cases before the municipal courts and City Courts which do not have their own City Fiscals has not in any way been altered or modified by the pronouncement in this case. Under Sec. 2, Rule 110 1 of the Revised Rules of Court, and in the light of the ruling in the cases of P.P.I. vs. Alvarez and P.P.I. vs. Perez, et al., 2 police, constabulary, and other peace or law enforcement officers and private prosecutors may prosecute criminal cases in the said courts, but this authority ceases upon actual intervention of the provincial or City Fiscal or their assistants, or upon the elevation of the case to the Court of First Instance. Fernando (Chairman) and Antonio, JJ., concur.

Separate Opinions
BARREDO, J., concurring: I would like to add that there is no prohibition against the offended party undertaking the prosecution of the case.

AQUINO, J,: concurring:

It should be noted that the rule in sec. 4, Rule 110 that "all criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of the fiscal" was taken from U.S. vs. Despabiladeras, 32 Phil, 442, an adultery case prosecuted in the Court of First Instance. Rule 123 prescribes the procedure in inferior courts, Section 4 of Rule 110 might have been based on the assumption that criminal cases tried in inferior courts are appealable to the Court of First Instance, where a trial de novo is held and where the fiscal shall take charge of the cause in behalf of the prosecution (Secs. 6 and 7, Rule 123).

Separate Opinions BARREDO, J., concurring: I would like to add that there is no prohibition against the offended party undertaking the prosecution of the case.

AQUINO, J,: concurring: It should be noted that the rule in sec. 4, Rule 110 that "all criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of the fiscal" was taken from U.S. vs. Despabiladeras, 32 Phil, 442, an adultery case prosecuted in the Court of First Instance. Rule 123 prescribes the procedure in inferior courts, Section 4 of Rule 110 might have been based on the assumption that criminal cases tried in inferior courts are appealable to the Court of First Instance, where a trial de novo is held and where the fiscal shall take charge of the cause in behalf of the prosecution (Secs. 6 and 7, Rule 123). G.R. Nos. 74989-90 November 6, 1989 JOEL B. CAES, petitioner, vs. Hon. INTERMEDIATE APPELLATE COURT (Fourth Special Cases Division), Hon. ALFREDO M. GORGONIO, in his capacity as the Presiding Judge of the Regional Trial Court of Caloocan City, Branch CXXV, National Capital Region and PEOPLE OF THE PHILIPPINES, respondents. Sanchez & Montebon Law Office for petitioner.

CRUZ, J.:

We deal with a simple matter that should not detain us too long. Fittingly, we shall decide it in favor of individual liberty rather than upon rebuttable presumptions and dubious implications. The facts are simple and mostly undisputed. On November 21, 1981, petitioner Joel Caes was charged in two separate informations with illegal possession of firearms and illegal possession of marijuana before the Court of First Instance of Rizal. 1 The cases were consolidated on December 10, 1981. 2 Arraignment was originally scheduled on January 11, 1982, but was for some reason postponed. 3 On August 31, 1982, Caes was arraigned and pleaded not guilty. 4 Trial was scheduled for October 13, 1982, but this was reset upon agreement of the parties. 5 On November 15, 1982, the trial was again postponed for reasons that do not appear in the record. 6 On December 20, 1982, the trial was again postponed because the prosecution witnesses were absent. 7 On January 19, 1983, the third resetting of the case was also canceled, no reason appearing in the record. 8 On February 21, 1983, no trial could be held again, the because witnesses being absent. 9 On March 21, 1983, the trial was reset once more, again because the prosecution witnesses were absent. 10 On April 19, 1983, the trial of the case had not yet started. It was reset because the prosecution witnesses were again absent. 11 On June 3, 1983, a sheriffs return informed the trial court that the prosecution witnesses, namely, Capt. Carlos Dacanay and Sgt. Bonifacio Lustado had been personally served with subpoena to appear and testify at the hearing scheduled on June 6, 1983. 12 On June 6, 1983, the trial was again postponed, this time because there was no trial fiscal. 13 On July 12, 1983, trial was reset for lack of material time. 14 On September 6, 1983, The trial was once more reset by agree-judgment of the parties.
15

On October 19, 1983, the trial was reset to November 14, 1983.

16

On November 14, 1983, the prosecution moved for the provisional dismissal of the case because its witnesses had not appeared. On the same date, Judge Alfredo M. Gorgonio issued the following order:
In view of the failure of the prosecution witnesses to appear on several scheduled hearing and also for the hearing today which is an indication of lack of interest, upon motion of the trial fiscal for the provisional dismissal of these cases and with the conformity of the accused, the above-entitled cases are hereby ordered Provisionally 17 Dismissed, with costs de oficio.

On January 9, 1984, a motion to revive the cases was filed by Maj. Dacanay (he had been promoted in the meantime) and Sgt. Lustado who alleged that they could not attend the hearing scheduled on November 14, 1983, for lack of notice. 18 Copy of the motion was furnished the City Fiscal of Caloocan City but not the petitioner. On May 18, 1984, the respondent judge issued the following order:
Acting on the "Motion for the Revival of the Case" dated December 5, 1983 filed by the complaining witnesses to which no opposition has been filed either by the Fiscal or the defense, and considering that the dismissal of these cases was only provisional, for reasons stated in the motion, the same is granted. WHEREFORE, let these cases be set anew for hearing on June 13, 1984 at 8:30 in the 19 morning.

A motion for reconsideration filed by the petitioner dated June 7, 1984, was denied on October 9, 1984, and the revived cases were set from hearing on November 19, 1984.
20

The petitioner questioned the judge's order on certiorari with this Court, which reffered his petition to the respondent court. The petition there was dismissed for lack of merit on May 20, 1986, and reconsideration was denied on June 17, 1986. 21 Caes then came to us again. The present petition is based on two arguments, to wit: (a) that the motion to revive the cases was invalid because it was riot filed by the proper party nor was a copy served on the petitioner; and (b) the revival of the cases would place the petitioner double jeopardy in violation of the Bill of Rights. We sustain the petitioner on both counts. It is axiomatic that the prosecution of a criminal case is the responsibility of the government prosecutor and must always be under his control. 22 This is true even if a private prosecutor is allowed to assist him and actually handles the examination of the witnesses and the introduction of other evidence. 23 The witnesses, even if they are the complaining witnesses, cannot act for the prosecutor in the handling of the case.

Although they may ask for the filing of the case, they have no personality to move for its dismissal or revival as they are not even parties thereto nor do they represent the parties to the action. Their only function is to testify. In a criminal prosecution, the plaintiff is represented by the government prosecutor, or one acting under his authority, and by no one else. It follows that the motion for the revival of the cases filed by prosecution witnesses (who never even testified) should have been summarily dismissed by the trial judge. The mere fact that the government prosecutor was furnished a copy of the motion and he did not interpose any objection was not enough to justify the action of these witnesses. The prosecutor should have initiated the motion himself if he thought it proper. The presumption that he approved of the motion is not enough, especially since we are dealing here with the liberty of a person who had a right at least to be notified of the move to prosecute him again. The fact that he was not so informed made the irregularity even more serious. It is curious that the motion was granted just the same, and ex parte at that and without hearing, and the petitioner's subsequent objection was brushed aside. On the second issue, the position of the public respondent is that double jeopardy has not attached because the case was only provisionally dismissed and it was with the conformity of the accused. The petitioner denies that he consented to the dismissal and submits that the dismissal was final notwithstanding its description. Fittingly described as "res judicata in prison grey," the right against double jeopardy prohibits the prosecution of a person for a crime of which he has been previously acquitted or convicted. The purpose is to set the effects of the first prosecution forever at rest, assuring the accused that he shall not thereafter be subjected to the danger and anxiety of a second charge against him for the same offense. It has been held in a long line of cases 24 that to constitute double jeopardy, there must be: (a) a valid complaint or information; (b) filed before a competent court; (c) to which the defendant had pleaded; and (d) of which he had been previously acquitted or convicted or which was dismissed or otherwise terminated without his express consent. There is no question that the first three requisites are present in the case at bar. What we must resolve is the effect of the dismissal, which the petitioner contends finally and irrevocably terminated the two cases against him. His submission is that the dismissal was not provisional simply because it was so designated, more so since he had not expressly consented thereto. It is settled that a case may be dismissed if the dismissal is made on motion of the accused himself or on motion of the prosecution with the express consent of the accused. 25 Such a dismissal is correctly denominated provisional. But a dismissal is not provisional even if so designated if it is shown that it was made without the express consent of the accused. This consent cannot be presumed nor may it be merely implied from the defendant's silence or his failure to object. As we have held in a number of

cases, such consent must be express, so as to leave no doubt as to the defendant's conformity. 26 Otherwise, the dismissal will be regarded as final, i.e., with prejudice to the refiling of the case. There are instances in fact when the dismissal will be held to be final and to dispose of the case once and for all even if the dismissal was made on motion of the accused himself. The first is where the dismissal is based on a demurrer to the evidence filed by the accused after the prosecution has rested. Such dismissal has the effect of a judgment on the merits and operates as an acquittal. In People v. City of Silay, 27 for example, the trial court dismissed the case on motion of the accused on the ground of insufficiency of the prosecution evidence. The government came to this Court on certiorari, and the accused pleaded double jeopardy. Our finding was that the case should not have been dismissed because the evidence submitted by the prosecution was not insufficient. Even so, the petitioner had to be denied relief because the dismissal amounted to an acquittal on the merits which was therefore not appealable. Justice Muoz-Palma said: "However erroneous the order of the respondent Court is, and although a miscarriage of justice resulted from said order, such error cannot now be lighted because of the timely plea of double jeopardy." The other exception is where the dismissal is made, also on motion of the accused, because of the denial of his right to a speedy trial. This is in effect a failure to prosecute. Concerning this right, the ruling in the old case of Conde v. Rivera 28 is still valid doctrine. Here the prosecution was dismissed because the accused was made to "dance attendance on courts" and subjected to no less than eight unjustified postponements extending over a year that unduly delayed her trial. In dismissing the charges against her, Justice Malcolm declared for a unanimous Supreme Court:
On the one hand has been the petitioner, of humble station, without resources, but fortunately assisted by a persistent lawyer, while on the other hand has been the Government of the Philippine Islands which should be the last to set an example of delay and oppression in the administration of justice. The Court is thus under a moral and legal obligation to see that these proceedings come to an end and that the accused is discharged from the custody of the law. We lay down the legal proposition that, where a prosecuting officer, without good cause, secures postponements of the trial of a defendant against his protest beyond a reasonable period of time, as in this instance for more than a year, the accused is entitled to relief ...

The case at bar is not much different from Conde. As the record shows, the petitioner was arraigned on August 31, 1982, but was never actually tried until the cases were dismissed on November 14, 1983, following eleven postponements of the scheduled hearings, mostly because the prosecution was not prepared. The accused was never absent at these aborted hearings. He was prepared to be tried, but either the witnesses against him were not present, or the prosecutor himself was absent, or the court lacked material time. Meantime, the charges against him continued to hang over his head even as he was not given an opportunity to deny them because his trial could not be held.

Under these circumstances, Caes could have himself moved for the dismissal of the cases on the ground of the denial of his right to a speedy trial. This would have been in keeping with People v. Cloribel, 29 where the case dragged for almost four years due to numerous postponements, mostly at the instance of the prosecution, and was finally dismissed on motion of the defendants when the prosecution failed to appear at the trial. This Court held "that the dismissal here complained of was not truly a dismissal but an acquittal. For it was entered upon the defendants' insistence on their constitutional right to speedy trial and by reason of the prosecution's failure to appear on the date of trial." The circumstance that the dismissal of the cases against the petitioner was described by the trial judge as "provisional" did not change the nature of that dismissal. As it was based on the "lack of interest" of the prosecutor and the consequent delay in the trial of the cases, it was final and operated as an acquittal of the accused on the merits. No less importantly, there is no proof that Caes expressly concurred in the provisional dismissal. Implied consent, as we have repeatedly held, is not enough; neither may it be lightly inferred from the presumption of regularity, for we are dealing here with the alleged waiver of a constitutional right. Any doubt on this matter must be resolved in favor of the accused. We conclude that the trial judge erred in ordering the revival of the cases against the petitioner and that the respondent court also erred in affirming that order. Caes having been denied his constitutional right to a speedy trial, and not having expressly consented to the "provisional" dismissal of the cases against him, he was entitled to their final dismissal under the constitutional prohibition against double jeopardy. 30 The Court expresses its stern disapproval of the conduct in these cases of the Office of the City Prosecutor of Caloocan City which reveals at the very least a lack of conscientiousness in the discharge of its duties. The informations appear to have been filed in haste, without first insuring the necessary evidence to support them. The prosecution witnesses repeatedly failed to appear at the scheduled hearings and all the prosecution did was to perfunctorily move for a resetting, without exerting earnest efforts to secure their attendance. In the end, it moved for the "provisional" dismissal of the cases without realizing, because it had not studied the matter more carefully, that such dismissal would have the effect of barring their reinstatement. Characteristically, it was also non-committal on the motion to revive the cases filed by the prosecution witnesses only, thereby surrendering, by its own silence, its authority in conducting the prosecution. It is possible that as a result of its in attention, the petitioner has been needlessly molested if not permanently stigmatized by the unproved charges. The other possibility, and it is certainly worse, is that a guilty person has been allowed to escape the penalties of the law simply because he may now validly claim the protection of double jeopardy. In either event, the responsibility clearly lies with the Office of the City Prosecutor of Caloocan City for its negligence and ineptitude.

WHEREFORE, the petition is GRANTED. The challenged decision of the respondent court dated May 20, 1986, and the orders of the trial court dated May 18, 1984, and October 9, 1984, are SET ASIDE. The dismissal of Criminal Cases Nos. C-16411(81) and C-16412(81) is hereby declared as final. Let a copy of this decision be sent to the Secretary of Justice. SO ORDERED. Narvasa, Gancayco, Grio-Aquino and Medialdea, JJ., concur. G.R. No. L-53373 June 30, 1987 MARIO FL. CRESPO, petitioner, vs. HON. LEODEGARIO L. MOGUL, Presiding Judge, CIRCUIT CRIMINAL COURT OF LUCENA CITY, 9th Judicial Dist., THE PEOPLE OF THE PHILIPPINES, represented by the SOLICITOR GENERAL, RICARDO BAUTISTA, ET AL., respondents.

