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AAA, * G.R. No.




- versus - Ynares-Santiago, J. (Chairperson),

Chico-Nazario, and
Nachura, JJ.
in his capacity as Presiding Judge,
Branch 27, Regional Trial Court, Promulgated:
San Fernando City, La Union and
Respondents. June 8, 2007

This petition for certiorari[1] assails the December 16, 2005 [2] Order of the Regional Trial Court, Branch 27,
San Fernando, La Union in Criminal Case No. 6983, dismissing the rape case filed against private
respondent Jaime O. Arzadon for lack of probable cause; and its February 3, 2006 [3] Order denying
petitioners motion for reconsideration.

Petitioner worked as a secretary at the Arzadon Automotive and Car Service Center from February 28,
2001 to August 16, 2001. On May 27, 2001 at about 6:30 p.m., Arzadon asked her to deliver a book to an
office located at another building but when she returned to their office, the lights had been turned off and the
gate was closed. Nevertheless, she went inside to get her handbag.

On her way out, she saw Arzadon standing beside a parked van holding a pipe. He told her to go
near him and upon reaching his side, he threatened her with the pipe and forced her to lie on the
pavement. He removed her pants and underwear, and inserted his penis into her vagina. She wept and cried
out for help but to no avail because there was nobody else in the premises.

Petitioner did not report the incident because Arzadon threatened to kill her and her family. But
when she discovered that she was pregnant as a consequence of the rape, she narrated the incident to her
parents. On July 24, 2002, petitioner filed a complaint for rape against Arzadon.

On September 16, 2002, Assistant City Prosecutor Imelda Cosalan issued a Resolution [4] finding probable
cause and recommending the filing of an information for rape. Arzadon moved for reconsideration and during
the clarificatory hearing held on October 11, 2002, petitioner testified before the investigating
prosecutor. However, she failed to attend the next hearing hence, the case was provisionally dismissed.

On March 5, 2003, petitioner filed another Affidavit-Complaint [5] with a comprehensive account of
the alleged rape incident. The case was assigned to 2 nd Assistant Provincial Prosecutor
Georgina Hidalgo. During the preliminary investigation, petitioner appeared for clarificatory
questioning. On June 11, 2003, the investigating prosecutor issued a Resolution finding that a prima

facie case of rape exists and recommending the filing of the information.

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Arzadon moved for reconsideration and requested that a panel of prosecutors be constituted to review the
case. Thus, a panel of prosecutors was created and after the clarificatory questioning, the panel issued
on October 13, 2003 a Resolution[7]finding probable cause and denying Arzadons motion for reconsideration.

An Information[8] for rape was filed before the Regional Trial Court, Branch 27, San Fernando, La Union
on February 6, 2004, docketed as Criminal Case No. 6415. Thereafter, Arzadon filed a Motion to Hold in
Abeyance All Court Proceedings Including the Issuance of a Warrant of Arrest and to Determine Probable
Cause for the Purpose of Issuing a Warrant of Arrest. [9] On March 18, 2004, respondent Judge Antonio A.
Carbonell granted the motion and directed petitioner and her witnesses to take the witness stand for
determination of probable cause.
Arzadon also appealed the Resolution of the panel of prosecutors finding probable cause before
the Department of Justice. On July 9, 2004, then Acting Secretary of Justice Merceditas Gutierrez found no
probable cause and directed the withdrawal of the Information in Criminal Case No. 6415. [10]

Upon motion for reconsideration by petitioner, however, Secretary of Justice Raul Gonzales
reversed the July 9, 2004Resolution and issued another Resolution [11] finding that probable cause
exists. Thus, a new Information[12] for rape was filed against Arzadon docketed as Criminal Case No. 6983.

Consequently, Arzadon filed an Urgent Motion for Judicial Determination of Probable Cause for the Purpose
of Issuing a Warrant of Arrest. [13] In an Order dated August 11, 2005, respondent Judge Carbonell granted
the motion and directed petitioner and her witnesses to take the witness stand.

Instead of taking the witness stand, petitioner filed a motion for reconsideration claiming that the
documentary evidence sufficiently established the existence of probable cause. Pending resolution thereof,
she likewise filed a petition [14] with this Court for the transfer of venue of Criminal Case No. 6983. The case
was docketed as Administrative Matter No. 05-12-756-RTC and entitled Re: Transfer of Venue of Criminal
Case No. 6983, formerly Criminal Case No. 6415, from the Regional Trial Court, Branch 27, San
Fernando City, La Union, to any Court in Metro Manila.

In a Resolution[15] dated January 18, 2006, the Court granted petitioners request for transfer of
venue. The case was raffled to the Regional Trial Court of Manila, Branch 25, and docketed as Criminal
Case No. 06-242289. However, the proceedings have been suspended pending the resolution of this

Meanwhile, on December 16, 2005, respondent Judge Carbonell issued the assailed Order
dismissing Criminal Case No. 6983 for lack of probable cause. Petitioners motion for reconsideration was
denied hence, this petition.

Petitioner raises the following issues:[16]


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Petitioner contends that the judge is not required to personally examine the complainant and her witnesses
in satisfying himself of the existence of probable cause for the issuance of a warrant of arrest. She argues
that respondent Judge Carbonell should have taken into consideration the documentary evidence as well as
the transcript of stenographic notes which sufficiently established the existence of probable cause.

Arzadon claims that the petition should be dismissed outright for being the wrong mode of appeal, it
appearing that the issues raised by petitioner properly fall under an action for certiorari under Rule 65, and
not Rule 45, of the Rules of Court.

Respondent Judge Carbonell argues in his Comment [17] that the finding of probable cause by the
investigating prosecutor is not binding or obligatory, and that he was justified in requiring petitioner and her
witnesses to take the witness stand in order to determine probable cause.

The issues for resolution are 1) whether the petition should be dismissed for being the wrong mode
of appeal; and 2) whether respondent Judge Carbonell acted with grave abuse of discretion in dismissing
Criminal Case No. 6983 for lack of probable cause.

The petition has merit.

A petition for review on certiorari under Rule 45 is distinct from a petition for certiorari under Rule
65 in that the former brings up for review errors of judgment while the latter concerns errors of jurisdiction or
grave abuse of discretion amounting to lack or excess of jurisdiction. Grave abuse of discretion is not an
allowable ground under Rule 45. However, a petition for review on certiorari under Rule 45 may be
considered a petition for certiorari under Rule 65 where it is alleged that the respondents abused their
discretion in their questioned actions, as in the instant case. [18] While petitioner claims to have brought the
instant action under Rule 45, the grounds raised herein involve an alleged grave abuse of discretion on the
part of respondent Judge Carbonell. Accordingly, the Court shall treat the same as a petition
for certiorari under Rule 65.

However, we must point out the procedural error committed by petitioner in directly filing the instant
petition before this Court instead of the Court of Appeals, thereby violating the principle of judicial hierarchy
of courts. It is well-settled that although the Supreme Court, Court of Appeals and the Regional Trial Courts
have concurrent jurisdiction to issue writs of certiorari, prohibition, mandamus, quo warranto, habeas
corpus and injunction, such concurrence does not give the petitioner unrestricted freedom of choice of court
forum.[19] In this case, however, the gravity of the offense charged and the length of time that has passed

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since the filing of the complaint for rape, compel us to resolve the present controversy in order to avoid
further delay.[20]

We thus proceed to the issue of whether respondent Judge Carbonell acted with grave abuse of
discretion in dismissing Criminal Case No. 6983 for lack of probable cause.

We rule in the affirmative.

Respondent Judge Carbonell dismissed Criminal Case No. 6983 for lack of probable cause on the
ground that petitioner and her witnesses failed to comply with his orders to take the witness stand. Thus

In RESUME therefore, as indubitably borne out by the case record and

considering that the Private Prosecutor, despite several admonitions contumaciously nay
contemptuously refused to comply/obey this Courts Orders of March 18, 2004, August
11, 2005 and eight (8) other similar Orders issued in open Court that directed the
complainant/witnesses to take the witness stand to be asked probing/clarificatory
questions consonant with cited jurisprudential rulings of the Supreme Court, this Court in
the exercise of its discretion and sound judgment finds and so holds that NO probable
cause was established to warrant the issuance of an arrest order and the further
prosecution of the instant case.

Record also shows in no unclear terms that in all the scheduled hearings of the
case, the accused had always been present. A contrario, the private complainant failed
to appear during the last four (4) consecutive settings despite due notice without giving
any explanation, which to the mind of the Court may indicate an apparent lack of interest
in the further prosecution of this case. That failure may even be construed as a
confirmation of the Defenses contention reflected in the case record, that the only party
interested in this case is the Private prosecutor, prodded by the accuseds alleged hostile
siblings to continue with the case.

WHEREFORE, premises considered, for utter lack of probable cause, the

instant case is hereby ordered DISMISSED.[21]

He claims that under Section 2, Article III of the 1987 Constitution, no warrant of arrest shall issue except
upon probable cause to be determined personally by the judge after examination under oath or affirmation of
the complainant and the witnesses he may produce.

However, in the leading case of Soliven v. Makasiar,[22] the Court explained that this constitutional
provision does not mandatorily require the judge to personally examine the complainant and her
witnesses. Instead, he may opt to personally evaluate the report and supporting documents submitted by the
prosecutor or he may disregard the prosecutors report and require the submission of supporting affidavits of
witnesses. Thus:

The addition of the word personally after the word determined and the deletion
of the grant of authority by the 1973 Constitution to issue warrants to other responsible
officers as may be authorized by law, has apparently convinced petitioner Beltran that
the Constitution now requires the judge to personally examine the complainant and his
witnesses in his determination of probable cause for the issuance of warrants of
arrest. This is not an accurate interpretation.

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What the Constitution underscores is the exclusive and personal responsibility
of the issuing judge to satisfy himself of the existence of probable cause. In satisfying
himself of the existence of probable cause for the issuance of a warrant of arrest, the
judge is not required to personally examine the complainant and his witnesses. Following
established doctrine and procedure, he shall: (1) personally evaluate the report and the
supporting documents submitted by the fiscal regarding the existence of probable cause
and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds
no probable cause, he may disregard the fiscals report and require the submission of
supporting affidavits of witnesses to aid him in arriving at a conclusion as to the
existence of probable cause.

Sound policy dictates this procedure, otherwise judges would by unduly laden
with the preliminary examination and investigation of criminal complaints instead of
concentrating on hearing and deciding cases filed before their courts. [23]

We reiterated the above ruling in the case of Webb v. De Leon,[24] where we held that before
issuing warrants of arrest, judges merely determine the probability, not the certainty, of guilt of an accused. In
doing so, judges do not conduct a de novo hearing to determine the existence of probable cause. They just
personally review the initial determination of the prosecutor finding a probable cause to see if it is supported
by substantial evidence.[25]

It is well to remember that there is a distinction between the preliminary inquiry which determines
probable cause for the issuance of a warrant of arrest and the preliminary investigation proper which
ascertains whether the offender should be held for trial or be released. The determination of probable cause
for purposes of issuing the warrant of arrest is made by the judge. The preliminary investigation proper
whether or not there is reasonable ground to believe that the accused is guilty of the offense charged is the
function of the investigating prosecutor.[26]

True, there are cases where the circumstances may call for the judges personal examination of the
complainant and his witnesses. But it must be emphasized that such personal examination is not mandatory
and indispensable in the determination of probable cause for the issuance of a warrant of arrest. The
necessity arises only when there is an utter failure of the evidence to show the existence of probable cause.
Otherwise, the judge may rely on the report of the investigating prosecutor, provided that he likewise
evaluates the documentary evidence in support thereof.

Indeed, what the law requires as personal determination on the part of the judge is that he should
not rely solely on the report of the investigating prosecutor. In Okabe v. Gutierrez,[28] we stressed that the
judge should consider not only the report of the investigating prosecutor but also the affidavit and the
documentary evidence of the parties, the counter-affidavit of the accused and his witnesses, as well as the
transcript of stenographic notes taken during the preliminary investigation, if any, submitted to the court by
the investigating prosecutor upon the filing of the Information. [29] If the report, taken together with the
supporting evidence, is sufficient to sustain a finding of probable cause, it is not compulsory that a personal
examination of the complainant and his witnesses be conducted.

In this case, respondent Judge Carbonell dismissed Criminal Case No. 6983 without taking into
consideration the June 11, 2003 Resolution of 2 nd Assistant Provincial Prosecutor Georgina Hidalgo, the
October 13, 2003 Resolution of the panel of prosecutors, and the July 1, 2005 Resolution of the Department
of Justice, all of which sustain a finding of probable cause against Arzadon. Moreover, he failed to evaluate
the evidence in support thereof. Respondent judges finding of lack of probable cause was premised only on

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the complainants and her witnesses absence during the hearing scheduled by the respondent judge for the
judicial determination of probable cause.

Petitioner narrated in detail the alleged rape incident both in her Sinumpaang
Salaysay dated July 24, 2002 and Complaint-Affidavit dated March 5, 2003. She attended several
[30] [31]

clarificatory hearings that were conducted in the instant case. The transcript of stenographic notes [32] of the
hearing held on October 11, 2002 shows that she positively identified Arzadon as her assailant, and the
specific time and place of the incident. She also claimed that she bore a child as a result of the rape and, in
support of her contentions, presented the child and her birth certificate as evidence. In contrast, Arzadon
merely relied on the defense of alibi which is the weakest of all defenses.

