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[G.R. No. 109376. January 20, 2000]

PANFILO O. DOMINGO, petitioner, vs. THE SANDIGANBAYAN (Second Division) and

In this special civil action for certiorari, prohibition and mandamus with prayer for
temporary restraining order and/or preliminary injunction, petitioner Panfilo O.
Domingo (hereafter DOMINGO) seeks to nullify the resolution[1] of 15 March 1993 of
the Second Division of the Sandiganbayan denying his motion to quash the
information against him for violation of Section 3(e) in relation to Section 4(a) of
R.A. No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices

The records show that on 26 May 1987, the Philippine National Bank (PNB) filed a
complaint with the Tanodbayan against former President Ferdinand E. Marcos;
Rodolfo M. Cuenca, then president of the Construction and Development
Corporation of the Philippines (CDCP); and Joaquin T. Venus, Jr., former Deputy
Presidential Assistant. The complaint was docketed as TBP Case No. 87-02391.[2]

In an Order dated 1 September 1987, Special Prosecutor Juan T. Templonuevo

dropped from the complaint Ferdinand Marcos, who was out of the country and
therefore outside the criminal jurisdiction of the Tanodbayan, so as not to delay the
preliminary investigation against the other respondents. In the same order, it was
also directed that a subpoena be issued to DOMINGO, the President of PNB at the
time of the questioned transactions, it appearing from the evidence on record that
he was involved in the case.[3] However, the subpoena addressed to DOMINGO at
PNB, Escolta, Manila, his last known address, was returned "unserved," since he was
no longer connected with the said bank at the time it was served.[4]

On 8 June 1988, in line with the ruling in Zaldivar v. Sandiganbayan,[5] then

Ombudsman Conrado M. Vasquez issued Administrative Order No. 1 addressed to
the Office of the Special Prosecutor and Deputized Tanodbayan Prosecutors
authorizing them to continue the preliminary investigation of cases pending as of 27
April 1988 until the same are terminated.[6]

On 6 February 1992, after a finding of probable cause to implead DOMINGO in the

case, Special Prosecution Officer (SPO) III Teresita V. Diaz-Baldos issued an order
directing him to submit a counter-affidavit.[7] DOMINGO submitted on 9 March 1992
his counter-affidavit with the Office of the Special Prosecutor.[8] Misoedp

On 9 July 1992, SPO III Diaz-Baldos issued a resolution recommending that

DOMINGO and Rodolfo M. Cuenca be prosecuted for violation of Section 3(e) in
relation to Section 4(a) of Republic Act No. 3019, as amended, but that the
complaint be dismissed as against Ferdinand E. Marcos for being moot and
academic by reason of his death, and as against Joaquin T. Venus for lack of merit.
[9] This was approved by Ombudsman Conrado M. Vasquez, and the corresponding
information was filed with the Sandiganbayan on 30 July 1992. The case was
docketed therein as Criminal Case No. 17847.[10] The information reads as follows:

That on or about the month of July 1980, and for sometime prior or subsequent
thereto, in the City of Manila, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, PANFILO O. DOMINGO, being then the
President of the Philippine National Bank, a government financial institution, and
hence a public officer, while in the performance of his official functions, committing
the offense in relation to his office and conspiring and confederating with then
President Ferdinand E. Marcos and with RODOLFO M. CUENCA, a private individual,
being then the Chairman of the Board of Directors of the Construction and
Development Company of the Philippines (CDCP), a corporation duly organized and
existing in accordance with the laws of the Philippines, did then and there willfully,
unlawfully, criminally, with evident bad faith and manifest partiality cause undue
injury to the Philippine National Bank and grant unwarranted benefits to CDCP in the
following manner: accused RODOLFO M. CUENCA, capitalizing and exploiting his
close personal association with the then President Ferdinand E. Marcos to obtain
favorable loan accommodations for CDCP, requested the latters assistance and
intervention in securing the approval by the Philippine National Bank Board of
Directors of the application of the CDCP for a U.S. $40 Million Letter of Credit and in
foregoing the collateral requirements of CDCP, as a result of which accused Panfilo
O. Domingo, acceding to the pressure exerted by President Marcos in relation to
accused Cuencas requests, facilitated and made possible the passage by the PNB
Board of Directors of Board Resolution No. 144 whereby the U.S.$40 Million Standby
Letter of Credit applied for by CDCP to secure the principal and interest on its loan
with the Republic National Bank of Dallas was approved, notwithstanding a
collateral deficiency by CDCP on its previous accounts with PNB, and again
subsequently recommended to the PNB Board of Directors the approval of Board

Resolution No. 180 amending Board Resolution No. 144 in order to allow CDCP to
use its loan proceeds secured by the aforementioned letter of credit for its other
international projects and thereafter allowed CDCP to forego its collateral
requirements, which act of the accused inflicted undue injury and prejudice to PNB
which was unjustly forced to assume CDCPs obligation to the Republic National Bank
of Dallas after the latter had defaulted in the payment thereof, amounting to U.S.
$29 Million, and which likewise granted unwarranted benefits to CDCP in the same

On 11 August 1992, DOMINGO filed a petition for reinvestigation[11] with the

Sandiganbayan. The latter directed the prosecution to treat the petition as a motion
for reconsideration of the 9 July 1992 resolution.[12] The motion was, however,
denied by the Office of the Special Prosecutor on 14 January 1993.[13] Edp sc

On 19 February 1993, petitioner filed with the Sandiganbayan a motion to quash the
information against him on the grounds that (1) the criminal action or liability has
been extinguished by prescription, and (2) the facts charged do not constitute an
offense.[14] In its Resolution of 15 March 1993 the Sandiganbayan denied the
motion to quash.[15]

Not satisfied, DOMINGO filed the instant petition alleging that the respondent
Sandiganbayan acted with grave abuse of discretion amounting to lack of
jurisdiction when it denied his motion to quash the information.

Meanwhile, on 17 August 1993, during his arraignment in Criminal Case No. 17847,
DOMINGO refused to enter a plea; hence, the Sandiganbayan ordered that a plea of
"not guilty" be entered for him.[16]

We shall first take up the issue of prescription.

DOMINGO contends that his alleged criminal liability has already been extinguished
by prescription. In support thereof he claims that the prescriptive period
commenced to run in July 1980 when the crime was allegedly committed, and was
only tolled on 6 February 1992, when he was impleaded as party-respondent by
Prosecutor Diaz-Baldos. The filing of the complaint with the Tanodbayan on 26 May
1987 produced no legal effect and could never be deemed to have validly

interrupted the running of the prescriptive period, considering that effective 2

February 1987, the Tanodbayan was divested of its authority to conduct preliminary
investigation unless duly authorized by the Ombudsman.

We are not persuaded.

In resolving the issue of prescription of the offense charged, the following should be
considered: (1) the period of prescription for the offense charged; (2) the time the
period of prescription starts to run; and (3) the time the prescriptive period was
interrupted. Sce dp

The Anti-Graft and Corrupt Practices Act (R.A. No. 3019) provides for its own
prescriptive period. Section 11 thereof reads: "All offenses punishable under this Act
shall prescribe in ten years." This was later amended by Batas Pambansa Blg. 195,
approved on 16 March 1982, which increased the prescriptive period of the crime
from ten years to fifteen years.

Since the law alleged to have been violated, R.A. No. 3019, as amended, is a special
law, the applicable rule in the computation of the prescriptive period is Section 2 of
Act No. 3326,[17] as amended, which provides:

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

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.

This simply means that if the commission of the crime is known, the prescriptive
period shall commence to run on the day the crime was committed. However, if the
violation of the special law is not known at the time of its commission, the

prescription begins to run only from the discovery thereof, i.e., discovery of the
unlawful nature of the constitutive act or acts.[18]

In the present case, it was well-nigh impossible for the government, the aggrieved
party, to have known the violations committed at the time the questioned
transactions were made because both parties to the transactions were allegedly in
conspiracy to perpetrate fraud against the government.[19] The alleged anomalous
transactions could only have been discovered after the February 1986 Revolution
when one of the original respondents, then President Ferdinand Marcos, was ousted
from office. Prior to said date, no person would have dared to question the legality
or propriety of those transactions.[20] Hence, the counting of the prescriptive
period would commence from the date of discovery of the offense, which could have
been between February 1986 after the EDSA Revolution and 26 May 1987 when the
initiatory complaint was filed. Calrsp ped

As to when the period of prescription is interrupted, the second paragraph of

Section 2 of Act. No. 3326, as amended, provides that it is "when proceedings are
instituted against the guilty person." Whether the running of the prescriptive period
was tolled on 1 September 1987, when DOMINGO was impleaded as an accused, or
on 30 July 1992, when the information against him was filed with the
Sandiganbayan, is immaterial; for only about one or six years, respectively, has
elapsed from the date of the discovery of the alleged offense. Thus, the prescriptive
period, whether ten years as provided in R.A. No. 3019 or fifteen years as provided
in the amendatory Act, has not yet lapsed. The motion to quash on the ground of
prescription was, therefore, correctly denied.

We now come to the question of whether the facts charged in the information
constitute an offense.

The fundamental test on the viability of a motion to quash on the ground that the
facts averred in the information do not amount to an offense is whether the facts
asseverated would establish the essential elements of the crime defined in the law.
[21] In this examination, matters aliunde are not considered.[22]

As a general proposition, a motion to quash on the ground that the allegations of

the information do not constitute the offense charged, or any offense for that
matter, should be resolved on the basis alone of said allegations whose truth and

veracity are hypothetically admitted.[23] The informations need only state the
ultimate facts; the reasons therefor could be proved during the trial.[24]

DOMINGO, together with Rodolfo Cuenca, was charged with violation of Section
3(e), in relation to Section 4(a), of Republic Act No. 3019, as amended. These
provisions read:

SEC. 3. Corrupt practices of public officers.- In addition to acts or omissions of public

officers already penalized by existing laws, the following shall constitute corrupt
practices of any public officer and are hereby declared to be unlawful:

(e). Causing any undue injury to any party, including the Government, or giving any
private party any unwarranted benefits, advantage or preference in the discharge of
his official, administrative or judicial functions through manifest partiality, evident
bad faith or gross inexcusable negligence. This provision shall apply to officers and
employees of offices or government corporations charged with the grant of licenses
or permits or other concessions.

Sccal r

SEC. 4. Prohibition on private individuals. -- (a) It shall be unlawful for any person
having family or close personal relation with any public official to capitalize or
exploit or take advantage of such family or close personal relation by directly or
indirectly requesting or receiving any present, gift or material or pecuniary
advantage from any other person having some business, transaction, application,
request or contract with the government, in which such public official has to
intervene. Family relation shall include the spouse or relatives by consanguinity or
affinity in the third civil degree. The word "close personal relation" shall include
close personal relationship, social and fraternal connections, and professional
employment all giving rise to intimacy which assures free access to such public

The elements of the offense under Section 3(e) are the following: (1) that the
accused is a public officer or a private person charged in conspiracy with the
former; (2) that the said public officer commits the prohibited acts during the
performance of his or her official duties or in relation to his or her public positions;

(3) that he or she causes undue injury to any party, whether the government or a
private party; (4) that such undue injury is caused by giving unwarranted benefits,
advantage or preference to such parties; and (5) that the public officer has acted
with manifest partiality, evident bad faith or gross inexcusable negligence.[25]

The information specifically stated as follows:

(1) That DOMINGO was a public officer, being then the president of PNB, a
government financial institution, and Rodolfo Cuenca was a private individual, then
Chairman of the Board of Directors of the CDCP, who conspired and confederated
with DOMINGO, capitalizing and exploiting his close personal association with then
President Marcos to obtain favorable loan accommodations for CDCP;

(2) That DOMINGO committed the offense in relation to his office and while in the
performance of his official functions;

(3) That he facilitated and made possible the passage by the PNB Board of Directors
of Resolution No. 144, thereby causing undue injury and prejudice to PNB which was
unjustly forced to assume CDCPs obligation to the Republic National Bank of Dallas
after the CDCP defaulted in the payment of the loan amounting to US$29 Million;

(4) That such undue injury was caused by his facilitation of the approval of the
Letter of Credit and the waiver of the collateral deficiency, thereby granting
unwarranted benefits to CDCP in the same amount; and

(5) That he acted with evident bad faith and manifest partiality.

Clearly, the facts alleged in the information constitute a violation of Section 3(e) of
R.A. No. 3019, as amended. Hence, the motion to quash must fail. C alrsc

Finally, DOMINGO avers that the long and inordinate delay in the termination of the
preliminary investigation and the filing of the information violated his right to
speedy trial, invoking the ruling enunciated in Tatad v. Sandiganbayan.[26]

The concept of speedy disposition of cases is a relative term and must necessarily
be a flexible concept. Hence, the doctrinal rule is that in the determination of
whether that right has been violated, the factors that may be considered and
balanced are the length of delay, the reasons for such delay, the assertion or failure
to assert such right by the accused, and the prejudice caused by the delay.[27] The
right of an accused to a speedy trial is guaranteed to him by the Constitution, but
the same shall not be utilized to deprive the State of a reasonable opportunity of
fairly indicting criminals. It secures rights to an accused, but it does not preclude
the rights of public justice.[28]

A review of the records show that his right has not been violated. The Office of the
Special Prosecutor, in its Comment/ Opposition to the Motion to Quash,[29] has
adequately explained the reason for the said delay, to wit:

The records show that accused Domingo filed his counter affidavit on March 3,
1992, and the case was resolved on July 9, 1992. There was no undue delay in the
resolution of this case despite the gargantuan volume of cases filed with the Office
of the Special Prosecutor.

There [might have been] a delay in the conduct of the preliminary investigation but
which is not undue and intended as they were brought about by unforseen peculiar

Sometime in 1987, when this case was in its initial stage of preliminary
investigation, the authority of the Office of the Special Prosecutor to conduct
preliminary investigation and file cases with the Sandiganbayan was questioned and
was subsequently nullified by the Supreme Court in the cases of Zaldivar vs.
Gonzales and Zaldivar vs. Sandiganbayan (supra.). This necessitated the issuance
of Administrative Order No. 1 (supra.) in order that the Office of the Special
Prosecutor will continue to function as part of the Ombudsman. Following this event
was the retirement of the assigned Prosecutor, Juan T. Templonuevo, in the early
part of 1989. When RA 6770 was enacted in November 1989, the OSP was
reorganized by the Ombudsman. After its reorganization in 1990, the present case
was assigned to SPO III Teresita Diaz-Baldos. The said SPO instead of resolving the
case, considering that the respondents have already been subpoenaed, gave
another opportunity for the accused herein to file their counter affidavits. She
forthwith issued subpoena for the accused to file their counter-affidavits. Accused-

movant, Domingo filed his counter-affidavit in March 199[2]. Hence, the Resolution.
[30] Mis act

Perforce, DOMINGO cannot validly claim that he was denied due process of law
considering that one of the principal reasons for the delay was precisely to afford
him the opportunity to submit his counter-affidavit since the first subpoena was
returned unserved. After DOMINGO filed his counter-affidavit on 9 March 1992, the
corresponding information was in due time filed on 30 July 1992. The delay, if any,
was actually more beneficial, rather than prejudicial, to petitioner in that it was
intended to afford him the opportunity to refute the charges made against him.

It is also worthy to note at this point the long-standing doctrine that writs of
injunction or prohibition will not lie to restrain a criminal prosecution for the reason
that public interest requires that criminal acts be immediately investigated and
prosecuted for the protection of society. The writ may issue only in specified cases,
among which are to prevent the use of the strong arm of the law in an oppressive
and vindictive manner, and to afford adequate protection to constitutional rights.
[31] Such exceptions do not obtain in this case.
Thus, there being no grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the Sandiganbayan, the Resolution denying DOMINGOs
Motion to Quash must be, and is hereby, AFFIRMED.WHEREFORE, the petition in this
case is hereby DISMISSED. The Sandiganbayan is DIRECTED to try and decide
Criminal Case No. 17847 with purposeful dispatch.


HON. MAXIMIANO C. ASUNCION, Presiding Judge of Branch 104, RTC, Quezon City,
and TOMAS DOMINADO, respondents.


In a Petition for certiorari filed under Rule 65 of the Rules of Court, the People raise
the issue of whether the crime of illegal possession of firearms, ammunition and
explosives, punishable under P.D. 1866, is absorbed by the crime of subversion, i.e.,
membership in a subversive organization, punishable under R.A. 1700, as amended.

The People filed this petition assailing the Resolution dated May 4, 1988 of
respondent Judge Maximiano C. Asuncion, granting the motion of private
respondents to quash the Information charging them with violation of P.D. 1866, as
being void ab initio and the order dated June 8, 1988 denying petitioner's motion for
reconsideration of said resolution.

Private respondents Paterna Ruiz, Noli Narca, Fr. Nick Ruiz, Lydia Narca, Rodolfo
Corteza, and Tomas Dominado, were charged with Subversion under R.A. 1700
before the Metropolitan Trial Court of Quezon City, Branch 40, based on the
following information filed on February 10, 1988:

That on or about the 1st and 2nd day of February, 1988 in Quezon City, Metro
Manila Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, conspiring together, confederating with and mutually helping one
another by overt acts with the common objective to overthrow the duly constituted
government of the Republic of the Philippines, did, then and there, willfully and
unlawfully and feloniously affiliate themselves with, become and remain members
of the Communist Party of the Philippines/National Democratic Front and/or its
successor or of any subversive association in violation of said law. 1

On February 12, 1988, six separate informations for violation of P.D. 1866 (Illegal
Possession of Firearms) were filed against the same respondents before the
Regional Trial Court of Quezon City, Branch 104. Said Informations in substantially
identical language allege:

That on or about the (1st and 2nd days) of February the accused without any
authority of law, did, then and there, willfully, unlawfully and feloniously have in
(his/her) possession and control and custody one (cal .45 pistol, armalite rifle,
handgranade, fragmentation granade, M-14 rifle), without first securing any
license/permit from the proper authority and that said firearm is being used in
support and furtherance of the crime of subversion or rebellion. 2

The facts 3 as presented by the prosecution reveal that sometime in February 1988,
elements of the Intelligence Service of the Armed Forces of the Philippines
apprehended the private respondents in separate operations.