GANCAYCO, J.: The issue raised in this ease is whether the trial court acting on a motion to dismiss a criminal case filed by the Provincial Fiscal upon instructions of the Secretary of Justice to whom the case was elevated for review, may refuse to grant the motion and insist on the arraignment and trial on the merits. On April 18, 1977 Assistant Fiscal Proceso K. de Gala with the approval of the Provincial Fiscal filed an information for estafa against Mario Fl. Crespo in the Circuit Criminal Court of Lucena City which was docketed as Criminal Case No. CCCIX-52 (Quezon) '77.1 When the case was set for arraigment the accused filed a motion to defer arraignment on the ground that there was a pending petition for review filed with the Secretary of Justice of the resolution of the Office of the Provincial Fiscal for the filing of the information. In an order of August 1, 1977, the presiding judge, His Honor, Leodegario L. Mogul, denied the motion. 2 A motion for reconsideration of the order was denied in the order of August 5, 1977 but the arraignment was deferred to August 18, 1977 to afford nine for petitioner to elevate the matter to the appellate court. 3 A petition for certiorari and prohibition with prayer for a preliminary writ of injunction was filed by the accused in the Court of Appeals that was docketed as CA-G.R. SP No. 06978. 4 In an order of August 17, 1977 the Court of Appeals restrained Judge Mogul from proceeding with the arraignment of the accused until further orders of the Court. 5 In a comment that was filed by the Solicitor General he recommended that the petition be given due course. 6 On May 15, 1978 a decision was rendered by the Court of Appeals granting the writ and perpetually restraining the judge from enforcing his threat

to compel the arraignment of the accused in the case until the Department of Justice shall have finally resolved the petition for review. 7 On March 22, 1978 then Undersecretary of Justice, Hon.Catalino Macaraig, Jr., resolving the petition for review reversed the resolution of the Office of the Provincial Fiscal and directed the fiscal to move for immediate dismissal of the information filed against the accused. 8 A motion to dismiss for insufficiency of evidence was filed by the Provincial Fiscal dated April 10, 1978 with the trial court, 9 attaching thereto a copy of the letter of Undersecretary Macaraig, Jr. In an order of August 2, 1978 the private prosecutor was given time to file an opposition thereto. 10 On November 24, 1978 the Judge denied the motion and set the arraigniment stating:
ORDER For resolution is a motion to dismiss this rase filed by the procuting fiscal premised on insufficiency of evidence, as suggested by the Undersecretary of Justice, evident from Annex "A" of the motion wherein, among other things, the Fiscal is urged to move for dismissal for the reason that the check involved having been issued for the payment of a pre-existing obligation the Hability of the drawer can only be civil and not criminal. The motion's thrust being to induce this Court to resolve the innocence of the accused on evidence not before it but on that adduced before the Undersecretary of Justice, a matter that not only disregards the requirements of due process but also erodes the Court's independence and integrity, the motion is considered as without merit and therefore hereby DENIED. WHEREFORE, let the arraignment be, as it is hereby set for December 18, 1978 at 9:00 o'clock in the moming. SO ORDERED. 11

The accused then filed a petition for certiorari, prohibition and mandamus with petition for the issuance of preliminary writ of prohibition and/or temporary restraining order in the Court of Appeals that was docketed as CA-G.R. No. SP-08777. 12 On January 23, 1979 a restraining order was issued by the Court of Appeals against the threatened act of arraignment of the accused until further orders from the Court. 13 In a decision of October 25, 1979 the Court of Appeals dismissed the petition and lifted the restraining order of January 23, 1979. 14 A motion for reconsideration of said decision filed by the accused was denied in a resolution of February 19, 1980. 15 Hence this petition for review of said decision was filed by accused whereby petitioner prays that said decision be reversed and set aside, respondent judge be perpetually enjoined from enforcing his threat to proceed with the arraignment and trial of petitioner in said criminal case, declaring the information filed not valid and of no legal force and effect, ordering respondent Judge to dismiss the said case, and declaring the obligation of petitioner as purely civil. 16 In a resolution of May 19, 1980, the Second Division of this Court without giving due course to the petition required the respondents to comment to the petition, not to file a

motiod to dismiss, within ten (10) days from notice. In the comment filed by the Solicitor General he recommends that the petition be given due course, it being meritorious. Private respondent through counsel filed his reply to the comment and a separate conunent to the petition asking that the petition be dismissed. In the resolution of February 5, 1981, the Second Division of this Court resolved to transfer this case to the Court En Banc. In the resolution of February 26, 1981, the Court En Banc resolved to give due course to the petition. Petitioner and private respondent filed their respective briefs while the Solicitor General filed a Manifestation in lieu of brief reiterating that the decision of the respondent Court of Appeals be reversed and that respondent Judge be ordered to dismiss the information. It is a cardinal principle that an criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of the fiscal. 17 The institution of a criminal action depends upon the sound discretion of the fiscal. He may or may not file the complaint or information, follow or not fonow that presented by the offended party, according to whether the evidence in his opinion, is sufficient or not to establish the guilt of the accused beyond reasonable doubt. 18 The reason for placing the criminal prosecution under the direction and control of the fiscal is to prevent malicious or unfounded prosecution by private persons. 19 It cannot be controlled by the complainant. 20 Prosecuting officers under the power vested in them by law, not only have the authority but also the duty of prosecuting persons who, according to the evidence received from the complainant, are shown to be guilty of a crime committed within the jurisdiction of their office. 21 They have equally the legal duty not to prosecute when after an investigation they become convinced that the evidence adduced is not sufficient to establish a prima facie case. 22 It is through the conduct of a preliminary investigation 23 that the fiscal determines the existence of a puma facie case that would warrant the prosecution of a case. The Courts cannot interfere with the fiscal's discretion and control of the criminal prosecution. It is not prudent or even permissible for a Court to compel the fiscal to prosecute a proceeding originally initiated by him on an information, if he finds that the evidence relied upon by him is insufficient for conviction. 24 Neither has the Court any power to order the fiscal to prosecute or file an information within a certain period of time, since this would interfere with the fiscal's discretion and control of criminal prosecutions. 25 Thus, a fiscal who asks for the dismissal of the case for insufficiency of evidence has authority to do so, and Courts that grant the same commit no error. 26 The fiscal may re-investigate a case and subsequently move for the dismissal should the reinvestigation show either that the defendant is innocent or that his guilt may not be established beyond reasonable doubt. 27 In a clash of views between the judge who did not investigate and the fiscal who did, or between the fiscal and the offended party or the defendant, those of the Fiscal's should normally prevail. 28 On the other hand, neither an injunction, preliminary or final nor a writ of prohibition may be issued by the courts to restrain a criminal prosecution 29 except in the extreme case where it is

necessary for the Courts to do so for the orderly administration of justice or to prevent the use of the strong arm of the law in an op pressive and vindictive manner. 30 However, the action of the fiscal or prosecutor is not without any limitation or control. The same is subject to the approval of the provincial or city fiscal or the chief state prosecutor as the case maybe and it maybe elevated for review to the Secretary of Justice who has the power to affirm, modify or reverse the action or opinion of the fiscal. Consequently the Secretary of Justice may direct that a motion to dismiss the rase be filed in Court or otherwise, that an information be filed in Court. 31 The filing of a complaint or information in Court initiates a criminal action. The Court thereby acquires jurisdiction over the case, which is the authority to hear and determine the case. 32 When after the filing of the complaint or information a warrant for the arrest of the accused is issued by the trial court and the accused either voluntarily submited himself to the Court or was duly arrested, the Court thereby acquired jurisdiction over the person of the accused. 33 The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima facie case exists warranting the prosecution of the accused is terminated upon the filing of the information in the proper court. In turn, as above stated, the filing of said information sets in motion the criminal action against the accused in Court. Should the fiscal find it proper to conduct a reinvestigation of the case, at such stage, the permission of the Court must be secured. After such reinvestigation the finding and recommendations of the fiscal should be submitted to the Court for appropriate action. 34 While it is true that the fiscal has the quasi judicial discretion to determine whether or not a criminal case should be filed in court or not, once the case had already been brought to Court whatever disposition the fiscal may feel should be proper in the rase thereafter should be addressed for the consideration of the Court, 35 The only qualification is that the action of the Court must not impair the substantial rights of the accused. 36 or the right of the People to due process of law. 36a Whether the accused had been arraigned or not and whether it was due to a reinvestigation by the fiscal or a review by the Secretary of Justice whereby a motion to dismiss was submitted to the Court, the Court in the exercise of its discretion may grant the motion or deny it and require that the trial on the merits proceed for the proper determination of the case. However, one may ask, if the trial court refuses to grant the motion to dismiss filed by the fiscal upon the directive of the Secretary of Justice will there not be a vacuum in the prosecution? A state prosecutor to handle the case cannot possibly be designated by the Secretary of Justice who does not believe that there is a basis for prosecution nor can the fiscal be expected to handle the prosecution of the case thereby defying the superior order of the Secretary of Justice. The answer is simple. The role of the fiscal or prosecutor as We all know is to see that justice is done and not necessarily to secure the conviction of the person accused

before the Courts. Thus, in spite of his opinion to the contrary, it is the duty of the fiscal to proceed with the presentation of evidence of the prosecution to the Court to enable the Court to arrive at its own independent judgment as to whether the accused should be convicted or acquitted. The fiscal should not shirk from the responsibility of appearing for the People of the Philippines even under such circumstances much less should he abandon the prosecution of the case leaving it to the hands of a private prosecutor for then the entire proceedings will be null and void. 37 The least that the fiscal should do is to continue to appear for the prosecution although he may turn over the presentation of the evidence to the private prosecutor but still under his direction and control. 38 The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court he cannot impose his opinion on the trial court. The Court is the best and sole judge on what to do with the case before it. The determination of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be addressed to the Court who has the option to grant or deny the same. It does not matter if this is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the investigation. In order therefor to avoid such a situation whereby the opinion of the Secretary of Justice who reviewed the action of the fiscal may be disregarded by the trial court, the Secretary of Justice should, as far as practicable, refrain from entertaining a petition for review or appeal from the action of the fiscal, when the complaint or information has already been filed in Court. The matter should be left entirely for the determination of the Court. WHEREFORE, the petition is DISMISSED for lack of merit without pronouncement as to costs. SO ORDERED. Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin, Sarmiento and Cortes, JJ., concur. Teehankee, C.J., took no part. G.R. No. L-29129 May 8, 1975 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DOMINGO MABUYO, defendant-appellant.

Office of the Solicitor General Felix V. Makasiar, Assistant Solicitor General Antonio G. Ibarra and Solicitor Hector C. Fule for plaintiff-appellee. Domingo M. Angeles for defendant-appellant.

MAKALINTAL, C.J.:+.wph!1 This is an appeal from the decision of the Court of First Instance of Batangas in its Criminal Case No. 2486 finding the accused Domingo Mabuyo guilty beyond reasonable doubt of the crime of murder, with treachery as the qualifying circumstance, and sentencing him to reclusion perpetua, with all the accessory penalties provided by law; to indemnify the heirs of the deceased Norberto Anillo in the sum of P6,000.00; and to pay the costs. On June 18, 1966, at about midnight, Norberto Anillo was shot dead at the doorstep of his house in Bo. Ambulong, Tanauan, Batangas. Immediately thereafter a police team headed by Lt. Roque Garcia, Deputy Chief of Police of Tanauan, went to the scene of the incident and conducted an investigation. Fifteen empty carbine shells were recovered from the premises. Agaton Anillo, the father of the deceased, and Adelaida Mirania, the widow, when interviewed by Lt. Garcia, declined to name the assailants but promised to go to his office after the interment to disclose to him their identities. Dr. Francisco M. Garcia, the Municipal Health Officer of Tanauan who performed the post mortem examination of the deceased in the early morning of June 19, 1966, found eleven (11) gunshot wounds on his body. As promised, Agaton Anillo and Adelaida Mirania went to the Office of the Chief of Police of Tanauan on June 20 and submitted themselves to a formal investigation. In their respective statements they named Domingo Mabuyo as the triggerman and alluded to a certain Juan Mendoza as the instigator of the crime. The following day, June 21, a complaint for murder was filed in the Municipal Court of Tanauan against both Mendoza and Mabuyo. Upon a finding of a probable cause, the municipal judge ordered the issuance of the corresponding warrants of arrest, but Domingo Mabuyo was nowhere to be found. Juan Mendoza waived his right to the second stage of the preliminary investigation and the municipal court forwarded the record of the case to the Court of First Instance of Batangas, where an information for murder was filed against him alone as principal by inducement. Upon a plea of "not guilty" the accused went to trial, after which he was acquitted "on ground of reasonable doubt" in a decision promulgated on January 7, 1967.. On March 27, 1967, Domingo Mabuyo presented himself at the Office of the Chief of Police of Tanauan, but only to be fingerprinted since he had with him an order of

release issued by the Municipal Court. It appears that Mabuyo had previously prepared a bail bond in the sum of P30,000.00, which was approved by the Municipal Judge. Through counsel Mabuyo waived his right to the second stage of the preliminary investigation. Accordingly the municipal court in its order dated March 27, 1967 elevated the case to the Court of First Instance of Batangas for further proceedings. On April 5, 1967 the Provincial Fiscal filed the corresponding information for murder against Mabuyo, alleging the circumstances of treachery and evident premeditation. The case went to trial upon a "not guilty" plea. The widow of the deceased, who appeared to be the lone eyewitness to the commission of crime, testified that at about midnight Of June 18, 1966, while she was reading in bed, she heard her husband asking her to open the door. She stood up, and taking with her a lighted kerosene lamp, went downstairs. Suddenly there were two successive gun shots. She heard her husband cry out "aray," followed by a sound of a falling object. As she came near the door there were other successive shots. Undaunted, she opened the door to see what was happening outside. With the aid of the light of the kerosene lamp, which she was holding over her head, she saw Domingo Mabuyo firing at her prostrate husband with what appeared to her to be a carbine. Mabuyo aimed it at her, so she immediately closed the door and shouted for help. Shortly thereafter her father-in-law, whose house was nearby, arrived. She told him that it was Domingo Mabuyo whom she saw shooting her husband. Another witness for the prosecution, Aniceto Sumarraga of Bo. Ambulong, narrated that on June 16, 1966, at about 10:00 o'clock in the evening, while he was at home reading, Domingo Mabuyo arrived with a carbine. They talked briefly inside the house. Domingo Mabuyo inquired if he (the witness) would go with him to kill Norberto Anillo. Aniceto refused, saying that he did not want to be involved in any such undertaking. Domingo Mabuyo then told him that if that was his decision, then he alone would go. After his visitor had left, Aniceto went to the store of a certain Alejandro Perez, also in Bo. Ambulong, and played mahjong. He noticed that Norberto Anillo was also there watching the game. As he was engrossed in the game Aniceto did not warn Norberto about Mabuyo's criminal design against him. At about midnight Anillo left the store. A few minutes later the mahjong players heard gun reports coming from the direction of Norberto Anillo's place. They stopped the game and went to Anillo's house and there saw the lifeless body of Norberto Anillo lying on its face on the ground. Testifying also for the prosecution, Agaton Anillo said that in the evening of June 18, 1966 he was at his home. At about midnight he heard gun reports coming from the house of his son Norberto. At first there were two shots, followed shortly by several more in rapid succession. When he was about to go downstairs he heard the shouts of his daughter-in-law that her husband had been fired upon. He ran to her house, where he saw his son already dead. His daughter-in-law met him and told him that she had seen Domingo Mabuyo do the shooting. Agaton Anillo further testified that on June 16, or two days before the fatal incident, his son told him that there was a plot for his liquidation and that it was Domingo Mabuyo who would carry it out; that on June 18 he (Agaton) saw Domingo passing in front of his house; and that after Norberto was killed Domingo disappeared and went into hiding.