After a careful examination of the records, we find that there is sufficient evidence to establish
probable cause. The gravamen of rape is the carnal knowledge by the accused of the private complainant
under any of the circumstances provided in Article 335 of the Revised Penal Code, as amended. [33] Petitioner
has categorically stated that Arzadon raped her, recounting her ordeal in detail during the preliminary
investigations. Taken with the other evidence presented before the investigating prosecutors, such is
sufficient for purposes of establishing probable cause. It is well-settled that a finding of probable cause need
not be based on clear and convincing evidence beyond reasonable doubt. Probable cause is that which
engenders a well-founded belief that a crime has been committed and that the respondent is probably guilty
thereof and should be held for trial. It does not require that the evidence would justify conviction. [34]

It is clear therefore that respondent Judge Carbonell gravely abused his discretion in dismissing
Criminal Case No. 6983 for lack of probable cause on the ground that petitioner and her witnesses failed to
take the witness stand. Considering there is ample evidence and sufficient basis on record to support a
finding of probable cause, it was unnecessary for him to take the further step of examining the petitioner and
her witnesses. Moreover, he erred in holding that petitioners absences in the scheduled hearings were
indicative of a lack of interest in prosecuting the case. In fact, the records show that she has relentlessly
pursued the same.

Needless to say, a full-blown trial is to be preferred to ferret out the truth. [35] As it were, the incidents
of this case have been pending for almost five years without having even passed the preliminary
investigation stage. Suffice to say that the credibility of petitioner may be tested during the trial where the
respective allegations and defenses of the complainant and the accused are properly ventilated. It is only
then that the truth as to Arzadons innocence or guilt can be determined.

WHEREFORE, the petition is GRANTED. The Orders of the Regional Trial Court, Branch 27,
San Fernando, La Union dated December 16, 2005, and February 3, 2006 dismissing Criminal Case No.
6983 for lack of probable cause are REVERSED and SET ASIDE, and the Information in the said case is
hereby REINSTATED. The Regional Trial Court, Branch 25, Manila is DIRECTED to take cognizance of
the case and let the records thereof be REMANDED to the said court for further proceedings.



[G.R. Nos. 141129-33. December 14, 2001]

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JOVERE, accused-appellant.

This case pierces the enduring belief in the family as a peaceful retreat. Here, we are faced with a
father who, it is claimed, attempted to rape his own daughter once and succeeded in consummating it four
(4) times before then, as a result of which he was sentenced to a prison term and imposed four (4) death
penalties. The children, as many others in the past, are unfortunately the victims of this indecency in an
atrophied family, something that we stress is never about losing virtue or honor but an assault upon their
persons akin to torture or murder.[1] Quite understandably, most crimes of this nature remain unreported,
while the perpetrators in those cases prosecuted and tried, naturally engender enmity and rage. With
sensitivity to this call for justice and healing, we proceed to review this criminal case.

Roland J. Molina, accused-appellant, was charged with attempted rape and four (4) counts of
incestuous rape penalized under RA 8353 amending Art. 266 of The Revised Penal Code committed against
his very own 16-year old[2] daughter Brenda Molina. He was found guilty by the court a quoin these five (5)
crimes for which he was meted an indeterminate sentence of eight (8) years and one (1) day of prision
mayor as minimum to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal as
maximum for the attempted rape, and four (4) death sentences for the four (4) counts of incestuous rape. He
was also ordered to pay his victim indemnity and moral damages each worth P75,000.00. His conviction is
now the subject of this automatic review,[3] and tests our fealty to procedural fairness and the rule of law.

The four (4) cases of incestuous rape were allegedly committed by accused-appellant Roland Molina
sometime in August 1998, 22 September, 29 September and 24 December 1998, while the attempted rape,
on 1 March 1999. Upon the verbal complaint of his daughter Brenda, accused-appellant was arrested on 3
March 1999 and detained at the municipal jail of Sta. Barbara, Pangasinan. There is however nothing on
record from then on to account for his version of the facts.

Despite his immediate arrest and the absence of a waiver under the 1985 Rules on Criminal
Procedure, accused-appellant was subjected to a regular preliminary investigation by the municipal trial
judge whose findings[4] were affirmed by the Provincial Prosecutor. Accused-appellant did not file a counter-
affidavit to refute the charges. The preliminary investigation took about one (1) month to complete, after
which, accused-appellant was transferred from the Sta. Barbara Municipal Jail to the Pangasinan Provincial
Jail. Thereafter, four (4) Informations were filed against accused-appellant for raping his own daughter who
was below eighteen (18) years old [5] and one (1) Information for attempted rape. [6] The cases were raffled to
RTC-Br. 42 in Dagupan City, Pangasinan.

Roland Molina was arraigned on the four (4) indictments for incestuous rape on 18 May 1999. He
pleaded not guilty to each of the four (4) charges. On 20 May 1999 these cases were consolidated with the
attempted rape to which he also pleaded not guilty on 3 June 1999, after which, the pre-trial was conducted
for all the five (5) cases. The trial commenced on 22 July 1999 with the mother of complaining witness
Brenda Molina testifying. Parenthetically, two (2) of the Informations (Crim. Cases Nos. 99-02818-D and 99-
02819-D), both for incestuous rape, were amended to specify the dates of commission of the crimes.

On 30 August 1999 the hearing was cut short when the prosecution "asked for a deferment to
determine whether the proposal of the accused to withdraw his plea of not guilty and change same (sic) to
guilty could have the effect of lowering the penalty attached to the offense charged to reclusion
perpetua."[7] Trial was thus reset to 2 September 1999 on which date the defense counsel manifested the
desire of accused-appellant to change his plea to guilty as regards all the five (5) crimes since he "was being

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bothered by his conscience and by way of contrition would like to make amends." [8] Thus he was immediately
re-arraigned and entered a plea of guilty "after," as the trial court noted, "the consequences of the change of
plea had been duly explained to him by his counsel and by 1st Asst. Provincial Prosecutor Eugenio Manaois,
the public prosecutor handling the case for the prosecution." [9] Despite this observation of the trial court, there
is nothing on record to determine what this explanation consisted of. By way of concession, after accused-
appellant was arraigned, the defense counsel prayed for liberality from the trial court "even only by
recommending the accused for executive clemency." [10]

The prosecution then proceeded to present its evidence on 16 September 1999 to ascertain
with precision the real culpability of accused-appellant. All in all, the prosecution evidence consisted of (a)
the testimonies of Brenda, her mother, the police investigators, a barangay councilor, and the medico-legal
officer, and (b) certain documents, e.g., the birth certificate of Brenda, the medico-legal certificate, and the
letter of accused-appellant to his daughter Brenda begging the latter's forgiveness. While the defense
counsel cross-examined the prosecution witnesses, he did not introduce any evidence in behalf of accused-

On 10 November 1999 the trial court rendered judgment finding accused-appellant guilty of the five (5)
crimes charged on the basis of "the change of plea by the accused from not guilty to guilty, and the testimony
of the offended party Brenda Molina and the corroborating evidence presented by the prosecution, both oral
and written."[11] The trial court however strongly recommended executive clemency in light of his plea of guilt
and his alleged letter that ambiguously expressed his remorse for some unidentified acts. No notice of
appeal was filed from the conviction in the criminal case for attempted rape. Accused-appellant was
thereafter transferred from the Pangasinan Provincial Jail to the National Penitentiary at Muntinlupa City.

The Public Attorneys Office, in its Brief for the Appellant, asserts that accused-appellant's plea of guilty
was improvidently made.

We find merit in this observation. Verily it was incumbent upon the trial court to observe the provisions
of Secs. 1, par. (a), and 3, of Rule 116,1985 Rules on Criminal Procedure, when accused-appellant
manifested his intention to withdraw his earlier plea of not guilty to re-enter a plea of guilty to the four (4)
crimes of incestuous rape and one (1) attempted rape. In this regard, we find critical omissions in the
procedure adopted by the trial court in the re-arraignment of accused-appellant. For one, Sec. 1, par. (a), of
Rule 116 of the Rules of Court,[12] which requires that the accused-appellant must be furnished a copy of the
complaint or information with the list of witnesses to be read to him in the language or dialect known to him,
was not followed by the trial court. Record of the re-arraignment merely noted that "the accused was re-
arraigned and [he] entered a plea of guilty separately in the five-entitled cases after the consequences of the
change of plea have been duly explained to him x x x" [13] but it does not state that copies of the five (5)
Informations and the list of witnesses were given to him and the Informations read in a language that he
knows. We ruled in People v. Bello[14] that when the death penalty is at stake, the presumption of regularity in
the performance of official functions does not apply -

The original record of this case is completely bereft of any document concerning accused-appellant's
supposed re-arraignment. We cannot presume that the re-arraignment of accused-appellant was regularly
conducted. We cannot lean on this rebuttable presumption especially when a man's life is at stake. We
cannot anchor our judgment based on mere speculations and conjectures. Rather, we must be positively

Clearly, it cannot be said that the trial court complied with this rule.

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Even the certificate of re-arraignment[15] contradicts the statement therein that accused-appellant was
separately re-arraigned in the five (5) criminal cases. This certificate states "complaint" (singular) rather
than "complaints" (plural) since there were five (5) criminal cases to which he was allegedly pleading
guilty[16] and thus irregularly attests to his guilty plea to only one (1) of the five (5) Informations. [17] In People v.
Estomaca[18] we held -

At threshold, what strikes this Court as peculiar is that the arraignment appears to have consisted merely of
the bare reading of the five complaints, synthetically and cryptically reported in the transcript, thus: "(Reading
the information/complaint to the accused in Ilonggo/local dialect)." Since what was supposed to have been
read was stated in the singular, but there were five criminal complaints against appellant, this Court is then
left to speculate on whether all five criminal complaints were actually read, translated or explained to
appellant on a level within his comprehension, considering his limited education.

Moreover, the trial court did not conduct a searching inquiry to establish that the plea of guilty was
done voluntarily with full awareness of its consequences. [19] This procedure is anchored on Sec. 3, of Rule
116, 1985 Rules of Criminal Procedure -

When the accused pleads guilty to a capital offense, the court shall conduct a searching inquiry into the
voluntariness and full consequences of his plea and require the prosecution to prove his guilt and the precise
degree of culpability. The accused may also present evidence on his behalf.

Under established principles, a searching inquiry must not only comply with the requirements of Sec. 1,
par. (a), of Rule 116 but must also expound on the events that actually took place during the arraignment, the
words spoken and the warnings given,[20] with special attention to the age of the accused, his educational
attainment and socio-economic status [21] as well as the manner of his arrest and detention, the provision of
counsel in his behalf during the custodial and preliminary investigations, and the opportunity of his defense
counsel to confer with him.[22] These matters are relevant since they serve as trustworthy indices of his
capacity to give a free and informed plea of guilt. [23] Lastly, the trial court must explain the essential elements
of the five (5) crimes he was charged with and their respective penalties and civil liabilities, [24] and also direct
a series of questions to defense counsel to determine whether he has conferred with the accused and has
completely explained to him the meaning of a plea of guilty. [25]This formula is mandatory and absent any
showing that it was followed, a searching inquiry cannot be said to have been undertaken. [26]

Nothing on record shows that the foregoing inquiry was complied with, or in any manner or event
answered. Not even the assurance conveyed to us by the Order of the trial court of 2 September 1999
sketchily alleging compliance with the requirements satisfies a searching inquiry -

In todays hearing, the private offended party was supposed to continue with her testimony. Atty. Elmer Surot,
counsel for the accused, however, manifested that the accused was being bothered by his conscience and
by way of contrition would like to make amends by withdrawing his pleas of not guilty in the above-entitled
cases and change same to pleas of guilty. Thus, the accused was re-arraigned and entered a plea of guilty
separately in the five-entitled cases after the consequences of the change of plea have been duly explained
to him by his counsel and by 1st Asst. Provincial Prosecutor Eugenio Manaois, the Public Prosecutor
handling the case for the prosecution.

With this Order alone, we have nothing to go by to state for sure that the trial court followed the steps
or asked the questions outlined above or that accused-appellant's own counsel advised him adequately. As
stated above, we do not presume compliance with the requirements from a silent record. The fact that the
consequences of the plea were explained to accused-appellant does not comply with the strict parameters of
a searching inquiry since "a mere warning that the accused faces the supreme penalty of death is

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insufficient."[27] There are therefore clearly no verifiable facts for us to assume that he completely
comprehended the legal significance of a guilty plea and the nature of the crime or crimes he confessed to.