Various ammunitions, firearms, and explosives were found in their possession, while
subsequent searches in their respective hide-outs resulted in the confiscation of
several subversive materials, including documents showing that they are ranking
members of the Communist Party of the Philippines/New People's Army, or are mere

Private respondents, in their motion to quash, 4 argued that the filing of two (2)
separate informations for each of the accused violates the rule on double jeopardy,
and that there being only a single criminal intent, the other offense of illegal
possession of firearms, ammunition and explosives should be absorbed in the
charge of violation of R.A. 1700, following the doctrine in People v. Hernandez. 5

The respondent Judge, in his questioned resolution, agreed with this contention and

After evaluating the grounds and the arguments in support of the same, the Court is
of the opinion that the motion to quash, as prayed for should be GRANTED.

Applying by analogy the doctrine laid down in the case of People v. Hernandez (99
Phil. 515), the possession of firearms, ammunition and explosives to which all the
accused are charged before this Court is a constitutive ingredient of the crime of
subversion and, hence, absorbed by the same and cannot be punished separately.
Deadly weapons are needed and necessary to generate the kind of force and
violence to accomplish the purpose of subversion. As pointed out by Atty. Poncevic
Ceballos, counsel for the accused, the elements of force, violence and other illegal
means mentioned in the law (R.A., 1700 as amended), may be done with the use of
violence, explosives and ammunition or the possession thereof. 6 (Emphasis

It should be recalled that in People v. Hernandez, supra, and even in the more
recent cases of Enrile v. Amin, 7and Enrile v. Salazar, 8 the issue resolved is that the
crime of rebellion cannot be complexed with, nor may a separate information be
filed, for violation of common crimes, since force and violence are already
necessary ingredients of the same.

Private respondents do not dispute the fact that rebellion is distinct from
subversion. However, they want to adopt by analogy existing jurisprudence on
rebellion to subversion on the theory that both crimes are political offenses
intended to destabilize and overthrow the government with the use of force,
violence or other illegal means. 9 The trial court went along with respondents when
it stated:

. . . The possession of said items by all the accused, as alleged in the information, is
the very element of force, violence, or other illegal means in the crime of
subversion. So that the crime of alleged possession of firearms in furtherance of
rebellion or, subversion cannot be separated from the charge of subversion. the
former crime being merely an element of the latter crime. 10

We cannot agree.

If We are to espouse the theory of the respondents that force and violence are the
very essence of subversion, then it loses its distinction from rebellion. In People v.
Liwanag, 11 the Court categorically distinguished subversion from rebellion, and

Violation of Republic Act No. 1700, or subversion, as it is more commonly called, is a

crime distinct from that of actual rebellion. The crime of rebellion is committed by
rising publicly and taking up arms against the Government for any of the purposes
specified in Article 134 of the Revised Penal Code; while the Anti-Subversion Act
(Republic Act No. 1700) punishes affiliation or membership in a subversive
organization as defined therein. In rebellion, there must be a public uprising and
taking of arms against the Government; whereas, in subversion, mere membership
in a subversive association is sufficient and the taking up of arms by a member of a
subversive organization against the Government is but a circumstance which raises
the penalty to be imposed upon the offender. (Emphasis supplied)

Furthermore, in the case of Buscayno vs. Military Commissions, 12 this Court said
that subversion, like treason, is a crime against national security, while rebellion is a
crime against public order. Rising publicly and taking arms against the Government
is the very element of the crime of rebellion. 13 On the other hand, R.A. 1700 was
enacted to outlaw the Communist Party of the Philippines (CPP), other similar
associations and its successors because their existence and activities constitute a
clear, present and grave danger to national security. 14

The first Whereas clause of R.A. 1700 states that the CPP is an organized conspiracy
to overthrow the Government, not only by force and violence but also by deceit,
subversion and other illegal means. This is a recognition that subversive acts do not
only constitute force and violence (contra to the arguments of private respondents),
but may partake of other forms as well. One may in fact be guilty of subversion by
authoring subversive materials, where force and violence is neither necessary or

Private respondents contended 15 that the Court in Misolas v. Panga 16 impliedly

ruled that if an accused is simultaneously charged with violation of P.D. 1866 and
subversion, the doctrine of absorption of common crimes as applied in rebellion
would have found application therein. The respondents relied on the opinion of this
Court when it said:

. . . 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
Court in Hernandez, Geronimo and Rodriguez find no application in this case. 17

This is however a mere obiter. In the above case, the Court upheld the validity of
the charge under the third paragraph of Section 1 of P.D. 1866. The Court opined
that the dictum in the Hernandez case is not applicable in that case, considering
that the legislature deemed it fit to provide for two distinct offenses: (1) illegal
possession of firearms qualified by subversion (P.D. 1866) and (2) subversion
qualified by the taking up of arms against the Government (R.A. 1700). "The
practical result of this may be harsh or, it may pose grave difficulty on an accused
in instances similar to those that obtain in the present case, but the wisdom of the

legislature in the lawful exercise of its power to enact laws is something that the
Court cannot inquire into . . ." 18

The Court further said:

Undeniably, it is easier to prove that a person has unlawfully possessed a firearm

and/or ammunition under P.D. 1866 than to establish that he had knowingly, willfully
and by overt acts affiliated himself with, became or remained a member of the
Communist Party of the Philippines and/or its successor or of any subversive
organization under R.A. 1700, as conviction under the latter "requires that
membership must be knowing or active, with specific intent to further the illegal
objectives of the Party" (quoting from People v. Ferrer, supra).

However, that the same act may be penalized under two different statutes with
different penalties, even if considered highly advantageous to the prosecution and
onerous to the accused, will not necessarily call for the invalidation of the third
paragraph of Section 1 of P.D. 1866 which provides for the higher penalty. 19

On the issue of whether the filing of the subsequent information constitutes double
jeopardy, the trial court in its resolution articulated, thus:

On the question of double jeopardy, the Court agrees with the observation of the
herein accused that the filing of two separate informations against each of the
accused constitute a violation of their constitutional right of not being twice put in
jeopardy of punishment for the same offense where it can be shown that the
offenses in question arise from a single criminal intent. (People v. Elkanish, 90 Phil.

The case of People v. Elkanish, 20 relied upon by the Honorable Judge, is not in point
with the present case. Since We have resolved that P.D. 1866 can be prosecuted
independently of R.A. 1700, there can be no double jeopardy. Double jeopardy can
be invoked only if one offense is inseparable from another and proceeds from the
same act, in which case, they cannot be subject to separate prosecutions. Art. III,
Section 21 of the present Constitution provides:

Sec. 21.
No person shall be twice put in jeopardy of punishment for the same
offense. If an act is punished by a law and an ordinance, conviction or acquittal
under either shall constitute a bar to another prosecution for the same act.

Implementing the constitutional provision, Rule 117, Section 7 of the Rules of Court
provides as follows:

When the accused has been convicted or acquitted, or the case against him has
been dismissed or otherwise terminated without his express consent, by a court of
competent jurisdiction, upon valid complaint or information or other formal charge
sufficient in form and substance to sustain a conviction, and after the accused had
pleaded to the charge, the conviction or acquittal of the accused or the dismissal of
the case shall be a bar to another prosecution for the offense charged, or for any
attempt to commit the same or frustration thereof, or for any offense which
necessarily includes or is necessarily included in the offense charged in the former
complaint or information.

Thus, according to a long line of cases, in order that a defendant may successfully
allege former jeopardy, it is necessary that he had previously been (1) convicted or
(2) acquitted, or (3) in jeopardy of being convicted of the offense charged, that is,
that the former case against him for the same offense has been dismissed or
otherwise terminated without his express consent, by a court of competent
jurisdiction, upon a valid complaint or information, and after the defendant has
pleaded to the charge.

Premises considered, We find this petition meritorious and the resolution of the trial
court dated May 4, 1988 quashing the informations for violation of PD 1866 is
hereby reversed and the informations reinstated. Let this case be remanded to the
lower court for further proceedings and trial. Cost de oficio.

PEDRO P. VILLA, petitioner,
FIDEL IBAEZ, Judge of the Court of First Instance of Manila, EUGENIO
ANGELES, City Fiscal, ABELARDO SUBIDO, Chief, Division of Investigation,
Office of the Manila, respondents.

Peralta & Agrava for petitioner.

City Fiscal Eugenio Angeles and Abelardo Subido in their own behalf.
Attorney Abelardo Subido, chief of the division of investigation in the office of the
mayor of the City of Manila, was appointed by the then Secretary of Justice,
Honorable Ricardo Nepomuceno, as special counsel to assist the City Fiscal of
Manila in the cases of city government officials or employees he had investigated;
and in pursuance of that appointment, he subscribed, swore to and presented an
information against Pedro P. Villa, the present petitioner, for falsification of a payroll
of the division of veterinary service, Manila health department. Attorney Subido's
authority to file information was thereafter challenged by the accused but was
sustained by His Honor, Judge Fidel Ibaez. Hence this petition for certiorari, which
is in reality a petition for prohibition and will be so regarded.
Chief ground of attack, the resolution of which will dispose of the others and to
which this opinion will therefore be confined, has to do with Attorney Subido's legal
qualifications for the appointment in question under section 1686 of the Revised
Administrative Code, as amended by Section 4 of Commonwealth Act No. 144,
which reads as follows:
SEC. 189. Additional counsel to assist fiscal. The Secretary of Justice may appoint
any lawyer, being either a subordinate from his office or a competent person not in
the public service, temporarily to assist a fiscal or prosecuting attorney in the
discharge of his duties, and with the same authority therein as might be exercised
by the Attorney General or Solicitor General.
Appointments by the Secretary of Justice in virtue of the foregoing provisions of the
Revised Administrative Code, as amended, were upheld in Lo Cham vs. Ocampo et
al.,1 44 Official Gazette, 458, and Go Cam et al., vs. Gatmaitan et al., (47 Official
Gazette, 5092)2. But in those cases, the appointees were officials or employees in
one or another of the bureaus or offices under the Department of Justice, and were
rightly considered subordinates in the office of the Secretary of Justice within the
meaning of section 1686, ante.
The case at bar does not come within the rationale of the above decisions. Attorney
Subido is a regular officer or employee in the Department of Interior, more
particularly in the City Mayor's office. For this reason he belongs to the class of
persons disqualified for appointment to the post of special counsel.
That to be eligible as special counsel to aid a fiscal the appointee must be either an
employee or officer in the Department of Justice is so manifest from a bare reading
of section 1686 of the Revised Administrative Code as to preclude construction. And
the limitation of the range of choice in the appointment or designation is not
without reason.

The obvious reason is to have appointed only lawyers over whom the Secretary of
Justice can exercise exclusive and absolute power of supervision. An appointee from
a branch of the government outside the Department of Justice would owe obedience
to, and be subject to orders by, mutually independent superiors having, possibly,
antagonistic interests. Referring particularly to the case at hand for illustration,
Attorney Subido could be recalled or his time and attention be required elsewhere
by the Secretary of Interior or the City Mayor while he was discharging his duties as
public prosecutor, and the Secretary of Justice would be helpless to stop such recall
or interference. An eventually or state of affairs so undesirable, not to say
detrimental to the public service and specially the administration of justice, the
legislature wisely intended to avoid.
The defendant had pleaded to the information before he filed a motion to quash,
and it is contended that by his plea he waived all objections to the information. The
contention is correct as far as formal objections to the pleading are concerned. But
by clear implication it not by express provision of section 10 of Rule 113 of the Rules
of Court, and by a long line of uniform decisions, questions of want of jurisdiction
may be raised at any stage of the proceeding. Now, the objection to the
respondent's actuations goes to the very foundations of jurisdiction. It is a valid
information signed by a competent officer which, among other requisites, confers
jurisdiction on the court over the person of the accused and the subject matter of
the accusation. In consonance with this view, an infirmity of the nature noted in the
information can not be cured by silence, acquiescence, or even by express consent.
The petition will therefore be granted and the respondent judge ordered to desist
from proceeding with criminal case No. 11963 upon the information filed by
Attorney Abelardo Subido, without costs.
Moran, C.J., Paras, Pablo, Bengzon, Padilla, Reyes, Jugo and Bautista Angelo, JJ.,
Paras, J., I certify that Justice Feria voted to grant the petition.
BENJAMIN "Kokoy" ROMUALDEZ, petitioner,
LUCERO, respondents.



Previous to this case, petitioner instituted a petition docketed as G.R. No. 105248,
entitled, "Benjamin (Kokoy) Romualdez, Petitioner, versus Sandiganbayan (First
Division) and Presidential Commission on Good Government (PCGG),
Respondents."1 He assailed therein, among others, the validity of twenty-four
informations which the PCGG filed against him for violation of Section 7 of Republic
Act No. 3019, more specifically for failure to file his statements of assets and
liabilities covering the years 1962 to 1985 when he was in the government service.
The cases were filed with the Sandiganbayan as Criminal Cases Nos. 13406-13429.
He argued that PCGG Commissioner Augusto E. Villarin, who conducted the
preliminary investigation, had no authority to do so.

On May 16, 1995, a Decision was rendered in said case declaring the preliminary
investigation conducted by the PCGG invalid, based on the following findings:

Now, the crimes ascribed to Romualdez (failure to file his annual statements of
assets and liabilities) do not "relate to alleged ill-gotten wealth" amassed by him. No
such relation may be perceived in the indictments themselves, which in fact merely
state that there was no justifiable cause for Romualdezs refusal or failure to file his
annual statements. Moreover, the Sandiganbayan itself made the finding that the
cases against Romualdez did not refer to acquisition of wealth under a crony status,
but "solely ** (to) his bare physical non-compliance with his mechanical duty to file
his statement of assets and liabilities over a period of twenty-four (24) years **;"
and that the omissions have no bearing on Civil Case No. 0035 against Romualdez
involving transactions in which he "allegedly took advantage of his relationship with
the spouses Ferdinand and Imelda Marcos." These considerations also call for
rejection of the Solicitor Generals theory that Romualdezs "non-filing of statements
of assets and liabilities ** (was) a means of concealing ** (his) assets and
frustrating the efforts of the Government to determine the actual value or extent of
** (his) wealth."

The Court therefore declares invalid the preliminary investigation conducted by the
PCGG over the 24 offenses ascribed to Romualdez (of failure to file annual
statements of assets and liabilities), for lack of jurisdiction of said offenses.2

While the preliminary investigation was invalid, we ruled that the invalidity of the
preliminary investigation did not impair the validity of the informations much less
did it affect the jurisdiction of the Sandiganbayan. Hence, we held that the

Sandiganbayan did not commit grave abuse of discretion in refusing to quash the
warrants of arrest against petitioner. However, the Sandiganbayan was directed to
suspend the proceedings in Criminal Cases Nos. 13406-13429, and to require the
Office of the Ombudsman to conduct a proper preliminary investigation of the
charges against petitioner.

In compliance with the said decision, the Sandiganbayan, on November 13, 1995,
issued a resolution giving petitioner fifteen days from receipt thereof within which to
submit his counter-affidavit and controverting evidence, furnishing copies thereof to
the PCGG. The Sandiganbayan also gave the PCGG the same period to file a reply
affidavit or pleading if it so desired. Thereafter, the Office of the Special Prosecutor
was directed to conduct the reinvestigation.3

At that time, however, petitioner was still in exile abroad. Naturally, he failed to
submit the required counter-affidavits. He returned to the Philippines only on April
27, 2000, after which he voluntarily surrendered to the Sandiganbayan and posted
the required bail bond.

On May 8, 2000, the Sandiganbayan gave Special Prosecutor Evelyn T. Lucero ten
days within which to submit the result of any reinvestigation she may have
undertaken.4 Prosecutor Lucero informed the Sandiganbayan that she has set a
clarificatory hearing on June 2, 2000, and moved for a thirty-day extension to
submit the results of the reinvestigation.5

Prosecutor Lucero sent notice of the clarificatory hearing to Atty. Jesus Borromeo, on
behalf of petitioner. The latter immediately went to Prosecutor Luceros office to
inform her that he was not the counsel for petitioner in these particular cases,
although he represented petitioner in other cases pending before different divisions
of the Sandiganbayan. The scheduled hearing on June 2, 2000 was cancelled for
non-appearance of petitioner and counsel.

In the meantime, petitioner, through Atty. Otilia Dimayuga-Molo, filed with the
Sandiganbayan on June 2, 2000 a Motion to Quash the informations in Criminal
Cases Nos. 13406-13429.6 He argued therein that the PCGG Commissioner who
filed the informations had no authority to do so.