Domingo Mabuyo's defense was alibi. He claimed that early in the morning of June 3, 1966 he left Bo. Ambulong, Tanauan, Batangas for Gabaldon, Nueva Ecija, arriving there at about 7:00 o'clock in the evening, and did not return to Tanauan until March 27, 1967, when he surrendered to the authorities. While away from home he worked in the logging concession of Gabaldon Vice-Mayor Isabelo Aquino in Ibuna Estate, Dingalan, Quezon. In the evening of June 18, 1966, the date when Norberto Anillo was killed, he was detained in the municipal jail of Gabaldon for drunkenness and was released at about 8:00 o'clock the next morning. On March 23, 1967 he went to Dolores, Quezon, with some members of the family of Vice-Mayor Aquino, and attended the annual Holy Week rites of his religious sect known as "Iglesia dela Ciudad Mistica." While there somebody informed him that he was being charged in court. At first he did not mind the information, but when he happened to meet Atty. Juan Mendoza, who told him the same thing, he decided to surrender to the authorities, On March 27, 1967 he and Atty. Mendoza went to Calamba, Laguna, and asked a certain Patrolman Dionisio Samiano to accompany them to the Tanauan Police Department. While he was at the Tanauan Police Department somebody fetched him and took him to the office of the municipal judge, where he was asked to sign certain papers which turned out to be his bail bond. After said bond was approved by the municipal judge he was ordered released temporarily from the custody of the police authorities. He further claimed that he had no motive to kill the deceased because the latter was not only his friend but also a nephew of his wife. He added that he was Norberto's confidant even in connection with the latter's extra-marital affairs. Corroborating the alibi of the accused, Vice-Mayor Isabelo Aquino of Gabaldon, Nueva Ecija, testified that on June 2, 1966 he sent Antonio Berganos to Ambulong, Tanauan, Batangas to fetch Domingo Mabuyo; that the following day, June 3, 1966, both Antonio Berganos and Domingo Mabuyo arrived in Gabaldon, Nueva Ecija; that from June 6, 1966 to March 22, 1967, Domingo Mabuyo worked under him as a laborer first as a log cutter in his concession in Dingalan, Quezon and then as a rattan gatherer; that Domingo Mabuyo stopped working on March 22, 1967 because he went to Dolores, Quezon, to attend a religious ceremony of his sect; and that the distance from Gabaldon, Nueva Ecija to Tanauan, Batangas could be negotiated by means of a bus in about ten (10) hours. In the course of his testimony Aquino identified a time book he was keeping, wherein it was shown that Domingo Mabuyo rendered services as one of his laborers from June 1966 to November l966. Also identified by him were the payrolls from April 1966 to November 1966, showing the amounts paid to Domingo Mabuyo from June 1966 to November 1966, and his signatures as payee. Gabaldon Police Chief Francisco Gamit testified on the entries in the police blotter of his department, showing that Domingo Mabuyo was detained for drunkenness in the municipal jail on June 18, 1966 at 9:00 o'clock in the evening and released at 8:00 o'clock the next morning. Another corroborating witness, Atty. Juan Mendoza, testified that in the first week of June 1966 Domingo Mabuyo was fetched from barrio Ambulong by Antonio Berganos, one of the laborers of Vice-Mayor Aquino, to work in the logging concession of the latter

in Dingalan, Quezon; that from the time of Domingo Mabuyo's departure, it was only on March 23, 1967, in Dolores, Quezon, that they met again; that upon meeting Domingo Mabuyo, he informed the latter that he was facing a court charge for having allegedly killed Norberto Anillo and advised him to surrender immediately after the festivities of their sect; that early in the morning of March 27, 1967 he and Mabuyo went to Calamba, Laguna and asked Patrolman Samio of the Calamba Police to accompany them to the Tanauan Police Department; and that from the time, they met each other in Dolores, he had Domingo Mabuyo under his surveillance until he surrendered on March 27, 1967.. Upon the evidence presented the trial court rendered its judgment of conviction as aforestated; hence, this appeal. The appellant alleges that the trial court erred in convicting him of a crime not properly charged in the information since he was charged with murder allegedly committed in Bo. Bagumbayan, Tanauan, Batangas, but was found guilty of said crime committed in Bo. Ambulong, some 12 kilometers away in the same municipality and province. The alleged irregularity does not constitute a reversible error. It is a settled rule that unless the particular place of commission is an essential element of the offense charged, conviction may be had even if it appears that the crime was committed not at the place alleged in the information, provided the place of actual commission was within the jurisdiction of the court. 1 In the instant case the place of commission does not constitute an essential element of the offense charged and the evidence discloses that said offense was in fact committed within the territorial jurisdiction of the trial court. Moreover, there is no reason to believe that the appellant was misled or surprised by the variance between the proof and the allegation in the information as to the place where the offense was committed. With respect to the appellant's claim that he was denied the right to preliminary investigation, We find the same to be without factual basis, it appearing from the order dated March 27, 1967 of the Municipal Court of Tanauan that he "had renounced his right to the second stage of the preliminary investigation." Furthermore, the record does not show that he raised the question of lack of preliminary investigation at any stage of the trial in the court of first instance. It is well-settled that the right to a preliminary investigation is not a fundamental right and may be waived expressly or by silence. 2 We now take up the merits of the case. In asking for his acquittal the appellant vigorously assails the credibility of the prosecution witnesses, particularly the widow who identified him as the murderer of her husband. He urges that since the testimonies of said witnesses as regards the guilt of Juan Mendoza were not given credence, the same should likewise be rejected in his case in order to be consistent. We cannot sustain the appellant. It is to be noted that in Criminal Case No. 2388 Juan Mendoza was prosecuted on the theory that he directly induced the herein appellant, who was then at large during the pendency of said case, to kill Norberto Anillo. In the case under review, the appellant himself was charged as the sole author of the crime after the acquittal of his supposed inducer. Under the foregoing factual setting, the trial, court aptly observed that the incredibility of the witnesses for the prosecution against Juan

Mendoza as principal by inducement did not necessarily mean that said witnesses were also incredible when they testified against the very person who allegedly shot to death the victim. In fact, it found that the testimonies of prosecution witnesses Adelaida Mirania, Agaton Anillo and Aniceto Sumarraga against the appellant "were in accord to what they disclosed in their written statements executed less than two days after the commission of the imputed crime," but such was not the case when they testified against Juan Mendoza. In People vs. Malillos, 3 this Court had occasion to state that: t.hqw
It is perfectly reasonable to believe the testimony of a witness with respect to some facts and disbelieve it with respect to other facts. And it has been aptly said that even when witnesses are found to have deliberately falsified in sonic material particulars, it is not required that the whole of their uncorroborated testimony be rejected, but such portions thereof deemed worthy of belief may be credited. Suffice it to say, in this connection, that a trial court by reason of its proximate contact with witnesses, are in a more competent position to discriminate between the true and the false, and We really find no cogent reason to disturb the above-quoted conclusion of the court below in the decision appealed from.

Adelaida Mirania could not possibly have been mistaken as to the identity of the appellant. She knew him very well, he being from the same barrio where his house was not far away from hers. At the time of the incident she was carrying a lighted kerosene lamp. Although the lamp was not presented in evidence it was adequately described as a bottle of beer with the wick held in place at its mouth by means of a tin plate. It is a common enough source of illumination in our barrios. Undoubtedly it was sufficient to light an area within a radius of five meters. While it is true that Adelaida Mirania did not report immediately to the Deputy Chief of Police the identity of the assailant, it is to be noted that she promised to identify him after her husband was interred, which she readily did by going to the police department where she executed a sworn statement. In a further attempt to discredit the identification made by Adelaida Mirania, the appellant insists that she could not have possibly seen the assailant because, as testified to by Mateo Simbahan, she was not at home at the time of the incident but in the house of her father-in-law, watching a game of "bingo." However, the testimony of said witness contains flaws which render it unworthy of belief. He went to Agaton Anillo's house, he said, in order to ask the latter to help him find a job. Yet he did not talk to Agaton Anillo immediately upon his arrival but waited until midnight on the lame excuse that he got interested watching the bingo game. Furthermore, considering that Adelaida Mirania had nine (9) children and was then again pregnant, it is hardly believable that she would leave her house just to watch the bingo game, remaining on her feet until midnight. The appellant also insists that the widow pointed to him as the assailant because she was angry with him because he refused to stop helping her late husband in his extramarital affairs. We find this motive insufficient for her to accuse him falsely of so grave a

crime as murder. Besides, it is unthinkable that she would fabricate evidence to send an innocent man to jail and let the real murderer of her husband go free. The appellant having been clearly and positively identified by the widow, his alibi cannot be sustained. Moreover, after examining the evidence in support of his defense We find that his alibi has the aspect of fabrication. Firstly, the police blotter of Gabaldon, Nueva Ecija, was not properly accomplished. While the Chief of Police testified that the appellant was brought to the municipal jail by his two policemen at about two o'clock in the afternoon of June 18, 1966, it appears in the blotter that the appellant was detained at 9:00 o'clock in the evening. Also, while the appellant was supposedly released on June 19, 1966 at 8:00 o'clock in the morning, the release was entered on the page for June 18, 1966. It is a fair conclusion that the fact of release was entered on said page because it could no longer be accommodated on the page for June 19, 1966, there being already legitimate entries thereon and the blank spaces having been crossed out. The Chief of Police was even surprised why the questioned entry appeared as it did. Secondly, as correctly observed by the trial court, from all appearances the payrolls from April 1966 to November 1966 were all prepared at the same time. Thirdly, the protestation of the appellant that he never knew that he was being implicated in the killing of Norberto Anillo or that he was being charged in court therefor until he was so informed by Juan Mendoza on March 23, 1967 is belied by the fact that even before that date he had already taken steps to prepare his bail bond. It appears from the record that his bondsmen secured the necessary papers in connection with their respective properties to be offered as security on February 28, 1967 and that the bail bond itself was prepared on March 4, 1967. Lastly, if it were true that he was working from June 1966 to March 1967 under Gabaldon Vice-Mayor Aquino and not hiding from the authorities as alleged by the prosecution, he would at least have returned home to visit his family during that long period. He never did, not even on Christmas day, which is traditionally a day for family reunion. If anything, his long absence from his barrio supports the theory of the prosecution that his flight immediately after the commission of the crime was not for any innocent reason. The trial court correctly appreciated the qualifying circumstance of treachery against the appellant. The attack was sudden: the victim was knocking at the door and asking his wife to open it when he was shot. Although he was apparently aware of the plot to liquidate him, the circumstances, including the use by the appellant of a high power firearm, rendered the victim defenseless. The mitigating circumstance of voluntary surrender cannot be considered in favor of the appellant. The fact that it took him almost nine months after the issuance of the warrant of arrest against him before he presented himself to the police authorities negates the spontaneity of his surrender. The crime committed was murder, and there being neither mitigating nor aggravating circumstance, the appellant was correctly sentenced to reclusion perpetua. WHEREFORE, with the only modification that the indemnity payable to the heirs of the deceased Norberto Anillo is increased from P6,000.00 to P12,000,00, the decision appealed from is affirmed with costs.

Fernando, Barredo, Antonio, Aquino and Concepcion, Jr., JJ., concur.1 G.R. No. 72994 January 23, 1991 FELICISIMO ROCABERTE, petitioner, vs. PEOPLE OF THE PHILIPPINES and HON. ANDRES S. SANTOS, Judge, RTC, Tagbilaran, Bohol, respondents. Lilio L. Amora for petitioner.

NARVASA, J.:p The case at bar treats of the sufficiency of the averment in the information of the time of the commission of the felony of theft ascribed to petitioner Felicisimo Rocaberte and two (2) others. The information, filed in the Regional Trial Court of Bohol, City of Tagbilaran, 1 Judge Andres S. Santos, presiding, reads as follows: 2
The undersigned Assistant Provincial Fiscal hereby accused Felicisimo Rocaberte, Florencio Ranario and Flaviana Ranario of the crime of Theft, committed as follows: That on or about the Period from 1977 to December 28, 1983 at the off offshore of West Canayaon, municipal of Garcia-Hernandez, province of Bohol, Philippines . . ., the abovenamed accused, conspiring, confederating and helping each other, with intent to gain and without the consent of the owner, did then and there, willfully, unlawfully and feloniously take, steal and carry away the following properties, to wit: One (1) pc. sledge hammer, valued at P136.00 One (1) pc. H beam, valued at 400.00 Two (2) cut abrasive steel plates for cargo berth cover protector 158.00 Ninety-nine (99) blocks of aluminum, alloy anodes at P3,750.00 each block P371,250.00 TOTAL P371,944.00 in the total amount of THREE HUNDRED SEVENTY-ONE THOUSAND NINE HUNDRED FORTY-FOUR PESOS (P371,944.00), Philippine Currency, belonging to and owned by the Philippine Sinter Corporation, to the damage and prejudice of the latter in the aforestated amount. Acts committed contrary to the provisions of Articles 308, 309 of the Revised Penal Code.

The accused, thru counsel de officio, Atty. Lilio L. Amora, moved to quash the information, 3 alleging that the statement of the time of commission of the felony charged, "from 1977 to December 1983, . . . a period of seven years," or "about 2,551 days," was fatally defective: there was "so great a gap as to defy approximation in the

commission of one and the same offense" (citing Peo. v. Reyes, 108 SCRA 203); "the variance is certainly unfair to the accused for it violates their constitutional right to be informed before the trial of the specific charge against them and deprives them of the opportunity to defend themselves . . ." (invoking Peo. v. Openia, 98 Phil. 698). The motion was denied 4 as was, too, the defendants' motion for reconsideration. 5 In the motion for reconsideration, the accused drew attention to Section 4, Rule 117 "of the 1985 Rules on Criminal Procedure," as a remedy that could be alternatively granted, viz.:
Sec. 4. Amendment of complaint or information. If the motion to quash is based on an alleged defect in the complaint or information which can be cured by amendment, the court shall order the amendment to be made. (2a)

Felicisimo Rocaberte then instituted in this Court, thru his aforenamed counsel de oficio, the special civil action of certiorari at bar, impugning the denial by respondent Judge Santos of his motion to quash, or his refusal, at the very least, to direct the amendment of the information pursuant to Section 4, Rule 117 of the 1985 Rules of Court, supra. He is correct, and will be granted appropriate relief. The rules of criminal procedure declare 6 that
. . . A complaint or information is sufficient if it states the name of the defendant; the designation of the offense by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate time of the commission of the offense, and the place wherein the offense was committed.

and as regards the time of the commission of the offense, particularly that: 7
. . . It is not necessary to state in the complaint or information the precise time at which the offense was committed except when time is a material ingredient of the offense, but the act may be alleged to have been committed at any time as near to the actual date at which the offense was committed as the information or complaint will permit.

In line with this last mentioned rule, a variance of a few months between the time set out in the indictment and that established by the evidence during the trial has been held not to constitute an error so serious as to warrant reversal of a conviction solely on that score. Hence, where the information sets the date of commission of a robbery at March 25, 1900, evidence was allowed to show that the offense was actually perpetrated on the 5th or 6th of March; and an amendment of an information so as to change the year therein stated to that following it, was allowed it appearing that the alteration impaired none of the defendant's rights. 8 Where, however, there was a variance of several years between the time stated in the information, 1947, and the proof of its actual commission adduced at the trial, 1952, the dismissal of the case by the Trial Court was sustained by this Court, since to allow amendment of the indictment to conform to the evidence would be violative of

defendant's constitutional right to be informed of the nature and cause of the accusation against him. 9 Again, the statement of the time of the commission of the offense which is so general as to span a number of years, i.e., "between October, 1910 to August, 1912," has been held to be fatally defective because it deprives the accused an opportunity to prepare his defense. 10 A defect in the averment as to the time of the commission of the crime charged is not, however, a ground for a motion to quash under Rule 116 of the Rules of Court. Even if it were, a motion for quashal on that account will be denied since the defect is one that can be cured by amendment; instead, the court shall order the amendment to be made by stating the time with particularity. 11 The remedy against an indictment that fails to allege the time of the commission of the offense with sufficient definiteness is a motion for a bill of particulars, provided for in Section 6, Rule 116 of the Rules of Court of 1964. 12
Bill of particulars. Defendant may, at the time of or before arraignment, move for or demand a more definite statement or a bill of particulars of any matter which is not averred with sufficient definiteness or particularity to enable him properly to plead or prepare for trial. The motion shall point out the defects complained of and the details desired.