Equally distressing is the correlated omission of the transcripts of stenographic notes of the supposed
re-arraignment or plea colloquy of accused-appellant. We have emphasized the need for and importance of
such transcripts,[28] and even more in the instant case where accused-appellant manifested his desire to
change his plea on the condition that the death penalty would not be imposed. Thus the trial court deferred
the hearing on 29 August 1999 precisely to give the prosecution time to "x x x determine whether the
proposal of the accused to withdraw his plea of not guilty and change the same to guilty could have the effect
of lowering the penalty attached to the offense charged to reclusion perpetua."[29] If the searching inquiry
were reduced into writing, this Court would have been duly informed of accused-appellant's sincere intention
to change his plea despite the imposition of the capital penalty and the legal impossibility of any promise of

In view of the foregoing we have no alternative but to set aside the plea of guilty.[30]

It is also urged in the Brief for the Appellant that an improvident plea of guilty per se results in the
remand of the criminal case(s) to the trial court for the re-arraignment of accused-appellant and for further
proceedings. We hold that this argument does not accurately reflect the standing principle. Our jurisdiction
does not subscribe to a per se rule that once a plea of guilty is deemed improvidently made that the
accused-appellant is at once entitled to a remand. To warrant a remand of the criminal case, it must also be
proved that as a result of such irregularity there was inadequate representation of facts by either the
prosecution or the defense during the trial. In People v. Abapo[31] we found that undue reliance upon an
invalid plea of guilty prevented the prosecution from fully presenting its evidence, and thus remanded the
criminal case for further proceedings. Similarly in People v. Durango[32] where an improvident plea of guilty
was followed by an abbreviated proceeding with practically no role at all being played by the defense, we
ruled that this procedure was "just too meager to accept as being the standard constitutional due process at
work enough to forfeit a human life" and so threw back the criminal case to the trial court for appropriate
action. Verily the relevant matter that justifies the remand of the criminal case to the trial court is the
procedural unfairness or complete miscarriage of justice in the handling of the proceedings a quo as
occasioned by the improvident plea of guilty,[33] or what People v. Tizon[34] encapsulizes as the "attendant

Where facts are however adequately represented in the criminal case and no procedural unfairness or
irregularity has prejudiced either the prosecution or the defense as a result of the improvident plea of guilty,
the settled rule is that a decision based on an irregular plea may nevertheless be upheld where the judgment
is supported beyond reasonable doubt by other evidence on record [35] since it would be a useless ritual to
return the case to the trial court for another arraignment and further proceedings. [36]

After a careful examination of the records, we find that the improvident plea of guilt of accused-
appellant has affected the manner by which the prosecution and the defense conducted its presentation of
the evidence, and the trial court in carefully evaluating the evidence on record. Remand of Crim. Cases Nos.
99-02817-D, 99-02818-D, 99-02819-D, 99-02820-D and 99-02821-D for re-arraignment and further relevant
proceedings is therefore proper. First, the prosecution failed to lay the proper foundation for the introduction
of the alleged handwritten letter of accused-appellant acknowledging his guilt for the rape of his
daughter. This could very well be attributed to the fact that this letter was introduced only after accused-
appellant pleaded guilty to the accusations for which reason the prosecution no longer endeavored to elicit
the proper foundation for this evidence.

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Under Sec. 20 of Rule 132, Rules of Court, proof of the authenticity and due execution of this letter is
done by "anyone who saw the document executed or written" or "evidence of the genuineness of the
signature or handwriting of the maker." Brenda's testimony that the letter was given to her by her father's
nephew and grandfather and that it was signed by accused-appellant does not prove the authorship of the
letter.[37] In the first place, no foundation was laid to ascertain that she knew the signature of her father, and
her reliance upon statements of her father's nephew and grandfather (even if truly said) would be hearsay
and speculative. Furthermore, the contents of the letter are, as it is, far from damaging. Its relevant parts are
ambiguous from which we cannot infer anything about the alleged cases of rape of Brenda. It states, "x x x
please forgive me for what happened to us x x x so please forgive and Ill promise I will not repeat anymore
what I have done to you." Verily, several conclusions could be deciphered from these statements that may
have nothing to do at all with rape.

It is certainly within the power of the prosecution to compel accused-appellant's nephew and
grandfather to prove the authenticity and due execution of the alleged damning letter since they were the
sources thereof. Or perhaps if accused-appellant was indeed pleading guilty then, he could very well
accommodate the prosecution by owning authorship of the letter and clarifying its meaning. This the
prosecution may undertake in the course of the proceedings upon remand of the criminal cases.

Second, the presentation of the prosecution's case was lacking in assiduity and was not characterized
with the meticulous attention to details that is necessarily expected in a prosecution for a capital offense. In
his examination of Brenda after accused-appellant pleaded guilty, the public prosecutor was evidently
concerned with abbreviating the proceedings as shown by his failure to clarify such ambiguous statements
as "he repeated to me what he had done to me" when previously he pursued such ambiguities to their clear
intended meanings. It is clear to our mind that the prosecution did not discharge its obligation as seriously as
it should have had, had there been no plea of guilt on the part of the accused. The prosecutor's questions
and Brenda's answers are as follows -

[in August 1998]

Q: And after kissing your neck as well as your breast, what else did your father do?

A: He tried to insert his penis inside my private part, sir.

Q: Was he successful?

A: No sir.

Q: Why do you know that he was inserting his penis into your vagina?

A: Because I felt pain, sir.

Q: When you felt pain, what did you do?

A: I pushed his arms, sir x x x x

Q: What happened when you cannot (sic) do anything anymore?

A: (Witness crying.) He succeeded, sir. He used me x x x x

Q: When you said your father was successful in doing what he wanted to do and that he used you,
what do you mean by he used you?

Page 11 of 41
A: He had sexual intercourse with me, sir. (TSN, 16 August 1999, pp. 23-25).

[on 22 September 1998]

Q: After removing your shirt and panty, what did he do next?

A: That he did what he wanted to do, sir.

Q: What is that, tell us frankly?

A: The fact what he does to my mother, sir.

Q: What is that which your father does to your mother and which he did to you on that night of
September 22, 1998, tell us in plain language?

A: (Witness is crying.) He is already making sex with me, sir. (TSN, 16 September 1999, p. 6).

[about one week after 22 September 1998]

Q: While you were sleeping in your house on that same date which is (sic) approximately one week
after September 22, was there anything unusual that took place?

A: Yes, sir.

Q: What is (sic) it?

A: He repeated to me what he did to me for the first time and second time, sir. (TSN, 16
September 1999, pp. 7-8).

[on 24 December 1998]

Q: While you were sleeping on that night of December 24, was there anything unusual that took

A: Yes, sir.

Q: What was that?

A: He repeated to me (again) what he had done to me, sir. (TSN, 16 September 1999, p. 10).

Third, the prosecution could very well clarify why on 1 March 1999 after accused-appellant's wife saw
him and Brenda sleeping side by side and after she confronted his husband about it [38] and was told by her
daughter that "if I will tell it to you, my father will kill us," [39] accused-appellant was still allegedly able to
attempt a rape on his daughter on the same date. [40] It is our understanding of the behavior of gutter criminals
that with the confrontation between him and his wife, he would have laid low a while even for just that day.
The prosecution may want to elucidate on this seemingly unnatural behavior.

Fourth, neither the defense nor the prosecution elicited from the private complainant whether the
accusations for incestuous rape and attempted rape were in a manner colored by the seething allegations in
the transcript of stenographic notes that accused-appellant was a violent person towards his family, most
especially his wife who is Brenda's mother.[42] This Court would want to know for sure that these criminal

Page 12 of 41
cases under review are not merciless equivalents of the alleged violence done by accused-appellant. Our
endeavor is to try the case on the facts and not upon the supposedly despicable character of the man.

Fifth, the improvident plea appears to have sent the wrong signal to the defense that proceedings
thereafter would be abbreviated. There was thus a perfunctory representation of accused-appellant as
shown by (a) his counsel's failure to object to and correct the irregularities during his client's re-arraignment;
(b) his failure to question the offer of the alleged letter wherein accused-appellant acknowledged his
authorship of the dastardly crimes; (c) his failure to present evidence in behalf of accused-appellant or to so
inform the latter of his right to adduce evidence whether in support of the guilty plea or in deviation therefrom;
(d) his failure to object to his clients warrantless arrest and the designation of the crime in Crim. Case No.
99-02821-D as attempted rape when the evidence may appear not to warrant the same; and, (e) his failure
to file a notice of appeal as regards Crim. Case No. 99-02821-D to the Court of Appeals for appropriate
review. This Court perceives no reasonable basis for excusing these omissions as counsel's strategic
decision in his handling of the case. Rather, they constitute inadequate representation that renders the result
of the trial suspect or unreliable, and as we explained in People v. Durango,[43] in violation of the right to
counsel of accused-appellant -

The improvident plea, followed by an abbreviated proceeding, with practically no role at all played by the
defense, is just too meager to accept as being the standard constitutional due process at work enough to
forfeit a human life. It may be opportune to invite attention to the disquisition of the Court in People v.
Bermas, thus -

. . . The right to counsel proceeds from the fundamental principle of due process which basically means that
a person must be heard before being condemned. The due process requirement is a part of a person's basic
rights; it is not a mere formality that may be dispensed with or performed perfunctorily.

The right to counsel must be more than just the presence of a lawyer in the courtroom or the mere
propounding of standard questions and objections.The right to counsel means that the accused is amply
accorded legal assistance extended by a counsel who commits himself to the cause for the defense and acts
accordingly. The right assumes an active involvement by the lawyer in the proceedings, particularly at the
trial of the case, his bearing constantly in mind of the basic rights of the accused, his being well-versed on
the case, and his knowing the fundamental procedures, essential laws and existing jurisprudence. The right
of an accused to counsel finds substance in the performance by the lawyer of his sworn duty of fidelity to his
client. Tersely put, it means an efficient and truly decisive legal assistance and not a simple perfunctory

The flawed re-arraignment of accused-appellant and the invalid admission of his supposed letter-
admission were caused by the omission of minimal standards for a searching inquiry in the former and the
admissibility of private documents in the latter. We cannot conceive any reasonable legal basis to explain the
oversight to contest these errors. Under the same set of facts, it was held in Commonwealth of Pennsylvania
v. Bruno:[44]

In ruling upon appellant's claim that he was denied effective assistance of counsel, we are guided by the
standard established by our Supreme Court in Commonwealth ex rel. Washington v. Maroney x x x

[O]ur inquiry ceases and counsel's assistance is deemed constitutionally effective once we are able to
conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his
client's interests. The test is not whether other alternatives were more reasonable, employing a hindsight
evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of
effective assistance as soon as it is determined that trial counsel's decisions had any reasonable basis.

Page 13 of 41
Counsels failure to insure that the plea colloquy conducted met at least the minimal standards as set forth in
Rule 319 and cases of this Commonwealth [have] no reasonable legal basis that we can discern. As such,
we hold that appellant was denied effective assistance of counsel.

Considering the other attendant circumstances, with more reason should we so rule in the instant case.

While no longer material to the merits of the criminal cases now under review, it appears to us that
accused-appellant's warrantless arrest on 3 March 1999 was contrary to law. We observe with due attention
how he was arrested without a warrant and thereafter subjected to the regular process of preliminary
investigation without the benefit of a waiver as called for in Art. 125, The Revised Penal Code, and Sec. 7 of
Rule 112, 1985 Rules of Criminal Procedure . Without belaboring this matter, it is worth stressing that his
warrantless arrest was under no emergency circumstance of flight or risk to law enforcers and more
obviously under none of the circumstances stated in Sec. 5, of Rule 113, 1985 Rules of Criminal
Procedure.Unfortunately, the public defender did not bring these facts to the attention of the trial court for
remedial measures.

The accusation and conviction of accused-appellant for attempted rape in Crim. Case No. 99-02821-D
were based on the testimony of Brenda that she was watching television when her father unexpectedly sat
beside her, pushed her to the floor, went on top of her, and with their clothes on, wiggled his hips while
drubbing his penis on her unexposed vagina.[45] As she further testified, her friends suddenly called out her
name from the house's frontage since they were supposed to attend a wake at a relative's house, and the
unexpected visitors forced accused-appellant to stop his prurient motions. [46] Considering these allegations,
the defense could have plausibly argued accused-appellant's absence of intent to lie with the victim, or given
accused-appellants alleged willingness to plead guilty, at least conferred with the latter to inquire from him if
he did have the intention then to have carnal knowledge of his daughter since the crime may constitute acts
of lasciviousness and not the crime charged.[47]

Still, as regards the conviction for attempted rape, this Court notes the conspicuous absence of a
Notice of Appeal to the Court of Appeals for proper review. It was necessary to file such notice since the
conviction does not fall under Sec. 17, par. (1), RA 296 ( The Judiciary Act of 1948) as amended which
outlines our jurisdiction over "[a]ll criminal cases involving offenses for which the penalty imposed is death or
life imprisonment; and those involving other offenses which, although not so punished, arose out of the same
occurrence or which may have been committed by the accused on the same occasion, as that giving rise to
the more serious offense x x x x"[48] In the instant case, it cannot be said that the attempted rape "arose out of
the same occurrence or committed by the accused on the same occasion" as the more severe crimes of
incestuous rape. The two (2) sets of cases involved distinct offenses committed allegedly at an interval of
three (3) months. The prosecution evidence reveals that the last incident of incestuous rape was committed
on Christmas eve of 1998 while the attempted rape was perpetrated on 1 March 1999. As can be deduced
further from the same evidence, the circumstances in both cases are diverse that clearly accused-appellant
was animated by separate circumstances and criminal intent although both crimes were directed against the
same victim. The prosecution evidence for the attempted rape shows that he merely commenced the
foreplay by mimicking the sexual act while he and his daughter had their clothes on; while in contrast, the
four (4) criminal cases of rape involved consummated lust.

This omission is fatal since ordinarily the conviction for attempted rape would by now be already final
and executory. No doubt this omission was caused by accused-appellant's improvident plea of guilty that led
the public defender to simply shorten the proceedings. Given that the plea of guilty has been set aside,
effective counseling would have nonetheless dictated the institution of at least a precautionary appeal to the
appellate court if only to assure protection of his client's rights.

Page 14 of 41
Sixth, for whatever reason, accused-appellant had not found a voice in the proceedings a quo. Oddly
from the preliminary investigation to the promulgation of judgment his version was never heard of even if
prior to his re-arraignment he appeared adamant at denying the crimes charged against him. This situation is
lamentable since at the preliminary investigation of a criminal case the Constitution requires that an accused
be informed of his right to counsel and provided with a lawyer if he cannot afford to hire one, and that a
waiver of these rights requires the assistance of counsel.