On June 6, 2000, petitioner received at his address in Tacloban City a notice from
Prosecutor Taguba of the clarificatory hearing scheduled on June 9, 2000.7

The Motion to Quash was heard by the Sandiganbayan on June 8, 2000, one day
before the clarificatory hearing. Without granting the prosecution time to oppose
the motion, the Presiding Justice, in open court, denied the Motion to Quash and
terminated the preliminary investigation being conducted by Prosecutor Lucero.
Furthermore, the Presiding Justice set the arraignment of petitioner on June 26,

On June 23, 2000, petitioner was able to obtain a written copy of the order dated
June 8, 2000 denying his Motion to Quash and setting his arraignment on June 26,
2000.8 Petitioner likewise received another order dated June 8, 2000, denying his
oral motion for reconsideration.9

The arraignment scheduled on June 26, 2000 was reset to July 28, 2000.10

On July 7, 2000, petitioner filed the instant petition, seeking to annul the assailed
orders dated June 8, 2000 and to prohibit the Sandiganbayan from implementing
the same. Petitioner further prayed for the issuance of a writ of preliminary
injunction and temporary restraining order, enjoining his arraignment on July 28,

In a resolution dated July 17, 2000, respondents were required to comment and the
parties were directed to maintain the status quo ante prevailing at the time of filing
of the petition.11

The petition is anchored on the following grounds:





Respondents counter that the first issue raised by petitioner has already been
resolved in G.R. No. 105248, thus:

The invalidity or absence of a preliminary investigation does not however affect the
jurisdiction of the Trial Court which may have taken cognizance of the information.
The controlling principles are set out by a well known authority now sitting in the
Court, in his work entitled "Remedial Law Compendium," as follows:

"**. Any objection to lack of preliminary investigation must be made before entry of
the plea (People vs. Monteverde, G.R. No. 60962, July 11, 1986) and the court,
instead of dismissing the information, must remand the case for preliminary
investigation (People vs. Casiano, L-15309, Feb. 16, 1961; People vs. Figueroa, L24273, April 30, 1960; Zacarias vs. Cruz, L-25899, Nov. 29, 1969; People vs.
Abejuela, L-29715, Mar. 31, 1971; Sanciangco, et al. vs. People, G.R. No. 12830, Mar.
24, 1987). The refusal of the court to remand the case for preliminary investigation
can be controlled by certiorari and prohibition to prevent trial (Bandiala vs. CFI, L24652, Sept. 30, 1970).**."

As regards proceedings in the Sandiganbayan, particularly, another author observes


"Since absence of preliminary investigation is not a ground to quash the complaint

or information (Sec. 3, Rule 117, Rules of Court), proceedings upon such information
in the Sandiganbayan should be held in abeyance and the case remanded to the
Ombudsman, for him or the Special Prosecutor to conduct a preliminary
investigation (Luciano vs. Mariano, 40 SCRA 187, 201; Ilagan vs. Enrile, 139 SCRA
349; Sanciangco, Jr. vs. People, 149 SCRA 1, 3-4).

The principle was applied despite the fact that trial on the merits had begun and the
prosecution had already presented four witnesses. The trial was ordered suspended
pending the preliminary investigation (Go vs. Court of Appeals, G.R. No. 101837,
February 11, 1992)."

Considering that the invalidity of the preliminary investigation "did not impair the
validity of the informations or otherwise render it defective, ** (m)uch less did it
affect the jurisdiction of the Court **," the only effect, to repeat, being the
imposition on the latter of the obligation to suspend the proceedings and require
the holding of a proper preliminary investigation," it follows that all acts done by the
Court prior thereto must be accorded validity and effect, subject to the outcome of
the preliminary investigation yet to be conducted. The dispositions thus made by
respondent Sandiganbayan, i.e., its refusal to recall and quash the warrants of
arrest or to modify the conditions laid down by it for petitioner's cash bond; and its
confiscation of the cash deposit of petitioner for violation by the latter of the
conditions thereof, cannot be regarded as having been made without or in excess of
jurisdiction, or so whimsical, capricious or oppressive or so utterly without
foundation as to amount to grave abuse of discretion.13

The above-quoted ruling is based on our earlier decisions in the cited cases of
Luciano v. Mariano,14 Ilagan v. Enrile,15 Sanciangco, Jr. v. People16 and Go v. Court
of Appeals.17 In these cases, what was assailed was the lack of proper preliminary
investigation before the filing of the informations. The informations therein were
filed by the proper officer albeit without conducting the requisite preliminary
investigation. The case at bar, on the other hand, differs in that the officer who filed
the informations against petitioner, PCGG Commissioner Villarin, was not authorized
to do so.

This defect invoked by petitioner is one of the grounds for filing a motion to quash,
to wit:

Grounds. --- The accused may move to quash the complaint or information on any of
the following grounds:



x x x.

(d) That the officer who filed the information had no authority to do so;



x x x18

What was assailed in G.R. No. 105248 was the Sandiganbayans refusal to quash the
warrants and modify the conditions of the bail bond, as well as its confiscation of
the cash deposit. While we ruled therein that the PCGG Commissioner had no
authority to conduct the preliminary investigation, we did not squarely rule on his
lack of authority to file the informations. The issue before the Court was the
invalidity of the preliminary investigation and its consequences.

The Solicitor General, on behalf of the Sandiganbayan, argues that a petition for
certiorari is not the proper remedy against the denial of a motion to quash. He cites
the cases of Quion v. Sandiganbayan19 and Raro v. Sandiganbayan.20 That,
however, is the general rule, from which there are known exceptions. In both cases,
we qualified the rule by stating that "[i]t is only where there are special
circumstances clearly demonstrating the inadequacy of an appeal that the special
civil action of certiorari and prohibition may exceptionally be allowed."21

There are such special circumstances in the case at bar. Indeed, it would be a gross
infringement of petitioners right to due process, not to mention an utter waste of
time and judicial resources, if trial is allowed to proceed only to be nullified by the
higher courts later on upon the ground that the charges were filed by a person who
had no authority to file the same.

An information is defined as an accusation in writing charging a person with an

offense, subscribed by the prosecutor and filed with the court.22

As can be clearly gleaned, it is the prosecutor, not the PCGG, who subscribes and
files the information. In cases before the Sandiganbayan, the prosecutor is the
Ombudsman. As we have held, the crimes charged against petitioner do not relate
to alleged ill-gotten wealth, over which the PCGG had no jurisdiction.

All trial courts, the Sandiganbayan included, are reminded that they should take all
the necessary measures guaranteeing procedural due process from the inception of
custodial investigation up to rendition of judgment.23 They are not to turn a blind
eye to procedural irregularities which transpired before the criminal case reached
the court. The validity and sufficiency of the information are important.24

In the case at bar, the flaw in the information is not a mere remediable defect of
form, as in Pecho v. Sandiganbayan25 where the wording of the certification in the
information was found inadequate, or in People v. Marquez,26 where the required
certification was absent. Here, the informations were filed by an unauthorized party.
The defect cannot be cured even by conducting another preliminary investigation.
An invalid information is no information at all and cannot be the basis for criminal

In fact, where an information does not conform substantially to the prescribed form,
it is subject to quashal. More particularly, the information may be quashed where
the officer who filed it had no authority to do so.27

At all stages of the proceedings leading to his trial and conviction, the accused must
be charged and tried according to the procedure prescribed by law and marked by
observance of the rights given to him by the Constitution. In the same way that the
reading of the information to the accused during arraignment is not a useless
formality,28 so is the validity of the information being read not an idle ceremony.

Criminal due process requires that the accused must be proceeded against under
the orderly processes of law.29 In all criminal cases, the judge should follow the
step-by-step procedure required by the Rules. The reason for this is to assure that
the State makes no mistake in taking the life or liberty except that of the guilty.30

The case of Cruz, Jr. v. Sandiganbayan31 is directly in point:

Consequently, the amended information that was filed against petitioner did not fall
under the category of criminal actions for recovery of ill-gotten wealth filed against
a member of the family of President Marcos, relatives, subordinates or close
associates who took advantage of their office or authority as contemplated under
Section 2(a) of Executive Order No. 1.

What the petitioner is actually charged with is for a violation of Republic Act No.
3019. Public respondent PCGG does not pretend that the President assigned to it
this particular case against the petitioner for investigation and prosecution in
accordance with Section 2(b) of Executive Order No. 1.

Moreover, an examination of the complaint filed with respondent PCGG, as well as

the affidavits, counter-affidavits and exhibits submitted at the preliminary
investigation show that there is no evidence at all that this alleged violation is
crony-related, committed by petitioner by taking advantage of his public office, and
was committed in relation with the ill-gotten wealth being sought to be recovered as
aforestated. There is, therefore, no evidence in the hands of the respondent PCGG
to justify the amendment of the information.

Indeed, the said amendment appears to be an afterthought to make it fall under the
type of offenses respondent PCGG may investigate and prosecute under the law. It
is a fundamental principle that when on its face the information is null and void for
lack of authority to file the same, it cannot be cured nor resurrected by an
amendment. Another preliminary investigation must be undertaken and thereafter,
based on evidence adduced, a new information should be filed.

Consequently all the actions respondent PCGG had taken in this case including the
filing of the information and amended information with the respondent court should
be struck down.32

Recently, we ruled that the infirmity in the information caused by lack of authority
of the officer signing it cannot be cured by silence, acquiescence or even by express
consent. A new information must be filed by the proper officer. Thus:

xxx xxx xxx. It is a valid information signed by a competent officer, among other
requisites, which confers jurisdiction on the court over the person of the accused
(herein petitioner) and the subject matter of the accusation. In consonance with this
view, an infirmity in the information, such as lack of authority of the officer signing
it, cannot be cured by silence, acquiescence, or even by express consent.

In fine, there must have been a valid and sufficient complaint or information in the
former prosecution. If, therefore, the complaint or information was insufficient
because it was so defective in form or substance that the conviction upon it could
not have been sustained, its dismissal without the consent of the accused cannot be
pleaded. As the fiscal had no authority to file the information, the dismissal of the
first information would not be a bar in petitioners subsequent prosecution. Jeopardy
does not attach where a defendant pleads guilty to a defective indictment that is
voluntarily dismissed by the prosecution.33

The Sandiganbayan also committed grave abuse of discretion when it abruptly

terminated the reinvestigation being conducted by Prosecutor Lucero. It should be
recalled that our directive in G.R. No. 105248 for the holding of a preliminary
investigation was based on our ruling that the right to a preliminary investigation is
a substantive, rather than a procedural right. Petitioners right was violated when
the preliminary investigation of the charges against him were conducted by an
officer without jurisdiction over the said cases. It bears stressing that our directive
should be strictly complied with in order to achieve its objective of affording
petitioner his right to due process.

The Sandiganbayan contends that petitioner waived his right to a proper

preliminary investigation. This is untenable.1wphi1 The records show that
petitioner was unable to attend the clarificatory hearings on June 2 and 5, 2000
simply due to lack of notice. Prosecutor Lucero herself admits that Atty. Borromeo,
to whom she initially served notice of the hearing, did not represent petitioner in
Criminal Cases Nos. 13406-13429. Effectively, petitioner was only notified of the
clarificatory hearing scheduled on June 9, 2000. That setting, however, no longer
materialized because the day before, the Sandiganbayan prematurely terminated
the reinvestigation.

Finally, petitioner charges the Sandiganbayan with having prejudged the cases and
deprived him of his right to due process. Considering the defective nature of the
informations in the criminal cases below, there is no more need to pass upon this

last assignment of error. The Sandiganbayan has committed grave abuse of

discretion in refusing to quash the informations against petitioner. In the exercise of
their discretion, all courts are admonished to uphold the law and procedure and to
do what is fair and just.34 The Sandiganbayan failed in this regard.

WHEREFORE, in view of the foregoing, the petition is GRANTED. The assailed orders
of the Sandiganbayan dated June 8, 2000 are ANNULLED and SET ASIDE.

RAFAEL YAPDIANGCO, petitioner-appellant,


If the last day in the period of prescription of a felony falls on a Sunday or legal
holiday, may the information be filed on the next working day?

Stated otherwise, the issue in this appeal from a decision of the Court of First
Instance of Rizal Branch IX at Quezon City is whether or not a Sunday or a legal
holiday is a legal efficient cause which interrupts the prescription of an offense.

On February 1, 1965, the City Fiscal of Quezon City filed before the City Court an
information for slight physical injuries allegedly committed by the petitionerappellant on December 2, 1964 against Mr. Ang Cho Ching.

On September 10, 1965, the petitioner-appellant moved to quash the criminal

prosecution on the ground that the information having been filed on the sixty first

day following the commission of the offense, the sixty days prescriptive period had

On September 14, 1965, the City Court of Quezon City denied the motion to quash
stating that the 60th day fell on a Sunday and considering the rule that when the
last day for the filing of a pleading falls on a Sunday, the same may be filed on the
next succeeding business day, the action had not prescribed.

After a motion for reconsideration was denied by the City Court, the petitionerappellant filed a petition for certiorari and mandamus with preliminary injunction
before the Court of First Instance of Rizal.

On July 11, 1966, the Court of First Instance of Rizal dismissed the petition. A motion
for reconsideration was subsequently denied. Hence, this appeal.

The petitioner-appellant raised the following assignments of errors:







Under Article 90 of the Revised Penal Code, light offenses prescribe in two months.
Article 13 of the Civil Code provides that when the law speaks of months, it shall be
understood that months are of thirty days each

Article 91 of the Revised Penal Code reads:

ART. 91.
Computation of prescription of offenses.The Period of Prescription
shall commence to run from the day on which the crime is discovered by the
offended party, the authorities or their agents, and shall be interrupted by the filing
of the complaint or information, and shall commence to run again when such
proceedings terminate without the accused being convicted or acquitted, or are
unjustifiably stopped for any reason not imputable to him.

The term of prescription shall not run when the offender is absent from the
Philippine Archipelago.

In support of his three assignments of errors which he discusses jointly, the

petitioner-appellant argues:




the fact that the 60th day was a Sunday did not interrupt nor stop the
running of the prescriptive period, for

as a matter of statutory articulation a Sunday or holiday is not recognized as
legally efficient cause to interrupt prescription;

under the principle of inclusio unius exclusion alterius, the single exception of
offender's absence specified in Article 91 of the Revised Penal Code excludes any
other cause sufficient to interrupt prescription;

under the specific and controlling jurisprudence of the cases that the last day
of prescriptive period is a Sunday or a holiday does not interrupt prescription

15 AM. Jur., Section 346, page 34:

The statute of limitations run from the time the offense is committed until the
prosecution is commenced.

Ibid., Section 357, page 37:

The running of the statute of limitation can be prevented only by the means or for
the reasons specified therein.

Ibid., Section 342, page 32:

Statutes of stations in criminal cases differ from those in civil cases. In civil cases
they are statutes of repose, while in criminal cases they create a bar to the
prosecution. ...

As a general rule, exceptions will not be implied to the statutes of stations of

criminal offenses, and hence, in criminal prosecutions unless the statute of stations
contains an exception or condition that will ton its operation, the running of the
statute is not interrupted, save only by indictment or other rsufficient procedure
commencing the prosecution of the offense. After the statute has commenced to
run it will not be interrupted by the happening of any subsequent event or
disability ...

45 Century Digest, Time, Section 41:

When an action would be barred on Sunday, that day must be excluded from the
count and the action brought on the Saturday preceding, to save the bar. (Allen vs.
Elliot, 67 Ala. 432.)

Where the year in which to begin an action expires on Sunday, the action must be
begun on the preceding day. (William vs. Lane, 87 Wis. 152, 58 NW 77.)

under the pervasive criminal law principle of liberal construction of penal
statutes in favor of the accused the conclusion is evident that the exception clause
to the prescriptive rule in Article 91 of the Revised Penal Code should not be unduly
stretched and strained to include exceptions not specified nor as much intimitated
in the statute.

U.S. vs. Abad Santos, 36 Phil 243:

Criminal statutes are to be strictly construed no persons should be brought within

the terms who is not clearly within them nor should any act be pronounced criminal
when it is not made so.

extinctive or acquisitive prescription is not similar to reglementary periods
provided in the Rules of Court or in any other statutes, hence, may not be extended
under the "next business day theory". Thus, it cannot be said under our system that
a party has a right to move, and the court the corresponding authority to grant an
extension of a period of prescription.

As against these arguments of the petitioner-appellant, the respondents cite the

following provision of the Revised Administrative Code to sustain their side:

SEC. 31.
Pretermission of holiday.- where the day, or the last day, for doing any
act required or permitted by law falls on a holiday, the act may be done on the next
succeeding business day.

The law requires or permits the filing of the information within two months or sixty
days from the date the crime was discovered by the offended party. Since the 60th
day or last day for the filing of the information in this case fell on a holiday,
according to the respondents-appellees the law should allow the filing of charges to
be done on the next succeeding business day.

If we follow the ordinary rule of time computation based on the common law, which,
in construing statutes of limitations excludes the first day and includes the last day
unless the last day is dies non in which event the following day is included, the
stand of the respondents-appellees would be correct.

As pointed out by the respondents-appellees, Section 1, Rule 28 of the former Rules

of Court provided:




How to compute timeIn computing any period of time prescribed or allowed by

these rules, by order of court, or by any applicable statute, the day of the act,
event, or default after which the designated period of time begins to run is not to be
included. The last day of the period so computed is to be included, unless it is a
Sunday or a legal holiday, in which event the time shall run until the end of the next
day which is neither a Sunday nor a holiday.

After carefully considering all the foregoing, we find the arguments of the
petitioners-appellants meritorious. We are not dealing in this case with a simple rule
on when a pleading may be filed.