From all that has been said, the conclusion should be clear. The information against petitioner Rocaberte is indeed seriously defective. It places on him and his co-accused the unfair and unreasonable burden of having to recall their activities over a span of more than 2,500 days. It is a burden nobody should be made to bear. The public prosecutor must make more definite and particular the time of the commission of the crime of theft attributed to Rocaberte and his co-defendants. If he cannot, the prosecution cannot be maintained, the case must be dismissed. WHEREFORE, the petition is GRANTED, and the writ of certiorari prayed for is ISSUED, ANNULLING AND SETTING ASIDE the challenged Orders of respondent Judge dated August 12, 1985 and September 10, 1985 in Criminal Case No. 3851, and DIRECTING the amendment of the information in said case by the prosecution within such time as the respondent Judge may deem proper, failing which the criminal prosecution against the petitioner and his co-defendants shall be dismissed. SO ORDERED. Cruz, Gancayco, Grio-Aquino and Medialdea, JJ., concur. G.R. No. L-12453 July 15, 1918

THE UNITED STATES, plaintiff-appellee, vs. PEDRO LAHOYLAHOY and MARCOS MADANLOG, defendants-appellants. W. A. Kincaid for appellants. Attorney-General Avancea for appellee. STREET, J.: This case is submitted to the Supreme Court for review of a decision of the Court of First Instance of the Province of Iloilo, sentencing the defendants Pedro Lahoylahoy and Marcos Madanlog to death upon a complaint charging the crime of robbery with multiple homicide under the circumstances stated below. It appears that in the year 1912 some ten or a dozen people were living on the small island of Sicogon, in the jurisdiction of the municipality of Balasan, Province of Iloilo. Two of these were an aged couple named Francisco Seran and his wife Juana. Two others were Roman Estriba and his wife Rosa. The latter couple had two children Miguela and Bartolome, aged at that time respectively about 14 and 9 years. Upon the night of the commission of the crime charged in the complaint the two children were staying with Juana, their grandmother, in a house some distance removed from that occupied by Roman and Rosa and located farther back from the shore. The grandfather, Francisco, had gone to the beach as was his custom to watch for turtles. After the grandmother and the children had gone to rest on a mat where they slept together, and probably only a short while after it had become dark, the two accused appeared and demanded money of Juana. She gave them P100 in money in response to this demand, and the accused then required the three to leave the house and go in the direction of the sea. When the party had arrived at or near the beach, a further demand was made upon the old woman for money, which demand she was unable to comply with. Lahoylahoy then struck her with a bolo just below her breast, killing her instantly. The two children were at the time close to their grandmother, and being greatly frightened, they ran away separately for some distance and remained hidden during the night in the bushes. The next morning the children made their way to the house where the old couple had lived, which was vacant; but they there found each other and proceeded together to the house of their parents. Going in that direction they stopped at the house of their sister, the wife of the defendant Madanlog. When they went a little later to the house where their parents had lived, the fact was revealed that Francisco, Roman, and Rosa had also been killed. All the bodies were collected and buried early in the morning by the two accused, assisted by Eugenio Tenedero, son-in-law of Lahoylahoy. The two children Miguela and Bartolome say that they were threatened with death if they should make complaint. Nevertheless their lives were spared, and for sometime they stayed with their sister in the home of Madanlog; and after staying for a long time on the island, they were afterwards taken to the home of another sister, named Dionisia Estriba, at Escalante, on the Island of Panay. They here revealed the facts above narrated. This sister, Dionisia, afterwards filed the complaint in this case. Pedro Lahoylahoy was arrested first; and when he was examined before the justice of the peace, he made a confession in which he stated that the four deceased persons had been killed by Madanlog, with is assistance.

At the trial the two children gave a very consistent account of the robbery and of the murder of their grandmother; but the boy said that he did not remember that Madanlog was present when Lahoylahoy struck the fatal blow. Another important witness for the prosecution was Eugenio Tenedero, the son-in-law of Lahoylahoy. This witness testified that the defendants killed the four deceased persons, and that early in the morning they came to his house and required him to help them bury the dead, which he did. The accused gave no explanation to Tenedero of their motive or of the reason for the commission of the deed, and told him not to tell anybody. During the next day or two after the tragedy above narrated, the defendant Madanlog went to the house where Francisco and Juana had lived and carried away some palay, some dawa, three pigs, and a trunk containing wearing apparel. We believe that the asportation of these things should not be considered as a continuation of the acts of robbery and murder previously committed, but rather as a spoliation of the state of a deceased person. It results that the only property taken in the act of robbery was the P100 obtained from Juana. As against Madanlog, the case rests chiefly upon the testimony of Miguela, who says he was present at the robbery and at the murder of Juana. His guilt is also indicated by his own conduct subsequent to the murder. We are satisfied with the conclusion reached by the lower court with respect to the sufficiency of the evidence, and we have no doubt of the guilt of both the accused. An important question arises upon the matter of the complaint in connection with the proof as to the ownership of the property which was taken by the accused. The part of the complaint here material to be considered reads as follows: The aforesaid accused taking advantage of the darkness of the night, voluntarily, illegally, and criminally and by means of force on the things, took and appropriated to themselves with intent of gain and against the will of the owner thereof, the sum of P100, 5 bayones of palay, 4 bayones of dawa, and 1 trunk which contained various wearing apparel, of the total value of P150, the property of Roman Estriba; in consequence thereof and on the occasion of the said robbery, the aforesaid accused criminally and with known premeditation and treachery, killed Roman Estriba, Rosa Galoso, Francisco Seran, and Juana. According to the proof the person robbed was Juana; while the complaint charges that the property taken belong to Roman Estriba. What is the effect of this variance between the language of the complaint and the proof? Subsection 5 of section 6 of General Orders No. 58 declares that a complaint or information shall show, among others things, the names of the persons against whom, or against whose property, the offense was committed, if known. The complaint in this case therefore properly contained an averment as to the ownership of the property; and upon principle, in charging the crime of robbery committed upon the person, the allegation of the owner's name is essential. But of course if his name cannot be ascertained, it may be alleged that it is unknown. From the fact that the name of the injured person may, in case of necessity, be alleged as unknown it should not be inferred that the naming of such person, when known, is of no importance. Where the name of the injured party is necessary as matter of essential description of the crime charged, the complaint must invest such person with

individuality by either naming him or alleging that his name is unknown. (Wharton, Criminal Pleading and Practice, 9th ed., secs. 111, 112.) It is elementary that in crimes against property, ownership must be alleged as matter essential to the proper description of the offense. To constitute larceny, robbery, embezzlement, obtaining money by false pretenses, malicious mischief, etc., the property obtained must be that of another, and indictments for such offenses must name the owner; and a variance in this respect between the indictment and the proof will be fatal. It is also necessary in order to identify the offense. (Clark's Criminal Procedure, p. 227. See also page 338.) Now a complaint charging the commission of the complex offense of robbery with homicide must necessarily charge each of the component offenses with the same precision that would be necessary if they were made the subject of separate complaints. It is well recognized in this jurisdiction that where a complex crime is charged and the evidence fails to support the charge as to one of the component offenses the defendant can be convicted of the other. The mere circumstance that the two crimes are so related as to constitute one transaction in no way affects the principles of pleading involved in the case. To permit a defendant to be convicted upon a charge of robbing one person when the proof shows that he robbed an entirely different person, when the first was not present, is violative of the rudimentary principles of pleading; and in addition, is subject to the criticism that the defendant is thereby placed in a position where he could not be protected from a future prosecution by a plea of former conviction or acquittal. If we should convict or acquit these defendants today of the robbery which is alleged to have been committed upon the property of Roman Estriba, it is perfectly clear that they could be prosecuted tomorrow for robbery committed upon the property of Juana; and the plea of former jeopardy would be of no avail. Reference to a few accredited decisions from American courts will make this clear. In Comm. vs. Hoffman (121 Mass., 369), it was held that an acquittal on an indictment for breaking and entering the dwelling house and stealing therein, the property of A, is no bar to a complaint for stealing in the same dwelling house at the same time the property of B, without proof that A and B are the same persons. In Comm. vs. Andrews (2 Mass., 409), the defendant in an indictment for receiving stolen goods which were the property of A, alleged that he had been convicted of receiving stolen goods the property of B. The plea was adjudged insufficient, although it was alleged that the two parcels of stolen goods were received by the defendant of the same person, at the same time, and in the same package, and that the act of receiving them was one and the same. In Alexander vs. State (21 Tex. Cr. App., 406; 57 Am. Rep., 617), it was held that where the goods of two different owners were stolen at the same time, an acquittal on an indictment for stealing the goods of one would not constitute a bar to an indictment for stealing the goods of the other; though it was observed that if the defendant had been convicted upon the first trial, he would have been protected from the second prosecution. (See Wright vs. State, 17 Tex. Cr. App., 152.)

In Comm. vs. Wade (17 Pick. [Mass.], 395), the offense of burning a building was charged, and the indictment stated that the owner was a certain individual (naming him). It was held that, although the name might possibly have been omitted altogether, yet as the indictment did allege the name, the allegation of ownership was material, being descriptive of the offense, and must be proved. It should be borne in mind that the plea of former conviction or acquittal, or former jeopardy, is supposed to be proved by the pleadings and judgment in the former case, supplemented only by proofs showing the identity of the party, or parties. Courts are not accustomed to determine the plea of former jeopardy by examining the proof to discover just what facts may have been developed in the former case. (Henry vs. State, 33 Ala., 389; Grisham vs. State, 19 Tex. Cr. App., 504.) In fact it is not always practicable or even possible to produce for inspection upon the trial of this issue the evidence which was adduced in court at the trial of the former case. The second sentence of section 7 of General Orders No. 58 declares that when an offense shall have been described with sufficient certainty to identify the act, an erroneous allegation as to the person injured shall be deemed immaterial. We are of the opinion that this provision can have no application to a case where the name of the person injured is matter of essential description as in the case at bar; and at any rate, supposing the allegation of ownership to be eliminated, the robbery charged in this case would not be sufficiently identified. A complaint stating, as does the one now before us, that the defendants "took and appropriated to themselves with intent of gain and against the will of the owner thereof the sum of P100" could scarcely be sustained in any jurisdiction as a sufficient description either of the act of robbery or of the subject of the robbery. There is a saying to the effect that money has no earmarks; and generally speaking the only way money, which has been the subject of a robbery, can be described or identified in a complaint is by connecting it with the individual who was robbed as its owner or possessor. And clearly, when the offense has been so identified in the complaint, the proof must correspond upon this point with the allegation, or there can be no conviction. In United States vs. Kepner (1 Phil. Rep., 519), this court had before it a case where the defendant was charged with estafa in the misappropriation of the proceeds of a warrant which he had cashed without authority. It was said that the erroneous allegation in the complaint to the effect that the unlawful act was to the prejudice of the owner of the check, when in reality the bank, which cashed the warrant was the sufferer, was immaterial. This observation was, we think, correct as applied to that case, for the act constituting the offense of estafa was described in the complaint with sufficient fullness and precision to identify the act, regardless of the identity of the offended person. Section 7, General Orders No. 58, was therefore properly applicable. It should be added, however, that the observation to which reference has been made was, strictly speaking, unnecessary to the decision, for it is further stated in the opinion that there was in fact an injury to the owner of the check, which consisted of the "delay, annoyance, and damage caused by the unlawful misappropriation of the warrant." (U.S. vs. Kepner, 1 Phil. Rep., 519, 526.) There is evidently nothing in the case cited which can afford support for the idea that an erroneous allegation in a complaint as to ownership of the property robbed is immaterial. If we should hold that a man may be convicted of robbing one person when he is charged with robbing another, the complaint instead of being a means of informing him of the particular offense with which he is charged would rather serve as a means of concealing it.

It is important to note that the complaint in this case is not defective in form, for the charge is clear, direct, and unambiguous. No formal objection could possibly be made by the defendants to this complaint; and their only course, if desirous of making any defense, was to plead not guilty, as was done in this case. The difficulty of the case arises from the facts adduced in evidence. Section 10, General Orders No. 58, declares that no complaint is insufficient by reason of a detect in matter of form which does not tend to prejudice a substantial right of the defendant upon the merits. This provision has no application to such a case as that now before us; and all arguments based upon the circumstance that the defendants made no objection to the complaint in the Court of First Instance are irrelevant to the matter in hand. The case of United States vs. Manalang (2 Phil., Rep., 64) has been called to our attention as an authority upon the point that insufficiency of a complaint is waived by failure of the defendant to object thereto in the Court of First Instance. It there appeared that the statutory offense with which the defendant was charged could only be committed by a Constabulary officer. There was no allegation in the complaint that the defendant was such; but he appeared at the trial, testified in his own behalf, without questioning his character as such officer. It was held upon appeal that the objection to the complaint on the ground stated was unavailing, "as no exception was taken to this defect by counsel for the defendant in the court below, in which it might have been successfully raised by demurrer." The following cases are also found in our Reports, showing that a complaint may be held sufficient although the commission of the offense is charged by inference only, provided no objection is made in the court below. (U.S. vs. Cajayon, 2 Phil. Rep., 570; U.S. vs. Vecina, 4 Phil. Rep., 529; U.S. vs. Sarabia, 4 Phil. Rep., 566.) In all of these cases the complaint was demurrable for defect of substance, but the language used was so far sufficient that the commission of the crime could be inferred. These cases are not relevant to the case at bar, as the complaint is not demurrable for defect of any sort. In the light of what has been said it is evident that, by reason of the lack of conformity between the allegation and the proof respecting the ownership of the property, it is impossible to convict the two accused of the offense of robbery committed by them in this case; and therefore they cannot be convicted of the complex offense of robbery with homicide, penalized in subsection (1) of article 503 of the Penal Code. No such difficulty exists, however, with respect to the quadruple homicide committed upon the persons named in the complaint; and in conformity with the provisions of article 87 of the Penal Code, the penalties corresponding to all these crimes must be severely imposed. This court has already held in United States vs. Balaba (37 Phil. Rep., 260), that where more than one offense (not complex offenses) are charged in the complaint, and the accused fails to demur or ask for a severance, the penalties corresponding to all of the offenses which are charged and proved may be imposed. The doctrine announced in that case applies with even greater propriety offenses in one complaint. (See sec. 11, General Orders No. 58.) The acts causing the violent death of the four deceased must be qualified as homicide, as the record does not satisfactorily show how and in what manner they were executed.

Even conceding the benefits or article 11 of the Penal Code, this circumstance, as regards both defendants is counterbalanced by the aggravating circumstances of nocturnity and that the crime was committed in an uninhabited place, and, as respects Marcos Madanlog, by that of relationship by affinity. The accused Pedro Lahoylahoy has accordingly become liable to four penalties, each of seventeen years four months and one day, reclusion temporal, and his coaccused Marcos Madanlog also, to the same number of penalties of twenty years each, reclusion temporal, for the homicide of the four deceased, each also being liable to one-half of the costs. In view of rule 2 of article 88 of the Penal Code, inasmuch as the maximum duration of three times the length of the most severe of the penalties to be imposed upon the accused exceeds forty years, the judgment reviewed is reversed, and we find that each of the accused Lahoylahoy and Madanlog should be, as they are hereby, sentenced to suffer of aforesaid penalties of reclusion temporal, not to exceed forty years, to the accessories prescribed by article 59, to indemnify, severally and jointly, the heirs of each of the deceased in the amount of P1,000 and each to pay one-half of the costs of both instances. So ordered. Arellano, C.J., Torres, Johnson and Araullo, JJ., concur.