While it is true that unrebutted evidence provides itself an effective corroboration, [49] we cannot give
credence to this rule given the circumstances under which such deficiency came about. For one, had the trial
court correctly implemented the corresponding rules on plea of guilty, we may not be having this situation
where only the private complainant was heard. The absence of the transcripts of stenographic notes of the
arraignment proceedings already denies us "full opportunity to review the cases fairly and
intelligently."[50] After having set aside the plea of guilty, we could never be sure that accused-appellant would
waive telling his version of the story, or that the facts would still be the same after we hear him say his
side. Moreover, the sad fact of this omission is that obviously we could have learned more about the crimes
alleged by the prosecution if accused-appellant had also participated meaningfully in all the proceedings
below. His voice could better assure the fairness of any action for or against him. As in similar situations, we
should achieve such comforting posture if the court a quo is required to establish with moral certainty the
guilt of accused-appellant who allegedly wanted to confess his guilt by requiring him to narrate the incident or
making him reenact it, or by causing him to furnish the missing details. [51]

Lastly, the idea that in our midst runs a paucity of facts is substantiated by the assailed Decision of the
trial court itself. It bewailed the sloppy pacing of the trial proper, but in coming up with the judgment of
conviction barely summed up the testimony of the private complainant and other prosecution evidence. No
reason is given why the trial court found the testimonies of the prosecution witnesses credible except for the
bare statement that Brenda wept while on the witness stand and the inadmissible letter allegedly from
accused-appellant admitting the charges against him. The assailed Judgment fails to state, in short, the
factual and legal reasons on which the trial court based the conviction, contrary to Sec. 2 of Rule
120, 1985 Rules on Criminal Procedure.[52]Thus even the Decision lacks the "assurance to the parties that, in
reaching judgment, the judge did so through the processes of legal reasoning x x x a safeguard against the
impetuosity of the judge, preventing him from deciding by ipse dixit."[53]

Given the attendant circumstances in the instant case, we are not therefore about to order the
execution of accused-appellant because of default by both the public defender and, to a certain degree, the
trial court. This Court cannot send him to the death chamber for no matter how outrageous the crime might
be or how depraved the offender would appear to be, the uncompromising rule of law must still prevail. Truly,
there is in the ethics of judgeship the caution expected of every judge, all the more in this case where the
accused stands to be executed four (4) times. The advocate Hugh P. MacMillan drives this point
poignantly: "There is almost always something to be said either way. And it is of the greatest importance that
that something should be said, not only in order that each party may leave the judgment seat satisfied that,
whatever has been the decision, the case has had a fair hearing, but in order that the Court may not reach its
judgment without having had in view all that could be urged to the contrary effect. In order that the decisions
of the Courts may give satisfaction to the parties and at the same time command respect and acceptance,
they must proceed upon full arguments on both sides." [54]

Clearly we are not unmindful that the charges against accused-appellant carry the punishment that is
most severe. The death penalty is irrevocable, and deplorably, experience has shown that innocent persons
have at times pleaded guilty.[55] The dispossessed of fortune should not be disinherited in law. But neither are
we oblivious of Brenda's claim that she was molested and abused successfully by her father four (4)
times. When truth stands, to no person will we sell, or deny, or delay, right or justice, and rightly then would
Page 15 of 41
the consequent public condemnation and punishment of the perpetrator reassure the victim that she has
public recognition and support.[56]

Verily, a judgment of conviction cannot stand upon an invalid arraignment. [57] Since the vice of nullity
affects not only the criminal cases for incestuous rape under automatic review but also the criminal case for
attempted rape, notwithstanding the absence of a notice of appeal in the latter, we rule to set aside the Joint
Decision dated 3 November 1999 in toto. We therefore remand Crim. Cases Nos. 99-02817-D, 99-02818-D,
99-02819-D, 99-02820-D and 99-02821-D to the court a quo for rearraignment and reception of evidence for
the prosecution and accused-appellant if both so desire. If the accused-appellant pleads guilty, the trial court
is instructed to conduct the searching inquiry and to inform him of his right to adduce evidence, in
accordance with the discussion herein made, complete with transcripts of stenographic notes.

WHEREFORE, the Joint Decision dated 3 November 1999 is SET ASIDE. Crim. Cases Nos. 99-
02817-D, 99-02818-D, 99-02819-D, 99-02820-D and 99-02821-D are REMANDED to the court of origin for
rearraignment of accused-appellant ROLANDO MOLINA Y JOVERE and for further proceedings in
accordance with this Decision. For this purpose, the appropriate law enforcement officers are directed to
TRANSFER accused-appellant from the National Penitentiary in Muntinlupa City where he is presently
detained to the Pangasinan Provincial Jail in Lingayen, Pangasinan, where he shall be DETAINED for the
duration of the proceedings in the trial court.


G.R. No. 87059 June 22, 1992

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

ROGELIO MENGOTE y TEJAS, accused-appellant.

Accused-appellant Rogelio Mengote was convicted of illegal possession of firearms on the strength mainly of
the stolen pistol found on his person at the moment of his warrantless arrest. In this appeal, he pleads that
the weapon was not admissible as evidence against him because it had been illegally seized and was
therefore the fruit of the poisonous tree. The Government disagrees. It insists that the revolver was validly
received in evidence by the trial judge because its seizure was incidental to an arrest that was doubtless
lawful even if admittedly without warrant.

The incident occurred shortly before noon of August 8, 1987, after the Western Police District received a
telephone call from an informer that there were three suspicious-looking persons at the corner of Juan Luna
and North Bay Boulevard in Tondo, Manila. A surveillance team of plainclothesmen was forthwith dispatched
to the place. As later narrated at the trial by Patrolmen Rolando Mercado and Alberto Juan, 1 they there saw
two men "looking from side to side," one of whom was holding his abdomen. They approached these
persons and identified themselves as policemen, whereupon the two tried to run away but were unable to
escape because the other lawmen had surrounded them. The suspects were then searched. One of them,
who turned out to be the accused-appellant, was found with a .38 caliber Smith and Wesson revolver with six
live bullets in the chamber. His companion, later identified as Nicanor Morellos, had a fan knife secreted in

Page 16 of 41
his front right pants pocket. The weapons were taken from them. Mengote and Morellos were then turned
over to police headquarters for investigation by the Intelligence Division.

On August 11, 1987, the following information was filed against the accused-appellant before the Regional
Trial Court of Manila:

The undersigned accuses ROGELIO MENGOTE y TEJAS of a violation of Presidential Decree No. 1866,
committed as follows:

That on or about August 8, 1987, in the City of Manila, Philippines, the said accused did then and there
wilfully, unlawfully and knowingly have in his possession and under his custody and control a firearm, to wit:

one (1) cal. 38 "S & W" bearing

Serial No. 8720-T

without first having secured the necessary license or permit therefor from the proper authorities.

Besides the police officers, one other witness presented by the prosecution was Rigoberto Danganan, who
identified the subject weapon as among the articles stolen from him during the robbery in his house in
Malabon on June 13, 1987. He pointed to Mengote as one of the robbers. He had duly reported the robbery
to the police, indicating the articles stolen from him, including the revolver. 2 For his part, Mengote made no
effort to prove that he owned the firearm or that he was licensed to possess it and claimed instead that the
weapon had been "Planted" on him at the time of his arrest. 3

The gun, together with the live bullets and its holster, were offered as Exhibits A, B, and C and admitted over
the objection of the defense. As previously stated, the weapon was the principal evidence that led to
Mengote's conviction for violation of P.D. 1866. He was sentenced to reclusion
perpetua. 4

It is submitted in the Appellant's Brief that the revolver should not have been admitted in evidence because
of its illegal seizure. no warrant therefor having been previously obtained. Neither could it have been seized
as an incident of a lawful arrest because the arrest of Mengote was itself unlawful, having been also effected
without a warrant. The defense also contends that the testimony regarding the alleged robbery in
Danganan's house was irrelevant and should also have been disregarded by the trial court.

The following are the pertinent provision of the Bill of Rights:

Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by
the judge 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.

Sec. 3 (1). The privacy of communication and correspondence shall be inviolable except upon lawful order of
the court, or when public safety or order requires otherwise as prescribed by law.

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose
in any proceeding.

There is no question that evidence obtained as a result of an illegal search or seizure is inadmissible in any
proceeding for any purpose. That is the absolute prohibition of Article III, Section 3(2), of the Constitution.
Page 17 of 41
This is the celebrated exclusionary rule based on the justification given by Judge Learned Hand that "only in
case the prosecution, which itself controls the seizing officials, knows that it cannot profit by their wrong will
the wrong be repressed." The Solicitor General, while conceding the rule, maintains that it is not applicable in
the case at bar. His reason is that the arrest and search of Mengote and the seizure of the revolver from him
were lawful under Rule 113, Section 5, of the Rules of Court reading as follows:

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

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

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

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place
where he is serving final judgment or temporarily confined while his case is pending, or has escaped while
being transferred from one confinement to another.

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

We have carefully examined the wording of this Rule and cannot see how we can agree with the

Par. (c) of Section 5 is obviously inapplicable as Mengote was not an escapee from a penal institution when
he was arrested. We therefore confine ourselves to determining the lawfulness of his arrest under either Par.
(a) or Par. (b) of this section.

Par. (a) requires that the person be arrested (1) after he has committed or while he is actually committing or
is at least attempting to commit an offense, (2) in the presence of the arresting officer.

These requirements have not been established in the case at bar. At the time of the arrest in question, the
accused-appellant was merely "looking from side to side" and "holding his abdomen," according to the
arresting officers themselves. There was apparently no offense that had just been committed or was being
actually committed or at least being attempted by Mengote in their presence.

The Solicitor General submits that the actual existence of an offense was not necessary as long as
Mengote's acts "created a reasonable suspicion on the part of the arresting officers and induced in them the
belief that an offense had been committed and that the accused-appellant had committed it." The question is,
What offense? What offense could possibly have been suggested by a person "looking from side to side" and
"holding his abdomen" and in a place not exactly forsaken?

These are certainly not sinister acts. And the setting of the arrest made them less so, if at all. It might have
been different if Mengote bad been apprehended at an ungodly hour and in a place where he had no reason
to be, like a darkened alley at 3 o'clock in the morning. But he was arrested at 11:30 in the morning and in a
crowded street shortly after alighting from a passenger jeep with I his companion. He was not skulking in the
shadows but walking in the clear light of day. There was nothing clandestine about his being on that street at
that busy hour in the blaze of the noonday sun.

Page 18 of 41
On the other hand, there could have been a number of reasons, all of them innocent, why his eyes were
darting from side to side and be was holding his abdomen. If they excited suspicion in the minds of the
arresting officers, as the prosecution suggests, it has nevertheless not been shown what their suspicion was
all about. In fact, the policemen themselves testified that they were dispatched to that place only because of
the telephone call from the informer that there were "suspicious-looking" persons in that vicinity who were
about to commit a robbery at North Bay Boulevard. The caller did not explain why he thought the men looked
suspicious nor did he elaborate on the impending crime.

In the recent case of People v. Malmstedt, 5 the Court sustained the warrantless arrest of the accused
because there was a bulge in his waist that excited the suspicion of the arresting officer and, upon
inspection, turned out to be a pouch containing hashish. In People v. Claudio, 6 the accused boarded a bus
and placed the buri bag she was carrying behind the seat of the arresting officer while she herself sat in the
seat before him. His suspicion aroused, be surreptitiously examined the bag, which he found to contain
marijuana. He then and there made the warrantless arrest and seizure that we subsequently upheld on the
ground that probable cause had been sufficiently established.

The case before us is different because there was nothing to support the arresting officers' suspicion other
than Mengote's darting eyes and his hand on his abdomen. By no stretch of the imagination could it have
been inferred from these acts that an offense had just been committed, or was actually being committed, or
was at least being attempted in their presence.

This case is similar to People v. Aminnudin, 7 where the Court held that the warrantless arrest of the accused
was unconstitutional. This was effected while be was coming down a vessel, to all appearances no less
innocent than the other disembarking passengers. He had not committed nor was be actually committing or
attempting to commit an offense in the presence of the arresting officers. He was not even acting
suspiciously. In short, there was no probable cause that, as the prosecution incorrectly suggested, dispensed
with the constitutional requirement of a warrant.

Par. (b) is no less applicable because its no less stringent requirements have also not been satisfied. The
prosecution has not shown that at the time of Mengote's arrest an offense had in fact just been committed
and that the arresting officers had personal knowledge of facts indicating that Mengote had committed it. All
they had was hearsay information from the telephone caller, and about a crime that had yet to be committed.

The truth is that they did not know then what offense, if at all, had been committed and neither were they
aware of the participation therein of the accused-appellant. It was only later, after Danganan had appeared at
the Police headquarters, that they learned of the robbery in his house and of Mengote's supposed
involvement therein. 8 As for the illegal possession of the firearm found on Mengote's person, the policemen
discovered this only after he had been searched and the investigation conducted later revealed that he was
not its owners nor was he licensed to possess it.