The case at hand does not involve the simple issue of when to do an act. It deals
with the prescription of a criminal action. Under unquestioned authorities, the
question to be resolved is when the State is deemed to have lost or waived its right
to prosecute an act prohibited and punished by law. (People v. Moran, 44 Phil. 387,
406-7; People v. Parel 44 Phil. 437, 445; People v. Montenegro, 68 Phil. 659).
Wharton, in his work on Criminal Pleading and Practice, quoted in People U. Moran
has this to say about the nature of the statute of limitations in criminal actions:

We should at first observe that a mistake is sometimes made in applying to statutes

of limitation in criminal suits the construction that has been given to statutes of
lirmitation in civil suits. The two classes of statutes, however, are essentially
different. In civil suits the statute is interposed by the legislature as an impartial
arbiter between two contending parties. In the construction of the statute,
therefore, there is no intendment to be made in favor of either party. Neither grants
the right to the other; there is therefore no grantor against whom the ordinary
presumptions of construction are to be made. But it is otherwise when a statute of
limitation is granted by the State. Here the State is the grantor, surrendering by act
of grace its rights to prosecute, and declaring the offense to be no longer the
subject of prosecution. The statute is not a statute of process, to be scantily and
grudgingly applied, but an amnesty, declaring that after a certain time oblivion shall
be cast over the offense; that the offender shall be at liberty to return to his
country, and resume his immunities as a citizen; and that from henceforth he may
cease to preserve the proofs of his innocence, for the proofs of his guilt are blotted
out. Hence it is that statutes of limitation are to be liberally construed in favor of the
defendant not one because such liberality of construction belongs to all acts of
amnesty and grace, but because the very existence of the statute is a recognition
and notification by the legislature of the fact that time, while it gradually wears out
proofs and innocence has assigned to it fixed and positive periods in which it
destroys proofs of guilt. Independently of these views, it must be remembered that
delay in instituting prosecutions is not only productive of expense to the State, but
of peril to public justice in the attenuation and distortion, even by mere natural
lapse of memory, of testimony. It is the policy of the law that prosecutions should be
prompt and that statutes enforcing such promptitude should be vigorously
maintained. They are not merely acts of grace, but checks imposed by the State
upon itself, to exact vigilant activity from its subalterns and to secure for criminal
trials the best evidence that can be obtained. (44 Phil. 405-406; emphasis supplied).

The rules contained in Section 31 of the Revised Administrative Code and Section 1,
Rule 28 of the Old Rules of Court deal with the computation of time allowed to do a
particular act, such as, the filing of tax returns on or before a definite date, filing an
answer to a complaint, taking an appeal, etc. They do not apply to lengthen the
period fixed by the State for it to prosecute those who committed a crime against it.
The waiver or loss of the right to prosecute such offenders is automatic and by
operation of law. Where the sixtieth and last day to file an information falls on a
Sunday or legal holiday, the sixty-day period cannot be extended up to the next
working day. Prescription has automatically set in. The remedy is for the fiscal or
prosecution to file the information on the last working day before the criminal
offense prescribes.

WHEREFORE, the petition for certiorari and mandamus is granted. The questioned
order of the respondent court is SET ASIDE. The motion to quash is GRANTED and
the information before the city court is DISMISSED.


PEDRO ACHARON, petitioner-appellant,

FIDEL P. PURISIMA, ET AL., respondents-appellees.

Bienvenido F. Baez for petitioner-appellant.

Ortiz and Golingan for respondents-appellees.
Fidel P. Purisima for and in his own behalf as respondent-appellee.


Pedro Acharon seeks to restrain the Municipal Judge of General Santos, Cotabato,
from trying certain criminal cases filed against him for violation of Commonwealth
Act No. 303 pending final disposal of the instant petition for certiorari.

The present petition requires an inquiry into the antecedents of the incident that
gave rise to the petition for certiorari instituted by Pedro Acharon before the Court
of First Instance of Cotabato.

Acharon was charged with a violation of Commonwealth Act No. 303 in four
separate informations before the Municipal Court of General Santos, Cotabato,
which were set for preliminary investigation on April 28, 1962. Sometime prior to
said date, Acharon filed a motion to quash on the ground of lack of jurisdiction
because (1) the administrative remedies provided for by the rules and regulations
promulgated under the Minimum Wage Law as a condition precedent for the filing of

a criminal action thereunder were not exhausted, and (2) the certification issued by
the Secretary of Labor as a prerequisite for an action to be taken under
Commonwealth Act No. 303 has not been obtained. This motion was denied. And his
motion for reconsideration having been discharged, Acharon filed a petition for
certiorari before the Court of First Instance of Cotabato alleging lack of jurisdiction
or grave abuse of discretion on the part of the municipal court.

The petition was given due course and in due time respondents filed their answer
justifying the action taken by the Municipal Court of General Santos. However, after
the court a quo has set the case for hearing and allowed respondents to submit a
memorandum in their behalf, it dismissed the petition on the ground that neither
the informations filed before the court of origin nor the order denying the motion to
quash were incorporated into the petition thus rendering it impossible for the court
to render a decision on the merits. The court said: "For this failure of the petitioner
to plead the complaint and the order in question, from which the Court could have
gathered the facts which constitute the alleged lack of jurisdiction and grave abuse
of discretion, the court is not in a position to render a judgment in this case." From
this order of dismissal Acharon took the present appeal and now petitions that,
pending the disposal of this appeal, the Municipal Court of General Santos be
enjoined from hearing the criminal cases above adverted to.

We are of the opinion that this appeal has no merit for the reason that the step
Acharon should have taken to obviate the technical defect observed by the court a
quo on which it predicate its order of dismissal was not to appeal but to file a
motion for reconsideration furnishing the court with the two pleadings which it
considered vital for an intelligent determination of the case. Apparently, this was
not done because no such step appears in the record. Moreover, when the motion to
quash filed by Acharon to nullify the criminal cases filed against him was denied by
the Municipal Court of General Santos his remedy was not to file a petition for
certiorari but to go to trial without prejudice on his part to reiterate the special
defenses he had invoked in his motion and, if, after trial on the merits, an adverse
decision is rendered, to appeal therefrom in the manner authorized by law. This is
the procedure that he should have followed as authorized by law and precedents.
Instead, he took the usual step of filing a writ of certiorari before the Court of First
Instance which in our opinion is unwarranted it being contrary to the usual course of
law. We find, therefore, of no useful purpose to continue with the present appeal
making the parties spend unnecessarily for the printing of their briefs only to have it
dismissed in the end. As a corollary, we likewise find unnecessary to issue the writ
of preliminary injunction prayed for.1wph1.t

WHEREFORE, the present appeal is dismissed. The petition for preliminary injunction
is denied. No costs.


Before us is a petition for review on certiorari seeking to reverse and set aside the
Decision1 of the Court of Appeals dated August 24, 2001 in CA-G.R. SP No. 65034.2
The said Decision of the appellate court granted respondent Lacson's Second
Amended Petition for Prohibition with application for the issuance of a Temporary
Restraining Order, (1) assailing the Order issued by Judge Herminia Pasamba of the
Regional Trial Court (RTC) of Manila, Branch 40, that allowed the continuation of the
re-investigation of Criminal Cases Nos. Q-99-81679 to Q-99-81689 or the Kuratong
Baleleng cases; and (2) praying for the dismissal of Criminal Cases Nos. Q-01101102 to Q-01-101112 entitled "People of the Philippines v. Panfilo Lacson, et al."
pending before Branch 81 of the RTC of Quezon City.

The following appear in the records of this case:

(1) On May 18, 1995, then PNP Director-General Recaredo Sarmiento II announced,
in a press conference, the killing of eleven (11) members of the Kuratong Baleleng
Gang (KBG) in a shootout with police elements near the fly-over along
Commonwealth Avenue, Quezon City at about 4:00 A.M. that day.3

(2) On May 22, 1995, morning papers carried the news that SPO2 Eduardo delos
Reyes had claimed that the killing of the eleven (11) gang members was a "rub-out"
or summary execution and not a shootout.4

(3) In an affidavit he executed the following day, delos Reyes stated, among others,
that he was part of a composite police team called the Anti-Bank Robbery and
Intelligence Task Force Group (ABRITFG) composed of elements of the National
Capital Region Command (NCRC) and headed by Chief Superintendent Jewel

Canson; Traffic Management Command, headed by Senior Superintendent Francisco

Subia, Jr.; Presidential Anti-Crime Commission (PACC), headed by Chief
Superintendent Panfilo M. Lacson; Central Police District Command, headed by Chief
Superintendent Ricardo de Leon; and Criminal Investigation Command (CIC),
headed by Chief Superintendent Romeo Acop. Delos Reyes claimed that the police
team arrested the eleven (11) gang members in early morning of May 18, 1995 at
the gang's safe house in Superville Subdivision, Paraaque; that after their arrest,
the gang members were made to board two vans, their hands tied behind their
backs, and brought initially to Camp Crame where a decision to summarily execute
them was made, and later to Commonwealth Avenue where they were shot to death
by elements of ABRITFG.5

(4) On May 26, 1995, SPO2 Corazon dela Cruz, another CIC investigator, executed
an affidavit corroborating the material allegations of delos Reyes. Dela Cruz claimed
that she was with delos Reyes from the time the eleven (11) KBG members were
arrested up to the time they were killed in Commonwealth Avenue.6

(5) On May 31, 1995, Armando Capili, a reporter of Remate, executed an affidavit
stating that he was present when the KBG members were arrested in Superville

(6) On June 1, 1995, Chief Superintendent Job A. Mayo, PNP Director for
Investigation, filed murder charges with the Office of the Ombudsman against
ninety-seven (97) officers and personnel of ABRITFG. The next-of-kin of the slain
KBG members also filed murder charges against the same officers and personnel.8

(7) Ombudsman Aniano Desierto then created a panel of investigators to conduct a

preliminary investigation of the murder charges. The panel was headed by Deputy
Ombudsman for Military Affairs Bienvenido Blancaflor. On October 20, 1995, the
panel issued a resolution recommending the dismissal of the charges for lack of
probable cause.

(8) Ombudsman Desierto referred the resolution for review by a panel composed of
Over-all Deputy Ombudsman Francisco Villa as head, and Special Prosecutor
Leonardo Tamayo and Assistant Ombudsman Abelardo Aportadera as members. On
November 20, 1995, the review panel reversed the Blancaflor resolution and found

probable cause for the prosecution of multiple murder charges against twenty-six
(26) officers and personnel of ABRITFG.9

(9) On November 2, 1995, the Ombudsman filed before the Sandiganbayan eleven
(11) Informations for MURDER, docketed as Criminal Cases Nos. 23047 to 23057,
against respondent Panfilo M. Lacson and twenty-five (25) other accused. All
twenty-six (26) of them were charged as principals.10 The following appear to be
the victims: Meleubren Sorronda in Crim. Case No. 23047; Welbor Elcamel in Crim.
Case No. 23048; Carlito Alap-ap in Crim. Case No. 23049; Jevy Redillas in Crim. Case
No. 23050; Ray Abalora in Crim. Case No. 23051; Joel Amora in Crim. Case No.
23052; Alex Neri in Crim. Case No. 23053; Rolando Siplon in Crim. Case No. 23054;
Manuel Montero in Crim. Case No. 23055; Sherwin Abalora in Crim. Case No. 23056;
and Pacifico Montero in Crim. Case No. 23057.

(10) Upon motion of the respondent, the criminal cases were remanded to the
Ombudsman for reinvestigation. On March 1, 1996, Amended Informations were
filed against the same twenty-six (26) suspects but the participation of respondent
Lacson was downgraded from principal to accessory. Arraignment then followed and
respondent entered a plea of not guilty.11

(11) With the downgrading of charges against him, respondent Lacson questioned
the jurisdiction of the Sandiganbayan to hear the criminal cases as none of the
"principal" accused in the Amended Informations was a government official with a
Salary Grade (SG) 27 or higher, citing Section 2 of R. A. No. 7975 then prevailing.
Accordingly, the Sandiganbayan ordered the cases transferred to the Regional Trial

(12) The Office of the Special Prosecutor filed a motion for reconsideration of the
transfer. Pending resolution of the motion, R. A. No. 8249 took effect on February 23,
1997, amending R. A. No. 7975. In particular, the amendatory law deleted the word
"principal" in Section 2 of R. A. No. 7975, thereby expanding the jurisdiction of the
Sandiganbayan to include all cases where at least one of the accused, whether
principal, accomplice or accessory, is a government official of Salary Grade (SG) 27
or higher. The amendment is made applicable to all cases pending in any court in
which trial has not yet begun as of the date of its approval.13

(13) In Lacson v. Executive Secretary,14 respondent Lacson challenged the

constitutionality of the amendment and contended that the Sandiganbayan had no
jurisdiction over the criminal cases. This Court, while dismissing the constitutional
challenge, nonetheless ordered the transfer of the criminal cases to the Regional
Trial Court on the ground that the Amended Informations for murder failed to
indicate that the offenses charged therein were committed in relation to, or in
discharge of, the official functions of the respondent, as required by R. A. No. 8249.

(14) Criminal Cases Nos. 23047 to 23057 were raffled off to Branch 81 of the
Regional Trial Court of Quezon City, then presided by Judge, now Associate Justice of
the Court of Appeals, Wenceslao Agnir, Jr., and re-docketed as Criminal Cases Nos.
Q-99-81679 to Q-99-81689.

(15) Before the accused could be arraigned, prosecution witnesses Eduardo de los
Reyes, Corazon de la Cruz, Armando Capili and Jane Gomez recanted their affidavits
which implicated respondent Lacson in the murder of the KBG members.

On the other hand, private complainants Myrna Abalora,15 Leonora Amora,16

Nenita Alap-ap,17 Imelda Montero,18 Margarita Redillas,19 Carmelita Elcamel20
and Rolando Siplon21 also executed their respective affidavits of desistance
declaring that they were no longer interested to prosecute these cases.22

(16) Due to these developments, the twenty-six (26) accused, including respondent
Lacson, filed five separate but identical motions to (1) make a judicial determination
of the existence of probable cause for the issuance of warrants of arrest; (2) hold in
abeyance the issuance of the warrants, and (3) dismiss the cases should the trial
court find lack of probable cause.

(17) The records of the case before us are not clear whether the private offended
parties were notified of the hearing on March 22, 199923 held by Judge Agnir to
resolve the motions filed by respondent Lacson and the other accused.

(18) During the said hearing, the private offended parties who desisted do not
appear to have been presented on the witness stand. In their stead, Atty. Godwin
Valdez testified that he assisted them in preparing their affidavits of desistance and
that he signed said affidavits as witness. On the other hand, Atty. Aurora Bautista of

the Philippine Lawyer's League presented the affidavits of recantation of

prosecution witnesses Eduardo de los Reyes, Armando Capili and Jane Gomez. Only
prosecution witness Corazon de la Cruz testified to affirm her affidavit.24

(19) On March 29, 1999, Judge Agnir issued a Resolution25 dismissing Criminal
Cases Nos. Q-99-81679 to Q-99-81689, as follows:

"As already seen, the documents attached to the Informations in support thereof
have been rendered meaningless, if not absurd, with the recantation of the principal
prosecution witnesses and the desistance of the private complainants. There is no
more evidence to show that a crime has been committed and that the accused are
probably guilty thereof. Following the doctrine above-cited, there is no more reason
to hold the accused for trial and further expose them to an open and public
accusation. It is time to write finis to these cases and lay to rest the ghost of the
incident of May 18, 1995 so that all those involved--- the accused, the prosecution
witnesses and the private complainants alike--- may get on with their lives.

The Court is not unmindful of the admonition in the recent case of People vs. Court
of Appeals (G.R. No. 126005, January 21, 1999) where the Supreme Court said that
the general rule is that 'if the Information is valid on its face and there is no showing
of manifest error, grave abuse of discretion or prejudice on the part of the public
prosecutor, courts should not dismiss it for want of evidence, because evidentiary
matters should be presented and heard during the trial', and that the ruling in
Allado vs. Diokno 'is an exception to the general rule and may be invoked only if
similar circumstances are clearly shown to exist.'

This Court holds that the circumstances in the case at bench clearly make an
exception to the general rule.

WHEREFORE, in view of the foregoing, the Court finds no probable cause for the
issuance of the warrants of arrest against the accused or to hold them for trial.
Accordingly, the Informations in the above-numbered cases are hereby ordered


(20) On March 27, 2001, PNP Director Leandro R. Mendoza indorsed to the
Department of Justice the new affidavits of P/Insp. Ysmael S. Yu and P/S Insp.
Abelardo Ramos regarding the Kuratong Baleleng incident for preliminary
investigation. On the strength of this indorsement, Secretary of Justice Hernando B.
Perez formed a panel to investigate the matter. On April 17, 2001, the respondent
was subpoenaed to attend the investigation of Criminal Cases Nos. Q-99-81679 to

(21) On May 28, 2001, respondent Lacson, et al., invoking, among others, their
constitutional right against double jeopardy, filed a petition for prohibition with
application for temporary restraining order and/or writ of preliminary injunction with
the Regional Trial Court of Manila, primarily to enjoin the State prosecutors from
conducting the preliminary investigation. The petition was docketed as Civil Case
No. 01-100933 and raffled to Branch 40, presided by Judge Herminia V. Pasamba.28

(22) The plea for temporary restraining order was denied by Judge Pasamba in an
Order29 dated June 5, 2001, viz:

"After a study, this Court submits that the dismissal of Criminal Cases Nos. Q-9981679 to Q-99-81689 is not one on the merits and without any recorded
arraignment and entered plea on the part of the herein petitioners. The dismissal
was a direct consequence of the finding of the Quezon City RTC that no probable
cause exists for the issuance of warrants of arrest against petitioners herein and to
hold them for trial. The arraignment had with the Sandiganbayan does not put the
case in a different perspective since the Sandiganbayan was adjudged to be without
any jurisdiction to try the cases. It is the People of the Philippines who is the
complainant in the Kuratong Baleleng case and remains to be the complainant in
the present investigation initiated thru a letter of PNP Chief Mendoza dated March
27, 2001 (Exhibit "B") together with the sworn statements of witnesses Ramos and
Yu (Exhibits "2" and "3" - supportive of the refiling of the case (Exhibit "9").




Above considered, this Court finds petitioners have not preliminarily established
that they have a right to be preserved pending hearing on the injunctive relief.

WHEREFORE, the prayer for temporary restraining order is hereby DENIED.