Separate Opinions MALCOLM, J., dissenting: The defendants were charged in the Court of First Instance of Iloilo with the crime of robbery with murder. The crime took place on a small island where the deceased lived together. The defendants were found guilty and given the death penalty. The proof in relation to the law shows conclusively that they merit such punishment. The information charged that the owner of the property was Roman Estriba while the evidence disclosed that the owner was Juana N. Seran. No objection to the information was made in the lower court. Objection to its insufficiency was therefore waived. (U.S. vs. Manalang [1903], 2 Phil. Rep., 64.) Notwithstanding, and although neither the attorney for the defendant nor the Attorney-General raises the point on appeal, this court would, by hypercritical examination, now solemnly adjudge the information to be fatally defective and would thereby cheat the gallows of its prey. Conceding that the court has this prerogative, yet no substantial right of the defendants was prejudiced. Neither the trial court, the prosecution, nor the defense were misled as to the issue being that robbery and murder were simultaneously committed. As to which one of the group had title to the property was relatively unimportant. Such a technical finding in my judgment violates both the letter and the spirit of our law and jurisprudence. "The bill of rights for the Philippines giving the accused the right to demand the nature and cause of the accusation against him does not fasten forever upon those Islands the inability of the seventeenth century common law to understand or accept a pleading that did not exclude every misinterpretation capable of occurring to intelligence fired with a desire to pervert." (Paraiso vs. U.S. [1907], 207 U.S., 368; Whitehead vs. U.S. [1917], 245 Fed., 385; and a multitude of corroborative authority.) To liberalize and modernize procedure should be our goal.

Judgment should be affirmed. Fisher, J., concurs. G.R. No. L-6544 August 25, 1954

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALBERTO COSARE, defendant-appellant. Mario Ll. Rama for appellant. Office of the Solicitor General Juan R. Liwag and Solicitor Juan T. Alano for appellee. BAUTISTA ANGELO, J.: This is an appeal from a decision of the Court of First Instance of Bohol finding the accused guilty of the crime of qualified trespass to dwelling with the aggravating circumstance of nocturnity and sentencing him to suffer 4 months and 1 day arresto mayor, to pay a fine of P100, with subsidiary imprisonment in case of insolvency, and to pay the costs. On July 1, 1950, one Valeria Pagas filed against the accused a complaint for "Abuse Against Chastity". The complaint was subscribed to by her as required by law. On August 3, 1950, the complaint was amended by the Acting Chief of Police charging the accused with "Qualified Trespass to Dwelling and Physical Injuries", and on September 23, 1950, the complaint was further amended by the Chief of Police charging the accused with the same offense of "Qualified Trespass to Dwelling and Physical Injuries." The Justice of the Peace of Tubigon, Bohol, with whom the above mentioned complaints were filed, conducted the preliminary investigation having in view the second amended complaint. Thereafter, the Justice of the Peace forwarded the case to the Court of First Instance for further proceedings. On January 24, 1951, the Provincial Fiscal filed against the accused an information charging him with the offense of "Acts of Lasciviousness", which was amended on August 29, 1951, charging him with the offense of "Acts of Lasciviousness Thru Qualified Trespass to Dwelling." In the meantime, the accused filed a motion to quash the information on the ground of lack of jurisdiction, which motion was denied in an order of September 1, 1951. The accused was then arraigned and entered a plea of not guilty. On April 3, 1952, the case was called for trial, and it was at this instance that counsel for the accused reiterated his motion to quash on the plea that the accused was given the benefit of preliminary investigation, not in connection with the complaint filed by the offended party, but with that filed by the Chief of Police of Tubigon, a matter which places the case beyond the jurisdiction of the court, and considering this plea tenable, the court, on the same date, ordered that the case be remanded to the Justice of the Peace of Tubigon in order that a new preliminary investigation may be held in connection with the original complaint filed by the offended party. This was done after the offended party had filed an amended complaint charging the accused with the offense of "Acts of Lasciviousness." The case was again forwarded to the Court of First

Instance and on August 25, 1952, the Provincial Fiscal, filed against the accused an information charging him with the same crime of "Acts of Lasciviousness." When the case was called for trial based on the new information, the accused again filed a motion to quash, this time based on the ground of double jeopardy. The motion was denied, and after the parties had presented their evidence, the court rendered decision acquitting the accused of the charge of acts of lasciviousness but finding him guilty of qualified trespass to dwelling and imposing upon him the penalty as stated in the early part of this decision. From this decision the accused has appealed. The accused poses in this appeal the following issues: (a) Can be convicted of a crime alleged merely in the information as an aggravating circumstance after having been acquitted of the main charge described therein?; and (b) Has he been placed on double jeopardy? (a) It should be noted that the crime with which the accused is charged in this case appears to be designated as "Acts of Lasciviousness" in the caption of the amended complaint filed against him on April 29, 1952, and in that of the new information filed by the Provincial Fiscal on August 25, 1952, after the case had been elevated for the second time by the Justice of the Peace of the Court of First Instance. Apparently, the charge under which he stands indicted is that of "Acts of Lasciviousness", for that is the designation appearing both in the complaint as well as in the information. However, upon a cursory reading of the avernment appearing in both pleading one cannot fail to note that what is charged against the accused is not only the offense of "Acts of Lasciviousness" but that of trespass to dwelling as well. This is apparent from the allegation appearing therein that the accused entered the dwelling house of Valeria Pagas against her will, and that "once inside the said dwelling house the said accused, with lewd designs and by the use of force, embraced, kissed, raised the dress and touched the breast and private part of the aforesaid Valeria Pagas against her will." There is nothing appearing therein that trespass to dwelling is merely an aggravating circumstance. Such being the case, it is evident that the accused can be found guilty, if proven, on both charges, in the absence of a timely objection against such duplicity of charge. Here the record discloses none. The objection hinted by the defense refers to a different information. It is true that both the complaints as well as the information, in their caption, merely designate the crime charged as that of "Acts of Lasciviousness", but such designation is not controlling. It is a mere conclusion of law. The factor that characterizes the charge is the actual recital of the facts. That, it was held that, "The crime of which the defendant stands accused is that described by the facts stated in the information, and not that designated by the fiscal in the preamble thereof ... The designation of the crime by name in the caption of the information is a conclusion of law on the part of the fiscal,... It is not necessary, for the protection of the substantial rights of the accused, nor the effective preparation of his defense, that he be informed of the technical name of the crime of which he stands charged. He must look to the facts alleged." (Emphasis supplied) (U. S. vs. Lim San, 17 Phil., 275) It is evident that the lower court did not err in finding the accused guilty of the crime of trespass to dwelling. (b) The plea of double jeopardy cannot also be sustained it appearing that the case was not dismissed but merely remanded to the Justice of the Peace in order that he may conduct a new

preliminary investigation. This is clearly apparent from the decision of the lower court. Thus, in said decision the following appears: "Inasmuch as the accused insists on his right to a preliminary investigation, the Court, on motion of Assistant Provincial Fiscal Aureliano C. Trabajo, order that the records of this case be returned to the Justice of the Peace Court of Tubigon, Bohol, with instructions that he should hold a preliminary investigation on the complaint filed and subscribed by Valeria Pagas dated July 1, 1950, which is the only valid complaint in this case." (Emphasis supplied) The rule regarding double jeopardy invoked by the accused only applies when the case against him is dismissed or is otherwise terminated without his express consent (Section 9, Rule 113). This situation does not here obtain, for the case was neither dismissed nor terminated. It was merely remanded to the Justice of the Peace for a new preliminary investigation. And even if the action of the court may be considered as dismissal, it appears that it was done with his express consent, or at least with the conformity of his counsel. (pages 1-2, t. s. n.) This case, therefore, does not come within the rule. The decision appealed from is affirmed, without pronouncement as to costs. Pablo, Bengzon, Padilla, Montemayor, Reyes, A., Jugo, Labrador, Concepcion and Reyes, J.B.L., JJ., concur. G.R. No. 93335 September 13, 1990 JUAN PONCE ENRILE, petitioner, vs. HON. OMAR U. AMIN, Presiding Judge of Regional Trial Court of Makati, Branch 135, HON. IGNACIO M. CAPULONG, Presiding Judge of Regional Trial Court of Makati, Branch 134, Pairing Judge, SPECIAL COMPOSITE TEAM of: Senior State Prosecutor AURELIO TRAMPE, State Prosecutor FERDINAND ABESAMIS and Asst. City Prosecutor EULOGIO MANANQUIL; and PEOPLE OF THE PHILIPPINES, respondents. Ponce Enrile, Cayetano, Reyes & Manalastas Law Offices for petitioner.

GUTIERREZ, JR., J.: Together with the filing of an information charging Senator Juan Ponce Enrile as having committed rebellion complexed with murder 1 with the Regional Trial Court of Quezon City, government prosecutors filed another information charging him for violation of Presidential Decree No. 1829 with the Regional Trial Court of Makati. The second information reads:
That on or about the 1st day of December 1989, at Dasmarias Village, Makati, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused, having reasonable ground to believe or suspect that Ex-Col. Gregorio "Gringo" Honasan has committed a crime, did then and there unlawfully, feloniously, willfully and knowingly

obstruct, impede, frustrate or delay the apprehension of said Ex. Lt. Col. Gregorio "Gringo" Honasan by harboring or concealing him in his house.

On March 2, 1990, the petitioner filed an Omnibus Motion (a) to hold in abeyance the issuance of a warrant of arrest pending personal determination by the court of probable cause, and (b) to dismiss the case and expunge the information from the record. On March 16, 1990, respondent Judge Ignacio Capulong, as pairing judge of respondent Judge Omar Amin, denied Senator Enrile's Omnibus motion on the basis of a finding that "there (was) probable cause to hold the accused Juan Ponce Enrile liable for violation of PD No. 1829." On March 21, 1990, the petitioner filed a Motion for Reconsideration and to Quash/Dismiss the Information on the grounds that: (a) The facts charged do not constitute an offense; (b) The respondent court's finding of probable cause was devoid of factual and legal basis; and (c) The pending charge of rebellion complexed with murder and frustrated murder against Senator Enrile as alleged co-conspirator of Col. Honasan, on the basis of their alleged meeting on December 1, 1989 preclude the prosecution of the Senator for harboring or concealing the Colonel on the same occasion under PD 1829. On May 10, 1990, the respondent court issued an order denying the motion for reconsideration for alleged lack of merit and setting Senator Enrile's arraignment to May 30, 1990. The petitioner comes to this Court on certiorari imputing grave abuse of discretion amounting to lack or excess of jurisdiction committed by the respondent court in refusing to quash/ dismiss the information on the following grounds, to wit:
I. The facts charged do not constitute an offense; II. The alleged harboring or concealing by Sen. Enrile of Col. Honasan in a supposed meeting on 1 December 1989 is absorbed in, or is a component element of, the "complexed" rebellion presently charged against Sen. Enrile as alleged co-conspirator of Col. Honasan on the basis of the same meeting on 1 December 1989; III. The orderly administration of Justice requires that there be only one prosecution for all the component acts of rebellion; IV. There is no probable cause to hold Sen. Enrile for trial for alleged violation of Presidential Decree No. 1829; V. No preliminary investigation was conducted for alleged violation of Presidential Decree No. 1829. The preliminary investigation, held only for rebellion, was marred by patent irregularities resulting in denial of due process.

On May 20, 1990 we issued a temporary restraining order enjoining the respondents from conducting further proceedings in Criminal Case No. 90-777 until otherwise directed by this Court. The pivotal issue in this case is whether or not the petitioner could be separately charged for violation of PD No. 1829 notwithstanding the rebellion case earlier filed against him. Respondent Judge Amin sustained the charge of violation of PD No. 1829 notwithstanding the rebellion case filed against the petitioner on the theory that the former involves a special law while the latter is based on the Revised Penal Code or a general law. The resolution of the above issue brings us anew to the case of People v. Hernandez (99 Phil. 515 [1956]) the rulings of which were recently repeated in the petition for habeas corpus of Juan Ponce Enrile v. Judge Salazar, (G.R. Nos. 92163 and 92164, June 5, 1990). The Enrile case gave this Court the occasion to reiterate the long standing proscription against splitting the component offenses of rebellion and subjecting them to separate prosecutions, a procedure reprobated in the Hernandez case. This Court recently declared:
The rejection of both options shapes and determines the primary ruling of the Court, which that Hernandez remains binding doctrine operating to prohibit the complexing of rebellion with any other offense committed on the occasion thereof, either as a means to its commission or as an unintended effect of an activity that commutes rebellion . (Emphasis supplied)

This doctrine is applicable in the case at bar. If a person can not be charged with the complex crime of rebellion for the greater penalty to be applied, neither can he be charged separately for two (2) different offenses where one is a constitutive or component element or committed in furtherance of rebellion. The petitioner is presently charged with having violated PD No. 1829 particularly Section 1 (c) which states:
SECTION 1. The penalty of prison correccional in its maximum period, or a fine ranging from 1,000 to 6,000 pesos or both, shall be imposed upon any person who knowingly or wilfully obstructs, impedes, frustrates or delays the apprehension of suspects and the investigation and prosecution of criminal cases by committing any of the following acts: xxx xxx xxx (c) harboring or concealing, or facilitating the escape of, any person he knows, or has reasonable ground to believe or suspect has committed any offense under existing penal laws in order to prevent his arrest, prosecution and conviction. xxx xxx xxx

The prosecution in this Makati case alleges that the petitioner entertained and accommodated Col. Honasan by giving him food and comfort on December 1, 1989 in his house. Knowing that Colonel Honasan is a fugitive from justice, Sen. Enrile allegedly did not do anything to have Honasan arrested or apprehended. And because of such failure the petitioner prevented Col. Honasan's arrest and conviction in violation of Section 1 (c) of PD No. 1829. The rebellion charges filed against the petitioner in Quezon City were based on the affidavits executed by three (3) employees of the Silahis International Hotel who stated that the fugitive Col. Gregorio "Gringo" Honasan and some 100 rebel soldiers attended the mass and birthday party held at the residence of the petitioner in the evening of December 1, 1989. The information (Annex "C", p. 3) particularly reads that on "or about 6:30 p.m., 1 December, 1989, Col. Gregorio "Gringo" Honasan conferred with accused Senator Juan Ponce Enrile accompanied by about 100 fully armed rebel soldiers wearing white armed patches". The prosecution thereby concluded that:
In such a situation, Sen. Enrile's talking with rebel leader Col. Gregorio "Gringo" Honasan in his house in the presence of about 100 uniformed soldiers who were fully armed, can be inferred that they were co-conspirators in the failed December coup. (Annex A, Rollo, p. 65; Emphasis supplied)

As can be readily seen, the factual allegations supporting the rebellion charge constitute or include the very incident which gave rise to the charge of the violation under Presidential Decree No. 1829. Under the Department of Justice resolution (Annex A, Rollo, p. 49) there is only one crime of rebellion complexed with murder and multiple frustrated murder but there could be 101 separate and independent prosecutions for harboring and concealing" Honasan and 100 other armed rebels under PD No. 1829. The splitting of component elements is readily apparent. The petitioner is now facing charges of rebellion in conspiracy with the fugitive Col. Gringo Honasan. Necessarily, being in conspiracy with Honasan, petitioners alleged act of harboring or concealing was for no other purpose but in furtherance of the crime of rebellion thus constitute a component thereof. it was motivated by the single intent or resolution to commit the crime of rebellion. As held in People v. Hernandez, supra:
In short, political crimes are those directly aimed against the political order, as well as such common crimes as may be committed to achieve a political purpose. The decisive factor is the intent or motive. (p. 536)

The crime of rebellion consists of many acts. It is described as a vast movement of men and a complex net of intrigues and plots. (People v. Almasan [CA] O.G. 1932). Jurisprudence tells us that acts committed in furtherance of the rebellion though crimes in themselves are deemed absorbed in the one single crime of rebellion. (People v. Geronimo, 100 Phil. 90 [1956]; People v. Santos, 104 Phil. 551 [1958]; People v. Rodriguez, 107 Phil. 659 [1960]; People v. Lava, 28 SCRA 72 [1969]). In this case, the act of harboring or concealing Col. Honasan is clearly a mere component or ingredient of rebellion or an act done in furtherance of the rebellion. It cannot therefore be made

the basis of a separate charge. The case of People v. Prieto 2 (80 Phil., 138 [1948]) is instructive:
In the nature of things, the giving of aid and comfort can only be accomplished by some kind of action. Its very nature partakes of a deed or physical activity as opposed to a mental operation. (Cramer v. U.S., ante) This deed or physical activity may be, and often is, in itself a criminal offense under another penal statute or provision. Even so, when the deed is charged as an element of treason it becomes Identified with the latter crime and can not be the subject of a separate punishment, or used in combination with treason to increase the penalty as article 48 of the Revised Penal Code provides. Just as one can not be punished for possessing opium in a prosecution for smoking the Identical drug, and a robber cannot be held guilty of coercion or trespass to a dwelling in a prosecution for robbery, because possession of opium and force and trespass are inherent in smoking and in robbery respectively, so may not a defendant be made liable for murder as a separate crime or in conjunction with another offense where, as in this case, it is averred as a constitutive ingredient of treason.