Before these events, the Peace officers had no knowledge even of Mengote' identity, let alone the fact (or
suspicion) that he was unlawfully carrying a firearm or that he was involved in the robbery of Danganan's

In the landmark case of People v. Burgos, 9 this Court declared:

Under Section 6(a) of Rule 113, the officer arresting a person who has just committed, is committing, or is
about to commit an offense must have personal knowledge of the fact. The offense must also be committed
in his presence or within his view. (Sayo v. Chief of Police, 80 Phil. 859). (Emphasis supplied)

Page 19 of 41
xxx xxx xxx

In arrests without a warrant under Section 6(b), however, it is not enough that there is reasonable ground to
believe that the person to be arrested has committed a crime. A crime must in fact or actually have been
committed first. That a crime has actually been committed is an essential precondition. It is not enough to
suspect that a crime may have been committed. The fact of the commission of the offense must be
undisputed. The test of reasonable ground applies only to the identity of the perpetrator. (Emphasis supplied)

This doctrine was affirmed in Alih v. Castro, 10 thus:

If the arrest was made under Rule 113, Section 5, of the Rules of Court in connection with a crime about to
be committed, being committed, or just committed, what was that crime? There is no allegation in the record
of such a falsification. Parenthetically, it may be observed that under the Revised Rule 113, Section 5(b), the
officer making the arrest must have personal knowledge of the ground therefor as stressed in the recent
case of People v. Burgos. (Emphasis supplied)

It would be a sad day, indeed, if any person could be summarily arrested and searched just because he is
holding his abdomen, even if it be possibly because of a stomach-ache, or if a peace officer could clamp
handcuffs on any person with a shifty look on suspicion that he may have committed a criminal act or is
actually committing or attempting it. This simply cannot be done in a free society. This is not a police state
where order is exalted over liberty or, worse, personal malice on the part of the arresting officer may be
justified in the name of security.

There is no need to discuss the other issues raised by the accused-appellant as the ruling we here make is
sufficient to sustain his exoneration. Without the evidence of the firearm taken from him at the time of his
illegal arrest, the prosecution has lost its most important exhibit and must therefore fail. The testimonial
evidence against Mengote (which is based on the said firearm) is not sufficient to prove his guilt beyond
reasonable doubt of the crime imputed to him.

We commend Atty. Violeta Calvo-Drilon for her able and spirited defense of the accused-appellant not only in
the brief but also in the reply brief, which she did not have to file but did so just the same to stress the
constitutional rights of her client. The fact that she was acting only as a counsel de oficio with no expectation
of material reward makes her representation even more commendable.

The Court feels that if the peace officers had been more mindful of the provisions of the Bill of Rights, the
prosecution of the accused-appellant might have succeeded. As it happened, they allowed their over-
zealousness to get the better of them, resulting in their disregard of the requirements of a valid search and
seizure that rendered inadmissible the vital evidence they had invalidly seized.

This should be a lesson to other peace officers. Their impulsiveness may be the very cause of the acquittal
of persons who deserve to be convicted, escaping the clutches of the law because, ironically enough, it has
not been observed by those who are supposed to enforce it.

WHEREFORE, the appealed decision is REVERSED and SET ASIDE. The accused-appellant is
ACQUITTED and ordered released immediately unless he is validly detained for other offenses. No costs.



Page 20 of 41
PUNO, C.J. , Chairperson,
- versus - CARPIO, CORONA,
P/SUPT. GERMAN B. DORIA Promulgated:
Respondents. August 14, 2009

The Case

Before the Court is a petition for review [1] assailing the 10 July 2004 Decision [2] and 18 October 2004
Order[3] of the Regional Trial Court of Quezon City, Branch 217 (trial court), in Civil Case No. Q-98-33442 for

The Antecedent Facts

Judge Felimon Abelita III (petitioner) filed a complaint for Damages under Articles 32(4) and (9) of the Civil
Code against P/Supt. German B. Doria (P/Supt. Doria) and SPO3 Cesar Ramirez (SPO3
Ramirez). Petitioner alleged in his complaint that on 24 March 1996, at around 12 noon, he and his wife were
on their way to their house in Bagumbayan, Masbate, Masbate when P/Supt. Doria and SPO3 Ramirez
(respondents), accompanied by 10 unidentified police officers, requested them to proceed to the Provincial
PNP Headquarters at Camp Boni Serrano, Masbate, Masbate. Petitioner was suspicious of the request and
told respondents that he would proceed to the PNP Headquarters after he had brought his wife
home. Petitioner alleged that when he parked his car in front of their house, SPO3 Ramirez grabbed him,
forcibly took the key to his Totoya Lite Ace van, barged into the vehicle, and conducted a search without a
warrant. The search resulted to the seizure of a licensed shotgun. Petitioner presented the shotguns license
to respondents. Thereafter, SPO3 Ramirez continued his search and then produced a .45 caliber pistol which
he allegedly found inside the vehicle. Respondents arrested petitioner and detained him, without any
appropriate charge, at the PNP special detention cell.

P/Supt. Doria alleged that his office received a telephone call from a relative of Rosa Sia about a shooting
incident in Barangay Nursery. He dispatched a team headed by SPO3 Ramirez to investigate the
incident. SPO3 Ramirez later reported that a certain William Sia was wounded while petitioner, who was
implicated in the incident, and his wife just left the place of the incident. P/Supt. Doria looked for petitioner
and when he found him, he informed him of the incident report. P/Supt. Doria requested petitioner to go with
him to the police headquarters as he was reported to be involved in the incident. Petitioner agreed but
suddenly sped up his vehicle and proceeded to his residence. P/Supt. Doria and his companions chased
petitioner.Upon reaching petitioners residence, they caught up with petitioner as he was about to run towards
his house. The police officers saw a gun in the front seat of the vehicle beside the drivers seat as petitioner
opened the door. They also saw a shotgun at the back of the drivers seat. The police officers confiscated the
firearms and arrested petitioner. P/Supt. Doria alleged that his men also arrested other persons who were
identified to be with petitioner during the shooting incident. Petitioner was charged with illegal possession of
firearms and frustrated murder. An administrative case was also filed against petitioner before this Court. [4]

The Decision of the Trial Court

In its 10 July 2004 Decision, the trial court dismissed petitioners complaint.

Page 21 of 41
The trial court found that petitioner was at the scene of the shooting incident in Barangay Nursery. The trial
court ruled that the police officers who conducted the search were of the belief, based on reasonable
grounds, that petitioner was involved in the incident and that the firearm used in the commission of the
offense was in his possession. The trial court ruled that petitioners warrantless arrest and the warrantless
seizure of the firearms were valid and legal. The trial court gave more credence to the testimonies of
respondents who were presumed to have performed their duties in accordance with law. The trial court
rejected petitioners claim of frame-up as weak and insufficient to overthrow the positive testimonies of the
police officers who conducted the arrest and the incidental search. The trial court concluded that petitioners
claim for damages under Article 32 of the Civil Code is not warranted under the circumstances.
Petitioner filed a motion for reconsideration.
In its 18 October 2004 Order, the trial court denied the motion.
Hence, the petition before this Court.

The Issues

The issues in this case are the following:

1. Whether the warrantless arrest and warrantless search and seizure were illegal under Section 5, Rule
113 of the 1985 Rules on Criminal Procedure;

2. Whether respondents are civilly liable for damages under Articles 32(4) and (9) of the
Civil Code; and

3. Whether the findings in the administrative case against petitioner are conclusive in this

The Ruling of this Court

The petition has no merit.

Application of Section 5, Rule 113 of the

1985 Rules on Criminal Procedure

Petitioner alleges that his arrest and the search were unlawful under Section 5, Rule 113 of the 1985 Rules
on Criminal Procedure. Petitioner alleges that for the warrantless arrest to be lawful, the arresting officer
must have personal knowledge of facts that the person to be arrested has committed, is actually committing,
or is attempting to commit an offense. Petitioner alleges that the alleged shooting incident was just relayed to
the arresting officers, and thus they have no personal knowledge of facts as required by the Rules.

We do not agree.

Section 5, Rule 113 of the 1985 Rules on Criminal Procedure states:

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

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

Page 22 of 41
(b) 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

(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined while
his case is pending, or has escaped while being transferred from one confinement to

For the warrantless arrest under this Rule to be valid, two requisites must concur: (1) the offender has just
committed an offense; and (2) the arresting peace officer or private person has personal knowledge of facts
indicating that the person to be arrested has committed it. [5]

Personal knowledge of facts must be based on probable cause, which means an actual belief or reasonable
grounds of suspicion.[6] The grounds of suspicion are reasonable when, in the absence of actual belief of the
arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense is
based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the
probable cause of guilt of the person to be arrested. [7] A reasonable suspicion, therefore, must be founded on
probable cause, coupled with good faith on the part of the peace officers making the arrest. [8]

Section 5, Rule 113 of the 1985 Rules on Criminal Procedure does not require the arresting officers to
personally witness the commission of the offense with their own eyes. In this case, P/Supt. Doria received a
report about the alleged shooting incident. SPO3 Ramirez investigated the report and learned from
witnesses that petitioner was involved in the incident. They were able to track down petitioner, but when
invited to the police headquarters to shed light on the incident, petitioner initially agreed then sped up his
vehicle, prompting the police authorities to give chase. Petitioners act of trying to get away, coupled with the
incident report which they investigated, is enough to raise a reasonable suspicion on the part of the police
authorities as to the existence of probable cause.

Plain View Doctrine

The seizure of the firearms was justified under the plain view doctrine.

Under the plain view doctrine, objects falling in the plain view of an officer who has a right to be in the
position to have that view are subject to seizure and may be presented as evidence. [9] The plain view
doctrine applies when the following requisites concur: (1) the law enforcement officer in search of the
evidence has a prior justification for an intrusion or is in a position from which he can view a particular area;
(2) the discovery of the evidence in plain view is inadvertent; and (3) it is immediately apparent to the officer
that the item he observes may be evidence of a crime, contraband or otherwise subject to seizure. [10]

In this case, the police authorities were in the area because that was where they caught up with petitioner
after the chase. They saw the firearms inside the vehicle when petitioner opened the door. Since a shooting
incident just took place and it was reported that petitioner was involved in the incident, it was apparent to the
police officers that the firearms may be evidence of a crime. Hence, they were justified in seizing the

Civil Liability Under Article 32 of the Civil Code

Petitioner alleges that respondents are civilly liable under paragraphs (4) and (9) of Article 32 of the Civil
Page 23 of 41
Paragraphs (4) and (9) of Article 32 of the Civil Code respectively state:

Art. 32. Any public officer or employee, or any private individual, who directly or indirectly
obstructs, defeats, violates or in any manner impedes or impairs any of the following
rights and liberties of another person shall be liable to the latter for damages:


(4) Freedom from arbitrary or illegal detention;


(9) The right to be secure in ones person, house, papers, and effects against unreasonable searches and

In this case, it was established that petitioner was lawfully arrested without a
warrant and that firearms were validly seized from his possession. The trial
court found that petitioner was charged with illegal possession of firearms and
frustrated murder. We agree with the trial court in rejecting petitioners
allegation that he was merely framed-up. We also agree with the trial court that
respondents were presumed to be performing their duties in accordance with
law. Hence, respondents should not be held civilly liable for their actions.

Res Judicata Does Not Apply

Respondents raise the defense of res judicata against petitioners claim for damages.

Res judicata has two aspects: bar by prior judgment and conclusiveness of judgment provided under Section
47(b) and (c), Rule 39, respectively, of the 1997 Rules of Civil Procedure [11] which provide:

Sec. 47. Effect of judgments or final orders. The effect of a judgment or final order
rendered by a court of the Philippines, having jurisdiction to pronounce the judgment or
final order, may be as follows:


(b) In other cases, the judgment or final order is, with respect to the matter directly adjudged or as to any
other matter that could have been raised in relation thereto, conclusive between the parties and their
successors in interest by title subsequent to the commencement of the action or special proceeding, litigating
for the same thing and under the same title and in the same capacity; and

(c) In any other litigation between the same parties or their successors in interest, that only is deemed to
have been adjudged in a former judgment or final order which appears upon its face to have been so
adjudged, or which was actually and necessarily included therein or necessary thereto.

Bar by prior judgment and conclusiveness of judgment differ as follows:

Page 24 of 41
There is bar by prior judgment when, as between the first case where the judgment was
rendered and the second case that is sought to be barred, there is identity of parties,
subject matter, and causes of action. In this instance, the judgment in the first case
constitutes an absolute bar to the second action. Otherwise put, the judgment or decree
of the court of competent jurisdiction on the merits concludes the litigation between the
parties, as well as their privies, and constitutes a bar to a new action or suit involving the
same cause of action before the same or other tribunal.

But where there is identity of parties in the first and second cases, but no identity of
causes of action, the first judgment is conclusive only as to those matters actually and
directly controverted and determined and not as to matters merely involved therein. This
is the concept of res judicata known as conclusiveness of judgment. Stated differently,
any right, fact or matter in issue directly adjudicated or necessarily involved in the
determination of an action before a competent court in which judgment is rendered on the
merits is conclusively settled by the judgment therein and cannot again be litigated
between the parties and their privies whether or not the claim, demand, purpose, or
subject matter of the two actions is the same.[12]

For res judicata to apply, the following requisites must be present:

(a) the former judgment or order must be final;

(b) it must be a judgment or order on the merits, that is, it was rendered after a consideration of the evidence
or stipulations submitted by the parties at the trial of the case;
(c) it must have been rendered by a court having jurisdiction over the subject matter and the parties; and
(d) there must be, between the first and second actions, identity of parties, of subject matter, and of cause of
action; this requisite is satisfied if the two actions are substantially between the same parties. [13]

While the present case and the administrative case are based on the same essential facts and
circumstances, the doctrine of res judicata will not apply. An administrative case deals with the administrative
liability which may be incurred by the respondent for the commission of the acts complained of. [14] The case
before us deals with the civil liability for damages of the police authorities. There is no identity of causes of
action in the cases. While identity of causes of action is not required in the application of res judicata in the
concept of conclusiveness of judgment,[15] it is required that there must always be identity of parties in the
first and second cases.