(23) On June 6, 2001, eleven (11) Informations for murder involving the killing of the
same members of the Kuratong Baleleng gang were filed before the Regional Trial
Court of Quezon City and were docketed as Criminal Cases Nos. 01-101102 to 01101112. The new Informations charged as principals thirty-four (34) people,
including respondent Lacson and his twenty-five (25) other co-accused in Criminal
Cases Nos. Q-99-81679 to Q-99-81689. The criminal cases were assigned to Judge
Ma. Theresa L. Yadao.

(24) On the same day, respondent Lacson filed before the Court of Appeals a
petition for certiorari31 against Judge Pasamba, the Secretary of Justice, the PNP
Chief, State Prosecutors Ong and Zacarias, 2nd Assistant City Prosecutor Jamolin,
and the People of the Philippines. The said petition was amended to implead as
additional party-respondents State Prosecutor Claro Arellano and the RTC, Quezon
City, Branch 81 in which the Informations in Criminal Cases Nos. 01-101102 to 01101112 were filed.32

(25) The Second Amended Petition33 dated June 14, 2001 and admitted by the
Court of Appeals on June 26, 2001, alleged:

"The reliefs of certiorari, prohibition and injunction against the questioned Order
(Annex A) and the new Informations in Criminal Cases Nos. 01-101102 to 01-101112
pending before respondent Yadao (Annex B) are founded upon the grave abuse of
discretion by respondent Judge Pasamba of her discretion in its issuance, the
illegality of the proceedings of the respondent State Prosecutors as they cannot
revive complaints which had been dismissed over two (2) years from the date the
dismissal order was issued, and the invalidity of the new Informations for Murder
filed against petitioners and others, all in defiance of law and jurisprudence as
shown by the following:

(a) Respondent judge had ruled on the merits of the main prohibition action a quo
rendering the same moot and academic by concluding that the dismissal of Criminal
Cases Nos. Q-99-81679-Q-99-81689 by the QC RTC was not final and executory,
hence [i] the complaints therein can be reinvestigated, and [ii] petitioner's
arraignment while the case had not yet been remanded to the QC RTC and while the
Sandiganbayan had valid jurisdiction thereover [Criminal Cases No. 23047-2048]
was void, notwithstanding that the only issue in the TRO application was the
existence or lack of a valid complaint as defined in S1 and S3, Rule 110.

(b) Respondent Judge ruled that respondent State Prosecutors could proceed to reinvestigate and thereafter file new Informations on June 6, 2001 covering those
offenses subject of Criminal Cases Nos. Q-99-81679-Q-99-81689 on the basis of
affidavits filed after said cases were dismissed on March 29, 1999, despite the fact
that under Section 8, Rule 117, cases similar to those filed against the petitioner
and others (where the penalty imposable is imprisonment of six (6) years or more)
cannot be revived after two (2) years from the date the dismissal order was issued.

(c) Respondent Judge held that the petitioner had not shown a right to be preserved
despite evidence showing the short cuts taken by respondent State prosecutors in
re-investigating a dismissed case, in not complying with Rules in respect of its reopening, and in insisting that a valid complaint was filed in clear violation of the
Rules and case law thereon, and despite the fact that the petitioner had shown that
an inextendible deadline of June 5, 2001 was given him to file his counter-affidavit
without which his indictment for a non-bailable offense is assured because of DOJ
Secretary Hernando Perez's political schemes."34

(26) In the meantime, on June 8, 2001, respondent Lacson also filed with the RTCQC Branch 81 (presided by Judge Ma. Theresa Yadao), a Motion for Judicial
Determination of Probable Cause and in the absence thereof, to dismiss the cases
outright. Respondent Lacson, however, filed a Manifestation and Motion dated June
13, 2001 seeking the suspension of the proceedings before the trial court.35

(27) The Court of Appeals issued a temporary restraining order enjoining Judge
Yadao from issuing a warrant of arrest or conducting any proceeding or hearing in
Criminal Cases Nos. 01-101102 to 01-101112.36

(28) On August 24, 2001, the Court of Appeals (Special Third Division), rendered the
now assailed Decision. It characterized the termination of Criminal Cases Nos. Q-9981679 to Q-99-81689 as "provisional dismissal," and considered Criminal Cases Nos.
01-101102 to 01-101112 as mere revivals of the same. Applying Section 8, Rule 117
of the 2000 Revised Rules of Criminal Procedure, it dismissed the criminal cases
against the respondent, viz:

"In sum, this Court is of the considered view that the subject dismissal of [the]
criminal cases was provisional in nature and that the cases presently sought to be
prosecuted by the respondents are mere revival or re-opening of the dismissed
cases. The present controversy, being one involving "provisional dismissal" and
revival of criminal cases, falls within the purview of the prescriptive period provided
under Section 8, Rule 117 of the 2000 Revised Rules of Criminal Procedure. The
second paragraph of the said provision is couched in clear, simple and categorical
words. It mandates that for offenses punishable by imprisonment of more than six
(6) years, as the subject criminal cases, their provisional dismissal shall become
permanent two (2) years after the issuance of the order without the case having
been revived. It should be noted that the revival of the subject criminal cases, even
if reckoned from the DOJ's issuance of subpoenas to petitioner, was commenced
only on April 19, 2001, that is, more than two (2) years after the issuance, on March
29, 1999, of RTC-Quezon City's Resolution, provisionally dismissing the criminal
cases now sought to be revived. Applying the clear and categorical mandate of
Section 8, Rule 117, supra, such efforts to revive the criminal cases are now
definitely barred by the two-year prescriptive period provided therein.




WHEREFORE, the petition is GRANTED. As prayed for, the Temporary Restraining

Order earlier issued against the conduct of further proceedings in Criminal Cases
Nos. 01-101102 to 01-101112, including the issuance of warrants of arrest against
the petitioner, PANFILO M. LACSON, is hereby made PERMANENT. Accordingly, with
respect to said accused, the proceedings conducted by respondent State
Prosecutors in respect of the said criminal cases are declared NULL AND VOID and
the corresponding Informations, docketed as Criminal Cases Nos. 01-101102 to 01101112, entitled 'People of the Philippines vs. Panfilo M. Lacson, et al." and filed
before respondent Judge Maria Theresa L. Yadao of Branch 81 of the Regional Trial
Court of Quezon City, are hereby ordered DISMISSED.


The issue is whether Section 8, Rule 117 bars the filing of the eleven (11)
informations against the respondent Lacson involving the killing of some members
of the Kuratong Baleleng gang. This rule which took effect on December 1, 2000

"SEC. 8. Provisional dismissal.- A case shall not be provisionally dismissed except

with the express consent of the accused and with notice to the offended party.

The provisional dismissal of offenses punishable by imprisonment not exceeding six

(6) years or a fine of any amount, or both, shall become permanent one (1) year
after issuance of the order without the case having been revived. With respect to
offenses punishable by imprisonment of more than six (6) years, their provisional
dismissal shall become permanent two (2) years after issuance of the order without
the case having been revived."

Like any other favorable procedural rule, this new rule can be given retroactive
effect. However, this Court cannot rule on this jugular issue due to the lack of
sufficient factual bases. Thus, there is need of proof of the following facts, viz: (1)
whether the provisional dismissal of the cases had the express consent of the
accused; (2) whether it was ordered by the court after notice to the offended party,
(3) whether the 2-year period to revive has already lapsed, and (4) whether there is
any justification for the filing of the cases beyond the 2-year period.

There is no uncertainty with respect to the fact that the provisional dismissal of the
cases against respondent Lacson bears his express consent. It was respondent
Lacson himself who moved to dismiss the subject cases for lack of probable cause
before then Judge Agnir, hence, it is beyond argument that their dismissal bears his
express consent.

The records of the case, however, do not reveal with equal clarity and
conclusiveness whether notices to the offended parties were given before the cases
against the respondent Lacson were dismissed by then Judge Agnir. It appears from
the resolution of then Judge Agnir that the relatives of the victims who desisted did
not appear during the hearing to affirm their affidavits. Their affidavits of desistance

were only presented by Atty. Godwin Valdez who testified that he assisted the
private complainants in preparing their affidavits and he signed them as a witness.
It also appears that only seven (7) persons submitted their affidavits of desistance,

a. Myrna Abalora, mother of the victims Sherwin Abalora and Rey Abalora

b. Carmelita Elcamel, wife of Wilbur Elcamel;

c. Leonora Amora, mother of victim Joel Amora;

d. Nenita Alap-ap, wife of victim Carlito Alap-ap;

e. Imelda Montero, wife of victim Manuel Montero;

f. Margarita Redillas, mother of victim Hilario Jevy Redillas; and

g. Rolando Siplon.

From the records of the case before us, it cannot be determined whether there were
affidavits of desistance executed by the relatives of the three (3)38 other victims,
namely: Meleubren Soronda, Pacifico Montero, Jr., and Alex Neri. The same records
do not show whether they were notified of the hearing or had knowledge thereof. To
be sure, it is not fair to expect the element of notice to be litigated before then
Judge Agnir for Section 8, Rule 117 was yet inexistent at that time.

The fact of notice to the offended parties was not raised either in the petition for
prohibition with application for temporary restraining order or writ of preliminary
injunction filed by respondent Lacson in the RTC of Manila, presided by Judge
Pasamba, to enjoin the prosecutors from reinvestigating the said cases against him.
The only question raised in said petition is whether the reinvestigation will violate

the right of respondent Lacson against double jeopardy. Thus, the issue of whether
or not the reinvestigation is barred by Section 8, Rule 117 was not tackled by the

Nor was the fact of notice to the offended parties the subject of proof after the
eleven (11) informations for murder against respondent Lacson and company were
revived in the RTC of Quezon City presided by Judge Yadao. There was hardly any
proceeding conducted in the case for respondent Lacson immediately filed a
petition for certiorari in the appellate court challenging, among others, the authority
of Judge Yadao to entertain the revived informations for multiple murder against

This is not to be wondered at. The applicability of Section 8, Rule 117 was never
considered in the trial court. It was in the Court of Appeals where respondent Lacson
raised for the first time the argument that Section 8, Rule 117 bars the revival of the
multiple murder cases against him. But even then, the appellate court did not
require the parties to elucidate the crucial issue of whether notices were given to
the offended parties before Judge Agnir ordered the dismissal of the cases against
respondent Lacson and company. To be sure, there is a statement in the Decision of
the appellate court to the effect that "records show that the prosecution and the
private offended parties were notified of the hearing x x x."39 It is doubtful whether
this finding is supported by the records of the case. It appears to be contrary to
Judge Agnir's finding that only seven (7) of the complainants submitted affidavits of

Indeed, the records of this case are inconclusive on the factual issue of whether the
multiple murder cases against respondent Lacson are being revived within or
beyond the 2-year bar. The reckoning date of the 2-year bar has to be first
determined - - - whether it is from the date of the Order of then Judge Agnir
dismissing the cases or from the dates the Order were received by the various
offended parties or from the date of the effectivity of the new rule.

If the cases were revived only after the 2-year bar, the State must be given the
opportunity to justify its failure to comply with said timeline. The new rule fixes a
timeline to penalize the State for its inexcusable delay in prosecuting cases already
filed in courts. It can therefore present compelling reasons to justify the revival of
cases beyond the 2-year bar.

In light of the lack of or the conflicting evidence on the various requirements to

determine the applicability of Section 8, Rule 117, this Court is not in a position to
rule whether or not the re-filing of the cases for multiple murder against respondent
Lacson should be enjoined. Fundamental fairness requires that both the prosecution
and the respondent Lacson should be afforded the opportunity to be heard and to
adduce evidence on the presence or absence of the predicate facts upon which the
application of the new rule depends. They involve disputed facts and arguable
questions of law. The reception of evidence on these various issues cannot be done
in this Court but before the trial court.

IN VIEW OF THE FOREGOING, the case at bar is remanded to the RTC - Quezon City,
Branch 81 so that the State prosecutors and the respondent Lacson can adduce
evidence and be heard on whether the requirements of Section 8, Rule 117 have
been complied with on the basis of the evidence of which the trial court should
make a ruling on whether the Informations in Criminal Cases Nos. 01-101102 to 01101112 should be dismissed or not. Pending the ruling, the trial court is restrained
from issuing any warrant of arrest against the respondent Lacson. Melo and Carpio,
JJ., take no part.



JOSE MA. VELOSO, defendant-appellant.

Claro M. Recto for appellant.

Attorney-General Villa-Real for appellee.


This is an appeal from a judgment of the Court of First Instance of Manila finding the
accused, Jose Ma. Veloso, guilty of the crime of resistance of the agents of the
authority, in violation of article 252 of the Penal Code, and sentencing him to four
months and one day imprisonment, arresto mayor, with the accessory penalties, to

pay a fine of P200, with the corresponding subsidiary imprisonment in case of

insolvency, and to pay the costs. The errors assigned by counsel for the accused as
appellant, go to the proposition that the resistance of the police was justifiable on
account of the illegality of the John Doe search warrant.

In May, 1923, the building located at No. 124 Calle Arzobispo, City of Manila, was
used by an organization known as the Parliamentary Club. Jose Ma. Veloso was at
that time a member of the House of Representative of the Philippine Legislature. He
was also the manager of the club.

The police of Manila had reliable information that the so-called Parliamentary Club
was nothing more than a gambling house. Indeed, on May 19, 1923, J. F. Townsend,
the chief of the gambling squad, had been to the club and verified this fact. As a
result, on May 25, 1923, Detective Andres Geronimo of the secret service of the City
of Manila, applied for, and obtained a search warrant from Judge Garduo of the
municipal court. Thus provided, the police attempted to raid the Parliamentary Club
a little after three in the afternoon of the date above- mentioned. They found the
doors to the premises closed and barred. Accordingly, one band of police including
policeman Rosacker, ascended a telephone pole, so as to enter a window of the
house. Other policemen, headed by Townsend, broke in the outer door.

Once inside the Parliamentary Club, nearly fifty persons were apprehended by the
police. One of them was the defendant Veloso. Veloso asked Townsend what he
wanted, and the latter showed him the search warrant. Veloso read it and told
Townsend that he was Representative Veloso and not John Doe, and that the police
had no right to search the house. Townsend answered that Veloso was considered as
John Doe. As Veloso's pocket was bulging, as if it contained gambling utensils,
Townsend required Veloso to show him the evidence of the game. About five
minutes was consumed in conversation between the policemen and the accused the
policemen insisting on searching Veloso, and Veloso insisting in his refusal to submit
to the search.

At last the patience of the officers was exhausted. So policeman Rosacker took hold
of Veloso only to meet with his resistance. Veloso bit Rosacker in the right forearm,
and gave him a blow in another part of the body, which injured the policeman quite
severely. Through the combined efforts of Townsend and Rosacker, Veloso was
finally laid down on the floor, and long sheets of paper, of reglas de monte, cards,
cardboards, and chips were taken from his pockets.

All of the persons arrested were searched and then conducted to the patrol wagons.
Veloso again refused to obey and shouted offensive epithets against the police
department. It was necessary for the policemen to conduct him downstairs. At the
door, Veloso resisted so tenaciously that three policemen were needed to place him
in the patrol wagon. 1awph!l.net

In the municipal court of the City of Manila, the persons arrest in the raid were
accused of gambling. All of them were eventually acquitted in the Court of First
Instance for lack of proof, with the sole exception of Veloso, who was found guilty of
maintaining a gambling house. This case reached the appellate court where the
accused was finally sentenced to pay a fine of P500. (No. 22163. 1 )

The foregoing are the principal facts taken mainly from the findings of the trial
judge, the Honorable Vicente Nepomuceno. Counsel for the appellant makes no
effort to impugn these findings, except that he stresses certain points as more
favorable to the case of his client. The defense, as previously indicated, is planted
squarely on the contention that since the name of Veloso did not appear in the
search warrant, but instead the pseudonym John Doe was used, Veloso had a legal
right to resist the police by force. The nature of this defense makes it advisable to
set forth further facts, relating particularly to the search warrant, before passing to
the law.

There are found in the record the application for search warrant, the affidavit for
search warrant, and the search warrant. The application reads:








Testimony taken before Hon. L. Garduo, Judge, Municipal Court, Manila.

Andres Geronimo, being duly sworn, testifies as follows:

Q. What is your name, residence and occupation? A. Andres Geronimo, No. 47

Revellin, detective.

Q. Are you the applicant of this search warrant? A. Yes, sir.

Q. Do you know the premises situated at No. 124 Calle Arzobispo, District of W. C.,
City of Manila? A. Yes. sir.

Q. Do you know who occupies said premises? A. I do not know. According to the
best of my information the house is occupied by John Doe.

Q . What are your reasons for applying for this search warrant? A. It has been
reported to me by a person whom I consider to be reliable that in said premises
there are instruments and devices used in gambling games, such as cards, dice,
chips, lottery tickets, lists of drawing and lists used in prohibited games kept. It has
been reported to me by a person whom I consider to be reliable that there are or
there will be gambling conducted in said premises. The aforesaid premises are
known as gambling house. I have watched the foregoing premises and believed it to
be a gambling house and a place where instruments and devices used in gambling
games, such as cards, dice, chips, lottery tickets, lists of drawing and lists used in
prohibited games are kept.

I, Andres Geronimo, being duly sworn, depose and say that I have read the
foregoing questions and answers and that I find the same to correct and true to the
best of my knowledge and belief.


Subscribed and sworn to before me this 25th day of May, 1923.



Judge, Municipal Court

The affidavit and the search warrant are so nearly alike that it will suffice to copy
the search warrant alone. This document reads:






JOHN DOE, Defendant.



The People of the Philippine Islands, to any member of the

Police Force of the City of Manila.