The prosecution tries to distinguish by contending that harboring or concealing a fugitive is punishable under a special law while the rebellion case is based on the Revised Penal Code; hence, prosecution under one law will not bar a prosecution under the other. This argument is specious in rebellion cases. In the light of the Hernandez doctrine the prosecution's theory must fail. The rationale remains the same. All crimes, whether punishable under a special law or general law, which are mere components or ingredients, or committed in furtherance thereof, become absorbed in the crime of rebellion and can not be isolated and charged as separate crimes in themselves. Thus:
This does not detract, however, from the rule that the ingredients of a crime form part and parcel thereof, and hence, are absorbed by the same and cannot be punished either separately therefrom or by the application of Article 48 of the Revised Penal Code. ... (People v. Hernandez, supra, at p. 528)

The Hernandez and other related cases mention common crimes as absorbed in the crime of rebellion. These common crimes refer to all acts of violence such as murder, arson, robbery, kidnapping etc. as provided in the Revised Penal Code. The attendant circumstances in the instant case, however, constrain us to rule that the theory of absorption in rebellion cases must not confine itself to common crimes but also to offenses under special laws which are perpetrated in furtherance of the political offense. The conversation and, therefore, alleged conspiring of Senator Ponce Enrile with Colonel Honasan is too intimately tied up with his allegedly harboring and concealing Honasan for practically the same act to form two separate crimes of rebellion and violation of PD No. 1829. Clearly, the petitioner's alleged act of harboring or concealing which was based on his acts of conspiring with Honasan was committed in connection with or in furtherance of rebellion and must now be deemed as absorbed by, merged in, and Identified with the crime of rebellion punished in Articles 134 and 135 of the RPC.

Thus, national, as well as international, laws and jurisprudence overwhelmingly favor the proposition that common crimes, perpetrated in furtherance of a political offense, are divested of their character as "common" offenses, and assume the political complexion of the main crime of which they are mere ingredients, and consequently, cannot be punished separately from the principal offense, or complexed with the same, to justify the imposition of a graver penalty. (People v. Hernandez, supra, p. 541)

In People v. Elias Rodriguez, 107 Phil. 659 [1960], the accused, after having pleaded guilty and convicted of the crime of rebellion, faced an independent prosecution for illegal possession of firearms. The Court ruled:
An examination of the record, however, discloses that the crime with which the accused is charged in the present case which is that of illegal possession of firearm and ammunition is already absorbed as a necessary element or ingredient in the crime of rebellion with which the same accused is charged with other persons in a separate case and wherein he pleaded guilty and was convicted. (at page 662) xxx xxx xxx [T]he conclusion is inescapable that the crime with which the accused is charged in the present case is already absorbed in the rebellion case and so to press it further now would be to place him in double jeopardy. (at page 663)

Noteworthy is the recent case of Misolas v. Panga, (G.R. No. 83341, January 30, 1990) where the Court had the occasion to pass upon a nearly similar issue. In this case, the petitioner Misolas, an alleged member of the New Peoples Army (NPA), was charged with illegal possession of firearms and ammunitions in furtherance of subversion under Section 1 of PD 1866. In his motion to quash the information, the petitioner based his arguments on the Hernandez and Geronimo rulings on the doctrine of absorption of common in rebellion. The Court, however, clarified, to wit:
... in the present case, petitioner is being charged specifically for the qualified offense of illegal possession of firearms and ammunition under PD 1866. HE IS NOT BEING CHARGED WITH THE COMPLEX CRIME OF SUBVERSION WITH ILLEGAL POSSESSION OF FIREARMS. NEITHER IS HE BEING SEPARATELY CHARGED FOR SUBVERSION AND FOR ILLEGAL POSSESSION OF FIREARMS. Thus, the rulings of the Court in Hernandez, Geronimo and Rodriguez find no application in this case.

The Court in the above case upheld the prosecution for illegal possession of firearms under PD 1866 because no separate prosecution for subversion or rebellion had been filed. 3 The prosecution must make up its mind whether to charge Senator Ponce Enrile with rebellion alone or to drop the rebellion case and charge him with murder and multiple frustrated murder and also violation of P.D. 1829. It cannot complex the rebellion with murder and multiple frustrated murder. Neither can it prosecute him for rebellion in Quezon City and violation of PD 1829 in Makati. It should be noted that there is in fact a separate prosecution for rebellion already filed with the Regional Trial Court of Quezon City. In such a case, the independent prosecution under PD 1829 can not prosper.

As we have earlier mentioned, the intent or motive is a decisive factor. If Senator Ponce Enrile is not charged with rebellion and he harbored or concealed Colonel Honasan simply because the latter is a friend and former associate, the motive for the act is completely different. But if the act is committed with political or social motives, that is in furtherance of rebellion, then it should be deemed to form part of the crime of rebellion instead of being punished separately. In view of the foregoing, the petitioner can not be tried separately under PD 1829 in addition to his being prosecuted in the rebellion case. With this ruling, there is no need for the Court to pass upon the other issues raised by the petitioner. WHEREFORE, the petition is GRANTED. The Information in Criminal Case No. 90-777 is QUASHED. The writ of preliminary injunction, enjoining respondent Judges and their successors in Criminal Case No. 90-777, Regional Trial Court of Makati, from holding the arraignment of Sen. Juan Ponce Enrile and from conducting further proceedings therein is made permanent. SO ORDERED. Narvasa, Melencio-Herrera, Cruz, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Grio-Aquino and Regalado, JJ., concur. Medialdea, J., took no part. Fernan, C.J. and Paras, J., are on leave. G.R. No. L-8476 February 28, 1958

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ABUNDIO ROMAGOSA alias DAVID, defendant-appellant. Benedicto P. Bonifacio for appellant. Office of the Solicitor General Ambrosio Padilla and Assistant Solicitor General Jose G. Bautista for appellee. REYES, J.B.L., J.: This appeal is related to the case of People vs. Federico Geronimo alias Comdr. Oscar, et al., G.R. No. L-8936, decided by this Court on October 23, 1956 (100 Phil., 90; 53 Off. Gaz. No. 1, 68). Herein appellant Abundio Romagosa alias David was, in all information filed by the Provincial Fiscal, accused in the Court of First Instance of Camarines Sur of the complex crime of rebellion with murders, robberies, and kidnappings, under three counts that are the last three of the five counts charged against Federico Geronimo, et al., in said case No. G.R. L-8936, supra:

That on or about May 28, 1946 and for sometime prior and subsequent thereto and continuously up to the present time in the province of Camarines Sur, Philippines, and within the jurisdiction of this Honorable Court and in other municipalities, cities and provinces and other parts of the country where they have chosen to carry out their rebellious activities, the above-named accused being then ranking officers and/or members of, or otherwise affiliated with the Communist Party of the Philippines (CPP) and the Hukbong Mapagpalaya Ng Bayan (HMB) or otherwise known as the Hukbalahaps (HUKS) the latter being the armed force of said Communist Party of the Philippines (CPP) having come to an agreement and decide to commit the crime of Rebellion, and therefore, conspiring together and confederating among themselves with all of the thirty-one accused in criminal case Nos. 14071, 14282, 14315, 14270, 15344 and with all the accused in criminal case number 19166 of the Court of First Instance of Manila with the other members, officers and/or affiliates of the Communist Party of the Philippines and the Hukbong Mapagpalaya Ng Bayan and with many others whose identities and whereabouts are still unknown, acting in accordance with their conspiracy and in furtherance thereof, and mutually helping one another, did, then and there, willfully, unlawfully and feloniously, help support, promote, maintain, direct and/or command the Hukbalahaps (HUKS) or the Hukbong Mapagpalaya Ng Bayan (HMB), to rise publicly and take arms against the government of the Republic of the Philippines, or otherwise participate in such public armed uprisings for the purpose of removing the territory of the Philippines from the allegiance to the government and laws thereof, as in fact the said Hukbong Mapagpalaya Ng Bayan (HMB) or the Hukbalahaps (HUKS) pursuant to such conspiracy, have risen publicly and taken arms against the Government of the Republic of the Philippines to attain said purpose, by then and there making armed raids, sorties, and ambuscades, attacks against the Philippine Constabulary, the civilian guards, the Police and the Army Patrols and other detachments as well as upon innocent civilians, and as a necessary means to commit the crime of Rebellion, in connection therewith and in furtherance thereof, have then and there committed wanton acts of murder, pillage, looting, plunder, kidnappings and planned destructions of private and public property and plotted the liquidation of government officials, to create and spread disorder, terror, confusion, chaos and fear so as to facilitate the accomplishment of the aforesaid purpose, among which are follows to wit: 1. That on or about the years 1951 to 1952 in the municipality of, Pasacao, Camarines Sur, Philippines, a group of Armed Huks under Commander Rustum raided the house of one Nemesio Palo, a Police sergeant of Libmanan, Camarines Sur and as a result, said HUKS were able to capture said Nemesio Palo and once captured with evident premeditation, treachery and intent to kill, stab, shot and cut the neck of said Nemesio Palo thereby causing the instantaneous death of Nemesio Palo. 2. That on or about January 31, 1953, at barrio of Santa Rita, Del Gallego, Camarines Sur a group of HMBS with Federico Geronimo alias Commander Oscar ambushed and fired upon an Army Patrol headed by CPL Bayrante, resulting in seriously wounding of PFC Pancracio Torrado and Eusebio Gruta, a civilian.

3. That on or about February 1954 at barrio Cotmo, San Fernando, Camarines Sur, Abundio Romagosa, one of a group of four HMBS led by accused Commander Oscar with evident premiditation, willfully, unlawfully and feloniously killed one Policarpio Tipay, a barrio lieutenant. As in the case of Federico Geronimo, appellant Romagosa, upon arraignment, entered a plea of guilty to the information. In view of the voluntary plea of guilty, the prosecution recommended that the penalty of life imprisonment be imposed on the accused, on the ground that the charge being a complex crime of rebellion with murders, robberies, and kidnappings, the penalty provided for by law is the maximum of the most serious crime which is murder. Counsel for the accused, on the other hand, argued that the proper penalty imposable upon the accused was only prision mayor, since there is no such complex crime as rebellion with murders, robberies, and kidnappings, because the latter being the natural consequences of the crime of rebellion, the crime charged against the accused should be considered only as simple rebellion. On October 13, 1954, the lower court rendered judgment finding accused Romagosa guilty of the complex crime of rebellion with murders, robberies, and kidnappings; and giving him the benefit of the mitigating circumstance of voluntary plea of guilty, sentenced him to suffer the penalty of reclusion perpetua; to pay a fine of P10,000; to indemnify the heirs of the two persons killed named in the information, in the sum of P6,000 each; and to pay the cost of the proceedings. From the judgment accused Romagosa appealed to this Court, insisting that there is no crime of rebellion with murders, robberies, and kidnappings, and that he should have been convicted only of simple rebellion and imposed the penalty of prison mayor in its minimum period, in view of his voluntary plea of guilty. The question of whether there is a complex crime of rebellion with murder, robbery, and kidnapping under Article 48 of the Revised Penal Code, is exactly the same question raised and decided in the cases of People vs. Hernandez, et al., * 52 Off. Gaz., No. 11, 5506, and People vs. Geronimo, supra. None of the members of this Court has found reason to change his respective stand on the matter as expressed in the Geronimo case, wherein the majority of this Court held that where the crimes of murders, robberies, and kidnappings are committed as a means to or in furtherance of the rebellion charged, they are absorbed by, and form part and parcel of, the rebellion, and that therefore, the accused can be convicted only of the simple crime of rebellion. Consistently with that precedent, we hold that the lower court erred in holding appellant Romagosa guilty of the complex crime of rebellion with murders, robberies, and kidnappings, and in imposing upon him the penalty for such crime. As in the Geronimo case, there is the further question of whether, in view of appellant's plea of guilty to the information, he should be deemed to have admitted the commission of the simple crime of rebellion alone, or of rebellion and other separate crimes, if any of the counts of the information charges crimes independent of and not constituting essential acts or ingredients of the rebellion charged. As already stated, the three counts of the information against herein appellant Romagosa are exactly the same as the last three of the five counts charged against Federico Geronimo (G.R. No. L-8936). As ruled the majority in the preceding case, the first count under the present information (the third count against Geronimo) does not charge

appellant's participation and can not, therefore, be taken into consideration in this case; the second (the fourth count against Geronimo) alleges essential act of rebellion and is absorbed by that crime; while the third (the fifth count against Geronimo) charges the murder of one Policarpio Tipay, a barrio lieutenant, which killing, though committed within the jurisdiction of the lower court, does not appear to be related to the rebellion and hence constitutes an independent offense in itself. The same majority of six justices of this Court maintain their view express in the Geronimo case that by his plea of guilty, appellant has admitted the commission of the independent crime of murder alleged in count 3 of the information, the averment that said crime was perpetrated "in furtherance" of the rebellion being a mere conclusion and not a bar to appellant's conviction and punishment for said offense, appellant having failed, at the arraignment, to object to the information on the ground of multiplicity of crimes charged. Therefore, appellant must be held guilty, and sentenced for the commission, of two separate offenses, simple rebellion and murder. Wherefore, the decision appealed from is modified in the sense that appellant Abundio Romagosa alias David is convicted of the crimes of simple rebellion and murder; and considering the mitigating effect of his plea of guilty, appellant is sentenced for the rebellion: to suffer 8 years of prison mayor and to pay a fine of P10,000 (without subsidiary imprisonment pursuant to Article 38 of the Revised Penal Code), and for the murder: to an indeterminate sentence of not less than 10 years and 1 day of prision mayor as minimum and not more than 18 years of reclusion temporal as maximum; to indemnify the heirs of Policarpio Tipay in the sum of P6,000 solidarily with Federico Geronimo, alias Commander Oscar, (G.R. No. L-8936), and other adjudged guilty of having participated in the slaying of said deceased; and to pay the costs. So ordered. Paras, C.J., Bengzon, Reyes, A., Bautista Angelo, and Felix, JJ., concur.

Separate Opinions MONTEMAYOR, J., concurring and dissenting: I concur and dissent for the same reasons given in my concurring and dissenting opinion in the case of People vs. Geronimo, (100 Phil., 90; 53 Off. Gaz. [1.], 68).

LABRADOR, J., dissenting: I dissent for reasons contained in the dissenting opinion of Mr. Justice M. R. Montemayor in the Hernandez case.

ENDENCIA, J., dissenting: I stand on my dissenting opinion expressed in the Geronimo and Hernandez cases.

PADILLA, J., dissenting: I am of the opinion that the judgment appealed from should be affirmed for the same reasons stated in my opinion in the case of People vs. Geronimo, 100 Phil., 90; 53 Off. Gaz., 68, 92.