There is no identity of parties between the present case and the administrative case. The administrative case
was filed by Benjamin Sia Lao (Sia Lao) against petitioner. Sia Lao is not a party to this case. Respondents
in the present case were not parties to the administrative case between Sia Lao and petitioner. In the present
case, petitioner is the complainant against respondents. Hence, while res judicata is not a defense to
petitioners complaint for damages, respondents nevertheless cannot be held liable for damages as
discussed above.

WHEREFORE, we DENY the petition. We AFFIRM the 10 July 2004 Decision and 18 October 2004 Order
of the Regional Trial Court of Quezon City, Branch 217, in Civil Case No. Q-98-33442.


Page 25 of 41
G.R. Nos. 106288-89 May 17, 1994

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellant.


Two passengers who were apprehended after they supposedly staged a hold-up inside a passenger jeepney
on September 29, 1990 were haled to court, not for the felonious asportation, but for possession of the two
unlicensed firearms and bullets recovered from them which were instrumental in the commission of
the robo (pp. 7-8, Rollo.)

Of the two persons accused, only Pio Boses interposed an appeal from the trial court's judgment (p.
23, Rollo) inasmuch as Tirso Acol y Barnubal had escaped from incarceration (p. 5, Brief for the Accused-
Appellant, p. 60, Rollo ) thereby abating any review of his culpability for the misdeed.

The People's inculpatory accusations during the joint trial were to the effect that at around 3:45 in the
morning of September 29, 1990, when Percival Tan was driving his jeepney, two men boarded the vehicle in
Cubao. When they crossed Pasay Road, the two wayfarers, together with two other companions, announced
a hold-up. Percival Tan was instructed to proceed atop the Magallanes interchange where the other
passengers were divested of their personal belongings, including the jacket of passenger Rene Araneta.
Thereafter, the robbers alighted at the Shell Gas Station near the Magallanes Commercial Center after which
Percival Tan and his passengers went to Fort Bonifacio to report the crime. A CAPCOM team was forthwith
formed to track down the culprits. Victim Rene Araneta who went with the responding police officers, upon
seeing four persons, one of whom was wearing his stolen jacket, walking casually towards Fort Bonifacio,
told the police authorities to accost said persons. After the CAPCOM officers introduced themselves, the four
men scampered to different directions but three of them, namely, Tirso Acol, Pio Boses, and Albert Blanco,
were apprehended. Tirso Acol and Pio Boses were each found in possession of an unlicensed .38 caliber
revolver with bullets. After the arrest, the three men were brought to Fort Bonifacio and were identified by
Percival Tan and the passengers who ganged up on the accused.

To reinforce the theory of unauthorized possession of firearms, Sgt. Garcia presented a certification (Exhibit
I) issued by the Firearms and Explosives Unit stating that the accused are not licensed firearm holders.

On the other hand, Pio Boses and Tirso Acol pleaded innocent to the charges levelled against them,
proferring a general denial.

Page 26 of 41
Accused-appellant Pio Boses asserted on the witness stand that after establishing his residence at Pasay
City for about six months, he engaged in the business of vending "balut". During the incident in question, he
recalled that while so engaged in his trade, three persons allegedly acosted him, took his money, "balut" and
"penoy", and that he was thereafter brought to a cell where he was forced to confess ownership of one gun
which was shown to him. He nonetheless denied participation in the hold up.

For his part, Tirso Acol, a laborer and at that time having resided in Metro Manila for about two months,
recollected that he spent the night at his cousin's house in Parañaque on September 28, 1990, and that he
left Parañaque at around 5 in the morning of September 29, 1990. According to him, the jeepney he was
then riding developed engine trouble, and alighting therefrom he was arrested for no apparent reason. When
he was brought to the cell, he was allegedly coerced into admiting possession of the other gun. Just like his
co-accused, he too, denied knowledge of the hold up.

The court a quo was unpersuaded by these general denials, observing:

As can be gathered from the foregoing testimonies of the accused, the line of defense they have adopted is
one of denial. Indeed, they denied that the firearms and ammunition in question were found in their persons
in the early morning of September 29, 1989. They also denied the truth of the testimonies of Sgt. Faltado,
Percival Tan, and Rene Araneta. The defense however did not cite any valid reasons for the Court not to give
credence to the testimonies. In the circumstance, the Court is constrained to consider the testimonies of the
accused to be self-serving. In the face of the positive testimonies of the prosecution witnesses, the Court can
only take their denials with the proverbial grain of salt. Verily, it is simply hard for the Court to believe that the
accused are simple provincial who are lost in the big city; that accused Pio Boses who is a resident of Pasay
City, does not know well-known places in Metro Manila such as the South Super Highway and the Fort
Bonifacio-Nichols interchange; that he did not know the streets where he plied his trade as a balut vendor.
Indeed, how can this be true when he himself admitted that from 7:00 p.m. of September 28, 1989, he spent
his time walking in the street in the area and yet he never claimed he had ever lost his way.

The same is true with accused Tirso Acol. The Court is convinced that he lied on the witness stand. He
claimed that he was in the place where he was arrested because he had just come from the residence of his
cousin, Genny Acol, and the passenger jeepney he had boarded on his way home just happened to break
down at that place. In the mind of the Court this alibi of the accused is too much of a coincidence, and too
convenient an excuse, for the Court to believe. In this connection, the Court notes his testimony on cross
examination that he was unable to get in touch with his relatives, including Genny Acol, for possible
assistance and to get Genny Acol to corroborate his testimony, because the latter had already left for the
province and that none of his other relatives knew that he had been charged in this case. But when queried
how he was able to say this, he testified that he had written to his uncle and that he received a reply letter
from him and that it was from this reply letter of his uncle that he learned that Genny Acol had already left for
the province. This testimony of accused Tirso Acol, if it accomplished anything, helped convinced the Court
that he is given to lying. For sure, if he had written to his uncle and that the latter had replied to him, it is plain
that he must have informed his uncle about the case and that the latter knew about the case and the fact that
he was in jail and needed help. In any event, established jurisprudence dictates that between the positive
testimonies of prosecution witnesses and the denials of the accused the Court must place its reliance on the
former. As a matter of fact, jurisprudence also indicates that greater weight must be given to the testimonies
of the prosecution witnesses when they are officers of the law. ( People vs. Mostoles, Jr., 124 SCRA
906; People vs. Patog, 144 SCRA 129).

(pp. 21-22, Rollo.)

Page 27 of 41
As initially intimated herein, Tirso Acol escaped from detention during the trial below, thus obviating any
review of his conviction, as indeed, even if he had appealed and thereafter escaped, he would be considered
as having abandoned his appeal (People vs. Quinitan, 197 SCRA 32 [1991]; Section 8, Rule 124, Revised
Rules on Criminal Procedure).

With respect to Pio Boses, he chose to articulate his protestation of innocence by claiming that the trial court
below erred:








(p. 1, Appellant's Brief; p. 60, Rollo.)

But the appeal leaves much to be desired.

It is axiomatic to the point of being elementary that herein accused- appellant can not feign denial of due
process where he had the opportunity to present his defense, through his own narration on the witness stand
(Domingo vs. Development Bank of the Philippines, 207 SCRA 766 [1992]; Gonzales vs. Court of Appeals,
212 SCRA 595 [1992]. Withal, and as correctly pointed out by the People, the omission of a party to present
witnesses to corroborate the principal basis for exculpation, on account of the witnesses' admitted tardiness
in arriving in court, is a puerile proposition to support re-opening of the case.

In regard to the second ascription aired by the accused-appellant, emphasis is laid on the fact that the court
a quoshould have relied more on the explanation offered by the defense rather than giving credence to the
testimony of the People's witnesses. For one thing, accused- appellant asseverates that they could not have
been positively identified by Percival Tan and Rene Araneta considering that it was then still dark when the
accused boarded the jeep, up to the time they were apprehended. But counsel for accused-appellant
concedes that the jeep was lighted subject to the caveat that it was not well lighted (p. 12, Brief for Accused-
Appellant) which does not entirely foreclose positive identification of the culprits who admittedly shared a ride
with their victims and were thus seated within the closed quarters of the jeepney. Moreover, it was
Page 28 of 41
established by the prosecution that Rene Araneta's jacket was one of the items which was asported, that it
was worn by one of the felons, and that the jacket was recognized by Rene Araneta from a distance of 1-1/2
meters (p. 7, Brief for Accused-Appellant). To lessen the impact of the affirmative statements uttered against
accused- appellant, it is argued that the immediate propensity of a criminal is to move out from the scene of
the locus criminis and not merely to walk casually within the vicinity. We said in People vs. Ocampo (G.R.
No. 80262, September 1, 1993) that indeed, there can be no legal dispute to the legal proposition that flight
from the scene of the felony is one of the indicia of a guilty conscience, but it is equally true, we proceeded to
say, that culprits, in exceptional cases, have become bolder by returning to the scene of the crime to feign
innocence. At any rate, it has been repeatedly stressed by this Court that the factual findings of the trial court
and the conclusions drawn therefrom are accorded utmost respect since the magistrate at the court of origin
had the first hand impression of the demeanor and deportment of witnesses (People vs. Lim, 206 SCRA 176
[1992]; People vs. Castillo, 208 SCRA 62).

With respect to the so-called warrantless arrest of accused--appellant, we are of the view that the search
falls within the purview of Section 5(b) of Rule 113 which serves as an exception to the requisite warrant prior
to arrest:

When an offense has in fact been committed, and the has

personal knowledge of facts indicating that the person to be arrested has committed it;

inasmuch as the police team was formed and dispatched to look for the persons responsible for the crime on
account of the information related by Percival Tan and Rene Araneta that they had just been robbed (People
vs. Gerente, 219 SCRA 756 [1993]; People vs. Tonog, Jr., 205 SCRA 772 [1992]). And since accused-
appellant's arrest was lawful, it follows that the search made incidental thereto was valid (People vs.
Tanilon, 221 SCRA 671 [1993]). Moreover, the unlicensed firearms were found when the police team
apprehended the accused for the robbery and not for illegal possession of firearms and ammunition (People
vs. Cruz, 165 SCRA 135 [1988]). The principle imparted by Justice Padilla in Cruz was based on the ruling of
this Court in Magoncia vs. Palacio (90 Phil. 771 [1948]) that:

. . . When, in pursuing an illegal action or in the commission of a criminal offense, the offending police
officers should happen to discover a criminal offense being committed by any person, they are not precluded
from performing their duties as police officers for the apprehension of the guilty person and the taking of
the corpus delicti.

Nonetheless, the penalty of "reclusion perpetua or life imprisonment" as erroneously imposed by the lower
court must be modified to read only as reclusion perpetua, as provided by Section 1 of Presidential Decree
No. 1866, said penalty being distinct from life imprisonment.

WHEREFORE, the decision appealed from is hereby affirmed with the slight modification that the proper
penalty to be imposed is reclusion perpetua. Further, the court orders the forfeiture of the firearms and other
incidental paraphernalia in favor of the Philippine National Police to be disposed of in accordance with law.

No pronouncement is made as to costs.



Page 29 of 41

- versus - CARPIO MORALES, Chairperson,

August 3, 2010

Jose Antonio C. Leviste (petitioner) assails via the present petition for review filed on May 30, 2008 the
August 30, 2007 Decision[1] and the April 18, 2008 Resolution[2] of the Court of Appeals in CA-G.R. SP No.
97761 that affirmed the trial courts Orders of January 24, 31, February 7, 8, all in 2007, and denied the
motion for reconsideration, respectively.

Petitioner was, by Information[3] of January 16, 2007, charged with homicide for the death of Rafael de las
Alas on January 12, 2007 before the Regional Trial Court (RTC) of Makati City. Branch 150 to which the case
was raffled, presided by Judge Elmo Alameda, forthwith issued a commitment order [4] against petitioner who
was placed under police custody while confined at the Makati Medical Center.[5]

After petitioner posted a P40,000 cash bond which the trial court approved, [6] he was released from
detention, and his arraignment was set on January 24, 2007.

The private complainants-heirs of De las Alas filed, with the conformity of the public prosecutor, an Urgent
Omnibus Motion[7] praying, inter alia, for the deferment of the proceedings to allow the public prosecutor to
re-examine the evidence on record or to conduct a reinvestigation to determine the proper offense.

The RTC thereafter issued the (1) Order of January 24, 2007[8] deferring petitioners arraignment
and allowing the prosecution to conduct a reinvestigation to determine the proper offense and submit a
recommendation within 30 days from its inception, inter alia; and (2) Order of January 31, 2007[9] denying
reconsideration of the first order. Petitioner assailed these orders via certiorari and prohibition before the
Court of Appeals.

Meantime, petitioner filed an Urgent Ex-Parte Manifestation and Motion before the trial court to
defer acting on the public prosecutors recommendation on the proper offense until after the appellate court
resolves his application for injunctive reliefs, or alternatively, to grant him time to comment on the
prosecutors recommendation and thereafter set a hearing for the judicial determination of probable cause.
Petitioner also separately moved for the inhibition of Judge Alameda with prayer to defer action on the
admission of the Amended Information.[11]

The trial court nonetheless issued the other assailed orders, viz: (1) Order of February 7,
2007 [12]
that admitted the Amended Information [13] for murder and directed the issuance of a warrant of arrest;
and (2) Order of February 8, 2007[14]which set the arraignment on February 13, 2007. Petitioner questioned
these two orders via supplemental petition before the appellate court.