Proof by affidavit having this day been made before me by Andres Geronimo that he
has good reason to believe and does believe that John Doe has illegally in his
possession in the building occupied by him and which is under his control, namely in
the building numbered 124 Calle Arzobispo, City of Manila, Philippines Islands,
certain devices and effects used in violation of the Gambling Law, to wit: money,
cards, chips, reglas, pintas, tables and chairs and other utensils used in connection
with the game commonly known as monte and that the said John Doe keeps and
conceals said devices and effects with the illegal and criminal intention of using
them in violation of the Gambling Law.

Now therefore, you are hereby commanded that at any time in the day or night
within ten (10) days on or after this date to make a search on the person of said
John Doe and in the house situated at No. 124 Calle Arzobispo, City of Manila,
Philippine Islands, in quest of the above described devices and effects and if you
find the same or any part thereof, you are commanded to bring it forthwith before
me as provided for by law.

Given under my hand, this 25th day of May, 1923.



Judge, Municipal Court

Coming now to the legal aspects of the case it is first worthy of mention that by
reason of the Fourth Amendment to the United States Constitution and the eleventh
and eighteenth paragraphs of the Philippine Bill of Rights, as found in the present
Organic Act, the security of the dwelling and the person is guaranteed. The organic
act provides "that the right to be secured against unreasonable searches and
seizures shall not be violated." It further provides "that no warrant shall issue but
upon probable cause, supported by oath or affirmation and particularly describing
the place to be searched and the person or things to be seized."

In the Philippine Code of Criminal Procedure are found provisions of the same import
although naturally entering more into detail. It is therein provided, among other

things, that "a search warrant shall not issue except for probable cause and upon
application supported by oath particularly describing the place to be searched and
the person of thing to be seized." (Section 97.) After the judge or justice shall have
examined on oath the complainant and any witnesses he may produce, and shall
have taken their depositions in writing (section 98), and after the judge or justice is
satisfied of the existence of facts upon which the application is based, or that there
is probable cause to believe that they exist, he must issue the warrant which must
be substantially in the following form:

. . . You are, therefore, commanded, . . . to make immediate search on the person

of ............................, or in the house situated ...................................... (describing it
or any other place to be searched with reasonable particularity, as the case may be)
for the following property: . . . ." (Section 99.) It is finally provided that "a person
charged with a crime may be searched for dangerous weapons or anything which
may be used as proof of the commission of the crime. (Section 105).

A search warrant must conform strictly to the requirements of the constitutional and
statutory provisions under which it is issued. Otherwise it has rightly been held,
must be absolutely legal, "for there is not a description of process known to the law,
the execution of which is more distressing to the citizen. Perhaps there is none
which excites such intense feeling in consequence of its humiliating and degrading
effect." The warrant will always be construed strictly without, however, going the
full length of requiring technical accuracy. No presumptions of regularity are to be
invoked in aid of the process when an officer undertakes to justify under it. (24 R. C.
L., pp. 711, et seq.; Reed vs. Rice [1829], 2 J. J. Marshall [Ky.] 44; 19 Am. Dec., 122;
Smith vs. McDuffee [1914], 72 Ore., 276; Ann. Cas. 1916 D, 947.)

The search warrant has been likened to a warrant of arrest. Although apprehending
that there are material differences between the two, in view of the paucity of
authority pertaining to John Doe search warrants we propose to take into
consideration the authorities relied upon by the appellant, thus following the
precedent of Uy Kheytin vs. Villareal ([1920], 42 Phil., 886), where the regularity of
the issuance of the search warrant was also questioned.

In the lower court, and again in this court, the attorneys for the defense quoted
from Wharton's Criminal Procedure. In that text at pages 51, 52, 54, 55, and 56 of
volume 1 of the Tenth Edition, is found the following:

Form and Sufficiency of Warrant. Technical accuracy is not required. . . .




Name and description of the accused should be inserted in the body of the warrant
and where the name is unknown there must be such a description of the person
accused as will enable the officer to identify him when found.




Warrant for apprehension of unnamed party, or containing a wrong name for the
party to be apprehended is void, except in those cases where it contains a
descriptio personae such as will enable the officer to identify the accused.




John Doe' Warrants. It follows, on principle, from what has already been said
regarding the essential requirements of warrants for the apprehension of persons
accused, and about blank warrants, that a warrant for the apprehension of a person
whose true name is unknown, by the name of "John Doe" or "Richard Roe," "whose
other or true name in unknown," is void, without other and further descriptions of
the person to be apprehended, and such warrant will not justify the officer in acting
under it. Such a warrant must, in addition, contain the best descriptio personae
possible to be obtained of the person or persons to be apprehended, and this
description must be sufficient to indicate clearly the proper person or persons upon
whom the warrant is to be served; and should state his personal appearance and
peculiarities, give his occupation and place of residence, and any other
circumstances by means of which he can be identified.

Person apprehended in act of committing a crime, under a "John Doe" warrant, on

the other hand, the apprehension will not be illegal, or the officer liable, because
under such circumstances it is not necessary that a warrant should have been

The authority most often cited to sustain the text, and quoted with approval by the
United States Supreme Court, is the case of Commonwealth vs. Crotty ([1865], 10
Allen [Mass.], 403). It there appeared that one Peaslee had made a complaint to the
police court Lee, charging that "John Doe or Richard Roe, whose other or true name
is to your complainant unknown," had committed an assault and battery upon him;
upon which complaint a warrant was issued against "John Doe or Richard Roe,
whose other or true name is to your complainant unknown, named in the foregoing
complaint." Neither the complaint nor the warrant contained any further description
or means of identification of the person to be arrested. Crotty resisted the arrest
upon the ground that the warrant was invalid. Mr. Chief Justice Bigelow, as the organ
of the Supreme Court of Massachusetts, said:

We cannot entertain a doubt that the warrant on which the officer attempted to
arrest one of the defendant at the time of the alleged riot was insufficient, illegal
and void. It did not contain the name of the defendant, nor any description or
designation by which he could be known and identified as the person against whom
it was issued. It was in effect a general warrant, upon which any other individual
might as well have been arrested, as being included in the description, as the
defendant himself. Such a warrant was contrary to elementary principles, and in
direct violation of the constitutional right of the citizen, as set forth in the
Declaration of Rights, article 14, which declares that every subject has a right to be
secure from all unreasonable searches and seizures of his person, and that all
warrants, therefore, are contrary to this right, if the order in the warrant to a civil
officer to arrest one or more suspected persons or to seize their property be not
accompanied with a special designation of the persons or objects of search, arrest
or seizure. This is in fact only a declaration of an ancient common law right. It was
always necessary to express the name or give some description of a party to be
arrested on a warrant; and if one was granted with the name in blank, and without
other designation of the person to be arrested, it was void. (1 Hale P. C. 577. 2 Ib.
119. Foster, 312. 7 Dane Ab. 248. 1 Chit. Crim. Law, 39. Mead vs. Haws, 7 Cow.,
332, and cases cited.)

This rule or principle does not prevent the issue and service of a warrant against a
party whose name is unknown. In such case the best description possible of the
person to be arrested is to be given in the warrant; but it must be sufficient to
indicate clearly on whom it is to be served, by stating his occupation, his personal
appearance and peculiarities, the place of his residence, or other circumstances by
which he can be identified. (1 Chit. Crim. Law, 39, 40.)

The warrant being defective and void on its face, the officer had no right to arrest
the person on whom he attempted to serve it. He acted without warrant and was a
trespasser. The defendant whom he sought to arrest had a right to resist by force,
using no more than was necessary to resist the unlawful acts of the officer . . .

The defendants, therefore, in resisting the officer in making an arrest under the
warrant in question, if they were guilty of no improper or excessive force or
violence, did not do an unlawful act by lawful means, or a lawful act by unlawful
means, and so could not be convicted of the misdemeanor of a riot, with which they
are charged in the indictment.

Appellant's argument, as based on these authorities, runs something like this. The
law, constitutional and statutory, requires that the search warrant shall not issue
unless the application "particularly" describe the person to be seized. A failure thus
to name the person is fatal to the validity of the search warrant. To justify search
and arrest, the process must be legal. Illegal official action may be forcibly resisted.

For the prosecution, however, as the arguments are advanced by the AttorneyGeneral, and as the law was summarized by the trial judge, there is much to be
said. Careful and logical reflection brings forth certain points of paramount force
and exercising a decisive influence. We will now make mention of them by
correlating the facts and the law.

In the first place, the affidavit for the search warrant and the search warrant itself
described the building to be searched as "the building No. 124 Calle Arzobispo, City
of Manila, Philippine Islands." This, without doubt, was a sufficient designation of the
premises to be searched. It is the prevailing rule that a description of a place to be
searched is sufficient if the officer with the warrant can, with reasonable effort,
ascertain and identify the place intended. (Steele vs. U. S. [1925], U. S. Supreme
Court Advance Opinions 1924-1925; 69 Law. ed., 757). The police officers were
accordingly authorized to break down the door and enter the premises of the
building occupied by the so-called Parliamentary Club. When inside, they then had
the right to arrest the persons presumably engaged in a prohibited game, and to
confiscate the evidence of the commission of the crime. It has been held that an
officer making an arrest may take from the person arrested any money or property
found upon his person, which was used in the commission of the crime or was the
fruit of the crime, or which may furnish the person arrested with the means of

committing violence or of escaping, or which may be used as evidence on the trial

of the cause, but not otherwise. (Moreno vs. Ago Chi [1909], 12 Phil., 439.)

Proceeding along a different line of approach, it is undeniable that the application

for the search warrant, the affidavit, and the search warrant failed to name Jose Ma.
Veloso as the person to be seized. But the affidavit and the search warrant did state
that "John Doe has illegally in his possession in the building occupied by him, and
which is under his control, namely, in the building numbered 124 Calle Arzobispo,
City of Manila, Philippine Islands, certain devices and effects used in violation of the
Gambling Law." Now, in this connection, it must not be forgotten that the Organic
Act requires a particular description of the place to be searched, and the person or
things to be seized, and that the warrant in this case sufficiently described the place
and the gambling apparatus, and, in addition, contained a description of the person
to be seized. Under the authorities cited by the appellant, it is invariably recognized
that the warrant for the apprehension of an unnamed party is void, "except in those
cases where it contains a description personae such as will enable the officer to
identify the accused." The description must be sufficient to indicate clearly the
proper person upon whom the warrant is to be served. As the search warrant stated
that John Doe had gambling apparatus in his possession in the building occupied by
him at No. 124 Calle Arzobispo, City of Manila, and as this John Doe was Jose Ma.
Veloso, the manager of the club, the police could identify John Doe as Jose Ma.
Veloso without difficulty.

Again, it must be remembered that No. 124 Calle Arzobispo was supposed to be
used for club purposes. It was not the home of Veloso; not the place of abode of the
family, which the law carefully protects in all of its sanctity. It was a club partially
public in nature. It was, moreover, a camouflaged club with a high sounding name
calculated to mislead the police, but intended for nefarious practices. In a club of
such a character, unlike in the home, there would commonly be varying occupancy,
a number of John Does and Richard Roes whose names would be unknown to the

It is also borne out by the authorities that, in defense of himself, any member of his
family or his dwelling, a man has a right to employ all necessary violence. But even
in the home, and much less so in a club or public place, the person sought to be
arrested or to be searched should use no more force than is necessary to repel the
unlawful act of the officers. To authorize resistance to the agents of the authority,
the illegality of the invasion must be clearly manifest. Here, there was possibly a
proper case for protest. There was no case for excessive violence to enforce the

defendant's idea of a debatable legal question. (Commonwealth vs. Crotty, supra;

People vs. Chan Fook [1921], 42 Phil., 230; 3 Groizard, Codigo Penal, pp. 456, 457.)

The trial judge deduced from the searched warrant that the accused Veloso was
sufficiently identified therein. Mention was made by his Honor of the code provision
relating to a complaint or information, permitting a fictitious name to be inserted in
the complaint or information, in lieu of the true name. The Attorney-General adds to
this the argument that the police were authorized to arrest without a warrant since
a crime was being committed. We find it unnecessary to comment on this

John Doe search warrants should be the exception and not the rule. The police
should particularly describe the place to be searched and the person or things to be
seized, wherever and whenever it is feasible. The police should not be hindered in
the performance of their duties, which are difficult enough of performance under the
best of conditions, by superficial adherence to technicality or far fetched judicial

We agree with the trial judge and with the Attorney-General in their conclusions to
the effect that the search warrant was valid, and that the defendant has been
proved guilty beyond a reasonable doubt, of the crime of resistance of the agents of
the authority.

The information alleges that at the time of the commission of the crime, the
accused was a member of the House of Representatives. The trial court was led to
consider this allegation in relation with the facts as an aggravating circumstance,
and to sentence the accused accordingly. We doubt, however, that advantage was
taken by the offender of his public position when he resisted the officers of the law.
The offender did not necessarily make use of the prestige of his office as a means to
commit a crime. Undoubtedly, Jose Ma. Veloso, as Juan de la Cruz, would have
resisted the police just as stoutly, as the Honorable Jose Ma. Veloso did. The
penalty, accordingly, falls within the medium of that provided by the Penal Code.

Finding present no reversible error, agreeing in all respects with the findings of facts
as made by the trial judge, and concurring with the trial judge in his legal
conclusion, with one exception, it results that the judgment appealed from must be,
as it is hereby, affirmed, with the sole modification that the defendant and appellant

shall be sentenced to two months and one day imprisonment, arresto mayor, with
the costs of this instance against him. Let the corresponding order to carry this
judgment into effect issue.
SERVICES, INC., petitioners,

Lorenzo M. Taada, Wigberto E. Taada, Martiniano Vivo, Augusto Sanchez, Joker P.

Arroyo, Jejomar Binay and Rene Saguisag for petitioners.

The Solicitor General for respondents.


Assailed in this petition for certiorari prohibition and mandamus with preliminary
mandatory and prohibitory injunction is the validity of two [2] search warrants
issued on December 7, 1982 by respondent Judge Ernani Cruz-Pano, Executive
Judge of the then Court of First Instance of Rizal [Quezon City], under which the
premises known as No. 19, Road 3, Project 6, Quezon City, and 784 Units C & D,
RMS Building, Quezon Avenue, Quezon City, business addresses of the "Metropolitan
Mail" and "We Forum" newspapers, respectively, were searched, and office and
printing machines, equipment, paraphernalia, motor vehicles and other articles
used in the printing, publication and distribution of the said newspapers, as well as
numerous papers, documents, books and other written literature alleged to be in
the possession and control of petitioner Jose Burgos, Jr. publisher-editor of the "We
Forum" newspaper, were seized.

Petitioners further pray that a writ of preliminary mandatory and prohibitory

injunction be issued for the return of the seized articles, and that respondents,

"particularly the Chief Legal Officer, Presidential Security Command, the Judge
Advocate General, AFP, the City Fiscal of Quezon City, their representatives,
assistants, subalterns, subordinates, substitute or successors" be enjoined from
using the articles thus seized as evidence against petitioner Jose Burgos, Jr. and the
other accused in Criminal Case No. Q- 022782 of the Regional Trial Court of Quezon
City, entitled People v. Jose Burgos, Jr. et al. 1

In our Resolution dated June 21, 1983, respondents were required to answer the
petition. The plea for preliminary mandatory and prohibitory injunction was set for
hearing on June 28, 1983, later reset to July 7, 1983, on motion of the Solicitor
General in behalf of respondents.

At the hearing on July 7, 1983, the Solicitor General, while opposing petitioners'
prayer for a writ of preliminary mandatory injunction, manifested that respondents
"will not use the aforementioned articles as evidence in the aforementioned case
until final resolution of the legality of the seizure of the aforementioned articles. ..."
2 With this manifestation, the prayer for preliminary prohibitory injunction was
rendered moot and academic.

Respondents would have this Court dismiss the petition on the ground that
petitioners had come to this Court without having previously sought the quashal of
the search warrants before respondent judge. Indeed, petitioners, before impugning
the validity of the warrants before this Court, should have filed a motion to quash
said warrants in the court that issued them. 3 But this procedural flaw
notwithstanding, we take cognizance of this petition in view of the seriousness and
urgency of the constitutional issues raised not to mention the public interest
generated by the search of the "We Forum" offices, which was televised in Channel
7 and widely publicized in all metropolitan dailies. The existence of this special
circumstance justifies this Court to exercise its inherent power to suspend its rules.
In the words of the revered Mr. Justice Abad Santos in the case of C. Vda. de
Ordoveza v. Raymundo, 4 "it is always in the power of the court [Supreme Court] to
suspend its rules or to except a particular case from its operation, whenever the
purposes of justice require it...".

Respondents likewise urge dismissal of the petition on ground of laches.

Considerable stress is laid on the fact that while said search warrants were issued
on December 7, 1982, the instant petition impugning the same was filed only on
June 16, 1983 or after the lapse of a period of more than six [6] months.

Laches is failure or negligence for an unreasonable and unexplained length of time

to do that which, by exercising due diligence, could or should have been done
earlier. It is negligence or omission to assert a right within a reasonable time,
warranting a presumption that the party entitled to assert it either has abandoned it
or declined to assert it. 5

Petitioners, in their Consolidated Reply, explained the reason for the delay in the
filing of the petition thus:

Respondents should not find fault, as they now do [p. 1, Answer, p. 3, Manifestation]
with the fact that the Petition was filed on June 16, 1983, more than half a year after
the petitioners' premises had been raided.

The climate of the times has given petitioners no other choice. If they had waited
this long to bring their case to court, it was because they tried at first to exhaust
other remedies. The events of the past eleven fill years had taught them that
everything in this country, from release of public funds to release of detained
persons from custody, has become a matter of executive benevolence or largesse

Hence, as soon as they could, petitioners, upon suggestion of persons close to the
President, like Fiscal Flaminiano, sent a letter to President Marcos, through counsel
Antonio Coronet asking the return at least of the printing equipment and vehicles.
And after such a letter had been sent, through Col. Balbino V. Diego, Chief
Intelligence and Legal Officer of the Presidential Security Command, they were
further encouraged to hope that the latter would yield the desired results.