CONCEPCION, J., concurring and dissenting: In the information herein, it is alleged: That on or about May 28, 1946, . . . in the province of Camarines Sur, Philippines, . . . the above-named accused being then ranking officers and/or members . . . of the Communist Party of the Philippines and the Hukbong Mapagpalaya Ng Bayan (HMBS) having come to an agreement and decide to commit the crime of rebellion and . . . conspiring together and confederating among themselves with all the . . . accused in criminal cases Nos. 14071, 14282, 14315, 15314 and . . . 19166 of the Court of First Instance of Manila, . . . acting in accordance with their conspiracy and in furtherance thereof , . . . did then and there, willfully, unlawfully and feloniously, help support, promote, maintain, direct and/or command the Hukbalahaps . . . to rise publicly against the Government of the Republic of the Philippines, . . . for the purpose of removing the territory of the Philippines from the allegiance to the government and laws thereof . . . and as a necessary means to commit the crime of rebellion, in connection therewith and in furtherance thereof , have then and there committed wanton act of murder . . . and plotted the liquidation of government officials, . . . so as to facilitate the accomplishment of the aforesaid purpose, among which are as follows: 3. That on or about February 1954 at barrio Cotmo, San Fernando, Camarines Sur, Abundio Romagosa, one of a group of four HMBS led by accused Commander Oscar with evident premeditation willfully and feloniously killed one Policarpio Tipay, a barrio lieutenant. (Emphasis ours.) In the light of the specific allegation to the effect that the killer of Policarpio Tipay a barrio lieutenant, was committed by Abundio Romagosa "in accordance with" his conspiracy with other persons "to commit the crime of rebellion" . . . and "as necessary means to commit the crimes of rebellion in connection therewith and in furtherance thereof . . . so as to facilitate the accomplishment of the aforesaid purpose," I find it difficult, not to say impossible, to conclude that said killing is "not related" to the charge of rebellion and constitute in itself an "independent offense." Besides, there is nothing, absolutely nothing, in the record before us, to show that this allegation of the information is inaccurate. What is more, inasmuch as appellant is being

sentenced upon his plea of guilty, we should confine ourselves, strictly to the allegations of said information, in the determination of the crime or crimes committed by him and in the imposition of the corresponding penalty. In fact, had he entered a plea of not guilty, appellant would have been entitled to object to any evidence tending to prove that the killing of Policarpio Tipay was "independent" of and "not related" to the crime of rebellion charged in the information. Indeed, had he moved to quash the information upon the ground that it charges more than one offense, it would have been proper to deny the motion for the reason that only one offense was meant to be, and is actually, alleged in said information. In other words, appellant had never been advised that he is being accused of more than one (1) offense, and, hence, his conviction for murder of Policarpio Tipay, as if it were a completely distinct offense, independent and separate from that of rebellion, would be a denial of due process of law, one of the most fundamental rights guaranteed in our Constitution. Although, evidently, the decision in the case at bar merely adheres to the view of the majority in People vs. Geronimo (100 Phil., 90; 53 Off. Gaz., 68) which was not shared by five (5) members of this Court (Chief Justice Paras and Justices Bengzon, Alex. Reyes, Concepcion and Reyes, J. B. L.) I am constrained, to dissent, therefore, insofar as appellant is convicted of murder, and sentenced accordingly, in addition to simple rebellion. [G.R. No. L-7987. March 26, 1956.] THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellant, vs. PLACIDO OPEMIA, ET AL., Defendants-Appellees. DECISION REYES, A., J.: This is an appeal by the prosecution from an order of dismissal. It appears that on February 26, 1953, an information was filed in the Court of First Instance of Camarines Sur, charging four persons with theft of large cattle alleged to have been committed on or about June 18, 1952. After the Defendants had pleaded not guilty and in the course of the trial, the caretaker of the stolen carabao, testifying as fourth witness for the prosecution, declared that the theft occurred sometime in July, 1947, whereupon the fiscal asked for permission to amend the information to make it conform to the evidence as regards the date of the commission of the crime. Instant objection to the proposed amendment was raised on behalf of the Defendants on the ground that it would violate their substantial rights for the reason that the case had already been pending for a long time and the trial had progressed to such an extent that their defense had already been revealed to the prosecution. Believing that the amendment would really prejudice the substantial rights of the accused the trial court sustained the objection. And the defense having also asked that the information be quashed on the ground of variance between its allegations and the evidence, the court verbally ruled that it was dismissing the said information and implemented the ruling by declaring the case dismissed in the judgment rendered at the conclusion of the trial.

Appealing from the order of dismissal, the Solicitor General contends that instead of dismissing the case the lower court should have allowed the information to be amended. Section 13 of Rule 106 provides:
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SEC. 13. Amendment. The information of complaint may be amended, in substance or form, without leave of court, at any time before the Defendant pleads; and thereafter and during the trial as to all matters of form, by leave and at the discretion of the court, when the same can be done without prejudice to the rights of the Defendant.
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If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court may dismiss the original complaint or information and order the filing of a new one charging the proper offense, provided the Defendant would not be placed thereby in double jeopardy, and may also require the witnesses to give bail for their appearance at the trial. The amendment proposed in the present case consists in changing the date of the commission of the crime charged from June 18, 1952 to July, 1947. In not permitting the amendment the learned trial Judge said:
chanroblesvirtuallawlibrary

It is a cardinal rule in criminal procedure that the precise time at which an offense was committed need not be alleged in the complaint or information, but it is required that the act be alleged to have been committed at any time as near to the actual date at which the offense was committed as the information or complaint would permit (Rule 106, section 10). The reason for this rule is obvious. It is to apprise the accused of the approximate date when the offense charged was committed in order to enable him to prepare his defense and thus avoid a surprise. In the case at bar, the proof shows that the carabao was lost on July 25, 1947 and not on June 18, 1952 as alleged in the information. The period of almost five years between 1947 and 1952 covers such a long stretch of time that one cannot help but be led to believe that another theft different from that committed by the Defendants in 1952 was also perpetrated by them in 1947. Under this impression the accused, who came to court prepared to face a charge of theft of large cattle allegedly committed by them in 1952, were certainly caught by sudden surprise upon being confronted by evidence tending to prove a similar offense committed in 1947. The variance is certainly unfair to them, for it violates their constitutional right to be informed before the trial of the specific charge against them and deprives them of the opportunity to defend themselves. Moreover, they cannot be convicted of an offense with which they are not charged. It is also a cardinal rule in criminal procedure that after the Defendant has entered his plea, the information or complaint may be amended only as to all matters of form when the same can be done without prejudice to the rights of the Defendant (Rule 196, section 13). An amendment that would change the date of the commission of the offense from 1947 to 1952 is certainly not a matter of form. The difference in date could not be attributed to a clerical error, because the possibility of such an error is ruled out by the fact that the difference is not only in the year, but also in the month and in the last two digits of the year. It is apparent that the proposed amendment concerns with material facts constituting the offense, and consequently it would be prejudicial to the substantial rights of the Defendants. His Honor has we think adduced good reasons for considering the amendment as referring to substance and not merely to form. But even supposing it to be the contrary, its allowance, after the Defendants had pleaded, was discretionary with the court and would be proper only if it would not prejudice their rights. We are not prepare to say that the court did not make good use

of that discretion in disallowing the amendment, considering that the variance sought to be introduced thereby would appear to be really unfair to the Defendants, for as clearly explained by the court it violates their constitutional right to be informed before the trial of the specific charge against them and deprives them of the opportunity to defend themselves. In any event, it appears from the judgment below that, with the proposed amendment disallowed and seeing that the prosecution could not contradict the testimony that created the necessity for the amendment, the trial court dismissed the case on the ground of variance between allegation and proof, so that the dismissal really amounted to an acquittal. In line, therefore, with our ruling in Gandicela vs. Lutero, 88 Phil., 299; People vs. Diaz, 94 Phil., 714; People vs. Bangalao, et al., 94 Phil., 354; and Catilo vs. Abaya, 94 Phil., 1014 the Defendants in the present case should be deemed to have already been acquitted and may not be tried again without being put twice in jeopardy of punishment for the same offense.
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Wherefore, the appeal is dismissed, without special pronouncement as to costs.

Paras, C.J., Padilla, Bautista Angelo, Labrador, Concepcion and Reyes, J. B. L., JJ., concur.

G.R. No. L-45772 March 25, 1988 PEOPLE OF THE PHILIPPINES, petitioner, vs. Hon. EDUARDO MONTENEGRO, Presiding Judge, Branch IV-B, CFI Rizal, Quezon City; ANTONIO CIMARRA, ULPIANO VILLAR, BAYANI CATINDIG, and AVELINO DE LEON, respondents.

PADILLA, J.: This is a petition for certiorari with preliminary injunction and/or restraining order, to set aside the order of the respondent court, dated 10 February 1977, denying petitioner's Motion to Admit Amended Information and the order, dated 22 February 1977, of the same court, denying the Motion for Reconsideration of said earlier order. On 21 March 1977, the court issued a temporary restraining order enjoining respondent court from proceeding to hear and decide the case until further orders from the Court. The facts of the case are as follows: On 20 September 1976, the City Fiscal of Quezon City, thru Assistant Fiscal Virginia G, Valdez, filed an Information for "Roberry" before the Court of First Instance of Rizal, Branch IV-B, Quezon City, docketed as Criminal Case No. Q-6821, against Antonio Cimarra, Ulpiano Villar, Bayani Catindig and Avelino de Leon. Said accused (now private respondents) were all members of the police force of Quezon City and were charged as accessories-after-the-fact in the robbery committed by the minor Ricardo Cabaloza, who had already pleaded guilty and had been convicted in Criminal Case No. QF-76-051 before the Juvenile and Domestic Relations Court of Quezon City. Ricardo

Cabaloza was convicted for the robbery of the same items, articles and jewelries belonging to Ding Velayo, Inc. valued at P 75,591.40 and enumerated in the original information 1 against herein private respondents as:
One (1) Arminius revolver, cal. 22 with six ammo SN-165928 One (1) gold men's ring 'signet' Five (5) ID plates yellow gold Four (4) ID plates yellow gold Six (6) bracelets lock yellow gold One (1) anniversary pendant yellow gold Three (3) heart shape with assorted birthstones One (1) lady's (ring) white gold setting One (1) white gold ring mounting 18 karats One (1) white gold ring mounting 18 karats One (1) yellow gold stud One (1) lady's white gold ring setting One (1) white gold ring mounting One (1) pc. white gold earring mounting Twelve (12) pcs. of semi-precious stone bands with one broken Two (2) Ivory bracelets One (1) Silver bracelets One (1) yellow ring gold with blue stone Two (2) wedding gold rings yellow One (1) Minolta pocket size camera One (1) pink handbag One (1) bunch keys

Upon arraignment on 25 October 1976, all of the accused (now private respondents) entered a plea of "not guilty" to the charge filed against them. Accordingly, trial on the

merits was scheduled by the respondent court. However, before the trial could proceed, the prosecuting fiscal filed a Motion to Admit Amended Information, dated 28 December 1976, seeking to amend the original information by: (1) changing the offense charged from "Robbery" to "Robbery in an Uninhabited Place," (2) alleging conspiracy among all the accused, and (3) deleting all items, articles and jewelries alleged to have been stolen in the original Information and substituting them with a different set of items valued at P71,336.80 2 to wit:
Four (4) pcs. of I.D. Plates 14 Karat yellow gold P 24.00 each

Thirteen (13) pcs. of I.D. Plates KYG P 26.40 each

Five (5) pcs. of anniversary Pendant 14 KYG P 17.00 each

Three (3) pcs. of pendant w/ birthstones 14 KYG P 16.00 each

Two (2) pcs. of Signet plain 14 Karat yello gold rings Four (4) pcs. of lady's bracelet, 14 KYG oval shape P 30.00 each P 204.00 each

Four (4) pcs. of necklace 14 KYG One (1) set of ring & earrings

P 140.00 each

mounting w/ 23 brills 14 KYG Two (2) pcs. of ladies I.D. bracelet 14 KYG P 120.00 each

Nine (9) pcs. of diamond design earrings 14 KYG P 32.00 each

Five (5) pcs. of Sput-nik cross 4 KYG P 99.00 each

One (1) pc. of ladies ring mounting 14 KYG One (1) pc. of lady's sole diamond ring, about .40ct w/ yellow gold ring mounting, and one pair of earrings white gold solo diamond about .25ct w/ black onyx P 2,000.00 P 290.00

One (1) pc. lady's bracelet 14 KYG One (1) pc. chain 24KYG necklace

P 1,500.00

w/ small diamond

P 1,500.00

One (1) pc. Lapiz Lazuli ring 14 KYG One (1) pc. Lapiz Lazuli 18 KYG One (1) pc. Lady's ring w/ 2 Jade stone,

P 1,000.00

P 1,000.00

white gold w/ small diamonds and one pc. lady's ring white gold, 14 K w/ 2 small diamonds w/ one Jade P 2,000.00 P 40.00 each

Six (6) pcs. of fancy chains and bracelets One (1) pair of yellow gold earrings w/ pearl for children

P 70.00

One (1) pc. yellow gold ring w/ blue sapphire for children One (1) brown envelope, containing 2 pairs of 1/g loop earrings, 14 karat Cash money (inside the said envelope) One (1) pc. silver bracelet One (1) pc. bronze bracelet One (1) pc. ring blue stone YG One (1) pc. Lapiz Lazuli band One (1) pc. Coral band One (1) pc. ring w/ diamond stone, 14 KWG mounting Two (2) pcs. of 14 YG part bracelet Three (3) pcs. of men's ring 14 KYG One (1) pc. pendant 14 KYG One (1) pc. loose diamond about 4.50 karats antigo P 27,000.00 P 250.00 P 200.00 P 780.00 P 555.00 P 150.00

P 50.00 P 30.00

P 250.00

P 100.00

P 30.00

P 1,500.00 P 2,000.00

One (1) pc. loose diamond about 2.05 carats each antigo cut One (1) pc. Cannon camera w/ black case P 1,200.00 P 20,000.00

One (1) pc. Yashika camera w/ lens cover P 1,300.00

One (1) pc. Cannon camera w/ black case P 1,100.00

Private respondents opposed the admission of the Amended Information. The respondent court resolved to deny the proposed amendments contained in the Amended Information in the previously referred to order dated 10 February 1977. Petitioner moved for reconsideration of the aforesaid order but the respondent court, on 22 February 1977, denied said motion; hence, this petition. Amendment of an information under Sec. 14, Rule 110 of the 1985 Rules on Criminal Procedure (formerly, Section 13, Rule 110 of the old Rules on Criminal Procedure) may be made at any time before the accused enters a plea to the charge. Thereafter and during the trial, amendments to the information may also be allowed, as to matters of form, provided that no prejudice is caused to the rights of the accused. The test as to when the rights of an accused are prejudiced by the amendment of a complaint or information is when a defense under the complaint or information, as it originally stood, would no longer be available after the amendment is made, and when any evidence the accused might have, would be inapplicable to the complaint or information as amended.
3

On the other hand, an amendment which merely states with additional precision something which is already contained in the original information, and which, therefore, adds nothing essential for conviction for the crime charged is an amendment to form that can be made at anytime. 4 The proposed amendments in the amended information, in the instant case, are clearly substantial and have the effect of changing the crime charged from "Robbery" punishable under Article 209 to "Robbery in an Uninhabited Place" punishable under Art. 302 of the Revised Penal Code, thereby exposing the private respondents-accused to a higher penalty as compared to the penalty imposable for the offense charged in the original information to which the accused had already entered a plea of "not guilty" during their arraignment. Moreover, the change in the items, articles and jewelries allegedly stolen into entirely different articles from those originally complained of, affects the essense of the imputed crime, and would deprive the accused of the opportunity to meet all the allegations in the amended information, in the preparation of their defenses to the charge filed against them. It will be observed that private respondents were accused as accessories-afterthe-fact of the minor Ricardo Cabaloza who had already been convicted of robbery of the items listed in the original information. To charge them now as accessories-afterthe-fact for a crime different from that committed by the principal, would be manifestly incongruous as to be allowed by the Court. The allegation of conspiracy among all the private respondents-accused, which was not previously included in the original information, is likewise a substantial amendment

saddling the respondents with the need of a new defense in order to meet a different situation in the trial court. In People v. Zulueta, 5 it was held that:
Surely the preparations made by herein accused to face the original charges will have to be radically modified to meet the new situation. For undoubtedly the allegation of conspiracy enables the prosecution to attribute and ascribe to the accused Zulueta all the acts, knowledge, admissions and even omissions of his co-conspirator Angel Llanes in furtherance of the conspiracy. The amendment thereby widens the battlefront to allow the use by the prosecution of newly discovered weapons, to the evident discomfiture of the opposite camp. Thus it would seem inequitable to sanction the tactical movement at this stage of the controversy, bearing in mind that the accused is only guaranteed two-days' preparation for trial. Needless to emphasize, as in criminal cases, the liberty, even the life, of the accused is at stake, it is always wise and proper that he be fully apprised of the charges, to avoid any possible surprise that may lead to injustice. The prosecution has too many facilities to covet the added advantage of meeting unprepared adversaries.