The appellate court dismissed petitioners petition, hence, his present petition, arguing that:
Page 30 of 41


COURT (sic); [AND]


DETERMINATION OF PROBABLE CAUSE.[15](emphasis in the original omitted)

Records show that the arraignment scheduled on March 21, 2007 pushed through during which petitioner
refused to plead, drawing the trial court to enter a plea of not guilty for him.

Prior thereto or on February 23, 2007, petitioner filed an Urgent Application for Admission to Bail Ex
Abundanti Cautela[16]which the trial court, after hearings thereon, granted by Order of May 21, 2007,[17] it
finding that the evidence of guilt for the crime of murder is not strong. It accordingly allowed petitioner to post
bail in the amount of P300,000 for his provisional liberty.

The trial court, absent any writ of preliminary injunction from the appellate court, went on to try petitioner
under the Amended Information. By Decision of January 14, 2009, the trial court found petitioner guilty of
homicide, sentencing him to suffer an indeterminate penalty of six years and one day of prision mayor as
minimum to 12 years and one day of reclusion temporal as maximum. From the Decision, petitioner filed an
appeal to the appellate court, docketed as CA-G.R. CR No. 32159, during the pendency of which he filed an
urgent application for admission to bail pending appeal. The appellate court denied petitioners application
which this Court, in G.R. No. 189122, affirmed by Decision of March 17, 2010.

The Office of the Solicitor General (OSG) later argued that the present petition had been rendered
moot since the presentation of evidence, wherein petitioner actively participated, had been concluded. [18]

Waiver on the part of the accused must be distinguished from mootness of the petition,
for in the present case, petitioner did not, by his active participation in the trial, waive his stated objections.

Section 26, Rule 114 of the Rules of Court provides:

Page 31 of 41
SEC. 26. Bail not a bar to objections on illegal arrest, lack of or irregular preliminary
investigation. An application for or admission to bail shall not bar the accused from
challenging the validity of his arrest or the legality of the warrant issued therefor, or from
assailing the regularity or questioning the absence of a preliminary investigation of the
charge against him, provided that he raises them before entering his plea. The court shall
resolve the matter as early as practicable but not later than the start of the trial of the

By applying for bail, petitioner did not waive his right to challenge the regularity of the
reinvestigation of the charge against him, the validity of the admission of the Amended Information, and the
legality of his arrest under the Amended Information, as he vigorously raised them prior to his arraignment.
During the arraignment on March 21, 2007, petitioner refused to enter his plea since the issues he raised
were still pending resolution by the appellate court, thus prompting the trial court to enter a plea of not guilty
for him.

The principle that the accused is precluded after arraignment from questioning the illegal arrest or
the lack of or irregular preliminary investigation applies only if he voluntarily enters his plea and participates
during trial, without previously invoking his objections thereto.[19] There must be clear and convincing proof th
at petitioner had an actual intention to relinquish his right to question the existence of probable cause. When
the only proof of intention rests on what a party does, his act should be so manifestly consistent with, and ind
icative of, an intent to voluntarily and unequivocally relinquish the particular right that no other explanation of
his conduct is possible.[20]

From the given circumstances, the Court cannot reasonably infer a valid waiver on the part of
petitioner to preclude him from obtaining a definite resolution of the objections he so timely invoked. Other
than its allegation of active participation, the OSG offered no clear and convincing proof that petitioners
participation in the trial was unconditional with the intent to voluntarily and unequivocally abandon his
petition. In fact, on January 26, 2010, petitioner still moved for the early resolution of the present petition. [21]

Whatever delay arising from petitioners availment of remedies against the trial courts Orders
cannot be imputed to petitioner to operate as a valid waiver on his part. Neither can the non-issuance of a
writ of preliminary injunction be deemed as a voluntary relinquishment of petitioners principal prayer. The
non-issuance of such injunctive relief only means that the appellate court did not preliminarily find any
exception[22] to the long-standing doctrine that injunction will not lie to enjoin a criminal prosecution.
Consequently, the trial of the case took its course.

The petition is now moot, however, in view of the trial courts rendition of judgment.

A moot and academic case is one that ceases to present a justiciable controversy by virtue of
supervening events, so that a declaration thereon would be of no practical use or value. [24]

The judgment convicting petitioner of homicide under the Amended Information for murder
operates as a supervening event that mooted the present petition. Assuming that there is ground[25] to annul
the finding of probable cause for murder, there is no practical use or value in abrogating the concluded
proceedings and retrying the case under the original Information for homicide just to arrive, more likely or
even definitely, at the same conviction of homicide. Mootness would have also set in had petitioner been
convicted of murder, for proof beyond reasonable doubt, which is much higher than probable cause, would
have been established in that instance.

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Instead, however, of denying the petition outright on the ground of mootness, the Court proceeds
to resolve the legal issues in order to formulate controlling principles to guide the bench, bar and public. [26] In
the present case, there is compelling reason to clarify the remedies available before and after the filing of an
information in cases subject of inquest.

After going over into the substance of the petition and the assailed issuances, the Court finds no
reversible error on the part of the appellate court in finding no grave abuse of discretion in the issuance of
the four trial court Orders.

In his first assignment of error, petitioner posits that the prosecution has no right under the Rules to
seek from the trial court an investigation or reevaluation of the case except through a petition for review
before the Department of Justice (DOJ).In cases when an accused is arrested without a warrant, petitioner
contends that the remedy of preliminary investigation belongs only to the accused.

The contention lacks merit.

Section 6,[27] Rule 112 of the Rules of Court reads:

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

Before the complaint or information is filed, the person arrested may ask for a preliminary
investigation in accordance with this Rule, but he must sign a waiver of the provisions of
Article 125 of the Revised Penal Code, as amended, in the presence of his
counsel.Notwithstanding the waiver, he may apply for bail and the investigation must be
terminated within fifteen (15) days from its inception.

After the filing of the complaint or information in court without a preliminary

investigation, the accused may, within five (5) days from the time he learns of its filing, ask
for a preliminary investigation with the same right to adduce evidence in his defense as
provided in this Rule. (underscoring supplied)

A preliminary investigation is required before the filing of a complaint or information for an offense
where the penalty prescribed by law is at least four years, two months and one day without regard to fine.
As an exception, the rules provide that there is no need for a preliminary investigation in cases of a lawful
arrest without a warrant[29] involving such type of offense, so long as an inquest, where available, has been

Inquest is defined as an informal and summary investigation conducted by a public prosecutor in

criminal cases involving persons arrested and detained without the benefit of a warrant of arrest issued by
the court for the purpose of determining whether said persons should remain under custody and
correspondingly be charged in court.[31]

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It is imperative to first take a closer look at the predicament of both the arrested person and the
private complainant during the brief period of inquest, to grasp the respective remedies available to them
before and after the filing of a complaint or information in court.


may proceed in coordinating with the arresting officer and the inquest officer during the latters conduct of
inquest. Meanwhile, the arrested person has the option to avail of a 15-day preliminary investigation,
provided he duly signs a waiver of any objection against delay in his delivery to the proper judicial authorities
under Article 125 of the Revised Penal Code. For obvious reasons, this remedy is not available to the private
complainant since he cannot waive what he does not have. The benefit of the provisions of Article 125, which
requires the filing of a complaint or information with the proper judicial authorities within the applicable
period,[32] belongs to the arrested person.

The accelerated process of inquest, owing to its summary nature and the attendant risk of running
against Article 125, ends with either the prompt filing of an information in court or the immediate release of
the arrested person.[33] Notably, the rules on inquest do not provide for a motion for reconsideration. [34]

Contrary to petitioners position that private complainant should have appealed to the DOJ
Secretary, such remedy is not immediately available in cases subject of inquest.

Noteworthy is the proviso that the appeal to the DOJ Secretary is by petition by a proper party
under such rules as the Department of Justice may prescribe. [35] The rule referred to is the 2000 National
Prosecution Service Rule on Appeal, [36]Section 1 of which provides that the Rule shall apply to appeals from
resolutions x x x in cases subject of preliminary investigation/ reinvestigation. In cases subject of inquest,
therefore, the private party should first avail of a preliminary investigation or reinvestigation, if any, before
elevating the matter to the DOJ Secretary.

In case the inquest proceedings yield no probable cause, the private complainant may pursue the
case through the regular course of a preliminary investigation.

ONCE A COMPLAINT OR INFORMATION IS FILED IN COURT, the rules yet provide the accused
with another opportunity to ask for a preliminary investigation within five days from the time he learns of its
filing. The Rules of Court and the New Rules on Inquest are silent, however, on whether the private
complainant could invoke, as respondent heirs of the victim did in the present case, a similar right to ask for
a reinvestigation.

The Court holds that the private complainant can move for reinvestigation, subject to and in light of
the ensuing disquisition.

All criminal actions commenced by a complaint or information shall be prosecuted under the
direction and control of the public prosecutor. [37] The private complainant in a criminal case is merely a
witness and not a party to the case and cannot, by himself, ask for the reinvestigation of the case after the
information had been filed in court, the proper party for that being the public prosecutor who has the control
of the prosecution of the case. [38] Thus, in cases where the private complainant is allowed to intervene by
counsel in the criminal action,[39] and is granted the authority to prosecute, [40] the private complainant, by
counsel and with the conformity of the public prosecutor, can file a motion for reinvestigation.

In fact, the DOJ instructs that before the arraignment of the accused, trial prosecutors must
examine the Information vis--vis the resolution of the investigating prosecutor in order to make the necessary
corrections or revisions and to ensure that the information is sufficient in form and substance.[41]
Page 34 of 41
x x x Since no evidence has been presented at that stage, the error would appear or be
discoverable from a review of the records of the preliminary investigation. Of course, that
fact may be perceived by the trial judge himself but, again, realistically it will be the
prosecutor who can initially determine the same . That is why such error need not be
manifest or evident, nor is it required that such nuances as offenses includible in the
offense charged be taken into account. It necessarily follows, therefore, that the
prosecutor can and should institute remedial measures [.][42] (emphasis and
underscoring supplied)

The prosecution of crimes appertains to the executive department of the government whose
principal power and responsibility is to see that our laws are faithfully executed. A necessary component of
this power to execute our laws is the right to prosecute their violators. The right to prosecute vests the
prosecutor with a wide range of discretion the discretion of what and whom to charge, the exercise of which
depends on a smorgasbord of factors which are best appreciated by prosecutors. [43]

The prosecutions discretion is not boundless or infinite, however. [44] The standing principle is that
once an information is filed in court, any remedial measure such as a reinvestigation must be addressed to
the sound discretion of the court.Interestingly, petitioner supports this view. [45] Indeed, the Court ruled in one
case that:

The rule is now well settled that once a complaint or information is filed in court,
any disposition of the case, whether as to its dismissal or the conviction or the acquittal of
the accused, rests in the sound discretion of the court. Although the prosecutor retains the
direction and control of the prosecution of criminal cases even when the case is already in
court, he cannot impose his opinion upon the tribunal. For while it is true that the
prosecutor has the quasi-judicial discretion to determine whether or not a criminal case
should be filed in court, once the case had already been brought therein any disposition
the prosecutor may deem proper thereafter

should be addressed to the court for its consideration and approval. The only qualification
is that the action of the court must not impair the substantial rights of the accused or the
right of the People to due process of law.


In such an instance, before a re-investigation of the case may be conducted by

the public prosecutor, the permission or consent of the court must be secured. If after
such re-investigation the prosecution finds a cogent basis to withdraw the information or
otherwise cause the dismissal of the case, such proposed course of action may be taken
but shall likewise be addressed to the sound discretion of the court. [46] (underscoring

Page 35 of 41
While Abugotal v. Judge Tiro[47] held that to ferret out the truth, a trial is to be preferred to a
reinvestigation, the Court therein recognized that a trial court may, where the interest of justice so requires,
grant a motion for reinvestigation of a criminal case pending before it.

Once the trial court grants the prosecutions motion for reinvestigation, the former is deemed to
have deferred to the authority of the prosecutorial arm of the Government. Having brought the case back to
the drawing board, the prosecution is thus equipped with discretion wide and far reaching regarding the
disposition thereof,[48] subject to the trial courts approval of the resulting proposed course of action.

Since a reinvestigation may entail a modification of the criminal information as what happened in
the present case, the Courts holding is bolstered by the rule on amendment of an information under Section
14, Rule 110 of the Rules of Court:

A complaint or information may be amended, in form or in substance, without

leave of court, at any time before the accused enters his plea . After the plea and
during the trial, a formal amendment may only be made with leave of court and when it
can be done without causing prejudice to the rights of the accused.

However, any amendment before plea, which downgrades the nature of the
offense charged in or excludes any accused from the complaint or information, can be
made only upon motion by the prosecutor, with notice to the offended party and with leave
of court. The court shall state its reasons in resolving the motion and copies of its order
shall be furnished all parties, especially the offended party.