After waiting in vain for five [5] months, petitioners finally decided to come to Court.
[pp. 123-124, Rollo]

Although the reason given by petitioners may not be flattering to our judicial
system, We find no ground to punish or chastise them for an error in judgment. On
the contrary, the extrajudicial efforts exerted by petitioners quite evidently negate
the presumption that they had abandoned their right to the possession of the seized
property, thereby refuting the charge of laches against them.

Respondents also submit the theory that since petitioner Jose Burgos, Jr. had used
and marked as evidence some of the seized documents in Criminal Case No. Q022872, he is now estopped from challenging the validity of the search warrants.
We do not follow the logic of respondents. These documents lawfully belong to
petitioner Jose Burgos, Jr. and he can do whatever he pleases with them, within legal
bounds. The fact that he has used them as evidence does not and cannot in any
way affect the validity or invalidity of the search warrants assailed in this petition.

Several and diverse reasons have been advanced by petitioners to nullify the search
warrants in question.

1. Petitioners fault respondent judge for his alleged failure to conduct an

examination under oath or affirmation of the applicant and his witnesses, as
mandated by the above-quoted constitutional provision as wen as Sec. 4, Rule 126
of the Rules of Court . 6 This objection, however, may properly be considered moot
and academic, as petitioners themselves conceded during the hearing on August 9,
1983, that an examination had indeed been conducted by respondent judge of Col.
Abadilla and his witnesses.

2. Search Warrants No. 20-82[a] and No. 20- 82[b] were used to search two distinct
places: No. 19, Road 3, Project 6, Quezon City and 784 Units C & D, RMS Building,
Quezon Avenue, Quezon City, respectively. Objection is interposed to the execution
of Search Warrant No. 20-82[b] at the latter address on the ground that the two
search warrants pinpointed only one place where petitioner Jose Burgos, Jr. was
allegedly keeping and concealing the articles listed therein, i.e., No. 19, Road 3,
Project 6, Quezon City. This assertion is based on that portion of Search Warrant No.
20- 82[b] which states:

Which have been used, and are being used as instruments and means of
committing the crime of subversion penalized under P.D. 885 as amended and he is
keeping and concealing the same at 19 Road 3, Project 6, Quezon City.

The defect pointed out is obviously a typographical error. Precisely, two search
warrants were applied for and issued because the purpose and intent were to
search two distinct premises. It would be quite absurd and illogical for respondent

judge to have issued two warrants intended for one and the same place. Besides,
the addresses of the places sought to be searched were specifically set forth in the
application, and since it was Col. Abadilla himself who headed the team which
executed the search warrants, the ambiguity that might have arisen by reason of
the typographical error is more apparent than real. The fact is that the place for
which Search Warrant No. 20- 82[b] was applied for was 728 Units C & D, RMS
Building, Quezon Avenue, Quezon City, which address appeared in the opening
paragraph of the said warrant. 7 Obviously this is the same place that respondent
judge had in mind when he issued Warrant No. 20-82 [b].

In the determination of whether a search warrant describes the premises to be

searched with sufficient particularity, it has been held "that the executing officer's
prior knowledge as to the place intended in the warrant is relevant. This would
seem to be especially true where the executing officer is the affiant on whose
affidavit the warrant had issued, and when he knows that the judge who issued the
warrant intended the building described in the affidavit, And it has also been said
that the executing officer may look to the affidavit in the official court file to resolve
an ambiguity in the warrant as to the place to be searched." 8

Another ground relied upon to annul the search warrants is the fact that
although the warrants were directed against Jose Burgos, Jr. alone, articles b
belonging to his co-petitioners Jose Burgos, Sr., Bayani Soriano and the J. Burgos
Media Services, Inc. were seized.

Section 2, Rule 126 of the Rules of Court, enumerates the personal properties that
may be seized under a search warrant, to wit:

Sec. 2. Personal Property to be seized. A search warrant may be issued for the
search and seizure of the following personal property:

[a] Property subject of the offense;

[b] Property stolen or embezzled and other proceeds or fruits of the offense; and

[c] Property used or intended to be used as the means of committing an offense.

The above rule does not require that the property to be seized should be owned by
the person against whom the search warrant is directed. It may or may not be
owned by him. In fact, under subsection [b] of the above-quoted Section 2, one of
the properties that may be seized is stolen property. Necessarily, stolen property
must be owned by one other than the person in whose possession it may be at the
time of the search and seizure. Ownership, therefore, is of no consequence, and it is
sufficient that the person against whom the warrant is directed has control or
possession of the property sought to be seized, as petitioner Jose Burgos, Jr. was
alleged to have in relation to the articles and property seized under the warrants.

4. Neither is there merit in petitioners' assertion that real properties were seized
under the disputed warrants. Under Article 415[5] of the Civil Code of the
Philippines, "machinery, receptables, instruments or implements intended by the
owner of the tenement for an industry or works which may be carried on in a
building or on a piece of land and which tend directly to meet the needs of the said
industry or works" are considered immovable property. In Davao Sawmill Co. v.
Castillo 9 where this legal provision was invoked, this Court ruled that machinery
which is movable by nature becomes immobilized when placed by the owner of the
tenement, property or plant, but not so when placed by a tenant, usufructuary, or
any other person having only a temporary right, unless such person acted as the
agent of the owner.

In the case at bar, petitioners do not claim to be the owners of the land and/or
building on which the machineries were placed. This being the case, the
machineries in question, while in fact bolted to the ground remain movable property
susceptible to seizure under a search warrant.

5. The questioned search warrants were issued by respondent judge upon

application of Col. Rolando N. Abadilla Intelligence Officer of the P.C. Metrocom. 10
The application was accompanied by the Joint Affidavit of Alejandro M. Gutierrez and
Pedro U. Tango, 11 members of the Metrocom Intelligence and Security Group under
Col. Abadilla which conducted a surveillance of the premises prior to the filing of the
application for the search warrants on December 7, 1982.

It is contended by petitioners, however, that the abovementioned documents could

not have provided sufficient basis for the finding of a probable cause upon which a
warrant may validly issue in accordance with Section 3, Article IV of the 1973
Constitution which provides:

SEC. 3.
... and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined by the judge, or such other responsible officer as
may be authorized by law, after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the
place to be searched and the persons or things to be seized.

We find petitioners' thesis impressed with merit. Probable cause for a search is
defined as such facts and circumstances which would lead a reasonably discreet
and prudent man to believe that an offense has been committed and that the
objects sought in connection with the offense are in the place sought to be
searched. And when the search warrant applied for is directed against a newspaper
publisher or editor in connection with the publication of subversive materials, as in
the case at bar, the application and/or its supporting affidavits must contain a
specification, stating with particularity the alleged subversive material he has
published or is intending to publish. Mere generalization will not suffice. Thus, the
broad statement in Col. Abadilla's application that petitioner "is in possession or has
in his control printing equipment and other paraphernalia, news publications and
other documents which were used and are all continuously being used as a means
of committing the offense of subversion punishable under Presidential Decree 885,
as amended ..." 12 is a mere conclusion of law and does not satisfy the
requirements of probable cause. Bereft of such particulars as would justify a finding
of the existence of probable cause, said allegation cannot serve as basis for the
issuance of a search warrant and it was a grave error for respondent judge to have
done so.

Equally insufficient as basis for the determination of probable cause is the

statement contained in the joint affidavit of Alejandro M. Gutierrez and Pedro U.
Tango, "that the evidence gathered and collated by our unit clearly shows that the
premises above- mentioned and the articles and things above-described were used
and are continuously being used for subversive activities in conspiracy with, and to
promote the objective of, illegal organizations such as the Light-a-Fire Movement,
Movement for Free Philippines, and April 6 Movement." 13

In mandating that "no warrant shall issue except upon probable cause to be
determined by the judge, ... after examination under oath or affirmation of the
complainant and the witnesses he may produce; 14 the Constitution requires no
less than personal knowledge by the complainant or his witnesses of the facts upon
which the issuance of a search warrant may be justified. In Alvarez v. Court of First
Instance, 15 this Court ruled that "the oath required must refer to the truth of the
facts within the personal knowledge of the petitioner or his witnesses, because the
purpose thereof is to convince the committing magistrate, not the individual making
the affidavit and seeking the issuance of the warrant, of the existence of probable
cause." As couched, the quoted averment in said joint affidavit filed before
respondent judge hardly meets the test of sufficiency established by this Court in
Alvarez case.

Another factor which makes the search warrants under consideration

constitutionally objectionable is that they are in the nature of general warrants. The
search warrants describe the articles sought to be seized in this wise:

All printing equipment, paraphernalia, paper, ink, photo (equipment,
typewriters, cabinets, tables, communications/recording equipment, tape recorders,
dictaphone and the like used and/or connected in the printing of the "WE FORUM"
newspaper and any and all documents communication, letters and facsimile of
prints related to the "WE FORUM" newspaper.

Subversive documents, pamphlets, leaflets, books, and other publication to
promote the objectives and piurposes of the subversive organization known as
Movement for Free Philippines, Light-a-Fire Movement and April 6 Movement; and,

Motor vehicles used in the distribution/circulation of the "WE FORUM" and
other subversive materials and propaganda, more particularly,


Toyota-Corolla, colored yellow with Plate No. NKA 892;


DATSUN pick-up colored white with Plate No. NKV 969


A delivery truck with Plate No. NBS 524;


TOYOTA-TAMARAW, colored white with Plate No. PBP 665; and,

TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 427 with marking "Bagong

In Stanford v. State of Texas 16 the search warrant which authorized the search for
"books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings
and other written instruments concerning the Communist Party in Texas," was
declared void by the U.S. Supreme Court for being too general. In like manner,
directions to "seize any evidence in connectionwith the violation of SDC 13-3703 or
otherwise" have been held too general, and that portion of a search warrant which
authorized the seizure of any "paraphernalia which could be used to violate Sec. 54197 of the Connecticut General Statutes [the statute dealing with the crime of
conspiracy]" was held to be a general warrant, and therefore invalid. 17 The
description of the articles sought to be seized under the search warrants in question
cannot be characterized differently.

In the Stanford case, the U.S. Supreme Courts calls to mind a notable chapter in
English history: the era of disaccord between the Tudor Government and the English
Press, when "Officers of the Crown were given roving commissions to search where
they pleased in order to suppress and destroy the literature of dissent both Catholic
and Puritan Reference herein to such historical episode would not be relevant for it
is not the policy of our government to suppress any newspaper or publication that
speaks with "the voice of non-conformity" but poses no clear and imminent danger
to state security.

As heretofore stated, the premises searched were the business and printing offices
of the "Metropolitan Mail" and the "We Forum newspapers. As a consequence of the
search and seizure, these premises were padlocked and sealed, with the further
result that the printing and publication of said newspapers were discontinued.

Such closure is in the nature of previous restraint or censorship abhorrent to the

freedom of the press guaranteed under the fundamental law, 18 and constitutes a
virtual denial of petitioners' freedom to express themselves in print. This state of

being is patently anathematic to a democratic framework where a free, alert and

even militant press is essential for the political enlightenment and growth of the

Respondents would justify the continued sealing of the printing machines on the
ground that they have been sequestered under Section 8 of Presidential Decree No.
885, as amended, which authorizes "the sequestration of the property of any
person, natural or artificial, engaged in subversive activities against the government
and its duly constituted authorities ... in accordance with implementing rules and
regulations as may be issued by the Secretary of National Defense." It is doubtful
however, if sequestration could validly be effected in view of the absence of any
implementing rules and regulations promulgated by the Minister of National

Besides, in the December 10, 1982 issue of the Daily Express, it was reported that
no less than President Marcos himself denied the request of the military authorities
to sequester the property seized from petitioners on December 7, 1982. Thus:

The President denied a request flied by government prosecutors for sequestration of

the WE FORUM newspaper and its printing presses, according to Information
Minister Gregorio S. Cendana.

On the basis of court orders, government agents went to the We Forum offices in
Quezon City and took a detailed inventory of the equipment and all materials in the

Cendaa said that because of the denial the newspaper and its equipment remain
at the disposal of the owners, subject to the discretion of the court. 19

That the property seized on December 7, 1982 had not been sequestered is further
confirmed by the reply of then Foreign Minister Carlos P. Romulo to the letter dated
February 10, 1983 of U.S. Congressman Tony P. Hall addressed to President Marcos,
expressing alarm over the "WE FORUM " case. 20 In this reply dated February 11,
1983, Minister Romulo stated:

Contrary to reports, President Marcos turned down the recommendation of
our authorities to close the paper's printing facilities and confiscate the equipment
and materials it uses. 21

IN VIEW OF THE FOREGOING, Search Warrants Nos. 20-82[a] and 20-82[b] issued by
respondent judge on December 7, 1982 are hereby declared null and void and are
accordingly set aside. The prayer for a writ of mandatory injunction for the return of
the seized articles is hereby granted and all articles seized thereunder are hereby
ordered released to petitioners. No costs.



In an Information 1 filed on 30 August 1990, in Criminal Case No. 90-86748 before

the Regional Trial Court (RTC) of Manila, Branch 5, petitioner Sammy Malacat y
Mandar was charged with violating Section 3 of Presidential Decree No. 1866, 2 as

That on or about August 27, 1990, in the City of Manila, Philippines, the said
accused did then and there willfully, unlawfully and knowingly keep, possess and/or
acquire a hand grenade, without first securing the necessary license and/or permit
therefor from the proper authorities.

At arraignment 3 on 9 October 1990, petitioner, assisted by counsel de oficio,

entered a plea of not guilty.

At pre-trial on 11 March 1991, petitioner admitted the existence of Exhibits "A," "A1," and "A-2," 4 while the prosecution admitted that the police authorities were not
armed with a search warrant nor warrant of arrest at the time they arrested
petitioner. 5

At trial on the merits, the prosecution presented the following police officers as its
witnesses: Rodolfo Yu, the arresting officer; Josefino G. Serapio, the investigating
officer; and Orlando Ramilo, who examined the grenade.

Rodolfo Yu of the Western Police District, Metropolitan Police Force of the Integrated
National Police, Police Station No. 3, Quiapo, Manila, testified that on 27 August
1990, at about 6:30 p.m., in response to bomb threats reported seven days earlier,
he was on foot patrol with three other police officers (all of them in uniform) along
Quezon Boulevard, Quiapo, Manila, near the Mercury Drug store at Plaza Miranda.
They chanced upon two groups of Muslim-looking men, with each group, comprised
of three to four men, posted at opposite sides of the corner of Quezon Boulevard
near the Mercury Drug Store. These men were acting suspiciously with "[t]heir eyes.
. . moving very fast." 6

Yu and his companions positioned themselves at strategic points and observed both
groups for about thirty minutes. The police officers then approached one group of
men, who then fled in different directions. As the policemen gave chase, Yu caught
up with and apprehended petitioner. Upon searching petitioner, Yu found a
fragmentation grenade tucked inside petitioner's "front waist line." 7 Yu's
companion, police officer Rogelio Malibiran, apprehended Abdul Casan from whom a
.38 caliber revolver was recovered. Petitioner and Casan were then brought to Police
Station No. 3 where Yu placed an "X" mark at the bottom of the grenade and
thereafter gave it to his commander. 8

On cross-examination, Yu declared that they conducted the foot patrol due to a

report that a group of Muslims was going to explode a grenade somewhere in the
vicinity of Plaza Miranda. Yu recognized petitioner as the previous Saturday, 25
August 1990, likewise at Plaza Miranda, Yu saw petitioner and 2 others attempt to
detonate a grenade. The attempt was aborted when Yu and other policemen chased
petitioner and his companions; however, the former were unable to catch any of the
latter. Yu further admitted that petitioner and Casan were merely standing on the
corner of Quezon Boulevard when Yu saw them on 27 August 1990. Although they

were not creating a commotion, since they were supposedly acting suspiciously, Yu
and his companions approached them. Yu did not issue any receipt for the grenade
he allegedly recovered from petitioner. 9

Josefino G. Serapio declared that at about 9:00 a.m. of 28 August 1990, petitioner
and a certain Abdul Casan were brought in by Sgt. Saquilla 10 for investigation.
Forthwith, Serapio conducted the inquest of the two suspects, informing them of
their rights to remain silent and to be assisted by competent and independent
counsel. Despite Serapio's advice, petitioner and Casan manifested their willingness
to answer questions even without the assistance of a lawyer. Serapio then took
petitioner's uncounselled confession (Exh. "E"), there being no PAO lawyer available,
wherein petitioner admitted possession of the grenade. Thereafter, Serapio
prepared the affidavit of arrest and booking sheet of petitioner and Casan. Later,
Serapio turned over the grenade to the Intelligence and Special Action Division
(ISAD) of the Explosive Ordinance Disposal Unit for examination. 11

On cross-examination, Serapio admitted that he took petitioner's confession

knowing it was inadmissible in evidence. 12

Orlando Ramilo, a member of the Bomb Disposal Unit, whose principal duties
included, among other things, the examination of explosive devices, testified that
on 22 March 1991, he received a request dated 19 March 1991 from Lt. Eduardo
Cabrera and PO Diosdado Diotoy for examination of a grenade. Ramilo then affixed
an orange tag on the subject grenade detailing his name, the date and time he
received the specimen. During the preliminary examination of the grenade, he
"[f]ound that [the] major components consisting of [a] high filler and fuse assembly
[were] all present," and concluded that the grenade was "[l]ive and capable of
exploding." On even date, he issued a certification stating his findings, a copy of
which he forwarded to Diotoy on 11 August 1991. 13

Petitioner was the lone defense witness. He declared that he arrived in Manila on 22
July 1990 and resided at the Muslim Center in Quiapo, Manila. At around 6:30 in the
evening of 27 August 1990, he went to Plaza Miranda to catch a breath of fresh air.
Shortly after, several policemen arrived and ordered all males to stand aside. The
policemen searched petitioner and two other men, but found nothing in their
possession. However, he was arrested with two others, brought to and detained at
Precinct No. 3, where he was accused of having shot a police officer. The officer
showed the gunshot wounds he allegedly sustained and shouted at petitioner "[i]to

ang tama mo sa akin." This officer then inserted the muzzle of his gun into
petitioner's mouth and said, "[y]ou are the one who shot me." Petitioner denied the
charges and explained that he only recently arrived in Manila. However, several
other police officers mauled him, hitting him with benches and guns. Petitioner was
once again searched, but nothing was found on him. He saw the grenade only in
court when it was presented. 14

The trial court ruled that the warrantless search and seizure of petitioner was akin
to it a "stop and frisk," where a "warrant and seizure can be effected without
necessarily being preceded by an arrest" and "whose object is either to maintain the
status quo momentarily while the police officer seeks to obtain more information."
15 Probable cause was not required as it was not certain that a crime had been
committed, however, the situation called for an investigation, hence to require
probable cause would have been "premature." 16 The RTC emphasized that Yu and
his companions were "[c]onfronted with an emergency, in which the delay
necessary to obtain a warrant, threatens the destruction of evidence" 17 and the
officers "[h]ad to act in haste," as petitioner and his companions were acting
suspiciously, considering the time, place and "reported cases of bombing." Further,
petitioner's group suddenly ran away in different directions as they saw the
arresting officers approach, thus "[i]t is reasonable for an officer to conduct a
limited search, the purpose of which is not necessarily to discover evidence of a
crime, but to allow the officer to pursue his investigation without fear of violence."