To allow at this stage the proposed amendment alleging conspiracy among all the accused, will make all of the latter liable not only for their own individual transgressions or acts but also for the acts of their co-conspirators. WHEREFORE, the petition is DISMISSED. The orders of the respondent court, dated 10 February 1977 and 22 February 1977 are AFFIRMED. The temporary restraining order issued on 21 March 1977 is LIFTED. This decision is immediately executory. SO ORDERED. Yap (Chairman), Melencio-Herrera, Paras and Sarmiento, JJ., concur. G.R. No. L-28701 March 25, 1983 PEDRITO L. CATINGUB, petitioner, vs. THE COURT OF APPEALS, THE HON. RICARDO C. PUNO and THE PHILIPPINE CHARITY SWEEPSTAKES OFFICE, respondents.

GUERRERO, J: This is an appeal by certiorari from the decision of the Court of Appeals in CA-G.R. No. 38698-R entitled "PEDRITO L. CATINGUB, Petitioner, versus HON. RICARDO C. PUNO, Judge of the CFI Manila, Branch 24, and the PHILIPPINE CHARITY SWEEPSTAKES OFFICE, Respondents."

Herein petitioner, Pedrito L. Catingub, was charged with the crime of malversation in Criminal Case No. 75696 of the Court of First Instance of Manila, Branch XXIV, under the following Information:
That on or about and during the period covered from January 20 to February 24, 1963, in the City of Manila, Philippines, the said accused, being then a Sales Supervisor of the Philippine Charity Sweepstakes Office, Cagayan de Oro Branch, an instrumentality of the Government of the Republic of the Philippines, duly qualified, appointed and acting as such, and as such is responsible and/or accountable for public funds received by him by reason of his said office and position for the proper discharge of his duties and functions, did then and there willfully, unlawfully, feloniously and fraudulently, with grave abuse of confidence, misappropriate, embezzle, and take away from the said funds the total amount of P12,314.50 which he thereupon appropriated and converted to his own personal use and benefit, to the damage and prejudice of public interests and the Government of the Republic of the Philippines in the aforesaid amount of P12,314.50, Philippine currency.
Contrary to law.
1

Assisted by counsel de oficio Atty. Ramon Academia during arraignment, petitioner pleaded not guilty to the crime charged. 2 Trial commenced on August 30, 1965 during which petitioner appears to have submitted to the court a paper purporting to be a Motion to Quash. 3 This motion, however, was withdrawn by petitioner, through counsel, on the ground that the facts to support lack of jurisdiction "are not yet apparent or they do not yet appear on record ..." 4 At the continuation of trial on October 4, 1965, petitioner again filed a Motion to Quash on the ground that the trial court "is without jurisdiction to try the present case," the correct situs of the crime being Cagayan de Oro City. 5 The court held in abeyance the resolution of said Motion "until after the prosecution shall have rested its case." 6 In the meantime, trial proceeded and on February 21, 1966, the prosecution closed its evidence. The prosecution evidence established that petitioner was appointed in Manila on April 13, 1960 as Salesman I, Philippine Charity Sweepstakes Office, with compensation at the rate of Pl,800.00 per annum, effective upon assumption of office (Exhibit "A") which he assumed on May 9, 1960 after taking his oath of office in Manila on May 5, 1960. Thereafter, he was designated Temporary Sales Supervisor of the Philippine Charity Sweepstakes Office (PCSO) assigned at the Cagayan de Oro Branch. As such, he received sweepstakes tickets on consignment, with the express obligation to turn over the proceeds of the sales of these tickets to the Philippine Charity Sweepstakes Office as shown in Exhibits "D", "D-1", "D-2", and "D-3". On March 12, 1963, petitioner was informed by the Auditing Examiner of the PCSO Cagayan de Oro Branch that he has been found short of P12,307.45 (Exhibit "F-2"). Petitioner was ordered to explain the shortage in writing and to produce the missing amount. He failed to do so. On April 23, 1963, in view of his failure to settle his ticket accounts, and pursuant to Resolution No. 137 of the Board of Directors dated April 2, 1963, the services of the petitioner were terminated effective as of March 1, 1963, without prejudice to whatever court action the PCSO will take for the recovery of the amount involved. (Exhibit "B-1"). In a letter dated May 20, 1963, petitioner proposed to the General Manager of the PCSO Manila, to

settle his shortages by making monthly payments in the amount of at least P200.00, which proposal was, however, denied by the General Manager. On April 25, 1966, petitioner filed a Motion to Dismiss on the sole ground that "the prosecution made a wrong choice of jurisdiction." He contended that "on the basis of the prosecution's evidence, the offense charged, together with all its essential ingredients occurred and the consummation thereof (was) completed, in Cagayan de Oro." 7 The trial court on May 18, 1966, denied the aforesaid Motion to Dismiss in the following Order, to wit:
Acting upon the defendant's "Motion to Dismiss", dated April 22, 1966, the plaintiff's opposition thereto, dated April 28, 1966, and the reply dated May 10, 1966, filed in behalf of the accused, and considering the evidence on record, the Court believes and so rules that for the proper determination of the issues involved in this case, the accused should be heard in his defense. Wherefore, the aforesaid motion to dismiss is hereby denied and the continuation of the 8 trial of this case is hereby set for July 6, 1966, at 8:30 o'clock in the morning.

Reconsideration of the foregoing Order sought by petitioner was denied in another Order dated November 3, 1966. 9 Petitioner assailed these two Orders of the Court of First Instance in his petition for certiorari, prohibition and mandamus before respondent Court of Appeals. The Court of Appeals (now Intermediate Appellate Court) dismissed the petition in a decision promulgated December 19, 1967, the dispositive portion of which reads:
WHEREFORE, in the light of the foregoing considerations, we are of the considered opinion that the accused's motion to dismiss upon improper venue is without merit and accordingly the present petition for certiorari, prohibition and mandamus with preliminary 10 injunction should be, as it is hereby dismissed, without pronouncement as to costs.

Petitioner now comes to this Court by way of appeal by certiorari, raising the following errors:
A. The Court of Appeals erred in holding that the Court of First Instance of Manila is vested with jurisdiction to try an offense under an Information charging Manila as the place of commission when the evidence adduced by the prosecution clearly establishes another place of commission. B. The Court of Appeals erred in holding that the consignment invoices of the Philippine Charity Sweepstakes Office, objected to as incompetent, control in every instance the ultimate situs of prosecution in a crime involving malversation even when the elements thereof have been shown to have taken place in another territorial jurisdiction. C. The Court of Appeals erred in not granting an equitable relief to petitioner by having him tried in the place of actual commission of the offense to afford him all the opportunity in an adversary proceeding to present his evidence and witnesses.

D. The Court of Appeals erred in not resolving at least the doubt where the crime was committed in favor of the accused.

The main issue for resolution is whether or not the Court of First Instance of Manila has jurisdiction to continue with the trial of the offense as charged in view of the evidence presented by the prosecution. The Information filed in the trial court specifically alleges that the crime imputed against petitioner, was committed "in the City of Manila, Philippines." Such an averment would be sufficient if "the offense was committed or some of the essential ingredients occurred at some place within the jurisdiction" of the Court of First Instance of Manila pursuant to Section 9, Rule 110 of the Revised Rules of Court. Sec. 14(a) also provides:
Sec. 14. Place where action is to be instituted. - (a) In all criminal prosecutions, the action shall be instituted and tried in the court of the municipality or province wherein the offense was committed or any one of the essential ingredients thereof took place. xxx xxx xxx

Article 217 of the Revised Penal Code defines the crime of malversation of public funds or property as follows:
Art. 217. Malversation of public funds or property. Presumption of malversation. Any public officer who, by reason of the duties of his office, is accountable for public funds or property, shall appropriate the same, or shall take or appropriate or shall consent, or through abandonment or negligence, shall permit any other person to take such public funds or property, wholly or partially, or shall otherwise be guilty of the misappropriation or malversation of such funds or property, shall suffer: 1. The penalty of prision correccional in its medium and maximum periods, if the amount involved in the misappropriation or malversation does not exceed two hundred pesos. xxx xxx xxx The failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal uses. (As amended by Rep. Act No. 1060.)

The above presumption of malversation "takes the place of affirmative proofs showing the actual conversion (and) obviates the necessity of proving acts of conversion on the part of the accused, a thing almost always extremely difficult to do (U.S. vs. Acebedo, 18 Phil. 428, 431). Respondent Court of Appeals, in upholding the trial court's dismissal of herein petitioner's Motion to Dismiss on ground of lack of jurisdiction, adverted to the written condition on the consignment invoices covering the sweepstakes tickets delivered to and received by said accused, Exhibits "D", "D-1", "D-2" and "D-3" that "I (petitioner) bind myself to comply strictly with existing rules and regulations and to turn over to the

Philippine Charity Sweepstakes Office the proceeds of these tickets." As the following heading: "Republic of the Philippines, Philippine Charity Sweepstakes Office, Manila," was printed on the consignment invoices, the appellate court concluded that the PCSO mentioned or referred to therein was no other than the central or Manila office, and that petitioner's obligation was to turn over the proceeds of the sale to the PCSO in Manila. Accordingly, since petitioner had the obligation to turn over the proceeds of his ticket sales to the PCSO Manila and he failed to do so, the appellate court held that the courts of Manila had the jurisdiction to try the malversation charge against him. We agree with the ruling of the Court of Appeals for We find on record the testimony of prosecution witness Adriano M. Ruiz, Branch Manager of the Philippine Charity Sweepstakes Office at Cagayan de Oro showing that "we require the fieldmen who receive the tickets to turn over the proceeds of their sales either to the branch office or to the home office, and to return unsold booklets, if any, one week before the draw direct to the central office" (t.s.n., p. 11, Vol. II). It may be true that as testified to by the Auditing Examiner, Amando Dominguez, assigned by the GAO to the Philippine Charity Sweepstakes Office that fieldmen "are bound to turn over the proceeds of the tickets at the branch where they are assigned or in Manila" (t.s.n., p. 2, Vol. IV) and that as declared by Lope V. Salvatoria, Assistant Department Manager of PCSO at Manila that "when the proceeds are turned over to the branch cashier, the responsibility ends there and the branch cashier in turn transmits the amount to the treasurer in Manila" (t.s.n., p. 25, Vol. V), the option to deliver the proceeds to the local branch office appear to be tor convenience and for security reasons. But the final accounting, the settlement of accounts and the final clearances would have to be taken up in the central or Manila office. Petitioner himself recognizes this fact for as the evidence disclosed, he proposed to settle his shortages by paying P 200.00 monthly in his letter addressed to the General Manager of PCSO in Manila (Exhibit "K"). We also agree with the respondent Court of Appeals that the case of People vs. Angco, 103 Phil. 33, is substantially on all fours with the case at bar. In the said Angco case, the Supreme Court laid down this ruling:
The appellant presses the question of jurisdiction raised in a motion to quash which was denied by the trial court. He insists that as the malversation was committed while he was a travelling sales agent in Cagayan, as charged in the information, and that as it is not charged that the fund or part thereof was malversed in Manila, the Court of First Instance of Manila has no jurisdiction over the case. True it is alleged in the information that he had his "headquarters at Tuguegarao, Cagayan" but it is also alleged that he was a "Travelling Sales Agent of the Philippine Charity Sweepstakes Office, in said City," (Manila) ... "charged with selling sweepstakes tickets entrusted to him for sale in his district, with the obligation of turning over the proceeds of the sale of said tickets to the Treasurer of the Philippine Charity Sweepstakes Office in Manila," ... , and that he "wilfully, unlawfully, feloniously and fraudulently, with grave abuse of confidence," misappropriated, embezzled. misapplied and converted the amount of P3,960.95, the unaccounted and unpaid balance of the proceeds of the sale of the tickets to his own personal use and benefit, to the damage and prejudice of the Philippine Charity Sweepstakes Office. These allegations are sufficient to confer jurisdiction upon the Court

of First Instance of Manila to the exclusion of the concurrent jurisdiction of the Court of First Instance of Cagayan. The findings of the trial court to the effect that the appellant "was bonded and was authorized to sell sweepstakes tickets, with the obligation of turning over the proceeds of the sale to the treasurer of the Philippine Charity Sweepstakes Office, Manila," and that the appellant failed to account for and pay part of the proceeds of the sale of tickets made by him, bear out the charge proferred against him in the information.

The crimes of estafa and malversation are similar in nature in that both involve misappropriation of funds or property, the difference being that in estafa, the property or funds misappropriated is private in character whereas in malversation, the property constitutes public funds or property for which the accused as a public officer is accountable by reason of the duties of his office. In the case of U.S. vs. Cardel, 23 Phil. 207, and U S. vs. Mesina, 42 Phil. 66, it was held that estafa was consummated in the place where the accused is required to render an accounting and failed to do so. Applying the same ruling in the instant malversation case and Section 14(a), Rule 110 of the Revised Rules of Court hereinbefore quoted, We hold and rule that the present case of malversation may be tried in Manila since the offense charged was consummated in Manila. Indeed, petitioner could have been charged and tried in Cagayan de Oro City for it is not disputed that he received the sweepstakes tickets from the PCSO, Cagayan de Oro branch. The essential ingredient of receiving the sweepstakes tickets took place in Cagayan de Oro City. He could also be charged in the City of Manila since the final accounting must be rendered in the Central Office, Manila. This is therefore, a case of concurrent jurisdiction by the proper court of the place wherein "anyone of the essential ingredients thereof took place." But the choice of venue lies with the prosecuting officer and not with the accused. Petitioner pleads for equitable relief by having him tried in Cagayan de Oro City to afford him all the opportunity in all adversary proceeding to present his evidence and witnesses. We cannot accept petitioner's plea for equity because having admitted in writing his shortages in his letter to the General Manager of PCSO in Manila Exhibit "K", he comes to court with unclean hands. He who seeks equity must come to court with clean hands. WHEREFORE, IN VIEW ALL THE FOREGOING, the decision appealed from is hereby AFFIRMED. The records of this case are hereby ordered remanded to the trial court for further proceedings in the ordinary course of law. No costs. Petition denied. SO ORDERED. Makasiar (Chairman), Concepcion, Jr., De Castro and Escolin, JJ., concur. Aquino, J., is on leave.

Abad Santos, J., reserves his vote.