If it appears at any time before judgment that a mistake has been made in
charging the proper offense, the court shall dismiss the original complaint or information
upon the filing of a new one charging the proper offense in accordance with section 11,
Rule 119, provided the accused would not be placed in double jeopardy. The court may
require the witnesses to give bail for their appearance at the trial. (emphasis supplied)

In fine, before the accused enters a plea, a formal or substantial amendment of the complaint or information
may be made without leave of court. [49] After the entry of a plea, only a formal amendment may be made but
with leave of court and only if it does not prejudice the rights of the accused. After arraignment, a substantial
amendment is proscribed except if the same is beneficial to the accused. [50]

It must be clarified though that not all defects in an information are curable by amendment prior to entry of
plea. An information which is void ab initio cannot be amended to obviate a ground for quashal. [51] An
amendment which operates to vest jurisdiction upon the trial court is likewise impermissible. [52]

Considering the general rule that an information may be amended even in substance and even
without leave of court at any time before entry of plea, does it mean that the conduct of a reinvestigation at
that stage is a mere superfluity?

It is not.

Any remedial measure springing from the reinvestigation be it a complete disposition or an intermediate
modification[53] of the charge is eventually addressed to the sound discretion of the trial court, which must
make an independent evaluation or assessment of the merits of the case. Since the trial court would
ultimately make the determination on the proposed course of action, it is for the prosecution to consider

Page 36 of 41
whether a reinvestigation is necessary to adduce and review the evidence for purposes of buttressing the
appropriate motion to be filed in court.

More importantly, reinvestigation is required in cases involving a substantial amendment of the

information. Due process of law demands that no substantial amendment of an information may be admitted
without conducting another or a new preliminary investigation. In Matalam v. The 2nd Division of the
Sandiganbayan,[54] the Court ruled that a substantial amendment in an information entitles an accused to
another preliminary investigation, unless the amended information contains a charge related to or is included
in the original Information.

The question to be resolved is whether the amendment of the Information from homicide to murder is
considered a substantial amendment, which would make it not just a right but a duty of the prosecution to
ask for a preliminary investigation.

The Court answers in the affirmative.

A substantial amendment consists of the recital of facts constituting the offense

charged and determinative of the jurisdiction of the court. All other matters are
merely of form. The following have been held to be mere formal amendments: (1) new
allegations which relate only to the range of the penalty that the court might impose in the
event of conviction; (2) an amendment which does not charge another offense different or
distinct from that charged in the original one; (3) additional allegations which do not alter
the prosecutions theory of the case so as to cause surprise to the accused and affect the
form of defense he has or will assume; (4) an amendment which does not adversely affect
any substantial right of the accused; and (5) an amendment that merely adds
specifications to eliminate vagueness in the information and not to introduce new and
material facts, and merely states with additional precision something which is already
contained in the original information and which adds nothing essential for conviction for
the crime charged.

The test as to whether a defendant is prejudiced by the amendment is whether a defense

under the information as it originally stood would be available after the amendment is
made, and whether any evidence defendant might have would be equally applicable to
the information in the one form as in the other. An amendment to an information which
does not change the nature of the crime alleged therein does not affect the essence of the
offense or cause surprise or deprive the accused of an opportunity to meet the new
averment had each been held to be one of form and not of substance. [55] (emphasis and
underscoring supplied)

Matalam adds that the mere fact that the two charges are related does not necessarily or
automatically deprive the accused of his right to another preliminary investigation. Notatu dignum is the fact
that both the original Information and the amended Information in Matalam were similarly charging the
accused with violation of Section 3(e) of the Anti-Graft and Corrupt Practices Act.

Page 37 of 41
In one case,[56] it was squarely held that the amendment of the Information from homicide to
murder is one of substance with very serious consequences. [57] The amendment involved in the present case
consists of additional averments of the circumstances of treachery, evident premeditation, and cruelty, which
qualify the offense charged from homicide to murder. It being a new and material element of the offense,
petitioner should be given the chance to adduce evidence on the matter. Not being merely clarificatory, the
amendment essentially varies the prosecutions original theory of the case and certainly affects not just the
form but the weight of defense to be mustered by petitioner.

The Court distinguishes the factual milieus in Buhat v. CA[58] and Pacoy v. Cajigal,[59] wherein the amendment
of the caption of the Information from homicide to murder was not considered substantial because there was
no real change in the recital of facts constituting the offense charged as alleged in the body of the
Information, as the allegations of qualifying circumstances were already clearly embedded in the original
Information. Buhat pointed out that the original Information for homicide already alleged the use of superior
strength, while Pacoy states that the averments in the amended Information for murder are exactly the same
as those already alleged in the original Information for homicide. None of these peculiar circumstances
obtains in the present case.

Considering that another or a new preliminary investigation is required, the fact that what was conducted in
the present case was a reinvestigation does not invalidate the substantial amendment of the
Information. There is no substantial distinction between a preliminary investigation and a
reinvestigation since both are conducted in the same manner and for the same objective of determining
whether there exists sufficient ground to engender a well-founded belief that a crime has been committed
and the respondent is probably guilty thereof and should be held for trial. [60] What is essential is that
petitioner was placed on guard to defend himself from the charge of murder [61] after the claimed
circumstances were made known to him as early as the first motion.

Petitioner did not, however, make much of the opportunity to present countervailing evidence on the
proposed amended charge. Despite notice of hearing, petitioner opted to merely observe the proceedings
and declined to actively participate, even with extreme caution, in the reinvestigation. Mercado v. Court of
Appeals states that the rules do not even require, as a condition sine qua non to the validity of a preliminary
investigation, the presence of the respondent as long as efforts to reach him were made and an opportunity
to controvert the complainants evidence was accorded him. [62]

In his second assignment of error, petitioner basically assails the hurried issuance of the last two
assailed RTC Orders despite the pendency before the appellate court of the petition for certiorari challenging
the first two trial court Orders allowing a reinvestigation.

The Rules categorically state that the petition shall not interrupt the course of the principal case
unless a temporary retraining order or a writ of preliminary injunction has been issued. [63] The appellate court,
by Resolution
of February 15, 2007, denied petitioners application for a temporary restraining order and writ of
preliminary injunction.Supplementary efforts to seek injunctive reliefs proved futile. [65] The appellate court
thus did not err in finding no grave abuse of discretion on the part of the trial court when it proceeded with the
case and eventually arraigned the accused on March 21, 2007, there being no injunction order from the
appellate court. Moreover, petitioner opted to forego appealing to the DOJ Secretary, a post-inquest remedy
that was available after the reinvestigation and which could have suspended the arraignment. [66]

Regarding petitioners protestations of haste, suffice to state that the pace in resolving incidents of
the case is not per sean indication of bias. In Santos-Concio v. Department of Justice,[67] the Court held:

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

The presumption of regularity includes the public officers official actuations in all phases
of work. Consistent with such presumption, it was incumbent upon petitioners to present
contradictory evidence other than a mere tallying of days or numerical calculation. This,
petitioners failed to discharge. The swift completion of the Investigating Panels initial task
cannot be relegated as shoddy or shady without discounting the presumably regular
performance of not just one but five state prosecutors. [68]

There is no ground for petitioners protestations against the DOJ Secretarys sudden designation of Senior
State Prosecutor Emmanuel Velasco as Acting City Prosecutor of Makati City for the present case [69] and the
latters conformity to the motion for reinvestigation.

In granting the reinvestigation, Judge Alameda cannot choose the public prosecutor who will conduct the
reinvestigation or preliminary investigation. [70] There is a hierarchy of officials in the prosecutory arm of the
executive branch headed by the Secretary of Justice [71] who is vested with the prerogative to appoint a
special prosecutor or designate an acting prosecutor to handle a particular case, which broad power of
control has been recognized by jurisprudence.[72]

As for the trial courts ignoring the DOJ Secretarys uncontested statements to the media which
aired his opinion that if the assailant merely intended to maim and not to kill the victim, one bullet would
have sufficed the DOJ Secretary reportedly uttered that the filing of the case of homicide against ano against
Leviste lintek naman eh I told you to watch over that case there should be a report about the ballistics, about
the paraffin, etc., then thats not a complete investigation, thats why you should use that as a ground no
abuse of discretion, much less a grave one, can be imputed to it.

The statements of the DOJ Secretary do not evince a determination to file the Information even in
the absence of probable cause.[73] On the contrary, the remarks merely underscored the importance of
securing basic investigative reports to support a finding of probable cause. The original Resolution even
recognized that probable cause for the crime of murder cannot be determined based on the evidence
obtained [u]nless and until a more thorough investigation is conducted and eyewitness/es [is/]are presented
in evidence[.][74]

The trial court concluded that the wound sustained by the victim at the back of his head, the absence of
paraffin test and ballistic examination, and the handling of physical evidence, [75] as rationalized by the
prosecution in its motion, are sufficient circumstances that require further inquiry.

Page 39 of 41
That the evidence of guilt was not strong as subsequently assessed in the bail hearings does not
affect the prior determination of probable cause because, as the appellate court correctly stated, the
standard of strong evidence of guilt which is sufficient to deny bail to an accused is markedly higher than the
standard of judicial probable cause which is sufficient to initiate a criminal case. [76]

In his third assignment of error, petitioner faults the trial court for not conducting, at the very least, a
hearing for judicial determination of probable cause, considering the lack of substantial or material new
evidence adduced during the reinvestigation.

Petitioners argument is specious.

There are two kinds of determination of probable cause: executive and judicial. The executive
determination of probable cause is one made during preliminary investigation. It is a function that properly
pertains to the public prosecutor who is given a broad discretion to determine whether probable cause exists
and to charge those whom he believes to have committed the crime as defined by law and thus should be
held for trial. Otherwise stated, such official has the quasi-judicial authority to determine whether or not a
criminal case must be filed in court. Whether that function has been correctly discharged by the public
prosecutor, i.e., whether he has made a correct ascertainment of the existence of probable cause in a case,
is a matter that the trial court itself does not and may not be compelled to pass upon. [77]

The judicial determination of probable cause is one made by the judge to ascertain whether a
warrant of arrest should be issued against the accused. The judge must satisfy himself that based on the
evidence submitted, there is necessity for placing the accused under custody in order not to frustrate the
ends of justice. If the judge finds no probable cause, the judge cannot be forced to issue the arrest warrant.
Paragraph (a), Section 5,[79] Rule 112 of the Rules of Court outlines the procedure to be followed by the

To move the court to conduct a judicial determination of probable cause is a mere superfluity, for
with or without such motion, the judge is duty-bound to personally evaluate the resolution of the public
prosecutor and the supporting evidence. In fact, the task of the presiding judge when the Information is filed
with the court is first and foremost to determine the existence or non-existence of probable cause for the arre
st of the accused.[80]

What the Constitution underscores is the exclusive and personal responsibility of the issuing
judge to satisfy himself of the existence of probable cause. But the judge is not required to
personally examine the complainant and his witnesses . Following established doctrine
and procedure, he shall (1) personally evaluate the report and the supporting
documents submitted by the prosecutor regarding the existence of probable cause, and on
the basis thereof, he may already make a personal determination of the existence of probable
cause; and (2) if he is not satisfied that probable cause exists, he may disregard the
prosecutors report and require the submission of supporting affidavits of witnesses to aid
him in arriving at a conclusion as to the existence of probable cause. [81] (emphasis and
underscoring supplied)

The rules do not require cases to be set for hearing to determine probable cause for the issuance of a
warrant of arrest of the accused before any warrant may be issued. [82] Petitioner thus cannot, as a matter of
right, insist on a hearing for judicial determination of probable cause. Certainly, petitioner cannot determine
beforehand how cursory or exhaustive the [judge's] examination of the records should be [since t]he extent

Page 40 of 41
of the judges examination depends on the exercise of his sound discretion as the circumstances of the case
require.[83] In one case, the Court emphatically stated:

The periods provided in the Revised Rules of Criminal Procedure are mandatory, and as
such, the judge must determine the presence or absence of probable cause within such
periods. The Sandiganbayans determination of probable cause is made ex parte and
issummary in nature, not adversarial. The Judge should not be stymied and
distracted from his determination of probable cause by needless motions for
determination of probable cause filed by the accused .[84] (emphasis and
underscoring supplied)

Petitioner proceeds to discuss at length evidentiary matters, arguing that no circumstances exist
that would qualify the crime from homicide to murder.

The allegation of lack of substantial or material new evidence deserves no credence, because new
pieces of evidence are not prerequisites for a valid conduct of reinvestigation. It is not material that no new
matter or evidence was presented during the reinvestigation of the case. It should

be stressed that reinvestigation, as the word itself implies, is merely a repeat investigation of the case. New
matters or evidence are not prerequisites for a reinvestigation, which is simply a chance for the prosecutor to
review and re-evaluate its findings and the evidence already submitted. [85]

Moreover, under Rule 45 of the Rules of Court, only questions of law may be raised in, and be
subject of, a petition for review on certiorari since this Court is not a trier of facts. The Court cannot thus
review the evidence adduced by the parties on the issue of the absence or presence of probable cause, as
there exists no exceptional circumstances to warrant a factual review.[86]

In a petition for certiorari, like that filed by petitioner before the appellate court, the jurisdiction of
the court is narrow in scope. It is limited to resolving only errors of jurisdiction. It is not to stray at will and
resolve questions and issues beyond its competence, such as an error of judgment. [87] The courts duty in the
pertinent case is confined to determining whether the executive and judicial determination of probable cause
was done without or in excess of jurisdiction or with grave abuse of discretion. Although it is possible that
error may be committed in the discharge of lawful functions, this does not render the act amenable to
correction and annulment by the extraordinary remedy of certiorari, absent any showing of grave abuse of
discretion amounting to excess of jurisdiction.[88]

WHEREFORE, the petition is DENIED. The assailed Decision and Resolution of the Court of
Appeals in CA-G.R. SP No. 97761 are AFFIRMED.


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