The trial court then ruled that the seizure of the grenade from petitioner was
incidental to a lawful arrest, and since petitioner "[l]ater voluntarily admitted such
fact to the police investigator for the purpose of bombing the Mercury Drug Store,"
concluded that sufficient evidence existed to establish petitioner's guilt beyond
reasonable doubt.

In its decision 19 dated 10 February 1994 but promulgated on 15 February 1994,

the trial court thus found petitioner guilty of the crime of illegal possession of
explosives under Section 3 of P.D. No. 186, and sentenced him to suffer:

[T]he penalty of not less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE
(1) DAY OF RECLUSION TEMPORAL, as minimum, and not more than THIRTY (30)

On 18 February 1994, petitioner filed a notice of appeal 20 indicating that he was

appealing to this Court. However, the record of the case was forwarded to the Court
of Appeals which docketed it as CA-G.R. CR No. 15988 and issued a notice to file
briefs. 21

In his Appellant's Brief 22 filed with the Court of Appeals, petitioner asserted that:



In sum, petitioner argued that the warrantless arrest was invalid due to absence of
any of the conditions provided for in Section 5 of Rule 113 of the Rules of Court,
citing People vs. Mengote. 23 As such, the search was illegal, and the hand grenade
seized, inadmissible in evidence.

In its Brief for the Appellee, the Office of the Solicitor General agreed with the trial
court and prayed that its decision be affirmed in toto. 24

In its decision of 24 January 1996, 25 the Court of Appeals affirmed the trial court,
noting, first, that petitioner abandoned his original theory before the court a quo
that the grenade was "planted" by the police officers; and second, the factual
finding of the trial court that the grenade was seized from petitioner's possession
was not raised as an issue. Further, respondent court focused on the admissibility in
evidence of Exhibit "D," the hand grenade seized from petitioner. Meeting the issue
squarely, the Court of Appeals ruled that the arrest was lawful on the ground that
there was probable cause for the arrest as petitioner was "attempting to commit an
offense," thus:

We are at a loss to understand how a man, who was in possession of a live grenade
and in the company of other suspicious character[s] with unlicensed firearm[s]
lurking in Plaza Miranda at a time when political tension ha[d] been enkindling a
series of terroristic activities, [can] claim that he was not attempting to commit an
offense. We need not mention that Plaza Miranda is historically notorious for being a
favorite bomb site especially during times of political upheaval. As the mere
possession of an unlicensed grenade is by itself an offense, Malacat's posture is
simply too preposterous to inspire belief.

In so doing, the Court of Appeals took into account petitioner's failure to rebut the
testimony of the prosecution witnesses that they received intelligence reports of a
bomb threat at Plaza Miranda; the fact that PO Yu chased petitioner two days prior
to the latter's arrest, or on 27 August 1990; and that petitioner and his companions
acted suspiciously, the "accumulation" of which was more than sufficient to
convince a reasonable man that an offense was about to be committed. Moreover,
the Court of Appeals observed:

The police officers in such a volatile situation would be guilty of gross negligence
and dereliction of duty, not to mention of gross incompetence, if they [would] first
wait for Malacat to hurl the grenade, and kill several innocent persons while
maiming numerous others, before arriving at what would then be an assured but
moot conclusion that there was indeed probable cause for an arrest. We are in
agreement with the lower court in saying that the probable cause in such a situation
should not be the kind of proof necessary to convict, but rather the practical
considerations of everyday life on which a reasonable and prudent mind, and not
legal technicians, will ordinarily act.

Finally, the Court of Appeals held that the rule laid down in People v. Mengote, 26
which petitioner relied upon, was inapplicable in light of "[c]rucial differences," to

[In Mengote] the police officers never received any intelligence report that someone
[at] the corner of a busy street [would] be in possession of a prohibited article. Here
the police officers were responding to a [sic] public clamor to put a check on the
series of terroristic bombings in the Metropolis, and, after receiving intelligence
reports about a bomb threat aimed at the vicinity of the historically notorious Plaza
Miranda, they conducted foot patrols for about seven days to observe suspicious
movements in the area. Furthermore, in Mengote, the police officers [had] no

personal knowledge that the person arrested has committed, is actually committing,
or is attempting to commit an offense. Here, PO3 Yu [had] personal knowledge of
the fact that he chased Malacat in Plaza Miranda two days before he finally
succeeded in apprehending him.

Unable to accept his conviction, petitioner forthwith filed the instant petition and
assigns the following errors:



In support thereof, petitioner merely restates his arguments below regarding the
validity of the warrantless arrest and search, then disagrees with the finding of the
Court of Appeals that he was "attempting to commit a crime," as the evidence for
the prosecution merely disclosed that he was "standing at the corner of Plaza
Miranda and Quezon Boulevard" with his eyes "moving very fast" and "looking at
every person that come (sic) nearer (sic) to them." Finally, petitioner points out the
factual similarities between his case and that of People v. Mengote to demonstrate
that the Court of Appeals miscomprehended the latter.

In its Comment, the Office of the Solicitor General prays that we affirm the
challenged decision..

For being impressed with merit, we resolved to give due course to the petition.

The challenged decision must immediately fall on jurisdictional grounds. To repeat,

the penalty imposed by the trial court was:

[N]ot less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE (1) DAY OF
RECLUSION TEMPORAL, as minimum, and not more than THIRTY (30) YEARS OF

The penalty provided by Section 3 of P.D. No. 1866 upon any person who shall
unlawfully possess grenades is reclusion temporal in its maximum period to
reclusion perpetua.

For purposes of determining appellate jurisdiction in criminal cases, the maximum

of the penalty, and not the minimum, is taken into account. Since the maximum of
the penalty is reclusion perpetua, the appeal therefrom should have been to us, and
not the Court of Appeals, pursuant to Section 9(3) of the Judiciary Reorganization
Act of 1980 (B.P. Blg. 129), 27 in relation to Section 17 of the Judiciary Act of 1948,
28 Section 5(2) of Article VIII of the Constitution 29 and Section 3(c) of Rule 122 of
the Rules of Court. 30 The term "life imprisonment" as used in Section 9 of B.P. Blg.
129, the Judiciary Act of 1948, and Section 3 of Rule 122 must be deemed to include
reclusion perpetua in view of Section 5(2) of Article VIII of the Constitution.

Petitioner's Notice of Appeal indicated that he was appealing from the trial court's
decision to this Court, yet the trial court transmitted the record to the Court of
Appeals and the latter proceeded to resolve the appeal.

We then set aside the decision of the Court of Appeals for having been rendered
without jurisdiction, and consider the appeal as having been directly brought to us,
with the petition for review as petitioner's Brief for the Appellant, the comment
thereon by the Office of the Solicitor General as the Brief for the Appellee and the
memoranda of the parties as their Supplemental Briefs.

Deliberating on the foregoing pleadings, we find ourselves convinced that the

prosecution failed to establish petitioner's guilt with moral certainty.

First, serious doubt surrounds the story of police officer Yu that a grenade was found
in and seized from petitioner's possession. Notably, Yu did not identify, in court, the
grenade he allegedly seized. According to him, he turned it over to his commander
after putting an "X" mark at its bottom; however, the commander was not
presented to corroborate this claim. On the other hand, the grenade presented in

court and identified by police officer Ramilo referred to what the latter received from
Lt. Eduardo Cabrera and police officer Diotoy not immediately after petitioner's
arrest, but nearly seven (7) months later, or on 19 March 1991; further, there was
no evidence whatsoever that what Ramilo received was the very same grenade
seized from petitioner. In his testimony, Yu never declared that the grenade passed
on to Ramilo was the grenade the former confiscated from petitioner. Yu did not,
and was not made to, identify the grenade examined by Ramilo, and the latter did
not claim that the grenade he examined was that seized from petitioner. Plainly, the
law enforcement authorities failed to safeguard and preserve the chain of evidence
so crucial in cases such as these.

Second, if indeed petitioner had a grenade with him, and that two days earlier he
was with a group about to detonate an explosive at Plaza Miranda, and Yu and his
fellow officers chased, but failed to arrest them, then considering that Yu and his
three fellow officers were in uniform and therefore easily cognizable as police
officers, it was then unnatural and against common experience that petitioner
simply stood there in proximity to the police officers. Note that Yu observed
petitioner for thirty minutes and must have been close enough to petitioner in order
to discern petitioner's eyes "moving very fast."

Finally, even assuming that petitioner admitted possession of the grenade during
his custodial investigation by police officer Serapio, such admission was
inadmissible in evidence for it was taken in palpable violation of Section 12(1) and
(3) of Article III of the Constitution, which provide as follows:

Sec. 12 (1). Any person under investigation for the commission of an offense shall
have the right to be informed of his right to remain silent and to have competent
and independent counsel preferably of his own choice. If the person cannot afford
the services of counsel, he must be provided with one. These rights cannot be
waived except in writing and in the presence of counsel.




Any confession or admission obtained in violation of this or Section 17 hereof
shall be inadmissible in evidence against him.

Serapio conducted the custodial investigation on petitioner the day following his
arrest. No lawyer was present and Serapio could not have requested a lawyer to
assist petitioner as no PAO lawyer was then available. Thus, even if petitioner
consented to the investigation and waived his rights to remain silent and to counsel,
the waiver was invalid as it was not in writing, neither was it executed in the
presence of counsel.

Even granting ex gratia that petitioner was in possession of a grenade, the arrest
and search of petitioner were invalid, as will be discussed below.

The general rule as regards arrests, searches and seizures is that a warrant is
needed in order to validly effect the same. 31 The Constitutional prohibition against
unreasonable arrests, searches and seizures refers to those effected without a
validly issued warrant, 32 subject to certain exceptions. As regards valid warrantless
arrests, these are found in Section 5, Rule 113 of the Rules of Court, which reads, in

Sec. 5.

Arrest, without warrant; when lawful A peace officer or a

private person may, without a warrant, arrest a person:

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

When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has committed it; and


When the person to be arrested is a prisoner who has escaped . . .

A warrantless arrest under the circumstances contemplated under Section 5(a) has
been denominated as one "in flagrante delicto," while that under Section 5(b) has
been described as a "hot pursuit" arrest.

Turning to valid warrantless searches, they are limited to the following: (1) customs
searches; (2) search of moving vehicles; (3) seizure of evidence in plain view; (4)
consent searches; 33 (5) a search incidental to a lawful arrest; 34 and (6) a "stop
and frisk." 35

In the instant petition, the trial court validated the warrantless search as a "stop and
frisk" with "the seizure of the grenade from the accused [as an appropriate incident
to his arrest," hence necessitating a brief discussion on the nature of these
exceptions to the warrant requirement.

At the outset, we note that the trial court confused the concepts of a "stop-andfrisk" and of a search incidental to a lawful arrest. These two types of warrantless
searches differ in terms of the requisite quantum of proof before they may be validly
effected and in their allowable scope.

In a search incidental to a lawful arrest, as the precedent arrest determines the

validity of the incidental search, the legality of the arrest is questioned in a large
majority of these cases, e.g., whether an arrest was merely used as a pretext for
conducting a search. 36 In this instance, the law requires that there first be a lawful
arrest before a search can be made the process cannot be reversed. 37 At
bottom, assuming a valid arrest, the arresting officer may search the person of the
arrestee and the area within which the latter may reach for a weapon or for
evidence to destroy, and seize any money or property found which was used in the
commission of the crime, or the fruit of the crime, or that which may be used as
evidence, or which might furnish the arrestee with the means of escaping or
committing violence. 38

Here, there could have been no valid in flagrante delicto or hot pursuit arrest
preceding the search in light of the lack of personal knowledge on the part of Yu, the
arresting officer, or an overt physical act, on the part of petitioner, indicating that a
crime had just been committed, was being committed or was going to be

Having thus shown the invalidity of the warrantless arrest in this case, plainly, the
search conducted on petitioner could not have been one incidental to a lawful

We now proceed to the justification for and allowable scope of a "stop-and-frisk" as

a "limited protective search of outer clothing for weapons," as laid down in Terry,

We merely hold today that where a police officer observes unusual conduct which
leads him reasonably to conclude in light of his experience that criminal activity
may be afoot and that the persons with whom he is dealing may be armed and
presently dangerous, where in the course of investigating this behavior he identifies
himself as a policeman and makes reasonable inquiries, and where nothing in the
initial stages of the encounter serves to dispel his reasonable fear for his own or
others' safety, he is entitled for the protection of himself and others in the area to
conduct a carefully limited search of the outer clothing of such persons in an
attempt to discover weapons which might be used to assault him. Such a search is a
reasonable search under the Fourth Amendment . . . 39

Other notable points of Terry are that while probable cause is not required to
conduct a "stop and frisk," 40 it nevertheless holds that mere suspicion or a hunch
will not validate a "stop and frisk." A genuine reason must exist, in light of the police
officer's experience and surrounding conditions, to warrant the belief that the
person detained has weapons concealed about him. 41 Finally, a "stop-and-frisk"
serves a two-fold interest: (1) the general interest of effective crime prevention and
detection, which underlies the recognition that a police officer may, under
appropriate circumstances and in an appropriate manner, approach a person for
purposes of investigating possible criminal behavior even without probable cause;
and (2) the more pressing interest of safety and self-preservation which permit the
police officer to take steps to assure himself that the person with whom he deals is
not armed with a deadly weapon that could unexpectedly and fatally be used
against the police officer.

Here, there are at least three (3) reasons why the "stop-and-frisk" was invalid:

First, we harbor grave doubts as to Yu's claim that petitioner was a member of the
group which attempted to bomb Plaza Miranda two days earlier. This claim is neither
supported by any police report or record nor corroborated by any other police officer
who allegedly chased that group. Aside from impairing Yu's credibility as a witness,
this likewise diminishes the probability that a genuine reason existed so as to arrest
and search petitioner. If only to further tarnish the credibility of Yu's testimony,

contrary to his claim that petitioner and his companions had to be chased before
being apprehended, the affidavit of arrest (Exh. "A") expressly declares otherwise,
i.e., upon arrival of five (5) other police officers, petitioner and his companions were
"immediately collared."

Second, there was nothing in petitioner's behavior or conduct which could have
reasonably elicited even mere suspicion other than that his eyes were "moving very
fast" an observation which leaves us incredulous since Yu and his teammates
were nowhere near petitioner and it was already 6:30 p.m., thus presumably dusk.
Petitioner and his companions were merely standing at the corner and were not
creating any commotion or trouble, as Yu explicitly declared on cross-examination:

And what were they doing?

They were merely standing.

You are sure of that?

Yes, sir.

And when you saw them standing, there were nothing or they did not create
any commotion.

None, sir.

Neither did you see them create commotion?

None, sir. 42

Third, there was at all no ground, probable or otherwise, to believe that petitioner
was armed with a deadly weapon. None was visible to Yu, for as he admitted, the
alleged grenade was "discovered" "inside the front waistline" of petitioner, and from
all indications as to the distance between Yu and petitioner, any telltale bulge,
assuming that petitioner was indeed hiding a grenade, could not have been visible
to Yu. In fact, as noted by the trial court:

When the policemen approached the accused and his companions, they were not
yet aware that a handgrenade was tucked inside his waistline. They did not see any
bulging object in [sic] his person. 43

What is unequivocal then in this case are blatant violations of petitioner's rights
solemnly guaranteed in Sections 2 and 12(1) of Article III of the Constitution.

WHEREFORE, the challenged decision of the Seventeenth Division of the Court of

Appeals in CA-G.R. CR No. 15988 is SET ASIDE for lack of jurisdiction on the part of
said Court and, on ground of reasonable doubt, the decision of 10 February 1994 of
Branch 5 of the Regional Trial Court of Manila is REVERSED and petitioner SAMMY
MALACAT y MANDAR is hereby ACQUITTED and ORDERED immediately released
from detention, unless his further detention is justified for any other lawful cause.

Costs de oficio.